Volume 108 — Massachusetts Reports

<p>An indictment on the Gen. Sts. <?. 161, § 12, for breaking and entering a building with intent to commit a felony, cannot be maintained without an averment of the ownership of the building.</p>

Complaint to the municipal court of the city of Worcester, March 3, 1870, that on January 20,1870, and divers other days and times between that day and the first named date, the defendant kept and maintained at Webster a tenement, there situate, then and there used for the illegal sale and illegal keeping of intoxicating liquor, and being a common nuisance.

<p>A railroad corporation, in consideration of the payment to them, by a person, of a certain sum of money per year in quarterly instalments, and of his agreement to supply the passengers on one of their trains with iced water, issued season tickets to him quarterly for his passage on any of their regular trains, and permitted him to sell popped com on all their trains. Held, that his relation to them, while travelling upon the railroad under this contract, was that of a passenger and not of a servant.</p> <p>At the trial of an indictment of a railroad corporation on the Gen. Sts. c. 63, § 97, for causing the death of a passenger by gross negligence of their servants, all the facts were agreed, and it appeared upon the statement of them that the passenger was killed in a collision of a train with a hand-car, which the track-master suffered to be on the track through a mistake in time, occasioned by his failure to observe correctly the hour indi* coted by his watch. Held, that the defendants had no ground of exception to the refusal of a request for a ruling that there was no evidence of negligence, and to the submission of that question to the jury.</p> <p>A memorandum indorsed on a season ticket issued by a railroad corporation, that “ the corporation assumes no liability for any personal injury received while in a train to any season ticket holder,” is no defence to an indictment of the corporation on the Gen. Sts. c. 63, § 97, for causing the death of the ticket-holder by gross negligence of their servants while he was a passenger in a train upon the railroad.</p>

Indictment on the Gen. Sts. c. 161, § 61, averring that the defendant, at Uorthborough, mortgaged certain personal property to Nathaniel H. Clark on July 9, 1869, and on April 6, 1870, the mortgage being in full force and Clark being its owner and holder, “did then and there wilfully, knowingly and fraudulently remove and conceal, and aid and abet in removing and concealing, said mortgaged personal property, with a fraudulent intent then and there to place the same beyond…

Indictment on the Gen. Sts. In the superior court, before the jury were empanelled, Dewey, J., overruled a motion of the defendant to quash the indictment “ because the words set out therein as having been spoken by the defendant do not of themselves amount to a threat to accuse one of a crime, or a threat to take preliminary steps or means necessary to cause a person to be proceeded against for a criminal offence.” At the trial, there was evidence tending to show that…

<p>Vo sustain a complaint on the St. of 1866, c. 235, §§ 1, 3, that continually for forty days next preceding its date a girl was an idle person, without visible means of support, and living without lawful employment, there was evidence, at the trial, that for more than a year she had been an inmate of a bawdy-house, and within the forty days had several! times been seen there doing nothing, and also been seen walking on the street with other girls from the house; that she said she came from Canada and had no relatives here; that a policeman who had known her for a year and a half did not know that she had any employment or what were her means of support; and that she concealed herself to avoid arrest. Held, that she had no ground of exception to the refusal of a ruling that there was no evidence for the jury.</p>

Complaint on the St. of 1869, c. 415, § 44, to the municipal court of the city of Worcester October 13, 1870, that on said day certain intoxicating liquors, particularly described, “were, and still are kept and deposited by Michael Driscoll, of said Worcester, in a certain store, there situate, and the cellar under the same, on the westerly side of Spring Street, and in the same building occupied by said Driscoll as a dwelling-house, said dwelling-house being numbered…

Indictment on the Gen. Sts. c. 87, §§ 6, 7, for keeping and maintaining at the city of Worcester on September 1, 1870, and divers other days and times between that day and October 15, 1870, a tenement used for the illegal sale and illegal keeping of intoxicating liquor.

<p>The offence of keeping a common nuisance within the Gen. Sts. c. 87, §§ 6, 7, is local in its nature, and the proof of the city or town in which it is committed must correspond with the averment in the complaint or indictment.</p>

<p>An indictment on the Gen. Sts. c. 87, §§ 6, 7, for keeping a tenement used for the illegal sale and illegal keeping of intoxicating liquor, need not particularly describe the kind of intoxicating liquor, or negative authority to sell or keep it; and is supported by proof of keeping a tenement used for the sale or keeping of any intoxicating liquor, the sale or keeping of which is prohibited by the statutes in force at the time of the offence.</p> <p>The legislature may authorize a town to determine by vote of the inhabitants, or a city by vote of the city council, whether the sale of particular kinds of liquors within its limits shall be permitted or prohibited.</p> <p>An averment in an indictment, that the offence was committed “at Worcester in the county of Worcester” sufficiently designates the city of Worcester as the place of its commission.</p>

<p>A clause that nothing contained in a statute shall affect “ any penalty or forfeiture already incurred under the provisions of any law in force prior to the passage of this act ” saves from the operation of the statute any penalty incurred before it took eáect, although after it was approved by the governor.</p> <p>A complaint for keeping intoxicating liquor with intent to sell it in violation of the St. of 1869, c. 415, § 31, on a day between the date when the St. of 1870, c. 389, was approv ed by the governor and the date when it took effect, is within the saving clause of § 8. of this statute, although made after the last named date.</p> <p>The provisions cf the Gen. Sts. c. 87, concerning liquor nuisances, were not repealed by the St. of 1870, c. 389.</p>

<p>Contbact. Writ dated July 11, 1866. The declaration alleged that the defendants entered into a recognizance to the Commonwealth, a copy of which was annexed to and made part of the declaration; that the defendant Samuel Cheney, named therein, made default, and a record thereof was duly certified to the superior court; and that the defendants had become severally indebted to the Commonwealth in the amount of the recognizance.</p> <p>The copy annexed purported to be a copy of a memorandum of an oral recognizance entered into by the defendant Samuel Cheney as principal and the other defendants as sureties, in the sum of $10,000, on December 20,1865, before the police court of Milford, held that day by Abraham Mead, special justice thereof, in the absence of the standing justice, conditioned that the said Samuel, then under arrest on a warrant issued upon a complaint against him for committing the crime of “ arson ” at Milford on July 5, 1865, and having pleaded that thereof he was not guilty, should personally appear before said police court on December 30, 1865, to answer further to said complaint, &c.</p> <p>A copy of the complaint and warrant in the criminal proceeding against Samuel Cheney was transmitted by the police court of Milford to the superior court at January term 1866, and ever since remained there, with a memorandum of the recognizance, like that thus declared on, “ which was not a correct copy of the recognizance and record.” But neither the dockets of the superior court, nor the memorandum of the recognizance itself, exhibited any record or minute of the filing of the recognizance.</p> <p>At August term 1866, after the return of the writ in this action, the special justice of the police court filed a petition “ for leave to correct an error made by himself in reducing the recognizance to writing, and to place on file the recognizance as corrected; ” and annexed to the petition the corrected memorandum of the recognizance, wherein the crime with which Sam uel Cheney was alleged to have been charged in the complaint was “ wilfully burning a shop ; ” and at the same term the-attarney for the Commonwealth moved for leave “ to annex to ” his declaration “ a correct copy of the recognizance taken in the original proceedings.” The petition and the motion were both allowed by the superior court, without the knowledge or consent of the defendants; and the attorney for the Commonwealth annexed a corrected copy of the recognizance to the declaration by attaching it to the copy originally declared on.</p> <p>At October term 1866 the defendants demurred to the declaration, and specified, among their causes of demurrer, that it did not appear by any allegation therein that there was any record of any such recognizance before the police court as was declared on, or “ that a certified copy of said recognizance was ever returned to this court by and from the said police court, and entered in this court,” or “ that there is any record of any such recognizance in this court; ” and further, that it appeared by the copy of the recognizance, annexed to the declaration, that the police court had no right or authority to take it.</p> <p>There was no joinder in demurrer, but at January term 1867 the attorney for the Commonwealth moved for leave to amend Ms declaration; the motion was allowed without the knowledge or consent of the defendants; and the declaration as amended read as follows : “ That, in pursuance of an order of the police court of Milford in the county of Worcester, the defendants, on December 20, 1865, entered into a recognizance to the Commonwealth, before said police court, a copy of which is hereto annexed and made a part of this declaration; that the condition of said recognizance was that the said Samuel Cheney should personally appear before said police court ” on that day, “ then and there to answer further to the complaint against him, pending in said police court, for wilfully burning a shop in said Milford, and should do and receive that which the said police court should enjoin upon him, and not depart without license, then the said recognizance to be void, otherwise to be and abide in full force, power and virtue; ” that at the police court on said December 30 he “ was duly called to appear, according to the tenor of said recognizance, but did not appear,.but made default;” and his sureties were duly called to produce him, but failed so to do, and made default, “ a record of which default of said defendants was duly made in said police court; that the said police court duly certified the said recognizance, with the records of the default of the said defendants to the superior court, and the same was duly entered of record in said superior court, with the exemplification of the records of the said police court; and that all these proceedings appear by the records of said several courts, and are now here in tMs court to be produced; whereupon an action hath accrued to the Commonwealth to recover of the defendants the said sum of §10,000, and the defendants have become severally liable to pay the same, and owe the same to the Commonwealth.”</p> <p>The defendants were ordered to answer the amended declaration ; and did so in December 1869, reserving and insisting upon all their rights under their demurrer, denying each and every allegation of the amended declaration, and alleging that the action was prematurely brought, that at the time when it was begun no right of action against them had accrued to the Commonwealth, and that the amendments of the declaration gave the Commonwealth no such right.</p> <p>At the trial, at October term 1870, before Brigham, C. J., without a jury, the foregoing facts were made to appear, and it was proved that Samuel Cheney did not appear before the police court of Milford on December 30, 1865, in pursuance of his recognizance, and he and the other defendants, his sureties, were defaulted thereon. The judge ruled and found, on these facts, that the Commonwealth was entitled to recover; and the defendants alleged exceptions.</p>

<p>When parties divorced from bed and board before the St. of 1870, c. 404, have lived apart for five consecutive years as provided in § 3, the divorce may be decreed absolute as a divorce from the bond of matrimony, upon the petition of either of them.</p>

Appeal by children of Amity S. Atwood from a decree of the judge of probate refusing a petition of John B. Pratt, as administrator of the estate of Eliza B. Jourdan, for an order of distribution of said estate among the appellants as next of kin of the deceased. The case was reserved by Gray, J., for the judgment of the full court upon the following facts: Betsey Baird in 1791 became mother of an illegitimate child by John Lamb.

<p>Contract, submitted on agreed facts to the determination of the superior court, which ordered judgment for the plaintiff, and the defendant appealed. The case is stated in the opinion.</p>

Contract on an account annexed for articles of household furniture sold and delivered to a spendthrift under guardianship.

<p>Writ of ENTRY, dated September 29, 1869, to recover real estate in the city of Worcester. Trial in the superior court, before Dewey, J., who reported the following case for the consideration of tliis court; if the demandant was entitled to recover, mdgment to be entered for him, otherwise for the tenant.</p> <p>On July 6, 1866, Walter R. Bigelow conveyed the demanded premises to Richard Curtis., the tenant’s husband, for an agreed price of $2800. Both the tenant and her husband were present, and took part in the negotiation with Bigelow which resulted in the conveyance; and payment of the price was made or secured as follows: A loan of $870 was obtained from a savings bank, and a first mortgage of the premises given to secure it. The $870, and $130 of the tenant’s own money were paid to Bigelow; xnd he took a second mortgage of the premises to secure payment of the remaining $1800. The mortgages were signed by the husband as grantor, and by the tenant with her mark in token of her release of dower. The tenant could neither read nor write, and supposed that the conveyance of the premises had been made to herself.</p> <p>Before the tenant’s marriage, which occurred in 1865, she kept a boarding-house, and the purchase of the demanded premises from Bigelow was made for the purpose of enabling her to resume that business, for which she owned the necessary furniture. She engaged again in the business, upon the premises, but never filed in the city clerk’s office the certificate required by the St. of 1862, c. 198. The question whether the business was carried on upon her sole and separate account was specially submitted to the jury, who found that it was so. From the receipts of this business a large part of the $1800 due to Bigelow was paid before January 25, 1868, on which day the tenant’s husband conveyed the premises to Horace B. Verry and Verry conveyed them to the tenant, no consideration passing for either conveyance. A short time before January 25,1868, the tenant’s husband had absented himself for several weeks, taking with him some money belonging to her, which she had intrusted to him to pay some bills. During his absence she had learned for the first time that the title to the premises was in his name; and accordingly, on his return, she requested that he would transfer it to her, and the conveyance was made through Verry in pursuance of the request.</p> <p>At the time of this conveyance, the tenant’s husband was in debt to one William A. Williams, an attorney at law, and to others. There was no evidence at the trial, that he had any other property than such as he might have in the demanded premises; and the evidence tended to show that he was insolvent.</p> <p>Williams brought suit against the tenant’s husband July 16,1868, upon his debt; recovered judgment July 25, and took out execution thereon August 1, upon which the judgment debtor’s equity of redeeming the demanded premises from the mortgages was seized and sold to the demandant on October 3, all in the year 1868.</p> <p>The question whether the conveyance of the premises by the tenant’s husband, through Verry, to her, was fraudulent agaii sfc his creditors, was specially submitted to the jury, and answered in the negative. But the demandant contended that on the foregoing evidence it was void against the husband’s previous creditors, as being voluntary and without consideration.</p>

Conteaot on an account annexed for board furnished by the plaintiff to Waldo Adams, the defendant’s testator. The answer alleged payment, and set up the statute of limitations.

Tort for the conversion of chattels alleged to be property of the plaintiff and described in a schedule annexed to the declaration as follows: “ Meat tools and fixtures in room. One pair of platform scales. One hog rack. One salt chest. Threti lamps. Three pails. One meat frame and hooks. One block. Two benches. Two boxes for sausages. One sausage cutter and filler. Two boxes. One stove and kettle. One lard press and cooler. One pair of ice tongs. One pair of ice blocks.

<p>Contract for breach of the defendant’s oral agreement to buy the stock of the plaintiff’s livery stable in Milford for $2500. The answer, among other defences, set up the statute of frauds. At the trial in the superior court, Dewey, J., upon special findings of the jury relating to this defence, directed a verdict for the defendant, and reported for the revision of this court the case which is stated in the opinion. .</p>

<p>An insurance company insured a building against risk of fire, as a machine shop, upon a representation, made without the knowledge or authority of its owner, by a person who applied for the policy in the owner’s name, that it was so occupied. It was in fact occupied as an organ factory, without the knowledge or consent of the insurers, ix& with the knowledge and consent of the owner; and the risk on an organ factory was greater than on a machine shop. The owner accepted the policy, expressed to be on a machine shop, and paid the premium; and the building was destroyed by fire during the term of the policy, and without any change in the nature of the occupation. Held, in an action brought to recover for the loss, that the policy was void, for the minds of the parties never met on the subject matter of the contract.</p>

<p>Petition to the county commissioners, in March 1870, for the assessment by a jury of the damages of an abutter on Corbett Street, a public way in the city of Worcester, by reason of the widening and alteration of the street under an order passed by them June 23, 1869, upon the petition of John J. Power and others.</p> <p>The sheriff’s certificate of the proceedings at the trial set forth that “ in said trial, notwithstanding the objections of the counsel for the respondents, I directed the jury that the statute known a¿ the betterment act (which had been accepted by the city council of Worcester) limited their inquiries and determination to the question of the- amount of land taken for said way, its value, ana the damage done thereby to said complainant’s estate, and that the benefits, if there were any, to said estate, from the location and construction of the said way, might be liable to be determined in another form and by another body.”</p> <p>The sheriff also certified to the superior court, with the verdict of the jury, a bill of exceptions alleged by the respondents to his rulings at the trial; and the following is the substance of the material parts thereof:</p> <p>It appeared at the trial “ that Main Street was a county road running north and south through the city of Worcester, ;.nd Corbett Street was'a city street or town way 37 feet wide, which entered Main Street at right angles and extended westerly to High Street; that at the point where Corbett Street entered Main Street the grade of a portion of the west side of Main Street was twelve feet above the grade of the travelled part of the street; and that a driveway, partly within the limits of the street and partly upon lands of the abutters, extended in a north and south direction from Corbett Street, on a descending grade each way, until the level of the travelled part of Main Street was reached. The portion of Main Street above referred to was between Pleasant Street and Austin Street, both which streets extended westerly from Main Street. The complainant was the owner of an estate abutting 164 feet on the westerly side of Main Street and 182 feet on the northerly side of Corbett Street, a portion of which was taken for widening Corbett Street, and the surface of the lot corresponded with the grade of the elevated portion of Main Street and of Corbett Street.”</p> <p>It also appeared that in October 1867 William W. Rice and others petitioned the city council “ to establish the grade of that portion of Main Street lying between Pleasant Street and Austin Street; ” that in April 1868 a joint committee of that body reported thereon a recommendation “ that the elevated portion of Main Street above referred to should be cut down to correspond with the grade of the rest of the street, and Corbett Street should be regraded, commencing at a point opposite the west line of the complainant’s estate, at the surface of the street, and terminating at the new grade on Main Street; ” that on December 30,1868, the county commissioners, upon petition of the mayor and aider-men, passed an order widening Main Street between Pleasant and Austin Streets, and reducing the grade of its elevated portion to the level of the rest of the street; that a strip of the complainant’s land on Main Street, varying in width from 11 feet to 5^ feet was thereby taken ; and that no claim for damages was made by any of the persons interested in these changes.</p> <p>It further appeared that on March 30, 1868, Calvin Taft and others presented a petition to the mayor and aldermen, whic" first referred to the previous petition of William W. Rice ana others, and then set forth that, whereas it seemed that said changes in Main Street would render necessary certain changes in Corbett Street, therefore the petitioners “ask that you will straighten, alter, widen and grade Corbett Street from its eastern to its western terminus as to you shall seem best; ” that several hearings were had by the mayor and aldermen on this petition, but no action was taken by them thereon; that on August 23, 1868, upon a petition of Edwin Morse and others, presented May 25, 1868, the mayor and aldermen passed an order for increasing the width of Corbett Street to 40 feet by taking a strip of land three feet wide from the estate of the complainant, and for adapting the grade of the street to the change in the grade of Main Street, but the common council refused to concur in this order; that afterwards, upon the petition of John J. Rower and others, the county commissioners passed their order of June 23, 1869, increasing the width of Corbett Street to 45 feet by taking a strip of land eight feet wide from the estate of the complainant abutting on that street, changing the grade of Corbett Street by lowering it gradually from High Street to the level of the changed grade of the formerly elevated portion of Main Street at its junction therewith, and directing the city of Worcester to construct and complete Corbett Street, in pursuance of this order, on or before January 1, 1870 ; and that the city complied with the direction. x</p> <p>The respondents offered in evidence the following instrument, signed and sealed under date of April 27, 1868, by the complainant and Elizabeth C. Rice, who was the owner of the estate on the south side of Corbett Street, opposite the estate of the complainant :</p> <p>“We, the undersigned, owners of real estate on Main and Corbett Streets in the city of Worcester, hereby covenant and agree that we will make no claim for damages to our respective estates on said streets, against either the city of Worcester or the county of Worcester, occasioned by the grading, altering, widen* ing or otherwise changing of Main Street, between Pleasant and Austin Streets, in accordance with a plan prepared by the city engineer and now before the city government of Worcester, on petition of William W. Rice and others and Calvin Taft and others ; and we further covenant and agree that we will make no claim for damages to said estates on account of any grading which shall be done to Corbett Street in order to make said Corbett Street correspond with Main Street after the alterations aforesaid, and rendered necessary or desirable thereby. This agreement extends to any damage which may be occasioned by the action of the board of county commissioners, as well as by the city government of Worcester, so long as the changes made are substantially in accordance with the plan aforesaid.” This instrument was excluded, on the objection of the complainant; and he was permitted to testify, against the respondents’ objection, “ that, when he signed the release, the city authorities orally proposed to him to grade Corbett Street, commencing at the surface at his west line, and terminating at the lower grade of Main Street, and within the old limits of Corbett Street, and that he then had no knowledge of any other plan for the alteration or grading of Corbett Street.”</p> <p>It further appeared that “ the complainant’s dwelling-house, which stood upon his lot, was 52£ feet from Corbett Street and 39/o feet from Main Street; ” and, against the objection of the respondents, the complainant was permitted to testify “ that he made a contract with Hezekiah Babcock, whose business was to move buildings, to move the dwelling-house from its former- site to the rear of the lot, and Babcock moved back the house, and the complainant paid him therefor $1400;” and to introduce evidence “.that this removal was rendered necessary by the change of grade in Corbett Street,” and also “ that he had expended $700 in putting in the foundations of the house on the new site, that it would require the removal of 5590 cubic yards of earth to lower the grade of the lot to correspond with the new grade of Corbett Street, that only a part of this excavation had been done, and it had and would cost at the rate of 45 cents a cubic yard to remove the earth, and that it would cost $800 to construct a bank wall on Ms west line, when the grade of the lot was lowered, the lowering of the grade rendering the wall necessary.”</p> <p>It also appeared that the city council, on March 30, 1868, duly accepted the St. of 1868, c. 75, and on April 25, 1870, "lie St. of 1870, c. 163. The respondents offered to prove “ that the portion of the complainant’s estate wMch was not taken for widening Corbett Street had derived certain peculiar and direct benefits from the widening and grading of said street, which were not received in common with other owners of real estate in that vicinity; that by said changes it was rendered more accessible, and could be more advantageously used for business purposes; and that said estate was thereby greatly increased in value,” and they requested the sheriff to instruct the jury “ that, in estimating the damages to that portion of the complainant’s estate not taken, such benefits should be deducted, as well as from the value of the land taken.” But the sheriff refused to permit the respondents to introduce evidence to prove such benefits, and to rule as requested, and instructed the jury “that they should make no deductions, on account of any benefits, from the damages sustained by the complainant.”</p> <p>In the superior court, the complainant moved for the acceptance of the verdict; the respondents opposed the motion; and Dewey, J., by consent of the parties, reported to this court the questions of law arising upon the sheriff’s certificate, — the verdict to be set aside, or judgment to be entered thereon, according to their determination.</p>

