Volume 107 — Massachusetts Reports

<p>Bill nr equity, filed July 20, 1870, by George Ellis, Matthew Bolles and Michael S. Bolles, in their own behalf, and in behalf of such holders and owners of the bonds secured by the mortgage hereinafter mentioned as should become parties plaintiff, or join in the prosecution of the suit.</p> <p>The bill alleged that the plaintiffs were holders of bonds issued by the Boston, Hartford & Erie Railroad Company, and secured by a mortgage * of its property to Robert H. Berdell, Dudley S. Gregory and John C. B. Davis, dated March 19, 18G6, and confirmed and ratified by an act of the legislature of this Commonwealth, passed April 12, 1866 (St. 1866, c. 142) ; that there was, and had been for more than six months, a default in the payment of interest due upon the bonds; that the security was depreciated in value and inadequate; that sundry suits were pending against the company, and there were attachments on its property; that its property and business were not properly managed by the directors; that there was a question as to what persons were now the legal trustees of the mortgage; that the persons acting as such trustees were unsuitable for the trust; and that the directors of the company were about improperly to issue other bonds, and do certain other acts, to the injury of the company’s interests and the prejudice of the bondholders.</p> <p>It also alleged that a valuable part of the property of the corporation was a lease dated February 9, 1869, which the Boston, Hartford & Erie Railroad Company had taken of the road of the Norwich & Worcester Railroad Company, at a fixed rent, for a hundred years, which gave it the benefit of a contract between the latter company and the Norwich & New York Transportation Company, and secured to it the control of a through line from Boston to New York; and that there was immediate danger of a forfeiture of this lease through a default in payment of the rent.</p> <p>The prayer was, that the mortgage might be foreclosed, the property covered by it sold under a decree of the court, and the proceeds distributed and applied to the payment in whole or in part of the bonds, and that “ in the mean time, and until the final adjudication of this cause, some proper person may be appointed by this court receiver of all the railroad, rolling stock, franchises, rights and property covered by or embraced in, or intended to be covered by or embraced in said mortgage, and of all the rents, income, profits and issues thereof or therefrom, and apply the same, under the order of this court, with full power to run and operate said road, and with all the other usual and incidental powers ordinarily vested in or granted to receivers in like cases.”</p> <p>On August 2, 1870, upon the application of the plaintiffs, the court, “ for the care and preservation of the property of the company,” appointed receivers, with full power and authority to take possession of the railroads of the Boston, Hartford & Erie Railroad Company, with all its “ privileges, franchises, rights, leases, charters,” and all its property, “and the earnings and income thereof and therefrom; ” directed the receivers to “ maintain and keep in repair the said railroads, and operate and carry on the same, or such part thereof as may be practicable and for the in terest of all parties concerned, and receive the income from and earnings thereof; ” required the officers, agents and employees of the company to surrender the property to the receivers; declared' that the legal possession and control of all the property should vest immediately in the receivers ; directed them to take and retain possession “ of all the property, deeds, leases, contracts, books, papers and vouchers of which they were appointed receivers ; authorized them “ at their discretion to dismiss from service any agent or employee of said company, other than the president, directors, treasurer, assistant treasurer, secretary or clerk of said company, and from time to time fill the vacancy as occasion may require; ” to make all necessary contracts and disbursements for carrying on the road, settle “ all legal and just claims for damages or injuries to persons or property claimed against them, incurred while such receivers,” account for all receipts and disbursements, “ pay and discharge, out of any moneys which shall be in their hands, as such receivers, any sums due from ” said company, “ for labor performed after the first day of June last in operating its road, or supplies or material furnished the said company after that day for operating its road, including all salaries due or payable by said company to its officers, for services performed by them for said company since said first day of June,” and pay all sums necessary “ to preserve any leasehold interests or leasehold rights, or other rights, or any property, easements or rights of way.”</p> <p>Upon the application of other creditors of the company, in like interest with the plaintiffs, the court, after notice and hearing thereon, admitted them to join m the prosecution of the suit.</p> <p>Hearing upon agreed facts as to what' persons were now the legal trustees of the mortgage, before Gray, J., who reserved the question for the decision of the full court. The facts are stated in the opinion.</p>

<p>Contract. After the decision reported 98 Mass. 288, tho parties stated the case as follows for the judgment of the superior court</p> <p>“ On March 8, 1865, John P. Hill, at St. Louis, drew on the defendants, commission merchants in Boston, a draft for $3300, payable thirty days after date to the order of R. R. Pitman & Company, and containing on1 its face a memorandum in the terms following: ‘ against 12 bales cotton.’ On the same day the draft was indorsed to and discounted in the usual course of business by the plaintiffs, and on March 15 was presented by them to the defendants at Boston, who caused it to be noted for non-acceptance. On March 8 Hill wrote to the defendants as follows : 11 ship you to-day per Merritt’s Express 12 bales, weighing 5489 pounds, on which I have drawn on you @ SO days for $3300.’ To this letter the defendants replied on March 14 as follows: 6 We now have the pleasure to acknowledge your favor of the 8th. Your shipment 12 bales cotton per Merritt’s Express will receive due attention. Bill of lading not at hand. Your draft for $3300 is excessive; particularly as we shall have no margin on previous shipments, as the market now looks. We will honor the same, but shall expect you, on receipt of this, to make us shipment of cotton to cover the margin.’ And on March 15 they again wrote to Hill as follows: 6 Market for cotton continues weak. Have no bill lading 12 bales reported as shipped yesterday, and we have felt obliged therefore to have your draft for $3300 noted for non-acceptance. When bill lading is received, will accept draft.’ The said bill of lading of the cotton ran to the defendants or order, and was received by them March 17, 1865.</p> <p>“ The defendants’ letter of March 15 was shown to the plaintiffs by R. R. Pitman & Company March 22, 1865. The plaintiffs thereupon procured said letter, and the duplicate bill of lad ing, of Pitman & Company, and on March 27 again presented the draft, with the defendants’ said letter and the duplicate bill of lading attached, to the defendants for acceptance. But the defendants declined to accept the same, and afterwards declined to pay, and they have never paid the same or any part thereof, and the same was duly protested for non-acceptance and non-payment. The twelve bales of cotton were received by the defendants on April 17, and were sold by them on April 21 for $1349 net, which sum they credited in their current account with</p> <p>Hill, upon which a balance then was and still is due to the defendants.”</p> <p>The superior court ordered judgment for the defendants; and the plaintiffs appealed. The case was argued at a former term.</p> <p>B. F. Thomas §• B. Olney, for the plaintiffs. 1. At the' same time that Hill notified the defendants of his consignment of the cotton to them, he informed them that he had drawn against it the draft in suit. This made the acceptance of the draft a condition of the consignment, and bound the cotton and draft indissolubly together. The defendants’ letters of the 14th and 15th of March, wherein they promise to accept when the bill of lading is received, show that this was their understanding of the transaction. And not only was this the real transaction, as between the immediate parties; but, by a memorandum on the face of the draft, any party into whose hands it should come was informed and assured that .its acceptance and payment were secured by the consignment- of the cotton. The plaintiffs bought the draft with' the memorandum on it, and in reliance and with a right to relyhpon the cotton as security for its payment; and before the bill of lading was received the draft was presented to the defendants, who thus became aware that the plaintiffs were the holders of it and had purchased on faith of its acceptance and payment being secured by the cotton. Under these circumstances, the de fendants could not accept the consignment without also accepting the draft. They might decline the consignment and then also decline to accept the draft. But they could not receive the consignment and at the same time dishonor the draft, without a manifest fraud upon both the consignor and the holder. The case of Allen v. 'Williams, 12 Pick. 297, proceeds substantially on these principles. The fact of the bill of lading in the present - case not running to the bearer, but directly to the defendants, is material only on the question of the technical legal title. The equitable obligation to accept and pay is the same. See 1 Parsons on Notes & Bills, 291; Michigan State Bank v. Gardner, 15 Gray, 362.</p> <p>2. Upon the facts, the defendants made a distinct promise tt accept, conditional on receipt of the bill of lading. That conditian being fulfilled, the promise became absolute. Though in terms it was a promise to the drawer, in law it enured to the benefit of the holder, on the principle affirmed in Carnegie v. Morrison, 2 Met. 381, which is, “ that when one person, for a valuable consideration, engages with another, by simple contract, to do some act for the benefit of a third, the latter, who would enjoy the benefit of the act, may maintain an action for the breach of such engagement.” Brewer v. Dyer, 7 Cush. 337, 340. And the case is within the English as well as the American rule, inasmuch as the defendants expressly assented to the terms upon which the cotton was consigned to them, and promised Hill, who may be deemed the plaintiffs’ agent to receive the promise, to accept upon receipt of the bill of lading. See Lilly v. Says, 5 Ad. & El. 548; Walker v.- Rostron, 9 M. & W. 411; Chit. Con. (8th ed.) 53; Addison on Con. (5th ed.) 633, 634, 9§1; Met. Con. 209. By a compliance with the promise, on , the part of the defendants, the plaintiffs would have received the full amount of the draft, and by the refusal of compliance they are damnified to the same amount, and are further entitled to interest as damages for the detention.</p> <p>3. The consideration for the defendants’ agreement to accept moved from the plaintiffs. The plaintiffs had an equitable lien upon the cotton to the extent of the draft discounted by them. The promise of the defendants to accept was on condition that they received the bill of lading of cotton of which the plaintiffs were thus the equitable owners. And the defendants received the bill of lading, and then sold the cotton, with knowledge of the interest of the plaintiffs in it. Under any rule, therefore, the promise was to the plaintiffs, and they may count upon it.</p> <p>4. If the plaintiffs are not entitled to recover the amount of the draft and interest, they are at least entitled to judgment for the amount of the proceeds of the cotton, with interest from Apri1 17, 1865. The defendants took the cotton impressed with a trust for the plaintiffs as holders of the draft, and held and úow hold its proceeds to the plaintiffs’ use. Allen v. Williams, 12 Pick. 297.</p>

<p>Contract by the payee against the drawees, on a bank check. The declaration alleged that the defendants were a banking corporation of deposit, discount and circulation, doing business in Boston, and the firm of Lincoln & Company on and before May 1868 “ were customers of and depositors in said bank, and had been accustomed to deposit money in said bank, and draw their checks upon the same, and said bank, in consideration that said firm would so deposit funds in said bank, promised and agreed with said firm to pay all checks and drafts of said firm on said bank, when in funds of said firm to pay the same, and said bank had for a long time previous to May 1868 so paid said drafts and checks of said firm; ” that Lincoln & Company on May 2, 1868, in consideration of $600 paid to them by the plaintiff, drew their check upon the defendants for the sum of $600 payable to the plaintiff’s order, and the plaintiff duly presented it to the defendants at their place of business, and demanded payment of it; that “ at the time of the presentment and demand the defendants were indebted to said firm, and said firm had funds in the bank, against and upon which they were entitled to draw the check, to a greater amount than $600 ; ” but that the defendants refused to pay the check, and have never paid it or any part of it; and that the plaintiff continues to be the holder of the check, and no part of it has ever been paid to him, and he has never been able to collect it, or any part of it, from Lincoln & Company. A copy of the check was annexed.</p> <p>The defendants demurred, on the ground that no legal cause of notion was stated, because the declaration did not set forth any agreement, express or implied, of the defendants with the plaintiff, to pay the check. The superior court sustained the demurrer, and ordered judgment for the defendants ; and the plaintiff appealed.</p>

<p>V (who was one of the three directors, and also treasurer, of a trading corporation, and owned 1801 of the 3600 shares of its capital stock) made a contract, in 1865, with B., (who was, and had been for several years, a servant of the corporation charged with important duties in its business, and paid by an annual salary,) of which they signed this memorandum: “ Jan. 1, 1864, to Jan. 1,1871. Earnings from Oct. 1,1870, to Oct. 1, 1871, and all subsequent years, on 300 shares, to be paid to B., and said 300 shares to belong to B. but not to be transferred so long as A. desires to keep the control of the corporation, said 300 shares standing in his name and thereby giving him a majority of said shares. It is agreed that if between Jan. 1, 1864, and Jan. 1, 1871, B. should die or leave the corporation, pro rata shares for the then unexpired term shall be considered aa earned and due under above agreement, after Jan. 1, 1871. Whenever A. can keep the control or majority of shares and yet part with 300 shares, said 300 shares shall then be transferred to B.” It was the policy of the managers of the corporation to accurr-ulate its earnings without declaring dividends; and to interest its servants in their duties by making them sharers in the profits. B. remained in the service of the corporation until 1869, when he was dismissed from it without his fault, and although he was willing and offered to continue in it. A. took part in the dismissal, and at the same time gave B. notice to consider their contract terminated. Held, on a bill in equity thereupon filed by B. for the declaration against A. of a trust in B.’s favor in 300 shares of A.’s stock, (1) that the contract imported that if B. should continue in the service of the corporation until January 1, 1871, rendering services of the same general character as he had previously rendered, Tie should be considered as having earned the 300 shares; (2) that the contract imported a valid consideration for A.’s promise concerning these shares, in the implied agreement of B. to render future personal services to the corporation; (3) that the contract was not within the Gen. Sts. c. 105, § 6, which avoids agreements to sell or transfer shares in the stock of a corporation, unless the contracting party is at the time owner or assignee of the shares, or a duly authorized agent of the owner or assignee; (4) that the contract was also not avoided by a by-law of the corporation, that no shareholder should convey any shares, unless to his legal heirs, without first offering them to the corporation at par; (5) that the stipulation of the contract for an apportionment of the 300 shares in event of B.’s leaving the corporation was not applicable to a dismissal of B. from the service of the corporation without his fault; and (6) that the participation of A. in B.’s dismissal, and the notice which he gave to B. of a simultaneous termination of the contract, was a breach of the contract, which entitled B. to a decree declaring the trust in his favor, although the bill was filed before the time when his right to earnings on the shares was to accrue. Held, also, in reference to a prayer of the bill for a decree to restrain A., as owner of a majority of the shares, from permitting the corporation to carry on business unauthorized by the charter, (1) that the bill was not multifarious in seeking such relief; but (2) that it should not be granted in the absence of the corporation as a party.</p>

<p>Bill in equity filed November 5, 1866, for a settlement of business transacted under -written articles of partnership dated and entered into by the plaintiff and the defendant at Port Boyal in South Carolina on January 6,1865, which provided that, “ for the purpose oE trade, especially for the sale of goods and merehandise from Boston and New York at Port Royal, S. C., Sa vannah, Ga., and Charleston, S. C.,” it was mutually understood and agreed as follows : •</p> <p>“1. The business to be done on joint account, for the mutual and equal benefit of the parties; all profits or losses to be equally divided.</p> <p>“ 2. The capital to be furnished in equal amounts, and not to exceed $60,000 without further agreement by the parties.</p> <p>“3. The goods and merchandise, to be bought and shipped from Boston and New York by the said Drew, and the business at that end to be managed mainly by him.</p> <p>“ 4, The sale of the goods, and the general management of the business at Port Royal, Savannah and Charleston, to be assumed by the said Beard.</p> <p>“ 5. No charge or commission is to be made by either party for personal services ; all help necessary to conduct the business, and all expenses required to carry on the business successfully, first to be paid from the profits, or divided as a loss.</p> <p>“6. It is now proposed by the parties to open a jobbing store at Port Royal to sell only by the package; also to open a retail and jobbing store at Savannah.</p> <p>“ 7. Each party holds himself responsible to the other for the faithful performance of all business and all joint account moneys, goods and merchandise intrusted to or done by him.</p> <p>“ 8. This arrangement for a joint account business, to be done in the name of W. A. Beard at Port Royal, Savannah and Charleston, and of E. C. Drew at Boston, and is to continue only so long as is mutually agreeable, and may be terminated by either party by an offer to buy or sell out to the other party.”</p> <p>The bill alleged that “ under and by virtue of these articles of copartnership the said business was commenced and carried on by the said parties, and the defendant had and exercised the chief management and control of the said business at Port Royal, Savannah and Charleston; ” that the plaintiff put a large amount of capital, to wit, $30,000, into the said business, and applied his best skill and judgment to it, that a large amount of profits, to wit, $60,000, were realized by the defendant in said business and retained by Mm; that “ the said copartnership has terminated and been dissolved; ” and that the plaintiff requested the defendant to come to a settlement “ touching the said business and dealings, and the sums received by the defendant,” and the defendant neglected and refused to do so. The prayer was for an answer, and for “ such further and other relief in the premises as the nature and circumstances of tMs case may require.”</p> <p>The defendant, in Ms answer, admitted the execution of the written articles of partnersMp, and that he had and exercised the chief management and control of whatever business was carried on under' them at Port Royal, Savannah and Charleston; alleged that he faitMully executed his duties under them; denied that the plaintiff put $30,000 into the business, but alleged that the plaintiff bought invoices of goods and shipped them to the defendant and paid for them with the proceeds of remittances made to him by the defendant; denied that the said business resulted in profit, and alleged that it resulted in a great loss, of many thousands of dollars, the precise amount of which he could not state until the plaintiff should account to him for goods which remained in the plaintiff’s hands to be disposed of in settlement thereof, and for which the plaintiff neglected and refused to account ; denied that he ever refused or avoided coming to a just and full settlement with the plaintiff touching said business, and alleged that on the contrary he had always desired and been ready to come to such a settlement, but was prevented from doing so by the plaintiff’s neglect and refusal to account as aforesaid; denied that amy amount was due from him to the plaintiff, and alleged that a large sum was due from the plaintiff to him ; and annexed an account alleged to be “ an account of all Ms business and dealings with the plaintiff under the said articles of agreement, so far as it is possible for the same to be made by him while the plaintiff neglects and refuses to render to him an account as aforesaid.”</p> <p>The plaintiff filed a general replication ; and in December 1867 the case was referred to Charles C. Nutter, Esq., one of the masters in chancery for this county, “ to state an account,” who filed his report in October 1869, together with exceptions alleged thereto by the defendant. By the report, and a statement of all the evidence, which was annexed to it, these facts appeared :</p> <p>“ The parties executed the written agreement alleged in the bill, and thereupon proceeded to carry on business according to the terms of said agreement, and opened two stores in Savannah about February 1, 1865, for the sale of goods and merchandise. Salesmen were employed, and the business was transacted by selling the merchandise which had arrived and was arriving from time to time, the plaintiff purchasing principally the goods at the North and shipping them to Savannah, where most of the sales were made, principally under the management and direction of the defendant, and where the business was conducted in his name, as provided by said articles of partnership; and the said business continued until the last of November or first of December 1865, when the stores were closed.” The evidence showed that the partnership was terminated by an offer made by the plaintiff to the defendant, pursuant to the eighth article of their agreement, at some time between the 10th and 19th of November; and that the keys of the stores were surrendered to the landlord on November 30.</p> <p>During several months of this period the plaintiff was personally at Savannah. The rest of the time he was in the North, chiefly at Boston, where he carried on business individually, or in Florida, where also he had individual business. The defendant was at Savannah during the whole period, with the exception of time consumed in three journeys to and from the North, and of portions of August and the three ensuing months, in which (as also in December, after the stores of the firm were closed) he was engaged in transactions at and near Thomasville in the southwestern part of Georgia, several hundred miles distant from Savannah by the route of communication then existing. The nature of these transactions was briefly as follows:</p> <p>At a sale by auction, in Thomasville, by a United States treasury agent, of captured and abandoned property, under the treasury regulations relating to such property in the civil war, the defendant in August bought a quantity of old lead and iron and forwarded it thence to New York, consigned to the firm of S. W. Lewis & Company, commission merchants, who sold it and accounted to the defendant for the proceeds.</p> <p>The defendant also, on August 16, at Thomasville, entered into a contract with the treasury agent to collect, rebale and transport certain captured and abandoned cotton, of which on that day the treasury agent wrote, and they signed and sealed the following memorandum:</p> <p>“ This certifies that I have entered into an agreement with William A. Beard, of New Bedford, now doing business at Savannah, to collect, rebale when necessary, transport and deliver at Jacksonville, Florida, or at some eligible shipping port in Georgia, all cotton which has been turned over to me by the military commander, Colonel Kimball, or to which the United States gov-, ernment have claims, within the military district of Altamaha, said Beard agreeing to place said cotton at said shipping port or ports at the earliest practicable period, and for which he is to receive, in lieu of all expenses incurred, one quarter part of the bales of cotton collected, rebaled and transported. This to be in full of all demands. This division to be made at Thomasville, and under the direction of the supervising special agent, and, in his absence, of the military commandant or his deputy. And the said Beard further agrees to indemnify the United States government for all claims and damages which may accrue from any neglect on his part, or from any expense incurred in collecting, preparing and transporting said cotton.”</p> <p>Immediately after signing this memorandum the defendant began to collect the cotton, but was interrupted by a legal process sued out from the civil courts of Georgia by persons who made claim to a portion of the cotton, and he desisted, returned to Savannah, and gave the treasury agent notice that he would proceed no further in execution of the contract without the express approval of the secretary of the treasury, to whom the memorandum of it had meanwhile been forwarded for revision. On October 10 he received notice that the contract was approved by the secretary of the treasury, and was directed to carry it into immediate execution, and Savannah was designated as the shipping port at which he should deliver the cotton. He accordingly went again to Thomasville on October 24, and during the months of November and December 1865 and the early part of January 1866 collected about 2000 bales of cotton in southwestern Georgia, pressed and rebaled it, transported it from Thomasville to the Altamaha River, down the river to the sea, and thence up the coast to Savannah, where he repaired the damages it had suffered in transportation, and put it into shipping order. Upon its acceptance in such order at Savannah by the treasury agent, who until then maintained control of the whole of it as security for faithful performance of the contract, the defendant’s quarter of the cotton, which had been apportioned under supervision of the United States military authorities at Thomasville, was surrendered to him, less whatever number of bales out of the whole lot of cotton had been lost on the route. The cotton thus received by the defendant he consigned to S. W. Lewis & Company for sale, as he did the lead and iron, and they accounted to him in like manner for the proceeds. S. W. Lewis & Company had for many years before the defendant’s partnership with the plaintiff been the defendant’s agents in New York, and continued to be so during the partnership and after its dissolution; and they included their business done for the defendant individually, and that done for the partnership, in one and the same account in his name.</p> <p>The defendant’s pecuniary outlay and risk in this transaction were very great; an attempt was again made to arrest him on process of a Georgia court; and he was exposed to danger of life and limb, by acts of violence threatened or done by persons interested to prevent the collection and removal of the cotton, which led to arrests by the United States military authorities and the proclamation of martial law at Thomasville.</p> <p>The defendant objected to the introduction of evidence by the plaintiff, before the master, of these transactions in lead and iron and cotton, as not warranted, under the order of reference to the master, by the plaintiff’s bill and the written articles of partnership. But the master ruled that the transactions were “ pmmd fade partnership transactions and to be accounted for as such; ” admitted the evidence; and required the defendant, on the plaintiff's motion, to produce forthwith his accounts thereof, and also all his letters and papers “ pertaining to the business,” under penalty of not being afterwards permitted to introduce them, if he should refuse their production at that time and the plaintiff should proceed to prove them by other evidence.</p> <p>The plaintiff accordingly produced his said accounts and letters and papers, showing a net profit in the iron and lead transaction of about $1500; and in the cotton transaction an expenditure of about $62,000 in collecting, rebaling and transporting the cotton, a loss on the route of transportation and consequent deduction from his share of cotton of only 12 out of the 2000 bales, and a profit of about $50,800. Various items of the expenditure, amounting to nearly $10,000 and consisting of the expenses of teaming, handling and rebaling cotton at Thomasville, and pay of the defendant’s employees there, were disallowed by the master.</p> <p>Excluding these transactions, the master found that the business of the partnership resulted in a loss of $33,990.27, of which the firm owed the plaintiff $8,068.44 and the defendant $25,-921.83; and he reported as follows:</p> <p>“ Books were kept at the Savannah stores, of the business transacted there, which were produced before me at the hearing. They were kept, for the most part, by persons unacquainted with book-keeping, and in a very unskilful manner. They purport to contain only the business transactions at said stores, without any entries, as upon joint acccount, of the said transactions in iron, lead and cotton. Said books purport to contain the account of each partner with the firm.</p> <p>“ The business of buying and selling merchandise, as conducted and carried on in said stores at Savannah, resulted finally in a large loss. The said business of buying, shipping and selling said iron, lead and cotton, as so conducted and done by the defendant, resulted in a large profit. The plaintiff contends that the latter should be accounted for by the defendant, as part and parcel of the business of the copartnership, and that he is entitled to one half of the profits thereof, in general account; while the defend ant claims that this was his own private, individual business transaction, in no way connected with the partnership business and for which he is not hable to account. And this constitutes the main and principal matter in controversy in this suit.”</p> <p>“ The plaintiff claims, as hereinbefore stated, that the said operations in lead, iron and cotton should be accounted for by the defendant as belonging to the partnership business. And I find upon the evidence that they should be so accounted for.”</p> <p>“ And I accordingly find and report that the defendant was indebted to the plaintiff on March 1,1869, the date of this report, in the sum of $24,297.26, as by an account stated in accordance with the foregoing findings and results, which is hereto annexed.”</p> <p>The defendant alleged three exceptions to the report; the first, in that “ the master required the defendant to account for the profits made by him on his purchase of lead and iron of the government of the United States, as a part of the business of the partnership between the plaintiff and defendant, the defendant alleging that, upon the plaintiff’s bill and the partnership agreement between the plaintiff and himself, said purchase ought not to have been held to be partnership business, and that the master erred in compelling him to account, for the profits of said purchase, and in receiving evidence thereof; ” the second, in like terms as to the master’s rulings in respect to the cotton transaction ; and the third, in that, “ upon the evidence and facts before the master, he should have found, adjudged and reported that the profits of .the purchase of lead and iron, and of the contract with the treasury agent, were not profits of the business of said partnership.”</p> <p>The case was reserved upon the pleadings, master’s report, and exceptions, for the determination of the full court, and was argued in March 1870. At the close of the argument, the plaintiff’s counsel gave notice that in event of a decision adverse to him upon the first and second exceptions, they should move for leave to amend the bill.</p>

