Volume 111 — Massachusetts Reports

Tort to recover damages for an injury sustained by the plaintiff from the defendants’ negligence, while a passenger upon their road. Writ dated February 17, 1872.

<p>Contract against Morrill and twelve others. The declaration alleged that the plaintiff was a deputy of the sheriff of Essex that the defendants placed in his hands certain writs against a firm of George & Moody, directed Mm to attach certain personal property thereon, and agreed to indemnify from all loss he might sustain thereby; that he served said writs and attached said property; that one Elbridge B. Moody brought an action against him for said attachments, and recovered judgment agamst him; and that he had been obliged to pay the amount of the judgment," and also large sums for the defence of the suit.</p> <p>At the trial in the Superior Court, before Putnam, J., the plaintiff mtroduced evidence tending to show that he was a deputy sheriff; that there was in Haverhill a firm consisting of Gideon B. George and Joseph K. Moody, doing business under the style of George & Moody, and another firm, consisting of said Joseph K. Moody and Elbridge B. Moody, doing business under the style of Moody Brothers ; that eight writs were put into the plaintiff’s hands, by these defendants, against George and Joseph K. Moody; and that upon these writs, by order of these defendants, he attached the property of the firm of George & Moody, and also the interest of Joseph K. Moody in the property of the firm of Moody Brothers.</p> <p>The plaintiff also put in evidence the record of a suit against him by Elbridge B. Moody, the declaration in which alleged that this plaintiff took possession of the stock of goods in the shop of said Moody, kept them for seven days, prevented said Moody from carrying on his busmess, and took and carried off his books of account and $200 of his money; and in wMch judgment was rendered against this plaintiff for $90.</p> <p>The plaintiff introduced evidence that the attorney of these defendants assumed the defence of the suit brought against him by Moody, and retained counsel. Upon the question whether the attorney was authorized by the defendants to act thus, there was conflicting evidence, wMch it is not now necessary to report.</p> <p>The plaintiff also offered evidence tending to show that, after the judgment against Mm, he called upon several of the defendants and requested them to pay it, and that they said they were willing to pay their several proportions.</p> <p>The defendants offered evidence tending to show that the judgment against the plaintiff was recovered against him, not by reason of his having served these writs of attachment, but by reason of his illegal conversion to his own use of money attached by him on the writs, of his conversion of money received by him from sales of some of the property attached, which had been illegally sold by his keeper, of his having secreted the books of the firm of Moody Brothers, and of his having attached and kept the property of Elbridge B. Moody upon other writs; that at the trial of the suit against the plaintiff, the jury were instructed that a recovery could not be had against him by reason of the attachments upon the writs of these defendants, but only upon the ground that he committed illegal acts, subsequent to said attachments; and that the jury found their verdict against the plaintiff solely upon the ground of his illegal and unauthorized acts, subsequent to said attachments, and by reason of his acts upon other writs than those of these defendants.</p> <p>The judge excluded this evidence, and ruled that if the defendants assumed the defence of the action against the plaintiff, they could not be heard to inquire into the grounds upon which the verdict was found.</p> <p>The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.</p>

Contract on an award. The declaration alleged that the parties “ by their agreement in writing ” referred the matters therein named to an arbitrator and that the arbitrator made an award in favor of the plaintiff.

<p>Contract for the price of 775 quintals of codfish, sold and delivered by the plaintiff to the defendant on April 15, 1870. The answer denied the sale, and set up a warranty of soundness, and a breach thereof. Trial in the Superior Court, before Brigham., C. J,, who, after a verdict for the plaintiff, allowed the following bill of exceptions:</p> <p>“ There was evidence tending to prove that the defendant on April 15, 1870, visited the counting-room of the plaintiff in Beverly, to purchase a fare of cod fish to ship to New York; that he so told the plaintiff, who informed him that he had a fare by the schooner J. L. Foster; that the defendant then went to the plaintiff’s yard to see them; that he there saw the fish, and some of them were taken down and shown to him by the plaintiff’s foreman ; that the fish were piled in two houses in two piles of about equal size, in all about 800 quintals; that he then returned to the counting-room, and after some conversation in regard to the soundness and condition of the fish, as was testified to by him, but which the plaintiff denied, and which is not material in this bill of exceptions, he agreed to buy the fish at $6 per quintal in cash, (which by the usage of the trade means in thirty days from delivery,) one half to be thrown (that is, put on the flakes to be dried) for half a day or more, at once, or on the first fair day, and weighed at Beverly and by him there received and carted to Salem; the other half to be thrown, in the course of ten days, and to be weighed and carted as the others.</p> <p>“ The defendant testified that he told the plaintiff he wanted a fare of fish to ship to New York; the plaintiff testified that nothing was said by the defendant as to what he wanted the fish for, but he presumed he knew that the defendant was going to send them to New York, and sold them for that purpose, as fit in quality for the New York market. The next day, which was Saturday, the 16th, one half the fish, or 400 quintals, were thrown. The weather during the next ten days was bad and unsuitable for carting fish; on April 26 the defendant notified the plaintiff’s foreman that he would take the first lot the next day; and on April 27 they were weighed in Beverly, and carted to Salem by a teamster sent by the defendant for that purpose, and were shipped for New York on April 28. No question was made at the trial that there was any unreasonable delay on the part of the defendant in taking the first lot of the fish. The plaintiff testified that he understood that the fish were at his risk till weighed and delivered to the defendant, and that he considered the fish the defendant’s from the day they were sold, as he could not sell them. The fish were delivered in two lots. The plaintiff testified that he did not know that both lots passed to the defendant at the delivery of the first lot.</p> <p>“ It was contended by the plaintiff that the defendant in his testimony used the words ‘ I bought the fish on the 15th,’ and it was argued to the jury that he so testified. Whether or not there was an absolute sale of the fish on that day, and whether or not the sale was consummated on that day, was in issue, and was a question submitted to the jury on the whole evidence of the Transaction and conversations of that day between the parties.</p> <p>The defendant wrote to the plaintiff and to George B. Foster, the plaintiff’s son, the following letters : “ Salem, May 6,1870. Mr. George B. Foster, Dear Sir : I regret to say that owing to the fish last had of you not being sound or strong, I cannot sell them in New York, and shall have to bring them back. I write to say thaT if opportunity offers to sell the balance now with you, do not keep them for me. I will see you in a day or two. Yours truly, Charles A. Ropes.” “ Salem, May 7, 1870. Mr. Josiah L. Foster, Dear Sir: I wrote your son George yesterday, that he need not lose opportunity to sell balance of the fare fish, which I had taken part of. I regret to say that m’y to-day’s letters from New York advise me that the fish cannot be sold there; parties who had bought and got them in store notifying my brother that they must send them back aboard the vessel. What disposition shall I make of the fish ? They are so strong and unmerchantable that I doubt selling them there at any price. Not hearing from you Monday, they will be shipped back to Salem at your risk and subject to your order. Respectfully yours, Charles A Ropes. My brothers write that they cannot sell them selected.”</p> <p>“ On May 14,1870, the plaintiff delivered to the defendant the following letter: 6May 14,1870. Mr. Charles A. Ropes, Dear Sir: We shall weigh off the residue of the fare of fish of the J. L. -Foster, which we sold to you a short time since, on Monday next, if a fair day; otherwise on the next fair day. This is to notify you to be present and see to the correctness of the weight at the fish-house, where they are, and were bought by you. The fish are there at your risk, and yours. Very truly yours, Josiah L. Foster.’ And on the same day the defendant delivered to the plaintiff the following letter: ‘ Salem, May 14,1870. Mr. Josiah L. Foster, Dear Sir: I am in receipt of yours of this date, no tifying me that balance of the fare of fish by J. L. Foster, will be weighed off on Monday, and all at my risk. Having bought sound, merchantable fish of you, and they not being so, I shall decline to receive them. I have already notified you of my intention to return those shipped by Hero, and that they are now on your risk and account. She is now on the passage, and I will notify you of her arrival. Yours respectfully, Charles A. Ropes.’</p> <p>“ On May 17, the defendant delivered to the plaintiff the following letter: ‘ Salem, May 17, 1870. Mr. Josiah L. Foster, Dear Sir: Having notified you yesterday of the arrival of the Hero here, with the fish on board, rejected and returned from New York, and you having refused to receive them, this is to notify you that I must discharge said fish, first good day, and dispose of them for whom it concerns, on the best terms I can. Respectfully yours, Charles A. Ropes.’ And on May 24 the plaintiff delivered to the defendant the following letter: ‘ May 24, 1870. Charles A. Ropes, Esq., Dear Sir: On the 15th day of April last past you purchased of me the fare of fish of the schooner J. L. Foster, at my fish-house in Beverly, consisting of 775 quintals at $6 per quintal, and took away 400 quintals of them. The other 375 quintals are now remaining in said fish-house, your property, and subject to your order and disposal. A reasonable time for your taking them away has already elapsed, and I shall charge you storage from this date; and unless you take them away as soon as may be, which you are hereby requested to do, I shall make sale of the fish at the fish-house at your expense, on your account and for your benefit. And I hereby demand payments for the said 775 quintals of fish at the aforesaid agreed rate per quintal. Very truly yours, Josiah L. Foster.’</p> <p>“ Other letters passed between the parties. On May 16, being Monday, the remainder of the fare of the J. L. Foster, amounting to 375 quintals, was weighed off at the fish-house where they were.</p> <p>“ Upon all the evidence, the defendant contended and asked the judge to rule that there was no sale of the fish on April 15, and that the plaintiff could not recover for the fish in Beverly as for fish sold and delivered, as set forth in his declaration. The judge ruled that if anything remained to be done by the plaintiff to the fish after the agreement on April 15, before they passed into the hands of the defendant, the delivery was not complete, and the plaintiff could not recover for the fish in Beverly, unless the jury were satisfied that it was the intention and agreement of the parties that the sale should be completed on April 15, and the title then pass to the defendant. The defendant contended that there was no evidence of any such agreement, but the judge allowed the case to go to the jury upon the above instruction, to which the defendant excepts.</p> <p>“ The questions of whether or not the plaintiff made a warranty of the soundness of the fish, whether the defendant relied upon such warranty, and whether there was a breach of such warranty, were in issue and passed upon by the jury at the trial, upon instructions not excepted to.</p> <p>“ Certain specific questions were submitted to the jury, which, with the answers of the jury, were as follows : 6 Is there a general usage known and acted upon by persons engaged in buying and selling salted codfish, if such fish are sold at the price of sound fish, and afterward prove to have been unsound at the time of sale, to allow the buyer to return them to the seller, or to make him an allowance for such unsoundness.’ Answer: 6 Xo.’ ‘ Was it the intention of the parties that the sale should be complete when the bargain of sale was made, or when the fish had been thrown and weighed for delivery ? ’ Answer: 1 At time of sale.’ ”</p>

<p>Oral evidence that an instrument purporting to be an agreement between husband and wife, was signed by both with the understanding that they were not legally bound thereby, is admissible in equity to show that the instrument should not be allowed any effect.</p> <p>A husband and wife signed an agreement, with the understanding that it would not be legally binding on either of them, that her land should be sold and the proceeds placed in the hands of trustees, in trust to pay the income to her during her life, and on her death to pay the principal to their children. ÍTo trust deed was ever executed, on account of disagreement between the parties, but the land was advertised and sold, and deeds signed by the husband and wife were delivered to the purchasers under an agreement between husband and wife that no rights should be prejudiced by the sale and conveyance. The husband was afterwards divorced from his wife, and then released to her his interest in the land. Held, that the wife was entitled to the proceeds of the sale, free from any trust in favor of the children.</p>

Bill in equity alleging that the plaintiff, being indebted to Napoleon B. Bryant in the sum of $500, sold and transferred to him certain personal property by a mortgage deed, containing a power of sale, and purporting to be made to secure the payment of four promissory notes, one for $500, and three for $1000 each, signed by the plaintiff, and payable to Bryant or order, said property being “really and actually subject to redemption upon the payment by the plaintiff of said…

Bill nr equity by the administrator of the estate of Daniel Silloway, Sen., against eighteen persons alleged to be holders of or interested in thirteen promissory notes described in the bill, and praying that the holders of the notes might be enjoined from suing the plaintiff upon them, and that the notes might be given up to be cancelled.

Petition to this court, under the Sts. of 1839, a. 114, and 1850, c. 273, for the appointment of commissioners to assess damages caused to the petitioners by the respondents drawing water for their aqueduct from Spring Pond, a pond of about sixty acres, whereby the dwelling-house of the petitioners, situated on the shores of the pond, would “ become uncomfortable, and unfit for the purposes for which it was designed by the petitioners.” At the hearing, before Gray, J., the…

Contract. The declaration was as follows : “ And the plaintiff says the defendant at Lynn in the month of January 1870, in consideration of the purchase, by the plaintiff from the defendant at his request, of a certain parcel of land on Newbern and Douglas Streets, so called, in said Lynn, for the sum of $195, then and there undertook and promised the plaintiff to grade, crown and shape, make fit for travel and finish to the degree which the city of Lynn usually requires…

Action under the Gen. Sts. c. 137, by Elvin Eastman and Henry A. Buell, to recover possession of a lot of land in Lawrence Writ dated November 21, 1870.