<p>The proceedings oí county commissioners in laying out a road as a public highway cannot be reviewed by this court on the ground that the road is wholly within one town, leads from one town way to another, and does not form a link in any line of county road.</p>

<p>A. conveyed to B. a parcel of land with the right of access to it “over other land of the grantor as heretofore used.” A. had other land adjacent to the granted premises, but no way over it to the granted premises was actually used. Afterwards, C., who owned land adjoining another part of .the granted premises, released fe B. all his right in the premises conveyed by A.’s deed to B., together with all the rights “by said deed conveyed and granted.” Held, that C.’s deed passed no right of way over his own land, in the absence of evidence that any such way was used before A.’s deed to B.</p>

<p>Tort for breaking and entering the plaintiff’s close in South-bridge and taking clay and sand therefrom. Writ dated October 27,1870. The defendant justified under a contract between him and the plaintiff.</p> <p>At the trial in the superior court, before Dewey, J., it appeared that, between November 1, 1868, and the date of the writ, the defendant at different times entered a certain part of the plaintiff’s land and took clay and sand therefrom. The contract under which the defendant justified was put in evidence, and it appeared thereby that the defendant was authorized to enter upon a certain limited part of the close and take clay and sand from it.</p> <p>It also appeared that the plaintiff sued the defendant on October 19, 1868, in an action of tort for breaking and entering his said close and taking clay and sand therefrom ; that the defendant justified under the said contract; and that the case was referred by a rule of court to arbitrators, who found by their award that the place where the trespass was committed was not within the limits contemplated by the contract, and went on to define what in their judgment those limits were.</p> <p>It further appeared that the place where the former trespass was committed was totally distinct from that in which the alleged trespasses, which were the subject of the present action, were committed; and that these latter were committed in a place which was outside the limits declared by the arbitrators to be the limits fixed by the contract.</p> <p>Upon this evidence the plaintiff contended that he was entitled to a verdict. The defendant contended that he had a right to 1 prove that the place where the acts alleged in this action to be trespasses were committed was within the limits fixed by the contract. The judge, at the request of the parties, reported the case for the determination of this court; if the evidence offered by the defendant was material and competent, the case to stand for trial; if the evidence offered by the defendant was incompetent, and the plaintiff was entitled to recover, then judgment to be entered for the plaintiff, and an assessor appointed to assess the damages.</p>

Contract on a recognizance entered into by John Berth as principal and the other defendants as sureties on an appeal from the judgment of a justice of the peace in favor of the plaintiff in proceedings against Berth under the Gen. Sts. c. 137, to recover possession of a house and land in Blaekstone.

<p>A mortgage on' machinery in a building was given in contemplation of the machinery being annexed to the realty; and after it was annexed, a mortgage was given on the . land and building. Held, that the second mortgagee could hold the machinery against the first mortgagee.</p> <p>A mortgage of a building used as a machine shop covers polishing frames, machines, pulleys and shafting, bolted or screwed to the floor or timbers of the building, although they can be removed without substantial injury to the building; also a machine bolted to blocks which are bolted to the floor; and also wheels belonging to the polishing machine, although they can be detached therefrom without injury. But it does not cover machines which are not fastened to the floor, but are supported ny their own weight, nor machines which are fastened to benches, although such machines are run from the shafting; nor vises screwed to benches, although the benches are attached to the building by nails.</p>

Contract by the assignee in bankruptcy of Jeremiah Swazey and Jasper Rawson, partners under the style of Swazey & Raw-son, against Priestly Young and Abba L. Young, his wife, for the rent of a shop in Worcester.

Tort for breaking and entering the plaintiff’s close in Mill-bury.

Contract for work done and materials furnished in cultivating the land of Harvlin Towne, the defendant’s testator. Trial in the superior court, before Scudder, J., who, before verdict, by consent of the parties, made a report of the case, of which the material parts were as follows : “ The plaintiff testified that the work was done and the materials nsed by him upon the land of Towne under Towne’s general direction.

<p>Contract for money had and received. The bill of particulars was for a balance of cash “ received of Smith & Wilson by the defendant for land s,old by the plaintiff to them, called the Davis wood-lot, held by the defendant for the plaintiff as security for debt.”</p> <p>At the trial in the superior court, before Brigham, C. J., the plaintiff testified “that he ascertained that he could purchase the wood-lot in question upon favorable terms, but not having the money to pay for it he applied to the defendant for a loan of $1500 ; that the defendant consented to make the loan, provided the plaintiff would pay the same rate of interest that the defendant was then receiving for his money, which was invested in government bonds, and also pay the defendant for his time, trouble and risk; and that the defendant agreed to take a deed of the wood-lot directly to himself, as security for the loan until the same was.repaid.” The defendant testified that “ he agreed to make the loan upon the terms named, except as to the security and that the security was to be by way of mortgage on two other lots of land in which the plaintiff claimed an interest, and s mortgage on the wood-lot itself after it had been deeded to the plaintiff; but that it was found that the plaintiff could not give the promised security, and therefore the defendant said he would take a deed of the wood-lot and pay for it himself, and when the plaintiff would furnish him satisfactory security, he would convey to him for the amount he (the defendant) paid for it, with the above stipulated interest, &c.; and that he did pay for the wood-lot and took a deed of it.”</p> <p>It appeared “ that the plaintiff, some five or six months after the purchase of the lot as aforesaid, found an opportunity to sell it for the sum of $2500, being an advance of $1000 upon what was paid for it; that he called on the defendant and informed him of the offer he had had for the lot, or that he had bargained the lot for the $2500, and asked the defendant to convey the lot to the party who had offered the $2500; that the defendant said that if he made the conveyance he should claim one half of the profits; that to this the plaintiff made no reply; that the deed from the defendant to the purchasers was made; that the purchasers paid the plaintiff $500, for which he gave them his receipt and went away, and the purchasers paid the defendant the $2000, which he retained; that several days afterwards the plaintiff claimed of the defendant the balance of the $2000 after deducting the $1500 and interest, &c., and the defendant refused to pay over the balance or any part of it, and thereupon the plaintiff commenced this action to recover that amount; and that the plaintiff did not at any t’.me give the defendant a note or any other written contract to pay the $1500 and interest, (which was eight per cent.,) nor had the defendant at any time any other security for the loan except the deed of the wood-lot.” There was other evidence in the case, more or less conflicting, as to the original agreement for the loan, and as to what took place at the time the deed of the wood-lot to the defendant was written and delivered, part tending to confirm the testimony of the plaintiff and part tending to confirm that of the defendant.</p> <p>Upon this evidence the defendant asked the judge to rule that “ this action for money nod and received cannot be maintained to recover money received by the defendant for land of which he held an absolute deed, in which no trust is declared, but which the plaintiff claims upon a resulting trust; that the question as to whether the land was held by the defendant upon a secret or resulting trust for the plaintiff cannot be inquired into in this case, and under the plaintiff’s declaration and bill of particulars ; and that the plaintiff, having given no note nor entered into any written contract by which he was legally bound to pay the defendant the $1500 and the eight per cent, interest, cannot rightfully claim that the defendant shall fulfil his part of the contract out of which he alleges that the resulting trust arose.” He also requested the judge to instruct the jury that “ the evidence in this case tending to impeach or contradict the express terms of the deed to the defendant, mating it a trust deed instead of a deed absolute, should be received by them with great caution.” All these rulings and instructions the judge refused to give, but instructed the jury as follows :</p> <p>“ If the plaintiff or the defendant purchased the wood-lot in question, and the plaintiff, or the defendant as the plaintiff’s agent, paid the price of the same, and a conveyance, absolute in form and effect, of the same was made to the defendant, under an understanding and agreement that the lot was to be held by him as the property of the plaintiff, and that such conveyance was made as security to the defendant for the sum paid as the price of the lot advanced to the plaintiff as and for a loan to him; and if, pursuant to this agreement, either the plaintiff or the defendant negotiated a sale of the lot, and the defendant conveyed the same pursuant to the sale, and received the price thereof; the defendant so received said price, subject to a deduction therefrom of the amount of said loan, interest thereon and the agreed charges of the defendant in consideration of said loan, to the plaintiff’s use, so that the same may be recovered in this action, if the plaintiff, having the burden of proof on him, has proved the foregoing facts. But if the defendant, instead of lending to the plaintiff, for the purchase of the wood-lot, the money which was the price thereof, and receiving an absolute conveyance thereof as security for the money thus lent, purchased and paid for the wood-lot by his own money, under an understanding and agreement that he was so doing for the benefit of the plaintiff, in this respect, that, when the plaintiff should pay to him the price paid by him for the wood-lot, with interest thereon and his charges for his trouble and risk in the transaction, he would convey the lot to the plaintiff, and, while this agreement and understanding existed between the parties, a sale of the lot, whether negotiated by the plaintiff or defendant, was made, and the defendant received the money which was the price thereof, upon his conveyance of the same to the purchaser, the plaintiff would not be entitled to recover in this action any part of the money thus received by the defendant, as money received to the plaintiff’s use.”</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

Contract by the administrator of the estate of Horace B. Stone on the following agreement, signed by the defendant and Samuel hi.

<p>Contract on an account annexed, containing several items of credit to the defendants, and in the twenty-sixth item crediting them with $148.65 cash paid to the plaintiff. The answer admitted the correctness of these items. The case was referred to an auditor, who found, as to the twenty-sixth item, that only $120.75 had been paid by the defendants to the plaintiff, and that on the whole account the sum of $44.17 was due to the plaintiff.</p> <p>At the trial in the superior court, before Brigham, C. J., the plaintiff rested his case on the auditor’s report. The defendants offered no evidence; but contended that the auditor was not warranted in his finding as to the twenty-sixth item, and requested the judge to rule that, there being no evidence in the case beside» the auditor’s report, and. there being error in law in that report as to the finding upon this item, the plaintiff could only recover $16.27, which was the difference between $44.17, the amount found by the auditor to be due, and $27.90, the amount with which the auditor had refused to credit the defendants. The judge so ruled, the jury returned a verdict for the plaintiff for $16.27 and interest, and the plaintiff alleged exceptions.</p>

<p>One who employs a workman to do work for him under a contract that the work is not to be paid for until it is returned to and accepted by him, cannot be held as trustee for the workman, although the work is completed at the time of the service of the trustee process, if it has not then been returned and accepted.</p>

<p>Petition by Levi S. Whitney and two others to enforce a mechanics’ lien under the Gen. Sts. c. 150.</p> <p>At the trial in the superior court, before Dewey, J., it appeared that Peter Bourassa made a contract with the respondent’s husband, Ebenezer L. Joslin, to build a barn on her land; that Bourassa began the work, but abandoned it before it was finished; and that the petitioners, who were partners under the name of L. S. Whitney '& Sons, entered into a contract with the respondent, of which they signed the following memorandum :</p> <p>“ Agreement made and concluded July 6, 1870, by and between L. S. Whitney & Sons of the one part and Emily J. Joslin of the second part. Said L. S. Whitney & Sons hereby agree to complete the barn now commenced by Peter Bourassa and furnish all the lumber necessary for the same, and Joslin agrees to pay L. S. Whitney & Sons two hundred and eighty-one dollars for work and materials already furnished for said barn, L. S. Whitney & Sons to pay all outstanding bills for such work and materials, and Joslin to pay L. S. Whitney & Sons, in addition to the above amount, for what material shall be necessary for the completion of said barn, but for nothing else. Barn to be completed within ten days from date, and paid for when completed as per contract.”</p> <p>It further appeared that the petitioners finished the bam as per Bourassa’s contract, and after the date of their own contract furnished the materials necessary for the completion of the bam, to the amount of $94; that they filed the certificate required by the Gen. Sts. e. 150, § 5, in which they stated that $375 was due to them from the respondent for labor and materials; that all the materials used by Bourassa in building the barn were furnished to him by them; and that before furnishing them they gave notice that they should claim a lien on the land and building.</p> <p>The petitioners contended that they had a lien for $375, the full amount of their claim. The respondent contended that they were not entitled to maintain the petition, or if they could maintain it at all they could do so only for $94, the value of the materials furnished since the date of her contract with them. And the judge reported the case for the determination of this court; if the petitioners could not maintain their petition, judgment to be entered for the respondent; if they could maintain it, then an order for sale to be made, and the petitioners to be paid such amount as the court should decide they had a lien for, with interest and costs.</p>

<p>A vote of a town, passed after the St. of 1870, c. 196, that the school district system he reestablished, and that the appraisement of the property of the school districts, made in 1869, be the appraisement thereof of 1870, is a reSstablishment of the school districts of the town as they were before they were abolished by the St. of 1869, c. 110; and a school district which had united, under the Gen. Sts. c. 39, § 42, with a contiguous district in an adjoining town, which had not voted to reestablish the district system, is revived with the others as a school district of the town, as it was before the union.</p> <p>A town, at a meeting after the passage of the St. of 1870, c. 196, voted to reestablish the school district system, and that the appraisement of the school district property, made in 1869, should be the appraisement of 1870. At a meeting in the following year, it was voted that an assessment be laid upon the several school districts, as voted at the previous meeting; that the school district appraisement of 1869 should be the appraisement of 1871; and that the treasurer be authorized to convey to the several school districts, upon their payment of the appraised value and insurance, any rights which the town then had in the school-houses. Held, that this was a sufficient reappraisement and restoration of the property of the school districts under the St. of 1870, o. 196, § 3, to authorize the assessment of a tax on the school districts.</p>

<p>Tort. Writ dated October 5, 1865. Trial in January 1867, and verdict for the plaintiffs, in the superior court, before Ames, J., to whose rulings the defendant alleged exceptions, which were argued at October term 1867, and in February 1868 were overruled, as reported 97 Mass. 342.</p> <p>Pending those exceptions, the defendant in September 1867 filed his petition in the district court of the United States under the U. S. bankrupt act of 1867, c. 176, and on January 11,1868, obtained his discharge as a bankrupt. This discharge he pleaded in March 1868, in bar of further proceedings in this case. The plaintiffs in December 1868 filed a replication to the plea, denying the validity of the discharge, on the ground that it was obtained by fraud, and specifying that the defendant fraudulently omitted their names from the schedule of his debts which he filed under oath at the beginning of the proceedings in bankruptcy, and that they had no notice of those proceedings till after the discharge. And the case was continued in the superior court from term to term until September 1871. Meanwhile the plaintiffs on July 3,1869, filed a petition in the district court of the United States under § 34 of the bankrupt act, to set aside and annul the discharge, on the same grounds specified in their replication; notice was thereupon issued to the defendant; and the parties proceeded to a hearing in the district court upon those specifications, which is not yet finished.</p> <p>At September term 1871 of the superior court, the plaintiffs put the case again upon the trial fist, and sought to proceed to a trial of the issue raised by the plea and replication. The defendant objected “ that the validity of the discharge in bankruptcy could not be tried or impeached in this court for any cause for which it might have been annulled in the district court, or for which it might have been refused by said court; that that question could only be tried in the courts of the United States, and especially in this case that the plaintiffs ought not to be per mitted to try the question in the state court, as they had already commenced proceedings in the district court for annulling the discharge, and these proceedings were still pending, and the jurisdiction of the last named court of the subject matter is exclusive.” But Brigham, C. J., overruled the objections, and permitted the plaintiffs to go to the jury upon the following issue : “ Did the defendant wilfully omit the names of the plaintiffs from his schedule of creditors in the proceedings wherein he obtained" his discharge, with a purpose by so doing of preventing the plaintiffs from having the means of notice or knowledge of such proceedings, and participation in their benefit to his creditors ? ” The jury found upon the issue in the affirmative; and thereupon the court ordered judgment for the plaintiffs upon the former verdict, and the defendant alleged exceptions.</p>

<p>The mere fact that a man is insane does not authorize his arrest and confinement without a warrant, if he is not dangerous to himself or others.</p> <p>On the trial of an action against an officer for arresting the plaintiff without a warrant, upon the mere ground that he was insane though not dangerous, it is immaterial that the defendant was acting tinder a superior officer, or what the defendant’s opinion was of the plaintiff's sanity or insanity, or whether the plaintiff was afterwards put into a lunatic hospital by another officer.</p>