<p>A. and B. were partners; and B. was a minor. Both of them knowing that the firm was insolvent, B. sold his interest in its property to A., who soon filed a petition for the benefit of the insolvent law individually and as a member of the firm. An assignment of the estate in insolvency was made, and certain creditors proved claims, with the understanding, and by a direction of the judge of insolvency, that the question whether they should be allowed against the estate of the firm, or A.’s separate estate, should be reserved for future determination. Pending these proceedings, B. became of age; and thereupon these creditors brought actions at law against A. and B. upon the same claims, and B. pleaded his infancy in defence. Pending the actions, the judge of insolvency, upon a petition of the assignees presented before the actions were brought, decreed, after hearing all parties in interest, that the funds in the hands of the assignees, including those derived from B.’s sale to A., were A.’s separate estate, and that the claims of the said creditors were provable only against the estate of the firm. No appeal was taken from the decree, and, with knowledge of it, these creditors, in their actions at law, discontinued against B. because of his defence, and recovered judgments against A. Held, that a bill in equity filed by them more than a year after the recovery of the judgments, for a revisal of the decree of the judge of insolvency both as to marshal-ling the assets and determining against which estate their claims should be allowed, was filed too late.</p>

<p>A firm, which had an account against A. B., brought action and recovered judgment thereon, and land of A. B. was sold on the execution, and bid off by W. F., one of the partners, in his own name, but with an understanding between him and his partners that he “should account with them for the interest in the land at its reasonable value.” On the account of A. B. in the books of the firm, the expenses of the action and sale were charged, and the rents of the land credited, to the partnership. Upon the dissolution of the firm, C. S., to whom the firm was indebted, requested the partners to convey the land to him in discharge of his debt. W. E. wrote in the margin of A. B.’s account in the firm’s ledger, “ To W. E., he to pay C. S.; ” and the other partners assigned to C. S., in writing, their interests in the land. The accounts between the partners were after-wards settled. Held, on a bill in equity filed by C. S. against W. F., to compel W. F. to convey the land to 0. S., that there was no trust on the land in the hands of W. F., in favor of the other partners or of C. S.; and that an amendment, changing the bill into an action for money had and received, should not be allowed, although the parties had agreed that if C. S. could have relief upon the case stated he might have leave to amend accordingly.</p>

<p>The plaintiff and the five defendants, by an instrument signed by them, reciting that, de» siring to obtain and work a gold mine, they appointed the plaintiff their agent to go to California and make such investigations of mines as he might see fit and report, agreed that they would pay $100 each to defray his expenses to California, and that upon hia recommendation, if satisfactory to a majority of the subscribers, they would raise proportionately the money necessary to put the mine in working order; and he agreed that, if it should be decided to work the mine he might recommend, he would leave the question of his salary open, to be decided when he should have placed the mine in working order. The subscribers also wrote a letter to him, in wnich they stated that it was expected of him to visit the mines in the various localities, and to avail himself of the aid of one or more of the most competent judges of mining property, before reporting; that he could not be too particular in giving all the points upon which he based his decision; that the matter of his compensation was to be left to be arranged in the future; and that he was to understand that, whatever mine they should decide to accept, it would be with the understanding that he should act as the superintendent. The plaintiff went to California, and selected a mine; but the defendants then abandoned the undertaking. Held, that the plaintiff was entitled to recover five sixths of such a sum as would reimburse to j.‘m his fair and reasonable expenses, and be a fair compensation for his services, although the sum should exceed the amount raised by the payment of $100 each by the subscribers.</p>

Bill in equity praying for a decree to compel the assignment of letters patent, and for an account. The defendants demurred, on the ground of want of jurisdiction. The case was reserved by the chief justice, on bill and demurrer, for the determination of the full court, and is stated in the opinion.

<p>If a resident of another state becomes insane pending a suit ia equity against him in ttii Commonwealth, the appointment by the court of his counsel to he his guardian ad litem justifies proceeding without notice .0 a guardian previously appointed in the state of his domicil.</p> <p>In a suit in equity to compel the defendants to account for shares in the stock of a corporation, alleged to have been obtained by them in fraud of the plaintiffs, wherein it is decreed that one of them, while acting as agent of the plaintiffs, united with the other, who knew of that relation, as partners in obtaining the shares, to which the plaintiffa were in equity entitled, they are liable to account therefor both jointly and severally may be decreed to replace the shares to the plaintiffs, to the extent of other like shares held by them at the time of the filing of the bill; and if one of them dies after the said interlocutory decree, and while the case is referred to a master to state the account, and the other is fully heard before the master and afterwards before the court on exceptions to his report, the final decree for the plaintiffs should be entered nunc pro tune, as of the date of that decide.</p>

Tobt. The declaration was as follows: “ And the plaintiff says that the defendants carelessly left a track, loaded with iron, in Marion Street, a public highway in Boston, for the space of twenty minutes and more; and the iron on said truck was so carelessly and negligently placed that it would easily fall off; and the plaintiff was walking in said highway, and was lawfully in said highway, and lawfully using said highway, and in the exercise of due care; and said iron upon…

<p>Tort against a street railroad corporation for personal injuries alleged to have been received by the plaintiff through the negligence of the driver of one of the defendants’ horse-cars.</p> <p>At the trial in this court, the plaintiff offered to prove “ that on July 16,1868, at which time she was nine years of age, she went out about seven o’clock in the evening to walk; that she was in company with four or five other girls, on the Charlestown bridge, and near the draw, and one of the defendants’ cars came along very slowly; that there were no passengers on the platform, and the driver beckoned to the girls to get on, and they accordingly got on the platform, while the car was going slowly; that the driver then struck his horses, and they started on a fast trot; that the plaintiff had one foot on the step, and by reason of the sudden start lost her balance; that she called to the driver to stop, but the car kept on, and she fell so that; one of the wheels passed over her arm, and she was obliged to have it amputated; and that she used due care and the driver was careless.” It was admitted that the plaintiff was not a passenger for hire, and that the driver had no authority to take the girls upon the car and carry them, unless such authority was to be implied by the fact of his employment by the defendants as a driver. Upon the plaintiff’s offer of proof, the case was reserved by the chief justice for the consideration of the full court; if the plaintiff was entitled to recover thereon, the case to stand for trial; otherwise, judgment to be given for the defendants.</p>

<p>At a trial, the defendant, to show that testimony of the plaintiff as Co the lime when he bought a promissory note was not to be relied on, put in evidence answers of the plaintiff to interrogatories filed in the case, in which he stated tjiat he bought it at a different time. The plaintiff, on reexamination, offered, to testify that he was mistaken in his answers to the interrogatories, and that, as soon as he discovered his mistake, he informed his counsel, in order that it might he cor/ected. Held, that this testimony was admissible, although the plaintiff had not asked leave to amend his answers.</p>

<p>In an action by an administrator against an insurance company, the declaration alleged that the defendants made to the plaintiff’s intestate a policy of insurance against fire-on a dwelling-house situated on C. Street; that in 1849, before the expiration of the policy, the house was destroyed by fire; and that the defendants had notice of the loss. The plaintiff filed interrogatories to the president of the defendants, asking him to state whether it appeared by their records that a policy against fire, which had not expired in December 1849, was issued in that year to the plaintiff’s intestate on a dwelling-house on C. Street, either on lot 2 or lot 4, according to a plan of lots; and whether the plaintiff’s intestate ever notified the defendants of a loss under the policy. Held, that the interrogatories, so far as they were relevant, must be answered.</p> <p>In an action against an insurance company to-recover for a loss under a policy, interrogatories filed to their president which do not inquire for official information, but as to his personal knowledge and admissions concerning the matter in suit, need not be answered.</p> <p>Whether a party to a suit, who has filed interrogatories under the Gen. Sts. c. 129, § 46, can file further interrogatories on the same subject matter, is discretionary with the court.</p>

<p>When it is sought to charge a trustee in foreign attachment on his answer, the nal.iral import of the language of the answer must control; he is to be charged or not, according as the evidence afforded by the whole answer preponderates; and it is for the plaintiff to prove his allegations, not for the trustee to disprove them.</p> <p>A debtor assigned property to two persons for the benefit of his creditors; all the creditors signed the assignment; the assignees accepted the trust; and the property was insufficient for the payment of the debts. Held, that one of the assignees was not liable to be summoned as trustee in a suit by one of the creditors against the debtor.</p>

Tort for causing the plaintiff to be unlawfully imprisoned. At the trial in the superior court, before Rockwell, J., it appeared that the defendant, as a trial justice for the county of Norfolk, issued a warrant against the plaintiff, on the complaint of David Fisher, charging the plaintiff with maliciously taking and carrying away a pine log from the land of the complainant; that on January 23,1868, the plaintiff was tried on the complaint before the defendant, convicted,…

Writ or review. The original action, in which the plaintiff in review was defaulted, was brought against her for the price of intoxicating liquors sold to her by the defendant in June 1868. Trial in the superior court, before Pitman, J., and verdict for the plaintiff in review. The defendant in review alleged exceptions. The case is stated in the opinion.

Replevin of household furniture. Writ dated and served March 11, 1870. At the trial in the superior court, before Lord, J., it appeared that the replevied goods belonged to Manly B. Witherell, and were by him mortgaged to the plaintiff, and after-wards attached by the defendant, who was a deputy of the sheriff of Suffolk, on two writs against Witherell, in which the plaintiff was summoned as trustee.

- Replevin of ironworker’s machinery, tools and materials , brought by the administrator of the estate of George Adams. The answer alleged property in the defendant. Writ dated November 15, 1867.

Tort for the conversion of a sewing machine. At the trial in • the superior court, before Reed, J., the plaintiff introduced evidence tending to show that, being the owner of the machine, he let it to Betsey Bunton for a dollar a week, payable in advance; that she paid for some weeks, but afterwards stopped payment; that some time after she stopped payment she moved from Springfield Street in Boston, where she had been living, to Myrtle Street, and employed the defendant,…

<p>Contract to recover damages for breach of an agreement, dated February 29,1870, between the defendants, as parties of the first part, and the plaintiffs, as parties of the second part, the provisions of which were as follows :</p> <p>“ The parties of the first part agree to sell the parties of the second part 14,000 tons of the Preston & Gilberton Locust Mountain coal, deliverable from April 1 to September 1, current year, on board vessels at Philadelphia, in equal monthly proportions, as nearly as may be, at the price of $3.50 per ton of 2240 pounds, free on board, payable in cash. If the parties of the first part be interrupted in the delivery of the above coal during the time specified, viz: April 1 and September 1, current year, by strikes or any unforeseen causes, additional time will be allowed them to complete the delivery of the same, not exceeding one month. Bills of lading shall be primd facie proof of delivery in regard to time and quality, and the coal when on board is to be at the risk of the parties of the second part. The parties of the first part agree to use their best exertions in procuring vessels at as low rates of freight as possible for the parties of the second part, and are to attend to the shipping of the coal without charge. Bills of lading are to be made to the treasurer of the parties of the second part, either to the Boston & Lowell Railroad Wharf in Boston, or to Phillips Wharf in Salem, so as to be conveniently delivered to the cars at either place, as customary, as the parties of the second part may direct. The parties of the second part agree to purchase and to receive the above coal as above described and specified, and to pay for the same as mentioned above, provided the' first cargo, which shall be shipped by the parties of the first part as early as navigation will permit, as a sample cargo of the coal, shall prove satisfactory to the parties of' the second part; a reasonable time to be allowed for testing the same; if not satisfactory, then' this agreement to be void.”</p> <p>The breach alleged was, that a portion of the coal delivered was inferior to the alleged sample, and that another portion wot not delivered at the specified time.</p> <p>At the trial in this court, before Ames, J., the execution of the agreement was admitted, and it appeared “ that the sample cargo was received by the plaintiffs,” who are a manufacturing corporation, “ at Lowell, in April 1868, and that seven or eight cargoes in about a month afterwards were landed at Boston and Salem and forwarded to the plaintiffs’ works at Lowell.” And there was evidence tending to show “ that the quality of the coal making up these cargoes proved on trial at the plaintiffs’ works at Lowell to be inferior to the sample ; that they objected to it, and notified the defendants that no more of that kind would be received ; and that the delivery at Philadelphia of a large portion of the coal did not take place till after October 1, whereby the plaintiffs were obliged to pay higher prices for freights and insurance.” There was conflicting evidence upon the question “ whether the plaintiffs agreed to waive all objection to the quality of the coal so complained of, provided the remainder should be such as the contract required, or whether that matter was merely reserved for adjustment on final settlement.”</p> <p>“ In order to show what increase there had been in freights and insurance, resulting from the delay in delivery, the plaintiffs were permitted to show what had been the actual expense to them, under these heads, upon the coal shipped within the period limited by the contract, and what had been the actual expense for the same items on the coal shipped after that time; also to show the number of tons received within the period limited by the contract, and the average rate of freight on each ton, and the same things as to that portion of the coal that was shipped after that period; and also the increase in the cost of insurance. The treasurer of the plaintiffs, who testified that he had been long in the practice of buying and receiving coal from Philadelphia, was permitted to testify that freights on such shipments were usually higher in the autumn than in the summer months. To all this evidence the defendants objected as inadmissible; but the judge admitted it.</p> <p>“ It appeared that, from a strike of miners or some other cause, the price of coal advanced in Philadelphia from $3.50 per ton in July to $5.00 in October and November, when the last coal was delivered; and that freights were usually, but not always, higher in the autumn than in the summer months; that the plaintiffs paid theofreights from Philadelphia on all the cargoes which they received ; that they made no complaint of delay upon any shipment previous to October 1; and that they had no opportunity to test the quality of the coal, until they began to use it in their works at Lowell; and it did not appear that the freights in the latter part of September were lower than the average rate during the three months from July 1.</p> <p>“ The defendants offered evidence tending to show that, shortly before the expiration of the time limited by the contract, and when it had become manifest that the coal could not all be delivered within that time, their agent applied to the plaintiffs’ treasurer to inquire whether they would receive after the time limited by the contract what remained to be delivered; and the answer was, that they not only would consent to, but insisted upon, its delivery. The plaintiffs offered evidence tending to show that the treasurer said at the same time that the plaintiffs would claim damages for any increase in the cost of the coal at Lowell produced by any advance in freights and insurance. The defendants denied that any such notice was given to their agent, or any such claim made ; and they introduced evidence tending to show that all objection on the part of the plaintiffs on the ground of the delay was waived, if the defendants would agree to pay the increased expense of insurance, which they did agree to do.</p> <p>“ There was also evidence that the coal objected to as bad in quality arrived at Lowell at different dates, but early in May and that the defendants were notified that it was not satisfactory, late in that month, and sent one of their firm to Lowell to examine it; but whether there was any neglect or delay in giving notice of the objection within a proper time was one of the questions of fact submitted to the jury under instructions to which no exception was taken.</p> <p>“ The defendants asked the judge to rule that, if the plaintiffs had any claim on the ground of delay in the delivery, their damages were to be estimated by the difference in the market value of the coal between the time embraced in the contract and the time of the actual delivery; and they objected to all evidence of increased rates of freight and insurance, on that ground. They also asked the judge to rule that, by demanding the delivery of the coal after the expiration of the contract period, and then accepting it, the plaintiffs had waived the element of time in the contract; and insisted that, if the plaintiffs could recover for difference in freight and insurance, it would be only for the excess paid above the rates paid for shipments made at the termination of the contract period, and not above the average rates of that period; and that, if they had any claim for deficiency in quality, it must be for difference in value at the place of delivery, and not at Lowell, the place of consumption.”</p> <p>The judge did not rule as requested, but instructed the jury “ that, if the plaintiffs received the coal at Lowell without any complaint or objection on account of its bad quality or the delay in delivery, it would be primé fade evidence of a waiver of all objection on either of these grounds ; but if, on trial of it at their works, and within a reasonable time thereafter, they gave notice to the defendants that damages or allowance would be claimed on account of its bad quality, such receiving of the coal would not be evidence of a waiver of that objection; that if, on consenting to receive that portion of the coal which was delivered after the expiration of the contract period, they gave notice that they should claim damages for increased expenses growing out of such delay, receiving it under such circumstances would not be evidence of a waiver of that objection; that, if the delay in the delivery of the coal increased its cost to the plaintiffs, by increasing the charges for freight and insurance above the average rate for those items or shipments during the contract period, they would be entitled in this action to recover such actual increase of the cost, unless some waiver or modification of the agreement in that respect should be shown; and that, if the plaintiffs proved that any portion of the coal delivered was inferior in quality to what they were entitled to receive, they were entitled to recover an allowance for such deficiency in value, or for the difference between the value of the coal delivered at Lowell and that of the coal which by the contract they were entitled to receive, unless some waiver of objection for that cause were shown, without reference to the value at the place of shipment.”</p> <p>The jury returned a verdict for the plaintiffs, and the defendants alleged exceptions.</p>

<p>Contract by the plaintiff, doing business under the name of Howard Snelling & Company, against the defendants, doing business under the name of Hall, Caldwell & Company, for breach of an agreement of two parts, of which the first, signed by the plaintiff, was as follows: “ Boston, June 11, 1868. Bought of Hall, Caldwell & Company two thousand tons Freek’s Centralia broken coal, to be delivered free on board vessels at Port Richmond, Philadelphia, at three dollars and thirty-five cents per ton. Subject to changes of tolls on Reading Railroad. Hall, Caldwell & Company guarantee that the advances shall not exceed twenty-five cents a ton. To be shipped at our option between this date and September 1, 1868; ” and the second of which, signed by the defendants, was as follows: “ Boston June 11, 1868. Sold to Howard Snelling & Company, two thousand tons Freek’s Centralia broken coal, to be delivered free on board vessels at Port Richmond, Philadelphia, at three dollars and thirty-five cents per ton. Subject to changes of tolls on Reading Railroad. Hall, Caldwell & Company guarantee that the advances shall not exceed twenty-five cents a ton. To be shipped at Howard Snelling & Company’s option, between this date and September 1, 1868.”</p> <p>At the trial in the superior court,- before Rockwell, J., it appeared that the plaintiff was, and for some years had been, engaged in the coal business in Boston; that the defendants were coal commission merchants, doing business in Boston, Hew York and Philadelphia; and that the mine of Freek’s Centralia coal was situated on the Reading Railroad, a long way from Port Richmond, which was the terminus of the railroad and the place for shipment of coal on board vessels in the river at Philadelphia.</p> <p>The plaintiff introduced evidence that on August 24, 1868, he had some conversation with John Hall, the defendants’ clerk, about the shipment of the coal, and immediately afterwards, on the same day, wrote a letter to the defendants, of which the following is all but the formal parts: “ In conversation with Mr. John Hall, this morning, the writer was led to suppose that you desired of us written instructions as to the shipment of the 2000 ons Centralia broken coal purchased of you June 11. We are ready to have the whole amount delivered at any time, and have been for six weeks or more, as we have told you verbally.” There was evidence that it would have been impossible to have shipped the coal between the delivery of the letter to the defendants and September 1,1868, and that the shipment would reasonably Lave required the time from the delivery of the letter up to the 12th or 15th of September 1868. And it appeared that the plaintiff never had vessels ready at Port Richmond to receive any of the coal; that he never gave the defjndants any directions where to ship the coal, or any other instructions or directions in regard to the shipment, except what was contained in his letter of August 24; and that the letter was the only expression of the option relied upon by him at the trial.</p> <p>The defendants offered evidence tending to show “ that it has always been the uniform interpretation, usage and custom of the coal trade over the Reading Railroad, and at Port Richmond, that, under contracts similar to this, the option must be given, and the coal all shipped, within the time named in the contract; ” but the judge excluded this evidence.</p> <p>The defendants also offered evidence tending to show that there was no tender of any vessel or vessels by the plaintiff to them to bring the coal. The plaintiff objected, upon the ground that the contract did not require the plaintiff to tender vessels, and that in the course of the coasting trade vessels were always to be found, with no great delay, at Port Richmond, seeking for freights, and ready there to meet the wants of the defendants in fulfilment of their contract. The defendants contended that the contract did not oblige them to put the coal on board vessels bound to any particular place ; and that the option could not be effectually expressed, except by tendering vessels, or designating the destination of the vessels to be loaded. The judge ruled, “that, as it had appeared'in evidence, among other things, that the plaintiff was a coal dealer in Boston, that the defendants had a house in Boston, with which this contract was made, as well as me in Philadelphia, where it was to be executed, and that coasting vessels were continually plying between Port Richmond and Boston, the obligation of the defendants, after the expression of the option, was to deliver the coal, within a reasonable time, on board vessels ready and willing to proceed with their cargoes io Boston, if such vessels were at Port Richmond.”</p> <p>The defendants requested the judge to instruct the jury “ that the true construction of the contract obliged the plaintiff to receive the coal on board vessels at Port Richmond between the date of the contract and September 1, 1868, to have vessels there ready so to receive it, and to notify the defendants thereof in each season that, acting as men diligent and skilled in the busir ness, and using all reasonable means, they could have made the delivery on board of such vessels before September 1, 1868; that if the plaintiff failed to perform his part of the contract in not having vessels ready at Port Richmond to receive the coal, or in not notifying the defendants thereof before September 1, 1868, the defendants would thereby be excused from shipping the coal at all; ” “ that, at all events, the defendants would not be bound to furnish vessels at Port Richmond to receive the coal, in the absence of directions from the plaintiff to them, on what terms and for what destination to furnish them, and on what terms and to what place the charter should be made; that it was the intention of the parties, as gathered from the language of the contract, that the plaintiff should so far perform his part of the contract, that the defendants, using all reasonable exertions and diligence, could perform their part of the contract between its date and September 1, 1868; that, if the plaintiff failed to do so, he could not maintain this action ; and that the guaranty as to advance in tolls did not cover a period beyond August 31, 1868.” But the judge refused so to rule, and instructed the jury “ that if they were satisfied that on August 24 the plaintiff’s option was made and expressed to the defendants, and such was the intention of the letter of that date, that letter was a sufficient expression of the option in form ; that, upon its receipt, the obligation was placed upon the defendants to deliver the two thousand tons on vessels at Port Richmond within a reasonable time after August 24 ; that this obligation did' not depend upon the fact whether or not the time between August 24 and September 1 was a reasonable time for said delivery, but would continue beyond September 1 if the intermediate time was not a reasonable time; that, under the terms of the contract, the plaindff was bound to express his option before September 1, 1868, but not in such a time before that date that the coal could be shipped before that date; that he might give his option at any time between the dates mentioned in the contract; that he was not bound to tender or furnish any vessels to receive the coal; that it was the duty of the defendants, under the contract, after the expression of the plaintiff’s option in his letter of August 24, to furnish the vessels at Port Richmond, charter them, and deliver the coal thereon; and that, in the absence of any directions from the plaintiff as to where the coal should be shipped, as it was well known to them that the plaintiff lived and did business in B oston, and the defendants had a house in Boston, they were bound, under the contract, to ship the coal for that destination.”</p> <p>The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.</p>

