Volume 109 — Massachusetts Reports

<p>The words “in trust nevertheless and upon condition always” to use the premises for public worship, in a deed of land to a religions society, do not necessarily create a condition, but may import merely a trust.</p> <p>Pewholders in a church building have only a qualified and usufructuary right in their pews, subject to the right of the religious society to remodel them, and to alter the internal structure of the building, or enlarge or remove it, or sell it in order to build anew.</p> <p>Whenever church property is held in trust for the general purposes of the religious society, and cannot otherwise he conveyed, the legislature has constitutional power to authorize the trustees to convert their real estate into personal, in order that the avails may be reinvested or otherwise appropriated to the purposes of the trust.</p> <p>Owners of tombs in the church building of a religious society have no title in the land, but only an interest in the structures and in their proper use, and cannot prevent a sale of the land and building by the society, nor the removal of the remains from the tombs, when such removal is in other respects conducted according to law; as for instance when the legislature has directed it in the exercise of its powers in relation to the public health) and the tomb oí one who devised real estate to the society in trust “for keeping said tomb in good and decent repair ” is held by the same usufructuary right, and subject to the same liability to removal.</p> <p>A recital in a special act of the legislature, that the continuance of a cemetery in the church building of -a religious society is injurious to the public health, cannot be contradicted by any statement of the officers of the society, previously made, asserting a contrary opinion.</p> <p>A canon of the Protestant Episcopal Church, requiring the consent of the bishop and standing committee to removing or otherwise disposing of the church building of any parish in the diocese, does not affect the legal right of a parish to dispose of its church building under authority of a statute of this Commonwealth without such consent first obtained.</p>

Two ACTIONS OE contract upon policies of insurance made in July 1868 on vessels, for one year, in the usual form, and containing this clause : “ Prohibited from the River and Gulf of St. Lawrence,” and other places, “ and from all guano islands, except the Chinchas,” or “ Peruvians,” which were admitted to be the same.

<p>The testimony of the owner of a vessel, that on a certain day he mortgaged her to a certain person for a particular sum, together with a memorandum upon her registe1* of such a mortgage, are competent to prove that there was a mortgage of the vessel, and, s connection with testimony of the sole executor of the mortgagee that on carefu? search he cannot find the original instrument among his testator’s papers, to prove what were its contents.</p> <p>A mortgage of a vessel for repairs and advances upon her, given without knowledge or consent of her equitable owner, by a person holding the legal title in her, and taken in good faith by the mortgagee, without notice of any limitation of the mortgagor’s right, and authority, will avoid a policy of insurance on her, held by the equitable owner, and stipulated to be void in case it, or the interest insured by it, should be sold, assigned, transferred or pledged without previous consent of the insurers.</p>

Cokteact on three promissory notes made by the defendant to his own order, indorsed by him to the Columbian Insurance Company, and by the receivers of said company'indorsed to the plaintiff. The first note was as follows : “ $401. Boston, December 23, 1864. Twelve months after date I promise to pay to the order of Maurice Qurry, four hundred and one dollars, for value received. On policy No. 33,386. Bg.

Trustee process. From the answers of James F. Eaton, Israel G. Whitney and Joel Richards, who were summoned as trustees, it appeared that they held property which had been conveyed to them by the defendants under a written agreement, on trust that they should divide it pro rata among all the creditors of the defendants who should sign the agreement, and that the defendants were insolvent at the time of the conveyance.

<p>IÍ a person domiciled in this state becomes liable for a debt when absent therefrom, the ttatute of limitations begins to run in his favor, under the Gen. Sts. c. 155, § 9, as soon as he returns openly to the state, although his creditor does not know of his return, and he has no property here which can be attached; and absences from the state on military service are not to be deducted from the time of limitation, if he retains his domicil here.</p>

<p>Cohteaot, begun originally by William H. Gibbs, the plaintiff’s intestate. The case was referred by agreement of parties to Horatio N. Page, David F. McGilvray, and Nathaniel Wales, the award of whom or a majority of whom to be final, the arbitrators to “hear the parties, first giving seasonable notice of the time and place of hearing, and return their award ” into the superior court. On February 8, 1870, an award in favor of Gibbs, signed by McGilvray and Wales, was returned into the court. Gibbs having died, the plaintiff was admitted to prosecute as administrator of his estate, and moved that the award should be accepted. The defendant objected, and filed specifications, alleging that Gibbs was assisted by counsel at the hearing before the arbitrators, contrary to agreement of the parties ; that the hearing was had at the office of Gibbs’s counsel; that Page did not participate in the consultations of the arbitrators in making the award; and that the defendant did not have an opportunity to submit all his evidence.</p> <p>At the hearing on the motion, before Reed, J., the judge found that two of the hearings before the arbitrators were held, against the defendant’s protest, at the office of Gibbs’s counsel; that at the first hearing, Gibbs, contrary to his agreement with the defendant, was assisted by Ms counsel, but that on the defendant’s protest the counsel no longer acted; “ that the last meeting of the arbitrators was held on January 17,1870, the arbitrators then supposing that the hearmgs were ended ; that the defendant was present at this hearing until he was requested by the arbitral ois to withdraw and was informed by them that they wished to confer together and agree upon their award; that the arbitrators at this meeting agreed to award to Gibbs the sum finally named in the award, but their report was not then reduced to writing, and a meeting was appointed for January 24, for the purpose of examining and signing the award as reduced to writing; that it was understood by all the arbitrators that Page, although agreeing substantially with Ms associates, would not sign the award, for reasons of a personal nature, originating in the intimate relations subsisting between himself and the defendant; that before January 24 Wales found that he would not be able to attend the meeting appointed for that day, and Page was notified by the plaintiff that there would be no such meeting; that Wales drew up and signed the award, and procured the signature of McGilvray, (copying a form drawn by the plaintiff,) and no meeting was held on January 24; that there was evidence tending to show that Page never saw the award; that the defendant, after the meeting on January 17, gave notice to one or more of the arbitrators that he had further testimony which he desired to introduce, and that he wished to be present at the meeting on January 24 with his witnesses; that on January 24 the defendant was present at the time and place fixed for the meeting, accompanied by one or more witnesses ; that McGilvray appeared at the time and place of meeting, and waited some time for the other arbitrators, who however did not come; that the defendant never had an opportunity, before the award was filed and after the meeting of January 17, to introduce the testimony concerning which he had given notice; and that Gibbs died on January 29.”</p> <p>The defendant contended that on the foregoing facts the award should be set aside. But the judge ordered judgment to be entered upon the award, and the defendant alleged exceptions.</p>

Contbact. The second count of the declaration alleged that the plaintiff and defendant signed the following instrument: “ Boston, September 14, 1868. Memorandum of an agreement between William H. Remington and George D. Allen.

<p>The plaintiff bought hay from J. S., to be delivered to the plaintiff at the depot of the defendants, who were common carriers, and be carried by them to him at a place where it was to be weighed. J. S. delivered the hay to. the defendants, at their depot, and directed them to mark it with the plaintiff’s name and carry it to him at that place, but after they had carried it to the place directed them to deliver it to a third person, fi'¿11, that the title passed to the plaintiff on the delivery of the hay to the defendants, and that: they remained liable to him therefor.</p>

Replevin of a piano. Writ dated March 24, 1870. Trial in the superior court, without a jury, before Brigham, ,G. J., who found the following facts: “ The plaintiff, who was a seller of pianos, on February 16, 1870, sold to George F. Atwood the piano replevied, for $600, on condition that it should remain property of the plaintiff until the price was paid.

Contract on a promissory note. The answer alleged that the defendants made the note to the plaintiff in consideration of his assignment of certain letters patent, and of his covenant that he had not granted any licenses under them ; and that the consideration had failed. Trial and verdict for the defendants in the superior court, before Brigham, C. J., who allowed a bill of exceptions, the material part of which is stated in the opinion.

<p>Contract for the price of copper and yellow metal sold to William T. Foster and William G. Roby. Trial in the superior court, before Pitman, J., who, after a verdict for the plaintiff, allowed a bill of exceptions substantially as follows :</p> <p>The plaintiff testified that he called on Roby, and asked him what he would give for old yellow metal; that Roby said he would give twelve and a half cents per pound; that he told Roby he had some now being taken from the ram Columbia, at Simpson’s dock ; that nothing was said at that time about copper; that three hours afterwards he called again upon Roby, at his store, and told him he could have the yellow metal at twelve and a half cents per pound, and requested him to send for it at once, which was done; that he went from the store to the dock, and found under the ram some scraps of copper metal; and that, finding it had not been weighed, he told the teamster to request Roby to weigh it, and on his return to the city called at the defendants’ store, fearing that the teamster had forgotten his errand, and requested Roby to weigh the copper and give him credit for it.</p> <p>After the plaintiff rested his case, the defendants introduced evidence to show that the contract for the copper and yellow metal was made not with the plaintiff personally, but with one Herbert, as his agent. On this point the evidence was contradictory. Roby testified that the plaintiff called on him, at the defendants store, at the time last testified to by the plaintiff, and requested him to weigh and give him credit for some scraps of yellow metal, which he stated had not been weighed ; that the metal referred to, and pointed out by the plaintiff, was yellow metal, and not copper; and that the defendants had given credit to the plaintiff for one hundred pounds of yellow metal which were not sued for. The plaintiff, to contradict Roby, called a witness in rebuttal, who among other things was allowed to testify, against the objectian of the defendants, “ that he went with the plaintiff from the defendants’ store to Simpson’s dock, went with the plaintiff down under the ram, was with him when he found some copper, and helped collect it at the time testified to by the plaintiff; that it was copper, and not yellow metal; and that he heard the plaintiff give the directions to the teamster, as testified to by the plaintiff.”</p>

<p>Tort by the administrator of the estate of George Adams against Richard W. Pratt and John Davis, Jr., for the conversion of machinery. Trial before Scudder, J., who, after a verdict for the plaintiff, allowed a bill of exceptions, of which the material part was as follows :</p> <p>“ The plaintiff claimed under a mortgage to his intestate from Calvin Gay, and the defendants claimed under Gay by a subsequent purchase and delivery. The plaintiff offered in evidence the mortgage from Gay to his intestate, with the certificate of record thereon duly authenticated. To the admission of the mortgage the defendants objected, on the ground that, as it purported, in the commencement, to convey only property located in a store at 39 Federal Street, Boston, and as it appeared, by the asterisks and note written at the bottom of the mortgage and below the certificate, that the machinery in controversy was situated in a shop at 88 Utica Street, Boston, it was incumbent on the plaintiff to show that the asterisks and note were recorded on the city records; but the mortgage and certificate were admitted by the judge, de bene esse.</p> <p>“ The plaintiff then introduced evidence tending to show that the asterisks and note were put upon the mortgage at the time it was made, and before it went to the city clerk’s office, and the defendants introduced evidence tending to show the contrary. The defendants contended that, without the asterisks and note, the property was not sufficiently indicated and described in the mortgage to make it valid and effectual as against the defendants, and the judge so ruled. For the sole purpose of contradicting the certificate of record, the defendants then offered to prove, by the records of the city and by the city clerk, that the asterisks and note were not in fact recorded, but that1 only that part of the mortgage above the certificate, the asterisks excepted, was recorded ; but this evidence, for the purpose stated, was excluded by the judge. For the purpose of showing that the asterisks and note were not upon or a part of the mortgage when it was recorded, the defendants offered the records themselves, with the testimony of the recording officer relating thereto, to which evidence the plaintiff objected; but it was admitted by the judge, for the purpose stated.</p> <p>“ The defendants requested the judge to instruct the jury that the mortgage, as recorded, did not include the property alleged to be converted, and therefore the plaintiff was not entitled to recover. The judge declined so to instruct the jury; and instructed them that, if the asterisks and note referred to were in fact a part of the mortgage at the time it was made, and before it was left for record, then the certificate of record, made by the clerk thereon, was conclusive evidence that all which was a part of the mortgage when it was made and left for record was recorded, whether above or below the certificate; but that, if the asterisks and note were not in fact upon and a part of the mortgage when left for record, and were put upon it after it was recorded, in that case the mortgage and certificate of record would not be effectual or valid as against the defendants, and the plaintiff could n^t maintain this action; and that the burden of proof that the asterisks and note were a part of the mortgage at the time it was made, and before it was left for record, was upon the plaintiff.”</p> <p>No copy of the mortgage, certificate, and memorandum or note, was annexed to the bill of exceptions, or certified to this court with the papers in the case.</p>

Contract on a recognizance under the Gen. Sts. c. 124, § 10, in the sum of $200, entered into by Samuel E. Floyd as principal, and Samuel Eldridge as surety, and conditioned that Floyd, who had been arrested on execution upon a judgment in favor of the plaintiff for $78.11, should, within thirty days from May 12,1870, “ deliver himself up for examination, before some magistrate authorized to act, giving notice of the time and place thereof in the manner provided in and by ”…

<p>The first count of a declaration alleged that the defendant owed the plaintiff $594 money received to the plaintiff’s use; and the second count alleged that the plaintiff “ advanced to the defendant $594 in consideration of his promise to take the same as a margin, so called, and buy and carry for the plaintiff, subject to the plaintiff’s order,” certain bonds, that the defendant bought the bonds, but refused to sell them when the plaintiff ordered, and sold them afterwards at a great loss; that if they had been sold when ordered no loss would have occurred; and that by the delay the plaintiff lost the money advanced by him. Both counts were for the same cause of action. The answer to the first admitted $155 to be due; and the answer to the second was a general denial. At the trial, the judge ruled that the plaintiff could recover $155 on the first count; that the second count set forth a legal cause of action; and that, if the plaintiff proved the contract and breach therein alleged, he was entitled to recover thereon the difference between the price the bonds would have brought, if sold when ordered, and $155. Held, that the defendant had no ground of exception.</p> <p>The owner of bonds ordered his agent to sell them, but the agent did not do so. Two or three months afterwards he telegraphed to the agent: “Have you sold? Will they go lower? ” Held, that the question, whether this was a waiver of his order to sell, was for the jury.</p>

Bill nr equity against the executor of and trustee under the will of David Parker, praying that the defendant might be decreed to specifically perform a contract made by his testator for a lease of buildings in Boston. Hearing before the chief justice, who reported for the determination of the full court the case which is stated in the opinion.

Contract on an agreement made August 12, 1869 between the plaintiffs, Lob Wolf and Daniel Heyman, doing business under the style of L. Wolf & Company, of the one part, and the defendants of the other part, that the plaintiffs should sell and deliver to the defendants at Greenpoint in New York as much gum-wood lmnber as should be ordered before the 20th of any month, to be delivered during the ensuing month; that no log should have a less diameter than fifteen inches, nor a…

<p>Contract, brought August 3, 1870, against one of the sureties in the following bond given under the Gen. Sts. o. 123, § 104, to dissolve an attachment:</p> <p>“ Know all men by these presents, that Erastus Dennett and ' Charles R. Pottle, of Boston in the county of Suffolk, as principal, and George M. Stevens, of Cambridge, and John F. Annable, of Somerville, in the county of Middlesex, as surety, are holden and stand firmly bound and obliged unto Arthur W. Russell, of Cambridge in said Middlesex, in the full and just sum of two hundred dollars, to be paid unto the said Russell, his executors, administrators or assigns, to which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents, sealed with our seals, dated the twenty-second day of July in the year of oui Lord one thousand eight hundred and sixty-nine. The condition of this obligation is such, that, whereas the said Russell has caused the goods and estate of said Dennett & Pottle, to the value of two hundred dollars, to be attached on mesne process in a civil action, by virtue of a writ bearing date the 21st day of July, A. D. 1869, and returnable to the superior court for civil business to be holden at said Boston within and for the county of Suffolk on the first Tuesday of October next, in which said writ the said Arthur W. Russell is plaintiff, and the said Erastus Den-nett and Charles R. Pottle the defendants; and whereas the said defendants wish to dissolve the said attachment according to the provisions of the General Statutes in such cases made and provided ; Now, therefore, if the above bounden Russell shall pay to the plaintiff in said action the amount, if. any, which he shall recover therein, within thirty days after the final judgment in said action, then the above written obligation shall be null and void, otherwise to remain in full force and virtue.</p> <p>“ Signed, sealed and deliv- “ Dennett & Pottle, [seal]</p> <p>ered in presence of “ George M. Stevens, [seal]</p> <p>Edward Raymond.” “ John F. Annable. [seal] ”</p> <p>The declaration alleged that the plaintiff at said October term 1869 of the superior court duly entered the action named in the bond, and such proceedings were had therein that he obtained judgment against said Dennett & Pottle at April term 1870 for $110 damages and $21.49 costs, and no part of said judgment had been paid, though the defendant had often been requested to pay the same, and the defendant owed him the amount of said judgment and the costs subsequently accrued thereon. The answer denied each and every allegation of the plaintiff.</p> <p>Trial in the superior court before Scudder, J., who by consent of the parties reported the following case before verdict: “ This was an action on a bond, of which a copy is annexed. It appeared that Erastus Dennett and Charles R. Pottle were copartners, under the firm name of Dennett & Pottle, and that the execution of the bond, as to the principal, was by one of them. It was contended by the defendant that the bond was void upon its face ; also that there was no legal execution of it by the principals, and therefore it was void as to the defendant. If these objections are valid, then judgment is to be for the defendant; if invalid, then judgment for the plaintiff for $138.83, with interest from June 24, 1870, being the date of original judgment and costs. The officer’s return on the original writ and judgment may be referred to. The execution of the bond by the defendant tvas admitted.” The return of the officer, thus referred to, certified that the property attached by him, for dissolution of which attachment the bond was given, was' property of Dennett & Pottle, and that he took the bond “ of said Dennett & Pottle, with George M. Stevens and John F. Annable as sureties.”</p>

Contract for breach of the following agreement signed and sealed by the defendant under date of June 9, 1870 : “ I hereby acknowledge that I have purchased by public auction house and lot 29 on Beethoven Street for the sum of six thousand dollars, and have paid into the hands of Hunting & Leavit, auctioneers, the sum of one dollar as a deposit, and in part payment of the purchase money, and I hereby agree to pay the remaining sum of in to the vendor, on or before the 18th…

<p>Bill in equity, filed May 31, 1871, to enforce specific performance of a written agreement of the defendant to buy from the plaintiffs two adjoining parcels of land on the north side of River Street in Boston, of which the plaintiffs claimed to be seised under a devise of James Read, their father. The defendant demurred, on the ground that both parcels did not pass by the devise; the demurrer was overruled ; and he appealed. The material facts appeared as follows :</p> <p>River Street runs east and west, parallel with Beacon Street. In 1863, and thenceforward to his death, James Read owned and occupied a messuage fronting and numbered 90 on Beacon Street, and extending to the south side of River Street. The dwelling-house was situated upon the front of the lot, and that portion of it which adjoins River Street was not built upon. On May 5, 1863, by separate deeds of that date, William Ropes conveyed to him two contiguous vacant parcels of land - on the north side of River Street, one of them directly in the rear of his said messuage and. within its side boundary lines extended, and the other directly in the rear of an adjoining messuage numbered 89 on Beacon Street. All the lots on the north side of River Street, on which buildings have ever been erected, have always been used for stables. These two parcels of land remained vacant at the time of his death, which occurred in 1870. His will was made in 1865, and proved in January 1871, and contained the follow’ng devise : “I give, devise and bequeath my present dwelling-hou e, now numbered 90 Beacon Street, with the land and appurtenonces thereto belonging, and the two stable lots in the rear thereof, to my two daughters,” the plaintiffs. The defendant’s contract of purchase was dated May 1,1871.</p>

<p>Contract, brought August 18, 1868, against William Mc-Cracken and Nicholas T. Blarney, both of them described in the writ as of Boston in this county, upon a judgment rendered against them jointly on March 26, 1863, for $839.25 damages and $56.40 costs, upon them default in an action of assumpsit brought against them on November 10, 1862, by this plaintiff in the district court of the seventeenth judicial district in the county of Sierra and state of California. No service was made on Mc-Cracken in the present action, and the plaintiff discontinued it as to him.</p> <p>At the trial in the superior court, before Meedy J., the plaintiff put in evidence an exemplification of the record of the action in California. It appeared thereby that Blarney was personally served with summons therein on November 15, 1862 ; that, upon the affidavit of the plaintiff on November 13, 1862, that MeCracken had departed from California, and his then residence was unknown to the plaintiff, it was ordered on that day “ that service of summons be made upon said McCracken by publication once a week for the period of three months in the Sierra Democrat, a weekly newspaper printed and published in Sierra County; ” that in proof of the execution of the order an affidavit of the publisher of the Sierra Democrat was filed in the action to the effect that the publication was made “ commencing November 15, 1862, and ending February 15, 1863; ” that the published summons required McCracken to appear and answer “ within ten days, exclusive of the day of service, after the service on you of this summons, if served within Sierra County, if served out of this county but within this judicial district, within twenty days, or if served out of said district, then within forty days, or judgment by default will be taken against you; ” and that the judgment for the plaintiff was entered on March 26, 1863, upon its appearing to the court, among other things, “ that the summons was duly served upon the defendant Blarney at Sierra County on the 15th day of November 1862, and the said summons was duly served upon the defendant McCracken by publication according to law, and no answer or demurrer has been filed or appearance made by the defendants, and their default has been duly entered according to law.”</p> <p>Blarney thereupon requested the judge to rule “ that, it appearing by said record that the judgment was joint against both defendants, the same was not good against him, on the ground that it was rendered within forty .days from the completion of the service of the summons on McCracken ; ” and in support of his motion referred to the Compiled Laws of California (1851-3) c. 123, tit. 3, §§ 25-29, which were in force at the time of the proceedings in that state. But the judge ruled, on the contrary, “ that upon the record the service was good on McCracken, and the judgment would be good against Blarney if they found that personal service was made on Blarney.”</p> <p>Blarney introduced evidence to contradict the record as to the tact of personal service upon himself, and against his objection the plaintiff was allowed to put in evidence in rebuttal upon that question. Blarney’s evidence tended to show, among other things, that he was a resident of Sierra County at the time of the proceedings in California. The jury found for the plaintiff, and Blarney alleged exceptions.</p>