<p>Contract to recover pay under a vote oí the town of Middle-borough for ninety days’ service in 1861 as a soldier. The statute of limitations was not pleaded. The case was submitted to the judgment of the superior court, and of this court on appeal, upon a statement of facts in substance as follows:</p> <p>The town of Middleborough on May 6, 1861, at a meeting appropriately called and legally held, passed the following votes: “ Voted, that, feeling it our duty to encourage the raising of a company of volunteers in this town, we will guarantee the pay of all members of said company, citizens of this town, twenty-six dollars per month while in service.</p> <p>“ Voted, that the town guarantee to furnish each citizen volunteer soldier (if the state does not) with a uniform which shall not cost over ten dollars for each volunteer, and pay them one dollar and twenty-five cents per day, when called upon for drill, not tc exceed three days in a week for four weeks.</p> <p>“ Voted, that, when the company of volunteer citizens of this town are called into service, they shall have one month’s pay in advance.”</p> <p>The plaintiff was a citizen of the town, and on May 7, 1861, by signing a certain paper, became a member of a volunteer company in the militia of the Commonwealth of Massachusetts, in that town, and remained a private in that company until mustered into the service of the United States August 24, 1861.</p> <p>On May 13,1861, the governor of the Commonwealth, by general order, ordered that no more volunteers be organized, except such as should enlist under an agreement as follows : “We, the undersigned, by our signatures hereto annexed, do severally agree to serve as members of the Massachusetts Volunteer Militia in the Army of the United States as volunteers for the term of three years, unless sooner discharged, from the date of our being mustered into said service in accordance with the terms of the Proclamation of the President of the United States, May 3, 1861.”</p> <p>Afterwards, and before May 21, 1861, the plaintiff and others signed such an agreement. On that day the plaintiff and seventy-eight others petitioned the governor for liberty to organize a company of infantry; and the governor, by special orders, granted the prayer of the petition, and directed an election of officers of the company to be had at Middleborough on the next day, and the company, when organized, to be attached, as Company F., to the Third Regiment, Second Brigade, and First Division of the Massachusetts Volunteer Militia. Under these orders, officers were elected and commissioned by the governor,’’ and the company organized and attached accordingly; and the plaintiff was and continued a member thereof, and as such under such officers was drilled and exercised in military manoeuvres at Middleborough for several days before July 15 following; and he, and each other member of the company who was a citizen of Middleborough, received from the town pay for such drilling, and a uniform, according to the second vote above quoted.</p> <p>At a meeting of the company in Middleborough in the last part of May or the first part of June 1861, the selectmen, being a committee of the town, gave the plaintiff and other members of the company notice that the vote of May 6 could not be carried out in full, on account of the act of the legislature passed May 23, (St. 1861, o. 222,) that no member of the company was under any obligation to the town to go into the United States service, and that if they wished to leave they had a legal right so to do.</p> <p>By an order of the governor, dated June 25, 1861, the company was designated as Company D, Eighteenth Regiment of Massachusetts Volunteers, and all the service of the plaintiff as a soldier thereafterwards was as a member of said company, both in Massachusetts and at the seat of war.</p> <p>On July 15, 1861, the company, including the plaintiff, left Middleborough as an organized company, and under an order of the governor went into a camp of rendezvous at Readville in the county of Norfolk. While in camp at Readville, on July 26, the plaintiff with others took an oath of allegiance to the United States, and on July 30 the plaintiff, with other members of the company who were citizens of Middleborough, (having given notice to the town that they had taken such oath,) each received from the town the sum of $15, and signed and gave to the town a receipt therefor in these terms: *' Received of the town of Middleborough the following sums against our names, it being one month’s advance pay. July 1861.”</p> <p>The plaintiff with the other members of the company remained in the camp at Readville under military orders until August 24, 1861, when the company, the plaintiff being also continuously a member thereof, was regularly mustered into the service of the United States for the term of three years unless sooner discharged, and soon afterwards left Massachusetts for the seat of war, and remained in the United States service for three years and until the expiration of the term of service.</p> <p>In September 1861 the plaintiff, as a private in said company, together with other members thereof, each received from the Commonwealth of Massachusetts the sum of $19.80, and signed his name to a roll, headed “ Pay-roll, Company D, in the Eighteenth Regiment of Massachusetts Volunteers,” certified by the captain of the company to be in every particular correct, and showing that this sum was for wages at the rate of $11 a month for fifty-four days, from June 30 to August 24.</p> <p>The said sums of $15 and $19.80 were all that were received by the plaintiff for military service rendered before August 24, 1861, except what he received from the defendants for drilling and exercising in military manoeuvres at Middleborough as before mentioned.</p>

<p>After the legislature, by a special statute, has laid out a bridge as a public highway, and imposed the expenses of repairing and maintaining it upon such towns as commissioners to be appointed by this court should determine were specially benefited by the laying out of the way, and the report of the commissioners has been accepted by the court, the legislature still has authority to transfer, by a subsequent special statute, the burden of all such expenses incurred after its passage, to such towns as other commissioners, to be appointed by the governor, shall determine are or will be specially benefited by the laying out.</p>

<p>Appeal by thé minor children of Deborah Danzell and of Mary Perry from a decree of the judge of probate, under the St. of 1869, g. 463, § 3, for the division of the lands held in common and belonging to the Herring Pond tribe of Indians.</p> <p>The judge of probate ordered the division to be made equally among all persons, whether of full age or minors, of Indian descent, residing at Herring Pond, or who were born there, although now residing elsewhere ; including Deborah Danzell and her sister Mary Perry, who were bom on those lands of Indian parents, and whose mother, Clarissa Joseph, was an Indian, and had all the rights of an Indian proprietor of Herring Pond Plantation ; and also including Clara Perry, a daughter of Mary, who was born at Herring Pond ; but excluding all the other children of Deborah Danzell and of Mary Perry, of whom the eldest, Alonzo Danzell, was seventeen years of age, and none of whom were born on the Herring Pond lands or ever resided there. Christopher Danzell, husband of Deborah and father of her children, is a colored man of Indian descent, but not a proprietor of Herring Pond Plantation* has no original right there, and resides with his family at New Bedford. His wife owns lands at Herring Pond in severalty, set off to her by the division made under the St. of 1850, c. 168, on some of which she has made improvements. She claims that she is intending at some time to return to Herring Pond to reside on her lands, but she has no present intention of returning there at any definite time. Mary Perry and her husband and family reside at Fall River. The case was submitted to the decision of this court upon the facts above stated.</p>

Tort for a penalty under the St. of 1869, e. 384, §§ 31, 33, for taking smelt with a net on March 21, 1870, “in the waters of Tyesquin Brook in Tisbury Great Pond.” The declaration alleged that the action accrued to the plaintiff to recover the penalty, one half to his own use as prosecutor, and the other half to the Commonwealth; and that he sued to recover it as well for the Commonwealth as for himself.

<p>The St. of 1868, c. 346, providing for the dissolution of fire districts formed of portions of more than one town, and for the division of their property, was constitutional.</p> <p>A petition to county commissioners, under the St. of 1868, c. 346, § 5, to divide the property and debt of a fire district, by a portion of the district which has voted to withdraw therefrom, need not be made within ten days after the vote; is not invalidated by the fact that it is signed by only a majority of a committee appointed to carry the vote into effect, nor by the fact that it is also signed by persons not on the committee; and is not barred by the filing of a bill in equity by the petitioners to restrain the district from assessing a tax.</p> <p>A portion of a fire district, which has voted to withdraw therefrom under the St. of 1868, c. 346, § 5, before the passage of the St. of 1863, c. 417, is not prevented by the latter statute from applying to the county commissioners to divide the property and debt of the district.</p> <p>On the petition of one of the portions of a fire district composed of portions of two towns, which has voted to withdraw therefrom, the .county commissioners have power, under the St. of 1868, c. 346, § 5, to award a part of the properly of the district to the one portion and the rest to the other; and where it is impossible to divide the properly in due proportions, to award that the portion receiving the most shall pay a sum of money to the other.</p>

<p>The owner of a pew in the meeting-house of a religious society applied to the society, under the Gen. Sts. c. 30, § 41, to purchase the pew; appraisers were appointed, but failed to agree; and although they made no written report, it was known to the pew owner and the society that they had so failed. During ten years succeeding this application, he and members of his family occupied the pew from time to time, but never let it or otherwise exercised any ownership over it, and the society never exercised any act of ownership over it, or interfered with his possession. Held, that these facts were sufficient evidence of an intention to abandon the application for a purchase.</p>

<p>A tenant of a store, under an oral lease, at a certain annual rent payable quarterly, and the taxes, which was about to expire, told the lessor that he was looking for another store, but would like to remain after the expiration of his term at the same rate, either party to terminate the tenancy by giving a month’s notice; and the lessor assented. Meld, that the notice under this agreement might be given at any time during the tenancy which it created.</p> <p>A tenant at will sent to his landlord’s office a notice to determine the tenancy. The office door was closed, and had on it a placard requesting letters to be put in, a box near by. The notice was put in the box; and the landlord found it there the next day. Meld, that it took effect only from the time when the landlord received it.</p> <p>A tenant of a parcel of real estate under an oral lease at a certain annual rent, payable quarterly, and the taxes, held over “ at the same rate” after the expiration of his term, with a right to terminate the tenancy by giving notice; and remained only a month and two days. Meld, that he was liable to pay such a proportional part of the annual rent and taxes as a month and two days bore to a twelvemonth.</p>

Contract against the administrator of the estate of Martin L. Gates for rent of a dwelling-house in West Roxbury from July 1, 1870, to October 1, 1870, under a lease from the plaintiff to Gates for one year from June 1,1868, which provided that the rent should be paid in quarterly payments, on October 7, 1868, and -January 1, April 1 and June 1,1869, “ unless said Gates eon.jjnie to occupy, and then July 1 said Gates shall have this lease extended two years from April 1,…

<p>A. sold to B. by deed, “ in consideration of dollars,” a lot of gravel according to specifications and profiles which had been made by a surveyor, and “ being in quantity ,” and the parlies agreed orally that the surveyor should ascertain the quantity and fill up the blanks in the deed. Held, that his doing so, although after the delivery of the deed and in A.’s absence, did not invalidate the deed.</p>

Bill in equity for the specific performance of a contract for the purchase of land. The defendant denied that the plaintiff could make a good title. The case was reserved by Colt, J., on the bill and answer, and is stated in the opinion.

<p>Complaint filed December 3, 1869, under the mill act, Gen, Sts. c. 149, for the overflowing of “a certain tract of land of the complainant, situate in the town of Needham and bounded and described as follows, viz.: Beginning at the southeast corner, by the Boston and Worcester Railroad and by land of Enoch B. Winch; thence running northerly by land of said Winch to Broad’s Pond, so called; thence easterly and northeasterly on said pond (crossing the stream) to land of heirs of Ephraim Stevens ; thence southerly on land of said Stevens heirs to the aforesaid railroad; thence westerly on said railroad, crossing said stream, to the place of beginning; containing thirteen acres, more or less.” The respondents answered that the complainant had no estate or interest in the land.</p> <p>At the trial in the superior court, before Reed, J., it appeared that on February 28,1860, the complainant became owner of the land, by a deed from Samuel M. Colcord, and had ever since been in possession and occupancy thereof; and that on June 25, 1862, he mortgaged it to the Natick Savings Bank to secure a loan of money, which had not yet been repaid. There was no evidence that the mortgagees, although they have a right to take possession of the land for breach of the condition of the mortgage, ever have taken possession thereof, or made any entry, or taken any measures to foreclose the mortgage; and it was agreed that the respondents’ dam was erected after the delivery of the mortgage. Upon this state of facts it was contended by the respondents that the complainant was not entitled to a judgment and warrant for a jury, and no other question was raised. The judge thereupon directed a verdict for the complainant, and reported the case for the determination of this court, before whom it was argued in 1870.</p>

<p>Contract upon the covenant against incumbrances, contained in a deed from the defendants to the plaintiff, dated May 24, 1866. Writ dated September 28, 1868. Trial in the superior court, before Putnam, J., who made the following report thereof;</p> <p>“ The land in question was situated in New Bedford, and came to the defendants under the will of the late Timothy G. Coffin, and was a portion of his farm.</p> <p>“ On April 6, 1839, the said Coffin conveyed a strip of land fifty-five rods in length and four and three tenths rods wide, running through the land in question, to the New Bedford & Taunton Railroad Company, by a deed which contained the following clause: ‘ I, the said T. G. Coffin, hereby covenant that I and my heirs and assigns will make and maintain a sufficient fence through the whole length of that part of the railroad which runs through my farm; this covenant of maintaining the fence to be perpetual and obligatory upon me and all persons who shall become owners of the land on each side of said railroad.’</p> <p>“ The defendants contended that this clause did not constitute an incumbrance on the land, but created merely a personal obligation. But the judge, for the purposes of the trial, ruled that it did constitute an incumbrance upon the whole of the land now owned by the plaintiff, and which he held under said deed. To this ruling the defendants excepted.</p> <p>“ The case then proceeded to the jury, upon the amount of the plaintiff’s damages.</p> <p>“ Upon the point of what would constitute a ‘ sufficient fence ’ within the clause named, the defendants requested the judge tc rule that that would be a sufficient fence which the statute had denominated as a sufficient fence between adjoining proprietors under the Gen. Sts. e. 25, § 1. The judge declined to rule as requested; but did rule that a ‘ sufficient fence,’ within the meaning of the clause, need not necessarily be any better than such fences as adjoining proprietors of improved land are required to make and maintain under the statute, but that it must be a fence reasonably sufficient to keep animals from straying from the plaintiff’s land on to the line of the railroad. To this ruling the defendants excepted.</p> <p>“ The defendants further asked the judge to rule that upon a proper construction of the deed it did not appear that the obligation, if any, meant an obligation to make and maintain a division fence on each side of the line of the land conveyed to the railroad. The judge ruled otherwise, and the defendants excepted,</p> <p>“ Evidence was offered on both sides as to the cost of building and maintaining fences of wood and stone, reasonably sufficient for the purposes named in the last ruling; and also evidence of experts as to how far the existence of what was thus claimed by the plaintiff to be an incumbrance would affect the market value of the land ; the experts including in their estimates the cost of building and maintaining the fence.</p> <p>“ It appeared that when the plaintiff bought he knew nothing of the existence of this incumbrance, but that he had since built a wall along a portion of the line between his land and that of the railroad; and the superintendent of the railroad company testified that they should not release the plaintiff from the obligation in the deed; but there was no evidence as to whether said company had or had not ever made any request concerning a fence, or whether any refusal had been made to build one, nor in any way concerning the relations between the railroad and said plaintiff and his grantors, including said Timothy G. Coffin, or any acts or conduct of theirs adverse to the rights of the railroad., nor concerning the use or improvement or mode of occupation of the premises prior to the plaintiff’s purchase, nor whether there had been a need of any fence prior to the plaintiff’s purchase, nor whether the fence had been often or never renewed but the plaintiff testified that at the date of his purchase in 1866 there was an old fence near the line of the railroad, but not on it, and running but a short distance; and there was evidence that at the date of the plaintiff’s purchase certain fences existed on the plaintiff’s land to the west of the railroad.</p> <p>“ The defendants requested the judge to rule as follows :</p> <p>“ That if, during the whole period from the time of giving the deed to the corporation in 1839 to the date of the plaintiff’s deed in 1866, the plaintiff’s grantors and those who had preceded them as owners of the plaintiff’s land, and no other persons, have in any part performed what was stipulated in the deed to the corporation, and had not been required or requested to perform it by the corporation, then, a period of more than twenty years having elapsed, the right of the railroad to require performance is barred by the statute of limitations, and the incumbrance, if any, had ceased; that under such a state of facts the corporation could not enforce the contract expressed in the deed, whether regarded as a personal undertaking of the grantor or as an incumbrance on the land.</p> <p>“ That the plaintiff must show either that he had been compelled to pay damages, or that he is now legally bound under the deed to the corporation to maintain the fence or pay damages ; and that upon this question the statute of limitations applied.</p> <p>“ That the proper measure of damages is what the railroad corporation could recover in an action for a failure to perform the stipulation contained in the deed, regarded as an incumbrance.</p> <p>“ That as, at the time of the conveyance by the said Timothy Gr. Coffin to the railroad company, such corporations were not bound by law to fence their roads, the only obligation created by the clause would be, at the most, the cost of building and maintaining one half of the division fence.</p> <p>“ The judge declined to give the rulings as requested; but did instruct the jury, for the purposes of the trial, that the plaintiff was bound by this clause in the deed to build and maintain perpetually a ‘ sufficient ’ fence (having duly instructed them as to what was meant by a 6 sufficient ’ fence) on both sides of the railroad, and for its whole length; that this constituted an incumbrance on the whole of the plaintiff’s land which he now owned on both sides of the railroad (the same being in feet the land purchased of said defendants by the said deed) ; that the rule of damages for the breach of the covenant against this incumbrance' was a just compensation for the real injury resulting from such incumbrance ; that, in determining this question, they were not alone to consider the cost to the plaintiffs of building and maintaining such fence, but were also to inquire how far the existence of this incumbrance impaired the value of the estate to the owner, and what would be the difference in its fair market value, by reason of the existence of this incumbrance — including in the depreciation, if any, the cost of building and maintaining the fence, and not treating that as an additional item — and upon the whole evidence allow him a just compensation for the real injury thus sustained. To these rulings and refusals to rule the defendants excepted.”</p> <p>The jury returned a verdict for the plaintiff in the sum of $1140, which by the terms of the report was to stand, or be set aside and a new trial had upon such rulings as this court should determine to be proper. The case was argued at October term 1870, before all the judges but Colt, J.</p>

<p>A glass case, a case of drawers, and a mirror six feet long and two feet wide, bought by the tenant of an eating-room where intoxicating liquors are sold, to use in his business, and screwed or nailed by him to the walls of the room; and gas-fixtures (so called) bought by him for the same purpose and screwed upon gas-pipes fastened to the ceiling; are not fixtures, and an action of tort in the nature of trover will He for their conversion by the landlord. But two counters, bought by the tenant for the same purpose; one, called an oyster and trench counter, ten or twelve feet long and two or three feet wide, brought into the room entire and nailed to the floor, and afterwards enlarged by an addition, of about the same size, constructed of joists and a base-board both nailed to the floor, a^id of boards nailed to the joists and to each other0 the other, called a bar, twenty-two feet long and two feet wide, brought into the room entire and fastened to the floor by nails and with iron knees; are trade fixtures, for the conversion of which by the landlord during the term of the lease no such action will He while they remain unsevered from the realty.</p> <p>Ff a landlord forcibly prevents his tenant, during the term of the lease, from removing chattels attached by the tenant to the realty, but which are not fixtures, and refuses a demand of the tenant for leave remove them,, and claims them as his own, an action of tort will lie against him for their conversion.</p>

<p>Tort for breaking and entering the plaintiff’s close in Attle borough. At the trial in the superior court, before Scudder, J., the defendant admitted his liability to nominal damages unless he had a right of way or a right to pass over the plaintiff’s land and contended that a public footpath existed over it, by dedicatian and use, prescription and immemorial usage, between two roads, and that, as one of the public, he had a right to travel on this footpath, which was wherein the alleged trespass consisted. His counsel stated to the jury the various modes in which rights of way may lawfully be acquired, and that he should contend that the defendant had acquired such a right over the land in any mode which the evidence might warrant. A report of the evidence is not necessary to an understanding of the point of law decided.</p> <p>“ The plaintiff contended that a footpath for public use over the land of another could not be acquired in this Commonwealth by dedication, use or prescription, and that the evidence would not warrant a jury in finding a right of way in the defendant on any ground. The defendant contended that such right of way could be acquired by dedication, use or prescription, and that the evidence was sufficient to establish such way, and also a private way in himself by prescription and user, and a right of way as appurtenant to his estate.”</p> <p>The case was reported by consent of the parties, before verdict, for the consideration of this court, with the agreement that if, in its opinion, a jury would be warranted in finding that the defendant had a right of way or of passing over the plaintiff’s land, judgment should be rendered for the defendant; otherwise, judgment was to be rendered for the plaintiff for one dollar damages and costs.</p>

<p>A “ private way for the use of one or more of the inhabitants ” of a town, laid out by selectmen or county commissioners under the Gen. Sts. c. 43, §§ 59, 67, is subject to be used by the public; and the laying out is valid, although the whole damages to the owners of the land over which it is laid out are awarded to be paid by the person to whose house it leads.</p>