<p>The plaintiffs and defendant made an oral contract that he would sell and they would buy a parcel of land; that they might enter thereon immediately; and that the price should be paid in three months. The plaintiffs entered and removed the fence, and cultivated and improved the land; the purchase money was not paid within the three months; but the plaintiffs continued in possession, and proceeded to put up a house; the defendant objected to this being done, until the purchase money was paid, but the plaintiffs continued and put up the house at an expense much greater than the value of the land, making all the time part payments to the defendant, who knew the facts, but who received the payments without comment, and who subsequently tendered a deed of the land to the plaintiffs, demanding more than remained due to him. Held, that there had been part performance of the contract sufficient to entitle the plaintiffs to have the contract specifically performed.</p>

Contract on a- policy of insurance issued by the defendants, insuring the plaintiff against loss on a quantity of bay and straw. At the trial in the Superior Court, before Putnam, J., the execution of the policy, and the destruction of the hay and straw hy fire were proved or admitted.

<p>The Gen. Sts. of Vermont, c. 65, §§ 4,7, 24, provide that all deeds of land shall be attested by two witnesses and acknowledged and recorded; that no deed or lease for more than one year of land shall be good to hold the land against any one but the grantor and his heirs, unless so acknowledged and recorded; and that no deed made by virtue of a power of attorney shall be of any effect or admissible in evidence, unless acknowledged and recorded. An indenture of lease of land in Vermont was attested by only one witness, and it was not, nor was the power of the attorney who signed it for the grantor, acknowledged or recorded. The lessee entered the demised premises under the lease, and left without being evicted. Held, that he was liable on his covenant in the lease to pay rent.</p>

<p>Statutes of another state authorizing the formation of joint stock companies, but not con. f erring upon them any of the rights or privileges of corporations, except as specially provided, contained a provision that suits against them should, in the first instance, be prosecuted in the name of the president or treasurer, but that after judgment against a company in such a suit and the return of execution unsatisfied, a suit might be brought against the members individually. Held, that this provision was local in its operation, and that a suit in this Commonwealth might be, in the first instance, against the members of the company as partners.</p> <p>In an action against an express company for the loss of the plaintiff’s trunk, the admissions of the defendants’ general agents, or of a freight clerk to whom those agents have referred the plaintiff for information as to the manner of the loss, made in answer to inquiries by the plaintiff, are admissible in evidence against the defendants.</p> <p>In an action against an express company for the loss of the plaintiff’s trunk, the plaintiff testified that he had been a freight clerk of the defendants at one of their offices ; that on the same day on which he left their employ he delivered the trunk to his successor, who asked him if he would send it by express; that he said he would; that he paid nothing for the carriage and supposed it would go free, but expected to pay if asked ; and that the company always forwarded the baggage of the employees to and from the different offices. Held, that this testimony would warrant the jury in finding that the bailment was not gratuitous.</p> <p>A stipulation limiting the liability of common carriers, contained in a receipt for goods given by them to the sender of the goods, on his request, after the goods were lost, does not affect the sender’s rights, nor are they affected by the fact that he had been recently their freight agent, and the receipts given by him as such contained the same stipulation.</p>

Contract in the name of Orris G. Hall for the benefit of William H. Perrin, on a policy of insurance issued by the defendants upon the property of Hall, “ payable in case of loss to the Cape Ann Savings Bank, to the amount of their claim as mortgagees.” The case was submitted to the judgment of the Superior Court, on an agreed statement of facts, of which the material part was as follows : The defendants made the policy declared on.

Contract by William H. Rose and George H. Quimby, on an agreement by which the plaintiffs agreed to build a barn and finish a house for the defendant, furnishing all the materials except sand for plastering and certain other specified articles, and the defendant agreed to pay the plaintiff and to furnish said sand and other articles.

Replevin of furniture by Benjamin G. Perry and eleven others, “ as they are the members of the Franklin Engine Company of Bradford.” Writ dated August 12, 1869. The case was referred to an auditor. Trial in the Superior Court, before Wilkinson, J., who made the following report of the case: “ In 1861, a fire department was duly established and organized in Bradford, and has so continued ever since.

Tout. The declaration alleged that the defendant, “with force and arms, debauched and carnally knew the plaintiff by force and against her will, and then gave her a loathsome and contagious disease.” Trial in the Superior Court, before Wilkinson, J., who, after a verdict for the defendant, allowed the following bill of exceptions: “ The plaintiff introduced evidence tending to prove the assault set forth in her declaration made upon her about November 1, 1867, and that she…

<p>One from whose possession the assignee of a bankrupt has taken goods, claiming them bona fide as part of the bankrupt estate, may forthwith replevy them from the assignee on a writ issuing from the state court, notwithstanding that the bankrupt act (U. S. St. 1867, c. 176, § 14) provides that no one shall maintain an action against an assignee for anything done by him as such assignee without giving him twenty days’ notice.</p>

<p>Tort by a citizen of this Commonwealth against a railroad corporation established by the laws of New Hampshire, for an injury suffered by him while a passenger in their cars from their negligence in the management of the train. Ad damnum $10,000.</p> <p>In the Superior Court, before trial, the defendants filed a petition, as follows : “ The Manchester and Lawrence Railroad Corporation, defendant in the above suit, respectfully represents that it is a corporation duly established by the laws of New Hampshire, and is a citizen of said State of New Hampshire; that the plaintiff has alleged and does allege that he is a citizen of the State of Massachusetts, which allegation your petitioner believes to be true; and that the amount in controversy in said suit exceeds the sum of five hundred dollars, to wit: five thousand dollars, exclusive of costs. Wherefore it prays that said cause may be removed to the next Circuit Court of the United States for the District of Massachusetts, for trial and final determination, and that all further proceedings in this court may be stayed. Manchester and Lawrence Railroad Corporation. By Joseph W. Hildreth, Ass’t Supt.” The petition bore an affidavit of Hildreth to its truth.</p> <p>With this petition the defendants filed an affidavit, in these terms: “ I, Joseph W. Hildreth, of Portsmouth, N. H., being duly sworn, depose and say that I am the acting and assistant superintendent of the Manchester and Lawrence Railroad Corporation ; that I have reason to believe and do believe that from prejudice and local influence said corporation, defendant in the suit, Mahone against it, now pending in the Superior Court, for Essex County, Commonwealth of Massachusetts, will not be able to obtain justice in the state court. Joseph W. Hildreth.”</p> <p>The defendants at the same time tendered in court a bond, purporting to be the bond of the defendants as principal and George B. Chandler as surety, to the plaintiff, in the sum of $5000 ; conditioned that if the defendants “ shall enter in the next Circuit Court of the United States for the District of Massachusetts, on the first day of its session, copies of all process, pleadings, depositions, testimony and other proceedings in the suit ” aforesaid, “ and do such other appropriate acts as are required to be done upon the removal of a suit into the United States Courts, by the laws of the United States, this obligation shall be void; ” and executed thus:</p> <p>“ Manchester and Lawrence Railroad,</p> <p>“ By George B. Chandler, Treasurer. [Seal.]</p> <p>“ George B. Chandler.”</p> <p>The bill of exceptions, after setting out all these papers, proceeded as follows : “ The plaintiff objected to the granting of the petition, and assigned among other reasons, that it did not appear that the petition and affidavits were the acts of the defendants, or that the surety on the bond was responsible to any amount, or that the bond was a compliance with the law. The fact that Hildreth was the assistant and acting superintendent of the defendants was not denied, but he had no authority, except what was incident to the office he held, and he was not appointed by the corporation, unless his appointment by the directors of the corporation was such appointment.” Wilkinson, J., refused to grant the petition, the cause proceeded to trial, the jury returned a verdict for the plaintiff in the sum of $2800, and the defendants alleged ex ceptions.</p>

<p>In an action against the maker of a promissory note, given in 1833, and alleged to be lost or destroyed, the agreed statement of facts set forth that a note in renewal of the original note was given in 1844, for the purpose of preventing the original claim from being barred by the statute of limitations; and that nothing was ever paid on either note. The Gen. Sts. c. 118, § 76, provide that a discharge in insolvency shall protect a debtor only from debts founded on a contract made since July 31, 1838. Held, that the discharge in insolvency of the defendant was a bar to the action.</p>

Writ oe entry to recover land in Danvers. At the trial in me Superior Court, before Brigham,, C. J., the demandant put fa evidence an execution levied upon the demanded premises, with the certificate of the appraisers and the officer’s return thereon, together with the certificate of the register of deeds that the same had been duly recorded; and rested his case.

<p>The omission by an officer or creditor for more than thirty days to proceed with the levy oi an execution at any stage between the commencement and the completion of the levy is, in the absence of explanatory circumstances, an unreasonable delay and avoids the levy.</p>

Contract to recover for services as superintendent of public schools in Salem from July 1 to December 3, 1871.

Information * by the attorney general, filed April 14, 1873, praying that a writ of mandamus should issue, directed to the members of the board of aldermen, and of the common council of the city of Lawrence, commanding them to meet in convention and proceed to elect a commissioner of streets. An alternative writ of mandamus was issued on April 15, 1873.

<p>If a policy of insurance issued by a company in New York and signed by their president and secretary there, is delivered to and accepted by the assured in Boston, and the assured gives the premium note in Boston, the policy is to be interpreted by the law of this Commonwealth, although at the time of issuing it the company has no general agent in the Commonwealth appointed, in accordance with the Gen. Sts. c. 58, § 68, to receive service of process; and therefore the policy covers the amount paid by the insured vessel to another vessel for damages caused by their collision; and evidence of a general usage or understanding in New York or Boston is not admissible to control such interpretation.</p> <p>An insured vessel was held liable in a suit in a foreign court of admiralty for damages to another vessel with whom she had come into collision; the question was litigated in good faith, and after the decree of the court, the amount of the damages was fairly agreed upon and adjusted by the owners of the two vessels. Seldy that the insurers were liable for this amount, although they had no notice of the suit.</p> <p>A policy of insurance on a vessel provided that the sum insured should be payable thirty days after proof of loss. In an action on this policy, the declaration, filed in April 1868, claimed to recover, first, for the amount which the insured vessel had to pay to another vessel with which she had come into collision, and secondly, for a general average contribution, and the answer put both these claims in issue. Ho notice or proof of loss under the first claim was made before the commencement of the action. In August 1869 an agreement of parties was filed that the plaintiff had sustained loss; that the only question for the jury should be on an alleged misrepresentation and breach of warranty by the plaintiff as to loading; and that if the plaintiff had a verdict, the case should be sent to an assessor to determine the damages. In September 1869 a trial was had, the verdict was for the plaintiff, exceptions were alleged and overruled, and in July 1871 the case was sent to an assessor. The defendants then moved to set aside the agreement; and filed a bill in equity to reform the policy on the ground that it was not intended that the plaintiff’s first claim should be covered by the policy; that the plaintiff had never made proof of loss under this claim; and that owing to the loches of their counsel they had only just discovered that the plaintiff made such claim. Held, that the motion should be overruled and the bill in equity dismissed.</p> <p>] n an action on a policy of insurance to recover the amount paid by the insured vessel as damages for injuring another vessel with which she had come into collision, interest can be recovered only from the date of the writ, if no notice was given to the insurers before the beginning of the action.</p>