<p>Contract upon a policy of insurance, dated January 12,1869, for $100,000 on champagne wine at and from Havre to Boston; 6 attaching to first shipments prior to January 1,1870 ; ” “ valued as per memorandum on back hereof; ” “ loss, if any, to be paid .n gold.” Writ dated September 4, 1869.</p> <p>Indorsed upon the policy were various shipments of champagne wine, valued by the case in gold. So much of these indorsements as needs to be stated is copied below *</p> <p>“ Champagne wine valued as follows :</p> <p>Quarts. Pints. Schreider and Dry Schreider . . ii 12 x Dry SiUery........ 12 13 per case, Cabinet, Imperial and Verzenay . 13 14 in gold. Carte Blanche....... 15 16 /</p> <p>“Jan. 21. Bk. Jenny Ellingwood. | Havre to Boston. | 50,085 | i\ | 1252.12 ,id. I Paid Feb. 27, 1869.”</p> <p>The material clauses printed upon the face of the policy were as follows : “ Touching the adventures and perils which the said insurance company are contented to bear and take upon them in this voyage, they are of the seas, fire, barratry of the master (unless the insured be owner of the vessel) and of the mariners, and all other sea perils and misfortunes, which have or shall come to the damage of the said wine or any part thereof, to which insurers are liable by the rules and customs of insurance in Boston (excepting such losses and misfortunes as are referred to by clauses in this policy); provided, that the insurers shall not be liable for any partial loss on” certain enumerated articles, “unless it amounts to ” twenty, ten or seven per cent, respectively; “ nor for leakage' of molasses, oil or other articles, unless it be occasioned by stranding or collision with another vessel; nor for any partial loss on other goods, or on the vessel or freight, unless it amounts to five per cent., exclusive, in each case, of all charges and expenses incurred for the purpose of ascertaining and proving the loss ; but the owners of such goods shall recover on a general average.”</p> <p>“ It is further agreed that the insurers shall not be hable for damage or injury to goods by dampness, rust, change of flavor, or by being spotted, discolored, musty or mouldy, unless the same be caused by actual contact of sea water with the articles damaged, occasioned by sea perils.”</p> <p>“ And in case of any loss or misfortune, it shall be lawful and necessary for the insured, their factors, servants and assigns, to sue, labor and travel for, in and about the defence, safeguard and recovery of the said wine or any part thereof, without prejudice to this insurance ; and the acts of the insured or insurers, in recovering, saving and preserving the property insured, in case of disaster, shall not be considered a waiver or acceptance of an abandonment; to the charges whereof the said insurance company will contribute in proportion as the sum insured is to the whole sum at risk.”</p> <p>“ And in case of loss, such loss shall be paid in sixty days after proof and adjustment thereof.”</p> <p>The declaration (annexed to which was a copy of the policy and indorsements) alleged that, in the latter part of January 1869, “ four thousand cases and baskets of champagne wine, belonging to the plaintiffs, were placed on board the said barque Jenny Ellingwood at Havre, and the said barque proceeded on her voyage direct from said Havre to Boston, and while proceeding on said voyage was by perils insured against in said policy, and through the dangers of the seas, and the force and violence of the winds and waves and stormy and tempestuous weather, greatly damaged and opened in her seams and rendered leaky in her planks, and shipped and took in great quantities of water, and was caused to pitch and roll and labor, and was tossed about, and in consequence thereof, and by reason of contact with sea water, occasioned thereby, during said voyage, the said cases and baskets, and the contents thereof, and the bottles of wine therein, were broken, wetted, spoiled and damaged, and rendered of little value, whereby the plaintiffs sustained great loss, namely, an average loss of $27,262, gold, upon the market value of said wine ; of all which the defendant corporation had due notice, and received the preliminary and adjusted proof of said loss and of said corporation’s proportion thereof, namely, $15,151.11, on the first day of July last past, and were bound by the terms of said policy to pay the same in sixty days thereafter; and the plaintiffs were also put to great charges and expenses in recovering, saving and preserving the said insured property, to wit, the sum of $1760.59 in legal currency or treasury notes of the United States; and the said corporation promised and were bound to pay said last named sum of $1760.59 in legal currency; and the defendant corporation owes the plaintiffs said sums, namely, $15,151.11 in gold, and $1760.59 in legal currency or treasury notes.”</p> <p>Trial in this court, before Ames, J., who reserved the case for the determination of the full court upon a report of all the evidence ; which tended to show that the barque Jenny Ellingwood left Havre in a seaworthy condition, with a cargo including four thousand cases of this wine, but met with severe gales and heavy seas, which strained her and caused her to leak and ship much water, prolonged her voyage and impelled her to pursue a more southern course than usual; that the wine was packed with straw and paper in cases of a dozen quart bottles or two dozen pint bottles each; that on her arrival in Boston it was found, upon unpacking and examination, that all the cases were more or less wet, either by sea water, or by the steam and dampness generated in the hold by the presence of the sea water and the changes of climate through which the vessel had passed, the labels on tho bottles defaced, the coverings of the corks injured, some of the bottles broken, and others partly empty, the cases and their contents heated, and the wine in a high state of fermentation, and impaired in flavor and in merchantable value; that the plaintiffs paid the duties at the custom-house, and received back part thereof on account of such damage; and that the market value of the wine in Boston, in gold, as estimated by appraisers agreed on by the parties, would have been, if uninjured, $89,615, and was, in its damaged condition, $62,352.38, showing a difference of $27,262.62.</p> <p>The plaintiffs contended that the defendants were liable for such proportion of the sum last named as the amount insured, or $50,085, bore to the whole amount at risk, or $89,615; and admitted that they stood their own insurers for the rest of the loss; and claimed to recover of the defendants, as their proportion of the partial loss, $15,151.11, in gold.</p> <p>“ The defendants’ counsel proposed that the case should be reserved for the full court; and stated that they contended there was not evidence to warrant the jury in finding that, by a peril insured against by the policy declared on, there was a loss of five per cent., within the true meaning and legal effect of said policy; nor was the evidence such as would warrant the jury in finding any particular amount of loss, exceeding five per cent., caused by a peril insured against, for which the defendants were hable under the terms of said policy; that the amount of return duties received by the plaintiffs should be deducted from the amount of any loss sustained by them from perils insured against; that in no event could the defendants be hable for more than their proportion of such expenses of examining, repacking and refitting the wine for market, as had reference to preserving che wine from further damage begun by a peril insured against; nor more than a proportion of said expenses, if there had been a loss under the policy for which the plaintiffs were entitled to recover in said action ; and that upon the evidence the defendants were not liable for any part of this claim.</p> <p>“ With consent of the defendants, a verdict was then taken for $16,125.27 in gold, and $1845.93 in legal currency; the amount in gold being the amount of damage to the goods insured as claimed by the plaintiffs; and the amount in legal currency being a nominal sum for the proportion of expenses to be borne by the defendants for examining, repacking and refitting the same for market. If the court shall be of opinion that the jury were warranted in finding a verdict for the plaintiffs for the above sum in gold for the damage to the goods insured, the verdict shall stand for that amount, and for such further amount in legal currency as shall be determined by an assessor, under such instructions in point of law as the court shall think fit to be given; otherwise, the verdict is to be set aside and a new trial granted, with liberty to either party to move the court that the case be sent to an auditor.”</p>

<p>Contract against Priam B. GoodseH and Samuel A. Way, on a bill of exchange drawn by Leon Chautard, payable at sight to his own order, on GoodseH, accepted by GoodseH, and bearing the indorsements of Chautard and Peter B. Rickard and a guaranty of payment by Way. GoodseH answered that his acceptance was obtained by fraud and without consideration, and that the plaintiffs took the biH with knowledge thereof. Way’s answer was a general denial.</p> <p>At the trial in the superior court, before Reed, J., the plaintiffs put the biH in evidence, and rested their case. GoodseH introduced evidence tending to show that the bill was obtained from him by Chautard through fraud and without consideration, and was transferred successively to Rickard and Way with knowledge on the part of. both that it was invalid in its inception.</p> <p>Goodsell then called one Stebbins, president of the plaintiff bank, who testified that he acted solely for and attended to the matters of the plaintiffs ; that he took the bill by discount, from Way, with some other bills at the same time; that he had the whole charge of the matter of the bill; “ that, not knowing the parties to the bill, he asked Way to guarantee it, and he did so; that he made no inquiries about it or the parties, but took it on the guaranty of Way alone; that after it was due he called upon Way, and asked him to collect it out of the other parties, and said and did nothing more, and carried it to counsel for suit; that he knew Way to be perfectly good, but did not ask Way for, and Way did not give him, the amount of the bill or anything else for it, or claim that he had any defence to it on his part; that the bill was not taken up by Way, nor any other put in its place; that he did not tell Way, when the bill was offered, that it was tainted all over, or anything of the kind, in words or substance; that he had an interview with Goodsell, at a time and place named, on State Street, afterwards, but did not tell him in words or substance that this was so, and that he had so told Way ; that he had an interview with Goodsell in New York afterwards, but did not tell him then and there that the bill did not lie under protest five minutes, either in words or substance; ” and the witness assumed to state what was said at those interviews. Good-sell was afterwards called, and testified “ that Stebbins did tell him at the time and place named, on State Street; that he took tire bill with twenty, other bills at the same time, and told Way when he looked at the bill that it was tainted all over, and got nim to guarantee this when he did not do so with the other bills taken at the time; that in New York, at the time and place stated, he spoke to Stebbins again about opening an account at his bank, and alluded to the bill and the plaintiffs’ calling on the last party first; and that' Stebbins said the bill did not lie under protest five minutes.” Stebbins being an adverse witness, the judge permitted Good-sell to put leading questions to him. Goodsell contended that he could prove, or proposed to prove, “that Way was engaged and in the habit of buying tainted and invalid notes, .and in passing them off so as to get them into the hands of other parties, to make a good title if possible in their hands, and that Stebbins was the party whom he used for this purpose; ” and he asked Stebbins what other notes he had had of Way, and what business he had done with him, before taking this bill. The plaintiffs objected ; and Goodsell stated that he proposed “ to show by tho course of dealing between the parties, and their other transactions and their relations to each other, that there was an understanding and an agreement between them that' Stebbins, acting as president for the plaintiffs, should take paper of Way without asking any questions, knowing that he was good; and that he was engaged and in the habit of buying tainted and invalid notes, and desired to pass them' off to a third party, so as to give a better title; and that he was only required to guarantee or indorse them, and they would collect out of the other parties ; that the witness was adverse ; and that the fact could only be proved by proving their relations and course of dealing in that respect, and by inferences from facts, while perhaps the witness would deny the direct question.” The judge excluded the evidence, although Goodsell also stated that it was offered as part of a course of inquiry into the business relations of the parties.'</p> <p>At the close of Goodsell’s evidence, the plaintiffs, without saying, and declining to say on inquiry from Goodsell, whether they vested their case there or proposed to put in evidence in rebuttal, asked the judge to rule that no defence had been made out Goodsell, on being called upon by the judge, contended that the plaintiffs must first state whether they rested their case there or proposed to put in more evidence in rebuttal; and said that, when the evidence was all in, he wished to argue the questions of fact to the jury, and have the case submitted to them with such instructions as the judge might give, and that he should then have some prayers for instructions which he should ask to be given to the jury, but that he did not wish to discuss further the law or tho facts then, nor until the case was all in on the plaintiffs’ part. The judge thereupon, without requiring the plaintiffs first to rest their case there, ruled that there was no evidence for the jury, and that Goodsell’s evidence did not tend to establish any defence, and directed a verdict for the plaintiffs. The defendant Goodsell alleged exceptions. Other points raised in the bill of exceptions are not now material.</p>

<p>This court, or a justice thereof, has jurisdiction, upon the petition of a minor or of hig father, to issue a writ of habeas corpus to inquire into the validity of his imprisonment or detention in this Commonwealth under an alleged enlistment in the army of the United States, and, if the enlistment be found to be illegal, to discharge him from the custody of the military officer holding him.</p> <p>The acts of congress of 1864, cc. 13, 237, authorizing and directing the secretary of war to discharge minors enlisted without the consent of their parents or guardians, do not . affect the jurisdiction of the courts to discharge them upon habeas corpus.</p> <p>The judicial discharge of a person upon habeas corpus conclusively determines that he was not liable to be held in custody upon the state of facts then existing.</p> <p>The omission of the person in whose custody the prisoner is found to malee the written statement or return required by the Gen. Sts. c. 144, § 12, to a writ of habeas corpus, does not impair the effect of a discharge ordered by the court or judge after hearing both parties.</p> <p>The decision of a justice of this court upon a writ of habeas corpus, discharging a person from detention under his enlistment in the army of the United States, upon the petition of his father alleging him to be a minor enlisted without his consent, and after the military officer detaining him has appeared and been heard, is conclusive that he was a minor, and not subject to be held as a soldier either by virtue of his enlistment or under any previous arrest or charge for desertion; and entitles him to be again discharged upon a writ of habeas corpus granted on his own petition, if he is retaken by the mill tory officer upon either of those grounds, or under a subsequent despatch from the secretaiy of war directing him to be arrested wherever found and sent out of this state.</p>

<p>The provision of the Declaration of Rights, that no subject shall be compelled to accuse or furnish evidence against himself, exempts the subject from disclosing the circumstances of his offence as well as making confession of guilt; applies to investigations ordered and conducted by the legislature, or either of its branches; is regulated therein by the same rules as in judicial or other inquiries; and is not dispensed with by any statute which fails to secure the subject from future liability, and exposure to be prejudiced, in any criminal proceeding against him, as fully and extensively as he would be secured by availing himself of the constitutional privilege.</p> <p>The St. of 1871, c. 91, is ineffectual to deprive a witness before the legislative committee on the state police of his constitutional privilege of exemption from being compelled to accuse or furnish evidence against himself, inasmuch as it leaves him liable to criminal prosecution and punishment for any matter to which his testimony may relate.</p>

<p>Indictment for a nuisance at common law; averring that on January 1, 1869, in Winthrop, near certain public highways and private dwelling-houses, the defendants set up and maintained certain furnaces, boilers, stills, retorts and other apparatus for refining and preparing for sale and use petroleum and other oils, at their manufactory, and on that day and divers other days between it and the day of the finding of the indictment, which was in March 1870, unlawfully and injuriously caused to be heated and boiled in said boilers and other vessels and apparatus large quantities of petroleum and other oils, and mixed them with other substances, and shook and agitated them in the process of refining and preparing them for sale and use, and thereby caused to be emitted noisome, offensive and unwholesome substances, smokes, smells and stenches, which then and there filled and impregnated, and continue to fill and impregnate the earth and air, so as to render the earth and air corrupt, offensive, uncomfortable and unwholesome, to the great damage and common nuisance of all the citizens of the Commonwealth there inhabiting, being and residing, and going and returning through the said highways, and against the peace of the Commonwealth. Trial in the superior court in Suffolk, before Putnam, J., who allowed the following bill of exceptions:</p> <p>“ The Commonwealth proved that the defendants had set up furnaces, boilers, stills, retorts and other vessels, with other necessary apparatus, for the purpose of carrying on the business of refining and preparing for sale and use petroleum at their manufactory‘situate as described in the indictment; that from January 1, 1869, to the day of the finding of the indictment they had controlled, managed and operated the same; that on divers days and times between those two days they on said parcel of land heated and boiled in said boilers, stills, retorts and other vessels large quantities of petroleum, and then mixed the same with divers other substances, and shook and agitated the same for the purpose of refining and preparing said petroleum for sale and use; that by means thereof smokes, smells and stenches were emitted; and that these smokes, smells and stenches were very disagreeable to travellers passing and repassing on the highways near the factory, rendered many inhabitants of the town of Winthrop uncomfortable, and with some occasioned nausea, soreness of the throat and stricture of the head. Upon this evidence the Commonwealth rested the case, admitting that no oil other than petroleum had been manufactured or refined on the defendants’ premises.</p> <p>“ Thereupon the defendants cited the St. of 1866, c. 285, and the St, of 1869, c. 152, and requested the judge to rule that no sufficient case had been made against them, and to instruct the iury to return a verdict of not guilty. This the judge declined io do ; and ruled that neither of the statutes afforded any protection to the defendants against this indictment.</p> <p>“ The defendants then proved that it was impossible, during the time covered by the indictment, to manufacture and refine petroleum without throwing off disagreeable smokes and odors. And they offered further to prove that, during the time covered by the indictment, there had been used in their factory no other means and processes than were used in all the other like establishments throughout the Commonwealth at the times when said statutes were passed; that, during the time, they had manufactured crude petroleum and kept and stored its products in distant and properly ventilated buildings, specially adapted to the purpose, and surrounded by an embankment constructed so as effectually to prevent the overflow of the petroleum or any of its products beyond the premises on which the same were kept, manufactured or refined ; that said buildings were occupied in no part as a dwelling ; and that the building nearest to said premises was more than fifty feet distant therefrom.</p> <p>“ The judge ruled, for the purpose of the trial, that none of this offered evidence was admissible for the purpose of bringing this factory within the protection of the statute, for which purpose alone it was offered. The defendants introduced no other evidence; a verdict of guilty was thereupon returned; and the defendants alleged exceptions to the foregoing rulings and refusals to rule.”</p>

<p>Indictment on the St. of 1868, c. 263,* found and returned into the superior court in Suffolk at August term 1868, for selling nine quarts of milk adulterated with water to Mary Cogan at Boston on July 29, 1868.</p> <p>At the trial, before Lord, J., it appeared “ that the defendant did not, and his father did, own a milk route, and carry milk ” from Sudbury to Boston, “to his customers in the county of Suffolk , ” that Mary Cogan was one of the said customers in Boston, and had notice, some two years before July 1868, “ that the father owned the milk route and carried on the business, and that the defendant did not; ” that on the night of July 28, 1868, while the milk designed for distribution the next day to said customers in Boston was at Cambridge on its way from Sud-bury to Boston, the defendant and Aquarius Breen, who was in the same employment with the defendant, knowingly adulterated it with water; “ that on July 29 the cans of adulterated milk were conveyed by wagon, by the defendant, to Boston, Breen going with and assisting the defendant; that the wagon was stopped at the corner of a street in Boston, and the defendant took one of the cans of adulterated milk from the wagon and handed it to Breen to deliver to Mary Cogan, and Breen went some distance down one street and then did deliver said can of adulterated milk to her, and the defendant at the same time took another can of the adulterated milk to deliver to another of said customers, (one of them going through one street and the other another,) and went down another street, not in sight of Breen, and they then joined and resumed their work of delivery in other parts of the city; and that the father was not present.”</p> <p>“ There was no evidence of any contract upon which the milk was furnished; and the judge ruled that, there being no evidence of any contract of sale, each delivery might be deemed an act of sale, and that, if the defendant and Breen made the delivery, they would be responsible severally as well as jointly, and this, whether the sale was then made by them either as principals or as agents, and that the mode of delivery was such as to authorize the jury to find it to be the joint act of the defendant and Breen.</p> <p>“ The judge also ruled, and instructed the jury, that if the defendant was in the employ of his father, who owned the milk and milk route and carried on the business, and the defendant and Breen, well knowing the milk to have been adulterated by the addition of water thereto, took charge of the wagon, and upon it brought the adulterated milk to Boston to distribute to said customers there, and the defendant gave the can of adulterated milk to Mary Cogan at the time charged in the indictment, then there was evidence of a sale by the defendant to Mary Cogan of adulterated milk knowing it to be adulterated, and the jury would be authorized in finding the defendant guilty.”</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>On the trial of an indictment for a libel, evidence is admissible to show that .he words “ State Cop.” in the libellous writing mean a deputy of the constable of the Commonwealth.</p> <p>b. a criminal prosecution for a libel, where the defendant does not, under the Gen. Sts. c. 172, § 11, justify the libel as true, be cannot introduce evidence that the person libelled treated part of the libellous matter as a joke originated by himself.</p> <p>The publisher of a newspaper in which a libel appears is prima facie presumed to have published the libel; the presumption is not rebutted by evidence that he never saw the libel and was not aware of its publication until it was pointed out to him, and that an apology and retraction were afterwards published in the same newspaper; and the exclusion of such evidence at his trial on an indictment for the libel gives him no ground of exception.</p> <p>If the defendant in an indictment for a libel offers himself as a witness on the trial, he cannot refuse to answer, on cross-examination, whether he was the publisher of the newspaper in which the libel appeared, although he was examined in chief only as to his knowledge of the publication of the libel.</p> <p>On the trial of an indictment for publishing a libel in a newspaper printed and published by two persons, proof that the newspaper was printed and published by only one of them is not a material variance, since the St. of 1864, c. 250, § 1, if the identity of the newspaper is evident and it is described so as to prevent any prejudice to the defendant.</p> <p>At the trial of an indictment for publishing a libel in a newspaper at a certain time and place, the production of a copy of the newspaper containing the libel, bearing date of a day within the statute of limitations, together with evidence that it was purchased at a . newspaper-stand in said place, is sufficient evidence of the time and place of publication.</p> <p>A verdict on an indictment for composing, writing, printing and publishing a libel, that the defendant is “ guilty of publishing as alleged in the indictment, and not guilty as to the residue,” is equivalent to a general verdict of guilty.</p>

<p>An indictment for attempting forcibly to rescue a prisoner, held in the lawful custody of a police officer on a charge of breaking and entering a dwelling-house with intent to steal therein, is not defective for omitting to state the process on which the prisoner was held in custody, and the nature and circumstances of the holding; and proof that the officer arrested him in the dwelling-house on a charge of breaking and entering it and stealing therein is not a variance.</p>

Indictment, in Middlesex, with a single count, alleging that the defendants on October 2, 1870, at Lexington, “in and upon Alonzo L. Tuttle and Luke Tuttle did make an assault, and the said Alonzo L. and Luke did then and there beat, bruise, wound and ill treat, and other wrongs to the said Alonzo L. and Luke then and there did, against the peace,” &c. At the trial in the superior court, before Scudder, J., there was evidence tending to show that only one of the Tuttles was…

<p>An indictment, purporting to have been found at the term begun and holden on the first Monday of July of a court which is required by law to begin and hold a term on the first Monday of every month, is not necessarily vitiated by the fact that the said Monday was the fourth day of July.</p>

<p>Complaint, in Middlesex, under the Gen. Sts. c. 87, §§ 6, 7, for maintaining a nuisance by keeping a tenement resorted to for prostitution and lewdness, in Lowell.</p> <p>At the trial in the superior court, before Brigham, C. J., on appeal from the police court of Lowell, the Commonwealth introduced evidence tending to show that the defendant kept a shop with a room leading out of it, and also kept a tenement of four rooms adjoining the shop but not directly communicating with it, which was used by him as a residence for his family, and was the tenement mentioned in the indictment; that the shop was visited by persons reputed to be prostitutes, and by men whose conversa. tian and conduct with them was indecent and unchaste; and that persons who were not inmates of the defendant’s family and wrere reputed to be unchaste went from the shop to the said tenement.</p> <p>After the defendant had put in his evidence, the Commonwealth offered proof of an admission of the defendant that the room contiguous to the shop was let by him for prostitution. The defendant objected to the admission of the testimony, on the ground that it was not relevant, and that, even if relevant, it ought not to be admitted at that stage of the trial; but the judge admitted it.</p> <p>The jury returned a verdict of guilty, and the defendant alleged exceptions.</p>

Indictment, in Suffolk, for keeping and maintaining a tenement in Boston for the illegal keeping and sale of intoxicating liquors. At the trial in the superior court, before Wilkinson, J., the defendant was convicted, and alleged exceptions.