<p>In an action of tort against a city for entering the plaintiff’s close and pulling up a post and preventing him from placing a building upon the close, the city answered that the close was a public street and the city rightfully entered upon and used it for the public. Just before the action was brought, the mayor and the city solicitor signed a written statement that the acts complained of were done by the city for the purpose alleged in the answer;, and it was proved at the trial that the city marshal did them by the mayor’s orders. Held, that the statement of the mayor and solicitor did not bind the city, and that the city was not liable, whether the place in question was or was not a public street.</p> <p>The omission to make due compensation for private property or rights appropriated by authority of the legislature to the public use can be taken advantage of by the owner only, end, if he once assents to the taking, cannot afterwards be availed of by himself or those claiming under him.</p> <p>A city, authorized by statute to lay out common sewers “ through any streets or private lands,” may construct them so as to discharge into tide water; but has no right to discharge mud and filth through such a sewer in such quantities as to create a nuisance; and if the city, by such a discharge into a private dock, fills it up and obstructs its nse by the owner as he has previously used it for receiving vessels, or makes it offensive to him, the city is liable to an action by him for damages, and may lfe restrained by injunction at his suit from continuing the nuisance.</p> <p>A city, authorized by statute to lay out common sewers “ through any streets or private lands,” has no right to extend such a sewer by a structure upon flats owned by an individual under special grant from the legislature below low water mark.</p>

<p>In an action for diverting a brook from the plaintiff's land, it appeared that, at a point on the defendant's land, below the place of the alleged diversion, the water ceased to flow between defined banks, spread itself out several rods wide, and ran so, over the surface of the ground, for five rods, to the plaintiff's land, across which it spread and ran for seven rods in like manner, and then began to flow again in a defined channel, which conducted it into a river. Beld, that the brook did not cease to be a natural watercourse on the plaintiff's land, and that he could maintain the action.</p> <p>A brickmaker, who owned and occupied a tract of land for his business, was accustomed to vary the course of a brook across it, from time to time, to suit the convenience of the business, but never varied it so as to prevent its traversing the whole tract. Upon his death, his two heirs, who knew of this custom, divided the tract between themselves by mutual deeds of quitclaim, after which the heir who took the upper portion of it diverted the brook from flowing through the lower portion. Beldy that the first named heir took no easement in the land quitclaimed to the other heir, and that the latter could maintain an action against him for diverting the course of the brook.</p>

<p>Tort for trespassing on a close in Hew Bedford of the plaintiffs, who were a corporation chartered by the St. of 1831, a. 88. Writ dated August 28,1869. The answer justified the acts that constituted the alleged trespass, under a claim of a right of way in Benjamin Rodman, and his tenants and agents, to cross the close for access to a warehouse on adjoining land which the defendant occupied as Rodman’s tenant under a lease dated in 1869.</p> <p>At the trial in the superior court, before Scudder, J., the defendant sought to prove the right of way by evidence of an open, adverse and uninterrupted use thereof, beginning in 1831 and continuing for more than twenty years prior to Rodman’s lease in 1869, not limiting himself to any specified twenty years between the dates named. Rodman, who was called by the defendant as a witness, testified “ that he never, to any one interested in the wharf, in words claimed to have any right of way over the wharf; ” and it appeared “that since 1831 the wharf had been open, and uninclosed, and used as a public wharf, that many of the corporators were near relatives of Rodman, and that he himself and his tenants were customers of the wharf.”</p> <p>The plaintiffs offered evidence tending to show that the acts done in the use aforesaid were not adverse but by their permission, and that the use had been frequently interrupted; and in reply to the defendant’s evidence as to use they called William J. Rotch, a nephew of Rodman, as a witness, who testified that he had known the close since 1845, and that for ten or fifteen years he had been president of the plaintiffs, and during all that time had occupied a counting-room from which he could constantly see the close. The plaintiffs put the following questions to this witness, to each of which the defendant objected as leading and incompetent, but the judge permitted them : 1. “ Whether in fact you were ever aware of any adverse claim of right of way by Benjamin Rodman, or.his tenants, over the wharf in question.” 2. “ Whether, so long as you have been an officer of the plaintiff corporation, the use of the wharf has always been permitted for the passing of teams and passengers, and to Benjamin Rodman and his tenants and all other persons.” 8. “ Whether the passage of said Rodman’s teams and those of his tenants had any physical effect upon the wharf.” 4. “ Why do you think so ? ” The first was answered in the negative. To the second, the witness answered, “ Yes, so far as I know.” To the third, “ Mo, I think not.” And to the fourth, “ I never perceived any effect.”</p> <p>To prove their title to the close, the plaintiffs offered a deed from William Rotch to the Rotch’s Wharf Company, dated August 20,1831; to the admission of which the defendant objected on the ground that there was no such corporation as Rotch’s Wharf Company at the date of the deed. It appeared that the date of the plaintiff’s charter was March 15,1831; that the corporation was organized September 3, 1831; and that the deed was recorded March 13, 1832. The evidence upon both sides showed “ the occupation to have been according to this deed for the whole time covered by the evidence,” including the dates of the alleged trespass and of the writ and the trial; and no occupation otherwise was alleged or suggested. Mo vote or official act of the plaintiffs was proved by them relating to the deed. The question of the admission of the deed was reserved by the court until all the testimony in the case was closed; and it was then admitted, with instructions to the jury “ that it would take effect only from the date of its delivery to the plaintiff corporation, and that as to such delivery the burden of proof was on the plain* tiffs.”</p> <p>The jury found for the plaintiffs, and the defendant alleged exceptions.</p>

<p>A. bought goods of B. for a certain sum, to be paid by giving up a promissory note of B. which he held and paying in cash the balance of the contract price over the amount due on the note. Held, that if A. did not give up the note B. might recover from him the full contract price of the goods.</p>

Replevin from a deputy of the sheriff of Bristol of goods attached by him as property of the plaintiff’s husband, Darius G. Harriman, in an action brought against him by Rosalie Lacroix. Replevin writ dated September 26, 18170.

Writ oe entry, dated November 29,1869. Plea, nul disseisin. The case was referred, under an agreement of the parties, by a rule of the superior court at March term 1870, to an arbitrator, judgment upon his report to be final and execution to issue accordingly. Pending the proceedings before the arbitrator, the court in September 1870 allowed the tenant to plead disclaimer as to part of the demanded premises, upon terms of payment of a double term fee by him to the demandants.

<p>Bastardy process. After the decision reported 103 Mass. 54, the defendant appealed to the superior court from the taxation of the complainant’s costs by the clerk, and at the same time objected “ that this was not a case wherein costs were to be taxed and collected on execution in the usual manner prescribed in civil iases, wherein special provisions are made for the taxation of costs and recovery thereof on execution, but if the complainant was entitled to costs the same could lawfully be collected only as part of the penalty on the original bond, (which it appeared was given by the defendant before the municipal court of the city of Taunton, on which the defendant had been defaulted in the superior court, as appears of record,) that the proper amount of costs should be fixed and determined upon by a hearing under the direction of the court, in ascertaining the amount for which execution should issue in final judgment on a suit upon said bond, that the complainant had a right to recover it as a part of the penalty of the bond, and that the defendant had a right to insist upon its being so recovered.” But Meed, J., overruled this objection. The defendant then contended “ that said costs could be collected only upon a warrant ordering him to be committed until he had complied with the order of the court, as prescribed by statute, upon judgment of affiliation; that the court (as appeared of record) had ordered a warrant of commitment to issue upon the original order of the court on judgment of affiliation, in which warrant (as the defendant claimed, erroneously) the order to pay costs was expressly excluded.” But this objection also was overruled.</p> <p>Upon the hearing, the judge affirmed the clerk’s taxation of the costs; and the defendant appealed to this court, and also alleged exceptions to the foregoing rulings. The facts relating to the items of costs in dispute appear in the opinion.</p>

Tort for false imprisonment. At the trial in the superior court, before Reed, J., it appeared that the defendant was a deputy of the constable of the Commonwealth, and was engaged in searching the plaintiff’s tenement for intoxicating liquors in the execution of a warrant under the St. of 1869, e. 415; that the plaintiff hindered and opposed him in the execution of the war-' rant; that blows were exchanged between them; and that “ at some stage of these proceedings ” he…

Tobt. Writ dated March 23, 1870. The declaration alleged that a tract of woodland in Rehoboth was possessed and occupied by Meribah Rounds as tenant thereof for life, with remainder to the plaintiffs; and that the defendant cut certain trees thereon and converted the timber to his use.

Cohtbact, brought November 25, 1870, against the administrator of the estate of Samuel 0. West, on the following promissory note made to the. plaintiff by the intestate: “ Taunton, August 15, 1857. For value received I promise to pay Mrs. Jane I. Baylies five hundred dollars on demand. “ Witness, A. E. Swasey.” “ Samuel C. West.” The answer alleged that the note was void for want of consideration.

Conteact. The declaration contained a count on an account annexed for labor and materials furnished on and for three light-boats ; and also a special count, which set forth that the plaintiff contracted with Stephen Andrews, then the owner of the boats, to furnish certain labor and materials on and for them, and entered upon his duty under the contract; that the defendant became interested in the boats and desirous that the plaintiff should complete the contract; that the…

<p>A bill in equity will not lie to foreclose a mortgage of patent rights which the mortgagee already holds by an assignment absolute in form from the mortgagor as a part of the transaction of the mortgage; but will lie to redeem them from it, since their reconveyance by the mortgagee is necessary to reinstate the mortgagor in their possession.</p> <p>If a mortgagee of personal property refuses to render an account without which the mortgagor cannot ascertain the amount due so as to make payment or tender for the redemption of the property, relief will be afforded to the mortgagor in equity.</p>

<p>The first case was a bill in equity filed May 13, 1868, by Edward M. Pierce, and his wife, Celia J. Pierce, against Alvah Chace, John Anthony, and Candace Anthony, wife of said John, to redeem land in Fall River from a mortgage.</p> <p>The second case was a cross bill, filed February 25,1869, by the said Candace against the said Edward, Celia and Alvah, to redeem the land from the same mortgage, John Anthony having meanwhile died.</p> <p>The cases were heard together by Colt, J., and reserved for the determination of the full court upon the following statement of the facts and pleadings:</p> <p>“ Caleb G. Anthony conveyed the land by deed dated June 29, 1857, to John Anthony and Candace Anthony, his wife, subject to a mortgage in favor of James Lewis, which mortgage is the one sought to be redeemed. John and Candace continued to hold the premises without any change of title, until 1862. Previously and up to 1862, Edward M. Pierce had from time to time furnished said John and his family with necessaries. In 1862 an oral agreement was made between said John and Candace, and said Edward and his wife Celia J. Pierce, that in consideration of what said Edward had already furnished towards the support of John Anthony and his family, and m further consideration that said Edward should take care of, and support, and provide for said John during the rest of his life, he, the said John, should convey to said Celia what was supposed to be his undivided half of the premises. In accordance with and in consequence of this agreement, a deed dated May 13, 1862, purporting to convey an undivided half of the premises to said Celia, was made by John Anthony, which deed was signed by Candace, his wife, only in token of her release of dower and homestead in the premises. This deed, at the time it was made, was supposed and believed by all the parties to be a good and valid conveyance of an undivided half of the premises. After this conveyance, said Edward fairly intended to, and did, substantially carry out and perform his part of the agreement, and the supplies furnished to said John were used in common by him and his family up to October 2, 1865, when his family was broken up, and from that time until his death, which occurred on January 4, 1869, he lived alone, and was provided for by said Edward in one of said Edward’s tenements.</p> <p>“ James Lewis, the mortgagee, assigned his mortgage on October 10, 1865, to Alvah Chace, and on the 21st of the same month John and Candace Anthony gave quiet and peaceable possession of the mortgaged premises to Chace, which he has since continued to hold except as hereinafter stated.</p> <p>“ At the time of the execution of the deed from John Anthony to Celia J. Pierce in 1862, the said Edward and Celia gave to said John a deed of a life estate in the same premises, which he was to hold as security for the performance of the agreement then entered into by said Edward as aforesaid; and in 1867 John Anthony gave Celia J. Pierce a quitclaim deed of all his interest in said undivided half of the premises.</p> <p>“ The said Edward and Celia brought their bill May 13, 1868, against said Alvah Chace, joining said John and Candace Anthony, praying to redeem the whole of said mortgaged premises, to which the said Alvah and Candace duly entered their appearance. Pending the bill, on October 10, 1868, said Alvah gave said Celia a quitclaim deed of one undivided half part of his interest in the premises. Candace Anthony filed her answer to this bill on February 20, 1869, in which she suggested her husband’s death; claimed that thereby she had become the sole owner of the premises, subject only to the mortgage, and that she was advised that her husband’s deed to said Celia, in which she only joined in relinquishment of dower and homestead, conveyed no interest, in the premises; alleged her readiness and wish to redeem the whole of the premises; denied that said Edward and Celia had any right to redeem, but alleged that, if they had, they had already redeemed to the extent of such right; and prayed that, if necessary to the rights of the parties to the bill, further proceedings therein might be stayed to enable her to bring a cross bill. Alvah Chace filed his answer on the same date, in which he declared his ignorance of the respective rights of said Edward, Celia and Candace, to redeem, and alleged his readiness to discharge all his interest in the mortgage to such person or persons as the court should direct, upon receiving what was due him thereon.</p> <p>“ Candace Anthony filed her cross bill against said Edward, Celia and Alvah, on February 25, 1869, in which she set forth the same facts and made the same claims and offers substantially as in her answer to the original bill.</p> <p>“ To the answer of said Candace to the original bill the plaintiff therein filed a replication on February 6,1871, in which, not admitting the invalidity of said conveyance to Celia, they set up, 1. that the mortgage was duly foreclosed by the lapse of time before the filing of said answer, so that she could not redeem the same, even if she was otherwise entitled so to do; 2. that, the first conveyance from John Anthony to Celia J. Pierce having been made with the knowledge and assent of said Candace, and having been intended and supposed by all the parties to be a valid conveyance of one undivided half of said premises to said Celia, and the agreement in consideration of which the same .was made having been carried out by said Edward M. Pierce, without objection on the part of said Candace, she and her legal ■ representatives were now estopped to deny the validity of said conveyance; and 3. that, if this was not so, then in equity and good conscience said Candace and her legal representatives ought not to be allowed to redeem, except upon repayment to said Edward not only of the sum found due on the mortgage, but of the amount paid by him in carrying out the said agreement. And on the same day they filed an answer to the cross bill, which was substantially the same as this replication.</p> <p>“ Before the filing of said replication and answer, Candace Anthony died ; and her administrator voluntarily appeared and took upon himself the prosecution of the suits. Alvah Chace filed his answer to the cross bill on April 19, 1870, in which he still alleged his readiness to discharge his interest in the mortgage to whomsoever the court should direct, upon receiving the amount due him.”</p>

<p>One who accumulates water artificially on his own land is liable for injuries resulting ta adjoining land from percolations through the soil, caused by the pressure of the acon - mulated mass, or from the obstruction, by that cause, of the natural passage of water through the soil from such land.</p> <p>A conveyance of land for the purpose of erecting a reservoir thereon is no bar to the recovery of damages by the grantor for injuries resulting to his adjoining land from percolations through the soil, caused by the pressure of the water in the reservoir.</p>

Tort for breaking and entering the plaintiffs’ close in Fail River and cutting wood thereon. Trial and verdict for the plaintiffs in the superior court, before Scudder, J., who allowed a bill »f exceptions, of which the following are the material parts: “ The question was as to the true line of division between two adjoining lots of woodland, which was the line between the twelfth and thirteenth lots in a laying out in the Freeman’s Purchase, more than one hundred years ago.

<p>To sustain an action for breach of the defendants covenant to warrant the title to land conveyed by him to the plaintiff, records of judgments rendered against the plaintiff, in suits by him against a third person, for flowing the land under the mill act, and for trespassing thereon, and in a suit by this person against him for a like trespass, are admissible, in connection with paroi evidence that his title to the land was at issue therein, and either that it formed the ground of the verdicts, or, if he suffered defaults, that he did so because he could not defend it against the superior title in said person.</p> <p>If a bill of exceptions to the admission of the record of a judgment in evidence, which would have been admissible in connection with oral testimony of a particular character, states generally that oral testimony was offered in connection with it, the testimony referred to will be assumed to have been of that character, indeed of ua certain water privilege and lot of land, situate in X” and “having two dams,” and of “also all the lands which the said dams will flow,” will pass title to land flowed by the dams, although not situate in X.</p>

<p>The elrst case was a bill in equity, filed October 4, 1871, by the administrator de bonis non, with the will annexed, of the estate of Sylvia A. Howland, singlewoman, praying for instructions.</p> <p>The bill alleged that Miss Howland died July 2,1865, resident at New Bedford, and leaving a last will, which was duly proved and allowed in November of that year; that this will gave many specific legacies of money directly, and some in trust to pay the income to beneficiaries for life, and on their death the principal to others, and in the twelfth article* thereof gave the residue of the estate in trust to pay the income to Mehitable H. Robinson, (since married to Edward H. Green,) a niece of the testatrix, for her life, and on her death the principal to the lineal descendants then living of Gideon Howland, a grandfather of the testatrix ; that the will named trustees of all the trusts aforesaid, who had since been duly qualified; that after the death of the testatrix, until November 1865, the probate of the will was resisted by Mrs. Green; that she then further delayed a settlement of the estate, by filing a bill in equity in the circuit court of the United States, in which she made claim to all the estate of Miss Howland by virtue of an alleged contract between them for mutual wills, which bill was finally dismissed in February 1870, without costs, by agreement of the parties; and that during the interval since the death of the testatrix large increase and earnings accrued to the estate, and controversies arose between the interested parties in relation thereto, for the purpose of adjusting which controversies all said parties on October 3, 1870, entered into a written agreement, styled a compromise, of which the following are the material articles:</p> <p>“1. The administrator de bonis non, with the will annexed, shall pay to each and every party legatee under the will of Sylvia A. Howland, other than Mrs. Green, and the descendants of Gideon Howland, legatees of the residue principal, interest on their several legacies at six per cent, per annum from the date of the decease of said Sylvia, but -without rests; and the same, with principal, shall be received in full of all claim because of said legacies and the delay in the payment thereof.</p> <p>“ 2. The trustees of the residue of the estate shall take the assets remaining after the payment of the debts and expenses of administration and all and singular the other legacies given in and by said will, with interest as before stipulated, and divide the said residual portion into two parts, the first part of which shall consist of the earnings of the estate since the death of said Sylvia, and the second part of which shall consist of the balance of said residue; and said trustees shall, under the provisions of the trust, account for said first part to Mrs. Green and her legal representatives; and said second part shall constitute the principal of the trust fund, to be retained and kept by them as trustees, under the provisions of the will.”</p> <p>The bill then alleged that the trustees of the residuary fund, on October 19, 1870, entered into a further agreement with Mrs. Green and her husband, styled a supplement to the compromise, of which the following is the material portion :</p> <p>“ It is understood and agreed by and between said parties, that, after the trustees shall have taken the assets coming to them from the administrator de bonis non, with the will annexed, as provided in the second article of said compromise, in dividing the same into two parts, the first part, so called, shall consist of the earnings of the estate since the death of said Sylvia, less the amount paid as interest upon the legacies of said will, as provided in the first article ; and this supplemental agreement is made, to the end that it may be manifest that the first part aforesaid is to consist not of gross earnings, but of earnings less interest on legacies as aforesaid, and, so constituted and ascertained by the trustees, shall, under the provisions of the trust, be accounted for by said trustees to said Hetty H. Green and her legal representatives ; and the other part shall constitute the residuary principal fund, to be held by said trustees under the provisions of said will.”</p> <p>The bill also alleged that this plaintiff filed a bill in equity in this court to establish said compromise and supplement, in which bill all interested parties in being were joined as defendants, with a representative, appointed by the court, of the contingent interest of descendants of Gideon Howland; that at October term 1870, after a full hearing of all the parties, it was on November 3, 1870, decreed therein “that the said compromise and supplement should be approved, and be valid and binding upon all actual interests, and upon all future and contingent interests in said estate, and the costs and expenses of all parties to said compromise bill should be paid by the plaintiff out of the estate in his hands ; ” and that by reason of the terms of said compromise and supplement the plaintiff had been able to pay over to the trustees of the residuary fund large sums of money and securities, amounting to nearly all the estate of said Sylvia, with the increase thereof, after paying the debts and specific legacies.</p> <p>The bill further alleged that for the years 1868 and 1869 taxes to the amount of $15,570.25 were assessed against the plaintiff, under the laws of the United States relating to internal revenue, upon the income of the estate of the testatrix, the amount of said taxes for 1868 being $5,759.35, and for 1869 being $9,810,90, and although he resisted the levying of these taxes, and endeavored to procure abatements thereof, for divers errors and informalities not now needful to be stated, yet, in order to avoid their forcible collection from the estate, he was compelled to pay them, but did so under protest; that in the years 1866-1870, during the said delays in the settlement of the estate, it was subjected through the city of New Bedford to assessments of state, county and city taxes, amounting to $59,620.82, and by the city of Providence in Rhode Island to municipal taxes, amounting to $96.08 , that, in respect to the United States tax above mentioned, “ Mrs. Green insists that said tax was in fact assessed by the constituted authorities upon and in respect of the earnings and income of said estate during said years 1868 and 1869, which said earnings and income enured to the benefit of all parties entitled to present income under said will, including not only herself, the cestui que trust for life in the residuary legacy, but all other legatees, and she objects to such payments of particular legacies and interest in full, and insists that the plaintiff shall withhold from each one of the same the due and appropriate portion of said $15,570.25, which may be legally attributable to such legacy, or that he should take it from the capital of the estate and not from income of any portion thereof; ” that, in respect to the local taxes also above mentioned, “the plaintiff has regarded them as diminutions of the body of the estate, and in no manner affecting said particular legatees, and he will, unless otherwise instructed, act accordingly, but Mrs. Green objects thereto and claims that said taxes should be apportioned in part to said particular legatees ; ” and finally, that “ it is now important that the estate of said Sylvia should be settled and fully distributed, and said particular legatees urge and require the plaintiff now to pay them in full.”</p> <p>The prayer of the bill was for instructions “ whether the plaintiff should pay said particular legacies in full with interest, and without deduction by reason of said taxes paid as aforesaid, or whether he should retain from each or certain legacies proportional amounts towards the payment of said sums,” and also “ whether the expenses of the parties to this suit should be charged to said particular legacies, or to the income, or to the capital, of the residuary portion of th 5 estate.”</p> <p>All the above mentioned legatees and trustees were made defendants, and answered, admitting the truth of the plaintiff’s allegations and praying that he might be instructed as he desired; and the case was reserved by Colt, J., on the bill and answers, for the determination of the full court.</p>