<p>Contract against Abbott Lawrence, Charles H. Parker and Aaron D. Hubbard, executors of the will of T. Bigelow Lawrence. Writ dated December 19, 1870. The case was submitted to the judgment of the Superior Court on an agreed statement of facts substantially as follows:</p> <p>The testator and William W. Goddard, being owners of a tract of land on Beacon Street in Boston, entered into an indenture with the plaintiff, dated April 23, 1860, wherein they covenanted, “for themselves, their heirs, executors and administrators,” to convey to him a lot of land, part of the tract, by a warranty deed, upon payment by him of a certain sum ; and he covenanted, for himself, his heirs, executors and administrators, to pay said sum within a year, and within sixty days to begin to build a dwelling-house on the lot. The indenture contained the following clause: “ And it is further understood and agreed between the said parties, that each of the side-walls of the house on this lot is to be placed as a partition wall, one half on this and one half on the next adjoining lot, and that when the adjoining lot is built upon and the wall used, the owner of said adjoining lot is to pay one half of the cost of such part of the wall as is used by him, and that the deed of said lot is to be made conformably to this agreement.”</p> <p>The plaintiff, in the course of 1860, built a party-wall in accordance with the agreement; one half on said lot, and one half on the land of the testator and Goddard, adjoining said lot on the east; and in 1861 the testator and Goddard conveyed the said lot to the plaintiff, in conformity with the agreement.</p> <p>By quitclaim deed, dated July 29, 1862, the testator conveyed his undivided moiety of so much of said tract as remained unsold, including said land adjoining the lot conveyed to the plaintiff, to Abbott Lawrence. This deed contained no reference to any party-wall. By a written declaration of trust, executed simultaneously with the deed, Abbott Lawrence declared that the deed was made to him “ in order that he might, during the contemplated absence of said T. Bigelow Lawrence, for his benefit, in conjunction with said William W. Goddard, make sale ” of the land, in whole or in part, as opportunity might occur; and that he had no other right, title or interest in the premises. The deed was recorded, but the declaration of trust was not.</p> <p>In 1864 Abbott Lawrence and Goddard conveyed to John Wooldridge said land adjoining the plaintiff’s lot, by a deed containing this clause: “ This conveyance is made upon the agreement that the grantee and his heirs and assigns shall pay on demand to the owners thereof, one half the cost of the brick partition wall now standing upon the west side of the granted land and that about to be built on the east side of the granted premises, or such part or parts of both side walls as he or they may use, when and as he or they shall use the same, including therein one half the cost of the stone and pile foundation.”</p> <p>In 1866 Wooldridge conveyed the land thus conveyed to him to Albert H. Kelsey, by a deed setting forth that the conveyance was subject to the stipulations and agreements in the deed to Wooldridge; and Kelsey built a house thereon, using the party-wall which the plaintiff had built. The plaintiff demanded payment for the wall from Wooldridge and from Kelsey, but they did not pay him, and he afterwards demanded payment from the defendants, who were appointed executors of the testator’s will upon his death in 1869.</p> <p>The Superior Court gave judgment for the plaintiff, and the defendants appealed.</p>

<p>A title adverse to the owner of a house may be acquired by prescription in a strip of land adjacent thereto, although the eaves of the house project and discharge water over the strip.</p> <p>The eight co-tenants of two adjoining lots of land conveyed the first lot to A. by a deed containing covenants of warranty and against incumbrances; six of them executed a deed of their interest in the second lot to the other two co-tenants ; and both deeds were on the same days respectively dated, acknowledged and recorded. On the second lot was a house with three windows, each the sole means of lighting the room in which it was placed, opening on the first lot. Held, that there was no easement of light and ait for these windows over the first lot.</p>

Contract by Charles Davis and George W. Goodrich, on an account annexed.

Contract to recover the amount assessed upon the plaintiff, under the Gen. Sts. c. 48,* as his proportional part of the expense of a main drain alleged to benefit Ms land, and paid by Mm to the defendants’ treasurer, under protest, to prevent a sale of the land for non-payment of the assessment.

<p>Bill in equity, filed June 15,1872, alleging that the plaintiffs were authorized by the St. of 1872, a. 356,* to take possession of a lot of land in Boston occupied by the defendants, and hold the same for the purposes set forth in the statute ; that they did all things necessary to be done to entitle them to take the land; that they took the land and entered into possession thereof; that they were expelled by the defendants, and the defendants wrongfully hold the land; that thereby the plaintiffs were wrongfully disturbed and interfered with in the exercise of the franchise conferred on them by their charter and by said statute; and that great and irreparable injury would ensue to the plaintiffs, and much risk and inconvenience to the public travelling over the plaintiffs’ road. The prayer was that the defendants might be restrained from retaining possession of the premises, or interfering with or disturbing the plaintiffs’ possession thereof.</p> <p>The answer denied that the plaintiffs had done all things necessary to do to entitle them to take the land, admitted that the plaintiffs took possession of the land and were expelled by the defendants, and alleged that the continued use of the land was necessary and essential to enable the defendants to perform their public duties, and to fulfil contracts for the transportation of passengers and freight, lawfully made under the provisions of their charter; that without said land their public duties could not be performed or carried out by them ; that there was no other land in Boston, within the limits of their charter, which they could procure or obtain to enable them to perform their public duties or fulfil their existing contracts; that the statute was unconstitutional as an infringement of their chartered rights, and because it contained no adequate provision for making compensation to them for injury to their franchise or damage to their business, and also because it purported to give the plaintiffs power to take for railroad purposes land which had been already taken for those purposes.</p> <p>The case as it appeared from the facts agreed, proofs and offers of proof, upon which it was reserved by Wells, J., for the consideration of the full court, was substantially as follows:</p> <p>On May 7,1872, the plaintiffs’ directors voted to take the land described in the St. of 1872, c. 356; on May 8 they served notice on the defendants that after the expiration of thirty days the plaintiffs would take possession of the land under the statute, and on May 13 they filed in the clerk’s office of the city of Boston a location of the plaintiffs’ railroad over said land. The following is an extract from the plaintiffs’ by-laws: “ The directors may purchase in the name and for the use of the company all such real estate, materials, engines, cars and other things as they shall deem needful for depots, for the making, completion and use of said Eastern Railroad, and for the transportation of persons, goods and merchandise, and may make any and all compromises and settlements concerning any real estate taken for the use of said road. They may cause such buildings to be erected as they may deem necessary or advantageous to the interests of the company.’* 56 The directors shall declare all dividends, allow accounts, superintend the conduct of the different officers and agents chosen or appointed by them, and may exercise by themselves or their agents all the powers and authority granted to the corporation by their charter, for the purpose of locating, constructing and completing the railroad therein mentioned, for the transportation of persons, goods and merchandise, for establishing the rates of toll on said road and the collection thereof, and all such other powers and authority for the management of the affairs of the corporation as may be necessary and proper to carry into effect the objects of the company and the purposes of their charter.”</p> <p>On June 7, June 11 and June 12 the plaintiffs entered upon the land to take possession under the statute, and at each time were expelled by the defendants. No meeting of the stockholders of the plaintiffs was held between the passage of the St. of 1872, c. 356, and the filing of this bill. The defendants have been in quiet possession of the land, claiming ownership since 1844, and have daily and constantly used it as a portion of their freight station and grounds, for the receipt and delivery of freight, and their tracks extended over substantially the whole of the land. The premises of the defendants in Boston are in all directions, except where they adjoin the land of the plaintiffs, bounded by public streets, and there is no land in Boston which can be taken by the defendants under the provisions of their charter and under existing laws, with which they can connect their tracks.</p> <p>The land in question has been for many years substantially devoted by the defendants to the delivery of bricks under a contract. A portion of the freight business of the defendants must necessarily be abandoned if they should be deprived of the premises.</p> <p>The defendants offered to prove, if admissible, which the plaintiffs denied, that the plaintiffs could upon their own land erect sufficient station accommodations to transact all their passenger business with safety and convenience, and that there was no immediate or imperative necessity for the use and occupation by them of the land now claimed to be taken.</p>

Bill in equity by Charles Deane and George C. Lord, executors of the will of Robert Waterston, against the Home for Aged Colored Women, the Association for the Relief of Aged, Indigent Females, the American Bible Society, the Massachusetts Bible Society, the Massachusetts Radical Peace Society and the American Peace Society, praying for instructions as to the disposal of certain legacies.

<p>Tort. The declaration was as follows: “ And the plaintiff says that the defendants carelessly left a truck, loaded with iron, in Marion Street, a public highway in Boston, for the space of twenty minutes and more; and the iron on said truck was so carelessly and negligently placed that it would easily fall off; and that the plaintiff was walking in said highway, and was lawfully in said highway, and lawfully using said highway, and in the exercise of due care; and said iron upon said truck was thrown and fell therefrom upon the plaintiff in consequence of the defendants’ carelessness, and the plaintiff was severely bruised and crippled,” &c. The answer was a general denial of the plaintiff’s allegations.</p> <p>At the second trial in the Superior Court, before Devens, J., after the decision reported in 107 Mass. 104, the plaintiff introduced evidence that the defendants left a truck with a bar of iron on it standing in front of their works on Marion Street, which was a public highway in Boston ; that the iron was not fastened, but would easily roll off the truck; that the plaintiff, then seven years old, and a boy about the same age named James Conners, were walking, between six and seven in the evening, on the side of Marion Street opposite the truck and the defendants’ works; that Horace Lane, a boy twelve years old, being near the truck, called to them to come over and see him move it; that the plaintiff and Conners said they would go over and watch him do it; that they went over accordingly; that the plaintiff stood near the truck to see the wheels move, as Horace Lane took hold of the tongue oí the truck; that Horace Lane moved the tongue somewhat; that the iron rolled off and injured the plaintiff’s leg; and that neither the plaintiff nor Conners touched the iron or truck at all.</p> <p>The plaintiff was also allowed to introduce in evidence, against the defendants’ objection, an ordinance of the city of Boston prohibiting trucks or vehicles of any kind, whether loaded or unloaded, and whether with or without horses, from stopping in any street more than five minutes without some proper person to take care of the same, or more than twenty minutes in any case.</p> <p>The defendants introduced evidence tending to show that the iron was fastened securely on the truck, which was drawn from the defendants’ works into the street at four o’clock in the afternoon ; that the boys removed the fastenings ; that Horace Lane placed the boys one on each side of the truck; that he turned the tongue of the truck round; that he and Conners then took hold of the iron and rolled it off; that the plaintiff had his hands on the iron or on the truck when the iron rolled off on to him; and that the boys were engaged in the common enterprise of rolling off the iron and moving the truck. There was no evidence that Horace Lane had any lawful purpose or object in moving the truck, or any right to meddle with it.</p> <p>The defendants requested the judge to give, besides other rulings, the following:</p> <p>“ 1. Leaving the truck in the street, in violation of a city ordinance, might subject the defendants to a fine, but this violation of the provisions of the ordinance would not of itself alone render the defendants liable civilly in this suit; but negligence must be shown, and such, and only such, as is averred in the declaration.</p> <p>“2. In order to make the plaintiff a participator or joint actor with Horace Lane, in his conduct in meddling with the truck for an unlawful purpose, it was not necessary for him to have actually taken hold of the tongue, or the iron, or the truck, to help or aid in moving it. It is enough if he joined with him in a common object and purpose voluntarily, went across the street on hia invitation for that avowed purpose, and stood by the truck to encourage and aid, by his presence, word or act, the accomplishment of that purpose.</p> <p>“ 3. While it is true that negligence alone on the part of Horace Lane, which contributed to the injury combining with the defendants’ negligence, would not prevent a recovery, unless the plaintiff’s negligence also concurred as one of the contributory causes also; yet, if the fault of Horace Lane was not negligence, but a voluntary meddling with the truck or iron, for an unlawful purpose, and wholly as a sheer trespass, and this culpable conduct was the direct cause of the injury which would not have happened otherwise, the plaintiff cannot recover.”</p> <p>The judge did not give the ruling requested, but gave rulings, which, so far as they are now material, were as follows:</p> <p>“ The city ordinance is proper to be put in evidence and to be considered by the jury upon the question of negligence, although it is not conclusive proof that the defendants were in point of fact negligent in the act of leaving the truck there. It is a matter of evidence, to be weighed with all the other evidence in the case.</p> <p>“ If the sole or the direct cause of the accident was the act of Horace Lane, the defendants are not responsible. If he was the culpable cause of the accident, that is to say, if the accident resulted from the fault of Horace Lane, they are not responsible. But if Horace Lane merely contributed to the accident, and if the accident resulted from the joint negligence of Horace Lane in his conduct in regard to moving the truck and the negligence of the defendants in leaving it there, where it was thus exposed, or leaving it so insecurely fastened that this particular danger might be reasonably apprehended therefrom, then the intermediate act of Horace Lane will not prevent the plaintiff from recovering, provided he himself was in the exercise of due and reasonable care. If the plaintiff himself participated in the act of Horace Lane no further than to go there and be a witness to this transaction which Horace Lane proposed to perform, crossing over the street by his invitation, and witnessing him move this truck, that would not make him such a participator in the wrongful act of Horace Lane as to prevent his recovery, provided he himself was in the exercise of reasonable care.</p> <p>“ If, however, he was actually engaged in the wrongful act of Horace Lane, if he was actually engaged in disturbing this truck, and moving the fastenings which had been put upon it in order to prevent it from being disturbed, and was actively participating in the act of Horace Lane, then he cannot recover. But if the act of the plaintiff was limited to crossing the street for the purpose of witnessing the act done by Horace Lane, in answer to his invitation, and no active participation was taken by the plaintiff other than that, it would not prevent his recovery, provided he himself was in the exercise of due and reasonable care.”</p> <p>At the close of his charge to the jury the judge read the second ruling prayed for by the defendants, and said: “ If the plaintiff took an active participation in it, as I before instructed you, or went there as a joint actor, for the purpose of encouraging Horace Lane in it, he cannot recover. If he went there attracted by curiosity only, at the invitation of the party who was about to move the truck, Horace Lane, then he may recover; provided, you are further satisfied that, in what he did, he was in the exercise of the due and reasonable care that should be expected of a person of his age.”</p> <p>The jury returned a verdict for the plaintiff for $6000, and the defendants alleged exceptions.</p>