<p>Bill in equity, filed January 10,1865, by the trustees undei a mortgage made on July 1, 1850, by the Grand Junction Railroad .and Depot Company, a corporation under the laws of this Commonwealth ; to ascertain the proper construction of the trust, and praying for authority to sell the mortgaged premises, and for instructions as to the distribution of the proceeds.</p> <p>It appeared, on the pleadings and agreed facts, that the said premises consisted chiefly of large tracts of land in Boston, and that the mortgage was made to three trustees, of whom the plaintiffs were the survivors, to secure the payment in twenty years, with interest meanwhile, of bonds issued by the corporation, in sums of $1000 each, to the amount of $350,000, bearing interest payable semi-annually, at the rate of six per cent, per annum, on coupons or interest warrants which were attached thereto; each such bond * and coupon † being in the form printed in the margin.</p> <p>And it further appeared that, payment of the interest having ceased on or before January 1, 1857, in April following these plaintiffs brought a suit to foreclose the mortgage, and in May 1859 obtained a conditional judgment for possession; that .under this judgment they received formal seisin of the premises on July 22, 1859, and continued in open and peaceable possession thereof till the filing of the present bill ; and that thereby the mortgage was foreclosed.</p> <p>In October 1866 an order was passed by the court, upon the present bill, directing the mortgaged lands to be publicly advertised for sale; and on March 6, 1867, it appearing that the Boston and Worcester Railroad Corporation had offered $521,500 therefor and no higher offer had ever been made, and that it was expedient and for the best interest of all concerned that the offer should be accepted, it was decreed that “ on the payment to said trustees by said corporation of said sum ” they should convey the premises to it, free of all incumbrances or trusts, and as soon as reasonably might be they should render into court an account of their doings, receipts and expenditures in the execution of the trust, and of all claims upon them arising out of or in any way connected therewith; “ and whereas it appears to the court that the said corporation are the owners and holders of a large number of the bonds of one thousand dollars, each secured by said mortgage, it is further ordered and decreed by the court, that said trustees shall be at liberty to receive, towards and in part payment of said sum of five hundred and twenty-one thousand and five hundred dollars from said corporation, such portion of said bonds held by said corporation as, looking to the safety of the trustees and to the charges upon said fund and all claims against them, shall in their judgment be safe for the protection of themselves and of the interests of all parties concerned, reserving to said corporation, notwithstanding, their rights in the ultimate distribution of said fund in the same manner and to the same share as if said bonds had not been surrendered, and upon such payment being made said corporation shall be let into possession of said lands and of the rents and profits thereof, as from said 6th day of March.”</p> <p>After this decree, the plaintiffs conveyed the premises to the Boston and Worcester Railroad Corporation by a deed in con formity with its terms, dated March 6, 1867, and acknowledging the receipt of $521,500 as the consideration for the conveyance; and rendered a report and account, which on July 13, 1867, were referred to William G. Russell, Esquire, as a special master “ to state an account of the receipts and expenditures of said trustees in and about their said trust, also of all claims against the said trustees, or to or against any moneys in their hands, or any part thereof; ” to give notice by advertisement of a peremptory day for hearing all persons interested in the trust or making any such claims; and after such hearing “ to report to the court whether any and what of said claims are or are not valid, and whether any sufficient objection is made to said accounts, or to any item therein, by any persons interested therein; and, at the request of any party interested, to report to the court any or all the facts upon which he shall base his finding on any or all the points or particulars aforesaid, and the evidence offered in relation to any or all of such facts.”</p> <p>Under date of September 14, 1870, the master returned his report, whereby he found that the trustees were chargeable with the sum of $532,323.92 as the fund in their hands for the disposal of the court; subject to a small diminution on account of certain claims made against them and against the fund; and subject also to enlargement by addition of interest on the amount of the purchase money of the mortgaged premises, from the date of the purchase by the Boston and Worcester Railroad Corporation to the date of the decree for final distribution.</p> <p>David Kimball was one of the claimants, and his claim was disallowed by the master, the material parts of whose report relating thereto were as follows:</p> <p>“ Kimball presented three hundred and forty-two of the coupons, being the entire series 12, maturing July 1,1856, except coupons of ” eight bonds specified, “ and claimed that the same should be allowed in full out of the balance in the hands of the trustees ; and in regard to this claim I find the facts thus: Kim-ball was, at and prior to July 1, 1856, president and director of the Grand Junction Railroad and Depot Company, and continued to hold the office of president until January 13, 1865, and the office of director until May 31, 1865. He was also on July ls 1856, a creditor of said corporation to a large amount. At that date, the corporation, as was known to him and to the other directors and officers thereof, was unable to pay the coupons then maturing, and he, with George A. Whitney, now deceased, who was also then a director and creditor of the corporation, agreed with each other, with the knowledge of the treasurer and other directors of the company, to furnish the money for said coupons, each furnishing one half thereof, for the purpose of preserving the credit of the company and protecting their own interests as creditors thereof. At the time for payment of said coupons, William G. Barstow, now deceased, then manager or superintendent of the company, attended at his desk, which was in the outer office of the corporation, through which was the entrance to the inner office, occupied by the treasurer; and as these coupons were from time to time presented, the amount thereof was paid to the several parties presenting them, by Barstow, out of moneys furnished him by Kimball and Whitney in pursuance of their said agreement. All previous coupons had been paid by the treasurer at his inner office; but otherwise than as results from this fact no intimation was given to any of the holders of said bonds or coupons, and there is no fact in the case affecting them with notice, that there was any difference in this transaction from the previous ordinary payments of coupons, or that the company was not able to pay or did not pay said coupons, or that Kimball and Whitney were purchasing or desirous to purchase the same. Said coupons were delivered by Barstow to Kimball and Whitney, one half to each ; and shortly afterwards Whitney transferred his half to Kimball in payment of a preexisting debt. Kimball has ever since held said coupons in his possession, and on March 30, 1858, made a demand for payment thereof upon the treasurer of the company, but no action was ever taken at any time by the corporation or its board of directors in regard to these coupons, and no entry relating thereto appears upon the books of its treasurer. Subsequently to July 1, 1856, the corporation continued for some months.to carry on its business, and received considerable sums of money, chiefly by negotiating its notes, and in part by loans from Kimball, and also made payments of its notes and of loans made to it by Kimball; but no money has ever been paid to said Kim-ball on account of such coupons.”</p> <p>“ I find that,” after the conditional judgment in the'suit brought • by the trustees to foreclose the mortgage, “ the directors and a committee of stockholders of the Boston and Worcester Railroad Corporation, duly empowered, authorized the purchase of the lands mortgaged to said trustees, at the price of $350,000; that the president of said corporation, with a view to acquiring the title to said lands at that price, purchased from time to time such bonds as could be from time to time procured in the market at $1000 for each bond with the coupons attached, the first of said purchases being made about March 1,1865; that subsequently, by vote of November 12, 1866, the directors authorized the purchase of bonds at a higher price ; and that in several instances on or about February 26, 1867, bonds were purchased at par and accrued interest, but not including the interest due July 1,1856.”</p> <p>“ I find that the trustees had notice of the claim made by Kim-ball to hold these three hundred and forty-two coupons, as early as January 1, 1860, and that on May 29, 1865, formal notice thereof was given by him to- them by letter of that date; but that the trustees did not believe in the validity of the claim ; and I find that the trustees have in no respect altered their position, or determined their action, under any mistake as to the fact, or want of knowledge of the fact, that Kimball claimed to hold said coupons as against the corporation and under the mortgage.</p> <p>“ I find, upon the whole evidence before me, that Kimball and Whitney advanced said money for said coupons with the design and purpose of purchasing and holding the same as a claim against the Grand Junction Railroad and Depot Company, and under said mortgage as secured thereby; but also with the design and for the purpose of thereby preserving the credit of said corporation, and of producing the belief that said corporation was able to pay and did pay said coupons, but without any lesign thereby to effect the sale or induce the purchase of any of said bonds or coupons. I find that such belief was in fact produced, and was acted on by the Boston and Worcester Railroad Corporation in their purchase of the bonds secured by said mortgage ; and being of opinion that, upon the facts, Kimball cannot now be permitted, as against the said company, to deny that the said coupons are paid and extinguished, and to set up a claim thereon to share in the proceeds of the sale of the mortgaged property, I disallow the claim of said Kimball.”</p> <p>With regard to the question of interest, the master found and reported as follows r</p> <p>“ The claimants to the fund, holding coupons which have been allowed by me, other than the Boston and Worcester Railroad Corporation, made no claim for interest upon such coupons ; but they claimed that the Boston and Worcester Railroad Corporation were chargeable with interest upon the amount of the purchase money of the mortgaged premises from the date of the purchase, and that such interest should be charged to them by the trustees and credited in the trustees’ account, or that the trustees should be charged with interest as having invested the purchase money from the time of sale by loaning it to the said corporation. The Boston and Worcester Railroad Corporation objected to this claim, and claimed to have paid to the trustees a large portion of the purchase money under the decree of the court at the time of purchase.</p> <p>“ In regard to these claims, I find that said trustees, under the decree of the court in this cause, of March 6, 1867, made sale and conveyance to the Boston and Worcester Railroad Corporation of the mortgaged premises on May 14, 1867; that at the date of such conveyance the said corporation deposited with them, and said trustees received, as authorized by said decree, 843 of said first mortgage bonds, with 7274 coupons thereto attached, of which 4873 coupons were overdue, and 2401 were not yet due, being all the bonds and coupons then held by said corporation; that at that time the said corporation executed a bond or indenture with the trustees, a copy whereof was admitted by me in evidence, the counsel for said corporation objecting thereto,” in which indenture it was agreed that the corporation should carry on and conduct in the name of the trustees all pending and future controversies that might arise in relation to the trust or the trust fund, including the final distribution of the fund, and should en* fcer into possession and enjoyment of all the trust property; “ that upon the execution of this indenture said corporation was put into possession of the mortgaged premises and of all the outstanding claims for rents and profits thereof which had accrued while the same were held by the trustees ; and that said corporation has ever since remained in possession of the premises conveyed.</p> <p>“ Upon these facts I find that, upon an equitable adjustment of the claims of said corporation and said coupon holders, the Boston and Worcester Railroad Corporation is properly chargeable with interest upon the amount of the purchase money from May 14,1867 ; and as said corporation are claimants of so large a portion of the fund that such charge of interest can be enforced in settlement of the trustees’ account and through the final order for distribution, I find that the trustees should be charged in the account as having collected the whole amount of the purchase money, $521,000, on May 14,1867, and as having received interest thereon from that date to the date of the decree for filial distribution, and that in such distribution the Boston and Worcester Railroad Corporation should allow and receipt for the amount of such interest as having been already received by them. I further find that the claim of said Boston and Worcester Railroad Corporation upon the bonds and coupons held by them should be made up as of the date of said sale and conveyance on May 14, 1867.”</p> <p>Kimball alleged exceptions to the master’s report, on the ground, among others, that “he ought to have found that the said Kimball is not estopped to deny that the said three hundred and forty-two coupons of July 1,1856, are paid and extinguished, and to set up a claim thereon to share in the proceeds of the sale of the mortgaged property.”</p> <p>The trustees, and the Boston and Albany Railroad Company, which, pending these proceedings, had succeeded to all the rights and liabilities of the Boston and Worcester Railroad Corporation, also alleged exceptions thereto, on the ground that the master’s findings that they were respectively chargeable with interest were contrary to law and unwarranted by the facts, and also “ because any allowance is made to persons holding coupons detached from the bonds, while these exceptants aver that the whole amount to be distributed ought to be divided among the holders of bonds to which the interest represented by the coupons is only an incident.”</p> <p>The case was heard by the chief justice on the report and exceptions, and reserved thereon for the determination of the full court.</p>

<p>The legislature of another state authorized a corporation, owning a railroad there, and consolidated with a corporation owning a railroad in this Commonwealth, to extend its line of road, and increase its capital stock for the purpose. At that time it was lawful both there and here, and it has remained lawful there, for any corporation to issue new stock to it; shareholders at par, without regard to its market value. A statute was then passed h rs, prohibiting any such consolidated corporation from extending its railroad, or increasing its capital stock, without previous consent of the legislature of this state, but providing that nothing therein contained should be construed to prohibit that particular corporation from extending its road under the authority granted by said other state; and afterwards, on the same day, another statute was passed here, providing that any railroad corporation, authorized to increase its capital stock, should sell the new shares bv auction, if the market value of its shares exceeded their par value. Held, that the corporation in question, under the authority granted by said other state, might increase its capital stock without further permission of the legislature of this state, and might lawfully issue the new stock at par to its shareholders.</p>

<p>The right of the legislature to amend, alter or repeal the charter of a railroad corporation under the Gen. Sts. e. 68, § 41, includes authority both to withdraw powers granted to the corporation, and to confer new powers on it and require their exercise, and is independent of the assent of the corporation.</p> <p>A lease by one railroad corporation of its railroad for a hundred years to another does not vest in the lessee any power to exercise the right of eminent domain, but this power remains in the lessor, and the legislature may deal with the lessor exclusively in amending its charter.</p> <p>The St. of 1871, c. 343, requiring certain railroad corporations to unite in a passenger station in the city of Worcester, at one of two specified places, to be determined by commissioners appointed by this court; to extend their tracks in that city to the union station; and after the extension to discontinue portions of their present locations; is constitutional and valid, being a reasonable exercise of the right reserved to the legislature to amend, alter or repeal (he charters of those corporations.</p> <p>By the St. of 1871, c. 343, so far as it relates to the establishment of a union passenger station in the city of Worcester, the legislature intended to deal exclusively with the railroad corporations named in § 1, being the parties in interest on which it had conferred the right of eminent domain in respect to the railroads to be united in the station, and which were bound to exercise that right in performing the award of the commissioners to determine its location; and with the city of Worcester, within which the right was to be exercised; and made no provision, and were bound to make none, for notice to other parties whose interests were subordinate and derivative.</p>

<p>Bill of interpleader, filed February 3, 1871, by a manufacturing corporation chartered by this Commonwealth, against John P. Townsend and Caleb W. Boring, the latter as trustee under the marriage settlement of Mrs. Elizabeth B. Mountford ; alleging that the defendants respectively claimed a dividend payable on eighty certain shares in the capital stock of the corporation ; offering to pay the same to whichever of them was entitled thereto; and praying that they might be decreed to interplead as to their title.</p> <p>The bill alleged that George H. Rogers was formerly the holder of two certificates, one of thirty-five shares, and the other of forty-five shares, of the eighty shares in question, which certificates ran in his name as “ trustee ” without further specification of the trust, and were expressed to be “transferable by an instrument in writing, to be recorded by the clerk of the company, and when such transfer shall have been recorded and the certificate surrendered to the treasurer of the company, a new certificate or certificates shall be issued; ” that on January 11, 1867, Rogers trans* ferred the thirty-five shares to William A. Few, trustee, who on July 3, 1868, transferred them to the firm of Worster, Dupee & Company, and that firm, under date of July 16,1869, transferred them to Townsend; that on January 26,1869, Rogers transferred the forty-five shares tó John Botume, Jr., who under date of April 9, 1869, transferred them to Townsend; that new certificates were issued according to the transfers, and Townsend waa the holder of the present certificates, which ran in his name; that in July 1870 the corporation declared a dividend of five dollars per share on its capital stock; and that Townsend demanded the said dividend upon the eighty shares, but the corporation refused to pay it to him because it had notice from Loring that Townsend was not entitled to said shares or dividend ; that before July 11, 1870, Loring had given notice to the corporation that the eighty shares were held by Rogers as trustee for the use of Mrs. Mount-ford under her marriage settlement and were fraudulently transferred by Rogers to secure his individual debts; that before August 13, 1870, Rogers died, and on that day Loring gave the corporation further notice of his own appointment as successor of Rogers in the trust; that on September 2,1870, Loring, as said trustee, demanded of the corporation the said eighty shares; that Loring was asserting that Townsend was holding them as collateral security for Rogers’s individual debts; that Townsend had already sued the corporation to recover the dividend, and Loring was threatening a similar suit; “ that at the time when Rogers made the transfers of the thirty-five shares, and of the forty-five shares, they were transferred in the regular course of business which had been adopted by the corporation for the transfer of shares therein ; that the corporation and its officers had no knowledge, information or belief that he was not legally authorized to make the said several transfers; and that they had no knowledge,, information or belief that in making them he was violating any trust or duty imposed upon him.” The plaintiffs annexed to the bill copies of the above named certificates and transfers, (which all appeared to have been made in conformity with the Gen. Sts. e. 60, § 13,*) and of their records in relation thereto.</p> <p>Townsend, in his answer, alleged that on or about July 16, 1869, Rogers applied to him for a loan of $5250, and offered thirty-five shares in the stock of the plaintiff corporation as security ; that he agreed to lend the money on that security; that Rogers accordingly delivered to him a certificate of thirty-fire shares, running in the name of Worster, Dupee & Company, and transferred by them to him (Townsend) by an instrument in writing under their hand on the back thereof, and he thereupon lent Rogers $5250, and immediately delivered up the certificate to the corporation and received a new certificate in his own name; that on or about April 9, 1869, Rogers had procured a loan of $6700 from him in like manner on an offer of forty-five shares of the stock as security, and in performance of the contract had delivered to him a certificate of forty-five shares running in the name of Botume, and transferred to him (Townsend) by an instrument in writing under Botume’s hand on the back thereof, which he in like manner had delivered up to the corporation and received a new certificate in his own name ; that payments were afterwards made by Rogers on account of the two loans, which reduced their amount to $10,500; that he was holding the eighty shares as collateral security for the debt of Rogers to him of that sum and interest; that he never had notice, information, belief or suspicion that Rogers ever held them as trustee, or that they were not lawfully and rightfully transferred by Worster, Dupee & Company and Botume; and that he was informed and believed that neither of them ever had notice, knowledge, information or belief that the shares were ever held by Rogers as trustee.</p> <p>Loring, in his answer, set forth the marriage settlement of Mrs. Mountford, dated March 10, 1854, wherein it was provided that the trustee under the same should not sell any of the trust property without her approval first obtained; and alleged that Rogers was appointed the trustee in August 1856 ; that on January 11, 1867, and for several years previous, four hundred and seventy shares in the stock of the plaintiff corporation, including the eighty shares in question, were part of the trust fund; that the corporation well knew that they were so ; that the transfers of the eighty shares by Rogers were made in fraud of Mrs. Mount-ford and without her knowledge or approval, for his individual debts; that the corporation “ knew, or had reason to know, by the manner in which Rogers was transferring and using, and in which he had transferred and used the said shares held by him in trust as aforesaid for said Mountford, and by its entries on its books, and his receipts, that he was transferring and using said shares for his own benefit, and in violation of any trust, and in fraud of the rights of said Mountford or of any cestui que trust; ” that the corporation “ made no inquiry as to whether Rogers had any authority as trustee to transfer said shares, or, knowing or having reason to believe that he had no such authority, and that he was using said shares for his benefit, it did, in violation of its legal duty, and without due and proper inquiry and investigation as to his power, or the purpose for which he was transferring said shares, issue certificates to said Pew, and Worster, Dupee & Company, and Botume and Townsend, that they were owners of said shares, and said certificates as to said eighty shares issued to Townsend, so far as the title of this defendant is concerned, are void and of no effect, and the corporation is bound to account for said dividend to this defendant; ” that “ now it may be that the corporation has issued certificates to Townsend, and by reason of its wrongful acts in the premises it may be liable to pay to him a sum equal to the dividend declared on its shares, but nevertheless it should be held to pay said dividend to this defendant, who is the true and rightful owner thereof, or a sum which shall be equivalent to said dividend, and this defendant says that by its own showing it has no right to ask the defendants to interplead, and he requests that he may have the same benefit from the matters herein set forth as if he had demurred to the bill, and as if he had pleaded the special matters herein alleged.”</p> <p>At April term 1871 the case came on for a hearing upon the bill and answers, and it was decreed that the defendants should interplead, that Boring should before May 30 file his allegations of the grounds on which he claimed title to the eighty shares, and to the dividend, (which had been paid into court,) and that Townsend should have liberty to answer and defend such allegations within one week thereafter.</p> <p>Boring appealed from the decree; and, by agreement with Townsend and consent of the court, without waiving his right of appeal, filed allegations of facts which, if proved, would tend to show that the corporation knew by Rogers’s receipts for stock, and by the entries on their books, and otherwise, that the four hundred and seventy shares were held by Rogers as trustee for Mrs. Mountford, and had reason to know, in like manner, that he was pledging certain of them, and particularly these eighty shares, as security for his individual debts and in fraud of her. Town send answered the allegations, and denied that he ever had notice or knowledge of those facts, or that they were competent, material or relevant to the question of his own right to the eighty shares and the dividend.</p> <p>The case was heard by Wells, J., and reserved for the decision of the full court, (1) as to Boring’s appeal from the decree of interpleader, upon the bill and answers; and (2) as to the question of the relative rights of Boring and Townsend to the eighty shares and the dividend, upon all the pleadings and a written agreement of those parties that, as between them, the facts alleged therein should be deemed true, but subject to the opinion of the court as to their competency or relevancy; such decree to be entered as law and justice should require.</p>

Petitions under the Gen. Sts. c. 44, § 19, to recover damages to the estates of the petitioners by reason of the raising of the grade of Vine Street in Provincetown.

<p>4.1 the trial of an action on the. Gen. Sts. e. 44, § 22, against a town for injuries caused to the plaintiff by leaving a drain uncovered in the highway, evidence that it was usual fat towns in that county to leave drains uncovered is inadmissible, if there is no evidence that the plaintiff knew of such a practice, although she had very frequently passed by the place where the accident occurred.</p>

<p>At a meeting called to consider whether a town would reestablish the school district system and choose the officers required in that event, it voted to reestablish the system anu appointed a prudential committee man for each former school district. Held, that this was a sufficient reestablishment under the St. of 1870, c. 196, of the former school districts, which had been abolished by the St. of 1869, c. 110.</p>

<p>A bill in equity, to declare the plaintiff entitled to redeem land, which the defendant holds by an absolute conveyance from him, may be maintained upon paroi proof that he bought the land with money borrowed from the defendant, and, though he executed his absolute deed intelligently, yet both parties understood that it was intended as security for the loan.</p>

Shannon, for an allowance out of the income of his estate in the hands of a special administrator, under the Gen. Sts. c. 94, § 9.* Hearing before Ames, J., who made a report of the case for the determination of the full court, so much of which as is material to the understanding of the point decided was as follows : Oliver N. Shannon was married to the petitioner in December 1835, and died at Newton in the county of Middlesex and this Commonwealth in December 1869.

<p>Contract to recover money deposited by the plaintiff with the defendants. At the trial in the superior court, before Putnam, J., the plaintiff introduced evidence tending to show that the money was his own; that he deposited it with the defendants in the name of Ellen Whalen, to avoid its being attached; that the bank book, or pass book, so called, had always been in his possession ; that he told the defendants that the money belonged to him; that they told him to procure a transfer of the book from Ellen Whalen; that she refused to transfer it; and that he told the defendants of her refusal. The defendants offered evidence that their officers did not know the plaintiff personally when the money was deposited, and that no direction was given them except to receive the deposit in the name of Ellen Whalen.</p> <p>It was admitted that part of the money had been paid out by the bank in a suit in which it was summoned as trustee of Ellen Whalen; that no affidavit of ownership, bond of indemnity, book in the plaintiff’s name, or order or voucher from Ellen Whalen, was presented to the defendants before suit brought; that no officer of the bank saw Ellen Whalen about the deposit; and that the plaintiff made a demand of the money, and offered die bank book to the defendants, in the name of Ellen Whalen.</p> <p>Two persons by the name of Ellen Whalen were called as vitnesses. One of them testified that the plaintiff asked her to transfer the book to him, but she refused ; that she again refused to do so the day before the trial; but that she knew nothing of the deposit, and had no interest in the money. The other Ellen Whalen also testified that she had no interest in the money.</p> <p>The defendant requested the judge to instruct the jury “ that the plaintiff could not recover, if he deposited the money in the name of Ellen Whalen to avoid an attachment, and gave no information to the defendants, at the time of the deposit, that the money was his; and that the deposit in the name of Ellen Whalen without reservation was, as matter of law, a gift or transfer to her, so that he could not recover it in his own name, especially when he had informed the defendants that she would not transfer the book to him.” But the judge declined so to instruct the jury, and instructed them “that if they found that the money was, the plaintiff’s when he deposited it, and he did not deposit it for Ellen Whalen, or as trustee for her, or intending it as a gift to her, he might maintain this action against the defendants in his own name, for the amount deposited; and that, as to the portion of the deposit paid out by the defendants on the trustee process, if they found that the plaintiff intentionally misled the defendants, and they paid it over in good faith, and did all that could be expected of men of common prudence, under the circumstances, to ascertain to whom the money belonged, the amount thus paid must be deducted, and a verdict returned for only the balance.” The jury returned a verdict for the plaintiff for the amount of the deposit, less the amount paid out on the trustee process ; and the defendants alleged exceptions.</p>

Contract to recover the value of goods alleged to have been lost by negligence of the defendants, who were common carriers.