<p>The mere fact that two officers who had arrested a boy thirteen or fourteen years old, without a warrant, upon suspicion of having committed a crime, after searching him, stripping him of his clothing, and putting him into a cell at the police station, took him from the cell late at night and questioned him for two hours, without warning him of his right not to answer, or offering him opportunity to consult friends or counsel, does not render his confessions in the conversation inadmissible on his trial for the crime.</p>

Complaint on the St. of 1869, e. 415, § 44, to the municipal court of Taunton for a warrant to search the freight-house of the Old Colony & ISTewport Railway Company in that city, for intoxicating liquors alleged to be kept there by Patrick Cleary and intended by him for unlawful sale in this Commonwealth.

Indictment on the Gen. Sts. o. 87, §§ 6, 7, for keeping and maintaining at Attleborough on January 1,1871, and divers other days and times between that day and June 14, 1871, a tenement used for the illegal sale and illegal keeping of intoxicating liquors. At the trial in the superior court, before Wilkinson, J., the material evidence for the Commonwealth was given by Charles J. White and James W. Riley.

Indictment for manslaughter, averring that Burton G. Rob flits, Isaac Roberts and John Reynolds, on August 27, 1870, at Haverhill, “ in and upon one Bernard Carlton feloniously and wil« fully did make an assault, and the said Burton, Isaac and John, with a certain knife, the said Carlton, in and upon the belly of him, the said Carlton, then and there feloniously and wilfully did strike, cut, stab and thrust, giving to the said Carlton then and there, with the knife…

Indictment on the Gen. Sts. c. 160, § 17, charging that Robert Barrett and Patrick Keleher, both late of Lawrence in this county, “being inhabitants and residents of this state, to wit, of the Commonwealth of Massachusetts,” on July 11, 1870, “by a previous appointment and engagement, made within this state, to wit, at said Lawrence, did leave this state, to wit, the Commonwealth aforesaid, and on said eleventh day of said July feloniously and wilfully did engage in a fight,…

<p>Indictment on the Gen. Sts. c. 160, § 85, averring that Mary E. Falvey, on July 28, 1870, at Lynn, “did unlawfully, wilfully and maliciously kill and destroy fourteen barn door fowls, commonly called hens, of the value of twenty dollars, of the personal property of one Lewis J. Morrill, by then and there mixing with food a certain quantity, to wit, two drachms, of a certain poison called rat poison, and by then and there causing the same to be taken and eaten by said fowls.”</p> <p>Before the jury were empanelled in the superior court, Pit-man, J., overruled a motion of the defendant to quash the indict» ment on the following grounds: “ 1. Because it charges the defendant with committing no offence known to the law. 2. Because it undertakes to charge the defendant under the Gen. Sts. <?. 161, § 85, with destroying personal property in a manner and by means particularly described and mentioned in § 80 of the same chapter.* 3. Because it does not allege the kind or description of food with which the poison is charged to have been mixed by the defendant. 4. Because it does not allege the kind or species of rat poison which the defendant is charged with mixing with the food. 5. Because it does not allege whether the defendant caused the food or the poison to be taken and eaten by the fowls, or a mixture of them. 6. Because the manner or means by which the defendant caused the food, poison or mixture to be taken and eaten by the fowls, is not alleged in the indictment. It is not alleged whether she administered it to the fowls, or exposed it so as to be taken and eaten by them, or how otherwise. 7. Because it is not alleged in the indictment that the defendant well knew that the rat poison mixed with the food was a deadly poison, or injurious to fowls. 8. Because fourteen distinct and separate offences are laid in one count in the same indictment. 9. Because the indictment does not allege the several values of the several articles of personal property charged to have been killed and destroyed, nor does it specifically allege the aggregate value of all of them. 10. Because no offence is fully or plainly, substantially or formally, described to the defendant in said indictment.”</p> <p>At the trial, there was evidence tending to prove “ that the defendant, at or about the time alleged in the indictment, having mixed what was called rat poison with bread in one vessel and with water in another, carried them to the shed of Morrill, where his hens were kept; and that on the following day, at different times, fourteen of them were found dead in different places, some in the shed.” The defendant contended that there was a variance between the proofs and the averments, as to the manner and means of killing and destroying the hens; and requested a ruling “ that, if the jury should find that the defendant merely exposed the poison in the shed with intent that it should be taken and eaten by the hens, such proof failed to sustain the averments.” But the judge instructed the jury “ that all that part of the indictment charging the manner or means of killing or destroying the fowls might be rejected as surplusage, and they might find the defendant guilty if they believed this evidence.”</p> <p>The jury returned a verdict of guilty, and the defendant alleged exceptions.</p>

Indictment on the Gen. Sts. c. 160, § 28, averring that George H. Moulton and Margaret Moulton on February 23, 1871, at Georgetown, “ maliciously and verbally did threaten one Hosea C. Killam to accuse said Killam of having committed the crime of adultery with Antoinette M. Hazen, wife of Nathan T. Ha-zen, with a view and with the intent to extort money from the said Kiilam.” Before the jury were empanelled in the superior court, the defendants moved to quash the indictment,…

<p>A conspiracy to obtain goods under color of a purchase upon credit, by one of the conspirators, from such persons as he could induce to part with such goods by his falsely pretending to them that he intended to take the goods to his shop to sell in the ordinary course of trade; and, having so obtained the goods, not to take them to the shop, but to secrete them, and cheat and defraud said persons of them; is indictable as a conspiracy to obtain the goods by a false pretence within the Gen. Sts. c. 161, § 54, and the St. of 1863, c. 248, §2.</p> <p>• An indictment which avers that the defendants conspired to obtain “ dry goods ” of an alleged value, “ under color and pretence of a purchase,” upon the credit of one of the conspirators, “ of and from such parties as could thereafter be induced by him ” to part with such goods “under the false and fraudulent pretence,” thereafter to be made by him to them, “ that he intended to take said goods to his retail shop,” specifying its location, “for the purpose of selling them there to his customers, by retail, in the usual and ordinary course of retail trade,” sufficiently avers that the defendants conspired to obtain the goods by means of the false pretence; is not bad as charging a pretence of a promissory character for the future, and not relating to a present fact; describes the substance of the pretence sufficiently; and also sufficiently describes the goods to be obtained by it, within the Gen. Sts. c. 161, § 54, and St. of 1863, c. 248, § 2.</p> <p>The liability of a bankrupt to criminal prosecution in the courts of the United States, under § 44 of the bankrupt act of 1867, for obtaining goods on credit, with intent to defraud, and under false color and pretence of dealing in the ordinary course of trade, within three months before the beginning of the proceedings in bankruptcy, does not exclude the courts of the Commonwealth from jurisdiction of him and others for conspiring to obtain the goods by the false pretence, under the Gen. Sts. c. 161, § 54, and St. of 1863, c. 248, § 2.</p> <p>It is no defence to an indictment that the facts in proof show that the defendant committed an offence of a higher degree than that charged.</p>

<p>Alimony may be awarded to the wife upon granting to the husband a divorce for her fault. Upon the petition of a husband under the St. of 1870, c. 404, to make absolute, as a divorce from the bond of matrimony, a divorce from bed and board, obtained by him under the Gen. Sts. c. 107, § 9, alimony awarded to the wife by the first decree may be increased, without a distinct petition therefor.</p> <p>Upon an application to alter a decree for alimony, the court may take into consideration property acquired by the husband since the original decree, as well as the facia on which that decree was founded and the circumstances of the separation of the parties.</p>

<p>Bill in equity filed April 3, 1871, to redeem land in Lawrence from a mortgage. The mortgagee was duly summoned as a defendant, but did not appear. At April term 1871, Aldusta A. Briggs, formerly the plaintiff’s wife, (who obtained a divorce against him from bed and board in this court at April term 1864,) was on her motion joined by order of Morton, J., as a defendant, and the plaintiff alleged exceptions. The case was after-wards heard by the chief justice and reserved for the determination of the full court, upon the pleadings, exceptions, and a statement of facts agreed by the plaintiff and Mrs. Briggs, the substance of all which appears in the opinion. The court were to pass such order thereupon as the facts should require; and it was further agreed that “ such decree as may be directed by this court upon the foregoing facts ” should be entered in a suit in equity brought in the superior court by Mrs. Briggs in February 1867, and still pending, to redeem the land from the same mortgage.</p>

<p>In an action for breach of a promise of marriage, the declaration alleged that the parties agreed to marry each other and the plaintiff was always ready to marry the defendant, but that he refused to many her. The answer admitted the mutual agreement, and alleged that the defendant offered to fulfil his promise, but that the plaintiff refused to fulfil hers except on new and unreasonable conditions. Held, that instructions to the jury were erroneous, that, if the defendant promised to marry the plaintiS and failed to fulfil his promise, the burden was on him to justify his failure on the grounds he alleged.</p> <p>In an action for breach of a promise of marriage made at a certain time, previous conversations of the parties on the subject of a marriage between them are admissible in evidence, as showing the relations of the parties, under instructions limiting their competency to the question whether there was an actual contract of marriage at the time relied on, although in his answer the defendant admits the making of such a contract at that time.</p> <p>In an action for breach of a promise of marriage made at a certain time to be executed at a later time, evidence that between the two times the plaintiff showed the defendant a letter which she had received from a woman to whom the defendant had once been engaged, inquiring about the plaintiff’s engagement with him, and that he dictated her reply; and also the letter itself; is admissible to show the relations of the parties, and, in connection with other evidence, to show that'the defendant was acting in bad faith towards the plaintiff.</p> <p>On exceptions to the admission in evidence of written statements of a witness for the purpose of contradicting him, the court will not consider their weight, if it is apparent that they conflict with his testimony in their spirit and general purport.</p>

<p>B., a stockholder in a street railway corporation, at his own expense furnished them with ten cars, which they took and afterwards retained possession of; and an agreement for the use and possession thereof by them was drawn up and authorized to be executed in behalf of the corporation, but never completed. R. afterwards became a director, and the corporation having no present means of discharging its obligation to him, the president, pursuant to a vote of the directors passed at a meeting at which R. was not present, executed an agreement to buy the cars of him for a gross sum, payable in monthly instalments, and to pay him at a certain rate for the use of the cars meanwhile. The first instalment not being duly paid, R. brought an action against the corporation for the whole purchase money and other sums due him, in which the president appeared, and, pursuant to a vote of the directors in which R. took no part, and for the purpose of giving him security for his claim, agreed in writing with his attorneys that judgment should be rendered for him for all the sums sued for; and judgment was rendered and execution issued accordingly, and levied upon the franchise of the corporation. Another stockholder then requested the president and directors to procure a stay of proceedings on the execution and a vacating of the judgment, and, this request not being complied with, filed a bill in equity in behalf of himself and other stockholders against the corporation, and the president and directors, including R., alleging that they “ are members of the board of directors; ” that the contract for the purchase and use of the cars “ was unauthorized and void,” and even if it was valid, R. was only entitled to recover the rent of the cars and the first instalment of the purchase money; that the agreement for judgment was fraudulent and corrupt; and that the individual defendants “have for a long time, and in disregard of their duty as officers as aforesaid, mismanaged the affairs of the corporation and wasted the moneys and injured the credit thereof, and have secured their reelection by unlawful means;” and praying for an injunction against the payment or satisfaction of the judgment and execution and the sale of the franchise, and for the removal of the president and directors from their offices, and the appointment of a receiver .of the corporate franchise and property. Held^ that, in the absence of proof of any fraud or corruption on the part of the defendants or any advantage to the corporation from a stay of proceedings, and of any allegation in the bill that R. was a director at any time before it was filed, the bill could not be maintained.</p>

<p>Contract on a policy of insurance. The writ, dated January 7,1871, was that day issued from the superior court under its seal, returnable to the ensuing March term, and bore the signature of Asahel Huntington as clerk of the court, who had signed it at some time prior to September 1870, in which month he died. Alfred A. Abbott was duly appointed and qualified as clerk of the court, in the place of Huntington, on September 27, 1870, and continued to hold the office on January 7, 1871. The defendants entered a special appearance at March term 1871, and at the same term the plaintiff moved for leave to amend the writ by adding the signature of the clerk.</p> <p>The parties stated the foregoing case to Lord, J., who with their consent reported it for the determination by this court of the question whether the defect was capable of amendment; if so, the amendment to be allowed, but if otherwise, the writ to be dismissed.</p>

<p>Contract on four promissory notes. Writ dated December 3,1869. The answer alleged that the defendant had paid the notes. Trial and verdict for the plaintiff in the superior court, before Lord, J., who allowed a bill of exceptions of which the following is the material part:</p> <p>“The defendant testified, at the trial, that in July 1869 he and the plaintiff agreed that there was due on the notes S1630 ; that on September 30,1869, the plaintiff called on him at his place of business, and asked if he was ready to settle; that after some conversation he handed to the plaintiff $1630 in bills, which the plaintiff counted and put in his pocket; that he then asked the plaintiff for the notes, and the plaintiff said he would bring them the next day or day after; and that the defendant then wrote a receipt for the amount, which the plaintiff signed. And the defendant produced and identified a receipt for 6 sixteen hundred and thirty dollars,’ dated September 30, 1869, as the one which the plaintiff signed. The plaintiff admitted his signature, and admitted receiving money from the defendant; but testified that the amount he received was only $30, and on a different claim, and that the words ‘ sixteen hundred ’ on the receipt produced by the defendant, and also several other words thereon, were not upon it when he signed it.</p> <p>“ Two witnesses called by the plaintiff testified, among other things, to seeing the receipt some time after it bore date, and said it had not been altered since they then saw it. They were not called for the purpose of testifying in relation to the receipt, but to what the defendant had said in relation to it; and in answer to the defendant’s counsel, on cross-examination, 'said they saw the receipt and that it had not been altered since then. The defendant’s counsel, in arguihg to the jury on the evidence of these witnesses, that the receipt, if altered at all, must have been altered before the plaintiff sued out his writ, was interrupted by the judge, who inquired whether the evidence of these witnesses was not rather that, hearing that the suit had been commenced, they called upon the defendant to ask about it, and the defendant then showed them the receipt.</p> <p>“ After the plaintiff had testified that the receipt produced by the defendant had been altered since it was signed, the defendant called a witness, who testified that about October 1,1869, (which time the witness fixed by saying that it was when he was going around collecting bills for rents which became due October 1,) he called at the defendant’s shop on business ; and that the defendant was there, and had spread out upon his desk, and was looking over a large number of receipts and bills, searching for this receipt. The receipt was then shown to this witness, who said that he saw it upon the occasion when he called at the shop., The defendant then offered to show by this witness that the receipt was the same when the witness then saw it as when shown to him upon the stand. But the judge stated that in his opinion the fact that the receipt was in its present form at the time spoken of by the witness had no tendency to show that it was in its present condition when signed, and he supposed it was offered for that purpose only. No reason was given for its admission, nor was the defendant himself called upon for any reason for its competency, except by such remark of the judge before ruling. The evidence was rejected, and the defendant excepted.”</p>

Appeal by a sister of Michael Sullivan from a decree of the judge of probate allowing an instrument as his last will. At the trial, before Wells, J., issues were framed for a jury, First, whether the will was duly executed and signed by the testator ; and Second, whether undue influence was used upon the testator to procure him to make the will.

<p>Replevin by the firm of Alfred Low & Company of a lot of flitched halibut from the assignees in bankruptcy of the firm of John Low & Son, all of Gloucester. Writ dated August 24, 1869. The parties stated the following case for the judgment of the court:</p> <p>On April 17, 1869, as the schooner Florence Reed, owned by John Low & Son, was about to sail from Gloucester on a fishing voyage, that firm received $1500 from the plaintiffs, and signed and gave the plaintiffs the following writing:</p> <p>“ We, John Low & Son, hereby sell, Assign and set over unto Alfred Low & Company all the halibut that may be caught by the master and crew of the schooner Florence Reed, on the voyage upon which she is about to proceed from the port of Gloucester to the Grand Banks, at the rate of five cents and a quarter per pound for Hitched halibut, to be delivered to said Alfred Low & Company as soon as said schooner arrives at said port of Gloucester at their wharf. And we, the said John Low & Son, hereby acknowledge the receipt of $1500 in part payment for the halibut that may be caught by the master and crew of said schooner on said voyage.”</p> <p>In July 1869 proceedings in bankruptcy were begun against John Low & Son in the district court of the United States for this district, in which they were adjudged bankrupts on August 6, and on August 20 these defendants were appointed the assignees in bankruptcy, and the deed of assignment was executed to them. On Saturday, August 14, the Florence Reed arrived at the port of Gloucester on her home voyage, and was hauled to the plaintiffs’ wharf; and on the morning of Monday, August 16, the United States marshal took possession of the vessel and cargo under a warrant issued to him on August 6 in the proceedings in bankruptcy, and transferred his possession to the defendants upon their appointment.</p> <p>The catch of the schooner consisted of about 40,000 pounds of halibut, and of some codfish. The plaintiffs demanded the halibut of the defendants, and offered at the same time to pay the price of it at the rate of five and a quarter cents per pound, less the $1500 already paid. The defendants refused the demand; and the plaintiffs then replevied such a quantity of the halibut as represented the amount of $1500 at that rate per pound, and offered to receive the rest of the halibut and pay for it at the same rate, but the defendants refused to acknowledge any right whatever of the plaintiffs in or to the fish.</p> <p>If on these facts the plaintiffs were entitled to recover, they were to have judgment for nominal damages; but if other-wise, the defendants were to have judgment for a return, with damages equal to interest at the annual rate of. six per cent, on the appraised value of the fish replevied.</p>

<p>The owner of a lot of wool, stored in his factory, sold it in good faith and for value, to a buyer who purchased on his previous knowledge and examination of the lot, and to sell again; agreed to keep the wool for a while where it was, on storage for the buyer, who had no place of his own to store it in; received the buyer’s direction to furnish him with samples of the wool to resell it by; opened some of the bales, took samples out of them, and sewed them up again; and then delivered the samples to the buyer, together with a bill of parcels, specifying the numbers, marks and weights of the bales, and acknowledging receipt of the contract price. Held, that there was evidence for the jury of a delivery of the wool as against a subsequently attaching creditor of the seller.</p>

Scere FACIAS against the surety in a recognizance entered into December 24,1868, under the Gen. Sts. e. 124, §§ 10,11, before the justice of the police court of Salem, by a judgment debtor arrested on execution, that he would deliver himself up for examination on his application to take the oath for the relief of poor debtors.