<p>In an action against a railroad company to recover for injuries done by one of the plaintiff’s pair of horses to his mate, while being carried by the defendants, the defendants requested a ruling that if they used due care and provided a suitable car, and the injuries were caused bj*- the peculiar character and propensities of the horses, such as fright or bad temper, they were not liable; the judge refused this ruling, but ruled that if the horse was injured by his mate in an outburst of viciousness, quite unusual in horses worked together, the jury might find for the defendants. Held, that the defendants had good ground of exception.</p> <p>A railroad company is not responsible for injuries inflicted by one horse upon another while they were being carried in the company’s car, if the injuries were caused by the fault or neglect of the owner of the horses in attaching their halters or not removing their shoes.</p>

<p>The officers of a steamship have a right to reserve a table in the dinner cabin for their own use; and in an action by a passenger for an assault in removing him from such table, a ruling that if such reservation was not necessary, and was not required for them, and there was no injury or inconvenience from the plaintiff’s remaining there, there was no right to remove him, is erroneous.</p>

<p>Contract on the" covenant against incumbrances in a deed from the defendant to the plaintiff of land in Boston. Writ dated December 1,1871.</p> <p>At the trial in the Superior Court, before ¡Boclmell, J., it appeared that in 1850 the land was conveyed by the trustees of the Warren Association to Isaac Campbell, and Campbell mortgaged it back to the trustees, who in 1851 assigned the mortgage to Hall J. How and others; that in 1852 Campbell gave to Elnathan Davis a quitclaim deed of the land, containing a recital that the land was subject to the mortgage, and a covenant that Campbell would warrant and defend the land against all persons claiming by, through or under him ; that in 1858 Hall J. How and others gave a quitclaim deed of the land to Campbell, and on the same day Campbell gave a warranty deed thereof to the defendant, who occupied the land, claiming title, until 1862, when he conveyed it to the plaintiff, by the deed containing the covenant declared on; that the plaintiff took possession under the deed and continued in possession until she conveyed to Barry Sullivan, as hereinafter mentioned.</p> <p>It further appeared that in 1852 Elnathan Davis died intestate, leaving his father, Jonas Davis, his heir, and his estate was duly administered on; that in 1858 Jonas Davis gave a quitclaim deed of the land to Francis L. Capen, who mortgaged it back to Jonas Davis ; that on November 28,1870, Capen gave a quitclaim deed thereof to Barry Sullivan; that on November 30, 1870, Jonas Davis assigned the mortgage to William G. Farnum, the plaintiff’s husband, and on December 3,1870, Sullivan gave a quitclaim deed )f the land to the plaintiff; and that on the same day the plaintiff and her husband conveyed the land to Sullivan. It was not claimed that Jonas Davis or Capen ever entered upon the land.</p> <p>It also appeared that Capen lived near the land, passed it frequently, and often spoke to the plaintiff while in possession, but never mentioned that he had any claim on the land; and that no person ever gave the defendant or the plaintiff notice of any claim on the land until November 1870, when the plaintiff, discovering a record title in Capen and Davis, sought them out and procured from them the conveyances above mentioned.</p> <p>The plaintiff introduced evidence tending to show that the consideration of these conveyances and the expenses connected with their execution amounted to nearly $1000. No objection was made to the reasonableness thereof.</p> <p>The defendant requested the judge to rule that if Jonas Davis was disseised when he made the deed to Capen and when Capen made the mortgage back to him, nothing passed by said conveyances ; that for the same reason nothing passed by the deeds of Davis to the plaintiff’s husband, or from Capen to Sullivan, or from Sullivan to the plaintiff, and therefore the plaintiff had not extinguished the outstanding record title ; that the quitclaim deed of How and others to Campbell conveyed a title to the land, or operated as an assignment of their mortgage; that the conveyances between Sullivan and the plaintiff and between Davis and the plaintiff’s husband did not entitle the plaintiff to recover the amount she had paid to obtain said conveyances; and that the plaintiff was entitled to nominal damages only.”</p> <p>The judge declined so to rule, and ruled “ that the deed from How and others tf Campbell was merely a release of the mortgage; and that the several deeds of Jonas Davis, Capen and Sullivan, though they may have been made by persons disseised, were still so far valid as to extinguish the outstanding record title and enable the plaintiff to recover the sums of money she had actually and in good faith paid to free the land from record defects of title or incumbrances thereon.” The question of disseisin was not submitted to the jury.</p> <p>The jury returned a verdict for the plaintiff for $996.85, and the defendant alleged exceptions.</p>

Contract. . The declaration was as follows: “And the plaintiff says that the defendant, by his authorized agents, G. F. Hunting & Leavitt, auctioneers, made sale at public auction, on the premises in Boston, on December 31,1870, to the plaintiff, of a certain parcel of real estate, to wit: the land and dwelling-house thereon, same being numbered 23, on Pine Street, in Boston, for the sum of $3850, and made and delivered to the plaintiff an agreement in writing of which the…

<p>Scire facias upon a judgment of this court against the defendant as trustee of the Columbian Insurance Company, upon which execution was issued, demand made upon the trustee, and execution returned unsatisfied. After the defendant had answered in the seire facias, three sets of interrogatories to him were filed by the plaintiff, which he answered. On application of the plaintiff, the court then ordered him to answer more fully, and he filed further answers.</p> <p>The case was heard upon the original writ, the writ of seire facias, the returns thereto, the interrogatories and answers, and the order of the court for a fuller answer, before Colt, J., who reserved the case for the consideration of the full court; such order or judgment to be entered therein as the case required. The case is stated in the opinion.</p>

<p>A man living with his wife in the county of N. was sentenced to he confined in the state prison in the county of M. for six years, and was imprisoned accordingly; his wife moved into the county of S.; and he was afterwards adjudged bankrupt and joined with his assignee in the sale of his homestead in the county of N. Held, that while in prison he was “still living” in the county of N., within the meaning of the Gen. Sts. c. 107, § 14, and that a libel for divorce against him must be heard in that county.</p>

<p>The recitals in a recognizance, under the Gen. Sts. c. 124, § 10, are not evidence as to mat. ters not occurring in the presence of the magistrate before whom the recognizance was taken.</p> <p>At the trial in the Superior Court of. a case raising the issue whether a person was legally arrested on a writ from said court, the judge ruled on inspection of the writ that the copias clause therein was erased, and refused to admit evidence to show that no erasure was intended; there was no question that the erasure, if any, was made before the writ was issued. Held, that the ruling was not open to exceptions.</p> <p>A person arrested on mesne process, entered into a recognizance under the Gen. Sts. c. 124, $ 10, and was examined by a magistrate, but afterwards made default. Held, in as action against the surety on the recognizance, (1) that he might show that the writ on which his principal was arrested did not authorize the arrest; (2) that if the writ did not authorize the arrest the recognizance was void; and (3) that the writ could not bo amended under the Gen. Sts. c. 129, § 42.</p>

<p>Tort against James B. Crocker, Jr., Charles L. Smith and Edward F. Smith, copartners under the style of Crocker, Smith & Company, for the conversion of 100 barrels of flour. Trial in the Superior Court, before Devens, J., who, by consent of the parties, before verdict, took the case from the jury and made, for the consideration of this court, a report of the case, from which the following facts appeared:</p> <p>S. Decatur Ayers and Elias J. Ayers, doing business in Cairo in the State of Illinois, under the name of Ayers & Company, as flour merchants, had had dealings with the defendants, who were commission merchants in Boston, since 1869, the defendants receiving flour on consignment from Ayers & Company, selling it in Boston, and having an open general commission account with them. On August 23, 1870, Ayers & Company consigned to the defendants a lot of flour, and drew on them for more than its value, writing at the same time, “We will make it all right in next shipment.” The flour arrived, the defendants, on the strength of this promise of Ayers & Company, accepted and paid the draft, and the result of this and previous dealings was that Ayers & Company were indebted to them some four or five hundred dollars.</p> <p>On August 24,1870, Ayers & Company shipped the 100 barrels of flour in dispute to Boston, taking from the carriers a bill of lading, which acknowledged the receipt of the flour, “ consigned to shipper’s order, Boston, Mass.,” but in which, under the heading of “ Marks and Consignees,” was written “ St. Louis Mills and Blackburn. For Crocker, Smith & Company, Boston, Mass.” They then drew on the defendants for $500, attached to the draft the bill of lading, indorsed by them in blank, and discounted the draft at the Bank of Commerce in St. Louis. The bank presented the draft to the defendants, who refused to accept it, and it was returned with the bill of lading to the bank, who returned it to Ayers & Company, by whom it was taken up. On August 30, 1870, Ayers & Company wrote to the defendants, “ We trust you have reconsidered the matter and accepted the draft.”</p> <p>On September 12, 1874, the 100 barrels of flour arrived in Boston by the Boston & Albany Railroad, accompanied by a way bill in which, under the heading of “ Consignee,” was written “ Crocker, Smith & Company, Boston.” The flour was delivered on the same day by the railroad company to the defendants, who paid the freight, and on September 20, sold the flour and applied the proceeds on their account with Ayers & Company.</p> <p>On September 14, 1870, Ayers & Company drew a draft for $400, purporting to be on account of the 100 barrels of flour, upon Goodwin, Locke & Company, of Boston, in favor of the plaintiffs, attached the bill of lading to the draft, and delivered the draft and bill of lading to the plaintiffs; and the plaintiffs discounted the draft. The draft was accepted by Goodwin, Locke & Company, upon presentment on September 21, and was paid when due.</p> <p>There was evidence that when the bill of lading was delivered to the plaintiffs it was indorsed in blank by Ayers & Company, but it appeared that when it was forwarded by the plaintiffs the words “ Deliver within named flour to Goodwin, Locke & Company, or order,” were written above the indorsement of Ayers & Company.</p> <p>Judgment to be ordered for the plaintiffs or the defendants, as the court might determine on the law, unless the court should be of the opinion that the case should have been submitted to the jury; if for the plaintiffs, judgment to be for the amount of the proceeds of the flour sold, with interest.</p>

Tort for falsely representing that letters patent held by the defendants for plating with nickel gave a valid patent right, and that no letters patent for plating with nickel had been before issued, and thereby inducing the plaintiff to pay $2500 for an assignment of said letters patent; whereas said letters patent did not give a valid patent right, and letters patent for plating with nickel had before been issued.