Complaint, in Suffolk, under the Gen. Sts. c. 87, §§ 6, 7, for keeping and maintaining a tenement oh April 6, 1870, and on divers other days between that day and October 6,1870, for the illegal keeping and sale of intoxicating liquors.

Complaint to the municipal court of the city of Boston, dated October 5, 1870, that William Lynn kept intoxicating liquor 66 with intent to sell the same in this Commonwealth, the said Lynn not being authorized to sell the same in said Commonwealth for any purpose' under the provisions of the acts of this Commonwealth, or by any legal authority whatever.” The defendant demurred to the complaint, in the superior court, on appeal, on the ground that it did not aver that the “…

<p>Writ oe error to reverse the judgment of a trial justice in Middlesex, forfeiting intoxicating liquors on a complaint under the St. of 1869, c. 415, § 51.</p> <p>The record showed that the plaintiff in error was the person complained against as having the liquors in his possession; and that he in writing waived the publication of notice, and consented that the liquors should be destroyed. The assignment of errors is now immaterial. The attorney general moved that the writ be dismissed, because the plaintiff in error was not a party to the cause; and Ames, J., adjourned the case into the full court for its determination.</p>

<p>Complaint to the municipal court of the city of Boston, under the St. of 1869, c. 415, § 44, that certain intoxicating liquors were kept and deposited by John Cahill of Boston “in a certain building situate on Blackstone Street and numbered one hundred and fifty-two on said street in said Boston, and the first floor of said building, occupied by said Cahill as a place of common resort kept therein,” and praying for a warrant to search “ said first floor of said building.” The warrant described the premises where the liquors were alleged to be kept, in the same words as the complaint, and directed the searching of “ the first floor of said building.”</p> <p>The liquors were seized on the warrant; and Cahill appeared in the superior court as claimant, and1 demurred, “ because it is not alleged, in either the complaint or warrant, that the liquors described were kept or deposited in the place commanded and prayed to be searched; and because the said place is not sufficiently described or averred; ” but Devens, J., overruled the de miirrer.</p> <p>The clerk then proceeded to empanel a jury; and the judge allowed the Commonwealth, against the objection of the claimant, to peremptorily challenge a juror.</p> <p>At the trial, there was evidence tending to show “ that the premises referred to in the complaint as a place of common resort were a shop for the sale of liquors, and were conducted in an orderly manner, but that intoxicating liquors were sold there, and that parties went in there, without restriction, for the purpose of buying liquors.” The claimant requested the judge to instruct the jury that the evidence on this point would not support the complaint; but the judge declined so to do, and instructed them “ that if they were satisfied, upon the evidence, that the premises were a shop for the sale of intoxicating liquors, open to the public, to which the public had free ingress for the purpose .of purchasing such liquors, they would be warranted in finding that it was a place of common resort as alleged.”</p> <p>The jury returned a verdict for the Commonwealth, and the claimant alleged exceptions.</p>

Indictment found at October term 1870 of the superior court in Suffolk, for adultery alleged to have been committed by the defendant with Mary J. Marshall on January 15,1870.

Indictment for embezzlement, found at July term 1870 of the superior court in Suffolk. At the trial, before. Wilkinson, J., John Langley testified that about May 13, 1870, being in need of money, he made two promissory notes payable to his own order and indorsed by himself, payable in four and six months respectively, for $1250 each, and delivered them to the defendant upon the special agreement of the defendant to sell the notes and deliver the proceeds to Nathan A..

Indictment, in Suffolk, alleging that the defendant, intending to cheat and defraud Bridget Hurley, and to effect the sale and assignment of his pretended interest in a certain building, falsely • represented to her that he held a lease of the building, two years and ten months of which were unexpired, and that he had a good right, title, estate and interest in the building, which entitled him to assign and sell the lease, and to let the building for that unexpired time ;…

<p>Habeas corpus to the warden of the state prison, upon the petition of a prisoner there confined. Hearing in Suffolk, before the chief justice, who reserved the case for the determination of the full court. The facts are stated in the opinion.</p>

<p>Since the St. of 1830, c. 186, § 1, it is no objection to an indictment for perjury on an examination before a commissioner “ legally authorized and duly qualified to take bail ” to be accepted as bail for a person committed to jail, that it does not allege whether the person was committed with or without an order fixing the amount of bail, or that any notice was given to the officer who committed him to jail, although the Gen. Sts. c. 170, § 37, require such notice if the amount is not fixed; and exceptions taken at the trial of the indictment, to the admission of the record of the proceedings, will not be sustains 1, if they fail to show any irregularity in the proceedings.</p> <p>An indictment for perjury, which avers that the defendant, having offered himself as bail, was required by the bail commissioner to make, and did make, a written statement of his property, the same being material to aid the commissioner in determining whether to accept him, and, being duly sworn, did falsely, knowingly and corruptly depose and swear in and by said written statement, (here setting forth the words of a statement purporting to be signed by the defendant,) sufficiently alleges that the defendant knowingly and falsely made statements under oath which were material, and is supported by proof that the defendant made oath to the matters contained in the statement set forth in the indictment, and that such statement was material, although the body of the statement was written by the commissioner, and the defendant was sworn to its truth before and not after affixing his signature.</p> <p>An indictment for perjury can be maintained against a person for making a false statement, on an examination, to be admitted as bail, to the effect that he owned certain parcels of land, if he did not own some of the parcels, although the value of others of the parcels, which he did own, was sufficient to cover the amount of bail for which he offered himself.</p> <p>At the trial of an indictment for falsely swearing that the defendant owned a dwelling-house, evidence was introduced tending to show that the house was devised to the defendant’s wife. Held, that the testimony of a witness was admissible that he had examined the indexes in the registry of deeds from before the date of the devise to the present time, and found no conveyance of the house to the defendant or any one else.</p>

<p>Indictment, in Middlesex, for neglect to keep in repair a road, alleged to be a highway, in Holliston.</p> <p>At the trial in the superior court, before Scudder, J., the defendants contended that the road was not a highway. The Commonwealth admitted that it could not prove that the road was laid out and established as á highway in the manner prescribed by statute; but contended that, before 1846, it had either become a highway by dedication, or been laid out for many years and no record of the laying out been kept.</p> <p>“ For the purpose of explaining to the jury the relative location of the premises described in the indictment, but not as legal evidence in the' case, the counsel for the Commonwealth placed a map thereof in the hands of a witness, and asked him from his own knowledge to point out the location, so far as it was correctly represented thereon. This was objected to by the defendant, but was permitted by the judge for the- purpose stated only, and the map was then withdrawn from the jury.”</p> <p>For the purpose of showing that before 1846 the road had either been dedicated and accepted as a highway or been laid out as alleged, the Commonwealth offered the testimony of several witnesses that “ prior to that date they, with others, at various times, worked upon the road in repairing it under the order and directions of Thomas Rockwood, an acting surveyor of highways of the town in the district within which the road was located, who then and before had publicly exercised the duties of that office within and for said district.” The defendant objected to the ad» mission of this evidence, unless it should be shown by the records of the town that Rockwood had been elected or appointed by the proper authorities of the town as surveyor of a district within which this road was; but the judge admitted it.</p> <p>For the same purpose the Commonwealth further offered evidence, against the objection of the defendants, tending to show that “ similar acts had been once or twice performed by some one acting as surveyor of highways for the town in said district, and publicly exercising the duties of that office in and for said district, since 1846.” The judge admitted the evidence, but instructed the jury that “ unless they were satisfied beyond a reasonable doubt that the dedication and acceptance of the road had been completed, or the road had become a public highway, as claimed, before 1846, they must find for the defendants.”</p> <p>The jury found the defendants guilty, and they alleged exceptions.</p>

Indictment for maintaining a nuisance in Hurd Street, a highway in Lowell, on January 1, 1870.

<p>An indictment under the St. of 1864, c. 229, § 37, can be maintained against a street railway corporation for causing the death of a person, although it does not allege that the death was instantaneous.</p> <p>On the trial of an indictment under the St. of 1864, c. 229, § 37, against a street railway corporation for causing the death of a person, there was evidence tending to show that the deceased, a girl two years and one month old, went from home, with her mother’s consent, in the charge of a girl sixteen years old; that, when last seen before the accident, they were half way across a straight, level street, sixty feet wide; that the child was there run over by the defendants’ car and killed; and that the driver of the car was at the time looking at a fire in the neighborhood. Held, that the evidence warranted the jury in finding that the deceased was in the exercise of due care and the defendants were guilty of negligence.</p>

<p>Indictment for the murder of Charles M. Packard. At the trial, in Norfolk, before Chapman, C. J., and Colt, Ames and Morton, JJ., it appeared that Packard was a constable of Stoughton, and was killed by the defendant in that town on September 15, 1870, while he was attempting to arrest the defendant upon a warrant issued on August 9,1870, by J. White Belcher, Esq., a trial justice for the county of Norfolk, addressed to the sheriff of the county or his deputy, or any constable or police officer of any town in the county, directing them respectively to take the defendant and bring him before the justice to answer to a complaint of Michael McLaney against him for an assault, and bearing this indorsement, signed by William H. Warren, a deputy of the sheriff of the county: “ Norfolk, ss. September 12, 1870. By virtue hereof, I have arrested the body of the within named John Moran, and have him before J. White Belcher, Esquire, for examination ; and I have summoned as witnesses, on behalf of the Commonwealth,.....Fees : Service, $0.50. Travel 8 miles, $0.80. Custody and expenses, $4.00. Attending court, $1.00.”</p> <p>The Commonwealth offered testimony to show that the warrant was duly issued and committed to Warren for service; that the defendant, not having been arrested, went with the complainant McLaney to the magistrate, and desired to settle the matter; that the magistrate told them he had not the complaint and warrant in his possession, but would get them, and that if the complainant would acknowledge that he had received satisfaction for the civil injury, and the defendant would plead guilty to tho complaint and pay the costs, he would consent to suspend the case; that the magistrate thereafter saw the officer and told him to make up his costs, and the officer then made the above indorsement ; that Moran never came before the magistrate, nor pleaded guilty, nor paid the costs, and the magistrate returned the warrant to Warren for service, and directed him to arrest the defendant ; that Warren delivered the warrant to Packard for service; and that the defendant was not arrested, nor in the custody or presence of Warren, before the homicide.</p> <p>The defendant objected to the admission in evidence of the warrant and of this testimony; but the court admitted them, and ruled that, upon the evidence, “ it appearing that the warrant had never been served, and the magistrate never having had Moran before him upon it judicially, and the warrant having been returned by the magistrate to Warren for service, it was valid in the hands of Packard sufficiently to authorize him to arrest the defendant upon it, and take him before the magistrate.”</p> <p>The jury found the defendant guilty of murder in the second degree, and he alleged exceptions.</p>

<p>Two complaints to the district court of central Berkshire, for assault and battery of John McCarthy; the first offence averred to have been committed in a church building, and the second in a burial ground. The defendant was found guilty on both, and appealed. At the trial of the first complaint, in the superior court, on the appeal, before Meed, J., there was evidence of these facts :</p> <p>The defendant was sexton of the Roman Catholic church building in Pittsfield, and in that capacity had charge of the building and of the conduct of funerals in it. He was also an undertaker. It was the rule concerning funerals in the building, that the priest or the sexton should be informed of the death, and of the desire of the friends of the deceased that funeral services should be performed there; upon receiving such notice, either the priest or the sexton would fix a time for such services, to avoid interference with the other exercises of the church; and it was the sexton’s duty to take charge of the funeral procession, when it reached the door of the building, and to precede the bearers of the corpse up the aisle, superintend the deposit of the bier in the place provided for it, seat the mourners, and then, if the priest was not present, call him.</p> <p>On Sunday, May 17,1870, at the close of a religious service in the building, and after the congregation had been dismissed, but while some of them were lingering at prayer within the building, John McCarthy, an undertaker who had recently set up in business in Pittsfield, came to the building in charge of a funeral of which no previous notice had been given, and attempted to enter and perform the duties of the sexton in regard to it. Upon McCarthy’s arrival at the vestibule, the defendant, who was seated at a desk within the door, forbade him to proceed with the funeral in the building. But McCarthy persisted in his attempt, marched up the aisle with his procession, and was directing one Tim Powers where to put the bier, when the defendant “ came down the aisle, and told him to go out of the church, and forcibly removed him, but without more force than was necessary to eject him from the building.”</p> <p>Upon these facts the defendant requested a ruling that he was entitled to an acquittal, which the judge refused, whereupon by consent of the defendant a verdict of guilty was returned and the case reported for the revision of this court.</p>

<p>Tort. The declaration alleged that the defendants hired the plaintiff’s horse and sleigh to drive from South Adams to North Adams and back in a prudent, careful and proper manner, and drove the same beyond North Adams to Clarksburg wrongfully, and managed and drove the horse so improperly, unskilfully and wrongfully on their return from Clarksburg to North Adams that the horse ran with the sleigh, and broke the sleigh and injured itself. The answer denied all the allegations of the declaration; and alleged that, if the defendants ever hired a horse and sleigh of the plaintiff, they never drove them farther than was agreed between the parties, and that the hiring and driving were on the Lord’s day, and not a work of necessity or charity, as the plaintiff well knew.</p> <p>At the trial in the superior court, before Dev&ns, J., the plaintiff testified that he let his horse and sleigh to the defendants to drive to North Adams and back to South Adams, and that he never at any time authorized them to drive the same from North Adams to Clarksburg. Upon cross-examination, he testified that he let the horse and sleigh to the defendants, and received two dollars in payment therefor, on a Sunday.</p> <p>Another witness called by the plaintiff testified that he saw the defendants with the plaintiff’s horse and sleigh in North Adams village, the sleigh greatly damaged and the horse considerably injured by cuts and scratches on its legs : and that the defendants then-told him that they had been with the horse and sleigh beyond North Adams to Clarksburg, a distance of two miles or more, and that on the way back from Clarksburg to North Adams the horse became unmanageable, and they tipped oyer and the hqrse ran away with the sleigh and caused the injuries. Upon cross-examination, he testified that this was on Sunday.</p> <p>The plaintiff introduced evidence as to the amount and nature of the injuries to the horse and sleigh; and also evidence tending to show that the horse was safe and kind to drive, and the sleigh nearly new, when the defendants hired them; and rested his case.</p> <p>The defendants admitted that the horse and sleigh were hired by them to drive only from South Adams to North Adams and back to South Adams ; and testified that the hiring was on Sunday, that they drove the horse and sleigh beyond North Adams to Clarksburg, and that the injury to the horse and sleigh occurred while on their return from Clarksburg to North Adams, substantially as hereinbefore stated.</p> <p>There was conflicting evidence upon the question whether the plaintiff, at the time of letting the horse and sleigh, knew for what purpose the defendants were going with them to North Adams ; and to settle this point, the judge submitted to the jury this question : “Was the plaintiff aware that the horse and sleigh were lured for pleasure travel ? ” and the jury answered: “ He was.”</p> <p>The judge then ruled, upon the whole evidence and this answer of the jury, that the plaintiff could not maintain the action; and instructed the jury to return a general verdict for the defendants, which was done, and the plaintiff alleged exceptions.</p>

■Tort for injuries sustained by the plaintiff while travelling on & highway in Stockbridge, and alleged to have been caused by the defendants’ negligence.

<p>Tort to recover for the death of the plaintiff’s horse, occa sioned by taking fright at obstructions which the defendant bad put in a highway, and jumping down an embankment in running away from them.</p> <p>At the trial in. the superior court, before Putnam, the plaintiff’s evidence tended to show that about ten o’clock in the morning of Monday, April 5, 1869, he was travelling, with his horse and sleigh, on a highway in the town of Monterey, which led past the defendant’s farm, when he came upon a pile of wood and a sled in the highway ; that there were two sap-tubs on the sled, each of them about two and a half feet high and. of the capacity of three barrels; that one of the tubs was full of maple-sap and was standing on its bottom, and the other was partly full and was tilted; that the defendant had placed the wood and sled and tubs in the highway, in the position in which they were; and that the plaintiff’s horse took fright at the sled and tubs, and ran along the highway about ten rods, and down the embankment, and was killed.</p> <p>The defendant’s evidence tended to show “ that one corner of his sap-house was on the line, and the other front corner nine feet back of the line, of the highway; that the wood lay in front of the sap-house, partly on the defendant’s land and partly in the highway; that the sled stood in the highway, obliquely to the travelled path, the hind end from two to five feet from the nearest sleigh track, and the wood further from the track than the sled ; that some of the wood had been there three or four weeks, and some was thrown upon the pile about ten days before; that the sled, with the tubs thereon, filled with sap, had been drawn and, left by the defendant in said position between five and six o’clock on the Saturday afternoon previous, with the intention of transferring the sap from the tubs to tubs and a boiling-pan in the sap-house, but the sled was not unloaded that night; that between five and six o’clock on Monday morning the defendant made his fire and then returned to his house for breakfast, after which he went again to the sap-house, took part of the sap from the hind tub, raised one side of that tub, with the remainder of its contents, so that it stood obliquely inclined towards the sap house, and left it in that position, the other tub standing on its bottom and the sled in the same position as on the previous Saturday evening; that the defendant then started to go to a town meeting, and had walked only a few rods tvhen the accident happened; that on Tuesday morning the defendant drew the sled away, but returned it in the course of the day to the same place, and left it standing, with the tubs on it, substantially in the same position; and that it was customary for him to leave it standing there from time to time in the same way.”</p> <p>The defendant’s counsel proposed to prove, in his behalf, “ that his tubs in the sap-house were sufficient for ordinary occasions, but that on this Saturday afternoon, by reason of an extraordinary flow of sap, they were filled, which delayed the unloading and removal of the sled; ” and he proposed this question to the defendant, who was examined as a witness: “ Were your tubs in the sap-house full on this Saturday night ? ” But the offer of proof, and the specific inquiry, were excluded as immaterial.</p> <p>He also proposed to show “ the locality and amount of travel on this highway, for the purpose of showing that it was but little used at any season, and of still less travel at this season of the year.” But the evidence was excluded in like manner.</p> <p>He further asked a witness this question, “ What is the use usually made of this highway, and of highways in its vicinity, by others owning land on said highway ? ” This inquiry was also excluded as immaterial, the judge stating “ that he should instruct the jury that under certain restrictions, and for certain purposes, the defendant had a right to leave wood, sleds and tubs in front of his premises.”</p> <p>The defendant prayed for an instruction to the jury “ that the owner of land may make such reasonable use of the highway adjoining his land as is usually made by others similarly situated.” The judge declined to adopt this instruction; and after instructing the jury as to the rights of adjoining proprietors in highways, instructed them further, “ that the defendant was guilty of a nuisance, if he unnecessarily and improperly allowed the sled and tubs to remain in the highway; that he had the right to allow them to be and remain a reasonable time for the purpose of transferring them to and upon his own premises ; that if he allowed them to remain an unreasonable time for such purpose (of which the jury were to judge) it was an unnecessary and improper use of the highway; that he was bound to remove them as soon as he reasonably could, under all the circumstances; that in this case they might exclude Sunday in considering the question of reasonable time; that, while he had a right to use the highway temporarily, for such reasonable time and for such purpose, he had no right to occupy it for the purpose of storage; that in this case the jury were to say whether the defendant’s purpose was to stbre the sled and tubs and wood in the highway for his convenience, or to transfer them in a reasonable time to his own premises ; and that if he allowed them to remain there for storage, or if only for transfer, and a reasonable time for transfer had elapsed, and they were calculated to frighten horses, and did frighten the plaintiff’s horse so that it was rendered unmanageable and was killed by reason of such fright, and the plaintiff^ drove a proper horse and was himself in the exercise of due care, the plaintiff could recover from the defendant the damage he sustained thereby.”</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions to the exclusion of evidence, and to the instructions above recited “ so far as they are in conflict with the rulings prayed for and refused.”</p>

<p>A. and B., in dissolving partnership, set off, each to the other, a specific part of the assets of the firm, and each as to the other assumed and agreed to pay a specific part of :ita liabilities. Among the liabilities assumed by B. was a promissory note due from the firm to his father. But instead of applying his portion of assets to pay this note, B. applied them (with the knowledge of his father that such an application was a violation of the understanding with A.) to pay a debt which he, with his father as surety, was owing individually, and another debt which he was individually owing to his father. And then his father sued A. on the firm’s note. Held, that the assets of the firm set off to B. were subject to no trust for the payment of the note, which A. could enforce in equity against B. anil his father; and that the action on the note could be maintained.</p>

<p>Contract for the price of goods sold and delivered. Writ dated December 7, 1868. The items of an account annexed to the third count of the declaration, sixty-seven in number, all bore date between May 30 and October 17, 1867, and were alleged to have been “ contracted by Patrick Hughes and John Hughes, Jr., sons of the defendant, who were released therefrom and said account transferred and charged to the defendant at his request by the plaintiff.”</p> <p>At the hearing before an auditor to whom the case was referred, it appeared, upon the production of the plaintiff’s books of account, that the first fifty-eight items were charged therein to Patrick Hughes and John Hughes, Jr., the defendant’s sons, and the nine other items to John Hughes, Jr., alone ; and that the account was charged to the credit, not. of Adrian Langdon, the plaintiff, but of “ Burton & Langdon.” The defendant contended that the action could not be maintained upon this account 5 and the plaintiff, against the defendant’s objection, was allowed to prove, in explanation of it, that he and Francis Wilcox were partners in the business; “that Wilcox, about April 1, 1867, sold his interest in the firm to Sterling Burton, who was to become a partner with the plaintiff in the place of Wilcox; that Burton was disappointed in his arrangements to procure the necessary capital to pay Wilcox, and at some time near April 1, 1867, arranged, through the plaintiff, with certain persons to give their promissory notes to Wilcox for the amount of the purchase, which they did with the understandings among all the parties, that if Burton, or some one for him, did not pay the notes in six months, he was to be considered and paid wages as a clerk from said April 1, and have nothing of profit or loss in the business; that the parties then went on with their business, and opened books, and sold goods, in the name of Burton & Langdon, and matters continued in this state until about February 1, 1868, when Burton, being unable to pay the notes, left the business, being paid as a clerk for his services ; and that Burton never put in any capital.”</p> <p>The auditor found that all the sixty-seven items “ accrued in relation to a contract in which Patrick Hughes and John Hughes, Jr., were jointly interested; ” and further found “ that in 1867 they had bought a quantity of wood, and were engaged in converting it into charcoal under a contract with the Millicton Iron Works; that Patrick left at some time during the season, and on October 25,1867, John, Jr., sold out the contract or job to the defendant, who was to pay the debts, or some part of them, of Patrick and John, Jr.; and that, some time in the winter following, the defendant went to the plaintiff’s shop, and told Burton and iho plaintiff that he had bought out his boys in the job, and was to pay their debts, and would pay this debt,” referring to the account of sixty-seven items, “ and directed it to be transferred to him, and it was so transferred and charged to the defendant.” The defendant contended that all this “ only proved an agreement which was within the statute of frauds, and not binding on the defendant.”</p> <p>At the trial in the superior court, before Devens, J., the auditor’s report was put in evidence, and was not contradicted, “ except so much of it as was involved in the following inquiries, which were submitted to the jury upon evidence offered by both parties, and were answered in the affirmative: Did the defendant agree with his sons to pay the debt due from them to the plaintiff ? Was the account of the sons transferred to the defendant, .with his knowledge and at his request ? Was the account of the sons credited on the books of the plaintiff, with the knowledge of the defendant and at his request?”</p> <p>The case was reported for the determination of this court, under an agreement of the parties that judgment should be entered for the plaintiff for a certain sum, if the court should be of opinion that on the facts reported by the auditor the plaintiff was entitled to recover upon the account annexed to his third count, and oth erwise the plaintiff should have judgment for a less sum.</p>

Contract on a promissory note purporting to be signed by the defendant, payable to the order of Ethan Janes, the plaintiff’s intestate. The defendant denied signing the note.