<p>Tort for breaking the plaintiff’s close in Groton, and committing an assault and battery upon him. At the trial in the superior court, before Eevens, J., it appeared that Timothy Stone conveyed to William S. Nutting a parcel of land by deed dated October 21, 1859, and this land by a series of deeds became vested in David Constantine, who conveyed it to William D. Reed in May 1860 ; that the description of the granted premises in each of these conveyances was as follows: “ A certain parcel of land, situate in the southerly part of Groton aforesaid, containing, by estimation, one acre and one half, be the same more or less, and bounded and described as follows, namely, beginning at the southerly corner of the premises at a stake and stones by the side of the road leading from Harvard to Groton, from thence running northerly by the Lunenburgh road till it comes to land of Phineas Nutting, from thence southeasterly by land of the said Phineas Nutting till it comes to said Groton road, from thence westerly by the said Groton road to the bounds first mentioned ; ” that by deed dated March 13, 1861, Reed conveyed to Daniel Constantine “ a certain parcel of land with the buildings Lhereon, situated in the southerly part of Groton, containing one half acre more or less, bounded as follows : Beginning at a stone monument on the road leading to Lunenburgh at the land of Joseph Barden, thence running easterly on said road, nine and one half rods, to a stake and stones, thence northerly by my own land about eight rods to a stake and stones, thence westerly to land of Joseph Barden, thence southerly on said Barden’s land to the point of beginning, being a part of the same premises I purchased of David Constantine in May 1860; ” that the plaintiff claimed under Daniel Constantine, and the defendant under a later deed from Reed.</p> <p>There was conflicting evidence as to the position of the stone monument mentioned in Reed’s deed to Daniel Constantine. The plaintiff contended that it was at a point measurement from which would include within the description in the deed the place where the alleged trespass was committed; and the defendant contended that it was at a point measurement from which would exclude that place.</p> <p>The defendant requested the judge to rule that, by the description in the deed by which the land was conveyed to Reed, “ the one and a half acre lot was a triangle.” But the judge refused so to rule, and left it to the jury to determine what were the premises conveyed thereby, and the weight to be given to the deeds in connection with the other evidence in the case.</p> <p>The plaintiff offered evidence tending to show “ that the defendant committed the trespass; that when the defendant entered upon his land he called to the defendant and repeatedly ordered him off his land and his servant with him ; that the servant was ploughing; that the plaintiff put his hand on the plough and was pushed away therefrom; that he again made the attempt and was pushed away with great violence and badly injured; and that he was eighty-four years old.” On cross-examination, the plaintiff admitted that he had a bean-pole in his hand and struck the defendant’s servant with it after he had first been pushed away from the plough.</p> <p>The defendant offered evidence tending to show that “ he came to the land, accompanied by a servant, to plough upon the land for the sole purpose of asserting his right to the same; that he took his horse and plough upon the premises, and attached the horse to the plough; that while the servant was standing at the handles of the plough, upon the sidewalk outside of the premises, and the defendant at the horse’s head on the land, the plaintiff struck the servant two or three times over the head with the bean-pole, breaking it in several pieces ; that the defendant told the servant not to touch the plaintiff; but that, when the plaintiff afterwards struck him with the butt end of the pole, the servant, keeping one hand on the plough, pushed the plaintiff away, and the plaintiff fell down from the push.” The defendant contended, upon this evidence, that the plaintiff committed an unjustifiable assault upon the servant, and that the servant acted in self-defence ; and requested the judge to rule that he was not responsible for the act of the servant, if done contrary to his express command.</p> <p>The judge declined to rule, on the foregoing facts, that the assault of the defendant’s servant was justifiable, and left that question to the jury, instructing them “ that, if the land belonged to the defendant, he had a right to enter upon it and plough it, maintaining his entry by force if necessary; but that, if the land was actually the plaintiff’s, or the plaintiff was in possession claiming title, and the defendant had no title, the defendant had no right to enter thereon; that if the defendant was wrongfully maintaining his entry by force, and employing his servant so to do, he was liable for the act of his servant done in maintaining such entry, although the servant used more force than he was authorized by the master to do; and that the plaintiff, if in the right, could only use reasonable force in expelling the defendant, who was not liable for repelling unreasonable force.” The jury returned a verdict. for the plaintiff, and the defendant alleged exceptions.</p>

<p>Tort. Writ dated November 26, 1869. The declaration alleged that the defendant maliciously and without probable cause procured the arrest of the plaintiff and his holding to bail on a writ returnable to the superior court at September term 1869 that the plaintiff “ duly appeared at said court to which said -writ was returnable; but that the defendant did not appear, well knowing that he had no probable cause to maintain the action against the plaintiff, nor was said writ ever returned into the office of the clerk of said court.” The defendant demurred, on the ground that it appeared “ that the suit alleged to be malicious was not determined in favor of the defendant therein by a judgment of court.” The superior court sustained the demurrer, and the plaintiff appealed.</p>

<p>Evidence of a hiring “ for at least six weeks if not more ” will sustain a declaration alleging a hiring for six weeks. '</p>

<p>Contract on an account annexed, for the support of convicts under the Gen. Sts. c. 178, §§ 58-60. The case was submitted to the judgment of the superior court, and, on appeal, of this court, upon a statement of facts, in which it was agreed that some of the convicts for whose support the plaintiffs sought to recover were committed on or before July 1, and discharged on or before November 11, and the notice of their commitment, required by the Gen. Sts. e. 178, § 60, was sent to the mayor and aldermen of the defendants on the first day of the January following their discharge. There were some items in the plaintiffs’ account which were not disputed.</p> <p>If the court should be of opinion that the notice in the instances above mentioned was sufficient within § 60, or that, although the notice was not within the provisions of that section, yet the want of legal notice to the defendants under that section did not prevent the plaintiffs from recovering, then judgment was to be entered for the plaintiffs for $201.74; but if the court should be of opinion that the notice was not sufficient, and that the want of a sufficient notice would prevent the plaintiffs from recovering, then judgment to be entered for them for $48.80.</p>

<p>A religions association, although, by reason of irregularities in complying with the provisions of the Gen. Sts. c. 32, it has failed to become a corporation, is nevertheless entitled, by the Gen Sts. c. 30, § 24, to hold property given to it by the name which it assumed; and another religious society, subsequently incorporated, is not entitled to take the name or the property.</p>

<p>The tenure of the office of trustees of a society of the Methodist Episcopal Church, who were incorporated under the Gen. Sts. c. 30, § 43, at a time when, by the discipline and usages of the church, the office of trustee was permanent, is changed by a subsequent order of the general conference of the church that the trustees of societies shall be chosen annually, and one of the original trustees has no right to retain his office afterwards, unless annually reelected.</p>

Writ oe entry to recover land in Brighton. At the trial in this court, before Wells, J., the tenant offered in evidence an office copy of an instrument purporting to be a deed of the demanded premises from the demandant tc one Miller; and it was proved that the original never was in the tenant’s possession.

<p>Appeal by John Lewis and Charles H. Lewis, from a decree of the judge of probate, allowing an instrument, dated January 19, 1863, and a codicil thereto, dated March 26,1863, as the last will of John Lewis, Senior, and disallowing a codicil thereto, dated January 28,1869, and an instrument, dated April 29,1870, and a codicil thereto, dated July 29,1870, as such last will. In the will which was allowed, the appellee was named executor; and in the will which was disallowed, the appellants were named executors.</p> <p>At the trial in this court, before Wells, J., there was no controversy as to the will and codicil made in 1863. As to each of the other instruments two issues were framed for the jury: First. Whether the testator was of sound and disposing mind and memory. Second. Whether undue influence was exercised by John Lewis, Charles H. Lewis, and their wives Eliza Lewis and Almira H. Lewis, or either of them. The appellants contended that the proceedings hereinafter mentioned, undertaken by some of the testator’s children to put him under guardianship, and their subsequent neglect to visit him, so offended him as to induce him to change the will which he had previously made in their favor. The appellee contended that those children were prevented from visiting the testator by the threats and conduct of the appellants. It appeared that the testator died on March 27,1871.</p> <p>John F. Wakefield, a physician, called as a witness by the appellants, testified, on cross-examination, as follows: “ I have heard Charles H. Lewis talk in the testator’s presence so as to offend him, and several, times I have* heard Charles speak in an angry tone of voice. Once he told him to shut up. That was within the last two years of his life. I cannot remember the subject matter; I remember the fact well; I do not remember how it occurred; the old man was talking loud; the amount of it was to ‘ shut up and stop his noise; ’ I do not remember any other time; I never heard him speak more than once disrespectfully. The old man would quiet down and make no more talk.” The appellants objected to the admission of this testimony, but the judge admitted it.</p> <p>It appeared that in March 1870 Thomas Lewis and Nathaniel Lewis, sons of the testator, and interested with the appellee in resisting the probate of the instruments of 1869 and 1870, petitioned the probate court to appoint a guardian for the testator as insane and incapable of taking care of himself; that the judge of probate on April 26, 1870, dismissed the petition; that the petitioners appealed; and that at the ensuing October term of this court the decree of the probate court was affirmed by agreement. The appellants offered in evidence a copy of the record of this court and of the agreement, as bearing on both the issues. The judge admitted it “ for the purpose of showing the dates of the several steps in the proceedings, who signed it, and when and how served, the 'appeal and notice thereof; ” but ruled that “ it was not competent as a judgment, nor as showing the agreement or assent of parties upon which it was rendered.”</p> <p>Nathaniel Lewis, called as a witness by the appellee, testified that, at the time of the hearing in the probate court on the question of appointing a guardian for the testator, he was occupying a portion of the testator’s house; that, just after the hearing, John Lewis, one of the appellants, said to him, “ Damn you, Nat, you shall not sleep in that house again; if you come there we will break your damned head, we have got father just where we want him, you shan’t stay in that house, you will have to get right out of it; ” and that Charles H. Lewis, the other appellant, told him, as many -as three or four times during the fortnight after the hearing, that “he would have to get out mighty quick.” The appellants objected to the admission of this testimony, but the judge admitted it.</p> <p>Mary Ann Badger, a daughter of the testator, called as ¡I witness by the appellee, testified as follows : “I visited father in his last sickness. When he was sick in bed he was sick a week. He could not speak, but he reached over and squeezed my hand and said ‘ God bless you.’ Charles was there and did not say anything.” The appellants objected to the admission of this testimony ; but the judge admitted it, as tending to show the state of feeling of the testator towards the witness.</p> <p>Nathan French, called as a witness by the appellee, testified that he was a physician; that he had not been the family physician since 1860, nor was he an expert on mental diseases; that he had not seen the testator but once or twice for two or three years, and had not spoken with him since his last sickness in 1866; and further as follows : “ I might have been there fifteen minutes or longer. He did not know me, he seemed stupid, he seemed worn out. He had scarcely any physical powers. His son called my attention to him. He said ‘ 0 ! Dr. French.’ He appeared as if in the last stages of second childhood.” The appellants objected to the admission of this last statement, but the judge admitted it.</p> <p>The appellee offered in evidence, as bearing on the relations between Charles H. Lewis and the testator, the following instrument, which was dated April 26, 1866, signed by the testator, witnessed by Thomas Lewis, and left with the appellee about the time of its date: “ This certifies that my son Charles H. Lewis and his wife have lived with me for some years on the following terms, that is, that I was and am to furnish a house and be at all the expense for food, fuel and servants’ hire and for furniture, nyself, and give my son and his wife their board for their care and attention, and the board thus furnished was and is to be in full satisfaction and payment to my son and his wife for their care and attention to me.” It did not appear that Charles H. Lewis knew of the existence of this instrument until it was surrendered to the testator by the appellee in April 1870. The appellants objected to its admission in evidence, but the judge admitted it.</p> <p>Joseph W. Tufts, a subscribing witness to the codicil of January 28,1869, and the codicil of July 29, 1870, having been sum. maned by the appellants as a witness, but not having appeared on account of sickness, the appellee admitted that he would, if present, testify to the due execution of the instruments, and that the testator was of sound and disposing mind and memory.</p> <p>The appellee afterwards called Thomas Lewis as a witness, who was allowed, against the objection of the appellants, to testify an to a conversation between himself and Tufts about the competency of the testator to make a will, as follows: “ He talked with me about it. On August 19, 1871, he called at my house, and said that if he had known it was a will he would not have signed it for a thousand dollars; that he felt he had been concerned with two rascals; that it was a rascally piece of business with two rascals ; that the old man did not know what he was about, and that John and Charles could do what they pleased with him.”</p> <p>Thomas Lewis also testified as follows: “ Almira H. Lewis, wife of Charles H. Lewis, has said many things. She told me father would come in and wash his hands in the water pail, and she had to keep it locked up ; that he would paw over the food, and she had to keep that locked up.” This testimony was offered for the purpose of impeaching the testimony of Almira H. Lewis, who had been called as a witness by the appellants as to the testator’s sanity and as to undue influence, and who in her testimony had denied that she made such statements, and testified that the testator was of sound mind. The appellants objected to the admission of this testimony, because it was not in the presence of the testator, but the judge admitted it.</p> <p>As bearing on both issues in the case, and for the purpose of showing that property of the testator was disposed of by Charles H. Lewis in a way that the testator did not. understand, the appellee offered in evidence sundry conveyances and mortgages of real estate made by the testator since 1866, in connection with the testimony of Thomas and Nathaniel Lewis, that they had told the testator of such mortgages having been made, and his saying that he did not know it. The appellants objected to the introduction of this evidence, but the judge admitted it.</p> <p>There was also evidence tending to show that the testator made certain transfers of his real estate to Charles H. Lewis, and personal property to Almira H. Lewis, wife of Charles H. Lewis, and that Charles H. Lewis and his wife lived with the testator for about fifteen years before his death, having general charge of his household, and care of his person. The judge instructed the jury that in passing on the question of undue influence they might consider the evidence which had been introduced in reference to the disposition of his property.</p> <p>The jury returned a verdict on the first issue, that the testator was of sound and disposing mind and memory; and on the second issue, that undue influence was exercised over him. The appellants alleged exceptions.</p>

Bill in equity, filed December 30,1870, by the trustee under the will of Benjamin Binney, against Lydia Blanchard, Jane Binney, Benjamin Binney and Matthew Binney, children of the testator, and against the devisees and legatees under the will of Mary P. Learned, his deceased daughter, praying for instructions.

Bill in equity, filed by George W. Dane, as administrator with the wiR annexed of the estate of Joseph G. Dane, against Abigail A. Walker, Ellen F. Wallace and Charles D. Wallace, praying for instructions.

Petition for partition of land in Billerica and Carlisle, against Henry B. Judkins and his two minor children. A guardian ad litem was appointed for these minors, and for unborn children of the petitioner and of Henry B. Judkins ; and he assented to the partition, as did also Henry B. Judkins.

<p>Contract for breach of an agreement to convey land in Boston to the plaintiff “ by a good and sufficient warranty deed of the defendant and his wife, conveying a good and clear title to the same free from all incumbrances.” The case was submitted to the judgment of the superior court, and, on appeal, of this court, upon a statement of these facts :</p> <p>In 1889, Jabez Walcott, being the owner in fee of the land in question, conveyed it to Francis R. W. Emery and his heirs and assigns, “ in trust nevertheless to receive the rents and profits thereof for the sole and separate use of Mary B. Walcott,” who was the grantor’s daughter, “ whether single or married, and to pay the same over to her, her heirs and assigns forever.” Mary B. Walcott afterwards married Emery, and died, leaving one child, now the wife of the defendant. Emery and Jabez Walcott have also both died, Emery leaving several children by three wives, and Walcott leaving the defendant’s wife his sole heir. Since Emery’s death no new trustee has been appointed. The defendant tendered to the plaintiff the warranty deed of himself and his wife of the premises in question; but the plaintiff refused to accept it, on the ground that it did not pass a good title.</p>

<p>The maker of a note secured by a mortgage with power of sale paid the interest due thereon; and the mortgagee promised to indorse the payment on the note, but did not do so, denied that interest had been paid, demanded it again, and threatened to sell under the mortgage unless the interest was again paid. The mortgagor then paid the interest a second time, under protest. Held, that he could maintain an action of contract to. recover back the amount which the mortgagee promised to indorse.</p>

Two actions OR contract. The first action was brought by Moses Goldsmith, Abraham A. Goldsmith and Samuel B. Locke, a firm doing business under the name of Goldsmith & Son, against Marcks Manheim, on an account annexed, to recover $1683, money advanced to the defendant; also the damages, costs and expenses on a bill of exchange, drawn May 13,1870, protested, and, at the defendant’s request, paid by the plaintiffs; and the defendant’s proportional part of the damages, costs…

Tort for slander in accusing the plaintiff of larceny. At the trial in the superior court, before Rockwell, J., it appeared that the defendant, who lived in Boston, kept a shop in Lowell for the sale of dry goods, in which he employed the plaintiff and two other persons as clerks; and that, having discovered, as he believed, a loss of $1800 in the shop, he told Bickford Lang, the city marshal of Lowell, of his supposed loss, and went with him to the shop, where all the…

Tobt. The declaration, as amended, contained the following two counts: 1. “ And the plaintiff says that he is the owner of a private drain running from the cellar of his house on Merrimack Street in Lowell under and across the street aforesaid, which he used for the purpose of draining the cellar under his said house; that the defendants entered a drain from the gutters of said street into the plaintiff’s drain, and built the same in such an unskilful and careless manner…

Tort on the Gen. Sts. e. 44, § 22, for injuries resulting to the plaintiff from slipping and falling on the sidewalk of a highway which the defendants were bound to keep in repair, in front of the Central House, a hotel in Woburn.

<p>Writ oe entry against the Inhabitants of Dracut and the Inhabitants of School District Number Six in Dracut, to recover a lot of land in that town. Writ dated April 24, 1871. Plea nul disseisin. Trial in the superior court, before Devens, J., who reported the case as follows :</p> <p>The school districts in Dracut were abolished by the St. of 1869, e. 110. The warrant for the annual town meeting, held March 7,1870, contained this article : “ To see if the town will build a new school-house in District Number Six, and make appropriations for the same.” At the meeting, it was voted “ that the selectmen be authorized to build a school-house in District Number Six, if in their judgment they shall think it necessary,’ and “ that the selectmen be authorized to borrow money to defray the expenses of building a school-house in District Numbei Six, if in their judgment they shall think it necessary.”</p> <p>On August 2, 1870, the selectmen went upon the demanded premises, and, without previous notice to the demandant, pul stones upon the four corners thereof, for the purpose of designating the lot. After so doing they went to the demandant, informed him of what they had done, and proposed to purchase the lot. He said that the school-house ought not to be located there; that it was too near his house; and that he did not want it there, and suggested some alterations in the bounds, which were made, The selectmen then offered him $50 for the lot, which he declined to take and said if the land was worth anything it was worth $200. The selectmen replied that, if he would not sell it at a reasonable price, they should proceed to take it according to law, and went away.</p> <p>“ On August 13, the selectmen, without any further notice to the demandant, and without his previous knowledge, went upon the premises with a surveyor, and measured and staked them out as they had been before designated. When they had finished, the demandant came along, and they informed him that they had staked out the land, and tendered him $50 therefor, which he refused to take. In about one week they began building a school-house thereon, which .was finished in about a month at a cost of $1100, and a school was kept therein during the winter following. The demandant lived near the lot and in sight thereof ; saw it more or less every day, and never made any further objection to the selectmen or to any one in regard to the occupation of the lot, the building of the school-house, or the keeping of the district school there. He was an inhabitant of the district, and an inmate of his family went to school there.” On September 6, 1870, the town voted to reestablish the school districts. On March 6,1871, the town accepted the report by the selectmen of their location- of the school-house. On June 24, 1871, the town distributed the school property to the districts.</p> <p>The tenants contended that, “ if there were any irregularities in the taking, they were waived by the demandant, and, if not waived, they had reason to believe they were waived and that they held under a title which they had reason to believe good.”</p> <p>The case was reported for the determination of this court, “by request of parties, to order such judgment therein as is proper and according to law, against either or both tenants according as one or both are tenants ; the case to be sent back for judgment, and for an assessor to be appointed, to assess the improvements if allowed, and the value of the land without the improvements,, also rents, profits and damages, in case the demandant recovers.”</p>

<p>Tort. The declaration alleged that the defendant occupied a shop on Tremont Row in Boston; that in the sidewalk, in front of the shop, was a coal-hole opening into the cellar of the shop ; that it was the duty of the defendant to keep this coal-hole covered ; but that he negligently allowed it to remain open; and that the plaintiff, while walking with due care, fell into it and was injured. The answer denied all the allegations of the declaration, and alleged that, if the plaintiff was injured, it was by reason of his own negligence. The plaintiff filed interrogatories to the defendant", of which the only material ones, with the answers thereto, were as follows :</p> <p>1. “‘Were you, in December 1869, occupying the piemises No. 20 Tremont Row in Boston; and if so, in what way, and whether exclusively of any other person ? ” Answer. “ I was, exclusively, as a dry goods store.”</p> <p>2. “ Was there a coal-hole or scuttle in front of said premises, and if so, did you have control of the same; was it connected with and a part of the premises occupied by you; and did you use the same, and if so, for what purpose ? ” Answer. “ Thiere was a coal-hole in front of my said premises, which I used for putting in coal, and had no other use or control of it. It was in the sidewalk and opened into the coal-bin of said premises.”</p> <p>8. “ Was said hole open on or about December 8, 1869 ; if so, state how it became so; at what hour of the day; how long it remained open; and for what purpose or reason it remained open ? ” Answer. “ It was. The scuttle cover was broken in cutting off the ice which had accumulated upon the sidewalk. This was about half past three o’clock in the afternoon, and it remained uncovered the time it occupied to procure another cover to cover it, which was, I think, from an hour to an hour and a half. I sent a messenger, directly after the cover was broken, to the place on Devonshire Street where such scuttles were manufactured, for another, but the messenger finding, as he informed me, that the manufacturers had removed from Devonshire Street, considerable time was spent by him in finding the place to which they had removed, which was on Albany Street, as I was informed after-wards. He found the place, and procured another scuttle, as soon as he could, as he informed me and I believed, which was placed upon the hole as soon as obtained.”</p> <p>4. “ While it thus remained open, did you use any means to guard the same or cover it in part; did you station any one there to point travellers to it, or to caution them against stepping into it ? If you say you did, state fully and particularly all that was done by you; if you employed any one else; whom ; and what did he do to your knowledge; how long did he remain there, and how long, if you know, was it wholly unprotected ? ” An* swer. “ While the scuttle remained without a cover, I stationed a boy there to guard it and notify all persons passing that it was open and to avoid the danger from, it; the boy, by my direction, held a shovel over the hole by placing the blade of the shovel one side of the hole on the sidewalk, near to it, and holding the top of the handle in one hand against himself, standing on the other side of the hole with the shovel thus inclined over and covering it, while he told those approaching of the hole being open, and also motioned to them with his hand to keep away from it. The hole was thus guarded, and those passing thus notified and warned thereof. The boy continued to guard the hole until it was taken charge of by the police, and directly thereafter the new cover came and was put on, so that the hole was at no time left open and unguarded.”</p> <p>At the trial in the superior court, before Putnam, J., the plaintiff read the first three interrogatories and the answers thereto, and stopped; the defendant then insisted upon the reading of the fourth interrogatory and its answer; and the judge, against the plaintiff’s objection, ruled that they should be read.</p> <p>The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

<p>Contract for work done and materials furnished in building a sewer for the defendants. The plaintiff filed interrogatories to the engineer and the clerk of the defendant city, which they refused to answer; and he then moved for a default to be entered against the defendants for the reason of said refusal. The motion was heard by Wells, J., and reserved for the decision of the full court.</p>