<p>Contract- against the sureties in a bond given by Mary Pepper to the plaintiff, dated in November 1868, and conditioned “ that, whereas the above bounden Mary Pepper this day sued out of the clerk’s office of the superior court a petition against the said Jonathan. C. Roberts for review of an action wherein the said Jonathan C. Roberts hath recovered judgment against her m said superior court, in due form of law, returnable before our justices of our superior court next to be holden at Salem, within and .or our said county of Essex, on the first Monday of December next; now if the above bounden Mary Pepper shall prosecute her said petition to final judgment, and shall pay all such costs and damages as the said Jonathan C. Roberts shall recover against her upon the final judgment, then this obligation to be void and of no effect; otherwise, to remain in full force and virtue.”</p> <p>The parties agreed that “ the petition was duly entered at the term of court to which it was returnable, and at a subsequent term came on for hearing, when the court passed on the same and entered a judgment thereon of 1 Petition dismissed, without costs.’ ”</p> <p>If on these facts there could be any recovery on the bond, judgment was to be entered for the plaintiff, otherwise for the defendants.</p>

Action on the Gen. Sts. c. 137, for possession of part of a dwelling-house in Peabody. Writ dated December 9, 1870. In the superior court, on appeal from the police court of Salem, the parties stated the following case : The house was property of the Essex Glue Company, a partnership consisting of Elijah W. Upton, Thaddeus W. Walker and Nehemiah Walker, the latter two themselves partners under the firm of Walker & Brother.

<p>Writ oe entry to recover a small- parcel of woodland in Ipswich. Trial in the superior court, before Brigham, C. J., who by consent of the parties made a report of the case before verdict, for the determination of this court, the substance of which is stated in the opinion. The plan of the land is copied in the margin.</p>

<p>A statute authorizing a city to build waterworks provided that any town on the line of the works might use the water on paying an equitable compensation, therefor; that no application for damages for the taking of any water rights should he made till the water was actually diverted; and that any person whose water rights were thus afiected might apply for damages within one year “ from the time when the water is first actually withdrawn or diverted.” By the original construction of the works, the flow oí water to a mill was diminished, but no serious inconvenience was felt by the mill owner until mors than a year afterwards, when, by reason of an additional diversion of the water to supply a town on the line oí the works, the flow of it to his mill ceased altogether, and he then for the first time applied for damages. Held, that his right to such an application was limited to the year after the original construction of the waterworks.</p>

<p>In an action to charge the defendant as an original promisor upon a promissory note, it appeared that the note was made payable to the maker’s order; that, while it was. in this condition, and before the maker indorsed it, the defendant put his name on the back of it, for the maker’s accommodation; and that, in negotiating it to the plaintiff, the maker altered its face so as to make it payable to the plaintiff’s order, without the defendant’s knowledge or consent. Held, that this was a material alteration, and avoided the defendant’s liability.</p>

<p>Contract, brought February 12, 1869, against William H. Lougee and Milton A. Bailey, late partners under the firm of Lougee & Bailey; Charles Ingalls and James Ingalls, partners under the firm of Charles Ingalls & Son; and James W. Bailey ; on a promissory note, of which the following is a copy, with its indorsements:</p> <p>“ $4000. Lawrence, September 17, 1868. Three months after date, for value received, we, Lougee & Bailey, as principal, and Charles Ingalls & Son and James W. Bailey as surety, promise to pay to the order of ourselves four thousand dollars.</p> <p>“ Lougee & Bailey.”</p> <p>Indorsed,</p> <p>“ William H. Lougee.</p> <p>“ Milton A. Bailey.</p> <p>“ Lougee & Bailey.</p> <p>“ Charles Ingalls.</p> <p>“ James Ingalls.</p> <p>“ James W. Bailey.”</p> <p>The plaintiffs’ original declaration contained two counts, to which they added four more in an amended declaration. In the second count of the original declaration, they alleged “ that the defendants made a promissory note payable to their order, a copy whereof with the indorsements thereon is hereto annexed, and the plaintiffs are the holders of the note, and the defendants owe them the amount of said note and interest thereon.” The plaintiffs’ sixth or last count, contained in the amended declaration, was as follows: “ And the plaintiffs say that the defendants William H. Lougee and Milton A. Bailey made a note payable to their own order, and indorsed the same to the plaintiffs ; and the defendants Charles Ingalls and James Ingalls and James W. Bailey, in consideration that the plaintiffs would lend upon said note the sum of four thousand dollars’, signed said note as surety, and promised to pay the plaintiffs the said sum of four thousand dollars ; and the plaintiffs lent said sum to the defendants; and the defendants owe the plaintiffs the amount of said note and interest ; a copy of which note is hereto annexed.”</p> <p>James W. Bailey alone defended the action. He demurred to all the counts; to the second, as not setting forth any cause of action,, in that it did not allege any indorsement, or other contract, by which the note became payable to the holders; and to the sixth, in that it joined in a single count parties alleged to be responsible in separate and distinct contracts. He also answered, denying generally all the plaintiffs’ allegations.</p> <p>Trial in the superior court, before Putnam, J., who made the following report thereof : “ The judge sustained the defendant’s demurrer to all the counts, except the second, of the amended declaration. At the trial on said second count, it appeared that the note declared on was in the form of the paper above set forth, and that the signature of James W. Bailey thereon was genuine. The judge ruled for the purposes of the trial, that, upon the proper construction of said paper, Bailey was liable on said count as a joint promisor, and that it was not competent for him to show by paroi that the real contract was otherwise. A verdict was accordingly ordered for the plaintiffs for the amount of the note and interest, and the case is reported to the supreme judicial court for revision upon the correctness of all of said rulings. Judgment is to be rendered upon the verdict, or the same is to be set aside and such judgment entered upon each of said counts, or a new trial had, as the said court may determine.”</p>

<p>In an action against two defendants, in which property of one of them was attached on mesne process, he gave a bond under the Gen. Sts. c. 123, § 104, to dissolve the attach- . ment, reciting that he was the defendant in the writ and not suggesting any other defendant, conditioned to pay within thirty days after final judgment in the action the amount, if any, which the plaintiff should recover therein. Judgment was rendered against both of them; but this defendant obtained a reversal of it against himself on a writ of review. Held, that he was under no liability in the bond, upon the unreversed judgment against the other defendant.</p>

<p>if a tenant at will of land removes a substantially constructed building from another place, and puts it on the land, upon stone foundations, with a cellar under it, as and for a permanent dwelling-house, without the consent of the landowner, or any contract with him, express or implied, that the tenant shall hold it as personal property, it becomes part of the realty, and cannot afterwards become personal property by the mere assent of the landowner without an actual severance of it from the land.</p>

Bill in equity, filed February 15,1871, by the mortgagor of a parcel of land in Marblehead, to redeem it from the mortgage.

<p>Bill in equity filed by the administrator with the will annexed of Helen M. Johnson, against her brother John P. Story, and another brother and two sisters of hers, who were her next of kin and heirs at law; and against William Johnson, who was the only child of William B. F. Johnson, her step son ; to obtain a construction of the residuary clause of her will, which was as follows: “ All the rest of my estate, real, personal or mixed, of which I shall die seised and possessed, I give, devise and bequeath to my son, William B. F. Johnson, his heirs, executors, administrators and assigns.”</p> <p>The bill alleged that William Johnson (a grandfather of the William Johnson above named) married Phoebe Johnson on July 8, 1827, and had as sole issue of the marriage William B. F. Johnson, born June 26, 1833; that said Phoebe died October 16, 1834, and on August 18, 1836, he married the testatrix; that of this marriage there was no issue, and he died September 5,1837; that the testatrix never married again, and thereafter she and said William B. F. Johnson lived together as step mother and step son, during the greater part of the time until March 9,1870, when said William B. F. died j that on July 24,1866, the testatrix made her will, which, after certain specific bequests, including legacies to her said brothers and sisters, appointed said William B. F. executor, and contained the residuary clause above quoted; that she died November 11,1870, and this will was duly proved in December 1870; that she died seised of real estate of the value of $200, and possessed of personal property of the value of $7945.01, a considerable part of all which was derived by her from her late husband; that said William B. F. Johnson was married some years before his death, and had as sole issue of iiis marriage one son, the defendant William Johnson, born February 7, 1869; that “ Elizabeth H. Johnson, the lawful guardian of said William Johnson, the only living child of the residuary devisee named in said will, claims that said devisee was a relation of the testatrix, and that by virtue of the Gen. Sts. a. 92, § 28,* he is entitled to all the estate devised to his father, William B. F. Johnson, and the whole amount of the personal estate bequeathed to him should be transferred and paid by the administrator to his said only child; ” but that “ said brothers and sisters and next of kin and heirs at law of the testatrix claim that said William B. F. Johnson was not a relation of her within the meaning of said statute, and all that part of her estate which is devised to him by the will is intestate estate, and the administrator should transfer and pay to them in equal shares all the personal estate so devised or bequeathed; ” wherefore the bill prayed for a determination of the validity of these conflicting claims, and for instructions to the plaintiff as to the administration of the portion of the estate in dispute.</p> <p>The answers admitted all the substantial allegations of the plaintiff; and the case was reserved by Ames, J., on the bill and answers, for the determination of the full court.</p>

<p>On the trial of a writ of entry brought in the name and behalf of a ward by the guardian, the guardian’s letter of appointment is admissible in evidence, although the fact of the guardianship is not disputed by the tenant, and although the letter shows that the appointment was made upon the ground that the ward was an insane person, and one of the issues is whether the ward had sufficient, mental capacity to execute a deed between twelve and thirteen months before.</p> <p>On the trial of a writ of entry, in which the tenant puts in evidence an office copy of a deed of the premises from the demandant to a third person, and afterwards, upon the issue of the demandant’s mental capacity at that time, calls the subscribing witnesses to testify to the circumstances of its execution, it is discretionary with the court to prohibit the tenant to introduce the original deed in connection with their testimony.</p> <p>On the trial of an issue in a writ of entry, whether the demandant had sufficient mental capacity at the time of her execution of a deed of the premises to a third person, one of the witnesses to the deed testified, for the tenant, that it was carefully read to the demandant before she signed it, and that she assented to it and acknowledged it as her free act before himself as a magistrate; and on his cross-examination denied ever having said that she was non compos mentis at that time. Held, that it was competent for the demandant to prove that the witness had said so.</p> <p>Upon the question whether a woman was induced by improper influence to change her abode from one family to another, evidence is competent of discomforts which she avoided, and comforts which she gained, byHie change.</p> <p>On the trial of an issue in a writ of entry, whether the demandant in capable and disposing mind elected to accept a provision in a will for her support, and thereby renounce her title in the demanded premises, the tenant requested an instruction to the jury (without the qualifying words in brackets) that if the demandant intelligently accepted the provision in the will, and received support in accordance with [and in view of ] it, she elected co renounce her title, and it was not necessary that there should have been .[an actual, or an intelligent, or an accurate] balancing of advantages, or of the comparative value of her title and of the provision in the will, but only an actual [intelligent] acceptance of the provision. The judge gave the instruction, but qualified it with those words, and added to it that there would be no intelligent acceptance of the provision, if the demandant had not mental capacity to understand what her title was or what the provision was, and to consider or balance them to some extent, or to compare to some extent the value of the one and the other. Held, that the tenant had no ground of exception.</p>

<p>Tort for breaking and entering the plaintiff’s close in New-bury. Writ dated September 25, 1865. The defendant sought to justify his alleged acts of trespass under claim of a right of way across the close. Trial in the superior court, before Putnam, J., who allowed the following bill of exceptions :</p> <p>“ The plaintiff claimed title under a deed of the premises from the heirs and widow of Robert Watt, dated December 24, 1862 ; a deed from Benjamin Pearson to Robert Watt, dated December 13, 1836; and a deed of the heirs of Robert Watt, who died in 1855, of a life estate in the same to his widow, dated August 18, 1855 ; and offered only these deeds in evidence, as his title.</p> <p>“ The defendant contended that, as agent or servant of Eben Ferguson, he had a right to pass over the plaintiff’s land, and had a right of way across it as appurtenant to a certain field and pasture adjoining it. He put in the title of the heirs of said Ferguson to the field and pasture, as follows: a deed of Amos Bray to James Ferguson, dated October 24, 1836; James Ferguson by his will, admitted to probate October 15,1844, to James Ferguson, Jr.; James N. Ferguson to Eben P. Ferguson, by deed dated January 12,1855. Eben Ferguson died in 1864, leaving heirs whom the defendant claimed to represent. The defendant’s deeds contained no allusion to any right of way over the plaintiff’s land.</p> <p>“ The defendant offered as a witness Herman D. Rogers, who testified that in 1833 he occupied, under James P. Ferguson, a house not far from the plaintiff’s land, and hired a right in the field and pasture of said Ferguson, and drove his cow to the same, over the way claimed, across the plaintiff’s land. The nature of the occupation of the field and pasture by said Ferguson did not appear otherwise than from the fact of his thus driving his cow to it across the plaintiff’s land. He testified that there was a well defined way, with wheel tracks, at that time, and from a long time previous, across the plaintiff’s land.</p> <p>“ The defendant then offered to prove by this witness, that, while so in occupation, in 1833, the witness, on the land, had a conversation with Robert Watt, then in occupation of it, and Watt told him that there was a right of way across the land as then used and that the Fergusons had the right to that way. The plaintiff objected to this evidence, and the judge excluded it.</p> <p>“ The plaintiff’s counsel, in opening the case, stated that he ■ should offer only evidence of his title, in the first instance; but stated to the jury, generally, how the land had been occupied, and by whom, since 1825, and among other things stated that Robert Watt, who took his deed in 1835, was in occupation of the land from 1831 to 1835 under a bond for a deed. But he offered no evidence of any such bond, and, when the testimony of Rogers was offered by the defendant, he disclaimed that he had any evidence of that fact, and did not make the statement as a material fact. There was no evidence of the character of Watt’s occupation prior to 1835.</p> <p>“ The defendant offered the deposition of James N. Ferguson; the 6th and 8th direct interrogatories, and the 11th cross-interrogatory in which, and the answers thereto, were as follows-:</p> <p>“ ‘ Int. 6. State what lands, if any, your father owned at any time in the vicinity of the premises ? State whether or not your father owned a field and pasture adjoining them. If yea, state the lands over which he passed in going to and from said field and pasture. State fully and particularly, and describe as well as you can, the courses pursued in going to and from said pasture and field ?</p> <p>“ 6 Ans. [He owned a farm in Newbury, in the vicinity of the premises claimed by the plaintiff; a pasture leading from our bam to Parker River; one field east of his barn, and one field northeast of his bam; a piece of woodland and two orchards, lying northwest of his house; and also a pasture and field on the east side of Parker River, containing thirty or forty acres.] The land which he passed over in going to his pasture and field was a pasture belonging to Mr. Watts, known as the Watts pasture. He passed over the river, crossing the bridge at the mill, then ascending a hill, then bearing south or southeast across the Watts pasture to his field and pasture. This description is as near correct as I can now remember.</p> <p>“ ‘ Int. 8. State whether said way was used by him as a matter of right, or by permission only ?</p> <p>“ ‘ Ans. The way used by him going to his field and pasture above referred to was by a matter of right; it always being understood that he had that right.</p> <p>“ ‘ Cross-Int. 11. Did not the Fergusons help repair the bridge for the privilege of crossing with the cows ?</p> <p>“ ‘ Ans. The Fergusons did not repair the bridge for the privilege of crossing with the cows, [as it was always understood that they had a perfect right to cross over without permission.] ’</p> <p>“ The plaintiff objected to the 6th and 8th answers in chief, and to the answer to the 11th cross-interrogatory. The judge excluded the whole of the 8th answer, and that portion of the 6th answer which is included in brackets, the latter on the ground that the ownership of real estate could not be proved in this manner ; and also excluded that portion of the answer to the 11th cross-interrogatory which is included in brackets.</p> <p>“ The question which went to the jury was whether the way had been used for twenty years, and so a title gained by prescription. The jury found for the plaintiff, and the defendant alleges exceptions.”</p>

<p>Bill in equity filed February 15, 1871, by the guardian of the minor children of John and Mary Hogan, to enforce specific performance of the defendants’ contract of purchase of a parcel of land in Salem, sold by public auction on October 12, 1870, in pursuance of a license of the probate court. The defendants answered that the plaintiff was unable to give a good title to the land; and he filed a general replication. Hearing before Morton, J., who made the following report thereof:</p> <p>“ The case came on for hearing upon bill, answer, replication and testimony. The plaintiff was duly appointed guardian of the minors named in the bill, and duly licensed to sell their real estate ; and he duly advertised the same, and the sale was in ah respects regular and legal. The defendant corporation authorized Jonathan F. Carlton to attend the auction, and bid off and buy the land for the defendants; and Carlton attended, and bid off the land, and the auctioneer duly signed a memorandum of the • sale, and of the terms of the sale, as the agent of both parties,” a copy of which was made part of the report, and showed that the amount of Carlton’s bid was $3575, and the terms of purchase were “ one half of the purchase money cash in one week, and the balance can remain secured by a mortgage of the premises at seven per cent.”</p> <p>“ This sale was made October 12, 1870. It appeared that John Hogan, the father of said minors, owned the land; and no question was made as to his title. Said Hogan died in November 1863, having made a will by which he gave the land to his wife, Mary Hogan, the mother of these minors, and nominated her as executrix. She duly presented the will to the probate court, and it was duly proved, allowed and recorded as his last will, but she did not give any bond, and was not appointed executrix of the will, nor was any other person appointed to administer upon his estate under the will.</p> <p>“ It further appeared that Mary Hogan was married again to John Welch, and died in November 1869, leaving these minors, the children of her first husband; and that she had no child by Welch, but that these children were her only heirs, and this land descended to them.</p> <p>“ The defendants, in October 1870, after the auction sale, proceeded to examine the title of these minors to the land, and objected that administration had not been taken out upon the estate of their mother; and thereupon, in December 1870, the plaintiff was duly appointed administrator of said Mary Welch, and gave notice of his appointment. The defendants also objected that administration of the estate of their father had not been taken; and thereupon, in January 1871, the plaintiff was duly appointed administrator with the will annexed of said John Hogan, and gave due notice of said appointment. On February 10, 1871, the defendants refused to take the land; and on February 13, 1871, the plaintiff duly tendered a deed of the land to them and demanded a performance of their contract, which tender and demand they declined. The judge finds that the defendants declined to take the deed on the ground that there was a cloud on the title; and as a fact, that the plaintiff used due diligence, and that said tender and demand were made within a reasonable time under the circumstances. There was no evidence on the question whether there were any debts due or owing from either John Hogan or Mary Welch.</p> <p>“ The question reserved for the full court is, whether the probability or possibility of debts against said estate, there being no affirmative evidence of any debts, is such a defect or cloud upon the title that a specific performance of the contract would not be decreed by this court in this cause. The court may dismiss the bill; or the case may be sent to a master to determine and report whether there are any debts; or a decree for specific performance may be entered; as the court shall determine.”</p>