Contract for the price of 192 cords of wood sold to the defendants, and drawn and delivered to them at their station in Sheffield, under a special contract.

Tort for the conversion of some household furniture. Writ dated October 11, 1869.

Contract to recover the amount of expenses incurred by the plaintiffs for the support, as a pauper, of Candace, wife of William W. Walley, whom, they contended to have gained a settlement with the defendants, under the Sts. of 1865, c. 230 and 1868, c. 328, § 3, by his service as a soldier during the civil war.

Contract by the executors of the will of William Pollock, on a promissory note of the defendant, dated December 9, 1857, for $6494.11, payable on demand, to his own order, with interest, by him indorsed in blank, bearing indorsements of the receipt of interest up to April 1, 1862, and also the following indorsement, signed by Pollock: “ $5,133.33. April 23, 1863.

<p>The eikst suit was a bill in equity filed December 5, 1868, by the Stockbridge Iron Company, a corporation chartered by this Commonwealth, alleging that on July 20, 1849, said company was seised and possessed of a tract of land containing beds of iron ore, in West Stockbridge, and on that day conveyed it to the Hudson Iron Company, a corporation established under the laws of New York, its successors and assigns, by a deed containing the following clause : “ And further reserving to the Stock-bridge Iron Company the right of mining on the above granted premises, for the use of said company, an amount of ore not exceeding seven thousand five hundred tons annually at a duty of thirty-seven and a half cents per ton, including all the facilities needful for doing the same; ” that under this clause the Stock-bridge Iron. Company, its successors and assigns, has a perpetual right to mine and carry away ore from the land, to the extent and upon the terms so provided, and the Hudson Iron Company is bound to refrain from mining and carrying away ore from the land to any extent or in any manner which shall interfere with the said perpetual right; but that the Hudson Iron Company now denies the said right, and refuses to permit the Stockbridge Iron Company, or its assigns, to exercise it, and is mining and carrying away ore to an extent and in a manner calculated to defeat it: wherefore the bill prayed for a declaration by the court of the respective rights of the parties under the deed, and for protection . of the right of the Stockbridge Iron Company by injunction and otherwise.</p> <p>By a copy of the deed, which was annexed to the bill, it appeared that, immediately following the granting clauses and' preceding the clause in question, was the following clause : “ Excepting, however, from this conveyance, and reserving, one piece of land, two rods square, for a family burial ground, in the southwest corner of the garden on the premises, with a right to pass and repass, on all proper occasions, from the road to said burial ground, that same reservation being made in the prior deeds by which this property has been conveyed.”</p> <p>The answer admitted seisin and possession of the land by the Stockbridge Iron Company on July 20, 1849, and its execution of the deed with the clauses above quoted; and further alleged as follows:</p> <p>“ At the time of the conveyance to the Hudson Iron Company by the Stockbridge Iron Company, the latter company was tak ■ ing ore from the premises and manufacturing the same ,n its furnaces in Stockbridge, under the provisions of its charter, granted by this Commonwealth by the St. of 1841, o. 19.* Pending the negotiations for the purchase of the premises by the Hudson Iron Company, it was proposed by the Stockbridge Iron Company to reserve to itself the right to mine and take sufficient ore for the use of its furnaces at Stockbridge. This proposition was strongly objected to by the Hudson Iron Company; but, it being represented to the Hudson Iron Company by the Stockbridge Iron Company, that, on account of the cost of procuring charcoal, or of bringing anthracite coal to its furnaces, iron could not be profitably made at Stockbridge, and therefore the Stockbridge Iron Company would use the ore under the reserved right for but a few years at most, the Hudson Iron Company finally gave its assent to receive the deed reserving the ore for the use of the Stockbridge Iron Company in its furnaces at Stockbridge. All parties, the Stockbridge Iron Company and the Hudson Iron Company, and the directors and trustees of each, alike understood and intended that the right reserved was to be a right to mine and take so much ore as should be required for the actual use and supply of the furnaces of the Stockbridge Iron Company atStockbridge, and that only; and that such use was to be in accordance with represented wants by said company. The deed to the Hudson Iron Company, and the reservation therein, were supposed, and were designed, to carry out this understanding and intention of all parties. The annual production of the Stock-bridge Iron Company’s furnaces, when in blast, being about three thousand tons of pig iron, and the usual estimate being two tons and a half of ore to one ton of pig iron, the mining right reserved was limited to seventy-five hundred tons annually, at a royalty of thirty-seven and a half cents per ton, the actual value of the ore at the time. The deed was drawn by a director of the Stock-bridge Iron Company. When first handed to the agent of the Hudson Iron Company, he objected that it should be made morf explicit, and should be prepared by a lawyer; but he finally received it, the parties representing the Stockbridge Iron Company stating that there was but one Stockbridge Iron Company, and they could not use the ore in any way but in their own furnaces. The deed was not actually executed and delivered till August 28, 1849.”</p> <p>“ Immediately after receiving the deed, the Hudson Iron Company took possession of the premises, and began to prosecute, and has ever since prosecuted, thorough, extensive and scientific mining operations there.”</p> <p>“ The Stockbridge Iron Company; on the other hand, after its deed to the Hudson Iron Company, did not until very recently, and until it procured an amendment of its charter by the St. of 1864, o. 291,* (of the passage of which act the Hudson Iron Company had no notice,) mine or attempt to mine on the premises, and until such recent period supposed, as is believed, that in accordance with the original intent of the parties, and their true, legal and equitable rights, it had long since ceased to have any claim to take ore under and by force of the reservation in said deed.”</p> <p>“ Late in the_year 1855, or early in the year 1856, the Stock-bridge Iron Company ceased to manufacture iron altogether, and in 1860 sold its furnaces. From the time the Stockbridge Iron Company ceased to make iron, no claim to take ore was made under the reservation in the deed, till 1864. Such claim was then asserted in a letter of the treasurer of said company to the Hudson Iron Company, but was at once and positively denied by the latter company. In 1865 the Stockbridge Iron Company took from the premises a trifling quantity of ore. But none of any consequence was taken, and there was no attempt to practically avail itself of the pretended right asserted in the above mentioned letter of its treasurer, of 1864, prior to 1867.”</p> <p>The answer finally alleged, “ upon the said deed and reservation, and upon the facts hereinbefore set forth,”</p> <p>“ 1. That under the said reservation there was reserved to the Stockbridge Iron Company for the sole use of said company in its furnaces at Stockbridge, and for no other use or purpose whatever, the right to mine and take so much ore on and from the premises as should be actually required for and used in said furnaces, not exceeding seventy-five hundred tons annually; and that, when the Stockbridge Iron Company stopped business and sold out its furnaces, all rights under said reservation ceased and were extinguished.</p> <p>“ 2. That, the clear intent and purpose of all parties to said deed and reservation being to reserve a right to take ore for the exclusive use of the Stockbridge Iron Company in its own furnaces at Stockbridge and not otherwise, a court of equity will not lend its aid to defeat such intent and purpose, but will leave the plaintiffs to their remedy at law.</p> <p>“ 3. That, the Stockbridge Iron Company having for a period of more than fifteen years neither practically exercised nor claimed any rights under said reservation, and having during that period always recognized the rights of the parties under said reservation to be the same as they were originally intended to be, aro now estopped to deny that these rights are different or otherwise, .have been guilty of gross loches, and have lost all claim to equi table relief by virtue of their pretended claim, if any they ever had.</p> <p>“ 4. That, upon any construction of said reservation, the right of the Hudson Iron Company in the premises and to the ore therein is paramount, and any right of the Stockbridge Iron Company, or any party claiming through or under it, must be exercised in subordination thereto ; that the said reservation imposes no limit or restriction upon the extent of the mining operations of the Hudson Iron Company, nor upon the quantity of ore it may mine; that it confers no right of interfering with, or in any way embarrassing the mining operations of the Hudson Iron Company, and no right to use its mining facilities; and that, on the contrary, any mining operations of the Stockbridge Iron Company, or of any party claiming under it, must be so conducted as to in no way impede or disturb the existing works and operations of the Hudson Iron Company, and without its consent cannot be carried on by means of the mining facilities prepared for the sole use of the Hudson Iron Company, and at its sole expense.”</p> <p>The Stockbridge Iron Company filed a general replication on April 5, 1869.</p> <p>The secostd suit was a cross bill filed by the Hudson Iron Company March 1,1869, in which, after making the same allegations of fact as were contained in the answer to the original bill e and are above quoted, it was further alleged that, by the terms of the deed and the reservation therein, the Stockbridge Iron Company was entitled to mine or take ore from the premises to be used only in its own furnaces at Stockbridge; and that, if by said terms it was legally entitled to transfer to purchasers or assigns any right to mine and take ore, or was legally entitled to mine or take ore for sale or to be used in any other manner than in its own furnaces at Stockbridge, “ the language of said reservation was inserted in said deed oy the mutual mistake of all par» ties thereto, and defeats the intention of all said parties.” The prayer was, for a decree dismissing the original bill filed by the Stockbridge Iron Company; for an injunction; for a reformation of the deed so as to conform to the true intent of the parties; and for general relief.</p> <p>The Stockbridge Iron Company, in its answer, among other things denied that pending the negotiations it proposed to reserve to itself only the right to mine and take sufficient ore for the use of its said furnaces; or that it represented or in any manner suggested to the Hudson Iron Company that for the reasons stated in the cross bill, or for any other reason, iron could not profitably be made at Stockbridge, or that the Stockbridge Iron Company would use the ore under its reserved right but for a few years at most; or that the Hudson Iron Company received the deed with the understanding that the ore reserved therein was to be. used by the Stockbridge Iron Company only in its furnaces at Stockbridge; or that the Stockbridge Iron Company, or its directors, or the Hudson Iron Company, or its trustees, ever understood or intended that the right to mine, reserved in the deed, was restricted to the supply of the furnaces of the Stockbridge Iron Company, as in said bill alleged; or that the deed to the Hudson Iron Company and the reservation therein were supposed or designed by any of the parties to effect such a restriction ; and alleged that on the contrary “ it was the design and intent of these defendants and of the plaintiffs, that the right in said deed reserved should be of a vendible, alienable, transmissible right, to be exercised and enjoyed at all places and under all circumstances which the interests of these defendants or their grantees or assigns might make desirable.” It also denied that the extent of the right to mine, reserved in the deed, was in any manner graduated or fixed by or in reference to the quantity of ore then being used by the Stockbridge Iron Company at its furnaces ; alleged that without inspection of the deed the defendants could not state by whom it was drawn, but denied the allegations of the bill as to any objections to the deed made by the agent of the Hudson Iron Company, or that it was finally received by him by reason oí the alleged representations of the parties representing the Stockbridge Iron Company, or that any such representations were made; admitted that the deed was delivered on or about August 28, 1849, but alleged that it was executed and placed in the hands of the Hudson Iron Company for examination, about ten days before it was delivered; and further denied “ that the language of the reservation in said deed contained was inserted in said deed by the mutual mistake of all or any of the parties thereto, or that the same defeats the intention of the parties to laid deed or any of them, or that the Hudson Iron Company is mtitled to have said deed in any manner reformed, or that any facts exist which will in any manner, in law or equity,, warrant ,)r authorize any reformation thereof.” Afterwards, by leave of court, the answer was amended by setting up the statute of frauds ; and on March 25,1871, subject to the objection of the Hudson Iron Company and the revision of the full court, by alleging such loches on the part of the Hudson Iron Company as to debar it from any reformation of the deed.</p> <p>The Hudson Iron Company filed a general replication on June 29, 1869.</p> <p>In January 1870, after the decision reported in 102 Mass. 45, the following issue for a jury was framed by the court in the second suit:</p> <p>iFirst Issue. “ Did both parties intend to insert in the deed, which was delivered by the Stockbridge Iron Company to the Hudson Iron Company on the twenty-eighth day of August in the year eighteen hundred and forty-nine, a clause by which the right therein reserved to the Stockbridge Iron Company to mine and take ore from the premises should be limited and restricted to the use and supply of its furnaces in Stockbridge, and was in no event to exceed seven thousand five hundred tons annually, and was such clause omitted by the mistake of both the parties ? ”</p> <p>At the hearing at which this issue was framed, the Hudson Iron Company moved to include in the order the following additional issue ; and the question whether the motion should be allowed was postponed for the determination of the judge at the jury trial.</p> <p>Second Issue. “ Was it the understanding, intent and agreement of both the Stockbridge Iron Company and the Hudson Iron Company, that, by the contract of purchase and sale between the parties of the lands and ore-bed, the reservation to the Stockbridge Iron Company of the right to take seven thousand five hundred tons of ore annually at thirty-seven and a half cents per ton was limited and restricted to the use and supply of the Stockbridge Iron Company’s furnaces at Stockbridge ; and was the deed delivered by the Stockbridge Iron Company and accepted by the Hudson Iron Company in the belief and with the understanding that the deed gave legal effect to such understanding, intent and agreement ? ”</p> <p>The trial was had at May term 1871, before dray, J., who made a report thereof, of which the following are the material parts:</p> <p>“ It was ruled by the presiding judge that the right reserved to the Stockbridge Iron Company in the deed was not limited to ore to be used in its own furnaces, and might be assigned by it to any other party. This ruling was excepted to by the Hudson Iron Company, and the question of its correctness is reported for the determination of the full court.</p> <p>“ The Stockbridge Iron Company objected to the submission of the second issue to the jury ; and contended that a finding of this issue in the affirmative, if the first issue. should be answered in the negative, would not warrant a reforming of the deed. But both issues w;ere submitted to the jury, reserving the question of the effect of any finding thereon for the determination of the full court.”</p> <p>The report then set forth the evidence introduced by both parties ; and continued as follows :</p> <p>“At the close of the whole evidence, the Stockbridge Iron Company contended that it appeared thereby that the parties had agreed to deliver and accept the deed in its present form, after it had been a subject of discussion between them which of the constructions thereof, now contended for by the parties respectively, was the true one; and that therefore a finding in favor of the Hudson Iron Company upon the second issue would not warrant a decree in its favor, and there was nothing to be submitted to the jury upon that issue. But the judge refused so to rule as a matter of law; and before the beginning of the closing argument for either party, he informed the counsel that he should submit to the jury the following</p> <p>“ Third Issue. ‘ Was the deed of the land and ore-bed delivered by the Stockbridge Iron Company and accepted by the Hudson Iron Company with the mutual intention and understanding that it should be and was in its present form, after the question had been raised and discussed between the parties whether the reservation to the Stockbridge Iron Company was limited, by the terms in which it was expressed in the deed, to ore to be used at its own furnaces ? ’</p> <p>“ The Hudson Iron Company objected and excepted to the submission of the third issue to the jury, but did not offer, or ask time to procure,'any further evidence.</p> <p>“ The Hudson Iron Company contended that the burden of proof upon the issues framed on its motion was the same as in civil actions. But the jury were instructed that the ordinary rule of evidence in civil actions, that a fact must be proved by a preponderance of evidence, did not apply to such a case as this; that the proof that both parties intended to have the precise agreement between them inserted in the deed, and omitted to do so by mistake, must be made beyond a reasonable doubt, and so as to overcome the strong presumption arising from their signatures and seals that the contrary was the fact; and that in this case proof beyond a reasonable doubt was such a degree of proof as the jury would act upon in the most important affairs of life, and as would satisfy their judgments and consciences of the fact to be proved.</p> <p>“ The judge then proceeded to give instructions to the jury upon the law applicable to the first, second and third issues successively, to which no exception was taken. In these instructions the jury were told that, in order to find for the Hudson Iron Company on the first issue, they must be satisfied that a clause had been omitted which was intended to be inserted; but that Lhe second issue was broader, and covered a misunderstanding of the legal effect of the words used in the deed.</p> <p>“ No specific instruction was given or asked for as to the burden of proof on the third issue; nor was the judge’s attention called, nor any exception alleged, to the omission so to do; and it was therefore not deemed by him to be open to exception, and he refused to allow such an exception first alleged after verdict.</p> <p>“ The jury answered the first issue in the negative, and the third in the affirmative, and failed to agree upon the second.</p> <p>“ The Hudson Iron Company, after the return and affirmance of the verdict, moved for a new trial, because of the rulings upon the construction of the reservation in the deed in its present form, upon the burden of proof, and the submission of the third issue to the jury at all, and because the finding of the jury upon this issue was against evidence and the weight of evidence ; but did not offer any new evidence upon this motion. The motion was overruled, and the questions of law presented by this report are reserved for, the determination of the full court, who will make such order or decree in the cause as justice and equity may require. The question of loches in applying for a reforming of the deed has not been heard or tried either by a single justice or by a jury.”</p> <p>In vacation after September term 1871, a master was appointed to find and report the facts as to any loches of the Hudson Iron Company in bringing the cross bill, and also as to any defence thereto by reason of any acts, conduct or claims of the Stock-bridge Iron Company.</p> <p>On December 26, 1871, the original suit of the Stockbridge Iron Company against the Hudson Iron Company was referred to the same master “ to report any evidence either party may desire to submit as to the issues made by the bill and answer, and as to the understanding and agreement under which the deed and reservation in said bill set forth were made and accepted, and especially any evidence of the practical construction put by the parties upon said deed and reservation.” At the time of this reference, the Hudson Iron Company moved that the second issue, submitted to and not decided by the jury upon the cross bill, should be submitted to a jury upon the original bill, and that, until a finding thereon, the original bill should not be heard by the court or referred to a master ; but Gray, J., overruled the motion, reserving his ruling thereon, by request of the Hudson Iron Company, for the revision of the full court.</p> <p>Upon the coming in of the two reports of the master, both cases were heard by Gray, J., and together with the facts and rulings theretofore made and reported upon the cross bill, were reserved for the decision of the full court. The Hudson Iron Company objected to the reservation, upon the same ground (of the want of a finding upon the second issue) on which it had objected to the reference of the original suit to the master. Upon this reservation, the cases were argued together at Boston in January 1872, before all the judges but Colt, J.</p>

<p>On the trial of an action to avoid a deed upon the ground of mental incapacity of the grantcf at the time of its execution, evidence of the condition of his mind a year afterwards may be excluded, in the discretion of the judge, as too remote.</p> <p>K a married woman, mentally competent, joins in a deed of land by her husband, to release her dower, without duress or fraudulent misreading of the deed, and suffers it t@ be delivered to the grantee, she cannot avoid it on the ground that she was induced to join by fraud or undue influence of her husband or another co-grantor, without showing compli jity of the grantee.</p>

<p>Libel, filed July 13,1870, for a divorce from the bond of matrimony for the cause of adultery committed by the libellee with Elizabeth Morse “ at sundry times ” since the marriage of the parties, “ and at sundry places ” to the libellant unknown; for the cause of extreme cruelty “ since the marriage; ” and for the cause that the libellee, “ though he is of sufficient ability, grossly, wantonly and cruelly refuses and neglects to provide suitable maintenance ” for the libellant.</p> <p>By order of the court, upon motion of the libellee, the libellant filed specifications under each of her charges. The specification under the charge of adultery was: “ Various acts of adultery by the libellee with said Elizabeth Morse during and within the time said Elizabeth Morse lived at Northampton and in the house of the libellee, to wit, in the years 1867, 1868 and 1869.” That under the charge of extreme cruelty was: “ Extreme cruelty within and during the time between January 1, 1869, and March 1,1870, by neglect to provide suitable food and clothing, fuel and care.” And that under the charge of insufficient maintenance was : “ Neglect to provide suitable maintenance between January 1, 1868, and the day of the filing of the libel.” Thereupon the following issues were framed for a jury :</p> <p>“ Was the libellee guilty of adultery with one Elizabeth Morse within the years 1867,1868 and 1869, at Northampton, and while the said Elizabeth Morse was living in the house of the libellee, and in the house of the libellee ?</p> <p>“Was the libellee guilty of grossly, wantonly and cruelly refusing and neglecting to provide suitable maintenance for the libellant, within the period from January 1, 1868, to July 13, 1870, he being of sufficient ability to provide the same.”</p> <p>At the trial, before the jury were empanelled, the libellee moved for an order for a fuller specification under the charge of adultery; but Colt, J., overruled the motion, stating, however, that relief should be afforded to the libellee, if, in the course of the trial, the evidence offered under the specification, as it stood, should appear to be a surprise to him. The libellee also contended that the second issue was improperly framed under the libel; but the judge directed the trial to proceed upon it, and afterwards, during the trial, allowed an amendment of the libel, without terms, so as to allege the neglect to provide suitable maintenance between the dates specified in that issue. The libellee did not ask for any delay by reason of the amendment. The jury returned a verdict against the libellee upon both issues, and he alleged a bill of exceptions, which, after stating the foregoing facts and rulings, and the substance of the evidence introduced on the trial, concluded as follows :</p> <p>“ The defendant and Elizabeth Morse were called as witnesses and testified; and both denied ever having had sexual intercourse with each other. They gave material evidence for the libellee on both issues. The libellant was also a material witness in her own behalf. The counsel for the libellee, in his argument to the jury, claimed that the evidence of the libellee and Elizabeth Morse was to be relied on the same as that of any witnesses having an interest in the issues involved. The judge instructed the jury at some length upon both issues, but without written minutes of his charge; no objection was made or exception taken to his remarks to the jury at the trial, nor was any request made for further or more particular instructions. The attention of the judge was first called to what purported to be a small portion of his charge, some days after the adjournment of the term, when the libellee presented his exceptions in their original draft. But in substance the jury were told, so far as relates to the matters now complained of, that the questions of fact and the credit due to witnesses were solely for them, that the court intended to express no opinion in regard to them and they had no right to infer from anything that might fall from the judge what his own opinion was upon the facts. Upon the charge of adultery, he stated the nature of the fact to. be proved, and the kind of evidence by which such a fact is ordinarily established; and then went on to say that this evidence was here met by the denial of the husband and Elizabeth Morse; that parties to the suit as the law now stands have a right to testify, though formerly it was thought unsafe to permit it, and even a pecuniary interest however trifling was formerly sufficient to exclude a man from testifying in his own favor, for fear that in the infirmity of human nature he would not testify to the truth ; that this was the law for many ages ; that criminals especially were formerly not permitted to testify in their own behalf, because it was said by many that to allow it would be a mere farce; that a man who committed a crime would certainly lie about it, and a man charged with adultery would swear he was not guilty, tempted both to shield himself and by a false sentiment of honor to screen the other party to the crime. That a woman who was so depraved as to commit adultery won Id have no other course but to come forward and deny it, for to stay away would be confession. That such testimony was to be received with care, in view of these suggestions. As the law now stands, both parties have now a right to testify, and the jury must receive and examine their testimony and give it such weight as in their opinion it ought to have. If satisfied that they tell the truth, or if upon all the evidence they are not reasonably satisfied that the burden which is upon the libellant to prove her case is removed, they must bring in a verdict of not guilty on this issue. To the rulings and instructions above stated the libellee excepted.”</p>

Contract. The declaration alleged “ that the defendant was the licensed proprietor, manager and conductor of a ferry boat, plying across the Connecticut River between the bank of said river in Northampton and the opposite bank in South Hadley, at a place commonly known as Smith’s Ferry; that the defendant, as such proprietor, manager and conductor of said ferry boat, and as a common carrier of passengers and teams on said boat across said river, for a compensation agreed to…

Tort on the Gen. Sts. o. 44, § 22, for injuries alleged to have been received by the plaintiff through a defect in a highway leading from Amherst to Granby, which the defendants were bound to keep in repair, and on which he was travelling with due care at the time of his injury. The answer admitted the obligation of the defendants to keep the highway in repair, and denied all the other allegations of the plaintiff.