<p>Contract to recover $3397 as money bad and received to the plaintiffs’ use. The case was submitted to the judgment of this court on the following statement of facts :</p> <p>In 1864 Thomas G. Gerrish was chosen treasurer of the defendants, held the office by successive annual elections, and discharged the duties thereof until after March 10, 1869. During all this time he, as treasurer, had an account with the plaintiffs and with no other bank, under an arrangement between the parties that the accounts of the defendants should be kept there. In each of the years 1865, 1866, 1867 and 1868, the city council authorized him to borrow money of the plaintiffs in anticipation of the collection of taxes, and the sums so borrowed were always repaid with interest. In March 1869, Gerrish was a defaulter to the defendants as treasurer, to the amount of $30,000, but the fact was unknown to the parties to this action, and on the evening of March 9 a resolution, authorizing him to borrow $130,000 from the plaintiffs, in anticipation of the collection of taxes for that year, was introduced into the common council, read once, and ordered to a second reading.</p> <p>On the morning of March 10, 1869, at which time the amount standing to the credit of Gerrish as treasurer, in the plaintiffs hands, was $2674, he stated to the plaintiffs’ cashier that the necessary authority to borrow money had been granted the even mg before, that the papers were not executed, and that he wished to overdraw his account. He therefore, without the knowledge of the defendants, or any especial authority from them, presented to the plaintiffs a check signed by himself as city treasurer, payable to his own order, and indorsed by him, for $5000, received the money therefor from the plaintiffs, placed the same in the cash-drawer where he kept the defendants’ money, with “ a small sum, exceeding $100,” remaining there after the business of the preceding day; and from the money there he paid during the same day, to various creditors of the defendants, upwards of $4900. The rest of it was left there, and came into the nossession of the defendants. He afterwards on the same day drew another check upon the plaintiffs, signed by himself as city treasurer, payable to bearer, for $1072, to pay a debt due from the defendants to a gaslight company, which check was presented to the plaintiffs by the company and paid on the same day.</p> <p>On March 11,1869, Gerrish resigned his office. He never kept a private account with the plaintiffs. Demand was made on the defendants on March 12, 1869.</p>

<p>Contract by Thomas Salmon and Patrick McDonald against Thomas H. Nation and James Huggins, on a recognizance entered into by the defendants, conditioned that Nation, who had been arrested on August 6, 1870, upon an execution issued on a judg ment in favor of the plaintiffs, should, within thirty days from the time of the arrest, deliver himself up for examination before some magistrate authorized to act, giving notice of the time and place thereof in the manner provided by law, and appear at the time and place and abide the final order thereon.</p> <p>The following notice, addressed to the plaintiffs, was served upon their attorney on September 1, 1870 : “ Thomas H. Nation, a poor debtor, arrested on an execution in your favor, desires to take the oath for the relief of poor debtors, and the third day of September at one of the clock in the afternoon, and the office of John W. Pettengill, Esquire, a trial justice in Malden in the county of Middlesex, are appointed the time and place for the examination of said debtor. Dated at Malden, August 30, 1870. John W. Pettengill, Trial Justice.” The plaintiffs and their attorney all resided and had their places of business in the county of Middlesex, and Nation was arrested in that county.</p> <p>The case was submitted to the determination of the court on the above facts, and the agreement of the parties that, if the notice was sufficient in law and properly served, the defendants were entitled to judgment, but that, if the notice was not sufficient in law, or was not properly served, then judgment should be entered for the plaintiffs.</p>

<p>Writ oe review to reverse a judgment rendered against the plaintiff in review upon a petition brought by the defendant in review to enforce a lien under the Gen. Sts. c. 150.</p> <p>At the trial in the superior court, before Bochwell, J., it appeared that Thomas Marvin took a contract to construct a block of houses for the plaintiff in review, employed the defendant in review to do the slating, and told the plaintiff in review that he was going to do so ; that the plaintiff in review agreed to accept an order to pay the defendant in review when the work was completed, but afterwards declined to accept the order when presented, on the ground that the work was not completed; and that no notice of intention to claim a lien was given by the defendant in review to any one, before furnishing materials.</p> <p>The judge ruled that the defendant in review could have a lien for labor only, and not for materials. The jury returned a verdict for the defendant in review for $85, and found specially that the value of the materials furnished was $213.</p> <p>The judge reported the case for the determination of this court j if the above ruling was erroneous the defendant in review “ to have judgment for the full amount, otherwise for the labor only.”</p>

<p>Contract by the administrator of the estate of Luke Sawyer to recover the price of hay sold by his intestate to the defendant. At the trial in the superior court, before Wilkinson, J., it was agreed that the hay was sold to the defendant by the plaintiff’s intestate at a certain price per ton, and was weighed and delivered in 1870, in the towns of Stow and Sudbury; that neither of these towns appointed a superintendent of hay scales in the years 1869 or 1870 ; and that the {plaintiff’s intestate caused the hay to be weighed on scales, not provided by the buyer, which were not sealed as required by the Gen. Sts. c. 51, §§ 11, 12, in either of those years. The judge thereupon directed a verdict for the defendant, and reported the case for the determination of this court.</p>

<p>A. street railway corporation, whose charter requires it to repair such portions of all bridges in a city as are occupied by its tracks, is bound to repair such a portion of a bridge which the owner of a canal has built over the canal, and which, as against the city, he is bound to repair; and if, on his refusal, the city makes such repairs, and recovers judgment against him for the expense thereof and costs, he can recover from the corporation the amount of the damages recovered by the city against him, but not the costs, unless he defended the suit at the request of the corporation, or for its benefit, or after notice to it to come in and defend.</p>

<p>On a petition under the Gen. Sts. c. 38, § 39, by the owner of land upon which a schoolhouse lot has been located, the sheriff’s jury cannot find that the lot should not be located on land of the petitioner, but can only change the location to another part of his land.</p> <p>On an issue of the value of land taken by a town for public uses, the opinion of inhabitants of the town who testify that they are familiar with the land in question, and have known about sales of land in the town, is admissible in evidence, although they have not bought or sold any land there except that on which they live.</p> <p>In assessing damages for land takerTby a town for public uses, evidence of what the owner intended to do with the land is inadmissible.</p> <p>i 1 the owner of land, on which a school-house lot has been located, petitions, under the Gen. Sts. c. 38, § 39, for a change of location and assessment of damages, and the sheriff’s jury assess damages in his favor, he cannot maintain a writ of entry to recover the land on account of irregularities in the taking, although he offers to waive all the pro ceedings before the sheriff's jury if the court should be of opinion that he could recover back the land.</p>

<p>Bill in equity, filed in 1870, by Mary F. Sisson, Harriet C. Pickens and Diana S. Mackintire, against Harriet E. Tate, to redeem a parcel of land in Charlestown from a mortgage. Hearing before Gray, J., who reported the case for the determination of the full court, substantially as follows :</p> <p>Moses F. Tate, being seised of the premises in fee simple, executed the mortgage in question, which contained a power of sale, to the Warren Mutual Loan and Fund Association, and in 1855 executed and delivered a warranty deed of the premises to Joseph P. Gilson and Charles S. Curtis, (under whom the plaintiffs claimed,) which was duly recorded, but continued in possession after the conveyance, and in 1858 signed, sealed and acknowledged a certificate on the back of the mortgage, setting forth that he gave to the mortgagees “ open, quiet, peaceable and unopposed possession ” of the premises, “ for the purpose of foreclosing said mortgage, and for the purpose of enabling said association to sell said premises, as provided for in said mortgage on account of a breach of the conditions of said mortgage.” The certificate was duly recorded. The mortgage was afterwards assigned to the defendant.</p> <p>If upon these facts the court should be of opimon that the mortgage was foreclosed, the bill was to be dismissed with costs . otherwise the case to be referred to a master to state the account between the parties.</p>

Bill in equity to restrain Edward F. Sherman, Nathan Crosby and William H. Anderson, executors of the will of Thomas Nesmith, from prosecuting against the plaintiff an action of contract on a promissory note for $2500 signed by him, payable to the Lowell Five Cents Savings Bank or order, and by .them indorsed to the defendants.

Contract, by the assignee of a lease, against the lessor, for breach of its covenants.

Contract by an attorney to recover for services and disbursements in a suit brought by him for the defendant against David G. Leavitt, to enforce a mechanic’s lien. At the trial in the superior court, before Devens, J., the plaintiff put in the report of an auditor in his favor; but it appeared that the services and disbursements sued for were all rendered and made under the following agreement, signed and sealed by the defendant: “ November 11, 1869.

<p>Contract. Writ dated March 28, 1870. The first count of the declaration was on an account annexed for goods sold to the defendant in 1861. The second count was for money paid by the plaintiffs at the request and for the use of the defendant. The case was referred to an arbitrator, who made the following report:</p> <p>“I find that the defendant resided in New Hampshire until June 1862, when he sold out there, came to Amesbury in this ■state, and boarded there some four or five months at the same house; that from the time of going there till the autumn of 1869 he boarded in Amesbury about three years and a half in all at different times, and during the remainder of that time was travel-ling out of the state in the West, or boarding in different places in New Hampshire (at one time for several months at Derry, unable to leave on account of sickness) ; that he paid his board only for the time he was in Amesbury, had no family there, and, when away from that town, had no room there and left no property or person to represent him there, and never paid taxes or voted there (but it did not appear that he paid taxes or voted at any other place during said time) ; and that in 1869 he bought a farm in Wilmington in this state, settled upon it, and resided there ever since. He testified that, from his first going to Amesbury till he went to Wilmington, he called and intended Amesbury as his place of residence, had no intent of having any other place Ms place of residence during that time, and only paid his board at such other places. If these facts will in law authorize it, I find that the statute of limitations is a bar to the first count otherwise, that the account annexed to said count is correct, and that the plaintiff is entitled to recover the balance stated.</p> <p>“As to the second count, I find that the defendant sent to the plaintiffs for collection, and not in payment of the above claim, a note of larger amount than the claim, but out of which, if collected, the claim was to be paid, signed by Henry W. Ripley and indorsed by the defendant, and which was overdue; that the plaintiffs brought a suit thereon in their names, with the knowledge and authority and for the benefit of the defendant, whose deposition was taken and used in the case ; that Ripley prevailed in the suit, and recovered an execution" for costs against the plaintiffs, for $26.91, which the plaintiffs paid on May 22, 1869 ; that on October 1, 1869, they further paid $77.33 as the costs and charges of their attorney who managed and tried the case, which was a reasonable and necessary expense; that the defendant knew, before he sent the note to the plaintiffs for collection, that Ripley claimed that he had a defence to the note ; and that the plaintiffs did not notify the defendant of such payment or make a demand on him therefor until this suit was commenced, because they could not till then find where he was. If these facts will in law authorize it, I find that the plaintiffs are entitled to recover on this count said sums of $26.91 and $77.33, with interest from the times of payment; otherwise I find for the defendant on this count.”</p> <p>On tMs report the superior court ordered judgment for the defendant, and the plaintiffs appealed.</p>

<p>This court has no jurisdiction to revise a decision of the superior court allowing a motion to set aside the verdict of a sheriff’s jury as against the weight of evidence.</p>

<p>On a hearing to assess damages under the Gen. Sts. c. 43, for land taken to lay out a street, it is erroneous to instruct the jury that, if all the other estates abutting on the street aro benefited in a similar manner, the amount of his benefit cannot be deducted from the damages of any abutter.</p> <p>On a petition against a city to assess damages for land taken to widen a street, it appeared from the city records that an order was passed that a committee should estimate “ the damages and betterments ” arising from the laying out of the street; and that damages • were ordered paid to persons whose names were in a schedule made out on a printed form, purporting to be in pursuance of the St. of 1866, c. 174, § 2; but that damages were not estimated in accordance with the provisions of that statute, although the schedule contained an item stating the value of an estate which the owner had surrendered to the city. And it did not appear that there was any adjudication to proceed under the statute, or that there was any separate assessment of benefits. The superior court found that the assessment was made under the Gen. Sts. c. 43, and not under the St. of 1866, c. 174. Held, that the records did not show that the finding was incorrect.</p>

<p>Conte ACT for expenses incurred in supporting a minor child of James Davis, Jr., as a pauper. The issue was whether the St. of 1865, c. 230, gave Davis a settlement with the defendants</p> <p>At the trial in the superior court, before Rockwell, J., after the decision reported 104 Mass. 47, it was admitted, as at the previous trial, that the settlement of Davis was with the plaintiffs, unless it was changed under § 1 of that statute, which provides that any inhabitant of a town in which he had resided for six months next previous to his muster into the military or naval service of the United States, “ as a part of the quota ” of the town, under any call of the President during the civil war, if he was of full age at the time of his enlistment, and continued in the service for a year or more, or died or became “ disabled from wounds or disease received or contracted ” while in the service, should be deemed to have acquired a settlement in that town.</p> <p>It was also, as at the previous trial, admitted or proved that Davis was enlisted and mustered into the military service of the United States on January 29,1862; that he resided in Ware for more than six months previous to that time , and that he was discharged from the service on April 11, 1862, on account of disability. There was, as at the former trial, conflicting evidence whether the disability was from disease contracted while in the service.</p> <p>On the question whether Davis was credited by the war department of the United States to the defendants as part of their quota, the plaintiffs were allowed, against the defendants’ objection, to put in evidence a certificate, admitted to be genuine, of the adjutant general of the United States, stating that “ it appears from the records of this office, of which I am the legal custodian, that prior to June 9, I860,177 men, enlisted from Ware,” “were credited to the Commonwealth as a part of her quota and the quota of Ware.”</p> <p>William Schouler testified that he was adjutant general of the Commonwealth from before the war till 1866 ; that documents, made up in his office, and which were put into the case, showed that 177 men ought to be credited to the defendants; and that this credit was made up by including Davis. He also testified that this credit was allowed by the United States; but there was no documentary evidence of this, except the above mentioned certificate. On cross-examination, he testified: “ The credits before August 1862 were allowed by the United States in 1862 or 1863.” [The defendants called the attention of the witness to his report to the governor in 1864.] “ I stated before that they were not credited till 1864, but then those credits after that allowed by the United States included the credits made by us before in 1862 and 1863. They had not been allowed by the United States before, but were allowed after on the basis of our credits. I have no doubt the quotas and credits of 1862 were allowed.”</p> <p>The jury returned a verdict for the plaintiffs, and the defendants alleged exceptions.</p>

<p>A man of wealth and having no family dependent on him, under guardianship as insane, should be allowed those luxuries which he desires and can enjoy, which are unobjectionable in themselves and would be proper and reasonable expenditures for a sane man in a similar position.</p> <p>A guardian of an insane man whose estate was worth over $200,000 spent four hours three times a week in visiting and dining with his ward, and superintending the management of his house and grounds; and the ward’s spirits and condition were much improved by the visits. Held, that a monthly charge of $300 for personal services, besides a commission of five per cent, on the income collected, should be allowed to the guardian; but that an additional charge of $100 for attending court should be disallowed, as should also a charge of $200 for attending the ward on two journeys of a fortnight each, which were undertaken partly on account of the guardian’s own business.</p> <p>The additional compensation, if any, allowed to a guardian for changing investments of his ward’s property, or making repairs thereon, should not be by way of commissions on the amount invested or expended.</p> <p>A guaidian who makes up his accounts monthly may charge his ward’s estate each month with his commissions on the amounts collected in that month, and with a month’s interest on a balance from the preceding month in his own favor, and may carry the balance to the next month.</p>

Heard and Edward D. Sohier, as trustees under the will of John W. Trull, who died in 1867 and devised the residue of his estate to them in trust “to receive and collect the income and produce thereof, and, after deducting all needful and proper costs, charges and expenses, to pay the residue of said income from time to y time” to the appellant, Elizabeth Eldredge, who was the testator’s daughter.

<p>4 n ante-nuptial agreement, relating only to the rights which either party, after the death of the other, may claim in the estate of the deceased, is not a marriage contract within the Gen. Sts. c. 108, §§ 27, 28, which needs to be recorded.</p>

<p>Contract, by an attorney at law, for professional services and cash disbursements in a writ of entry brought in the year 1863, in the name and behalf of the defendants, to recover land mortgaged by one George H. Green to secure payment of his promissory note to them.</p> <p>Trial in the superior court before Devens, J., who directed a pro formd verdict for the defendants, and reported the evidence to this court, under an agreement of the parties that if it would sustain the action the verdict should be set aside and the plaintiff have judgment for the full amount of his claim, otherwise judgment to be entered on the verdict. The case is stated in the opinion.</p>

<p>One against whom judgment has been rendered on a replevin bond may avail himself f any fact which the defendant in replevin is not estopped by the judgment therein to set up, in order to limit the sum for which execution shall equitably issue.</p> <p>If goods owned in common, and replevied from one of the owners by the others, are not restored by them upon a judgment for a return, that judgment does not estop them to prove the common ownership of the goods, upon the question for what sum he shall take execution on a judgment in his favor on the replevin bond.</p>

Contract against Silas H. Jaques and Asa D. Clark, on a promissory note made by Jaques payable to Clark’s order, and indorsed by Clark to the plaintiff. The defendants answered, separately. Trial, and verdict for the plaintiffs, in the superior court, before Brigham, C. J., who allowed exceptions, which were sustained, as reported 106 Mass. 291.

<p>The furniture of an inn is taxable to the innkeeper only in the town of which he is an inhabitant.</p> <p>One who, by a mistake of his rights, returns to the assessors, as liable to taxation, a list of property which by law is exempt, is not thereby estopped to claim an abatement of the tax.</p> <p>A petitioner for a writ of certiorari cannot control by extrinsic evidence the record of the proceedings which he seeks to quash.</p> <p>County commissioners are not authorized to award costs upon an appeal from the refuse* of 'assessors t") abate a tax.</p>

Tort for killing the plaintiff’s dog. Trial, and verdict for the plaintiff with $65 damages, in the superior court, before Putnam, J., who allowed the following bill of exceptions: “ The plaintiff introduced evidence tending to show that he was the owner of a watch dog, which he had trained for the purpose, and kept on his messuage in Malden, to protect his family in his absence, he being required by the nature of his business to be absent several months each year; that he…

<p>Tort against a constable of the town of Ashland for entering the plaintiff’s dwelling-house there on August 19, 1870, and taking away a dog and dog-collar, and converting them to the defendant’s use. The defendant sought to justify his acts under a warrant from the selectmen, dated July 18, 1870, directing him to kill all dogs in the town not licensed and collared as required by the St. of 1867, e. 130.</p> <p>At the trial in the superior court, before I)evens, J., the case was withdrawn from the jury, and reported for the determination of this court, under an agreement of the parties that judgment should be rendered in favor of the plaintiff for a certain sum if he was entitled to recover upon facts which appeared in evidence and were stated in the report, otherwise judgment for the defendant. The substance of the report appears in the opinion.</p>

<p>In orde™ tf obtain the only available supply of water to throw upon a building on fire, it was r'ec'^sary to lay a hose across a railroad. The water was applied from the hose to the fire. and bad diminished and would probably have extinguished it, but servants of the railroad corporation ran a train over the hose, and severed it, and thereby cut off the water from the. fire, wnich then consumed the building. They had notice about the hose, and might have stopped the train to permit the hose to be uncoupled. The railroad wag crossed by another at grade a few hundred feet before the place where the hose was ser ered; and the train was not stopped before the crossing, as required by the Gen. Sts. c. 63, § 93. Held, in an action brought by the owner of the building against the railroad corporation, (1) that the violation of the statute did not affect the defendants’ liability; (2) that the firemen had a right at common law to lay the hose across the railroad; (3) that it was immaterial that they were volunteers from another town; (4) that it was immaterial that the plaintiff did not own the hose; (5) that the severing of the hose was the proximate cause of the destruction of the building; and (6) that the defendants were liable for the negligence of their servants in severing the hose.</p>

<p>Tort to recover the amount of a judgment obtained by Samuel O. Pollard in an action on the Gen. Sts. c. 44, § 22, against the plaintiffs, for personal injuries suffered by him on May 28, 1867, through a defect in Green Street, a highway in Woburn. See 104 Mass. 84. Trial in this court, before Ames, J., who made a report thereof, of which the following is the substance</p> <p>It was proved or admitted that the defendants had due notice from the plaintiffs to appear and assume the defence of Pollard’s action; that the plaintiffs had been required to pay, and had paid and satisfied accordingly, the judgment recovered by him therein; that the accident which befell Pollard occurred at a place on Green Street, within the location of the defendants’ branch railroad, where it crossed the street at grade; that a contractor for moving a meeting-house obtained from the chairman of the selectmen of Woburn (who gave it without consultation with his associates) a permit to move the building through Green Street, which specified that “ all due caution shall be used to prevent harm or injury to the public travel,” and “the owner of the building shall be held responsible for all injury done by such removal to public travel or public property, whether on the road or the sidewalk; ” that, in order to allow the passage of the building over that part of the street included within the defendants’ location, it became necessary to take down one of the posts which there supported the defendants’ sign of “ Look out for the Engine,” and the contractor applied to the defendants’ local agent at Woburn to do so ; that the local agent communicated with the general superintendent of the defendants’ railroad, who ordered their carpenter to go to Woburn and take down the post; that the carpenter took the post down “ by digging around it and mailing it over so that it rested upon the fence by the side of the sidewalk, the foot of the post still remaining in the ground, leaving a large hole about the post, next to the travelled part of the road, which hole was the defect by which Pollard was injured; ” that the building was moved in three sections, and some three weeks were occupied in moving it; and that the accident occurred ¿everal days afterwards.</p> <p>A verdict for $20,938.17 was taken for the plaintiffs by agreement ; to be set aside if in the opinion of the full court they were not entitled to recover on these facts; otherwise, judgment to be rendered thereon.</p>

Contract, with an alternative count in tort, each alleging that the defendant held himself out as a skilful and competent physician, practising in Lowell; that the plaintiff was sick, and employed the defendant to treat him for his sickness; and that the defendant treated him so unskilfully and carelessly as to cause him great pain, and impair his health, and put him to great expense for proper medical attendance.

Replevin of a horse and wagon from a deputy of the sheriff of Middlesex. Writ dated May 20, 1870. The defendant answered that he took and was holding the horse and wagon by attachment upon the writ, sued out on May 19, 1870, in an action of contract brought by Isaac B. Little against Franz X. Miller, the plaintiff’s husband, on a promissory note alleged to have been made by said Franz.

Contract for use and occupation of a dwelling-house in Cambridge during February and March 1869 at $8 per month, and April 1869 at $16 per month. Writ dated June 9, 1869. The defendant declared in set-off for $127.64 paid to the plaintiff’s use, for repairs on the house in 1867 and 1868.