<p>In a suit in equity under the St. of 1862, c. 218, to charge officers of a manufacturing corporation with personal liability for a debt for which judgment has been rendered against the corporation, paroi evidence is admissible, in connection with the record of the judgment, to identify the debt and limit it to the time of the officers’ default.</p> <p>A. sued B. in a trustee process, and summoned a manfacturing corporation as his trustee. Pending this suit, B. sued the corporation on the debt owing to him; the action was referred to arbitrators; and an award was returned for B., to which the corporation made no objection save its liability in the trustee process. A. recovered judgment against B. and the trustee; and afterwards against the trustee, in scire facias. In B.’s action, by agreement of the parties, he took judgment for costs only. Upon failure of the corporation to satisfy these judgments, after due proceedings under the St. of 1862, c. 218, A. and B. joined in a bill in equity to charge its officers with personal liability thereon. Held, that they were entitled to recover the amount of the judgments, excluding costs in the scire facias; and also to recover costs in the suit in equity.</p>

<p>Petition, on July 20,1871, by ten and more taxable inhabitants of the town of Gloucester, under the Gen. Sts. c. 18, § 79. alleging that on May 22, 1869, the inhabitants in town meeting voted to build a new town house, appropriated $90,000 for the purpose, and chose Addison Gilbert and four others “ a building committee, to have in charge the building of the house , ” that on September 13,1869, the committee contracted in writing with Albert Currier, for him to build the house and furnish the labor and materials therefor, for the price of $78,000 ; that soon after-wards Currier, in his own behalf and not in behalf of the inhabitants, contracted with Moses H. Clough and Daniel S. Watson “to do certain wood work in the building of the house, and furnish the materials for the same; ” that Watson bought out Clough’s interest in the sub-contract, and did the work and furnished the materials ; that on June 27, 1871, the inhabitants in town meeting appropriated $5000, and authorized the building committee to pay Watson a sum not exceeding $5000, for additional compensation for labor, on the town house; that “ the same was appropriated and voted to Watson as aforesaid on account of a loss he claims to have made under his said contracts with Currier and Clough, and not otherwise; ” and that the inhabitants of Gloucester were not a party to Watson’s said contracts, and had no interest therein. The prayer was for an injunction to restrain the committee from drawing, and the town treasurer from paying, any order for the $5000 or any part thereof.</p> <p>The building committee and the town treasurer and Watson answered jointly, admitting the allegations as to the vote to build the town house, the appointment of the building committee, the contract of the committee with Currier, his contract with Watson, and Watson’s performance of work on the house; also admitting that the inhabitants “ voted to appropriate the sum of $5000, and authorized the committee to pay a sum not exceeding that sum, as additional compensation to Watson for work and labor and materials furnished for the house; ” denying “ that said sum was appropriated to Watson on account of a loss which he made in the performance of said contracts with Currier and not otherwise,” and alleging that on the contrary, “ although Watson had suffered a loss by reason of his work, labor and materials furnished for the town house under said contract, the appropriation was made as additional compensation to him for the faithfulness with which he performed the said contract in the quality and character of the work and materials furnished by him upon die town house, the benefit of which the town now has and enjoys; ” denying also that the inhabitants had no interest in Watson’s contract with Currier and the work done under it, and alleging that, on the contrary, they were directly interested therein; and finally alleging “ that they had a right in law to construct the town house, that it was constructed in a legal and reasonable manner, that they had a legal right to compensate Watson for all the labor and materials furnished by him, that said additional compensation was no more than reasonable compensation for the work and materials furnished by him for the use and the benefit of the town, and that the appropriation of $5000 was made for a legal purpose, and for a purpose for which towns have a right to raise and appropriate moneys.”</p> <p>At the hearing, before Morton, J., it appeared that one of the articles in the warrant for the town meeting of June 27,1871, ■ was “ To see what additional compensation shall be paid to Daniel S. Watson on account of contract for building new town hall; ” and that the language of the vote of that date was as follows: “ Voted, that the sum of $5000 be appropriated, and that the building committee be authorized to pay Daniel S. Watson not exceeding that sum, for additional compensation for labor on the new town hall.” The judge ruled “that evidence as to the proper exercise of discretion on the part of the town was not admissible,” and reserved the question of the power of the town to pass the vote for the determination of the full court.</p>

<p>Complaint under the St. of 1869, c. 415, § 36, to the police court of Lynn, on March 25, 1871, that the defendant; on March 21, 1871, at that city “ unlawfully did keep intoxicating liquoi with intent unlawfully to sell the same in this Commonwealth,” he “ not being authorized to sell the same in this Commonwealth for any purpose under the provisions of ” the St. of 1869, c. 415, “ or by any legal authority whatever.” In the superior court, on appeal, before the jury were empanelled, the defendant filed a motion to quash the complaint upon the following grounds :</p> <p>• “ 1. That it does not set forth any offence with substantial precision and certainty.</p> <p>“ 2. That it does not charge that the defendant committed any acts which are necessarily criminal and punishable.</p> <p>“ 3. That upon the day named therein it was not necessarily criminal and punishable to keep intoxicating liquor with intent to sell the same within this Commonwealth, and without authority to sell the same.</p> <p>“ 4. That by the St. of 1870, c. 389, it is provided that it shall be lawful for any person to sell or keep for sale certain kinds oí intoxicating liquor therein named, to wit, malt intoxicating liquors, and although by a subsequent section of the same statute it is provided that the sale of such liquors shall be prohibited in such cities and towns as shall so vote, it is not provided that it shall be unlawful to keep such liquors for sale; and therefore this complaint is defective in that it might be sustained by proof of keeping malt intoxicating liquors for sale, an act which is not unlawful or prohibited.</p> <p>“ 5. That a complaint for keeping intoxicating liquors for sale should allege that the liquors so kept were such as it is unlawful to keep for sale.</p> <p>“ 6. That, inasmuch as by the general provision of the statute it is lawful both to sell and to keep for sale certain kinds of intoxicating liquor, and the provision by which such sale is prohibited in such cities or towns as may so vote is contained in a subsequent section of the statute, there is no sufficient negation of the authority of the defendant to sell the intoxicating liquor which he is charged with keeping.</p> <p>“ 7. That the negation of the authority to sell alleges the absence of authority to sell under the provisions of the St. of 1869, o. 415, whereas he may have had authority under the said statute of 1870, which is not negatived or denied in the complaint.”</p> <p>This motion was overruled by Rockwell, J., whereupon the defendant pleaded guilty, and moved in arrest of judgment upon the same grounds, which motion also was overruled, and he alleged exceptions.</p>

<p>Indictment on the Gen. Sts. c. 87, §§ 6, 7, for keeping and m lintaining at Lynn on June 1, 1870, and divers other days and times between that day and the first Monday of October 1870, a tenement used by the defendant for the illegal- sale and illegal keeping of intoxicating liquors. Trial and verdict of guilty in the superior court, before Pitman, J., who allowed a bill of exceptions of which the following is the material part:</p> <p>“ Upon the trial, the Commonwealth put in evidence tending to prove that between July 22, 1870, and the first Tuesday of September 1870, the defendant kept for sale and sold ale. The defendant objected to the evidence, and contended that within said time he had a right to keep and sell ale ; but the judge declined so to rule, and instructed the jury that the keeping and selling of ale within said time was competent evidence to prove the guilt of the defendant under the indictment. It was proved and admitted that the city of Lynn had voted against the sale of ale on the first Tuesday of September 1870.”</p> <p>The 22d of July 1870 was the day when the St. of 1870, c. 389, went into effect, and the first Tuesday of September 1870 was the day when the city might for the first time under that statute vote to prohibit the sale of malt liquors.</p>

Indictment on the Gen. Sts. e. 87, §§ 6, 7, for keeping and maintaining at Lynn on June 1,1871, and divers other days and times between that day and the first Monday of October 1871, a tenement used by the defendant for the illegal sale and illegal keeping of intoxicating liquors.

Indictment on the Gen. Sts. c. 87, §§ 6, 7, for keeping and maintaining at Rockport on June 1,1870, and divers other days and times between that day and the fourth Monday of January 1871, a tenement used by the defendant for the illegal sale and illegal keeping of intoxicating liquors.

<p>At the trial of an indictment on the Gen. Sts. c. 87, §§ 6,7, for keeping a tenement for the illegal sale of intoxicating liquors, evidence is competent of a voluntary offer of the defendant to plead guilty, on terms affecting his sentence, to a complaint made against him for keeping intoxicating liquor in the tenement for unlawful sale within the time charged.</p>

<p>The vote of a town or city on the first Tuesday of May 1871, under the St. of 1870, c. 389, not to prohibit the sale of malt liquors there, was limited in its effect by the St. of 1871, c. 334, to the first day of the ensuing July.</p>

Indictment for an assault upon a police officer. Trial an 3 verdict of guilty in the superior court, before Scudder, J., who aUowed the following bill of exceptions: “ The only evidence offered by the Commonwealth to show that Philip R. Morse, the alleged officer, was a police officer at the time of the offence, and the only evidence in the case relating thereto, was the testimony of himself and other witnesses to the effect that he was at the time acting as such officer,…

Indictment averring that the defendant, at Lynn, on March 19, 1871, “ in and upon one William S. Waitt, in the peace of said Commonwealth then and there being, an assault did make, he, the said Waitt, being then and there a police officer of said Lynn, and then and there also being in the due and lawful discharge of the duties of said office, and him, the said Waitt, while then and there in the due and lawful execution of his said office, then and there unlawfully, knowingly…

Complaint to the police court of Haverhill for an unlawful sale of intoxicating liquors. The record of that court stated that the defendant, upon being arraigned, pleaded not guilty, and afterwards “ files plea in abatement and motions to quash, both which are overruled.

Writ of error to reverse the judgment of the superior court upon a conviction of the plaintiff in error on an indictment for adultery. Plea, in nullo est erratum. The record showed that at September term 1867 of the superior court in Norfolk two indictments were found against the plaintiff in error, the first for lewd and lascivious cohabitation, and the second for adultery.

<p>A placa in a river where the water rises and falls two feet with the flow and ebb of the tide is within tide waters, although the fluctuation is caused by the meeting of the sea water with the river water.</p> <p>Tide water navigated for pleasure is navigable water, although the craft on it have never been used for purposes of trade or agriculture.</p> <p>The remedy by injunction at the relation of the harbor commissioners, under the St. ol 1866, c. 149, § 5, against unlawful erections or works within tide waters flowing into a harbor, is cumulative, and may be apnlied in any such case within the statute.</p>

<p>Formal objections to a complaint, taken for the first time in the superior court on appeal from a conviction by a trial justice, and therefore invalid under the St. of 1864, c. 250, § 2, cannot be reported for the determination of this court even after verdict and with the consent of the defendant.</p> <p>/L pond more than twenty acres in area, connected with the sea only by a narrow channel, partly natural and partly artificial, not suited to any other use than the passage of fish, nor always sufficient for that purpose without being artificially cleared, and not a navigable stream within the definition of the St. of 1869, c. 384, is a great pond within the meaning of that statute, of which the commissioners ol Inland fisheries may make a lease under § 9.</p> <p>The provisions of the St. of 1869, c. 384, § 9, for leasing great ponds exceeding twenty acres in area, for the purpose of cultivating useful fishes? and of § 19, for punishing whoever fishes without permission of the proprietors where fishes are lawfully artificially cultivated or maintained? include all kinds of fish, whether migratoiy or not.</p> <p>The lease of a great pond by the commissioners on inland fisheries for the purpo*» f cul* tivating useful fishes under the St. of 1869, c. 384, § 9, renders the pond a place where fishes are lawfully artificially cultivated or maintained, within the provisions of § 19 for the pupishment of whoever fishes in such a place without permission of the proprietors, so long as the occupation of the pond is not abandoned by the lessee, without regard to any neglect of his to fulfil the provisions of the lease.</p> <p>The exclusive right of the lessee of a great pond for the purpose of cultivating useful fishes under the St. of 1869, c. 384, § 9, to fish therein, is not limited to the portion of the pond which he is authorized to occupy with inclosures and appliances to carry out the purpose of the lease.</p> <p>The terms of a lease of a great pond for the purpose of cultivating useful fishes under the St. of 1869, c. 384, § 9, in respect to the taking of fish in the pond by the lessee, are within the discretion of the commissioners on inland fisheries.</p> <p>The provision of § 9 of the St. of 1869, o. 384, that the appliances and inclosures used by the lessee of a great pond for the cultivation of useful fishes shall be so placed as not td debar ingress to or egress from the pond at proper places, does not necessarily require the placing of them so as not to debar ingress or egress at all times ? and it is no objection to the lease that it provides that they shall be placed so as not to debar ingress of egress u at proper times.”</p>

<p>Upon an indictment for taking smelt at a time forbidden by the St. of 1869, c. 384, § 31, which provides that the statute shall not apply to any person catching smelt “ while fishing for herring or alewives,” the defendant may be convicted if he intended to catch smelt, although he also intended to catch herring, and the catching of herring was lawful.</p> <p>The St.* of 1869, c. 384, § 31, forbidding the taking of certain fish at their spawning seasons, is binding on riparian proprietors of unnavigable streams, and is constitutional.</p> <p>Vhe proper means of recovering the penalty for the illegal taking of fish under the St. of 1869, c. 384, § 31, is by indictment; and the commission as on inland fisheries need not be the prosecutors.</p>

<p>An objection that an averment in a complaint on the Gen. Sts. c. 165, § 41, that the defendant “did wilfully and cruelly torture a certain horse,” does not sufficiently describe the offence, is an objection to a formal defect within the meaning of the St. of 1864, c. 250, § 2, and cannot be taken for the first time on an appeal from the judgment of the court to which the complaint was made.</p>

Indictment for the manslaughter of Margaret McAfee, charging that the defendant, at Boston, on July 3,1871, “her, the said Margaret, did feloniously and wilfully strike, kick, beat, bruise and wound in and upon the head and body of her,, the said Margaret, and her, the said Margaret, did throw upon the floor, thereby by the said striking, kicking, beating, wounding and throwing upon the floor, then and there giving to the said Mar. goret divers and many mortal strokes,…

Indictment on the Gen. Sts. c. 165, § 9, against Sophia C. Thompson for “ maliciously and without any lawful justification ” using an instrument upon Mary J. Fitzgerald, with intent to cause and procure a miscarriage, and against Joseph Hale for procuring, nounselling and commanding Thompson to commit the felony.

<p>A person who had been arrested in the evening by two officers, A. and B., on a charge of larceny, was told by A., out of B.’s hearing, that he had better confess to B. In reply to questions by B. afterwards on the same evening, and on the next morning, he denied his guilt; but later in the day B. found the stolen property, and told him of it. Beldt that statements then made by him to B. were admissible in evidence against him on his trial for the crime.</p>

<p>Indictment containing two counts, the first for robbing Richard Dootson, the second for receiving thirty-one gold sovereigns, of the property of Dootson, knowing them to have been stolen.</p> <p>At the trial in the superior court for Norfolk, before Dewey, J., it appeared that Dootson stole the sovereigns from their real owner, and afterwards on the same day was robbed of them by Lot Armstrong; and there was evidence that the defendant received the sovereigns from Armstrong. As to the defendant’s guilty knowledge, there was conflicting testimony; and he introduced evidence' of good character, and that he was drunk at the time when the sovereigns were received.</p> <p>The judge, against the objection of the defendant, instructed the jury that they would be authorized to find the ownership of the sovereigns to be in Dootson, if they were satisfied that he had actual possession of them at the time of the robbery; and on the quéstion of guilty knowledge, instructed them that, if the defendant received the sovereigns under such circumstances as would satisfy a man of ordinary intelligence and caution that they were stolen, they would be authorized to find the guilty knowledge charged.</p> <p>The jury returned a verdict of not guilty on the first count, and guilty on the second count; and the defendant alleged exceptions.</p>

<p>Indictment for receiving forty-eight dozen calf skins, of the property of Peter Page, knowing them to have been stolen.</p> <p>At the trial in the superior court for Norfolk, before Rockwell, J., it appeared that the skins were the joint property of Peter Page, John Pearl and Jonas Jeffers ; and that they were sent to Page to be sold by him, if possible, and were in his exclusive } "«session for that purpose at the time of the larceny. The defendant requested the judge to rule that this evidence did not sustain the averment in the indictment that the skins were the property of Page; but he refused so to rule, and ruled that there was no variance.</p> <p>It further appeared that the defendant was a common laborer, and his son was a bootmaker; that two dozen of the stolen skins were found buried under a coal bin in the defendant’s cellar; and that the defendant’s son had access to and used the cellar. There was other evidence tending to show that the defendant received the skins and aided in their concealment, knowing them to be stolen. The Commonwealth expressly disclaimed contending that the finding of the skins under these circumstances raised any presumption of law against the defendant.</p> <p>The defendant requested the judge to instruct the jury “ that possession of the property stolen, to raise a reasonable presumption against the defendant, must be unexplained, and be under the defendant’s exclusive control; and that, by the evidence of joint occupation by another with the defendant, of the place of possession, uncontradicted and uncontrolled, a reasonable doubt would be thrown upon the primd facie case of the possession, and the defendant could not be said to be proved guilty beyond a reasonable doubt.” But the judge declined to instruct the jury in that form, inasmuch as the Commonwealth had not contended that the facts, as shown, raised any presumption of law against the defendant upon this branch of the case ; and did instruct them “ that the question of how much weight should be given to the fact that these skins were found buried in the defendant’s cellar was for them to determine in connection with the rest of the evidence in the case; and that if, upon all the evidence, they were satisfied, beyond a reasonable doubt, that the defendant bought, received, or aided in the concealment of these skins, knowing them to have been stolen, then they would find him guilty, otherwise not.” The jury returned a verdict of guilty, and the defendant alleged exceptions.</p>

Indictment against Thomas Fagan and Michael Riley for robbing George A. Turner. At the trial in the superior court for Middlesex, before Heed, J., the fact of the robbery was not denied, and the case turned on the identity of the robbers with the defendants.