Tost on the Gen. Sts. o. 44, § 22, for injuries alleged to have been received by the plaintiff by being hurt in his person and having his horses and carriage injured through a defect in a highway leading from Cummington to Windsor, which the defendants were hound to keep in repair, and on which the plaintiff was travelling with due care. The answer denied all the plaintiff’s material allegations.

Tort. Writ dated February 5, 1870. The declaration alleged that the plaintiff “is the owner of a certain parcel of land situate in Northampton, bounded northerly by lands of the defendants, easterly by Pleasant Street, southerly by lands of the heirs of the late George Cook, and westerly by Mill River ; that the said Mill River is a certain ancient stream and watercourse • and that the defendants have wrongfully so constructed their road-bed and road along the bank of the…

<p>In a deed of land described as “bounded north of A. B.’s land,” and west on a certain road, the said word “of” may be construed to mean “by,” if necessary to make the whole description coherent.</p> <p>By a quitclaim deed, J. S. conveyed all his right and title in real estate described as “one piece of land lying the south side of the county road,” and definitely bounded; “also all the land situate and lying north of the road aforesaid, bounded north of M.’s land and west on” another road. Construing “of” in the sense of “by,” in the phrase “north of M.’s land,” the description included one piece of land, divided into two parcels by the county road. Meld, that it did not also include another piece of land -ying north of the county road and of M.’s land, and not bounded west on the other road.</p> <p>Extrinsic evidence is inadmissible to vary the construction of a deed, as between a third person and the grantee.</p>

<p>A dealer ordered two hundred dozen hoes to be manufactured, and delivered to him within ' a certain time; and the manufacturer accepted the order, with the remark that he would endeavor to fulfil it promptly. The price per dozen was stipulated in the contract; but not the time of payment. A month after the time set for the completion of the delivery, the manufacturer, having then delivered only a hundred and ten dozen, drew on the dealer for part of the price of that quantity. The dealer refused to accept the diaft, and directed the manufacturer to send him no more hoes; and then, in an action brought by the manufacturer for the price of those delivered and received, sought to recoup in damages for the delay in fulfilling the order. Held, that the manufacturer had a right to regard the direction to send no more hoes as a rescission of the contract as to the ninety dozen undelivered; and that the dealer had no ground of exception to a ruling that the measure of his damages, as to the hundred and ten dozen, was whatever decline in their market value occurred between the time when he was entitled to their deliveiy and the tira 3 when they were actually delivered to him.</p>

Contract on an account annexed for the price of 4972 spokes bargained and sold to the defendant, 2406 of them, at three and a half cents each, 2165 at five cents each, and 401 large spokes at eight cents each. The defendant denied accepting the spokes, or ever agreeing to accept them; alleged that they were of no value; and denied generally all the plaintiff’s allegations.

<p>If a plaintiff joins a count in tort with a count in contract for the same cause of action, it if discretionary with the court to permit him to go to the juiy upon both.</p> <p>An ordinary bill of the parcels, receipted by the seller of goods, is not such a memorandum of the contract of sale as will bar the buyer from proving by paroi evidence a warranty of their quality.</p> <p>It is competent for a jury to find that a sale of a lot of tobacco was made by sample, on evidence that the seller, in the buyer’s presence, drew bunches of the tobacco out jf some of the cases and said that he would warrant it to be like them all through, w'"“'eii son the buyer entered into negotiations as to a price and concluded the purchase.</p> <p>The testimony of experts is competent on the questions, .whether it is possible i. examine all the layers in a case of old tobacco without injuring the tobacco, what is the proper method of examining such a case to determine the kind and quality of the tobacco, arid whether it is a usage of the trade to buy old tobacco by sample.</p> <p>Evidence of a usage in trade to sell a certain kind of goods by sample is admissible to support testimony that a lot of such goods was sold so.</p> <p>The testimony of a witness, called as an expert upon the question what is the proper way to examine a case of tobacco, is admissible, that it is “to open the case, get down into it, be sure you have the average of the sweat of it, then draw three or four hands, and ask the man if this is the average of his crop.”</p> <p>On the trial of an action for breach of a warranty of the quality of eight cases of tobacco sold by the defendant to the plaintiff, evidence is competent of a warranty as to seven of them only.</p> <p>On the trial of an action to recover damages for breach of the defendant’s warranty of the quality of goods sold to the plaintiff, if a letter written by the plaintiff, which is put in evidence to show that he made a claim on the defendant for such damages, states a price for which he resold the goods, the defendant is entitled, upon request, to a ruling that the statement is no evidence of their actual value.</p>

<p>Contract on a policy of insurance, dated July 5, 1870, by which the defendants insured “ Little and Stanton, mortgagees,” in consideration of a premium by them paid, $3500 for one year on certain buildings and fixed machinery, “ situate in Huntington, Mass., and known as the C. F. Whitaker & Co.’s Mill,” payable in case of loss to the plaintiff, and containing, among others, these provisions : “ If the interest of the insured in the property, whether as owner, trustee, consignee, factor, agent, mortgagee, lessee, or otherwise, is not truly stated in this policy, this policy shall be void.” “ If the interest of the insured in the property be any other than the entire, unconditional and sole ownership of the property for the use and benefit of the insured, or if the building insured stands on leased ground, it must be so represented to the company, and so expressed in the written part of this policy , otherwise the policy shaE be void.”</p> <p>The case was submitted to the judgment of the superior court, and, on appeal, of this court, upon an agreed statement, the materia] part of which was as follows: “ On May 26,1868, Clarence F. Whitaker and his partner, being owners of the premises, gave a mortgage thereof to William A. Little and Atherton J. Stanton, partners under the firm of Little & Stanton, to secure six notes made by the mortgagors, of that date, amounting in all to $4000, payable, with interest annually, in two, three, four, five, six and seven years respectively, after date, to said Little & Stanton or order. On January 31,1870, Little & Stanton, for the sum of $4000 received by them from the plaintiff, assigned the mortgage and indorsed the notes to the plaintiff. Hone of the notes have yet been paid. They and the mortgage are still held by the plaintiff.' Little & Stanton have become absolutely liable to pay those notes which have matured; the same having been duly at maturity presented for payment, and payment thereof demanded and refused, and notice of such presentment, demand and refusal, and that the holder would look to them for payment, having been duly sent to Little & Stanton. On the notes not yet matured their liability is the ordinary liability of indorsers on notes not yet due. The buildings on the premises mortgaged and described in the policy were destroyed by accidental fire in August 1870, of which due notice and proofs were given to the defendants. The loss, if the plaintiff is entitled to recover anything, was total. The premises, apart from the buildings destroyed by the fire, were and are insufficient in value to satisfy the mortgage debt. The mortgagors were at the time of the fire and ever since have been insolvent.”</p>

<p>A t the trial of an action brought by an indorsee against the maker on a promissory note, the plaintiff, to prove that the note was signed with the defendant’s name by his authority, introduced evidence tending to show that it was made for the indorser’s accommodation; that afterwards, in proceedings in bankruptcy against the indorser, the defendant testified that he was liable with him on a promissory note to the plaintiff, and produced a mortgage from the bankrupt, running to the defendant and two others, as security for this and other liabilities; that the validity of the mortgage was contested by the assignee Vn bankruptcy; and that, in a compromise between the assignee and the defendant, the 4*ate in suit was included as the one referred to in the defendant’s testimony. Held, that it was incompetent for the defendant thereupon to prove that, in a subsequent release of the mortgage for a consideration less than the sum which it purported to secure, he permitted the other mortgagees to receive the whole consideration, because he did not consider himself liable on the note.</p>

<p>Contract on the Gen. Sts. c. 86, § 61, for money had and received to the plaintiff’s use. Answer, a general denial, and that, if the plaintiff bought intoxicating liquors of the defendant and paid for them, he did so in this Commonwealth for the purpose of selling them here again in violation of law, and executed that purpose.</p> <p>At the trial in the superior court, before Pitman, J., the plaintiff testified to the foRowing facts : The defendant kept a tavern in Northampton, with a bar room, in which he sold intoxicating liquors. On September 23, 1870, the plaintiff bought of him, for $8000, the furniture, fixtures and stores of the tavern, with the intention of keeping it himself. Among the stores so bought were intoxicating liquors to the amount of $1560.62, for which (apart from the rest of the $8000) the plaintiff gave his four promissory notes to the defendant on that day, payable at varipus times, the last in four months. The plaintiff bought the liquors with the intention of retailing them at the bar of the tavern, in the usual course of business of a bar room; this intention of the plaintiff was mutually understood by the parties at the time of the purchase; and the plaintiff took possession of them at that time, and did so sell them afterwards. The defendant, procured a discount of two of the notes at a bank in Northampton ; and the plaintiff paid all four notes at their maturity, those two to the bank, the other two to the defendant personally.</p> <p>The defendant requested a ruling that on these facts the action coidd not be maintained, because of the intention and acts of the plaintiff in the transaction ; but the judge ruled otherwise. The defendant also requested a ruling that the plaintiff could not recover in this form of action any amount he paid upon his promis-; spry notes, and that the statute does not apply to cases of payment for intoxicating liquors by promissory notes. But the judge refused so to rule, and instructed the jury “that, so far as the defendant in fact received money of the plaintiff on account of illegal sales of intoxicating liquors, he is liable in this action, and if he in the first instance received notes for the price, and the amount of some of the notes was paid to the defendant personally, and others were indorsed by the defendant to the bank and discounted, and the proceeds received by the defendant, the plaintiff paying the bank at maturity, it may be considered and treated, so far as the amount actually received by the defendant, as in substance and effect a payment by the plaintiff to the defendant,” and “ that the measure of damages would be the amount received, by the defendant upon the notes.” The jury found for the plaintiff accordingly; and the defendant alleged exceptions.</p>

<p>fhe provision of the St. of 1869, c. 415, § 56, that the notice in a proceeding for the forfeiture of intoxicating liquors valued at more than twenty dollars shall be made returnable to the term of the superior court to be held in the county next after the expiration of fourteen days from the time of issuing it, refers only to terms at which criminal business may be transacted.</p> <p>á. complaint under the St. of 1869, c. 415, § 44, for a warrant to search a vehicle for intoxicating liquors, need not specify the kind of vehicle, if it identifies it otherwise; and if an unintelligible description of the kind of the vehicle is added, it may be rejected as surplusage.</p> <p>Intoxicating liquors intended to be soldrin violation of the St. of 1869, c. 415, by a person to whom they are in course of transportation with reasonable cause on the part of the carrier to believe that such is his intention, are liable to be seized and forfeited under that statute.</p> <p>A complaint under the Sfc. of 1869, c. 415, § 44, for a warrant to search a vehicle for intoxicating liquors which have already been seized in it under § 57 without a warrant, relates back to the time of the seizure, and is not vitiated by describing the liquors as still in the possession of the person by whom they were kept in the vehicle at that time.</p> <p>In a proceeding under the St. of 1869, c. 415, for the forfeiture of intoxicating liquors seized in the possession of a carrier who was transporting them to a person by whom they were intended for illegal sale, evidence of declarations of the carrier is admissible to prove that he had reasonable cause to believe that such was the intention.</p> <p>In a proceeding for forfeiture of intoxicating liquors under the St. of 1869, e. 415, evidence that the claimant keeps a saloon is competent upon the question whether he intended the liquors for illegal sale.</p> <p>In a proceeding under the St. of 1869, c. 415, for forfeiture of intoxicating liquors seized, in the course of their transportation by a carrier, upon allegations that the person to whom he was carrying them intended them for illegal sale, and that he had reasonable cause to believe that such was the intention, a finding that he had such cause of belief is necessary to a judgment of forfeiture.</p> <p>On the trial of an issue whether A. intended intoxicating liquors for illegal sale, which were seized by an officer, at a freight depot, in a wagon with which B. was just carrying them away, there was evidence that, immediately after the seizure, A. was present, when B., in driving off with the wagon and liquors, reached the junction of a lane, which led from the depot, with a street where A. kept a saloon; that B. stopped there, and lesitated to go in a direction in which he was ordered to go by the officer, who was also present; and that A. thereupon told B. to drive on. Held, that exceptions could not tie sustained to a refusal of the presiding judge to rule that there was no evidence for the jrny.</p>

<p>Complaint on the St. of 1869, c. 415, § 41, to a trial justice for a warrant to search for certain intoxicating liquors alleged ti be kept by John Parks and Joseph Lafleur in Huntington on July 25, 1870, for unlawful sale in this Commonwealth. Six barrels and one cask of intoxicating liquors were seized on the warrant. As the trial justice was of opinion that their value exceeded twenty dollars, notice was issued to Parks and Lafleur, and all other persons claiming any interest in the liquors, to appear in the superior court; and George B. Lyman appeared accordingly as claimant of five barrels of the liquors, and no claimant appeared of the residue.</p> <p>At the trial in the superior court, before Pitman, J., judgment was ordered for a forfeiture of all the liquors, and the claimant alleged exceptions, which referred to the preliminary proceedings and continued as follows:</p> <p>“ Lyman testified that he resided in Ohio, and was a manufacturer and dealer in liquors ; that early in June 1870 at Huntington, where he formerly resided, he asked Parks, who resided there, if he wished to buy any liquors, and Parks declined, saying that he should buy none unless a license law should be passed, but that the prospect was that the legislature would pass a license law, and in that case he might want some; that the witness then asked Parks if he could store five barrels of liquors for the witness, subject to his order, and ship the same as he might order, and Parks agreed to do so; that the witness engaged the freight agent of the railroad company to notify Parks when the liquors should arrive, and subsequently, on June 21, the witness shipped the five barrels from Ohio, consigned to himself at Huntington ; that he had no intention of selling any of the liquors in this Commonwealth contrary to law, nor unless a license law should be enacted; that in July, hearing that the legislature had adjourned without passing a license law, he sold all the liquors to a person in Connecticut, and when he ordered them to be shipped to Connecticut he learned that they had been seized under the warrant in this case; that he did not know Lafleur, and had nothing to do with him in the matter; that Parks was only to store the liquors, and had no authority to sell or appropriate any part of them; and that there was no arrangement by which Parks might take or sell any of them in any contingency.</p> <p>“ Parks testified that, when he was informed that the liquors had arrived at Huntington, he spoke to Job Little, who was occupying the store-room, where the liquors were seized, under a lease from Parks, who owned the building, about storing them-for Lyman, and Little agreed to store them and did so ; that the witness had no occupancy of the room, and nothing more to do with storing the liquors than thus engaging Little; that neither he nor Lafleur had any authority from Lyman to sell or appropriate any of the liquors; and that he had not sold or taken any of them.</p> <p>“ The Commonwealth relied on evidence tending to show that the liquors were kept in same room with other liquors of Parks & Lafleur, and all were intended for sale by Parks & Lafleur in another place than the store-room, to wit, their hotel nearly opposite, and were removed from the store-room to the place of sale in small quantities, as wanted for sale.</p> <p>“ The claimant contended that, if the liquors were sold, or kept for sale, by Parks & Lafleur, they were guilty of an unlawful conversion of them; and asked the judge to rule that if the liquors were the property of the claimant, and were stolen from him by Parks & Lafleur, the verdict should be for the claimant; but the judge declined so to rule, and ruled and instructed the jury as follows: If the jury are satisfied that Parks & Lafleur were carrying on this hotel, and that Lyman left these liquors for storage with Parks as stated by Lyman, and Parks & Lafleur at the time of making this complaint kept these liquors for the purpose of being sold at their hotel in violation of law, the same would be liable to forfeiture, and the jury would be authorized to find the issue submitted to them in favor of the Commonwealth, although the jury should believe that Lyman remained the owner of the liquors, and they were sold or kept for sale without his authority or knowledge.</p> <p>“ The jury rendered the following verdict signed by their foreman ; 6 The jury find that all of the liquors described in the return on the warrant in this case, and seized by the officer under the proceedings in this case, were kept, at the time of making the complaint, by the persons alleged therein, as alleged in said complaint, for the purpose of being sold in violation of law of this Commonwealth; ’ and the claimant alleged exceptions to the foregoing rulings and instructions.”</p>

Indictment found and returned at June term 1869 of the superior court, charging that the defendant on the 26th of December last past stole four hides, being raw skins of beeves, of the property of Myron D. Ballou, at Williamsburg.

<p>On a criminal trial at which the defendant was a witness by his own request under the St, of 1866, c. 260, he requested a ruling that the presumption was in favor of his veracity like any other witness, but the judge refused so to rule, and instructed the jury that there was no presumption either way as to the truthfulness of a defendant’s testimony, and it was to be allowed such weight as in their judgment it ought to have, taking all the circumstances of the case and other evidence into consideration. Held, that the defendant had no ground of exception.</p>

Complaint on the St. of 1867, c. 130, § 5, to a trial justice, with two counts, the first alleging that the defendant was the keeper of an unlicensed dog on May 1, 1871, and from that day till July 18, 1871, at Rowe, and the second making like allegations against him as owner of the dog.

<p>Tobt, brought originally before a justice of the peace, who gave judgment for the plaintiff. The defendant appealed to the superior court, where the facts were agreed as follows :</p> <p>“ The defendant, by an oral lease, rented a tenement house and small lot of land on Devens Street in Greenfield to the plaintiff, at the rate of seven dollars per month. The plaintiff began to occupy under his lease May 7, 1870. On the 7th (f June the rent was paid. The defendant left the following notice, signed by him, at the house of the plaintiff, with his wife, on the 7th of June, the plaintiff being out of town; and she then understood .that it was intended for her husband and herself: 6 To John Clark and wife. I hereby give you notice and require you to quit and deliver up to me, on the 7th day of July next, the possession of the dwelling-house, with the appurtenances thereto, which you now hold under me, situate on Devens Street in Greenfield, and next west of my own house occupied by me, as I wish then to terminate any tenancy or right in you to occupy said house after that time. June 7, 1870.’</p> <p>“ On the 12th of July, no further rent having been paid, the defendant, who had been watching for the opportunity, found the house temporarily vacant (the plaintiff’s wife having gone up to the street, and the plaintiff’s children being about in the yard and one of them on the upper door-step) took peaceable possession of the house, and proceeded to put the plaintiff’s furniture out of doors, and fastened the doors, and prevented the plaintiff’s wife and children from reoccupying the house. The plaintiff’s wife knew of the removal, at once. The plaintiff was away from home, being a travelling peddler. The goods and furniture renamed out of doors over night, and the next day were wet by a ain, and damaged, before the plaintiff’s wife (the plaintiff being out of town) was able to find a place to put them in. The damage to the goods by being thus put out of the house was ten dollars.</p> <p>“ The plaintiff kept a number of hens, and suffered them to go' at large. The defendant occupied the adjoining lot. The plaintiff’s hens ran into the defendant’s grass and made nests therein, to some extent. A path was made in the' grass. The defendant requested the plaintiff to shut up his hens, and threatened to kill them if they were not. The plaintiff neglected and declined to do so. The hens continued to go upon the defendant’s land, when the defendant openly, with a stick, killed the whole lot of hens, and put them down in the plaintiff’s door-yard. The value of hens thus killed was five dollars.”</p>

<p>Contract on an account annexed for hay fed by the plaintiff to the defendant’s horse.</p> <p>At the trial in the superior court, before Dewey, J., it appeared that the plaintiff was a horse doctor, with whom the defendant left the horse to be doctored; that the horse remained with the plaintiff fifteen weeks ; and that it was during eight and a half weeks of this period that the plaintiff claimed to have fed the hay to the horse.</p> <p>The defendant introduced evidence tending to show that it was agreed by the parties that he should supply the horse’s feed while, the plaintiff was doctoring the horse; and that he supplied a hundred pounds of meal and twenty-four hundred pounds of hay during the fifteen weeks in pursuance of this agreement. But the plaintiff’s evidence tended to show that the quantity supplied by the defendant was much less than that.</p> <p>“ As bearing on the question of the quantity of hay furnished, and consumed by the defendant’s horse,” the defendant offered to prove, “ by persons who had experience in keeping horses and had experimented on the question, how much hay an ordinary horse will eat or consume in a week; ” but the judge excluded the evidence as incompetent. The jury found for the plaintiff, and the defendant alleged exceptions.</p>

Tort for injuries resulting to the plaintiff’s cow through the alleged neglect of the defendants to erect and maintain suitable fences along the line of their railroad. The case was submitted ■to the judgment of the court upon the following statement of facts: “ The defendants are a railroad corporation, duly created, who located and constructed their road in Greenfield in 1848.

Tort. The declaration alleged that the defendants by their agents and servants forcibly entered part of the plaintiff’s farm in Charlemont, which adjoined the Deerfield River, and tore up the soil, and took and carried away a large quantity of stone and converted it to their use, and in consequence of the removal of the stone the river washed away part of the plaintiff’s land, and the rest of it was exposed to similar injury from the river.