<p>Tort for obstructing the plaintiffs’ right in a passageway leading from Third Street to Fourth Street, between Front and Lynde Streets, in Charlestown. Writ dated July 20, 1870. Trial in che superior court, before Putnam, J., who made a report thereof of which the following is the substance :</p> <p>In the year 1838 the Charlestown Wharf Company laid out into streets, ways and lots, a large tract of vacant land which it owned in that city; and afterwards conveyed portions of it to these plaintiffs and defendants respectively, which are represented on the following copy of part of a plan made*by Eben Barker and dated October 3, 1838, which was referred to in the several conveyances, recorded in the Middlesex registry of deeds on October 18,1838, and introduced in evidence at the trial. At the time of the obstructions in question, the plaintiffs owned lots 40 • 42, and the defendants owned lots 43-47 and 80-85.</p> <p> </p> <p>The plaintiffs’ land was conveyed to them by the Charlestown Wharf Company by a deed dated May 20, 1840, in which it was described as bounded “ northeasterly by Lynde Street sixty-seven teet, southeasterly by a common passageway six feet wide sixty-six feet, southwesterly by lot numbered 43 on said plan sixty seven feet, and northwesterly by a street called on said plan Third Street sixjty-six feet; the tract of land hereby conveyed includes lots numbered 40, 41 and 42 on said plan recorded with Middlesex deeds, and the right in common with said corporation,” that is to say, tile Charlestown Wharf Company, “ its successors and assigns, ancí all others having the like right, to pass and re-pass in and over said passageway, which right is appurtenant to each of said granted lots.” The habendum was “ to have and to hold the same, with the easements and appurtenances to the same belonging,” &c.</p> <p>The defendants acquired their land as follows: The Charles-town Wharf Company conveyed lots 44 and 45, and 80-85, by deeds dated October 3, 1838, “ describing them as bounding on the respective passageways delineated on said plan, and containing similar words as to the right of passing and repassing.” By another deed, dated on the same day, it conveyed lots 46 and 47, describing them therein as bounded “ southeasterly by Fourth Street on said plan forty-four feet, southwesterly by a common passageway six feet wide sixty-seven feet, northwesterly by another common passageway six feet wide forty-four feet, and northeasterly by lot 45 on said plan sixty-seven feet; being lots 46 and 47 on said plan; also a right appurtenant to each of said last named lots to pass and repass in, through and over said last mentioned passageways respectively, in common with said corporation, its successors and assigns, and all others having a like right.” By a deed dated September 15, 1841, it conveyed lot 43, describing it therein as bounded on both passageways, by a description similar to that of lots 46 and 47, and the deed continued as follows: “ also the right and privilege, as appurtenant to the above granted premises, and in common with said corporation, its successors and assigns, and all others having a like right, to pass and repass in, through and over each of said passageways.” Through mesne conveyances the defendants acquired title to lots 80-83, on May 3, 1862; lot 43, on September 12, 1862; and lots 44-47, 84, 85, on August 31, 1864.</p> <p>At the dates of all the deeds from the Charlestown Wharf Company, that corporation was seised in fee simple of all the streets and passageways shown on the plan; but in December 1868 the defendants became owners of the fee of the two passageways bounding their lots and the lots of the plaintiffs. The streets and passageways, as shown upon the plan, had always been open and unobstructed until 1867, when the defendants closed up the passageway extending from Third to Fourth Streets and they have ever since prevented the plaintiffs from using it.</p> <p>In June 1870 the plaintiffs served upon the defendants a notice “ to take down and remove without delay all gates, pipes or other obstructions, erected or maintained by you in, across or over said passageways, or either of them, as we have the right of passing in, through and over said passageways, and each of them, and by the obstructions erected and maintained by you are excluded from the use of said passageways, and hindered in the exercise of our rights to the same.”</p> <p>The plaintiffs rested their case on evidence of these facts, and requested the judge to rule “ that they had a right of way in that passageway, (or part of a passageway, as they claimed it to be,) extending from Third Street to Fourth Street.”</p> <p>The defendants admitted that they placed and maintained the obstructions; and contended that they had a right to erect and maintain them, denied that the plaintiffs had any right of way in the passageway from Third Street to Fourth Street, and requested the judge so to rule.</p> <p>The judge ruled “that there were two separate and distinct passageways, one extending from Third Street to Fourth Street, and one leading from Lynde Street into said first named passageway ; that the plaintiffs had no right of way in, through or over that passageway (or part of a passageway, as claimed by them) extending from Third Street to Fourth Street, but only in the passageway leading into the same from Lynde Street, in which no obstruction was claimed,” and directed a verdict for the defendants.</p> <p>If this ruling was erroneous, the verdict was to be set aside, and the case remanded to the superior court for further proceedings ; otherwise, judgment to be entered on the verdict.</p>

Contract for breach of the defendant’s covenant of warranty against incumbrances, in a deed of land in Charlestown, executed and delivered by him to the plaintiff on March 14, 1865. Writ dated November 3, 1869. Trial in the superior court, before Putnam, J., who directed a verdict for $50 damages in favor of the plaintiff, and reported for the determination of this court the ease which is stated in the opinion.

Bill m EQUITY, filed on October 18,1870, by William Viney, against the trustee and all persons who might claim or wish to claim any interest in or under a sealed indenture made by and between said Viney and James C. Abbott on May 24, 1870, to set aside the trusts declared in said indenture, wherein by mutual covenants, without any other expressed consideration, certain shares in the stock of banks and manufacturing corporations were transferred by Viney to be held by Abbott…

<p>k testator bequeathed a fund to the incorporated trustees of an academy, to spend its income in reducing the price of tuition of pupils to a certain sum per quarter, and apply any surplus for the benefit of the academy as they might choose, the capital to go to his heirs if ever the corporation should be dissolved. After the trustees had administered this trust for many years, the legislature passed a statute, subject to their acceptance and to that of the town, authorizing them to transfer their property, including trust funds, to the town, the net income to be applied to support a public high school. The statute was accepted, and the trustees transferred all their property, including this trust fund, to the town, and ceased thenceforth to exercise any of the functions of a corporation. In a supplemental statute, passed the next year, the legislature styled the inhabitants of the town trustees of the academy. Held, in a suit in equity brought by the testator’s heirs to recover the fund, nineteen years after its transfer to the town, (1) that the corporation was dissolved, and the fund forfeited to the plaintiffs, within the meaning of the {estator; but (2) that they could recover interest only from the date of filing the bill, in the absence of proof of any previous demand or adverse claim by them.</p>

<p>Libel for a divorce from the bond of matrimony. After the decree for divorce, the parties filed an agreement at April term 1870, “ that a decree may be entered in favor of the libellant, requiring the libellee to pay over to her, as alimony, all sums of money and property, if any, which he has received and has not accounted for, of her separate property; and that this question shall be referred ” to a person named, “ who shall hear the parties and report to the court at the next term, and his report shall be final, and a judgment of the court in favor of the libellant shall be entered on such report if he shall find anything due from the libellee to the libellant; such decree to be final, and in full for all claim to alimony.”</p> <p>The court thereupon ordered “ that a decree be entered requiring the libellee to pay over as alimony to the libellant all sums of money and property, if any, which the libellee has received and has not accounted for, of the separate property of the libellant; and that this question be referred ” to the arbitrator named in the agreement, “ to hear the parties and make report of his findings in the premises to the court.”</p> <p>The arbitrator reported that, “ after having fully heard all that the parties desired to submit' to me touching the matters referred to me, and having carefully considered the same, I do hereby award and determine that the libellee has received and has not accounted for, of the separate money and property of the libellant, the sum of $2048.61, and I ■ accordingly find that the libellant is entitled to a decree requiring him to pay her the said sum of $2048.61.”</p> <p>The libellee moved the court to set aside this award, and specified the following causes for the motion;</p> <p>“ 1. That, among the claims presented by the libellant to the arbitrator under the submission in this cause, was one for an alleged difference between the profits of an investment of certain moneys of hers, made by the libellee for her benefit, in a certain leasehold estate in Chicago, and what would have been realized from the same if put out at interest. This claim, amounting to several thousand dollars, was objected to by the libellee, upon the ground, among other things, that it was not a claim for any money or property of hers which he had received and not accounted for, but for an alleged difference between the profits or income of an investment of her money made for her by him, which profits and income she had received, and what she might have realized if the same money had been put out at interest. This objection was sustained by the arbitrator, and the claim ruled out, and thereupon no evidence was offered, and no hearing was had before said arbitrator in regard to said claim, or any items thereof. But, notwithstanding these facts, the arbitrator has allowed, and included in his award of $2048.61, as a part thereof, the sum of $1205.89, being part of the items in said claim for a loss of profits in said Chicago investment, so improperly set up by the libellant as aforesaid, and being for moneys expended by her in the care and management of said leasehold property, of which the libellee had no knowledge.</p> <p>“ 2. That, excluding said claim in regard to said Chicago property, so ruled out by the arbitrator as aforesaid, it appeared by the libellant’s own showing, by the account and the only account of her claims presented by her to the arbitrator to the knowledge of the libellee, that he had paid over to her money and property in excess of any money and property of hers received by him and that, in addition to the amounts of money and property which the libellant thus admitted in her account to have been paid over to and for her by the libellee, the arbitrator found that other large sums had been paid by him to and for her, so that she had received from him a number of thousands of dollars in excess of any money or property ever received by him belonging to her.</p> <p>“ 8. That the libellant claimed at the hearing before the arbitrator,’ that she should be allowed, and the libellee should be charged, interest oh all sums and property of hers received by him; and this claim the libellee denied, claiming that by the terms of the submission the arbitrator had no right to raise as interest account, and declined to go into the same ; but the aibitrator has allowed said claim; and the libellee alleges that the whole of the amount of said award, except so much as relates to said Chicago investment, is made up of a charge for interest ob • jected to as aforesaid, and further, that, upon a true statement of an interest account upon the amounts received from and paid to the libellant by the libellee as found by the arbitrator, the balance would be largely in favor of the libellee, but that, by a mistake of the arbitrator in the computation of interest, the balance was found against him.”</p> <p>This motion was overruled by Ames, J., and the libellee appealed to the full court.</p>

<p>A city is authorized to raise and appropriate money to reimburse to its agents expenses of their defence in an investigation of their official conduct, made by order of the city government, by a committee of that body, on charges which were proved to be groundless.</p>

Contract. Writ dated May 6, 1870. The declaration alleged that the defendants owed |50 to Lewis B. Wilkinson as engineer of their steam fire engine; that Wilkinson assigned the claim to the plaintiff; and that the defendants approved the claim and promised to pay the plaintiff the amount thereof, but after-wards refused so to do.

<p>The legislature, in the exercise of its police power, may prohibit the use of any building in cities or towns of a certain population, for carrying on, without permission of the mayor and aldermen or the selectmen, a trade necessary and lawful in itself, but which in its ordinary exercise may become a public nuisance.</p> <p>The St. of 1871, c. 167, § 1, prohibiting the use of any building, not then so used, in any city or town of more than four thousand inhabitants, for carrying on, without permission of the mayor and aldermen or the selectmen, “ the business of slaughtering cattle, sheep or other animals, or for melting or rendering establishments, or for other noxions and offensive trades or occupations,” is a constitutional exercise of the police power of the legislature.</p> <p>The selectmen have authority to bring suit in behalf of the inhabitants of a town where a building is used for a noxious trade in violation of the St. of 1871, c. 167, § 1, to prevent its use in that manner by an injunction under § 3.</p>

<p>Bill in equity, filed by the selectmen in behalf of the inhabitants of Watertown, on October 14, 1871, to restrain George A. Sawyer by injunction from occupying and using a building erected by him in Watertown, for carrying on therein the business of slaughtering cattle, sheep or other animals, without written consent of the selectmen under the St /f 1871, e. 167. The answer alleged that the defendant erected the building on the site of a former building, which had been erected, used and occupied by him for carrying on the same business before the passage of the statute; and that the defendant’s business was at no time a public or a private nuisance in either building. The plaintiffs filed a general replication.</p> <p>At the hearing, before Wells, J., it appeared “ that the defendant, before the passage of the statute, used and occupied a building on his own land as a slaughter-house, and therein slaughtered cattle, sheep and other animals as a business; that after the passage of the statute, and up to September 1871, he continued the business of slaughtering in said building, when the same caught fire accidentally and was consumed; and that afterwards, and before the filing of this bill, he immediately rebuilt said slaughterhouse on same site, and continued his business of slaughtering cattle, sheep and other animals therein, and did not at any time obtain the written consent or permission of the selectmen therefor.”</p> <p>It was admitted that both before and ever since the passage of the statute Watertown contained more than four thousand inhabitants ; but no evidence was offered that the defendant’s business in either building was at. any time a public or a private nuisance. It was also admitted “ that the new building was different from the old one in its construction and arrangement, but was not larger or more extensive in size or capacity.”</p> <p>The judge reserved the case for the determination of the full court, who were to make such decree therein as law and justice might require.</p>

Indictment for cheating by false pretences; returned at March term 1871 of the superior court in Suffolk for criminal business. At May term of that court a trial was had, a verdict of guilty returned, and exceptions taken by the defendant to the rulings and decisions of the* presiding judge were allowed.

Habeas corpus to the sheriff of Suffolk, issued on December 27, 1871, upon the petition of William A. Glover, verified by his oath, which represented that he was unlawfully deprived of his liberty by the sheriff at the county jail; that the sheriff was holding him to answer to an indictment returned into the superior court for criminal business in Suffolk at May term 1871 of that court, wherein he was charged with being an accessory before the fact to breaking and entering a…

<p>An acquittal upon one indictment for receiving stolen goods is no bar to the prosecution of the same defendant upon another, without further proof of the identity of the offences than that the goods described in the second indictment are such that the averments of the first indictment might describe them.</p>

<p>An indictment on the Gen. Sts. c. 88, § 70, may he maintained against the owner of a building, upon proof that he fitted up a room in it with a billiard table, and let it and the table, for a weekly rent, to a tenant, in whose possession, with the defendant’s knowledge, the table was used for playing at billiards for hire, gain or reward, without any license from the mayor and aldermen or the selectmen.</p>

Indictment on the Gen. Sts. c. 63, § 107, averring that the defendant at West Roxbury in the county of Norfolk, on September 18, 1871, with force and arms, “ feloniously, wilfully and maliciously the engine and carriages of the property of the Boston and Providence Railroad Corporation, then and there lawfully passing over and along the railroad of said corporation, there located and situate, did obstruct, by then and there pulling the signal rope attached to and connected…

<p>On an indictment for murder, a verdict that the defendant is guilty of murder in the second degree is a general verdict.</p>

<p>Upon an indictment for rape, on which a nolle proseguí “to so much of this indictment as charges rape ” has been entered, a conviction may be had, under the Gen. Sts. c. 172, § 16, of a simple assault, if connected with the offence charged in the indictment; but not of a distinct assault.</p> <p>A conviction may be had on an indictment for an assault, although the assault was part o an act of rape.</p>

Indictment of Thomas Powers, Alonzo Jellison, John Keating and Thomas Kennedy, for larceny from the person of William Abite.

<p>Complaint to the municipal court of the city of Boston, dated June 19, 1871, in behalf of the Commonwealth, by Charles B. Rice, superintendent of Faneuil Hall Market in Boston, for the violation of an ordinance of the city, passed June 2, 1871, which is printed in the margin.* At the trial in the superior court on appeal, before Lord, J., the defendant moved to dismiss the complaint, but the judge refused to allow the motion ; the jury returned a verdict of guilty; and the defendant alleged exceptions. The case is stated in the opinion.</p>

<p>rt is not error that the record In a criminal case states the proceedings to have been had “ at the superior court for the Commonwealth of Massachusetts,” although the true name of the court is “ the superior court.”</p> <p>A record which sets forth that J. S. was convicted of maintaining a common nuisance, that the case was continued for sentence, and that at the next term u J. S., convict as aforesaid,” was sentenced, sufficiently shows for what offence he was sentenced.</p> <p>In the record of a criminal case, the certificate of the indictment by the foreman of the grand jury need not be inserted.</p>

Writ of error to reverse a judgment of the superior court in Suffolk.

<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, is supported by proof of keeping a tenement used for either purpose.</p>

Indictment on the Gen. Sts. c. 87, §§ 6, 7, for keeping and maintaining a tenement in HopMnton, used for the illegal sale and illegal keeping of intoxicating liquor. At the trial in the superior court in Middlesex, before Pitman, J., it was admitted that the town of HopMnton had voted that any person might manufacture, sell or keep for sale therein ale, porter, strong beer or lager beer; and it appeared that the defendant sold beer in the tenement on the Lord’s day.

Complaint on the St. of 1869, c. 415, §§ 31, 36, to the municipal court of the city of Boston, averring that the defendant on January 22,1872, kept intoxicating liquor with intent to sell the same.

<p>Complaint on the St. of 1869, e. 415, §§ 31, 36, to a justice of the peace in Middlesex, for keeping intoxicating liquor on January 12,1872, at Natick, with intent to sell. At the trial in the superior court on appeal, before Dewey, J., state constables, called by the district attorney as witnesses, testified that the defendant kept an oyster saloon in Natick on January 12,1872, and for two years before; that on that day the witnesses went into the front room of the saloon, in which was a bar, and made a thorough search there for intoxicating liquor, and found nothing but mineral waters and cigars ; that in the second room they found nothing but chairs and tables ; but that in a small room, used as a kitchen, they found a pint of whiskey, two quarts of rum and half a pint of gin, in bottles, on a shelf, also a dozen tumblers, a drainer and a rinsing tub, all together,. and “ in the vicinity ” seventy-five bottles containing intoxicating liquor ; that on January 19 they found three bottles partly filled with rum, concealed behind the mop-board of the kitchen; and one of the witnesses was allowed to testify, against the objection of the defendant, that he thought he had seen men coming out of the defendant’s saloon in an intoxicated condition between January 12 and January 20. This was all the evidence offered by the Commonwealth. The defendant asked the judge to rule tho+ this evidence was not sufficient to sustain a verdict of guilty; but the judge refused so to rule.</p> <p>The defendant requested the judge to instruct the jury that the mere fact that the defendant had intoxicating liquor in his kitchen on January 12, 1872, had no legal tendency to show that the defendant kept it illegally with intent to sell. The judge so instructed the jury, and also instructed them “ that in order to convict the defendant they must find from all the evidence that on January 12, 1872, when the bottles were found containing whiskey, rum and gin on the defendant’s premises, the defendant kept such intoxicating liquor then and there with intent to sell contrary to law; that they had a right, from all the circumstances proved, to say whether the defendant did or did not keep said intoxicating liquor for sale contrary to law; that no sales need be proved; that the circumstances proved in this case, or such of them as they might think proved, were competent, from which the defendant might be found guilty; ” but the judge did not say “ what or how many of said circumstances offered in testi many by the Commonwealth would be sufficient or competent in itself, or themselves, to show that the defendant was guilty of the complaint charged,” and there was no request by the defendant that he would do so. The jury returned a verdict of guilty, and the defendant alleged exceptions.</p>

Complaint on the St. of 1869, c. 415, § 31, to the municipal court of the city of Boston, for keeping intoxicating liquor on December 21, 1871, at Boston in the county of Suffolk, with intent to sell, At the trial in the superior court on appeal, before Brigham, C. J,t Frederick A. Marsh, a state constable, testified “ that on December 21, 1871, he seized a quantity of whiskey, gin and cherry rum in a shop which was fitted up as bar-rooms usually are, at the comer of Hanover…

Complaint to the municipal court of the city of Boston, on the St. of 1869, e. 415, § 44, averring that certain intoxicating liquors were “ kept and deposited by Thomas Inglis of Boston, in a certain building situate on Tremont Street and numbered thirty-one on said street in said Boston, and the first floor and cellar of said building and the back room over the rear part of the store in said building,” and praying for a warrant to search “ said building described as…

Tort. Writ dated September 18, 1871. The first count of the declaration alleged “ that the plaintiffs are, and were prior to the year 1870 and the defendant’s tenure herein referred to, owners of a dwelling-house situated in Truro in this Commonwealth, and the defendant has been, to wit, since the year 1862, owner and possessor of a house adjoining the house of the plaintiffs ; that the two tenements were built as and designed for one dwelling-house by the owner thereof;…

Contract on fifteen promissory notes, signed by Alfred A. Williams, dated at New Orleans March 21, 1862, payable to the order of the defendants at their office in New Orleans, and indorsed by them. Answer, among other things, that the notes were given upon a contract for a loan of Confederate money, and were therefore without consideration, the defendants being accommodation indorsers ; and were also void for illegality of the consideration.

Bill in equity, filed June 9,1871, under the Gen. Sts. a. 113, § 2, by a corporation established under the laws of Pennsylvania, against Richard W. Sears, residing in this Commonwealth, and the Mutual Life Insurance Company, a corporation established in the city of New York under the law of the state of New York; to reach and apply in payment of a debt, owed by Sears to the plaintiffs, a policy of insurance on his life, issued to him by the defendant corporation on September…

Contract, brought September 20, 1869, by an inhabitant of. Maine, against an insurance company established in New York City under the law of the state of New York; to recover for a loss upon a policy of marine insurance negotiated in this Commonwealth by an agent of the defendants to the plaintiff, and issued by them to the plaintiff under date of December 30,1863, upon the ship Clara, for a voyage from Hamburg in Germany tc Cardiff in Wales, and at and from Cardiff to Hong…

<p>In an action to recover money lent to the defendant, who receipted for it in his individual name, he contended that it was lent to him as agent for a third person. At the trial, after instructing the jury, by the defendant’s request, that the receipt was not conclusive of his individual liability, and the burden was on the plaintiff to prove it, the judge further instructed them that the defendant was not liable if he was known by the plaintiff to be an agent and the plaintiff dealt with him as such, and that on the question whether he acted as agent or as principal they were to consider what took place at the time of the negotiation, and also the prior dealings of the parties, and all evidence in the case bearing on this issue. Held, that the instructions were not open to exception on the ground that they permitted the jury to return a verdict for the plaintiff even although they might find that the defendant acted as agent in the transaction and was known by him to be acting so.</p>

Tort for the eviction of the plaintiff from a house in Cambridge, owned by the defendant.

Petition to enforce a mechanic’s lien under the Gen. Sts. c. 150, for digging a cellar, by employment of the respondent, in land abutting on Clifford Street in Boston, over which was after-wards erected a block of four houses, upon which and the land the lien was claimed.

Contract on an account annexed for the price of certain quantities of rum, gin, whiskey and brandy, sold in October and November 1869 by the plaintiff to the defendant, who answered, denying generally the plaintiff’s allegations, and alleging that, “if the plaintiff shall offer any evidence tending to prove the items in the account, the defendant will offer evidence tending to prove that said items were spirituous and intoxicating liquors, sold, delivered and carted by the…

<p>"Tie facts that the exercises of a spiritualist camp meeting included a show to which an admittance fee was charged, and that some of the speakers declared that they would throw away the Bible in their search after truth, are not conclusive that a person who ravelled on the Lord’s day to attend the meeting did so unlawfully; and the question whether he travelled except from necessity or charity is for the jury.</p> <p>A passenger may recover for personal injuries occasioned to him by the negligence ot a street railway corporation, who were transporting him on a railway which they han leased unlawfully but were using and maintaining without objection from its owners ». the Commonwealth.</p> <p>On the trial of an action against a street railway corporation for injuring a passenger, proof that the injury was caused by a car’s running off the track, at a place where the track and the car were under the exclusive control of the defendants, is sufficient to charge them with negligence, in the absence of any evidence that the accident happened without their fault.</p>

<p>Petition, filed on January 26, 1870, alleging that at April term 1868 of this court in Middlesex Eusebia S. Child was divorced from the bond of matrimony with the petitioner, “ because ho had separated from her without her consent, and united with a religious sect or society that professes to believe the relation of husband and wife void or unlawful, and continued united with such sect or society for three years, refusing during that time to cohabit with said Eusebia, who did not unite with such sect or society; ” and praying for leave to marry again.</p> <p>At the hearing, before Wells, J., after proof that the petitioner’s said wife obtained a divorce from him at the time and for the cause alleged, the petitioner testified, in his own behalf, “ that he had never ‘ joined ’ any sect or society ignoring the marriage relation, but had published a book styled ‘ Unhappy Marriages,’ wherein he claimed that the laws relating to marriage tended to produce misery, and advocated their repeal as the best means of preventing adultery, prostitution, and causes of divorce.” He also testified “ that, however strongly impressed he might be that there would be less crime, wickedness, suffering and poverty in this Commonwealth, if the bondage of the marriage laws was removed, which he thought ought to be done, still he has always been a law-abiding citizen, and accepted the marriage law as binding upon him until repealed, and intended to obey it in future, as he did any and all laws made by the people.” He further testified, in reply to questions of the judge, “ that he entertained the same views and opinions upon this subject as when the divorce was granted ; and that his views, as held by him then and now, are expressed in the book which he published,” a copy of which was introduced in evidence. It appeared “ that the divorce was granted to his wife upon the evidence contained in this book, and proof of corresponding expressions of opinion by him, and the proof of separation and living apart for three years; ” and he testified “ that the reason for his separation from his wife was that she was repulsive to him.” The petitioner produced satisfactory testimony of his good character and habits; but the judge, entertaining doubts whether the case as presented was one in which authority to marry again ought to be granted, reported it for the determination of the full court.</p>

Libel for a divorce on the ground of adultery committed by the libellee with Charles Shattuck on July 27, 1868.