<p>Indictment for perjury, alleging that the defendant, having been taken on execution upon a judgment recovered against him in the superior court for Suffolk by John M. Way, and having sued out of said court a writ of audita querela against Way, tc set aside all proceedings under the execution, “ made application, by a petition in writing, to said superior court, praying that a writ of supersedeas might issue from said court to stay proceedings under said execution until a final hearing could be had under said writ of audita querela ; ” that the defendant “ was then and there lawfully required by said superior court, having full authority to make such requirement, to make oath to the truth of the allegations in said petition contained, before Joseph A. Willard, Esquire, clerk of said court, and said Moses P. Kimball, then and there, before said Willard, clerk as aforesaid, having full power and authority to administer such oath,” at Boston on January 27, 1870, “ did then make oath that the statements in said petition were true; and that said Kimball, being then and there by said Willard, as such clerk, duly sworn to testify the truth in the premises, did then and there falsely, knowingly, wil fully and .corruptly, in and by said written petition, depose and swear as follows: ” (here setting forth the petition;) that the statements in the petition were of material facts and were false, and that the defendant “ before the said Joseph A. Willard, clerk as aforesaid, authorized as aforesaid,” did commit perjury.</p> <p>At the trial in the superior court for Suffolk, before Dewey, J., the Commonwealth introduced in evidence the petition referred to in the indictment. It was addressed to the justices of the superior court; alleged that the judgment on which execution issued in favor of Way was satisfied by the defendant, and Way promised to return the execution with acknowledgment of satis faction, but, notwithstanding, arrested the defendant on the exe cution; prayed that a writ of supersedeas might issue to stay proceedings under the execution until a final hearing upon the audita querela; was signed by the defendant; and bore the following certificate: “ Suffolk, ss. Superior Court. January 27, 1870. Subscribed and sworn to before me, Joseph A. Willard, Clerk.” The Commonwealth introduced also the record of the judgment in favor of Way against the defendant (from which it appeared that the judgment was rendered on two promissory notes) ; the execution issued thereon, on which the defendant was arrested; the writ of audita querela, which was regularly served on January 27, 1870; and a complaint of Way for the non-entry of the same.</p> <p>Joseph A. Willard testified “ that he was clerk of the superior court for civil business in the county of Suffolk; that the petition for the supersedeas, subscribed by the defendant, was presented and sworn to by the defendant before him ; that he did not remember whether it was in his office or in court; that there was no general or special order of the court to administer the oath; but that it was the general practice in such cases.” The witness made no further statement as to the oath or the words in which the defendant was sworn.</p> <p>It was conceded that the statements in the petition related to material facts. The evidence as to the falsity of these statements, and as to the defendant’s knowledge thereof, was conflicting.</p> <p>The defendant having testified that the notes on which the suit of Way against him was brought had been satisfied before the judgment thereon, the Commonwealth was allowed, against his objection, to put in, on Ms cross-examination, Ms answers in that smt, as evidence of the claims at that time set up by him as to the notes. These answers set up that the notes were without consideration, were usurious, had been paid, had been satisfied, and were barred by the defendant’s discharge M msolvency.</p> <p>The jury returned a verdict of guilty, and the judge, “ deeming of sufficient importance the question whether the testimony of the clerk, in connection with the records and papers in evidence, was sufficient to authorize the jury to find that the defendant was sworn in such a manner and under such circumstances as to authorize a conviction of perjury,” reported the case, by the defendant’s request, so far as necessary to present that question for the determination of tMs court.</p>

Complaint on the St. of 1869, e. 415, § 39, to the police court of Chelsea, that the defendant on August 17, 1871, did carry certain intoxicating liquor from place to place in that city, he then and there having reasonable cause to believe that it was then and there intended to be sold in violation of the laws of the Commonwealth.

Complaint to the municipal court of the city of Boston, that the defendant, between November 19, 1870, and May 19,1871, at Boston, did keep and maintain a tenement used for the illegal sale and illegal keeping for sale of intoxicating liquors.

<p>An indictment on the Gen. Sts. c. 87, §§ 6, 7, charging that the defendant dtd keep and maintain a tenement used for the illegal sale and illegal keeping of intoxicating liquors, is sufficient, without more particularly describing the liquors, and without an expresa averment that they were not such as it was lawful to keep and sell; and is supported by proof that he kept the tenement, and either kept therein intoxicating liquors for illegal sale, or illegally sold intoxicating liquors therein.</p> <p>£ n indictment for keeping a tenement in the basement of a building, for the illegal sale and illegal keeping of intoxicating liquors, is sustained by evidence that the tenement was kept as a “saloon; ” that in it were a counter aud a beer-pump, and bottles and tumblers, some of which had recently contained whiskey; that intoxicating liquors were found in it, and in the story above it, where the defendant lived; and that the defendant admitted that he had sold liquors.</p>

Complaint to the municipal court of the city of Boston, on the Gen. Sts. c. 87, §§ 6, 7, for keeping a tenement in that city, used by the defendant for the illegal sale and illegal keeping of intoxicating liquors.

Indictment of William Woolford and his wife, on the Gen. Sts. c. 87, §§ 6, 7, for keeping in Wrentham on December 1,1869, and divers other days and times between that day and the first Monday of September 1870, a tenement used for the illegal sale and illegal keeping of intoxicating liquors.

Complaint to the municipal court of the city of Boston, for keeping intoxicating liquors with intent to sell them unlawfully.

Indictment for larceny in a building, with this caption: “ Commonwealth of Massachusetts. Middlesex, to wit. At the superior court begun and holden at Cambridge within and for the county of Middlesex, on the second Monday of February in the year of our Lord one thousand eight hundred and sixty-one; ” averring the commission of the crime on January 17, 1871; and indorsed as follows: “ Superior court, February term 1871, 5th day. Returned by the grand jury and filed in court.

Indictment on the Gen. Sts. c. 160, § 28, with two counts: the first averring that the defendant at Boston on February 1, 1870, verbally, wilfully and maliciously threatened Nathaniel F. Emerson to accuse him of committing “ the crime of fornication and adultery,” with intent then and there “by such threat” to extort money, to wit, the sum of $1000, from him, but not setting forth the words of the threat or stating their substance; the second in like terms, save that the…

<p>Habeas CORPUS to the master of the house of correction in Boston, upon the petition of Francis P. Kenney, verified by oath on September 20, 1871, in behalf of his son, John S. Kenney, alleging that said John S. was imprisoned and restrained of his liberty by the said master ; that the cause or pretence of the imprisonment was a mittimus issued by the judge of the probate court for Suffolk ; that the said John S. was a minor more than sixteen years old; and that said imprisonment was unlawful; and annexing a copy of the mittimus. By this copy, it appeared that the mittimus bore date of July 31, 1871; recited that John S. Kenney, a minor less than seventeen years old, stood convicted before the judge of the probate court of embezzling property of the value of $1040 at Boston on July 23, 1871, for which offence he was sentenced by that court to be committed to the house of correction in Boston, and put to hard labor there for eighteen months from said July 31; and commanded the master of the house of correction to receive him and keep him in custody until the expiration of the eighteen months, or his discharge otherwise in due course of law.</p> <p>The master made return, justifying his holding of the prisoner by virtue of the mittimus; and the case was heard by Oolt, J., and reserved for the decision of the full court, upon the petition, writ, return, and agreed facts, by which it appeared that the prisoner was born May 15, 1855, and that the proceedings in his case were as follows :</p> <p>On July 26,1871, complaint was made to the municipal court of the city of Boston, that on July 23, 1871, at that city, the said John S. Kenney, being then and there the clerk and servant of William D. Pickman, and not being his apprentice or less than sixteen years old, embezzled two money orders, of the property of his said employer and of the value of $1040. The accused was arrested and taken before the municipal court, upon the warrant issued on this complaint; and an order was then indorsed by the presiding justice upon the warrant, that, “ it appearing to said court that the said Kenney is a person under the age of seventeen years, it is ordered that he be taken before the judge of probate for Suffolk County.” Thereupon, on July 31, 1871, he was taken, with the warrant and the complaint, before the judge of probate, and the proceedings were had which were recited in the copy of mittimus which was annexed to the petition.</p>

<p>Hie fact that a promissory note, the principal of which is payable in four years with interest annually, bears no indorsement of the receipt of either of three instalments of interest which have fallen due, does not of itself render the note subject, in the hands of a third person who then took it as collateral security, to equities existing between the original parties to it; but is a circumstance for the consideration of the jury, on the issue whether he took it in good faith and without notice of such defences.</p>

CONTBAOT on a promissory note made by the defendant. The answer set up a discharge in bankruptcy granted to him by the district court of the United States for the district of Massachusetts, in proceedings begun under the United States bankrupt act of 1867, c. 176, after the making of the note.

Contract on a bill of exchange. The case was submitted to the judgment of the court on agreed facts, and argued at March term 1871; and is stated in the opinion.

Contract, brought December 18, 1868, against George H. Butterworth, Albert F. Butterworth and Willard Manuel, on a promissory note of which the following is a copy, with its indorsements : “ $1335.57. Boston, July 20,1868.

Contract against partners doing business at Boston under the name of Horatio Harris & Company, on the firm’s check, dated November 10, 1870, upon the Second National Bank of Boston, for $1216.80, payable to the order of H. Johnson & Company, and indorsed in blank by them. Writ dated November 30,1870.

Contract, brought May 28,1870, by Timothy P. Moseley and Jonathan W. Hodgman, partners under the firm of Moseley & Hodgman, on this instrument signed by the defendant: “ Saugus, Mass. January 1st 1870.

Contract to recover a balance due upon an account stated on June 1, 1868. The answer set up that the account consisted of items for intoxicating liquors sold here by the plaintiff :o the defendants in violation of law.

<p>Tobt for assault and battery, and false imprisonment, at Cambridge. Writ dated June 22, 1870. The defendant answered “ that he was the chief of police within and for the said city of Cambridge; that the plaintiff was in a certain horse car, within said city, drunk and intoxicated and disorderly, and disturbing the peace by his unlawful conduct; that the defendant, in the exercise of his duty as a police officer, directed the arrest of the plaintiff, and his removal from said car, and assisted thereat, and detained the plaintiff in custody at a station-house in said city for a short space of time and until he had recovered from the intoxication aforesaid, when the defendant released and discharged the plaintiff; and that, in all his acts aforesaid, the defendant did no more than he might lawfully do, and no more than his duty as such police officer.”</p> <p>At the trial in the superior court, before Seudder, J., the jury returned a verdict for the plaintiff, with damages in the sum of $300 ; and the judge allowed a bill of exceptions which referred to the pleadings and continued as follows: “It was in evidence that the plaintiff was arrested without a warrant, and that the defendant, after detaining him in custody for the space of one hour, released him therefrom, and took no further proceeding in the premises. Upon this evidence, the judge instructed the jury that, even although they should find that the said arrest and imprisonment of the plaintiff were lawful and justifiable, yet it was the duty of the defendant to pursue the matter so far as to bring the plaintiff before a magistrate on complaint, for trial for the offence for which the said arrest was made, and that the failure of the defendant so to proceed made him a trespasser at) initia, unless the jury should be satisfied that the plaintiff consented to his discharge and the termination of the proceeding as aforesaid; to which ruling the defendant excepted.”</p>

Trustee process. The defendant was defaulted, in the superior court, and the Boston Five Cents Savings Bank, who were summoned as trustees, made answer that they had in their possession $628, deposited by Betsey Abbott and credited on their books to her as trustee for the defendant. William H. Carter, administrator of the estate of Betsey Abbott, appeared as claimant.

Bill in equity filed October 13,1870, to charge Frederick Nickerson, Frederick W. Nickerson, Milo J. Burke, and ten other individual defendants, as officers of the defendant corporation, (which was a manufacturing corporation, organized in 1866 under the Gen. Sts. e. 61, established at Boston, and having its annual meeting in January,) with personal liability for debts contracted by the corporation to the plaintiff in the year 1869, for which he recovered judgment against it…

Bill in equity by a vendor to enforce performance of a contract of Joseph Lovejoy and James C. Elms with her for the purchase of real estate in Boston, of which she claimed to be seised in fee simple under a devise in the will of Daniel N. Spooner, her deceased husband, the first three sections of whose will provided for the payment of his debts and gave certain legacies to Ms sisters, and the fourth section was as follows: “ I give, bequeath and devise all the rest, residue…

Petition by Benjamin F. Edmands and John J. Rayner to the superior court, under the St. of 1866, o. 174,* for a jury to assess the damages occasioned by the taking of a portion of their land and of the four story brick building thereon, by the respondents, for the widening of Hanover Street. Trial at April term 1871, before Devens, J., who reported the following case for the determination of this court: The order for taking the petitioners’ land was passed December 31, 1868.

<p>Petition against the administrator of the estate of Richard Crease, alleging that Crease made a written agreement with the petitioner to sell him a certain parcel of real estate in Boston, and afterwards died, and the respondent was appointed administrator of his estate; that the petitioner presented a petition to the probate court in Suffolk, praying for a specific performance of the agreement; that the land was subsequently taken by the city of Boston, under the St. of 1868, e. 277 ; and that the probate court dismissed the petition, because specific performance of the agreement had become impossible by reason of the act of the city. The present petition prayed that the respondent might be compelled to convey and assure to the petitioner all the right of Crease’s heirs in the land, and all their claims against the city. The respondent demurred because, besides other causes not now material, it appeared from the petition that a similar petition for the same purpose, upon the same agreement and between the same parties, had been dismissed by the probate court. The case was reserved by Colt, J., on petition and demurrer, for the consideration of the whole court.</p>

Contract to recover one month’s rent of a tenement in Boston. Writ dated January 6, 1870.

Contract to recover $1450 as rent from April 1, 1870, to July 1,1870, by virtue of a lease under seal, dated December 15, 1869, given by the plaintiff to Charles E. Jackson and David W. Muzzy, of buildings on Washington Street in Boston, for ten years, at an annual rent of $5800, payable quarterly, which the lessees covenanted to pay.

<p>In an action by A. against B., an attachment of B.’s property on mesne process was dissolved upon a bond given by him with C. and D. as sureties. A. recovered judgment against B., which was not paid; and then brought suit on the bond, recovered judgment therein against B., C. and D., and arrested B. on the execution issued on this judgment. B. applied to take the oath for the relief of poor debtors, and entered into a recognizance under the Gen. Sts. c. 124, § 10, with E. as surety, to deliver himself up for examination. After a breach of the condition of the recognizance, C. and D. paid the amount of this judgment to A., with the costs accrued thereon, and brought an action in his name, for their own benefit, against E., on the recognizance. Held, that they could not maintain the action.</p>

Contract by a deputy of the sheriff of Suffolk, on two bonds taken by him under the Gen. Sts. c. 123, § 88. Writ dated March 19,1870. Trial in the superior court, before Beed, J., who directed a verdict for the defendants and reported for the determination of this court the case which is stated in the opinion.

Contract on two promissory notes made by the defendant payable to the order of Mrs. Harriet M. Hart, indorsed by her to the plaintiff, and overdue at the date of the writ, November 28, 1868.

<p>In answer to a declaration on an account annexed for goods sold and delivered, the d Cendant set up that they were sold under a special contract fixing their quantity, quality and price; that he was damaged by failure of the plaintiff to deliver the stipulated quantity; that he was also damaged by the inferior quality of those delivered; that he did not accept them; and that he had paid on account more than their value. And he brought a cross action upon like allegations of damage. On the trial of the actions together, he contended that the plaintiff had no claim otherwise than under the special contract; but refused to elect whether to avail himself of his own claim for damages, for breaches of that contract, in defence against the original action, or in support of the cross action. Held, that he was precluded from claiming that there had been no delivery under the special contract; that his entire damages for breaches of that contract were to be assessed, and applied first to cancel in whole or in part any balance due upon it for the goods delivered ; and that for any excess he was entitled to recover in the cross action, but if there was no such excess then judgment was to he entered against him therein. Held, also, that, if the jury found any amount due from him in the original action, his exceptions to instructions directing a verdict against him in the cross action could not be sustained.</p> <p>On the trial of an action for the price of goods delivered in part performance of a contract which provided that some goods, being on hand, should be delivered at once, and the rest as fast as manufactured, and payment be made “net cash, 30 days or 90 day note, interest added,” the defendant has no ground of exception to the refusal of a ruling that there can be no recovery without showing an entire performance or offer to perform by the plaintiff.</p> <p>A contract, made here, with a manufacturer of window glass in a distant city, for the purchase from him of glass there manufactured or to he manufactured, and its delivery there to a carrier, referred for the designation of sizes of the glass, and as the basis of prices, to cards issued by the manufacturer without special reference to the market here. Held, that, if there was a difference of local usages as to the standard of measurement or mode of cutting the glass to fit the corresponding sizes of sash, and no provision made for it in the contract, the usage there would govern.</p> <p>In an action on an account annexed, which was referred to an auditor, whose report was put in evidence on the trial, the judge instructed the jury that they were to assume, in the absence of anything to the contrary, that the auditor proceeded on proper legal grounds, and that his report was therefore legal evidence which settled the controversy and entitled the parties to have judgment accordingly, unless one party or the other should satisfy them that the auditor was in error. Held, that this instruction afforded no ground of exception.</p>

<p>Writ oe entry, dated December 20, 1870, by children of John B. Haley, to recover a parcel of real estate on Cambridge Street in Boston, to which both parties claimed title under the will of Lucy Bullman. Trial in the superior court, before Dewey, J., who with consent of the parties made a report thereof, by which the facts appeared as follows:</p> <p>Lucy Bullman died before January 9, 1832, on which day her will, dated December 26,1828, was proved and allowed in the probate court for this county. At the date of the will, she was a widow, and had living neither child, father, mother, brother or sister; only three nieces, Nancy Haley, Sarah Haley, and Mary Haley De Wolf, sister of said Nancy and Sarah, and wife of Allen De Wolf; one nephew, John B. Haley ; one grandnephew, John W. Haley, the then only child of said John B.; and no grandniece. In the will, after a preamble in which she set forth that she made it “wishing that the property with which God has blessed me, and of which I may die possessed, may after my decease go to those of my near relatives and friends for whom I have a regard,” she devised, in the second item, “ to Nancy Haley and Sarah Haley, my two unmarried nieces, my house and land on the south side of Cambridge Street; also my house and land on the west side of Belknap Street; ” and also a parcel of real estate elsewhere. In the third item, she bequeathed $100 to Mrs. De Wolf, and provided that, “in case she ever becomes reduced and equally needy with her two sisters, Nancy and Sarah, then she shall come in and enjoy one equal third part of those three pieces of real estate, but none of the estates are to be sold, unless it be to pay debts and legacies, nor are they to be divided and held in severalty, but they are to be leased, and the rents and profits divided between the two first named nieces, and the said Mary if she becomes as needy and dependent as her two unmarried sisters.” In the fourth item, she authorized her executors to sell the third parcel of real estate mentioned in the second item, without license of court, for payment of her debts, and divide any surplus of the proceeds between the three nieces. In the remaining items, to the thirteenth, she gave specific legacies. The thirteenth item was as follows:</p> <p>“13. My two estates, one on Cambridge Street, and one on Belknap Street, are to go to the three sisters equally; and if either of them die, then to the surviving two; and if two die, then to the single survivor; but if all three die, without heirs, then the income of said estates is to go to John W. Haley, son of John B. Haley; and in case John W. Haley should die without issue, then my real estate is to go to the city of Boston, for the benefit of the poor. It is never to be sold; but the income is to go for the purposes set forth as above. But it is always to be understood that Mrs. De Wolf is not to come in for any benefit derived from my real estate, until she shall be needy and dependent, as her sisters now are ; and she will, in my opinion, be so, if her husband should become insolvent, or should die, not leaving any property for her support.”</p> <p>At the date of the will, Nancy Haley and Sarah Haley were respectively forty-six and thirty-nine years old, and Mrs. De Woli was forty-four years old. Sarah Haley was ill with consumption when the will was made, and died soon afterwards, and Nancy Haley died October 26,1869, neither of them having ever been married. Mrs. De Wolf died in July 1849, without having had a child. John W. Haley died without issue, in July 1849. John B. Haley died October 17, 1857; and the demandants are his children born after the death of the testatrix.</p> <p>If the demandants were entitled to recover on these facts, judgment was to be ordered for them, otherwise for the tenants.</p>

Tort, under the Gen. Sts. c. 44, § 22, for injuries resulting to the plaintiff from a defect in Court Street in Boston, a highway which the defendants were bound to keep in repair.