<p>An instrument executed by overseers of the poor to bind J. S. as an apprentice under the Gen. Sts. c. Ill, § 4, which purports to bind him from its date until a day named, il when the said J. S. will arrive at the age of twenty-one years, during which time the said J. S. shall faithfully serve,” is not wholly void because under the rule of law excluding fractions of a day in computation of time J. S. will become of full age on the day next preceding that so named, but binds him during his minority.</p> <p>In an action to recover for work done for the defendant by an apprentice bound to the plaintiff by an instrument executed by overseers of the poor under the Gen. Sts. c. Ill, § 4, which recites that the minor’s father is “ actually chargeable ” to the town as having a lawful settlement therein, such recital is primé facie evidence of the fact recited.</p> <p>A parent with whose consent relief is furnished by a town to some of his minor children, by reason of his having a lawful settlement in the town and not being able to support them, is actually chargeable to the town so as to enable the overseers of the poor to bind his minor children as apprentices or servants, under the Gen. Sts. c. Ill, § 4.</p> <p>The mere fact that a person, who employed an absconding apprentice, paid him for his services, affords no defence to an action brought against such person by the master for their value.</p>

<p>Writ oe entry, brought in the superior court, to recover land in Gill. Plea, nul disseisin. The case was submitted to the judgment of the court upon the following facts agreed by the parties:</p> <p>On August 1, 1868, the demandant filed in this court a libel against her husband, George R. Burrows, for a divorce from bed and board on the ground of cruelty, and upon that libel caused the land in question to be attached. The court afterwards passed an order for the payment of alimony pendente lite.</p> <p>At September term 1869 that case was heard by the chief justice, a divorce from bed and board decreed, the custody of the two youngest children of the parties awarded to the libellant, and, after the introduction of evidence as to the value of the libel'ee’s property and the amount of his debts, it was further ordered and decreed that “ the libellee pay the sum of three thousand dollars, the same to be in full of all costs and expenses of suit, also of all the arrears of alimony that are now due and unpaid, according to the former order of the court, and for all future alimony and also for past and future expenses of maintaining the said two children, and that execution issue therefor after the expiration of forty-eight hours from the time of entering this decree, but that the said sum be paid into the hands of +he clerk, to be by bim deposited in bank until a trustee shall be qualified to receive the same in conformity with the terms of this decree.” The decree then proceeded to appoint “ a trustee to receive said money,” he first giving bond with sureties to the clerk of this court for the faithful discharge of the duties of his trust; and further provided as follows: “ He is to invest the money in such manner as savings banks are authorized to invest their funds when the same shall be received by him; and out of the income, and also out of the principal, if necessary, he shall pay the said costs and expenses, and the said arrears of alimony, and such sums as may be necessary for the support and maintenance of the said Susan F., not exceeding eight dollars per week; and is also to render an account of his doings to this court, whenever he shall be cited to do so.”</p> <p>This decree was entered October 19, 1869. On October 21, after the expiration of forty-eight hours, execution in common form for the sum of $3000, and based on the decree, was issued from this court; and upon that execution on October 27 the demanded premises and other lands of the libellee were seized, and on November 3, after due appraisal and other necessary proceedings had, set off to the demandant, and seisin and possession given to her by the officer, and the execution returned satisfied.</p> <p>At the time of the fifing of the libel, the libellee was justly indebted to sundry creditors, including this tenant, who on June 7, 1869, severally caused the demanded premises and all the libel-ice’s other real estate in the county of Franklin to be attached in actions upon such debts, returnable to the superior court, and at August term 1869 of that court, to wit, on August 21, 1869, re covered judgments thereon against him. On September 15,1869, the tenant took out execution on his judgment to the amount of $1400; and thereupon, on September 20, 1869, the dsmanded premises were seized, and on October 20, after the appraisal and other necessary proceedings had, set off to him, and seisin and possession given to him by the officer, and the execution returned satisfied. The tenant has since been in possession thereof; and the trustee appointed as aforesaid, after giving bond as required; demanded of him possession of the land before bringing this action.</p> <p>The title of the husband in the land was subject to no incumbrance except these various attachments. His whole property is insufficient to satisfy the amount decreed to his wife and the debts due to his judgment creditors, exclusive of costs.</p> <p>The superior court gave judgment for the demandant, and the tenant appealed.</p>

<p>Contract on a promissory note signed by the defendant under date of March 7,1870, and payable to the plaintiffs or their order, on demand. The answer alleged “ that at the time of the execution of the note in suit and at the present time the defendant was and is a married woman living with her husband, Joseph FT, Fuller, and that the note in suit was not given by her in relation to any sole and separate property of which she may be possessed, wherefore she does not owe the plaintiffs the amount thereof.” The case was submitted to the judgment of the court on the following statement of facts:</p> <p>“ The defendant is a married woman having separate estate and property, and the note was made under the following circuí» stances. Some time more than a year before the date of the note, the plaintiffs trusted the defendant’s husband with certain articles for sale, upon his oral representation, made without her knowledge and never communicated to her, that, he having no property in his own hands, his wife would be responsible for their amount. Afterwards, and about a year before the date of the note, an agent of the plaintiffs called upon him to pay the amount due for these articles. But he was not able to pay, and wished for further time. The agent told him that he (the agent) would make out a note, and he (the husband) and his wife should sign it, according to the agreement, and the plaintiffs would let the matter rest. This was in the presence of the defendant, who took some part in the conversation. The note was made, signed by the husband and wife, and delivered to the agent. In about a year from its date, the agent called with it at the defendant’s house for the amount of it. The husbañd was not at home, and the defendant was not prepared to pay the note or interest. The agent said that the interest was payable annually, and unless it was collected annually the plaintiffs would lose the interest upon the interest. She asked if no arrangement could be made in regard to the note. The agent suggested that, as she was the responsible party, he supposed a note signed by her alone would be just as good. She replied that she did not see any reason why it should not be just as good. The agent then suggested that the interest should be computed and a new note written for the amount, to be signed by her alone. She assented to this arrangement ; the interest was computed; and the note in suit was written for the amount due, and was signed by the defendant after she had examined the figures to see that they were correct, and delivered to the agent, who surrendered the note previously given by the defendant and her husband.”</p>

<p>Contract on a promissory note signed by the defendant under date of December 15,1869, payable in one year to the order of John Wells and by him indorsed to the plaintiff. Writ dated December 28, 1870. The case was submitted to the judgment of the court on the following statement of facts:</p> <p>“It is agreed that the plaintiff is a bond fide holder of the note in suit, for a valuable consideration; and that he obtained it before it was due, without notice of any defect, illegality or other infirmity in it. It is also agreed that the contract, upon which the note itself was based, was made upon Sunday; and that the note was made, signed and fully delivered upon Sunday, to the original payee. The note bears date of the succeeding Wednesday.”</p>

<p>Notice of the dishonor of a promissory note, from the holder to an indorser, by a drop-letter deposited in the post-office of the town where the holder resides, addressed to the indorser as if he also resided there, is insufficient without proof that it actually and seasonably reached him, if he resides in another post town, although he is in the habit of resorting to both post-offices.</p> <p>If the holder of a dishonored promissory note, under cover to whom a notice to an indorser of its protest is seasonably sent by mail by the notary, from another post town where the note was payable, replaces it in the post-office without unreasonable delay, properly addressed to the indorser, it is immaterial to the sufficiency of the notice to bind the indorser, that in the ordinary course of the mails he might have received it sooner if it had been mailed to him directly by the notary.</p>

<p>A workman gave an order on Ms employer for forty-five dollars per month, to a shopkeeper, as security for future sales of goods by him to the workman. J. S. thereupon signed and delivered to the shopkeeper a writing in these terms: “ For value received I guarantee to ” the shopkeeper “ that I will pay Mm the forty-five dollars per month, on condition that he does not carry the above order to ” the workman’s employer. The shopkeeper accordingly never presented the workman’s order to Ms employer, and sold the workman goods from time to time, not exceeding forty-five dollars’ worth in any month, for which the workman failed to pay and J. S. refused to pay on demand. Held, that the obligation of J. S. was an original promise, and not a mere guaranty of the debt of the workman ; and that Ms liability thereon was not necessarily measured by the amount of that debt.</p>

<p>Writ or review, dated June 13,1870, of a judgment for the defendant in an action brought against her in the superior court on July 25,1869, upon two promissory notes, made by her testator, payable to the plaintiff or bearer.</p> <p>At the trial in the superior court, before Dewey, J., it appeared that the notes were each for $250, dated September 22,1862, and secured by mortgage, and that one of them was payable April 1, 1867, and the other April 1,1868. The defence was payment by the defendant’s testator on April 17,1863.</p> <p>“ The defendant testified that, about a year after the death of the testator, who was her husband, which occurred March 28, 1868, her attention was first called to the notes by Dexter Drake, who then claimed to own them, and to have purchased them from the plaintiff before they were due, and in the lifetime of the maker. She testified that she was sued by Drake upon the notes before the commencement of the plaintiff’s action. The plaintiff, upon cross-examination, asked the defendant if she did not ascertain from counsel, while the notes were in Drake’s hands, that she could not defend against Drake. The defendant objected; and the question was excluded. The plaintiff and Drake were each allowed, without objection, to testify that the defendant did say to them that she had taken counsel and had ascertained that she could not defend against Drake.</p> <p>“ The defendant called the register of the probate court as a witness; and offered to show that the plaintiff filed his petition in insolvency on March 18, 1867; and called upon the witness to produce the schedule of assets filed by the plaintiff. The plaintiff objected; but the judge admitted the schedule signed by the plaintiff, for the purpose of showing that the plaintiff asserted nc claim upon the notes at that time.</p> <p>“ The plaintiff, in.reply to the defendant’s case, called among other witnesses William B. Caswell, and offered to prove that this witness had commenced a suit against the plaintiff in March 1866, and that the plaintiff, in the lifetime of the maker of the notes, offered, without any injunction of secrecy, to turn out the notes to the witness, in payment of the plaintiff’s debt to the witness. The defendant objected, and the question was excluded. The witness was allowed to testify that he told the maker of the notes that the plaintiff offered to turn them out to the witness, and what their maker said in reply. It was not shown, nor was any offer made to show, that the witness ever saw said notes.</p> <p>“ On cross-examination of this witness Caswell, the defendant, after showing by the witness that the matter of the notes, whether paid or not, was much talked over in the community, and that he had taken part in various conversations as to the same, asked the witness this question: ‘ What was your theory as to the explanation of how these notes were in the hands of the plaintiff, if paid ? ’ The plaintiff objected; but the question was allowed, and the witness answered as follows : ‘ I did not give any theory as to these notes ; I supposed, how a case might come up ; I supposed with others.’</p> <p>66 The plaintiff having stated, as a witness, that he had compromised with his creditors not far from the time when he bought the notes from Drake for cash, was asked, upon cross-examination, whether at a certain time he borrowed money from the Shelburne Falls Bank with which to compromise with his creditors. The plaintiff’s counsel objected. The defendant stated that he offered this evidence to show the improbability of the plaintiff’s repurchasing these notes from Drake by cash as the plaintiff had stated. The judge said that 1 he would allow the defendant to prove that the plaintiff borrowed money about that time; ’ and admitted the question to be put for that purpose ¿ and the plaintiff answered that he did.</p> <p>“ In reply to the defendant’s evidence that the notes were paid April 17,1863, the plaintiff among other witnesses called Aristides Pratt, who testified 6 that in August 1866,’ he 6 heard a conversation between the maker of the notes and Persis T. Allen, an insurance agent, in front of the plaintiff’s hotel, in which said maker said that he had already twice told the said Allen that he should not get his life insured until he had got Woodward paid up, at the same time pointing to the hotel, which the plaintiff had owned and kept, known as the Franklin House.’ To control this evidence and contradict the witness, the defendant offered, against the plaintiff’s objection, to put in the record of the deed, showing that the plaintiff had sold his hotel March 18, 1866. The judge admitted evidence of the date of the deed as bearing upon the question of time, but for no other purpose.</p> <p>“ In the opening to the jury the defendant’s counsel stated that he relied, for proof of payment, upon a variety of circumstances, and among others upon the fact that the maker of the notes never called upon the assignees of the plaintiff to pay these notes, or ever spoke to them about the notes, although one of them became due April 1, 1867, after the appointment of the assignees.</p> <p>“ It was admitted or proved that the notes in suit were two of five given in payment of the purchase money for a farm sold by the plaintiff to the defendant’s testator, payable in one, two, three, four and five years from April 1, 1863 ; and that in April 1863, or at farthest during the year commencing April 1,1863, the testator paid to the plaintiff all of the other notes, together with a demand note for $1000, and some $400 or $500 besides, and a mortgage of $800, then on the place, at the time of the purchase due to other parties; and that during the autumn of 1862 he frequently expressed the desire to pay up all of the notes to the plaintiff as soon as possible. There was no evidence that the plaintiff, or any party holding the notes, said anything to their maker, or that he said anything to the holders of the notes, from April 1863 to the time of his death, about the notes or interest. The defendant testified she did not know that any euch notes were in existence until about one year after the death of the testator. Samuel D. Bardwell, one of the assignees of the plaintiff, under the insolvency proceedings, was shown to have acted as his agent in compromising with his creditors, doing all of that business for him, the plaintiff not even knowing how much he paid his creditors on the dollar, nor how much to them all.</p> <p>“ From these facts and others, the defendant’s counsel argued that the testator must have understood that the notes were paid. In the closing argument, the counsel was proceeding to argue that nothing was ever said to the assignees by the testator, although he lived a year after their appointment. The plaintiff objected to the defendant’s counsel being allowed to proceed with this line of argument, because there had been no evidence introduced whether the testator had or had not spoken to the assignees about paying up these notes, and no evidence had been offered by either plaintiff or defendant as to this point. One of the assignees, Humphrey Stevens, had been called to identify certain deeds, but was not further examined. It appeared, in the course of the trial, that the assignees had been enjoined by order of the supreme judicial court from proceeding under their appointment, early after their appointment, pending the case of Day v. Bardwell, 97 Mass. 246. The judge declined to interrupt the defendant’s counsel, and against the plaintiff’s objection he was allowed to proceed with this argument.”</p> <p>The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

Contract by Henry Johnson and Alvin A. Long on an account annexed for lumber sold and delivered by the plaintiffs to the defendants. The answer denied that the plaintiffs delivered the full quantity of lumber which they alleged.

<p>Contract, brought March 29,1870, upon a bond given May 2, 1867, by Horace H. Stratton, with the other defendants as sureties, under the Gen. Sts. e. 93, § 3, in the penal sum of $2000, conditioned that he, being executor and residuary legatee of his father, Samuel Stratton, late of Gill, deceased, should pay all the debts and legacies of the testator.</p> <p>By the will, which was set forth in the declaration, the testator bequeathed to his wife, Sarah Stratton, the furniture which she brought to him at the time of their marriage, and “ a good and comfortable support and maintenance, both as to food, clothing and nursing in health and sickness at my house in Gill, where I now live, and to be furnished to her by my executor hereinafter named, at his expense, during her natural life and so long as she remains my widow,” and also “ ten dollars per year for spending money, if she should need it and call for it, to be paid to her by my executor hereinafter named, so long as she remains my widow.” He then made bequests and provisions for the benefit of his daughter Mehitable and others of his children, and among other things gave Mehitable $500 and “ a right to have a home in my house, where I live, so long as she remains unmarried, and the right to use and occupy such parts of my house as she may find necessary and convenient, while she remains unmarried, and she and my said wife may occupy said house together or in such proportions as they may agree upon.” And finally he appointed Horace H. Stratton executor; and gave him all the residue of the estate, “ on condition that he pays the legacies hereinbefore named to my other children, and maintains and supports my present wife, as hereinbefore provided for her, and relinquishes all claims for his labor and services heretofore and hereafter for me, and also relinquishes all claims against my estate for a certain note oi hand which I have given him for the sum of about $800.”</p> <p>The alleged breach of the bond was, that Horace H. Stratton, “ though requested, has not furnished the said Sarah Stratton a good and comfortable support and maintenance ; that he has neglected and refused to furnish said Sarah with suitable firewood, clothing, food and lights ; that he refuses to keep the house mentioned in said will in reasonable repair and condition for the use and occupation of said Sarah, and refuses to permit her to occupy said house; and that he also refuses to said Sarah the sum of ten dollars a year for spending money, though she has needed and called for the same.” And the declaration alleged that “ the said Sarah, being aggrieved by the neglect and default of said Horace H. Stratton, applied for and obtained leave to bring a suit upon the aforesaid bond, and so the plaintiff says that an action has accrued to him in his said capacity” of judge of probate, “to recover of said defendants any and all damages sustained by reason of the aforesaid neglect and default of said Horace H. Stratton, executor as aforesaid.”</p> <p>The answer denied that Horace H. Stratton had failed to furnish Sarah Stratton with a good and comfortable support and maintenance ; denied that he was under any obligation to supply her with firewood or lights, but alleged that he had nevertheless furnished wood enough for her use; denied that he ever failed to furnish her with necessary food and clothing “ so far as he could; ” denied that the house was in a condition unsuitable for her use and occupation, or that he ever refused to permit her to occupy it; and denied that he had refused the spending money provided for her by the will, but alleged that, if he had, it was because she never called for it and did not need it, having a large estate of her own. Finally the answer alleged “ that the estate of Samuel Stratton has been long since exhausted in the payment of debts and expenses of administration, and the provisions of his will in regard to the support of his wife Sarah cannot be fulfilled for any time hereafter, because there is no estate or property left for that purpose, and the defendants deny that they are under any obligation to furnish any further support for the said Sarah, she well knowing the premises.”</p> <p>The case was submitted to the determination of the court without a jury, under an agreement of the parties that if judgment should be given for the plaintiff an assessor should be appointed to ascertain the sum for which execution should issue; and at April term 1871 Colt, J., gave judgment for the plaintiff and referred the case to an assessor, the following are the material parts of whose report:</p> <p>“ On the hearing, at the outset, the question arose upon what rule the damages were to be assessed. The plaintiff contended that the true rule was the amount of estate received by the defendant as executor and residuary legatee, less the legacies, debts and such other charges as were lawful claims under the will against the executor, so far as the executor should show that he had paid the same. The defendant contended that the execution should issue only for that actual damage which it might be proved that the widow, for whose benefit the action is brought, had suffered from the non-fulfilment of any of the provisions for her benefit in the will. I therefore heard all the evidence produced as proof of damage under both rules suggested, and report my finding in two forms:</p> <p>“ First. I find that the executor and residuary legatee received an estate of the value of $5979.88; and that out of this estate he has paid two sums, viz: legacy of Mehitable, $500 ; one half of a mortgage on part of the property owned in common with the executor, $250. Although the hearing was adjourned over one day to enable the executor to be prepared with his statement of account, no further evidence of payment by him was offered. I therefore find that out of the estate received by him there remains unaccounted for, in money value, the sum of $5220.88; and if this is the true rule of damage in this case, (which question is submitted to the court,) I find that execution should issue for that sum.</p> <p>“Second. Assessing the damage or sum for which the execution should issue on the principle that the true measure is what the widow has sustained of actual damage from the non-fulfilment of his obligations by the executor, I find the items as follows:</p> <p>“ 1. Under the' provision of the will as to spending money, I treat the provision as calling for an annual payment. Prior to the judgment in the case, three full years had elapsed; and I find that in the judgment of the widow she needed such spending money, and that demand was made by her on the executor for the allowance for three years, and I assess the amount due as spending money at $30. s</p> <p>“ 2. I find the money equivalent for the provision for clothing to be $50 per annum ; and I assess the damages sustained by the widow from the non-performance of the executor in this particular (calculated to the time of judgment in this suit, at $50 per annum for three years and ten months, to be $191.66, less the ■ amount furnished in that time, viz. $8.75) at $182.91.</p> <p>“ 3. I find that the executor has neglected to furnish any firewood to the widow for two and a half years up to the time of judgment in the action, and assess the damage at five cords a year at $8 per cord, or in gross $100.</p> <p>“ 4. I find that, from August 1869 to the time of the judgment in the action, the executor has failed to furnish any provisions to the widow for ninety-four weeks ; and I find $3.25 to be a reasonable sum per week to supply her with provisions at her house in Grill, to be cooked by herself ; and therefore I assess her damage in this particular at $305.50.</p> <p>“ 5. I find that the house where, under the will, the widow was to live and receive her support, has been suffered by the executor to be in an almost ruinous state, without any repairs ; that it has not been comfortable at any time since a period shortly subsequent to the testator’s decease ; and that during the latter part of the time only one room has been in a living or habitable condition. In assessing damage in this particular, I find as follows: For the discomfort and inconvenience suffered from leakage and other dilapidation, $100; and for the amount necessary to repair the house so as to put it in comfortable and habitable condition, $275.</p> <p>“ In assessing each and all the above items, I declined to consider the admitted fact, that the widow was possessed of a sole ■And separate property of $700 in money ; and I required no evidence in regard to the first item, that it was at any time necessary, except in her own judgment, that she should have spending money, holding that the executor could not be the judge of a necessity in the case and was obliged to pay the money if called for oy the widow. I was also requested by the defendants to rule that there was no default in regard to any of the provisions of the will, on the part of the executor, until demand by the widow. In view of the provisions of the will I declined so to hold, but I nevertheless find that there were paroi demands made on the executor by the widow, both before and after written demands annexed to this report. I was also requested by the defendants to rule that no damages could be recovered after the date of the suit. I declined so to hold, and have assessed damages in the manner above stated to the date of the judgment. I was also requested by the defendants to rule that if the widow did not call for the spending money each year she would waive her right to it. This I declined to rule, but found the fact as above stated. I was also requested by the defendants to rule that the words “ good and comfortable support ” in the will do not include firewood, lights and repairs. This I declined to hold. By an understanding between the parties and the assessor, all rights of parties to object to the rule as to the measure of damages on any item of damage above recited are saved.</p> <p>“ If therefore the true rule for assessing the sum, for which execution should issue, is what actual damage the widow has sustained from the non-performance of his obligations by the exec it or, I assess said sum, according to the above items, at $993,41, to the date of the judgment.”</p> <p>The written demands annexed to the report were three letters undressed by the widow to the executor under dates respectively of July 1869, August 30, 1870, and January 15,1871. In the first, she requested him to pay her twenty dollars “ agreeably to the will.” In the second, she requested him to pay her ten dollars agreeably to the will, and stated that she needed the money. In the third, she requested him to pay her ten dollars agreeably to the will, and gave him notice that she needed four or five cords of wood, cut and prepared for the stove, also twelve yards of cotton cloth, and ten yards of black alpaca cloth for a dress, with thread and silk to make it.</p> <p>The case was heard by the chief justice and reserved for the determination of the full court upon the questions reported by the assessor.</p>

<p>An Indictment will lie on the Gen. Sts. c. 161, § 54, for obtaining money as a charitable gift by false pretences.</p>

USDICTMBNT found at December term 1870 of the superior court, for keeping and maintaining a tenement in Springfield for the illegal sale and keeping of intoxicating liquors between June 1. 1870, and the day of the finding of the indictment.

<p>A person building a dam across a stream subject to extraordinary freshets is bound to construct it to resist such freshets, although they occur only once in several years and at no regular intervals.</p>

<p>Tort for setting and guarding a fire on the defendant’s land so negligently that it spread to the plaintiff’s land and burned his timber. ’</p> <p>At the trial in the superior court, before Rockwell, J., there was evidence tending to show that the defendant, for the purpose of destroying brush on his land, set fire to the brush within six feet of the plaintiff’s adjoining land, which was covered with brush; that very soon afterwards fire was discovered on the plaintiff’s land, some sixteen rods distant, and over the brow of a ridge of land some thirty or forty feet above the level where the defendant^ fire was set; that, if this fire on the plaintiff’s land was communicated from the defendant’s fire, it was done by means of cinders carried by the wind; that the ground was very dry; that there was a high wind blowing in the direction in which the place where fire was first discovered on the plaintiff’s land lay from the fire on the defendant’s land; and that afterwards the fire crossed from the defendant’s land directly upon the plaintiff’ land, and this fire united with the fire on the ridge.</p> <p>There was no evidence of negligence on the part of the defendant in guarding the fire after it was set.</p> <p>The defendant offered to prove by William Wells, a surveyor -and civil engineer of many years’ experience in clearing land by fire, who had observed the effect of wind on fires in different localities, had been upon the land where the defendant set his fire and made a plan of it, and was acquainted with the surrounding country, that there was no probability that a fire set under the circumstances in this case, as described by the witnesses, would be communicated to the plaintiff’s land; but the judge excluded the evidence. 1</p> <p>The defendant requested the judge to instruct the jury “ that if the fire caught on the plaintiff’s land, from the fire of the defendant, by being carried in the air over the ridge from ten to sixteen rods, unless they were satisfied that men of ordinary prudence would not set the fire for fear that it would be carried in the air over the ridge, then the plaintiff could not recover; that unless the defendant would reasonably apprehend that fire would be carried over the ridge, in the air, from the fire made by him, and set fire to the plaintiff’s wood, then the defendant was not guilty of negligence, if the fire was actually communicated in that manner, and the plaintiff could not recover; that unless they were satisfied that the fire actually caught-from the defendant’s fire, and also that he ought to have foreseen that it would probably be communicated in the way it was communicated, then their verdict must be for the defendant; and that even if it was careless for the defendant to set his fire on that occasion, yet if the fire was communicated by the defendant’s fire to the plaintiff’s property in a manner which men of ordinary prudence and care would not reasonably apprehend and anticipate, then the plaintiff could not recover.” But the judge refused to give these instructions in the form requested, and instructed the jury that “ to maintain his action the plaintiff must prove that the fire which occasioned the damage to his wood was communicated thereto from the fire which the defendant had set on his own land, and that the defendant in burning his brush did not use dire and reasonable care in setting the fire, and in said burning did not use due and reasonable care and diligence to control the fire, and prevent its escape and communication to the adjoining and surrounding lands ; and that the burden of proof upon both these propositions was upon the plaintiff.”</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

Tort for personal injuries occasioned to the plaintiff by hia being run over by a train of the defendants at a crossing of theil railroad and a highway.