<p>Bill ih equity, filed July 10,1871, by Horace E. Morse, administrator of the estate of Elbridge G. Wright, and by Henry Esbach, Louis F. Hartman and William G. Reed, copartners under the name of the Boston Musical Instrument Manufactory against David C. Hall and George W. Quimby, alleging that for many years and down to 1869 Wright was a partner with Esbach and Hartman in the business of manufacturing musical instruments ; that in 1869 the partnership was dissolved, Esbach, Hartman and Heed formed a new partnership, and Wright entered into a partnership with the defendants under the name and style of E. G. Wright & Company ; that in March 1871 Wright died, and Morse was appointed administrator of his estate, and conveyed to the other plaintiffs, by an instrument in writing, the right to use his intestate’s name in their business ; that notice of this conveyance was given to the defendants, and they were requested to desist from further use of Wright’s name in their business ; but that they refused to do so, and continued, as before Wright’s death, to use the name of “ E. G. Wright & Company ” in their business, “seeking to attract the trade and custom attached to and connected with the name of E. G. Wright, which has been known and acquired a valuable reputation in said business ; ” and that the defendants had no consent in writing from Wright or his representatives to use his name after his decease, and such use was wholly unauthorized. The prayer was, that the defendants might be .restrained from using Wright’s name in any manner or connection with or in their business.</p> <p>The defendants demurred to the bill for multifariousness and want of equity, and the case was heard by Colt, J., and reserved on bill and demurrer for the determination of the full court.</p>

Bill in equity, filed February 28, 1871, against William D. A. Whitman, Joseph H. Whitman, Joseph F. Wilson and Charles H. Foster; alleging that William D. A. Whitman, agreed with the plaintiff, who was’a builder, to erect a block of houses on said Whitman’s land for $32,500, induced the plaintiff to postpone signing the building contract, and in the meanwhile gave to Joseph F. Wilson a mortgage of the land, (purporting to secure a loan of $33,000,) which was recorded; that…

<p>Contract, by a banking corporation in St. Louis against Reuben A. Richards, James C. White and John E. White, doing business in Boston under the name of Richards and Company, as acceptors of a bill of exchange for $2500, drawn on the defendants by the St. Louis Zinc Company, dated August 16,1870, payable thirty days after date to the order of Felix McArdle, secretary, and by him indorsed to the plaintiffs. The case was submitted to the judgment of the superior court, and, on appeal, of this court, upon a statement of facts of which the material parts were as follows:</p> <p>The St. Louis Zinc Company in August 1870 were furnishing spelter to the defendants, who were wholesale metal merchants in Boston. On August 16, the defendants received the following telegraphic despatch from the St. Louis Zinc Company: “We are obliged to draw for $2500, thirty days. Answer.” On the same day, the defendants replied by telegraph to the company : “ You can draw for $2500 at thirty days.” At this time nothing was due from the defendants to the St. Louis Zinc Company, but they were expecting an invoice of spelter to be sold on account of the company. There was spelter in their hands which had been received from the company previously, and not then sold. The contemplated acceptance by the defendants of the bill of exchange in suit was upon the expectation of receiving an invoice of spelter; but the invoice never came to them, and was subsequently sold by the company to other persons. The defendants never had any consideration for the acceptance, except what appears from the facts herein stated.</p> <p>The bill of exchange in suit was immediately drawn by the St. Louis Zinc Company and indorsed by McArdle, and on August 17 the company showed the telegram from the defendants to the plaintiffs, who thereupon purchased and discounted the bill, sent it to Boston, and presented it to the defendants; but the defendants refused to accept it, and it was protested.</p> <p>If upon the foregoing facts the plaintiffs were entitled to recover, judgment was to be entered for them for the amount of the bill with interest and costs of protest, otherwise judgment for the defendants. .</p>

Contract against Philip R. Ammidon and Florentine W. Pelton, on the following agreement signed by them: “ $1000. Boston, January 27, 1870. Ten days after date, we promise to pay to the order of George W. Meserve one thousand dollars in paper hangings at the regular trade price. Value received.

Contract against the administrator of the estate of Elias P. King, for money had and received by his intestate. Writ dated March 20, 1869.

Bill nsr equity to enforce an alleged trust relating to lands in North Carolina. The answer denied the trust, and set up the statute of frauds.

<p>Contract by the master and owner oí the brig J. M. Wiswall on a charter party (which is printed in the margin *) by which he chartered her to the defendants for a voyage from Boston to Mobile, and back to any port north of Hatteras, except New York, for the sum of $4300. The case was submitted to the judgment of the superior court, and of this court on appeal, upon the following statement of facts :</p> <p>“ The plaintiff received a full cargo from the defendants, consisting of 213 tons of ice and an assorted cargo of various sorts of merchandise, and on September 19, 1870, left Boston for Mobile. She encountered heavy weather, struck upon a reef, leaked badly in consequence, and was compelled to put into Key West, (where she arrived on October 16,) to make such repairs as were necessary to enable her to proceed. On arrival at Key West, some of the assorted cargo was found to be so damaged by seawater as to make a sale expedient; and it was sold, and the proceeds duly accounted for. The ice, being likely to perish from exposure to the air while the vessel was under repairs, was sold, and the proceeds of the whole, amounting to $440.25, were duly accounted for; but the defendants received no freight upon it from the owners of the ice, nor any freight on the part of the residue of the cargo sold. The plaintiff, on or about November 3, said to the defendants that he could sell his interest in the vessel to another captain at Key West, if the vessel was released from the charter on her arrival at Mobile, and asked the defendants to release her at Mobile, which they declined to do. The plaintiff, on December 18, resumed the voyage with the remainder of the cargo, and delivered it at Mobile, where it was accepted by the consignees, and $826.37 was paid to the plaintiff on account of charter money at Mobile. The plaintiff then received a full return cargo, and twelve bales of cotton, which were stowed in the cabin, all which were duly delivered in Providence as directed by the defendants, where he received $725 on account of the charter money. There were two cabins divided by a partition, one used as a sitting room and the other as a dining room, and both had state rooms. The plaintiff put ten bales of cotton into the state rooms in the front cabin, and two bales into the state room in the after cabin.</p> <p>“ The plaintiff claims extra freight on account of the twelve bales taken in the cabin, and also claims the full amount stipulated in the charter party, less the amounts paid. The defendants claim a deduction, on account of the merchandise sold at Key West, of the amount of freight thus lost to them.</p> <p>“ The defendants on May 8, 1871, offered judgment for the sum of $1585, being the amount due if the defendants are entitled to make the deductions claimed by them and are not responsible for extra freight for the twelve bales of cotton. If the court should be of opinion that the plaintiff is entitled to receive a sum not exceeding this amount, then judgment to be entered for such amount and costs to the day of such offer; but if the court should be of opinion that the plaintiff is entitled to recover a greater sum, then judgment to be entered for the plaintiff, and the case sent to an assessor.”</p>

Contbact, by the administratrix of the estate of George F. Ayer, on a policy issued by the defendants upon the life of her intestate, dated August 4, 1869.

<p>Bill in equity, filed Jim» 6, 1871, by John S. Emery and fifteen others against Edward B. Huntington, Sebastian B. Schlesinger, George P. King and Barthold Schlesinger, doing business under the name of Naylor & Company, and George H. Peters, William C. Peters and Joseph P. Ellicott, doing business under the name of E. D. Peters & Company, alleging that the plaintiffs were owners of the barque Megunticook; that the barque, on August 13,1870, while upon a voyage from Stockholm to Bos-, ton with a full cargo of iron, nearly all of which was consigned to the defendants, came into collision with the English steamer Hugh Taylor, about six miles from the coast of Denmark; that when the vessels came in sight of each other, the barque kept on 'her course, as the laws of the United States, agreeing in this respect with the laws of England and of most commercial nations, required her to do; that the steamer ought to have kept out of the way of the barque, as she had ample opportunity to do, and as the laws of England, agreeing in this respect with the laws of the United States and nearly all commercial nations, required her to do; but that the steamer did not keep out of the way of the barque, and instead thereof, when very near the barque, suddenly ported her helm and kept off across the barque’s bow, and by that movement rendered a collision between the two vessels inevitable; that everything was done on board the barque which law and good seamanship required to avoid collisions; that the collision was wholly caused by the negligent and illegal conduct of the persons in charge of the steamer ; “ that when it became apparent to the master and others in charge of the barque that a collision was inevitable, and that, as the barque was then heading, there was imminent danger that it would cause the sinking of the barque and the total loss of her cargo and freight, and of the lives of all on board, the master, to diminish the effect of the impending blow, and enable the barque to strike the steamer stem on, ordered her helm put hard to starboard, and thereby succeeded in changing her course so far to port that she struck the steamer’s broadside, stem on; that by striking the steamer in this manner the barque was greatly damaged, her jibboom, cutwater and bob* stays were carried away and her stem was crushed from the top downward, several feet below her water line when light, and two of her breast-hooks broken; that the barque, her freight and cargo, were in imminent danger, and would in all probability have been totally lost, if the barque had not been voluntarily run upon and against, the steamer in the manner aforesaid, and the damage above described voluntarily incurred; that the barque was so run upon and against the steamer, and the damage voluntarily incurred, for the safety and preservation of' the barque, her cargo and freight and the lives of the persons on board, and by means thereof the same were saved; and that after the collision and damage had taken place, in the condition the barque then was, it was impossible for her to proceed on her voyage, and she was in fact in imminent danger of being lost, so that it became absolutely necessary for the safety and benefit of vessel, cargo and freight, to go into the harbor of Copenhagen to repair the barque, and she went there accordingly.”</p> <p>The bill then alleged “ that while at Copenhagen proceedings were commenced by the owner of the steamer, in the maritime and commercial court of Copenhagen, for the recovery of damages done to the steamer by the collision, she having also put into Copenhagen for necessary repairs ; that thereupon the barque was seized for security for such damages as should be recovered in such proceedings; that after a hearing the court decreed that the damages to both vessels should be aggregated and equally divided between the parties, and, in applying this rule of damages, and the damages suffered by the barque being first deducted, that there remained to be paid to the owner of the steamer on behalf of the barque the sum of 5472 rix-dollars, with interest, and that the seizure of the barque should remain in force for that amount; that in order to get possession of the barque to be used for the prosecution of the voyage, or for any purpose, it was necessary to pay said sum, and it was accordingly paid on behalf of the owners of the barque, with interest; that in rendering said i. ecree the court proceeded under a Danish law, in substance as follows: 6 Where two vessels sailing meet and are unable to avoid each other, but both sustain damage, then both masters with their crews shall make oath that it happened unintentionally and not with design, and then both masters shall bear the damage, each of them for one half share, whether it occurs by day or by night; ’ that there is no law in Denmark requiring steamers to keep out of the way of sailing vessels; that the court did not find the barque in fault for the collision, but held that it was a common accident, under the rule of law above set forth, and that the damages must be borne as in said rule provided ; that when, to avoid being sunk by the impending collision, the barque changed her course, so as to strike the steamer’s broadside stem on, she by that movement inflicted a severe blow upon the steamer, and so caused the damages to the steamer for which by the decree of the court payment was ordered and made; that the damages so inflicted voluntarily upon the steamer and the payment for the same are to be regarded as a voluntary sacrifice made by the master of the barque for the safety and benefit of the barque, her cargo and freight; that in consequence of entering the port of Copenhagen, the barque and her pending freight became subject to the Danish law and to the jurisdiction of the Danish court, became liable to be and was seized by the order of the court, and was forced to submit to its jurisdiction, alpide its decree, and pay the sum of money decreed by it as aforesaid, and also to incur heavy expenses in making defence against said claim and in other proceedings for the promotion of -the defence; and that, inasmuch as entering said port voluntarily for the purposes above set forth was for the benefit of the barque, her freight and cargo, the sum paid in pursuance of the decree of the court and for defence as aforesaid is to be regarded as a voluntary sacrifice for the common relief and benefit of the barque, cargo and freight, and all interested therein.”</p> <p>The bill further alleged that the cargo was saved, and was carried to its destination and delivered to the defendants ; that the plaintiffs were entitled to contribution from the defendants for expenses in repairing the damages done to the barque by the collision, for the sums paid for the damages done to the steamer, and for the expenses incurred in the defence of the proceedings in the court at Copenhagen; and that a general average adjustment was properly prepared. The prayer was, that the defendants might pay the sums due from them according to this adjustment.</p> <p>The defendants demurred to the bill for want of equity; and the case was reserved by Colt, J., on the bill and demurrer, for the determination of the full court.</p>

<p>Bill in equity by David Cobb in his own behalf, and in behalf of all other persons having estates in the land taken by the defendants under the St. of 1867, e. 308,* alleging that an estate of his had been taken under the statute, and praying that the defendants might be decreed to pay him full compensation therefor. Asahel A. Smith and Mary Ann Smith became parties to the bill, and prayed that the defendants might be decreed to pay for land of hers taken by them, and Edwin M. Montague and Herman Askenasy also became parties, and each prayed for compensation for his land taken by the defendants.</p> <p>Commissioners were appointed, who, before making their report, requested the court to instruct them as to their duty on certain points ;*the parties were heard before the chief justice, and he refused the request.</p> <p>The commissioners made their report, in which they determined the value of the estates of the several plaintiffs, on May 9, 1868, the date of the taking by the defendants, which the parties agreed was the time at which the value should be assessed.</p> <p>It appeared from the report that Cobb, and Smith and his wife, offered to introduce evidence that they expended money and labor, after the date of the taking by the defendants, in making improvements on their respective estates, and that they incurred this expense in consequence of votes and directions of the city authorities and on their assurance that they should be compensated therefor, but the commissioners excluded the evidence.</p> <p>It further appeared that on the hearing in the case of Mrs. Smith, her husband, who was called as a witness on her behalf, was asked, on cross-examination by the defendants, when he bought the estate and what he paid for it. The plaintiffs called attention to the fact that they had not asked the witness his opinion of the value of the land, and objected to the question; but the commissioners allowed it to be put, and the witness answered that he bought the estate in 1864, and named the price he paid for it.</p> <p>It also appeared that on the hearing in the case of Montague, who occupied an estate taken by the defendants, under a lease for three years from October 1867, he offered evidence as to the annual profits of his business as a grocer upon the premises, and as to the damage to his business and its goodwill, but the commissioners rejected the evidence.</p> <p>It also appeared that on the hearing in the case of Askenasy who occupied an estate taken by the defendants, under a lease which expired in July 1868, he offered to introduce in evidence a second lease of the same premises to him, dated in August 1867, and running for three years from the expiration of his other lease, but the commissioners ruled that he had no estate, by reason of this second lease, which they could value.</p> <p>It also appeared that a witness, called by the defendants as an expert as to the value of the several estates, “ having made an examination of the several estates in the autumn of 1867, was allowed,” against the plaintiffs’ objection, “ to give from his memoranda the valuation he put upon the estates at that time.”</p> <p>To the rulings above stated the plaintiffs excepted, and Cobb and the Smiths filed a statement alleging that the report did no,* give with sufficient fulness the evidence offered as to the expense» incurred after the taking, and setting forth the facts as to these expenses in more detail.</p> <p>The plaintiffs moved that the report might be set aside, or recommitted with instructions from the court, or if this was not done, and the exceptions were overruled, then that they might have a trial by jury “ independent of and without said report, upon such legal evidence as they may adduce.”</p> <p>The case was reserved by Colt, J., on this motion, for the consideration of the full court.</p>

Tort, by Mary M. Morse and her husband, on the Gen. Sts'. c. 44, § 22, for injuries sustained by the female plaintiff through falling on a sidewalk in Webster Street in East Boston, which the defendants were bound to keep in repair. At the second trial in this court, before Colt, J., the jury found for the plaintiffs, and the defendants alleged exceptions.

Tobt against common carriers for injuries to a passenger in August 1869, caused by the fall of a gangway plank on which she was passing from a wharf to a steamboat of the defendants, and which the defendants were in fault in not having properly secured or tended.

Contract, with a count in tort. The first count was against the defendants, who were a corporation, as common carriers, for failure to carry to Boston a package containing $1800 in treasury notes, delivered to them by the plaintiff in New York. The second count was for $1800 money had and received by the defendants to the plaintiff’s use. The third count was for the conversion of treasury notes of the value of $1800.

<p>Replevin of merchandise. At the trial in the superior court, before Beed, J., the plaintiffs, who were wholesale traders in dry goods, contended that the defendant, who was a retail trader, obtained the replevied goods, which they had sold and delivered to him on credit, by means of false and fraudulent representations to them as to his pecuniary condition, and also intending at thy time not to pay for them.</p> <p>The plaintiffs introduced evidence tending to show that on March 13,1869, upon their refusal to sell to the defendant upon credit, unless he would give them a statement of his pecuniary condition, he told them that he had a capital of $6000 over and above his liabilities, had no accounts overdue and unpaid, and owed little borrowed money ; that, relying upon this statement, they sold him the replevied goods on credit; that in fact he did not have $6000 capital, did have accounts overdue and unpaid, owed considerable borrowed money, and was insolvent and knew that he was so; and that he failed on April 17, 1869, and was adjudged a bankrupt on his own petition May 6, 1869. The plaintiffs also contended that the defendant obtained goods of other persons about the same time by like fraudulent representations, and evidence tending to show this was admitted against the defendant’s objection.</p> <p>Albert Morse was allowed, against the defendant’s objection, to testify that in a conversation with the defendant, in the early part of March 1869, he asked the defendant if he was worth $6000, as he had told him, two years before, he was when he began business ; that the defendant said he should be in a few days, and should want some goods; and that on March 17 and March 29 he bought some goods of the witness, which were never paid for.</p> <p>The plaintiffs were also allowed, against the defendant’s objection, to introduce evidence tending to show that the defendant bought goods in New York on March 5 from Hardy, Brown, Goss & Company, and represented to them that he had money in the bank to pay for them as soon as delivered, and that this statement was not true ; that on April 8 he told them, in reply to inquiries how his affairs stood at that time, that he had a stock of $15,000, owed $7000, had a surplus of some $8000, and owed no borrowed money except a little to his brother, who would never call for it; and that afterwards they sold him goods.</p> <p>The bookkeeper of the bank where the defendant kept his de» posits was allowed, against the defendant’s objection, to testify that on March 5 his account was overdrawn, and on March Í3 there was a balance of $3.07 in his favor. The witness had a transcript of the defendant’s account taken from the bank books kept by him, which the defendant agreed might be used in the same way that the books could have been if present, and the witness testified, against the defendant’s objection, to the state of the defendant’s account at certain times, using the transcript to refresh his memory. The plaintiff then offered to show it to the jury. The defendant objected that it was not competent evidence. The judge said it was not evidence at all, but the jury had heard the statements from it, and could look at it if they wished; it contained nothing but what the witness had testified to.</p> <p>The plaintiffs were allowed, against the defendant’s objection, to introduce the record of the United States district court to show the claims against the defendant’s estate in bankruptcy, for the purpose of proving that he owed for borrowed money. The books of the defendant and the schedules of debts and assets, filed and sworn to by him upon his going into bankruptcy, were put in evidence. The schedule of assets stated the defendant’s stock in trade as worth $8000, and the goods replevied as $2875, but the correctness of these statements was in dispute.</p> <p>A witness, called by the plaintiffs as an expert in bookkeeping, having testified that he had examined the books and schedules, the plaintiff asked him the following question : “ Taking the defendant’s purchases from March 1, 1869, down, deducting from them his sales and deducting from the amount thus ascertained the amount that he had on hand at the timé he went into bankruptcy, assuming the schedule of assets to be true, how much stock had he on hand March 1,1869 ? ” The defendant objected to the question as argumentative and calling for reasoning and deductions on the part of the witness, and because it did not appear that' he had sufficient data to make an answer. The judge overruled the objection, saying, “ The witness is asked to state what the books show; he may state the result,” and the witness answered, “ $5,194.86.” The two following questions were also allowed to be put to the witness, against the defendant’s objection : “Assuming that the defendant owed at the time he went into bankruptcy $21,093.52, as set forth in his schedule of debts, »nd deducting what he paid according to his books from what he purchased from March 1, 1869, down, what do you make his liabilities, according to his books, on March 1, 1869 ? ” Answer “ $12,662.75.” “ With the same assumptions, how much did he have on hand and how much did he owe on March 13, 1869 ? ” Answer, “ $16,023.20.”</p> <p>The jury returned a verdict for the plaintiffs “ because of false representations,” and the defendant alleged exceptions.</p>

<p>If a case is reserved for the full court on an auditor’s report, his findings will not be reversed, unless, as matter of law, the facts reported by him require it.</p> <p>The plaintiffs in a suit instructed their attorney to settle the case on certain terms, ccypled with a certain condition, and afterwards spoke to the defendants of the terms as terms of settlement, without saying anything about the condition; the attorney never mentioned the condition, but settled upon the other terms proposed, and the defendants believed and had reason to believe that the attorney had authority to settle as he did. Held, that the plaintiffs were bound by the settlement.</p> <p>k suit was settled by the plaintiffs’ attorney upon the defendants paying a sum as damages and also his fees. Held, that the plaintiffs could not rescind the settlement as unauthor, ized upon tendering to the defendants only the amount paid by them as damages#</p>

<p>Petition by Maurice Goddard and Julia Goddard, administrators with the will annexed of the estate of Samuel Goddard, against Eleanor G. May and her guardian Frederick W. G. May, praying for instructions as to the construction of the will; MeMtable M. Goddard, the testator’s wife, his daughter, Julia Whitney and her husband, Josiah D. Whitney, joined as petitioners. The case as it appeared from the petition and answer, on which it was reserved by Gray, J., for the determination of the full court, was as follows :</p> <p>Samuel Goddard made a will in 1865, by the first clause of which he gave to his wife his estate in Brookline, consisting of house, land and furniture, for her life, and “ at her death said estate shall be divided equally among her immediate surviving children, according to the provisions hereinafter named with regard to their portions of the rest of my estate.”</p> <p>By the second clause he gave to his son Maurice Goddard personal property purchased with his money but standing in the testator’s name.</p> <p>By the third clause he gave to his granddaughter, Eleanor G. May, certain personal property, “ and if the said Eleanor G. May shall die before the age of twenty-one, without legal issue, then her said portion of my estate shall revert in equal shares to my immediate children who may be living at the time of her death.”</p> <p>“ Fourth. It is my will that all of my estate, real and personal, that may remain after the devise of my said estate in Brookline, and the transfer of the personal property above specified to my wife, my son Maurice, and my granddaughter Eleanor G. May, shall remain invested as I may leave it at my death, for the space of five years, unless during that time it should be considered necessary in the judgment of two of the three gentlemen here named, viz., Benjamin E. Bates and Josiah Bardwell, both of Boston in the county of Suffolk, and William Dwight of Brook-line in the county of Norfolk, to change the investments of the whole, or any portion thereof; in which case my executors shall act in accordance with such decision by them made. And it is my will that all the income accruing from said estate during said time shall be divided into five equal shares, and paid as such income shall become due, according to my following directions, to the persons hereinafter named; to wit, one of the said shares to my wife Mehitable May, to be accepted by her instead of her right of dower, and in case of her death her said share to be equally divided among her immediate surviving children. Also one of said shares to my daughter Louisa Whitney; and in case of her death it is my will that her said share, together with all other income that may have accrued to her under the provisions of this will,- shall be equally divided between her two children A nn Louisa Field and Eleanor G. Whitney; but should either or both of her said children decease without legal issue, then the said income bequeathed to such child or children shall be equally divided among my immediate surviving children. Also one of the said shares to my son William D. Goddard; and in case of his death without legal issue, his said share, together with all other income that may have accrued to him under the provisions of this will, shall be equally divided among his immediate surviving brother and sisters.” The remaining shares were given, one to his daughter Julia, and the other to his son Maurice, in the same terms as those of the gift to William D.</p> <p>“ Fifth. And it is my will that at the expiration of five years after my death, the principal of all that part of my estate specified in article fourth of this instrument shall be divided as it then stands into five equal portions, each portion to contain a fifth part of each of the investments in which my said eg tat 3 may then be comprised, said portions to be then given according tc my following directions to the persons hereinafter specified; viz., one of said portions to my wife Mehitable May, to have and to hold the same during her life, and at her death her said portion shall be equally divided among her immediate surviving children.</p> <p>“ Also I give and bequeath one of said portions to Josiah Bard-well of Boston, to have and to hold the same to him, his heirs, executors, administrators and assigns, but to hold the same in trust nevertheless for the following purposes and uses; viz., to receive and collect all the income that shall accrue from the said portion of my estate, and pay the same to my daughter Louisa Whitney during her life, in semiannual payments.” “And it is my will that at the death of my daughter Louisa, this her said portion of my estate shall be equally divided between her two children Ann Louisa Field and Eleanor G. Whitney, the same to be held in trust for them by the said Josiah Bardwell, and the income thereof to be paid them semiannually during their life ; and should either or both of the said children decease without legal issue, then it is my will that the said portion of my estate above bequeathed to such child or children shall be divided in equal shares among my immediate surviving children. Also one of the said portions shall be given to my son William D. Goddard, to have, to hold, and to dispose of the same, together with all other property that may accrue to him under the provisions of this will; but if he should die intestate and without legal issue, it is my will that his said portion of my estate shall be equally divided among his immediate surviving brother and sisters.”</p> <p>The remaining portions were given, one to his daughter Julia, and one to his son Maurice, on the same terms as those of the gift to William D. -</p> <p>“ Sixth. It is my will that if either or any of my children above specified, viz., Louisa Whitney, William D. Goddard, Julia Goddard and Maurice Goddard, should decease without legal issue during the space of five years after my death, then all that portion of the principal of my estate bequeathed to such child or children shall be added in equal shares to the portions of such of my immediate children who may be living at the expiration of the five years aforesaid.”</p> <p>William D. Goddard died intestate and without issue in 1867. The testator died in 1871, leaving his wife him surviving, and as his heirs, his children Louisa, Julia and Maurice, and his granddaughter Eleanor G. May, only child of Eleanor L. May, a deceased daughter.</p>

Bill in equity, filed May 26,1870, against Edwin Reynolds, Richard Holmes and three others, to enforce their liability as officers of the Reynolds Engine and Governor Company, a manufacturing corporation organized under the Gen. Sts. o. 61, for a judgment debt due to the plaintiffs from the corporation, incurred after its neglect to do the acts required by § 8. The bill did not purport to be brought in behalf of any creditors except the plaintiffs.