<p>Bell in equity, alleging that on May 1, 1866, the defendant and Franklin Hopkins, Senior, since deceased, conveyed to the plaintiff, by deed duly recorded, a parcel of land and a wharf and flats in Charlestown; that a part of the flats to which they were entitled as owners of the upland described in said deed, and which were conveyed by said deed, were held in common with the other proprietors of the Mystic River Corporation, a corporation chartered for the purpose of owning, improving and selling certain flats in Mystic River, and amounted to -¡¡Ms of the property of the corporationthat the plaintiff purchased, and the defendant and Hopkins, Senior, intended to convey all their interest, right and property in said corporation; that before this conveyance they had paid $890 to the corporation as their proportion of assessments laid on the proprietors, and received receipts therefor, which, in accordance with a vote of the corporation, were in the form of certificates for 368 shares, “ being receipts for twice the amount paid in, to wit, receipts for the sum paid in, and receipts for am equal sum on account of the original interest in the flats ; ” that the defendant and Hopkins, Senior, sold the plaintiff said receipts as part of their interest in the corporation; that Hopkins, Senior, transferred to the plaintiff one half of the receipts, to wit, for 184 shares, being those held by him, but the defendant, by some accident, did not transfer the receipts for the 184 shares held by him; that' the plaintiff and defendant both supposed the transfer had been made; that the plaintiff only recently found out that it had not been made, and thereupon asked the defendant to make it; that the defendant refused; and that the plaintiff, without these receipts or certificates, was unable to collect dividends declared by the corporation, and was deprived of the benefit' of his interest in the flats held by him. The prayer was that the defendant might be decreed to transfer said receipts or certificates to the plaintiff, and for further relief.</p> <p>The answer denied that the defendant ever conveyed or sold to the plaintiff any of his rights or interest in the Mystic River Corporation.</p> <p>The case was referred to a master; and, as it appeared from the pleadings, master’s report and agreed statement of facts, on which it was heard by Chapman, C. J., and reserved for the consideration of the full court, was substantially as follows:</p> <p>By the St. of 1852, e. 105, the city of Charlestown, and the other proprietors of lands and flats in Charlestown, bounding on the Mystic River, between certain limits, were incorporated under the name of the Mystic River Corporation. They were authorized to inclose and fill up and sell a portion of the flats lying between the north and south channel of the river, and therefore not belonging to any individual, and were empowered to hold real ánd personal estate.</p> <p>By the St. of 1855, e. 481, the corporation was granted the right to build docks and warehouses, lay vessels at the wharves, and receive wharfage and dockage; and its capital stock was fixed at a sum not to exceed 1500,000, “ provided, that no. share in said capital stock shall be issued for a less sum or amount, t© be paid in on each, than the par value of the shares first issued.”</p> <p>The city of Charlestown, by virtue of its owning an estate known as the New City Wharf, became the owner of an interest in the corporation, which, by subsequent apportionment among the proprietors, it was agreed should be fixed at of the whole property of the corporation, the property being apportioned among the proprietors according to the number of feet owned bj them on the shore of the river.</p> <p>On May 25, 1857, the city of Charlestown passed a vote reciting that a proposition from the defendant and Hopkins, Senior, to purchase the New City Wharf for $12,000, had been received, and accepting the offer; and by deed, dated June 1, 1857, and recorded with Middlesex deeds, book 771, page 122, the city conveyed to the defendant and Hopkins, Senior, “ traders and co-partners,” “ all that parcel of land lying in said Charlestown, called and known as the New City Wharf, situate and being on Medford Street on the Mystic River,, together with all the docks, flats, appurtenances and privileges thereto legally belonging; being bounded, described, and measuring as follows: namely, the upland is bounded southwesterly on Medford Street, and that line measures one hundred and twenty-four -ftfo feet, and its course is south 60° 25' 46" east. The easterly line runs on land and flats of P. J. Stone, north 29° 03f 39" east, and measures about fifty-nine feet from Medford Street to high-water mark. The westerly line runs on land and flats of Moses P. Worthen, north 29° 05' 24" east, and measures forty-seven feet from Medford Street to high-water mark; with all the flats to which the city is entitled, as owner of the above-described upland and wharf, by an act of the Legislature called the Mystic River Corporation, or are otherwise legally appurtenant thereto.” And the defendant and Hopkins, Senior, mortgaged the premises back to the city, by a deed of even date with the deed from the city, referring to said deed and containing the same description, to secure their note for $11,000.</p> <p>In 1858, the Mystic River Corporation adopted a plan for building a sea wall and filling up the flats, and thus improving its interest therein, and also determined the value of the interest of the proprietors, and that it should be represented by shares at $5 a share. The number of shares representing the original interest which the defendant and Hopkins, Senior, bought from the city of Charlestown was 975.</p> <p>The corporation then voted that no certificate of stock should be issued to any person for any interest until he paid for his proportion of such new stock, as might be issued from time to time by the corporation; that new stock, at $5 a share, should be issued for the purpose of raising money to be spent in improvements; that each member of the corporation, intending to avail himself of his interest, should subscribe for the new stock; and that each member paying for his proportion of the new stock should be entitled to certificates therefor, and also to certificates for an equal number of shares on account of his original interest. Thus, for every payment of $5, a member was entitled to a certificate of two shares, one of the new stock, and one on account of his original interest.</p> <p>Pursuant to this vote certificates were issued to the members in 1860 and again in 1861. The defendant and Hopkins, Senior, subscribed for new shares in 1860 and 1861, paid $890, and became entitled thereby to certificates for 368 shares, namely, for 184 shares as new stock, and for 184 shares on account of their original interest; and the corporation issued to them certificates accordingly. Before subscribing for these shares they had dissolved a partnership which had existed between them, and by agreement they took the certificates for these shares in their individual names, each taking certificates for half the number. There was never any settlement of their partnership business, which had not been successful, and they did not, at any time, make any division of the wharf, or of their rights or interests therein.</p> <p>After 1861 no certificates were issued by the corporation, but simple receipts were given for the assessments levied. The money accruing from all the assessments was spent in improving the property of the corporation.</p> <p>Down to 1863, the defendant and Hopkins, Senior, had not paid in full the interest under their mortgage to the city of Charlestown, nor the taxes upon the wharf; and in that year Hopkins, Senior, proposed to the city that, if the defendant would give up his interest in the wharf to him, he would pay half of the taxes and interest then due, provided he could be released from liability for the remaining half, and be allowed to remain in possession for three years, paying half the taxes and interest for that time, and not being held liable for the remaining half. The city accepted the offer, and Hopkins, Senior, continued in the occupation of the wharf under this arrangement for three years.</p> <p>In 1866 the plaintiff bought the wharf property and took two quitclaim deeds, one from the defendant and Hopkins, Senior, and one from the city, both dated May 1, 1866. The defendant and Hopkins, Senior, by their deed conveyed “ a certain parcel of land, wharf and flats, situated in said Charlestown, bounded and described as follows: namely, southwesterly by Medford Street, about one hundred and twenty five feet; southeasterly on land, wharf and flats, now or formerly of P. J. Stone; northeasterly on Mystic River; and northwesterly on land and flats now or formerly of one Worthen. Also all the flats which we are entitled to as owners of the above-described upland and wharf. Being the same premises conveyed to us by the city of Charlestown, by deed dated June 1,1857, and recorded book 771, page 122.” The city, by their deed, conveyed “ all that parcel of land lying in said Charlestown called and known as the New City Wharf on Medford Street, on the Mystic River, together with all the docks, flats, and appurtenances and privileges thereto legally belonging, bounded and described as follows: namely, the upland is bounded southwesterly on Medford Street, and that line measures one hundred and twenty-four and feet, and its course is south 60° 25f 46" east; the easterly line runs on land and flats of P. J. Stone, north 29° 3' 39" east, and measures about fifty-nine feet from Medford Street to high-water mark ; the westerly line runs on land and flats formerly of Moses P. Worthen, north 29° 5' 24" east, and measures forty-seven xV\ feet from Medford Street to high-water mark; with all the flats which said city is entitled to by virtue of its interest and estate in the above-described upland and wharf, by virtue of its deed of mortgage from Oliver Smith and Franklin Hopkins dated June 1, 1857.” By arrangement between all the parties, the plaintiff paid $10,000 to the city, and nothing to the defendant and Hopkins, Senior, but the city gave up to them the mortgage note ef theirs which it held. Hopkins, Senior, transferred the certificates above mentioned held by him to the plaintiff, but the defendant did not transfer those held by him. The negotiation was almost entirely conducted by a committee of the city government, the plaintiff and Hopkins, Senior; nothing was said to the defendant about transferring to the plaintiff his certificates or any interest in the Mystic River Corporation, and no special mention was made to him of them. From the evidence of conversations between the plaintiff and Hopkins, Senior, at which the defendant was not present, the master found that Hopkins, Senior, intended to sell, and the plaintiff intended to buy, all the interest which the defendant and Hopkins, Senior, had in the corporation, and that the plaintiff and Hopkins, Senior, supposed that the deeds from the defendant and Hopkins, Senior, and from the city passed such interest. At the time of this purchase by the plaintiff the whole property of the corporation consisted of flats somewhat improved.</p> <p>The plaintiff took possession of the wharf, has used and occupied it ever since, has paid to the Mystic River Corporation all assessments on the interest therein which was owned by the defendant and Hopkins, Senior, has attended meetings of the corporation and has been a director; the defendant has never attended meetings of the corporation or had notice thereof.</p> <p>In 1871 the corporation declared a dividend, but voted that it should not be paid until the certificates of stock which had been issued were surrendered or cancelled; and the plaintiff did not know until he called for this dividend that the defendant held any certificates.</p>