<p>Tort for deceit in the sale of a horse. The answer denied deceit. At the trial in the superior court, before .Pitman, J., the defendant, in reply to the plaintiff’s case, testified that he purchased the horse of Oakes A. Dixon the day before he sold it to the plaintiff, and that all he knew of the horse was what Dixon told him. The defendant and two other witnesses were then allowed, against the plaintiff’s objection, to testify to the substance of the conversation between the defendant and Dixon at the time the defendant bought the horse, and at which the plaintiff was not present. Dixon was not called as a witness.</p> <p>The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

<p>A. conditional judgment for the full amount of a promissory note, rendered in a suit to foreclose a mortgage given to secure the note, is no bar to an action to recover back money had and received from the debtor by an attorney at law to be applied in part payment of the note, which he was then holding for collection, and on which he neglected to apply it.</p>

<p>In an action on a judgment recovered in another state in a suit for the use and occupation oí a house, the only issue to the jury was whether the defendant was served with process or appeared in said suit, and he was called as a witness. Held, that allowing him to testify that he was not a resident of said state, but was there as an officer of the army, and occupied the house as military quarters assigned to him by his superior officer, afforded no ground of exception.</p> <p>In a civil suit in another state the defendant was not served with process, and did not appear; but, having been proceeded against in the name of the state for contempt in resisting an attachment therein, he appeared by counsel in the proceedings for contempt. Held, that an action could not be maintained here on a judgment rendered against him in the suit.</p>

<p>A testator devised to his wife one third of his real estate during her life; authorized his executor to sell any or all of his real estate at such times and in such portions as r.e should judge most for the interest of those concerned; and if his wife should not desire j> occupy one third of his real estate, then he directed the executor to sell the whole of his real estate as soon as it should be deemed best, invest the proceeds, and pay over to her the income of one third thereof during her life. The wife occupied the real estate from the time of the testator’s death. Some years after his death, one undivided third of the real estate for her life was set off on an execution against her, and afterwards the executor sold the whole real estate under the power in the will. Held, that the execution creditor had no title in the land against the executor’s grantee.</p>

Bill in equity by the executors of the will of Thomas W. Wason.

<p>A testator, in his will, gave to his daughter “four hundred dollars-that she has now in her possession.” . At the date of the will, she had no properly of the testator in her possession, nor had she from that time to his death; but a short time before the date of the will he indorsed and gave to her a promissory note of her husband for that sum. Held, that she had no claim against the executor for a legacy.</p>

<p>In an action against an executor by the testator’s son-in-law for board furnished to the testator, to which the defence is that he was a visitor with the plaintiff, and that the plaintiff’s claim originated in disappointment at his wife’s receiving less property under the will than the testator’s other child, the defendant may introduce evidence of the amount of the testator’s property, for the purpose of showing that the plaintiff’s wife, who had a specific legacy, took less than the other child, who was residuary legatee.</p> <p>In an action against an executor by the testator’s son-in-law for board furnished to the testator, to which the defence was that he was a'visitor and not a boarder with the plaintiff, the plaintiff’s wife testified that the testator was “feeble, in poor health, lame, and of no great value for work.” Held, that, to contradict this testimony, evidence was admissible of her statement that “she and her husband wished her father to come and live with them, because it would save their hiring a man.”</p> <p>In an action against an executor for board furnished to his testator, the defendant testified that it was worth only a certain sum per week to board the testator. Held, that the plaintiff might prove that the defendant had paid a bill for the testator’s board for tho preceding year at a higher rate per week.</p>

<p>A written agreement, on which an action was brought, stipulated that the plaintiff should sell to the defendant “the farm now occupied by” the plaintiff and his father, for a certain price, to be paid at a future day specified, * ‘ no wood to be cut and removed from the premises save firewood for use in the house,” and that on payment of the price the plaintiff would make and deliver to the defendant a deed of “the fee simple of the said, premises.” The declaration alleged a tender of a deed “of the premises described in the agreement,” anda refusal by the defendant to pay the price. The answer denied such tender. At the trial, it appeared that the plaintiff tendered a deed, but that before the tender the buildings on the land were burned, whereby the estate was reduced in value from at least the contract price to less than two thirds of that price. Held, that the plaintiff could not recover.</p>

<p>A. B. conveyed to C. D. three adjacent lots of land for $1600; C. D. sold the middle lot to E. F. and afterwards conveyed to the plaintiff for $100 the eastern part of the third lot by deed describing the granted premises as bounded on the east by E. F.’s land and on the north and south by lines running to stakes and stones, “ meaning to convey to ” the plaintiff “ one half of all that I now own of land conveyed to me by A. B., said land to be surveyed and the bounds set.” The land was never surveyed, nor were bounds set. C. D. afterwards conveyed to the defendant the western part of the third lot by a war. ranty deed describing by metes and bounds the granted premises, which included more than half of the third lot. The plaintiff built and occupied a house on a part of the third H east of the land covered by the description in the deed to the defendant. MM, that the description of the premises conveyed to the plaintiff was so uncertain, that she could not maintain trespass for acts done by the defendant on any part of the land covered by the description in the deed to him.</p>

Bill in equity filed by the administrator of the estate of Lyman Whitman against Harvey Porter and fourteen others, to compel contribution… Held: run and managed ” according to terms of which the following are the material: The boat to be conveyed to one of the subscribers in trust; three officers and three trustees to be chosen annually, to have the entire management and control of the ferry, regulate the running thereof, and employ all the assistance necessary therefor;…

Contract against Joel Hayden, the Nonotuck Silk Company, Lewis Bodman and five others, on an agreement contained in two papers signed by them. The first was as follows : “ Williamsburg, January 26,1866. To J. E. Sheffield, Esquire, Committee of the Northampton & New Haven Railroad Company.

Contract on the following instrument, signed by the defendant and eleven others : “ Springfield, April 22, 1869. Provided the city will place granite curb-stone around the large trees on North Main Street, for the purpose of protecting them, we, the subscribers, hereby agree to pay to the city the cost of the curbstone so placed opposite our land on our side of the street.” Writ dated May 28, 1870.

Contract on an agreement made by the plaintiff with the county commissioners for the construction of two dikes in the town of West Springfield under the St. of 1868, c. 80. In the superior court the facts were agreed and judgment ordered thereon for the defendants; and the plaintiff appealed. The case is stated in the opinion.

<p>One who put his name on the back of a note, as guarantor before delivery, paid the amount of it to the payee, who indorsed and delivered it to him. Held, that he could declare on the note as indorsee, without alleging that he was guarantor.</p> <p>An allegation that a note is lost is supported by proof that it has been destroyed by fire.</p> <p>An action may be maintained against all the makers of a joint promissory note alleged to be lost, upon filing a sufficient bond of indemnity before judgment.</p> <p>One of two joint payees and indorsers of a dishonored promissory note paid half of the amount of it to the other payee, who took up the note, indorsed the payment upon it, and, in a suit upon it against the makers, recovered judgment against them for the balance. Held, that the first named payee could also maintain an action against them for the amount paid by him, as money paid to their use.</p>

Contract to recover damages for nonperformance of an oral agreement, by the terms of which the defendant was to deliver to the plaintiff 15,000 feet of ash bending-stuff, for the price of $34 per 1000 feet, and 15,000 feet of ash plank, for the price of $25 per 1000 feet, before July 1,1869. The answer set up the statute of frauds.

<p>Contract for money had and received. The bill of particulars filed with the declaration was as follows: “ William H. Lane to Isaac P. Dickinson, Dr. June 17, 1870. For cash paid by the plaintiff and received by the defendant for horse sold by the defendant to the plaintiff, with warranty, and returned by the plaintiff to the defendant for breach of warranty, $111,”</p> <p>At the trial in the superior court, before Rockwell, J., it appeared that the plaintiff purchased the horse, and returned it to the defendant on the day following the sale. There was conflicting evidence as to the warranty and the breach. The plaintiff introduced evidence tending to show that, after the return of the horse, the defendant asked 'him why he had returned the horse ; that he replied that the horse was unsound, and demanded the return of the money paid for it; and that the defendant promised to send the money to him next day, but failed to do so.</p> <p>The plaintiff requested the judge to instruct the jury “that even if there was no warranty, or if there was a warranty and no breach, yet if, after the plaintiff had returned the horse to the defendant and the defendant was notified by the plaintiff of the reasons, the defendant promised to repay him the money he had paid for the horse, then there was such a rescission of the contract that the plaintiff was entitled to recover the price paid for the horse.” But the judge declined so to instruct the jury, and ruled that, “ under the pleadings, the plaintiff could not recover unless the jury were satisfied that there was a warranty which was broken.” The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

<p>In an action by a real estate broker on an agreement to pay him a commission upon the sale of an estate, the plaintiff contended that he was to have the commission whether the sale was effected by him or not, and the defendant contended that- the plaintiff was to have the commission only in case the sale was effected by him. JIM, that the defendant could not introduce evidence that after the agreement with the plaintiff he promised another broker to pay him a commission to effect a sale.</p> <p>A written contract for the purchase of an estate, binding both vendor and purchaser, is a sale within the meaning of an agreement to pay a commission to a broker upon sale of the estate.</p>

Contract, brought January 11, 1870, on a promissory note for $2000, dated August 2, 1869, signed by the defendants, and payable to the plaintiff or order in four months from date. The declaration was in the usual form of an action by payee against maker.

<p>An action of tort may be maintained upon a count which alleges that the plaintiff was • manufacturer of shoes, and for the prosecution of his business it was necessary for him to employ many shoemakers; that the defendant, well knowing this, did unlawfully and without justifiable cause molest him in carrying on said business, with the unlawful purpose of preventing him from carrying it on, and wilfully induced many shoemakers who were in his employment, and others who were about to enter into it, to abandon it without his consent and against his will; and that thereby the plaintiff lost their services, and profits and advantages which he would have derived therefrom, and was put to great expense to procure other suitable workmen, and compelled to pay larger prices for work than he would have had to pay but for the said doings of the defendant, and otherwise injured in his business.</p> <p>An action of tort may be maintained upon a count which alleges that the plaintiff entered into contracts with certain shoemakers for them severally to make stock, which he delivered to them, into shoes, and return the shoes to his factory; that the defendant, well knowing this, with the unlawful purpose of preventing him from carrying on his business, inducts. 4jgo to return the stock unfinished to the factory, and to neglect ar i refuse to make it into shoes as they had agreed to do; and that the stock was theieby damaged, and the plaintiff pnt to tronble and expense in reasserting it and procuring il to be finished, and compelled to pay larger prices for the finishing of it than he would have done under said contracts, and by reason of the said unlawful doings of the defendant was hindered and put to expense and otherwise injured in his business.</p> <p>An action of tort may be maintained upon a count which alleges that a certain shoemaker was in the plaintiff’s service and employment on a specified day, and for a valuable consideration on that day agreed to make three cases of shoes for the plaintiff within one month; that the defendant, well knowing this, contriving to defraud the plaintiff of the profit and benefit of said service and of the performance of said contract, did on another day, specified as being before the expiration of the month, entice and procure the shoemaker, then being in the plaintiff’s service, and before he had performed said contract, as the defendant well knew, to leave the plaintiff’s service and refuse to perform the contract, without the plaintiff’s leave and against the plaintiff’s will, by means of which enticement the shoemaker on the last named day did leave said service and neglect and refuse to perform said contract, without the leave and against the will of the plaintiff; and that the plaintiff thereby lost profits and benefits which would otherwise have accrued to him from said service and by the performance of said contract.</p>

<p>One who knowingly delivered an apparently harmless package, containing a dangerous and explosive substance, to a common carrier for transportation, without giving him notice of its contents, is liable for damages caused by its explosion while the carrier was transporting it in ignorance of its contents and with care duly adapted to its apparent nature.</p> <p>Two substances, manufactured by different manufacturers, were dangerously explosive in combination with one another, and were ordinarily used together. A customs sent separate orders to the manufacturers for quantities of the respective substances to be forwarded to him by a certain common carrier; and directed one of them to make the substance which he was to furnish of greater explosive power than usual. The orders were fulfilled, and the substances delivered in apparently harmless packages to the carrier, by 'he manufacturers, each of whom acted independently of the other and was ignorant of the other’s proceedings: and no notice was given to the earner of the nature of the substances or either of them. He stowed them together in his vehicle; and while, he was transporting them with due care they exploded, and injured his property and property of others in his custody, and also property of a third person near which the vehicle was standing. The explosion was practically a single one, and it was impossible to distinguish how much of the damage was produced by either substance. Held, that the manufacturers, but not the customer, were jointly liable to the carrier and the third person respectively, in actions of tort for their injuries.</p> <p>In an action of tort for injuries occasioned to the plaintiff by the explosion in the vehicle of a common carrier of substances which the defendants had negligently delivered to him for transportation without notice of their dangerous nature, an allegation in thi writ, that the action is brought for the benefit of the carrier, raises no presumption thsi negligence of the carrier contributed to the plaintiff’s injuries, and may be rejected aa surplusage; and a description in the declaration of the injuries as consisting in the destruction of “ a certain building and other property of great value, belonging to the plaintiff ” and situated near where the vehicle was standing at the time of the explosion, is a sufficiently definite allegation of damage.</p>

<p>Bill in equity filed May 26, 1871, to compel the Norwich & Worcester Railroad Company, a corporation under the law of Massachusetts, to transport and deliver coal to the plaintiffs.</p> <p>The bill alleged that the plaintiffs were coal dealers in Worcester, and the defendants owned a railroad and were common carriers between that city and tide water at Norwich in Connecticut; that on March 28, 1871, the defendants agreed in writing with the plaintiffs “ that they would receive and carry coal for the plaintiffs for one year from April 1, 1871, from tide water to Worcester, to be delivered by them to the plaintiffs on the line of said railroad at the rate of $1.75 per ton, and to be delivered at stations on the line of the Worcester & Nashua Railroad, connecting with the defendants’ railroad at Worcester, at the rate of $1.25 per ton for its transportation over the defendants’ said road to Worcester, and also agreed to pay for all switching of the coal bo carried; ” that, relying on this agreement, the plaintiffs entered into many contracts to sell and deliver coal to their customers, and bought coal in New York and contracted for its transportation to the terminus of the defendants’ railroad at tide water in Norwich, and gave notice thereof to the defendants, and directed them to receive the coal upon its arrival at Norwich, and deliver it to the plaintiffs at Lincoln Square, a station on the line of the Worcester & Nashua Railroad ; that a portion of the coal had arrived at Norwich and been received by the defendants and carried to Worcester, and was in the possession of the defendants there; that another portion of it was in course of transportation by water from New York to the terminus of the railroad at Norwich ; and that the Worcester & Nashua Railroad Company were willing and ready to receive and transport said coal over their railroad to their said station at Lincoln Square; but that the defendants wrongfully pretended that they were not bound to transport said coal over their railroad to stations of the Worcester & Nashua Railroad in Worcester at the rate of $1.25 per ton, and insisted that they were entitled to charge and receive therefor $1.75 per ton; that the plaintiffs had offered and were ready and willing to pay them for such transportation at the lesser rate, and to give them a sufficient bond to pay the difference between that and the higher rate if the construction put upon the contract by them should be determined to be the true one, and had requested them to transport and deliver the coal accordingly, but the defendants had refused to do so; that the defendants refused ter deliver the coal which was in their possession at Worcester, and to receive and transport that which was to arrive at Norwich, unless the plaintiffs would first pay them the full rate of $1.75 per ton; that the plaintiffs, by reason of such refusal, would suffer injuries in their business, through inability to fulfil their contracts with their customers, for which they would have no adequate and complete remedy at law; and that of all this the defendants had notice, and by persisting in their said refusal were endeavoring to coerce the plaintiffs to pay said higher rate.</p> <p>The prayer was, for an injunction on the defendants “ to receive and transport said coal from tide water to said Lincoln Square station and there deliver all said coal to the plaintiffs, they hereby offering to pay therefor at the rate of $1.25 per ton and to give such bond as the court may order for the payment of fifty cents additional per ton in case it shall be finally determined that they are bound so to do; ” and for general relief.</p> <p>The bill was afterwards amended by alleging that the Norwich & Worcester Railroad had been leased to the Boston, Hartford <S> Erie Railroad Company, and that receivers of the property, franchises and effects of said company had been appointed by this court in Suffolk,. and were operating the leased railroad under the appointment; and by joining the receivers as defendants.</p> <p>At a hearing, before Gray, J., upon a motion for a preliminary injunction, the following facts appeared:</p> <p>On March 28, 1871, the defendants, by their superintendent, addressed a letter to the plaintiffs concerning the transportation of coal over the Norwich & Worcester Railroad. The material part thereof was as follows :</p> <p>“ The following will be the rates per gross ton on coal Norwich to Worcester from April 1.</p> <p>To Worcester..........$1.75</p> <p>“ “ for stations on B. & A. R. R..... 1.25</p> <p>“ “ “ “ “ W. & N. R. R.....1.25</p> <p>Except Nashua, Groton Junction, Clinton, Leominster and Fitch-burg, which will be........1.00</p> <p>The company will also pay switching."</p> <p>The plaintiffs bought 494 tons of coal in New York on March .10, 1871, and 572 tons during April. All this coal was to be shipped in sailing vessels from New York 'to Norwich, upon their order, and was so shipped, to the care of the defendants, in various quantities, on different schooners, at various times during the month of May, before the filing of this bill; and the plaintiffs directed the defendants “ to transport all of it over their railroad from Norwich to Worcester, and to deliver it to the plaintiffs at Lincoln Square, the terminal freight station of the Worcester & Nashua Railroad in Worcester.” Out of these 1066 tons of coal the plaintiffs had sold 390 tons to customers in Worcester, and 50 tons to a customer in Fitchburg, and intended to hold the rest for their general trade at their coal yards in Worcester.</p> <p>It further appeared “ that the Norwich & Worcester Railroad connected with the Worcester & Nashua Railroad at the Foster Street station in Worcester; that the defendants’ freight depot was located quarter of a mile south of the Foster Street station, and the only freight station and one of the two passenger stations in Worcester of the Worcester & Nashua Railroad were at Lincoln Square, three quarters of a mile north of the Foster Street station; that the plaintiffs owned a coal yard in Worcester, on a branch track of the Worcester & Nashua Railroad leading from their main line at a point between Foster Street station and Lin - coin Square to the track of the Boston & Albany Railroad, another coal yard on the line of the Boston & Albany Railroad between Foster Street station and Washington Square, and another coal yard on the line of the Norwich & Worcester Railroad, about half a mile south of their said freight station; and tha: the Norwich & Worcester Railroad Company had, under their former contracts with the plaintiffs, been accustomed to switch the cars containing the plaintiffs’ coal, transported over their railroad, to the plaintiffs’ coal yards in Worcester, when to be disposed of there, and to the premises of parties on the line of the defendants’ road, to whom the plaintiffs had sold the coal on the cars, without additional charge therefor.”</p> <p>At the time of the filing of this bill, the defendants had received at Norwich 817 of the 1066 tons of coal, and transported it to Worcester; and it was lying there in their cars on their freight ground. The other 249 tons were on board of two schooners, which had arrived from New York at the defendants’ wharves in Norwich ; the defendants had refused to receive it and transport it to Worcester and deliver it to the plaintiffs at Lincoln Square at a less rate than $1.75 per ton, if it was to be used in Worcester; and the plaintiffs had offered to pay them at the rate of $1.25, and to give them a bond to pay 50 cents more per ton if the court should determine that it was due.</p> <p>Besides the 1066 tons of coal above referred to, the defendants, during the month of May 1871, before the filing of this bill, received at Norwich three cargoes of coal from New York, belonging to the plaintiffs, and amounting to 679 tons; transported it to Worcester; and delivered it to the plaintiffs at Lincoln Square by the plaintiffs’ direction. The plaintiffs had offered to pay freight on it at the rate of $1.25 per ton; and the defendants had declined to receive the payment, and demanded $1.75 per ton. Concerning one of these three cargoes the. plaintiffs addressed a letter to the defendants’ superintendent on May 1, of which the following is all but the formal part: “We were somewhat surprised to receive a letter from Mr. Parker on Saturday, in which he says that his instructions are to bill cargo coal per schooner Bentley to Worcester, and that Mr. Turner will set it over for ns to where we want it. Now all we wish is that the cargo of coal per schooner Bentley be forwarded to Lincoln Square station, care of the Worcester & Nashua Railroad, at which place we shall receive the coal. Hoping this will be a sufficient explanation, we remain,” &c. To this letter the superintendent replied on the same day, acknowledging its receipt and continuing as follows: “In reply I will say that, after we deliver the cargo of the schooner Bentley in Worcester, it can be taken to any place in Worcester, designated by you, which is reached by rail, either by our people if they get permission from the other roads, or by the agents of the Boston & Albany or Worcester & Nashua Roads. This idea of billing to Lincoln Square is simply a subterfuge, which I perfectly understand, and I here amend my letter of March 28 to read 1 To Worcester for stations on the Boston & Albany and Worcester & Nashua Roads beyond Worcester.’ ”</p> <p>The plaintiffs stated at the hearing, “ that they were bound by the terms of the paper of March 28 to pay for the carriage of the coal from the defendants’ freight depot in Worcester to the Lincoln Square station of the Worcester & Nashua Railroad.” And the judge, by consent of the parties, reserved for the determina- . tian of the full court the question “ whether the freight upon the coal ordered to be delivered at the Lincoln Square station should be $1.75 per ton or $1.25 per ton.”</p>

Tort. Writ dated May 27, 1870. The declaration contained two counts. The first was for the conversion of a horse belonging to the plaintiff to the defendant’s use.

<p>The owner of a lot of land adjoining a highway sold and conveyed part of it, excepting and reserving, without any words of inheritance, a right of way extending from the highway along the line of division between the part sold and the rest of the land, for a distance less than the whole depth of the lot. Held, that the right was appurtenant to the rest of the land, whether or not it was limited to the grantor’s life.</p>

<p>A. conveyed to B. a lot of land, and a building which stood more than twelve feet wide on the southwest corner thereof and extended a few feet over adjoining land of A. The deed provided that the building should so remain till removed by their mutual consent; and reserved to A. “a right of way of twelve feet in width on the southerly line of the lot.” But A. had full access otherwise to his adjoining land, and there was no othe land belonging to him, nor any public road, to which the way reserved would afford access. Held, that it did not extend under the building.</p>

Tort for the conversion of 4000 feet of chestnut lumber valued at $25. The case was submitted to the judgment of the superior court, and, on appeal, of this court, upon the following facts: On April 22, 1865, John Hill, then owning a farm of one hundred acres in Charlton, conveyed it to his two sons, John Hill, Jr., and the plaintiff, and they held it in common and undivided until May 5,1865, when they divided it between them by mutual daeds of release and quitclaim.

Contract for expenses incurred for the support of the minor children of Calvin Carter as paupers, whose settlement was alleged to be in Petersham.