Bill in equity against the executor of John Black to redeem land in Chelsea from a mortgage given by the plaintiff to the defendant’s testator.

<p>A. bill in equity against husband and wife alleged that the plaintiff had a judgment against the wife; that on her failure to"pay it she was cited before the court of insolvency, under the St. of 1862, c. 162, and there made oath that she had no property subject to attachment; and that the husband had then and now in his hands the proceeds of a sale of the wife’s real estate, or property purchased therewith; and prayed that the husband might be ordered to pay the judgment debt out of such proceeds or property. Held, that the bill was not demurrable, ^ither on the ground that the husband was improperly joined as defendant, or on the ground that the plaintiff had an adequate remedy at law by an action against the wife in which the husband should be summoned as trustee, or on the ground of the proceedings under the St. of 1862, e. 162.</p>

<p>In an action for libel the defendants demurred, assigning for cause that the declaration did not set forth anything which was by its natural import libellous, or was actionable upon any ground. Eeld, that, under the Gen. Sts. o. 129, §§ 11, 12, the objection that the declaration did not contain sufficient averments that the alleged libel related to the plain» tiff, was not open.</p> <p>A declaration for libel alleged that the defendants, with intent to cause it to be believed that the plaintiff, R. W., a bookseller in Montreal, had attempted to defraud the revenue laws of the United States, and to bring the plaintiff into hatred, contempt and ridicule, published a pamphlet, a copy whereof was annexed to the declaration. The pamphlet, which advocated the substitution of a specific duty for an ad valorem duty on imported books, stated that no appraiser could be familiar with the value of different bocks; that accordingly English books were entered at the New York custom-house at a nomimk. valuation; that “some bolder spirits, impatient of the chances of detection ii our prin* cipal ports, devised a simpler plan,” of shipping books into Canada and thence intro* ducing them, “ through some obscure port of entry on the border, where the ignorance of the officials presumably offered an opportunity of fraud;” that one or two cases would serve to show the modus operandi of these transactions; that a Montreal auctioneer, by a prearranged plan, entered a large lot of books at a port of entry on the Canada border under a sworn invoice, on which they were grossly undervalued; and that they were seized by the revenue officers. It continued thus: “A somewhat similar, but smaller transaction recently came to light. A Mr. W., who does a small book business in Montreal, has been in the habit of shipping English books *nto the United States. According to his own statement he received intimations that trouble was in store for him, and accordingly he took the precaution to assemble his principal clerks, in the presence of a witness, and give them the very suggestive instructions, that invoices were thereafter to be made out honestly, both as to prices and contents. Notwithstanding this praiseworthy effort to repress the smuggling instincts of his employés, his very next shipment, consisting of nineteen cases of ‘ samples,’ were seized, on the ground of undervaluation, and because a considerable number of books were not even borne upon the invoices. Mr. W. thereupon, as an injured innocent, complains that he is the victim of a conspiracy set on foot by envious booksellers.” Held, on demurrer, that the pamphlet was a libel. v</p>

<p>Tort against Charles Scribner, Andrew C. Armstrong, Edward Seymour, Arthur J. Peabody, and Charles Welford.</p> <p>The declaration alleged that the plaintiff was engaged in importing books into the United States; that the defendants, conspiring to injure him and prevent his so importing books, and without probable cause, maliciously and falsely represented to the treasury department of the United States, and to the solicitor of the United States treasury, that the plaintiff had purchased books with the intention of bringing them into the United States, either altogether in fraud of the United States revenue, or at a fraudulent undervaluation, and thus induced the department and the solicitor to order the plaintiff’s books to be seized, when entered for import, that sundry cases of his books were accordingly seized and libelled on informations in the United States courts; and that the informations were afterwards dismissed and the books released. The defendants’ answer denied all the plaintiff’s aliegations, and further alleged “ that if any communication war made by any person to said solicitor or other officer of the United States, as alleged, or relative to any anticipated attempts to introduce goods into the United States without payment of the proper duties thereon, and not in conformity with the laws of the United States, the same would be a privileged communication, and would not be ground or cause for this action.”</p> <p>The plaintiff filed interrogatories, to be answered by the defendants severally, one of which was as follows : “ Did you not, in the summer or fall of 1869, and if so, when, inform the United States treasury department, the secretary, the solicitor of the treasury, or some officer or employé in said department, and if yea, when, that you knew, or believed, or thought that the plaintiff was buying large quantities of books in England, with the intention of bringing them into the United States in violation of law, or anything to that effect ? If yea, state fully all that you did in the matter, including copies of all written communications, and substance of all oral statements.” There were other interrogatories similar to this, and designed substantially to ascertain whether the defendants had not informed the treasury department, or some officer thereof, of alleged contemplated frauds on the revenue, or as to the channels through which such information came to the United States government.</p> <p>The defendants refusing to answer these interrogatories, the plaintiff moved that they be ordered to do so, and the question whether the motion should be granted was reserved by Wells, J., for the determination of the full court.</p>

<p>Contract for goods sold and delivered. The answer alleged that after the issuing' of the writ, the defendant was adjudged a bankrupt on his own petition, and the plaintiffs proved the debt declared on against his estate. At the trial in the superior court, before Rockwell, J., the plaintiffs admitted that the facts alleged in the answer were true, whereupon the judge ruled that those facts were a defence to the action, and directed a verdict for the defendant, which was returned, and the plaintiffs alleged exceptions.</p>

Bill in equity by the widow of Jonas R. Slack, and his children and heirs at law, “ who were on June 17, 1871, admitted as parties defendant under date of February 24, 1869, to a bill of complaint filed May 5, 1868, by George 1ST. Black against Wil-iam Lewis, for the redemption of certain mortgaged premises.” The bill alleged “that said Minerva Slack and others, June 10, 1871, filed an answer under oath to said bill of complaint, and file this bill against said Black to…

Bill in equity hy Lebbeus W. Smith and William H. Wallace, alleging that the defendant agreed to sell and Smith to buy a lot of land in Boston, numbered 74 on the plans of the Tremont Improvement Company; that the defendant thereupon signed the following agreement: “ Whereas Horace Patridge has, by an agreement with True W. Townsend, agreed to convey to said Townsend certain lots of land located on Hammond Park, in the city of Boston, and whereas there is one lot separate…

Scire facias against Abigail A. Wheelock and George A. Doane, upon a bail bond dated November 4, 1869, which purported to be entered into by “ Joseph B. Wheelock,” who had been arrested on mesne process at the suit of the plaintiff, “ as principal, and Abigail A. Wheelock, wife of said Joseph B. Wheelock, and George A. Doane, as sureties,” The defendants executed the bond, and Abigail A1 Wheelock was wife of the principal, and at the time of executing the bond was possessed…

<p>Contract, under the Gen. Sts. e. 124, § 10, upon a recognizance entered into on February 27, 1869, by George T. Reed, as principal, and the defendants, as sureties, conditioned that Reed, who had been arrested on the same day upon an execution issued on a judgment in favor of the plaintiff, should within thirty days from his arrest deliver himself up for examination before a magistrate, “ appear at the time and place fixed for his examination, and from time to time until the same is concluded, and not depart without leave of the magistrate, making no default at any time fixed for his examination, and abide the final order of the magistrate therein.” The case was submitted to the judgment of the superior court, and, on appeal, of this court, on agreed facts in substance as follows:</p> <p>Reed was arrested on the execution by a constable of the city of Boston and taken before a magistrate, wh' re he and the defendants entered into the recognizance declared on. He submitted himself to examination at the time appointed, and from time to time at several adjournments till April 14, when the examination was adjourned to April 24, when he failed to appear, having been arrested upon a warrant issued against him on a complaint for adultery; and, for default of bail, committed to the jail of Suffolk county, where he was on April 24, all which was known to the defendants. The defendants did not surrender Reed at any time to the constable, who arrested him, or to the keeper of the jail, or to any other officer authorized to receive him, nor in any way in discharge of the recognizance, and they gave no notice to the plaintiff or his attorney of any such surrender, and the plaintiff and his counsel appeared on April 24 prepared to examine him. As soon as Reed was discharged from jail in May, long after April 24, he proposed to appear before the magistrate and complete the examination, but the plaintiff refused, and no further proceedings were had.</p> <p>If the court should be of opinion that on the above facts the plaintiff was entitled to recover, then judgment to be entered for him for the amount of the judgment debt and costs of the proceedings ; otherwise for the defendants.</p>

<p>Contract by the receivers of the East Boston Ferry Company, which was incorporated by the St. of 1852, c. 244,* against a street railway corporation, to recover tolls for the carriage of 238,143 passengers in the defendants’ cars over the ferry, between October 1869 and March 1870. Writ dated March 31, 1870. The case was submitted to the judgment of the court on an agreed statement of facts, the court to render such judgment as the facts might require. The case is stated in the opinion.</p>

<p>Bill in equity by George Putnam, Jr., administrator de bonis non, with the will annexed, of George W. Collamore, and trustee under the said will, against John H. Collamore and the widow and children of the testator.</p> <p>The bill alleged that Maria E. Ames died in 1845, leaving a will by which she devised-real estate in trust for the benefit of the plaintiff’s testator and of John H. Collamore and their heirs in equal shares; that John A. Andrew was trustee under this will, that the plaintiff’s testator in 1847 executed a deed by which he conveyed an undivided half of certain real estate to Andrew in trust for John H. Collamore and his heirs, and in 1863 died seised of the other undivided half and also of other land, and leaving a will by which he gave all his real estate to Andrew upon certain trusts for the benefit of his widow and children, declared in the sixth, seventh and eighth clauses of the will, which were set forth in the'bill.</p> <p>The bill further alleged that Andrew was appointed executor of the will of George W. Collamore, and trustee under the same; that John H. Collamore brought a suit in equity against him on account of alleged maladministration as trustee under tile will of Maria E. Ames and under the deed of George W. Collamore, and also brought a suit at law against him as executor of the will of George W. Collamore; that Andrew died in 1867, and the plaintiff was appointed administrator de honis non, with the will annexed, of George W. Collamore, and trustee under the same, and also trustee under the will of Maria E. Ames of the estate devised by her for the benefit of George W. Collamore; that the plaintiff “ appeared as administrator to defend said suit,” which was still pending; that the “ representative ” of Andrew, aft§r his death, rendered and settled his final account as executor of the will of George W. Collamore, and trustee thereunder, showing a balance, which was paid over to the plaintiff, and consisted wholly of rents of the real estate held by Andrew as trustee under the will of Maria E. Ames and George W. Collamore; that the plaintiff, as trustee as aforesaid, had since his appointment to the trusts received, as tenant in common with John H. Collamore, the rents of the undivided half of the estates held by the plaintiff under said trusts, and also the rents of the other land of which George W. Collamore died seised. '■</p> <p>The bill also alleged that George W. Collamore left a widow and children; that John H. Collamore contended that the plaintiff should hold the sum received from the “ representatives ” of Andrew, as administrator and not as trustee, and should hold all the rents received by him “as a mere stakeholder, to abide the result of the litigation against him as administrator, and to satisfy any judgment which John H. Collamore might recover against the goods and estate of the testator in his hands.” The prayer was for instructions as to this claim of John H. Collamore, and also as to the administration of the trusts under the will of George W. Collamore, which last it is not now material to state.</p> <p>John H. Collamore demurred, on the grounds “ that only a part of the will of said George W. Collamore is set forth in the bill; ” “ that the question whether the plaintiff is entitled to hold certain property as trustee, or as administrator, with the will annexed, cannot properly be inquired of in the present mode of prooeeding ; ” “ that the plaintiff’s position, as set forth in the bill, does not entitle him to maintain such a bill,” and generally for want of equity.</p> <p>The case was reserved by Colt, J., on the bill and demurrer, for the consideration of the full court.</p>

<p>Petition to this court for partition of land in Boston, against Eliza Ann Blake and Edward Blake, her husband, John P. Putnam, trustee, William L. Bass, Mary L. Wild and Horatio If. Wild, her husband, Anna Maria Carter, John S. Carter and Wil Iiam L. Carter. Edward S. Cutter was appointed guardian ad litem of Anna L. Carter, a minor child of William L. Carter, and also “ as a suitable and competent person to appear and act as the next friend of persons interested, not in being at the time of the application for partition, to appear and act as the next friend o* such persons in all proceedings touching the partition.” Anna Maria Carter, John S. Carter and William L. Carter denied the authority of the court to appoint any guardian or next friend in the cause. At the trial, before Wells, J., the following facts appeared :</p> <p>William Lovering died in 1832, seised of the premises of which partition was sought, and also entitled to another parcel of real estate on Common Street in Boston, subject to the life estate therein of Caroline Worthington, who is still alive. By his will he gave one half of his estate to Joel Carter, in trust to pay the income to Sophia Bass, wife of Horatio Bass, during her life, and on her death to convey the same to her children then living, upon their arriving respectively at the age of twenty-one years, and gave the other half of his estate to the defendant Anna Maria Carter, wife of Joel Carter, for life, and if she should die leaving children at her death, then to such children and their heirs; but if she died leaving no children then living, then to the children of Sophia Bass, upon their respectively attaining the age of twenty-one years; but if no child of Sophia Bass should be living at the death of Anna Maria Carter, or if no such child should live to attain the age of twenty-one years, then said half of the estate should go to Joel Carter, to him and his heirs forever.</p> <p>Sophia Bass died in 1864, leaving the defendants William L. Bass, Mary L. Wild and Eliza Ann Blake, her surviving children, all of them now of age. Joel Carter having afterwards died, the defendant Putnam was appointed trustee in his place, and conveyed an undivided sixth part of the estate to William L. Bass, and a like part to Mary L. Wild, and William L. Bass and Mary L. Wild and her husband conveyed the said two undivided sixths to the petitioner in fee.</p> <p>Anna Maria Carter is still alive, and the defendants John S. Carter and William L. Carter are her only children, and the heira of Joel Carter. They are both more than twenty-one years old. John S. Carter has no children. The said Anna L. Carter is the only child of William L. Carter.</p> <p>The petitioner gave two mortgages on his share to William L. Bass and Mary L. Wild, neither of which have been paid; one was overdue at the time of filing the petition, and both were overdue at the time of the trial.</p> <p>The judge reserved the case for the consideration of the full court upon the above facts, and also upon the question of the authority of the court to appoint a guardian and next friend.</p>

Tobt, under the Gen. Sts. e. 44, § 22, by the administratrix of the estate of Jacob Crafts to recover for injuries to her intestate which resulted in his death, and were occasioned by a wagon which he was driving falling, on October 15, 1858, into a ditch by the side of Dorchester Avenue, a highway in South Boston which the defendants were bound- to repair, at its junction with Dorchester Street. Writ dated May 1, 1860.

Tort to recover for personal injuries occasioned by the upsetting of a sleigh in which the plaintiff was riding about midnight of January 6, 1869, caused by a defect in the defendants’ turnpike.

<p>Petitioh to the superior court, alleging that “ the petitioner on November 5, 1869, made application, as provided by statute, to the board of aldermen of the city of, Boston, for an estimate of damages against the Boston and Albany Railroad Company, occasioned by the location of their railroad and track over the land of the petitioner in East Boston, as is set forth in said application to said board,” and that the board rendered “ a nominal award of damages to the petitioner of one dollar ” -against the company. The petition to the board of aldermen, a copy of which was annexed, alleged that the petitioner on March 1,1866, became seised and possessed by purchase, as owner thereof, of a parcel of land on Marginal Street in East Boston, measuring seventy feet thereon, and four hundred and fifty feet in depth; that on November 22, 1866, the Boston and Worcester Railroad Corporation did, by virtue of the St. of 1866, a. 278, take a portion of the land belonging to the petitioner, to wit, “ the easterly part or portion thereof, which is bounded on Marginal Street, the whole of said parcel of land having but seventy feet frontage on said Marginal Street, and the only access to said land being from said front on said Marginal Street; that the said corporation, by locating and laying their tracks upon and over a part of said front, crossing the same diagonally, have greatly impaired and injured the said access to said land, and thereby have greatly diminished the value of the whole of said land, besides the value of the land taken; that on November 26,1866, the Boston and Worcester Railroad Corporation filed with the board of aldermen of the city of Boston, the taking of the property and the location of their road thereupon; that ” by the St. of 1867, o. 270, “ the Boston and Worcester Railroad Corporation and the Western Railroad Corporation were authorized and empowered to unite and consolidate their respective corporations, under the title of the Boston and Albany Railroad Company, with all the powers and privileges, and subject to all the duties and liabilities in force, relating to railroad- corporations; that said Boston and Albany Railroad Company made on May 27,1868, a new location of their roads and tracks in East Boston, in place of that previously made by the Boston and Worcester Railroad Corporation, and filed said location and taking of said land with the board of aldermen, and thereby adopted and confirmed as their own the said location and taking of the Boston and Worcester Railroad Corporation, so far as the same extended upon and over the land of your petitioner, as hereinbefore set forth ; and that by the location of said road and taking of the land aforesaid,” the petitioner sustained damage. The answer, among other things, admitted that the respondents, by virtue of the St. of 1867, c. 342, filed a new location on May 30, 1868, which included a portion of the land claimed by the petitioner, not included in the location of 1866, but alleged that they had tendered a release of such additional portion to the petitioner. Trial before Pitman, J., who reported the case for the determination of this court, substantially as follows:</p> <p>The land claimed by the petitioner was part of a large tract conveyed by S. S. Lewis to the Grand Junction Railroad and Depot Company in .1847, and known as “ Depot Ho. 1.” In 1850, the Grand Junction Railroad and Depot Company filed with the board of aldermen of the city of Boston a location of a part of its road in East Boston. This location extended from the line between East Boston and Chelsea by several courses to a certain point situated to the northeast of Marginal Street, and the description of the location then closed thus: “ Thence on a curve to the east of about four hundred feet radius for about six hundred feet into Depot Ho. 1 of the Grand Junction Railroad and Depot Company in East Boston. The above described line is the centre line of the Grand Junction Railroad, and is traced in blue on the accompanying plan. The company locates forty-one and one fourth feet on each side of said line up to the crossing of the Eastern Railroad, and from thence thirteen feet on the westerly side of said centre line, and forty-seven feet on the easterly side to Marginal Street, in East Boston, as shown on the accompanying plan.” On the accompanying plan, which was filed as part of the location, the line marking the location extended across Marginal Street into Depot No. 1, cutting off a front corner of what is now the land claimed by the petitioner, but a measurement of exactly six hundred feet according to the plan from said certain point extended nearly to the western side of Marginal Street, but not beyond it, and the plan did not define the width of the location beyond Marginal Street. Within a year after the filing a railroad was laid down upon the location, was then and afterwards used by the Grand Junction Railroad and Depot Company over and across the petitioner’s land on to the adjoining land, connected the Grand Junction Railroad with another railroad, and has ever since remained nearly in the same position.</p> <p>In 1853, the Grand Junction Railroad and Depot Company mortgaged the land now claimed by the petitioner to William Whiting and Charles J. Hendee. On March 1, 1866, the petitioner agreed in writing to buy the land from Whiting and Hendee at forty-two cents the square foot, and on March 20 they tendered him a deed of the premises, which he refused to accept “ on the ground that they could not make a good and indefeasible title to the premises, and on other grounds.” In the following June, they brought a bill in equity against him for specific performance of the agreement to buy, and after the decision reported in Hendee v. Pinkerton, 14 Allen, 381, a decree was entered in favor of the plaintiffs in that suit on June 3, 1867, by which the petitioner was ordered to pay the full amount of the purchase money, and within a month the petitioner accepted the deed, which was dated March 1, 1866, and paid the purchase money. The respondents were not parties to this bill.</p> <p>On November 26, 1866, the Boston and Worcester Railroad Corporation, under authority of the St. of 1866, c. 278, filed a location covering all that part of the land claimed by the petitioner which was covered by the location of the Grand Junction Railroad and Depot Company, giving that location the widest extent contended for, and also another part of the land claimed by the petitioner.</p> <p>The Boston and Worcester Railroad Corporation and the Western Railroad Corporation were consolidated into the respondent corporation by the St. of 1867, c. 270, and on May 30,1868, the respondents filed a new location of their road in East Boston, by which they took all of the land claimed by the petitioner which was included in the location by the Boston and Worcester Railroad Corporation in 1866, and also an additional part of said land.</p> <p>On February 18, 1871, the respondents’ directors voted to authorize their president to abandon or release to the petitioner such part of his land as the president might think expedient, and to file with the board of aldermen such abandonment or relocation of their railroad in East Boston as might be necessary. On March 2, 1871, the respondents filed a document under their corporate seal with the board of aldermen, in which they varied the location of the railroad by abandoning and releasing so much of the petitioner’s land, included in their location of 1868, as was not included in the location by the Boston and Worcester Railroad Corporation in 1866, provided however that this abandonment and release should be void and of no effect if they could not legally make it without affecting their right to other lands taken under the location of 1868 ; and the respondents tendered a deed of release and quitclaim to the petitioner, conveying to him the same lands on the same proviso as described and set forth in said document, but the petitioner refused to accept it.</p> <p>The respondents requested the judge to rule that by the loco tian filed in 1850 by the Grand Junction Railroad and Depot Company, and by the use and construction of tracks over and upon a portion of the land claimed by the petitioner, such portion became a part of the location of said company; that the mortgage to Whiting and Hendee was subject to such location, that on November 26, 1866, the petitioner had no such interest m the land claimed by him as entitled Mm to damages for the location filed on that day; that, if he was so entitled, he could recover no damages for the taking by the location of 1866 of land covered by the location of 1850 ; that he could not recover damages for the taking of any land included in the location oí 1868, which was not included in the location of 1866; that he could not recover damages for the taking of any land under the location of 1868 which was included in the location of 1866 ; that damages for the locations of 1866 and 1868 could be recovered only upon separate petitions; and that if the additional land taken by the respondents under the location of 1868 had not been entered upon by them for the purpose of constructing their road, the document filed with the board of aldermen and the deed tendered to the petitioner were a release of the same, and the petitioner was entitled to no damages therefor.</p> <p>The judge refused so to rule, and ruled that the petitioner was entitled to recover damages for all that part of the land conveyed to him by Whiting and Hendee which was included in the location of the respondents in 1868, and for injury to the remainder, without regard to the previous locations, but that an attempt to abandon and release the same and a tender of a deed to the petitioner were proper for the consideration of the jury in reduction and mitigation of damages.</p> <p>The judge requested the jury to answer certain questions, which, with the answers, are given below.</p> <p>First. “ What was the damage to the petitioner by the location of 1868, assuming that this location covered all prior locations ? ” Answer. “ $5407, including interest.”</p> <p>Second. “ What was the damage from the taking in 1868 of the land not included in the location of 1866 ? ” Answer. “ $3600.”</p> <p>Third. “ What was the damage from the location of 1866, upon the basis of the value of land at that time? ” Answer. “ $1035."</p> <p>Fourth. “ If the respondents acquired a right to the land covered by the location of 1850, what were the damages for the additional land taken in 1866 ? ” Answer. “ $125.”</p>