<p>Bill rs" equity filed by Samuel Gregg, George Russell, Milton Fuller, David Thayer, Israel T. Talbot, Herman L. H. Hoffendahl and William Bushnell, physicians and surgeons, against the Massachusetts Medical Society, Samuel A. Fisk, Luther Parks, Richard L. Hodgdon, Thomas L. Gage, Asa Millet, Bowman B. Breed, Jeremiah Spofford, Augustus Torrey, Francis C. Green, George Hayward and Frederick Winsor; alleging that the Massachusetts Medical Society was incorporated by an act of the Legislature November 1, 1781; “that according to said act of incorporation and subsequent acts, and the by-laws passed in pursuance thereof, the plaintiffs received letters testimonial, subscribed its then existing by-laws and were duly admitted and became fellows and members of said society” at different times in or before 1857, “and thereupon became entitled to all the rights and privileges of such fellows and members, have since paid all their dues and faithfully performed all their duties to said society, and have been and still are entitled to said rights and privileges, including the right to the use of the libraries and museum of anatomy of said society, and of its publications, and to the benefits of its funds and property; the said society being the owner not only of said libraries and museum, but also of more than $30,000 funds, yielding a large annual income; that the plaintiffs severally received from said Fisk, president of said society, a printed notice, dated November 4,1871, informing them of certain charges preferred against them as members of said so» ciety by a committee of said society, and directing them to appear before a so-called board of trial on November 21, 1871; ” that these charges were that the plaintiffs “ have violated, and continue to violate, the by-laws of the Massachusetts Medical Society, by ‘conduct unbecoming and unworthy an honorable physician and member of the society,’ to wit, by practising or professing to practise according to a certain exclusive theory or dogma, or certain exclusive theories or dogmas, and by belonging to a society whose purpose is at variance with the principles of, and tends to disorganize the Massachusetts Medical Society; ” and that these charges were signed by the defendants Parks, Hodgdon, Gage, Millet and Breed, who requested that said Fisk, as president, would designate a board of trial, to hear and try the charges aforesaid, in accordance with the by-laws of the society.</p> <p>The bill further alleged that prior to receiving said notice, each of the plaintiffs received the following printed circular :</p> <p>“ Massachusetts Medical Society. At the annual meeting of the councillors of the Massachusetts Medical Society, June 6, 1871, the following preamble and resolutions were adopted : ‘ Whereas, The Massachusetts Medical Society has always endeavored to make, as its charter emphatically enjoins, “ a just discrimination between such as are duly educated and properly qualified for the duties of their profession, and those who may ignorantly and wickedly administer medicine,” while at the same time it has ever acted in accordance with the “ liberal principles ” of its foundation, and shown itself ready to examine and to adopt every suggestion, from whatever source, promising improvement in the knowledge and treatment of disease; and whereas it in alleged that some of its fellows, in opposition to the spirit and intent of its organization, consort, in other societies or elsewhere, with those whose acts tend “to disorganize orto destroy” this society ; Therefore Resolved, That if any fellow of the Massachusetts Medical Society shall be, or shall become, a member of any society which adopts as its principle in the treatment of disease any exclusive theory or dogma, (as, for example, those specified in Article I. of the by-laws of this society,) or himself shall prac tise, or profess to practise, or shall aid or abet any person or persons practising or professing to practise according to any such theory or dogma, he shall be deemed to have violated the by-laws of the Massachusetts Medical Society by “ conduct unbecoming and unworthy an honorable physician and member of this society.” Resolved, In case the society concurs with the councillors in the preceding resolution, that the president of the society shall appoint a committee of five fellows (to hold office one year and until others are appointed) to bring before a board of trial any fellow who, three months from this date or after, shall be found chargeable with the offence set forth in the foregoing resolution. Resolved, That, after concurrence by the society, the foregoing preamble and resolutions shall be printed, and a copy sent to every fellow of the Massachusetts Medical Society. Resolved, That a committee of three be appointed by the chair to report the action of the councillors on the foregoing preamble and resolutions to the society to-morrow for concurrence.’ At the annual meeting of the Massachusetts Medical Society, June 7, 1871, the foregoing preamble and resolutions were concurred' in by the society. The following fellows have been appointed by the president to carry out the foregoing resolutions: Luther Parks, Richard L. Hodgdon, Thomas L. Gage, Asa Millet,' Bowman B Breed. Attest, Charles W. Swan, Recording Secretary.”</p> <p>The bill further alleged that that portion of article I. of the bylaws of said society referred to in said circular is as follows : “ No person shall hereafter be admitted a member of this society who professes to cure diseases by Spiritualism, Homoeopathy, or Thomsonianism; ” that the plaintiffs received no authoritative notification of the charges against them other than the printed notice above set forth; that this accusation was too vague and undefined to enable the plaintiffs to meet it by proof, but that they were informed and believed and thereupon averred-that said charges were intended to apply only to the practice of the system of therapeutics known as homoeopathy, and to membership in the Massachusetts Homoeopathic Medical Society; that the ground of the charge, that the purpose of said society was at variance with the principles of, and tended to disorganize the Massachusetts Medical Society, was solely that the Massachusetts Homoeopathic Medical Society was a society whose purpose was to encourage and develop the practice of medicine according to the principles known as homoeopathy, and in that respect, and for that reason only, it was charged as aforesaid, that its purpose was at variance, and tended to disorganize; that the plaintiffs were members of the Massachusetts Homoeopathic Medical Society; that they had for a long time practised and were still practising medicine according to the principles of homoeopathy; that practising according to the system of homoeopathy was not “ conduct unbecoming an honorable physician and member ” of the Massachusetts Medical Society; that the purpose of the Massachusetts Homoeopathic Medical Society was not at variance with the principles of nor tended to disorganize the Massachusetts Medical Society, although it might be at variance with the theories of individual members thereof; that said clause of said by-law I. to wit: “ Ho person shall hereafter be admitted a member of this society who professes to cure diseases by Spiritualism, Homoeopathy, or Thomsonianism,” and the fifth of the clauses in by-law VII. to wit: “ 5. For any conduct unbecoming and unworthy an honorable physician and member of this society,” and also said resolutions,, were made with the design of facilitating proceedings to expel members of the .society practising medicine according to the system of homoeopathy, and were all made subsequent to the respective times when the plaintiffs severally signed the code of by-laws of the Massachusetts Medical Society, and were never assented to by either of them; that said resolutions were not binding interpretations of the by-laws against conduct unbecoming and unworthy an honorable physician and member of the society, and the plaintiffs were not bound by such interpretation; that said portions of said by-laws in respect to homoeopathy, and said resolutions, were contrary to the spirit and intent of the charter of the Massachusetts Medical Society, and of the acts in addition thereto, and to the public policy therein indicated, and tended to suppress investigations, to arrest the progress of discovery in medical science, and to defeat the purposes of the Legislature in the acts respecting said corporation, were unreasonable, unjust to the members of the society, subversive of their rights and privi leges, not within the scope of the authority conferred by law on the society, and therefore illegal and void; that there was no legal or valid by-law of the society which authorized the expulsion of any member thereof practising according to homoeopathy, or for being a member of a homosopathic medical society, and that as the plaintiffs had been and still were engaged in the prao tice of homoeopathy, and were members of the Massachusetts Homoeopathic Medical Society, their expulsion on these grounds would be a plain abuse of power.</p> <p>The bill then alleged that the so-called board of trial had been or was to be organized under the following pretended by-law of the society: “ 1. When charges of infraction of the by-laws shall be duly made against any fellow of the society, the president shall thereupon select five of the commissioners on trial, who shall constitute a board of trial for the pending case. He shall appoint a time and place for the meeting of said board, and shall notify the commissioners appointed, also the complainants and the accused party, of said time and place. 2. The said board of trial shall be empowered and required to meet as above provided, and three members shall constitute a quorum. They shall proceed to organize themselves, and to hear and try the charges aforesaid ; and if convinced that the charges have been substantiated by the complainants, they shall convict the accused, or, if otherwise, they shall acquit him; and, in case of conviction, shall pass sentence, such as the laws of the society authorize, which sentence shall cake effect from the date of its passage. 3. If, after due notification, the accused party shall fail to appear at the time and place of trial, without satisfactory excuse rendered at the time, he shall be considered as admitting the truth of the charges against him, and shall be liable to sentence accordingly. 4. Upon showing to the councillors such cause as shall by them be deemed reasonable therefor, the accused shall be entitled to a revision of his trial by the councillors, who may, according to their judgment, confirm or reverse the previous decision; and this shall be final. 5. Legal counsel shall be inadmissible; but members of the society may be heard as advocates on either side during the trial; and that the commissioners on trials, mentioned in the first of the clauses of said by-law, are annually elected by the respective district societies throughout the Commonwealth, each district society choosing one.</p> <p>The bill then alleged “ that the proceedings whereby the defendants now threaten to expel the plaintiffs from the Massachusetts Medical Society, and thus deprive them of their rights and privileges as members thereof, are entirely unwarranted by law, in this, that under the act of incorporation of the Massachusetts Medical Society, the power to expel fellows is conferred on the fellows or general body of the society alone, that no statute or law of this Commonwealth has authorized the fellows to delegate this power to a board of trial or any other select body of the society, and that the by-law respecting the appointment of a board of trial with powers to expel members, is without the scope of the powers of the society, and is therefore illegal and void, and said board of trial have no right to act in the premises ; ” “ that it is the intention of the defendants by the proceedings initiated as aforesaid, to cause the plaintiffs to be expelled from the Massachusetts Medical Society, for the reasons only that they practise medicine according to the principles of homoeopathy; and are members of said Massachusetts Homoeopathic Medical Society, and the plaintiffs submit that such expulsion will not only be illegal, but if not restrained by the preventive action of this court, will necessarily injure the plaintiffs’ professional reputation and practice as physicians and surgeons, and deprive them of their rights and privileges as fellows and members of the Massachusetts Medical Society, and their interest in said libraries, museum of anatomy, publications, funds and income of said society, and thereby inflict upon them irreparable injury, for which neither a subsequent restoration by mandamus, nor an action at law for damages, would afford certain and adequate relief.”</p> <p>The prayer was that the Massachusetts Medical Society; its president, Fisk; the members preferring charges, Parks, Hodgdon, Gage, Millet and Breed; and the board of triers, Spofford, Torrey, Green, Hayward and Winsor might be enjoined from taking any further proceedings for the trial of the plaintiffs or of any of them on the charges contained or referred to in the notice aforesaid, dated November 4,1871, signed by Fisk, president of the society, and from expelling or attempting to expel any of them from the society for any of the causes in said notice mentioned or referred to; and for further relief.</p> <p>The defendants’ answer contained a demurrer, the causes of which were assigned as follows: That the complainants showed by their bill no such common right or interest as entitled them to unite in a single bill of complaint; that they did not make out any case which entitled them to any relief in a court of equity; that they did not show that the proceedings against them, alleged to have been begun in the defendant society, were unjust or unlawful, or beyond the power of said defendants, nor any good ground for the interference of this court in said proceedings; and that the bill asked the judgment of the court upon matters and questions which were wholly within the cognizance and jurisdiction of the Massachusetts Medical Society. And Fisk, Parks, Hodgdon, Gage, Millet and Breed, for a further cause of demurrer, severally assigned that the bill set forth no ground for relief against them, inasmuch as it set forth no proposed action of them or any of them that could in any manner affect the alleged rights of the plaintiffs or any of them.</p> <p>Hearing, on the bill and the demurrer contained in the answer, before Chapman, C. J., who reserved the case for the determination of the full court.</p>

<p>In 1852, P. received a sum of money belonging to W., in trust, and covenanted in an instrument under seal that, until he invested the sum as a special trust fund, he would pay interest thereon to W., and, when the sum was so invested, would pay W. the income thereof; that on the death of W. he would pay over said sum, or the securities in which it was invested, or the proceeds thereof, to W.’s administrator; and that, in case of his death before W., his executors should execute the same trusts. In 1853, P. died, not having invested said sum; in the same year his executors were qualified, and in 1855, the executors having resigned, administrators de bonis non of his estate were appointed. In 1859, W. having died, an administrator of his estate was appointed, and in 1867 the administrator of W. brought a bill in equity against the administrators and the heirs and devisees of P. for the payment of said sum, contending that his claim was to enforce a trust, and was therefore not barred by the Gen. Sts. a. 97, § 5, and c. 101, § 32. Held, that if the claim was to enforce a trust at all, it was at most a constructive trust, and was therefore barred at any rate by the lapse of six years from the appointment of W.’s administrator.</p>

<p>Until the issue of certificates of stock to the members of a manufacturing corporation they own the stock in common, and therefore under the St. of 1862, c. 218, were all jointly and severally liable for a debt of the corporation contracted before the capital was paid in, although the corporation had voted to divide the capital stock into shares, and one at least of the members had agreed to take a certain number of shares.</p>

<p>A partnership doing business in this state and'in Pennsylvania, of whose partners one was a citizen of and domiciled in this state, and the others were citizens of and domiciled in Pennsylvania, made in 1861 an assignment, by bipartite instrument, of all its property for the benefit of creditors ,* the assignment was voluntary, but was made with reference to the laws of Pennsylvania, by which it was valid, and in accordance with which the proof of claims and the distribution of property were conducted as judicial proceedings. In and prior to 1864, creditors proved claims under the assignment to an amount much greater than the value of the property assigned. Held, that a creditor of the firm domiciled in this state could not, by attachment in 1865, hold, as against the assignee, a debt due to the firm.</p>

Bill in equity against John A. Head and Charlotte E. Head, praying that the defendants might interplead. The case, as it appeared from the agreed facts, on which it was reserved by Chapman, O. J., for the consideration of the full court, was aa follows: The plaintiffs held property under the will of Benjamin Bussey, who died in 1842, and were charged by the will with the payment of an annuity of $1000 to the defendant John A. Head.

Contract by J. Frank Huntress and Robert C. Huntress against James A. Burbank, A. F. Wood, James W. Baldwin and Daniel Heald. Writ dated October 19, 1868. Ad damnum, $1600.

<p>Bill ib equity, filed April 10,1868, by William McDonough and Mary, his wife, against James C. Squire and Sarah P. M., his wife, to set aside a deed of land from the plaintiffs to Sarah P. M. Squire, absolute in form, dated March 3, 1868, and purporting to be made in consideration of $4100 ; and to let in the plaintiffs to redeem the land as from a mortgage. Hearing before Wells, J., who made the following report of the case for the consideration of the full court:</p> <p>“ The case was submitted to a jury upon the following issues : 1. Did the defendants receive the deed made by the plaintiffs to the defendants as security for a loan of money? 2. Did the defendants, or either of them, fraudulently refuse to make and deliver to the plaintiffs, or to either of them, a bond conditioned to convey the land to the plaintiff Mary at the end of one year, upon the payment by the plaintiffs or by said Mary of the amount of money lent by the defendants to the plaintiffs, with interest thereon at the rate of twelve per cent, per annum ?5 A verdict was rendered answering both questions in the affirmative.</p> <p>“ Thereupon the plaintiffs moved for a decree declaring them to be entitled to redeem the premises, and to have a reconveyance thereof upon payment of such amount as should be found due, in such manner as the court might direct. The defendants, objecting to such decree, further moved that the verdict might be set aside, on the ground that it was contrary to the evidence and against the weight of the evidence. The parties having been fully heard thereon, and the matter and the several arguments of counsel having been considered by me, it was ordered and adjudged that the motion to set aside the verdict be overruled as tc the first of said issues. And I report that I am satisfied with the verdict as rendered upon that issue. As to the second issue I report that there was some evidence competent to be considered in support of. the verdict rendered, and such as might warrant a jury in so rendering it: so that if it were an ordinary issue in a suit at common law, not involving the setting aside of a formal instrument under seal, I should decline to interfere. But upon the whole evidence, and aside from said verdict, I am not satisfied that, at the time the deed was executed and delivered, there was or had been any explicit agreement that a bond such as is mentioned in the issue should be given; being of opinion that the preponderance of evidence was the other way.</p> <p>“ It appears to me, by inference from the testimony, that the defendants did not intend, and the plaintiffs did not expect, that there should be any right of redemption beyond the period for which the loan was made, to wit, one year. The amount of money advanced was $700, there being a mortgage of $3400, and no note or other evidence of debt was taken for the amount so advanced. There was evidence that shortly after delivering the deed the plaintiffs requested the defendants to give them a bond, and that the defendant James 0. Squire promised several times to do so, but failed; and some disagreement having arisen, he proceeded to eject them from the premises within the year and before default of payment, denying their right to redeem, and claiming an absolute title under the deed.</p> <p>“ Deeming the questions thus raised to be important for the consideration of the whole court, I reserve the same for their determination. If upon the verdicts so rendered the plaintiffs are entitled to a decree in their favor, it is to be entered accordingly ; otherwise, such decree, order or further direction is to be made as shall to the court seem proper.” ■</p>