<p>Appeals "by Isabel Pegram from decrees of the probate court for Suffolk, which purported to have been made pro formé, accepting and confirming accounts rendered by Edward Blake and John A. Loring as trustees under the will of Fitzhenry Homer, and by Blake as guardian, under said will, of the appellant, the testator’s daughter. The causes were committed to a master who reported, among other matters, the following facts :</p> <p>The testator died June 1, 1856, leaving a widow and two children, a daughter Josephine then the wife of Henry Bedlow, and the appellant. By his will he gave to his widow, Blake, and Edward Codman the greater part of his estate, to hold on certain trusts, for the benefit of the appellant and Mrs. Bedlow, and appointed the widow and Blake the appellant’s guardians. The widow died November 15, 1856. Codman and Blake rendered their first account as trustees which was allowed by the probate court March 15, 1858. Codman died in 1862, and Blake rendered his second account, as sole surviving trustee, which was allowed April 27, 1863. Loring was then appointed in the trust with Blake, and they rendered their account as trustees, coming down to January 1865, which was allowed January 22, 1866. Blake, after the widow’s death, remained sole guardian of the appellant until she became of age, November 4,1864. He rendered a first account as guardian, which was allowed March 15, 1858, and his second and final account, which was allowed January 22, 1866. The last account of the trustees and the last and final account of the guardian were allowed without examination and pro formd, and these appeals were duly taken. Each successive account brought forward the balance from the preceding account. On the first account of trustees and guardian, William Minot, Jr., was, on his own petition, appointed guardian ad litem of the appellant. He appeared and put in an answer. There was an examination of both accounts. The guardian ad litem asked the court to have the account corrected in one particular; the correction was ordered, Bedlow appealed therefrom, and the order was reversed in this court. JBedloe v. Homer, 16 Gray, 432.</p> <p>The trustees charged and received a commission of five per cent, on the income received, except that when Blake was sole trustee he received four per cent. During the widow’s life a house on Beacon Street in Boston, belonging to the testator’s estate, was exchanged with Benjamin B. Muzzey for an estate of Muzzey’s on Howard Street which was conveyed to the trustees, and which they let on a long lease to Franklin Evans. For the sale of the Beacon Street house it was necessary to procure a resolve of the legislature. Both the widow and Muzzey died before the deeds were passed. The trustees in their first account charged a commission of one per cent, on the value of both the estates exchanged which was $173,750, also $318.20 for effecting the lease.</p> <p>The account also contained the following charges : “ Professional services of E. Blake a^out sale of house on Beacon Street, &c., $300. Professional services of E. Blake about resolve for sale of house, hearing before William J. Hubbard on claim or claims of interest against Muzzey’s estate, $200. Sendees of trustees about resolve, negotiations with James Lawrence and Sidney Bartlett, and commissions on money received and paid out, about sale of house and purchase of Howard Street estate, $1000. Services of trustees about claim of Franklin Evans for $1500 in reference to estate in Howard Street, submitting same to referees and attending hearing, $150. Sundry professional services of E. Blake, about hearing before referees of claims of Franklin Evans for $1500; attendance on probate court about Evans’s account and petition to transfer stock, $125.”</p> <p>Blake, as guardian, charged a commission of five per cent, on the income received, being nearly all the same money on which the trustees also charged a commission of five per cent. He used his ward’s money and made no investments for her.</p> <p>The master’s report is set forth more at length 101 Mass. 592. The appellant objected specifically to all the items of charge above set forth, except that of the commission of five per cent, to the trustees on income received by them.</p> <p>After the decision reported in 101 Mass. 592, finally disallowing the charge of one per cent, on $173,750 and the charge of $318.20, and also disallowing the charge of $1000 as made, an order was passed, of which the material parts were as follows :</p> <p>“ It is ordered and decreed by the court, that the report of the master be recommitted to him for a more specific statement of facts touching the points in dispute', and of the items in the several accounts in respect of which objections are made or errors alleged. And to hear the parties and report upon the errors alleged by the appellant to exist in the previous accounts settled in the probate court, particularly the account of said Blake as guardian, and the joint account of said Blake and Edward Dodman as trustees, rendered and allowed in said probate court, March 15, 1858, so far as said errors have been assigned by the appellant in her specifications thereof filed in this court, and sc far as the same have not already'been considered and finally passed upon by this court.</p> <p>“ The decrees of the probate court allowing said accounts are to be regarded as primd facie evidence that the same are correct, and the appellant will be required to show that the alleged errors are such. The appellant will be entitled to the explanations of the accountant in relation to all matters relating thereto: and to the production of all books upon which entries have been made or accounts kept by him of his receipts, investments, payments, expenses or charges in or about the management of the several trusts, or of the property or money belonging thereto or derived therefrom; and also to the production of all papers relating to the same; also to interrogate said Blake, orally before the master, or in writing, if he shall so elect, with the leave cf the master, in respect to all of said matters and as to the management of said trust property and funds and the disposition of the income thereof, and to have full answers thereto.</p> <p>“ The master may, if requested, ascertain and state whether the accountant has credited the estates in his hands with interest upon moneys alleged to have been used by him, or to have remained in his hands uninvested, or to have been improperly invested, or otherwise ; and at what times, at what rate, and to what amount such credits have been given. He may also hear the accountant and his evidence as to any services actually rendered by him in the execution of his said trusts, for which no charge has been made by him in his said accounts except the general charges which have been disallowed by this court; and if such have in fact been rendered, for which adequate compensation is not provided by the charges remaining in said accounts, he may report specifically what those services were, and what, in his judgment, would be a reasonable and proper compensation for the same.</p> <p>“ If the master shall find any errors or omissions in said accounts, or that there ought to be any corrections thereof in any matter referred to by said several specifications, he shall report what charges or credits are proper to be” made in the final accounts of said accountant, in order that such correction may be properly made. The master may also report, if requested, any facts, not stated in his former report, bearing upon the question whether the charge for commissions on income in the first account as guardian, and the charges relating to the exchange of real estate in the trustees’ account, were in fact heard and determined by the probate court as matters in dispute between the parties to these proceedings; but this shall not prevent the master from hearing the parties upon the several matters hereinbefore named, as if the same were open for such hearing by leave of the court.”</p> <p>The material parts of the master’s additional report were substantially as follows:</p> <p>The services of the trustees in effecting the exchange of the estates were special services of, a valuable character, such as were not compensated by the commission of five per cent, on income. “ For all the special services connected with and growing out of the sale of the house, the purchase of three fourths of the Howard Street estate, the sale of one fourth of the Howard Street estate, the making of the lease to Evans, the procuring of the resolve, the negotiations with Mr. Bartlett and Mr. Lawrence, the receiving and paying out of money, the master is of opinion that $700 would be a reasonable compensation.</p> <p>“ The trustees have charged for services about submitting claims of Franklin Evans to referees and attending the hearing $150. This charge is allowed, because it was not proved that the charge was excessive, and because they were special services.</p> <p>“ Blake has charged for professional services about sale of house on Beacon Street, $300 ; about resolve for sale of house and hearing before William J. Hubbard, Esquire, as to claims for interest, against the estate of Benjamin B. Muzzey, $200; and about hearing before referees of claims of $1500 of Franklin Evans, attendance before the probate court about the account of Franklin Evans, administrator, and petition to have stock transferred and paid over, $125. Blake testified that the first charge was mainly for services performed about the sale of the house, before the decease of Mrs. Homer. He did not specify the services, and it did not appear how professional service was necessary. But as services were performed, and the charges are not proved to be excessive, they are allowed.</p> <p>“ At the hearing before the probate court, the answer of Minot, the guardian ad litem, was read and somewhat discussed. Before the hearing, Minot had set down, on paper in several columns, the items of five per cent, commissions on income; of one per cent, commissions on sales; of one per cent, on capital received; commission on lease; charges for general services; and charges for professional services. This paper was read at the hearing before the judge. The items not admitted by the answer were brought before him for his consideration. The paper was produced, and had indorsed on it in pencil, by the judge, these words: ‘ Account allowed as to compensation and legacy of 15000 held to be invested according to legacy.’ William I. Bowditch was called as a witness by the accountant, and examined in the court, of probate as to the reasonableness of the charges. The guardian ad litem testified that he thought he had no conference with his ward or any one in her behalf; that he called no witness, made no argument and took no appeal; and that he presumed he examined the guardian’s account, but had no recollection of its being the subject of special discussion. Blake testified that the guardian’s account was before the probate court for settlement at the same time with the trustees’ first account; that he called the attention of the guardian ad litem to the charge of commissions therein, saying he wished it settled for that account and as a precedent for subsequent accounts.”</p> <p>The master disallowed sundry other small charges by the trus tees, not now necessary to state particularly, and found that the account of Blake and Boring, trustees, was to be corrected by adding to the total of receipts the difference between the balances in the accounts rendered by Codman and Blake and in the accounts as they should have been rendered, and the interest thereon computed with annual rests to January 1,1865, allowing commissions of five per cent, on such interest.</p> <p>“ In his first account as guardian Blake credits himself with $2400, invested October 12,1857, in a mortgage of one Morgan, and with $2032 invested, January 16, 1867, in a mortgage of John Baxter. These were mortgages taken by Blake to secure the purchase money of his lands which he had sold to the mortgagors. They were both made June 1, 1857, were on five years, and were taken to secure the sums at which they were credited in the account. Blake wrote his name on the back of the mort gage notes, and before filing his account wrote over his name a waiver of demand and notice. The notes were indorsed by 6 Edv ward Blake ’ to 6 Edward Blake, guardian,’ but the mortgages were never assigned. November 8, 1857, six months’ interest was indorsed as received on the first mentioned mortgage note. Six months’ interest was indorsed as received on the Baxter note November 3,1857, and again on August 9, 1858, and nothing after that date. Blake charged himself with the interest accrued on this mortgage as it became payable, whether paid or not by the mortgagors. He foreclosed both mortgages in his own name, and afterwards sold the estates; the Morgan estate for $2200, December 22, 1865, and the Baxter estate fob $2250, April 2, 1866. Upon these facts the master is of opinion that the mortgages were not the property of the ward, unless she elects so to consider them. She declines to regard them as investments of her money. But as the mortgages have been foreclosed, and as Blake has received the money and must account for it, the question is not material. No investment was made for the ward other than in these two mortgages until July 12,1864, when the money in the guardian’s hands, over and above what he claimed to have invested in the two mortgages, was $18,500. At this time, when he began to make investments for his ward, gold was worth in the market $2.71 in currency.</p> <p>“ Blake testified that it was his practice at the end of each quarter to ascertain the excess of receipts over expenditures and charges, and allow interest on the balance; and at the end of each year to charge himself with the accrued interest and add it to the amount received over and above the amount expended and charged during the year, and allow interest on that sum. A very large part of the income was received by him at the beginning of the quarter.</p> <p>“He further testified that he kept a cash book during the larger part of the time of his guardianship; that he entered in this book all his receipts and payments and investments; that at tire end of every month he entered in this book to his ward’s credit or debit the balance of receipts or payments on her account during the month ; that ordinarily there were credits ; that this book was balanced monthly; and that there were no other entries pertaining to his ward or her funds. He was called upon by the appellant to produce this book. He offered to produce it, first sealing up all but these entries. This offer was declined. And the master, after examining the book and finding that moneys received for the ward were entered in it, and that moneys were charged to investments, ruled that the appellant was entitled to examine the book as it was. Blake refused to comply with the ruling, and the book was not produced. During the guardianship, Blake kept an account in detail of all receipts and payments in a separate book, which was produced at the hearing whenever called for. The refusal of the guardian to permit an examination of his cash book except in the manner offered by him, he placed on the ground of legal right, denying that he had invested his ward’s money so as to make a profit by it. He charged himself with interest on her funds, as already stated.</p> <p>“ The appellant claimed that a credit of $1855.96, proceeds of sale of furniture, should be transferred from the trustees’ account to the guardian’s account, and contended that the furniture had been given to the ward by her mother. The testator, by his will, gave his wife the furniture for her life, and 1 empowered her to make such gifts as she may think proper to my daughter Isabel and the other children, should any other be born, of any articles of household furniture, plate or other Eke property, left to her during her lifetime as above, and such gift or gifts may be made by'her at such times as she may think best.’ blot long before her death Mrs. Homer told Evans that she thought she could not long survive, and expressed her anxiety that the appeHant should have the furniture; and a day or two before she died she said to Evans that she gave aU the furniture to the appellant and desired him to take care of it for her. This was the only evidence reEed upon as showing that Mrs. Homer had given the furniture to the ward. The appellant was not present at either of the interviews between Evans and Mrs. Homer, and there was no delivery, actual or symboEcal, of the furniture or any part of it. The master is of opinion that there was no gift, and that the trustees took the furniture as part of the testator’s estate.</p> <p>“ The guardian has charged a commission of five per cent* on the income received by him in his first and second accounts.</p> <p>The guardian did not have the personal care of the ward, having put her in the charge of Mrs. Bedlow, which the master found was the best thing he could have done.</p> <p>The master found that the commission of five per cent, charged by the guardian was excessive, and that he should be allowed a commission of two and a half per cent.</p> <p>The master also reported that interest should be computed on the difference between the balance of the guardian’s account as it should have been rendered and as it was rendered, -with annual rests till November 1864, allowing commissions on the interest so made up.</p> <p>Blake excepted to the master’s report because the former accounts could not be opened, both on the ground that they had been passed upon by the probate court and on the ground that the parties to the trustees’ accounts were different, and because the master ought not to have disallowed any of the charges either of the trustees or the guardian. Loring excepted because the master found that the account of himself and Blake ought to be corrected by adding to the amount of the receipts, the amount of charges improperly made before he became co-trustee with Blake. The appellant excepted because the allowance of $700 for special services was excessive, because Blake’s claim for professional services should not have been allowed, because no commission should have been allowed to Blake as guardian, and because the proceeds of the sale of the furniture should have been credited.to her on the guardian’s account.</p> <p>The case was reserved by Colt, J., on this additional report of the master, and the exceptions thereto, for the determination of the full court.</p>

<p>A. corporation established for the suppoii ■%f poor and old women, which devotes all its funds to the support of such women in its Home, and is no source of profit to its members, is a charitable corporation, although it requires a payment of money as a requisite for admitting a woman into its Home.</p> <p>The rules of a charitable corporation for the support of old women provided that the matron of its Home should admonish the inmates for any violations of the rules; that if the violation continued, the managers should reprove the inmate guilty thereof; that if this was ineffectual, the managers might take such action thereon as the circumstances might require ; that the managers reserved the right of dismissing any disobedient or troublesome inmate, but that no vote of removal should be passed by the managers unless the intention to propose such vote was inserted in the notices calling the meeting. Held, that a woman who had been admitted as an inmate to the Home, subject to these rules, could not maintain an action against the corporation to recover damages for her removal by thj managers from the Home and from a room which had been orally assigned to her therein, although a payment of money had been required from her on admission; although she had never been admonished by the matron or reproved by the managers; although she had no notice of the intention to remove her, and no opportunity to be heard thereon; and although the managers were actuated by malice in removing her; and that the insertion of the intention to propose her removal in the notices calling the meeting at which she was removed (even if the failure to insert it could aid her in this action) would be presumed in the absence of evidence to the contrary.</p>

<p>A mortgagor who has been insured on the mortgaged property by a policy making the amount insured payable to the mortgagee in case of loss, may, with the assent of the mortgagee, sue on the policy in his own name.</p> <p>The fact that an insurance company has paid the amount of several awards as to losses made by A., to whom, as arbitrator, a person acting as their agent to receive applications for insurance, has submitted the questions, is not sufficient evidence to prove a holding out by them of such person as authorized to appoint any one other than A. as arbitrator.</p>

<p>Conteact by William. E. Donnell, .George H. Leman, James G. Leman, Edward A. Costigan, William Waters, William Waters, Jr., Henry W. Coliman and Patrick J. White against Benjamin T. Manson, Edward K. Harding, Jedediah K. Morrill and George P. Bates. Writ dated September 12, 1870. The declaration was on the following bond, executed by the defendants :</p> <p>“ Know all men by these presents, that we, Edward K. Harding of Bath, state of Maine, merchant, and B. T. Manson of Portland, state ,of Maine, merchant, as principals, and J. N. Mor rill and George P. Bates of Boston, state of Massachusetts, ai sureties, are holden and stand firmly bound and obliged unto George H. Leman and James G. Leman, Edward A. Costigan, William E. Donnell, Francis W. Bird, Francis J. Wehrle, William Waters, William Waters, Jr., Henry W. Coltman, Patrick J. White, all having their usual place of business in said Boston, in the full and just sum of five thousand dollars to be paid unto the said Leman, Leman, Costigan, Donnell, Bird, Wehrle, Waters, Waters, Jr., Coltman and White and their executors, administrators or assigns ; to which payment well and truly to be made we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated second day of July in the year of our Lord one thousand eight hundred and sixty-eight.</p> <p>“ The condition of this obligation is such, that whereas the said George H. Leman and other persons named as obligees have caused the goods and estate of Charles Spear and Harding and Manson to the value of five thousand dollars to be attached on mesne process, in a civil action, by virtue of a writ bearing date the seventeenth of February A. D. 1868, and returnable to the superior court next to be holden at Boston within and for the county of Suffolk, on the third Monday of March 1868, in which said writ the said Leman and others are plaintiffs, and the said Spear and Manson and Harding are defendants ; and whereas the said defendants wish to dissolve the said attachment, according to the provisions of the General Statutes in such cases made and provided : How, therefore, if the above bounden Harding, Manson, Morrill and Bates shall pay to the plaintiff in said action the amount, if any, which he shall recover therein within thirty days after the final judgment in said action, then the above written obligation shall be null and void; otherwise to remain in full force and virtue.” The bond bore this certificate : “ Suffolk, ss. July 2,1868. Upon the assent of the attorney of the plaintiffs I deem said bond above sufficient. James B. Richardson, Master in Chancery; ” and also the written assent of the attorney of the obligees.</p> <p>The declaration alleged that in the action named in the bond the plaintiffs recovered final judgment in the superior court for this county for the sum of $2115.71 debt or damage, and for their costs taxed at $726, and that more than thirty days had elapsed since the judgment, but that the defendants had not paid it, and it was in no part satisfied. The case was submitted to the judgment of the court on an agreed statement of facts substantially as follows:</p> <p>The plaintiffs, together with Francis W. Bird and Francis J. Wehrle, joined their several claims, six in number, in one petition to enforce a lien on a vessel called The Starlight, for work and materials furnished thereto. The petition was filed in the superior court for this county and a process of attachment issued thereon, dated February 17,1868, and returnable to said court on the third Monday of March 1868, “in which the officer was or-i dered to summon the said Manson and Harding to appear and answer on said return day, and said vessel was seized and held thereon until the giving of the bond in suit when she was released.” The defendants executed the bond in suit. Bird and Wehrle died during the suit, and H. A. Johnson was appointed the administrator of their estates and came in under the petition. Subsequently, and after the decision in Donnell v. The Starlight, 103 Mass. 227, the superior court, on May 26, 1870, entered a decree or judgment “ that said liens be and are established, and that sale be made of the said vessel, her tackle, apparel and furniture, by public auction in the city of Boston, to the highest bidder, in the manner and form prescribed by law, and pay over to the said petitioners in satisfaction of their liens the- following sums, which have been found and adjudged due and owing upon the causes of action stated in said petition; to wit, for said George H. Leman and James G. Leman the sum of three hundred forty-one dollars and eighty-two cents; for said Edward A. Costigan the sum of one hundred and sixty-five dollars and forty-seven cents; for said William E. Donnell the sum of nine hundred thirty-two dollars and eight cents; for H. A. Johnson, administrator of the goods and estate of said Bird and Wehrle, the sum of one hundred sixty-nine dollars and eighty-five cents, said Bird and Wehrle having deceased, and said Johnson having been allowed to come in and prosecute ; for said Waters, Waters, Jr., and Coliman the sum of four hundred and twelve dollars and twenty-five cents; and for said White the sum of ninety-four dollars and twenty-four cents, and seven hundred twenty-five dollars and ten cents costs of suit, and with one dollar more for this decree, if so much there be, and the residue, if any, to be paid over to the said Spear, Manson and Harding.”</p> <p>The execution or precept for sale of the vessel, and payment according to the terms of the judgment, was issued thereon, and the officer to whom it was intrusted made return that he had sought for the vessel and could not find her, and that he returned the precept in no part satisfied. “ There was no other action pending in said court at said time by plaintiffs against these defendants.” The defendants objected to the admission in evidence of this judgment.</p> <p>If on these facts the plaintiffs were entitled to recover, judgment to be entered for them for the amount of the said decree or judgment, with interest and costs ; otherwise for the defendants j the court to draw such inferences of fact as a jury might legally draw.</p>

<p>k. conveyed his land to B., to whom he was indebted, by an absolute deed, and B. at the same time promised orally to convey or pay to A. any surplus that might remain of the estate or its proceeds after discharge of the debt. B. afterwards told A. that he had made a memorandum to the same effect, but never delivered it to him. On B.’s death there was found, among his valuable papers, a writing signed by him, not addressed to any person, by which he did “agree and bind” himself to pay the above mentioned surplus to A. Below this writing was the following, also signed by him: “ This memorandum is made for the use of my executor or administrator only; A. has no jfega. cr equitable claim against me or my estate, but upon payment of my debt, any balance shall enure to A.’s benefit.” Held, that there was a declaration of the trust in writing within the meaning of the Gen. Sts. c. 100, § 19.</p>

Bill in equity, filed April 8, 1870, alleging that the parties were owners of adjacent lots of land on Warren Place in Boston; that between the two lots was a strip of land five feet wide; that each party owned the fee of that half of this strip which adjoined his or her own estate; that they both had a right of way over the whole of the strip ; and that the defendant had obstructed the way by building a fence across the whole width of the strip.

<p>A., ay deed, gave all her property real and personal, to a trustee in trust to pay the income to her during her life, and on her death to pay and transfer the trust property aa she should by will appoint, and m default of appointment, to convey and pay over the trust property to her heirs at law. The deed provided that the trustee might change the mode of investment of any of the property, real and personal, and invest the proceed* as he might see ñt, and referred to a schedule annexed as containing all the property conveyed by the deed. This property was all personal, and the trustee made no change* In the investments. Held, that on the death of A. intestate, the property went to her nusband, and not to her child.</p>

<p>In an action to recover goods which it is alleged the plaintiffs were induced to sell to J. S. by reason of his false representations as to his properly, the plaintiffs requested the judge to rule that if they were induced to part with the goods by reason of these representations and the representations were untrue they could recover. The judge refused so to rule, and ruled that the representations must be false and fraudulent, but that J. S. would have known if they were untrue; that if they were false and made with intent to obtain the goods they were fraudulent; and that if they were false th'e jury might infer tha1 they were fraudulent. Held, that the plaintiffs had no ground of exception.</p>

Tost against Erskine and James H. Marquand for the conver-. sion of a schooner.