<p>Contract to recover the rent of a house on Anderson Street in Boston for the month of November 1869, on the covenants of a lease from Henry Pearson to the defendant for three years from August 1, 1867. The declaration alleged the making of the lease, a sale of the leased premises and assignment of the lease by Henry Pearson to the plaintiff, November 5, 1867, and a nonpayment of the rent for November 1869. The answer set up a surrender of the premises and lease by the defendant to Henry Pearson, an acceptance of the same, and a discharge of the defendant, prior to the sale and assignment of the premises and lease to the plaintiff, in accordance with an agreement between the defendant and Henry Pearson, made at the time of the execution of the lease. Trial in the Superior Court, before Dewey, J., who, after a verdict for the plaintiff, allowed the following bill of exceptions:</p> <p>“ The plaintiff introduced the lease and assignment, and a certified copy of the deed of the premises from Henry Pearson to him, and evidence tending to show that the rent for November 1869 was not paid.</p> <p>“ The defendant introduced evidence tending to show that he surrendered the lease and the premises on November 2,1867, and the same were accepted on that day by Henry Pearson. And he offered to show that the lease was taken by him for the benefit of Frances E. Newcomb ; that at the time of the making of the lease and the contract of letting, it was agreed by and between the defendant and one Peterson, who acted in letting the premises as agent for Henry Pearson, that the defendant should have the privilege of surrendering the premises and his lease at any time when Frances E. Newcomb desired to move out, and be discharged therefrom; that said agreement was not reduced to writing, and was not put into the lease; and that the lease and premises were surrendered and accepted in accordance with said oral agreement. To the admission of this evidence the plaintiff objected; and the admission of said evidence, as far as it was offered to show an agreement made at the time the lease was executed, as to surrendering it, the judge excluded. But he allowed the defendant to introduce evidence as to the surrender and acceptance ; that on November 2, 1867, the defendant came to Peterson, and, handing to him the written lease that he had, said that Frances E. Newcomb had left, and he had brought back the lease; and that Peterson subsequently communicated the same U Henry Pearson, who said in reply, 6 All right, let the premises again.’ The judge gave instructions to the jury as to what acts were necessary to operate as a cancellation or surrender of the lease, to which no objection was made.</p> <p>“ It was admitted that the defendant had never occupied the premises himself, and he introduced evidence tending to show that he had never paid any rent himself for the premises.</p> <p>“ The plaintiff, to rebut the defendant’s evidence of a surrender, offered in evidence, among other matters,. three receipts, purporting to be receipts for rent of the premises from Zelia M= Roberts, after the date of the surrender claimed by the defendant ; proved that these receipts, and the defendant’s signature thereto, were in the handwriting of Samuel F. Pearson; and asked the defendant, when on the stand, if he authorized the giving of them or knew anything about them. The defendant testified that he' did not authorize them; that Samuel F. Pearson was not in any way his agent; that he knew nothing about the receipts, and never saw them or knew that they were given until he saw them in court; and that he never received any money of Zelia M. Roberts for rent; and he objected to the admission of the receipts in evidence for any purpose; but the judge admitted them, and permitted them to be read and to go to the jury.</p> <p>“ The plaintiff claimed, on other evidence in the case, that Samuel F. Pearson was authorized to give said receipts for the defendant. The judge instructed the jury that the receipts were not evidence against the defendant, and were not to affect him unless they were satisfied that Samuel F. Pearson was authorized to act for the defendant, and that was a question for their consideration.</p> <p>“ The defendant requested the judge to instruct the jury, that if the defendant had never himself occupied the premises, nor paid the rent reserved by the lease, and the party who was occupying had paid the prior rent, the plaintiff must prove a demand of the rent of the defendant, or at least, upon the premises, of the person in occupation, before he could sustain these actions; but the judge declined so to rule, or to make any ruling in regard thereto.” The defendant alleged exceptions.</p>

Contract against Stephen Weeks and David H. Daniels. The declaration alleged that the defendants were the owners of a brig called The Thames; that the plaintiff shipped on her as a seaman, for a voyage from Boston to Africa, and back to a port of discharge in the United States, at $25 a month; that he served from November 25, 1867, to March 26, 1869, when he was wrongfully discharged at St. Thomas; that he was obliged to make his way home to Boston at great expense; that the…

<p>It is no objection to the assessment of a betterment by the aldermen of Boston, under the St. of 1866, c. 174, on the abutters upon a street for the expense of widening the street, that no notice of intention to assess the betterment was given to the abutters before the widening, if notice was given to them of intention to take their lands for the widening.</p> <p>It is no objection to the assessment of a betterment by the aldermen of Boston, under the St. of 1866, c, 174, on the abutters upon a street for the expense of widening the street, that the order for the widening did not award any damages to the abutters whose land was taken, and did not adjudge that any estates were benefited by the widening.</p> <p>Under the St. of 1866, c. 174, the assessment of a betterment by the aldermen of Boston for the expense of widening a street might be laid after the widening.</p>

<p>Under the St. of 1864, c. 229, § 15, the selectmen of a town can revoke the location in the town of the track of a street railway which is chartered to extend beyond the limits of the town.</p> <p>The selectmen of a town ordered a street railway corporation to remove its tracks from the side to the middle of a street; it did not obey the order; the selectmen then gave notice to all persons interested in the location of the railway to show cause why the location of the track in said street should not be revoked; and after a hearing they revoked the location as against the public interests. Held, that the notice was sufficient within the St. of 1864, o. 229, §§ 14,15, and the adjudication of revocation final, the plaintiffs and defendants, street railway corporations, made an agreement whereby the plaintiffs leased their railway to the defendants, and the defendants covenanted to assume all the liabilities and burdens imposed on the plaintiffs by their charter. A town through which the railway was located directed the track to be altered, but the defendants refused to alter it on the ground that the work ought to be done and paid for by the plaintiffs, and thereupon the town revoked part of the location, and threatened to revoke the rest. Held, that the plaintiffs could not maintain a bill in equity against the defendants to compel them to alter the track, inasmuch as the plaintiffs might alter the track themselves, and sue at law.</p>

<p>The testator, William P. Winchester, was, in 1847, the surviving member of the firm of “E. A. & W. Winchester,” which established a manufactory of soap in C. in 1821, and used the firm name as a trade-mark. In that year he formed a partnership with the defendant for the purpose, as the articles stated, “of continuing the business in the same name and style of the late firm.” The articles provided that the testator might dissolve the partnership at any time, (in which case the defendant should have no claim except for his share of accrued profits,) and might by his will give the right to his relatives to become members of the firm, which should be continued under the same name. The tes* tator died in 1850, and by his will directed that his trustees should allow the firm o\ “E. A. & W. Winchester,” if the defendant should be a member thereof, to continue to possession of the testator’s land at a certain rent, and, if it desired, to borrow $100,000 from his personal estate, if not needed for payment of bequests, unless all his trustees (one of whom should always be a member of the firm) should deem it proper to withdraw such real and personal properly; and he named the plaintiffs and the defendant executors rod trustees. The defendant continued the business under the same name, first alone and then with partners, nsing the firm name as a trade-mark, until 1867, when the partnership was dissolved. In 1868 the executors and trustees sold the manufactory with the fixture* and utensils to L. Held, that the plaintiffs could not maintain a bill in equity to restrain the defendant from using the name UE. A. & W. Winchester” as a trade-mark, and to compel him to join in an agreement to transfer to L. the right to use it.</p>

<p>Entries in the books of a partnership are not evidence against any one to show that he is a member of the partnership.</p>

Contract by Robert G. Reiman, Washington Lee and Alfred Poor, against John Hamilton and Mary Hamilton. The declaration alleged that the defendants were owners of the schooner Albion; that they undertook to carry in the schooner a cargo of coals belonging to the plaintiffs, and represented that the schooner was strong, stanch and seaworthy; that the schooner was not-seaworthy, but sank with the coal; and that the defendants did not carry the coal as agreed.

<p>The heirs of an intestate agreed to live together on the land which bad. descended to them.§. one of them, J. S., agreed to pay the debts of their ancestor, the repairs and taxes on the real estate, and all the expense of the common living; and' each- of the others agreed to repay J. S. his or her share of the amount so paid by him. The arrangement continued for twelve years. Meld, that J. S. could maintain an action, at law against one of the other heirs to recover the defendant’s proportional share of the-amount paid by him.</p>

<p>Contract. The declaration alleged that the plaintiff was a boarding-house keeper, and on November 26, 1866, agreed with the defendant to furnish him and his family with certain rooms in her house, and provide board, fire and light, until May 1,1867, at $75 a week; that the defendant agreed to lodge and board with her accordingly; and that the defendant left on January 12,1867, and has refused to pay anything since that time. The answer denied that the agreement was for any specified time, and alleged that it was terminable at the option of either party.</p> <p>At the trial in the Superior Court, before Dewey, J., it appeared “ that in November 1866, the plaintiff and defendant orally agreed that the plaintiff should provide board for the defendant and his family of four persons; should provide with proper furniture three specified rooms in her house for the use of the defendant as lodgings for him and his family, and should furnish gas to light and furnace heat to warm said rooms while he so occupied them, and that the defendant should pay the plaintiff therefor the entire price of $75 weekly.” The plaintiff introduced evidence tending to show “ that it was orally agreed between her and the defendant that she would provide said furnished rooms and board for himself and family till May 1, 1867, at the rate of $75 per week; that the defendant would occupy them and board with her until May 1, 1867, and would pay her $75 per week until May 1,1867; and that the plaintiff was to furnish the necessary heat and gas for the rooms during said time.” The defendant introduced evidence tending to show “that no specified time during which he should occupy said rooms and board with the plaintiff was agreed upon.”</p> <p>It further appeared “ that the defendant in pursuance of said arrangement entered into possession of the rooms in November 1866, and with his family occupied them and boarded with the plaintiff, paying her $75 weekly, until January 11, 1867, when he and his family left the plaintiff’s house and table without notice to her.”</p> <p>The plaintiff testified “ that her house was a large one, used as » boarding-house, and that the usual time for letting rooms and ..card in such houses was in the fall of the year.”</p> <p>The defendant requested the judge to instruct the jury as follows: “ If the agreement between the parties was that the defendant should occupy the specified rooms with his family exclusive of all other persons, and that he and his family shouli board with the plaintiff, for an entire price per week, until May 1, no action can be maintained on that agreement. If there was such an agreement, by entering upon possession, the defendant became liable as a tenant at will only.” The judge declined so to instruct the jury.</p> <p>At the close of the evidence, before the arguments to the jury, the defendant requested the judge to rule substantially as stated in the first clause of the foregoing request, on the ground that the agreement was within the statute of frauds. The judge said that he should rule against him, and that now that the evidence was all in, he should let the case go to the jury.</p> <p>The judge instructed the jury that the burden of proof was on the plaintiff to satisfy the jury that the contract alleged in the declaration was made between the plaintiff and the defendant, and that the defendant broke it as alleged in the declaration. The judge gave instructions as to the measure of damages which it is unnecessary to report.</p> <p>The jury returned a verdict for the plaintiff for $717 damages, and the defendant alleged exceptions to the refusal of the judge to give the instructions asked for. The pleadings were made part of the bill of exceptions.</p>

<p>At a town meeting a person was chosen moderator without the use of the check list, in via* lotion of the St. of 1863, c. 198; persons were voted for as selectmen, declared elected and sworn; other business was done; it was voted to adjourn for a week; and the mod* erator declared the meeting adjourned. At the adjourned meeting it was voted that, as the omission of the check list had rendered the election of the moderator of doubtful legality, a moderator should be chosen; a new moderator was accordingly elected with the check list; and the meeting then chose other persons as selectmen. Held, on an infoiw xnation in the nature of a quo warrcmto against the persons chosen selectmen at the first meeting, that they were not entitled to the office.</p>

<p>In an action for inducing the plaintiff to buy a promissory note by false representations as to the credit of the maker, said representations being alleged by the declaration to be known by the defendant to be untrue, the admission or exclusion of evidence offered by the defendant that he did not know that the representations were untrue, depends upon whether the question as to such knowledge has been presented to the jury by the course of the trial and the plaintiff’s conduct of the case; and a ruling of the judge, whether admitting or excluding such evidence, will be presumed correct, and exceptions thereto will not be sustained, unless the bill of exceptions shows it to have been incorrect.</p>

<p>The plaintiff’s husband should not be appointed guardian ad litem of infant defendants, although he is their father and guardian.</p> <p>One who has paid off a mortgage on the land of infants cannot maintain an action against them for money had and received, or money lent, although the mortgage was paid off at the request of their guardian.</p>

Contract. The Lowell Institution for Savings was summoned as trustee of the defendant. It appeared in the Superior Court that Alma H. Chick deposited money with the Institution for Savings and afterwards married the defendant, and died. The plaintiff alleged that the said Alma H. transferred her bank book to her; and the plaintiff claimed the deposit. Rockwell, J., discharged the trustee, and the plaintiff appealed.

Bill in equity by the trustees under the will of David McClure for the instructions of the court upon the question whether a valid trust was created by a devise of land to them in fee, “ in trust to sell and convey the same as they shall see fit, at private or public sale, in parcels or altogether, and the proceeds safely to invest, and the income thereof and the principal from time to time to expend- solely for benevolent purposes in their discretion.

<p>Bill in equity against Luke Thompson and Oliver F. Raymond, alleging that the plaintiff and Thompson entered into a written contract, the former to buy, and the latter to sell, a parcel of land in Charlestown; that afterwards Thompson refused to carry out the contract and conveyed the land to Raymond; and that Raymond had notice of the contract with the plaintiff. The prayer was that the contract might be ordered to be specifically performed; and that Raymond might be ordered to surrender the premises, and restrained from parting therewith.</p> <p>At the hearing before Oolt, J., the execution of the contract with the plaintiff as alleged in the bill, the plaintiff’s readiness and offer to -perform, and Thompson’s refusal and his conveyance to Raymond, were proved. The judge found as follows: “ Raymond, before the conveyance to him and before any part of the consideration for it was paid, had notice that Thompson had entered into an agreement with the plaintiff for the sale of the premises to him; had notice of the terms of the agreement and interfered, having such notice, to prevent the sale agreed on and to obtain a deed himself. The evidence does not satisfy me that Raymond had actual notice that Thompson’s agreement was in writing.”</p> <p>It was proved or admitted “ that shortly after the refusal of Thompson to convey, the plaintiff commenced an action at law against him to recover damages for a breach of his agreement, and specially attached the premises in question under the provisions of the Gen. Sts. o. 123, § 55, as property of Thompson, che record title to which was in Raymond; and that the writ was never entered; but that while the attachment existed, Raymond, in order to make a good title in mortgage, was obliged to give bonds with surety to protect the mortgagee against the attachment.”</p> <p>The judge reported the case for' the consideration of the full court, upon the question whether upon these facts the plaintiff was entitled to a decree for specific performance against Raymond.</p>

<p>Tout for taking and carrying away certain enumerated articles of personal property. Writ dated November 1, 1870. At the trial in the Superior Court, before Pitman, J., the following facto appeared:</p> <p>The property was part of the stock in trade of Josiah Grover and Charles H. Harvey, clothing dealers in Lowell, under the style of Grover & Harvey. The plaintiff claimed title under two mortgages from Grover & Harvey to him. The first was dated December 15, 1869, and was given to secure a promissory note of the same date for $2862, payable on demand, with interest. The second was given to secure a note for $1000, payable on demand, with interest, and was dated 1870, without month or day of the month, but on its back was written66 March 24,1870,” following the printed word “ Dated; ” and the attesting witness swore that this was written on the day of making the mortgage. "Neither of these mortgages were recorded until July 18, 1870. After these mortgages were given, Grover & Hpr vey continued business until September 24, 1870, when their stock, including the property mortgaged and also other property, was attached by the defendant, a deputy sheriff, on writs in favor of creditors of Grover & Harvey.</p> <p>On October 28,1870, the plaintiff, under the provisions of the Gen. Sts. c. 123, §§ 62, 63, served on the defendant the following written notice: “ To the attaching creditors or to William H. Clemence, the officer holding the goods in the shop No. 31 on Merrimack Street in Lowell in the county of Middlesex and Commonwealth of Massachusetts. You are hereby notified that I hold two mortgages on said goods, the one, dated December 15, 1869, for the sum of $2862, and the other, dated March 24, 1870, for the sum of $1000, on which mortgages the sum due at this date is three thousand seven hundred and twenty-three dollars and thirty cents. On the back of the first note named therein are the following indorsements : 6 March 15, 1870. Received on the within note three months interest.’ ‘April 12, 1870. Received of the within note one hundred dollars.’ ‘May 21, 1870. Received sixty-two dollars and interest on the sixty-two paid to date.’ ‘ October 10, 1870. Received on the within note one hundred and eighty-three dollars and sixty cents.’ And I now demand payment of said notes to me secured by said mortgages. Lowell, October 21, 1870. Alanson Folsom.” The defendant objected to the admission of this notice in evidence, but the judge admitted it.</p> <p>On November 14, 1870,' Harvey petitioned that he and his partner might be adjudged bankrupts ; on December 8 they were adjudged bankrupts; and on December 24 an assignee was appointed, to whom the estate of the bankrupts was duly assigned, and who took upon himself the defence of this action.</p> <p>There was conflicting evidence as to the circumstances attending the making of these mortgages, and on the question whether they were fraudulent or not, and, among other things, there was evidence tending to show that Grover & Harvey understood that the mortgages were nor to be put on record unless they got into trouble.</p> <p>The defendant contended “that the mortgages took effect against no one except the parties thereto until July 18, 1870, when they were recorded, and that they were void as against the bankrupt law, or were prima facie evidence of fraud; ” and he also objected to the sufficiency of the demand on the ground “ that it did not disclose that the mortgages were given to secure notes ; that it did not state how much was due on the mortgages, either separately or in the aggregate; and that it did not state a true and just account of the debt or demand for which, as he alleged, the property, was liable to him.” And he asked the judge to instruct the jury as follows:</p> <p>“ The conveyance by Grover & Harvey of all their stock in trade to secure the plaintiff was an act of bankruptcy. It was not a transaction in the usual and ordinary course of their business, and was prima facie evidence of fraud. Neither of the mortgages was valid or effectual against an attaching creditor, or the assignee in bankruptcy or any other person, until it was recorded ; and the four or six months, as the case may be, mentioned in § 35 * of the bankrupt act, begin to run from the time of the recording, and not from the date of the mortgages. Insolvency means inability to pay in the usual and ordinary course of one’s business. A person may be legally insolvent and still have property enough to pay his debts. If the jury find that the mortgages were given, not in the usual and ordinary course of the debtor’s business, and to secure or prefer the plaintiff as a creditor, or in any way in fraud of the bankrupt act, the mortgages could have no force or effect as against the assignee until they were recorded.”</p> <p>“ The demand of the plaintiff did not state a just and true account of the debt or demand, for which, as he alleges, the property was liable to him. It states that one of the mortgages was dated March 24, 1870, which was false. It had no date. It does not state the amount for which the property was liable to him on each mortgage separately, nor the sum due him on each mortgage. It does not give the names of the parties to the mortgages, nor their place of residence or business, nor where the mortgages were recorded, nor to whom the amount thereof was due, nor does it demand payment of money due on either mortgage. It is uncertain, ambiguous and untrue, and tended to mystify and mislead. Neither the record of the second mortgage nor the demand disclosed the date of the mortgage, nor the amount, principal or interest, due thereon, nor the (attached) property included therein.”</p> <p>But the judge declined so to instruct the jury, and instructed them “ that although by the provisions of the General Statutes these mortgages were not valid against third parties until recorded, yet as they were in fact recorded before the attachments by creditors, they took precedence of such claims unless they were originally fraudulent; ” and added, in reference to a suggestion of the defendant, that “if there was an arrangement between Grover & Harvey and the plaintiff that the mortgages should not be recorded in the usual and ordinary course, for the reason that the recording thereof would injure the credit of the mortgagors or otherwise, and the plaintiff did not get them recorded till he feared the mortgagors would not be able to pay, that was a matter entitled to consideration by the jury in passing upon the question whether the mortgages were given and received with the intent to hinder, delay or defraud creditors.” And he further instructed the jury “that the mortgages took effect from their delivery to the plaintiff, and were not affected by the bankrupt act, being too remote in time, but that their validity was to be determined by the rules of the common law; that the plaintiff must, in the first place, satisfy the jury that he had made a just and true account of the indebtedness of Grover & Harvey to him in his demand upon the officer; that if he satisfied them of this, they were then to inquire whether either of these mortgages was given to hinder, delay or defraud creditors with a participancy in such intent on the part of the plaintiff ; and that if either was so given, it was invalid, and the account stated would not be a just and true account, and their verdict must be for the defendant.” He stated the common law as to fraudulent conveyances as prayed for by the defendant.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Contract, against John Trayner, William S. Stearns, and John H. Butler, on a bond entered into by James Trayner and John Trayner, as principals, and by Stearns and Butler, as sureties. The condition of the bond was, that whereas the plaintiff, in a suit before a justice of the peace, had recovered judgment against James and John Trayner, and they had filed a petition to the Superior Court for a review of the judgment: “ Now if the said James Trayner and John Trayner shall prosecute their petition for said review to a final decision, and the review, if granted, to final judgment, and pay such judgment as may be recovered against them, upon final judgment upon the review, and if the review shall not be granted, shall pay any costs which the respondent may recover on the petition, and shall pay the amount of the judgment sought to be reviewed, then this bond shall be void, otherwise the same shall remain in full force.”</p> <p>At the trial in the Superior Court, before Roehwell, J., without a jury, it appeared that, in an action before a justice of the peace, the plaintiff recovered judgment against James and John Trayner; that execution issued upon the judgment; that upon the petition of James and John Trayner a supersedeas of the execution and a writ of review of the action were granted by the Superior Court; that the bond declared on was executed and given as a condition precedent to the issuing of the supersedeas, that the writ of review was duly entered and prosecuted to final judgment in the Superior Court; and that at the trial upon the review, the present plaintiff, having discontinued against James Trayner, recovered judgment against John Trayner for an amount of damages larger than the amount for which he recovered damages in the original suit.</p> <p>The plaintiff’s attorney testified, against the defendants’ objection, “ that at the trial upon review some person, other than himself, suggested the death of James Trayner, and that the presiding judge then suggested the discontinuance against him.” But it appeared that the records relating to said review contained no such suggestion, and that the only entry relating to the discontinuance was as follows: “And now the said Happeny by leave of court discontinues as to said James Trayner.”</p> <p>Upon the foregoing facts the judge found for the plaintiff, and reported the case for the consideration of this court. If the plaintiff was entitled to recover against the defendants in this action, he was to have judgment for the amount of the judgment recovered by him against John Trayner in the action upon review, with interest, otherwise judgment was to be entered for the defendants.</p>

<p>Petition for a writ of review. At the hearing in this court, before Colt, J., it appeared that in an action brought by Storer against one Clogston in the Police Court of Lowell, the Massachusetts Cotton Mills were summoned as trustees; that the petitioner was an adverse claimant of the funds in the hands of the trustees, was admitted a party to the suit, so far as respected her title to" the goods, effects or credits in question, and was adjudged to have maintained her claim; and that from this judgment Storer appealed to the Superior Court.</p> <p>The judge found that the petitioner, without fault on her part or on the part of her counsel which should deprive her of the review, failed to enter her appearance in the Superior Court and was defaulted; and that the supposed trustees were charged upon their answer and paid over the funds in their hands upon an execution issued by the Superior Court against Clogston.</p> <p>The respondents objected that upon these facts no review should be granted, because the same issue of fact joined in the original suit could not be tried in this review, and because no judgment could therein be rendered which would be effectual to give the petitioner the relief she sought.</p> <p>The judge reserved the case for the consideration of the full court. If the respondents’ objection was well taken, the petition to be dismissed; otherwise the review to be granted, to be tried in this or in the Superior Court, as the court might order.</p>

Contract, by the administrator of the estate of Parthenia Foss.

Habeas corpus to the keeper of Suffolk jail, who made return that he held the prisoner, Daniel C. Davis, imprisoned by virtue of an execution issuing from the Superior Court. At the hearing, before Morton, J., the following facts appeared: In 1861 Davis was arrested on an execution issuing out of the Police Court of the city of Boston on a judgment in favor of A. H. Wildes, and was taken before a master in chancery.

<p>Bill in equity to restrain the defendant from building a house upon his land on Auburn Street in Cambridge, within eight feet of the street. The case, as it appeared from the pleadings and agreed facts, upon which it was reserved by Morton, J., for the consideration of the full court, was as follows:</p> <p>The plaintiff, in 1834, conveyed to John Nudd a parcel of land in Cambridge, bounded north on Magazine Street, east on land of John McDuffie, south on other land of the plaintiff, and west on Auburn Street, upon the condition “ that the grantee, nor hia heirs or assigns, will not at any time build or permit to be built any building upon said lot, nearer to either of said streets than eight feet, or nearer to the two other boundary lines than two feet.” On April 8, 1864, long before which time this land had been divided into three lots, each fronting on Auburn Street, Mary W. Niles, wife of Stephen R. Niles, had become, by mesne conveyances, the owner of one of these lots, and on that day the plaintiff executed and delivered a deed in which, after reciting the conveyance to Nudd of the said parcel of land, and the condition in the deed thereof contained, she, in consideration of one dollar paid by Mary W. Niles, and other good considerations, released “ to her, the said Mary W., and all and sundry the persons who hold any right, title, interest or estate in and to the aforedescribed piece of land or any parcel thereof, their respective parcels of said land according to their respective rights, titles, interests or estates, free and discharged from said condition forever. To have and to hold their several parcels aforesaid to them the aforesaid releasees, their heirs, executors, administrators and assigns, respectively discharged as aforesaid forever. Provided, nevertheless, that no building shall ever be erected or suffered to stand upon the aforedescribed piece of land or any parcel thereof contrary to the provisions of said condition; but a breach of this prohibition shall in no case work a forfeiture, but shall be conclusively deemed a nuisance, for which I, my heirs or devisees, shall be entitled to enter and abate without process of law, and shall likewise be entitled to damages against the party or parties offending, but against no others, and also to any and all other remedies at law or in equity.” And this deed was recorded.</p> <p>On June 18, 1872, Martin Whitney, who by mesne conveyances had become possessed of another of said three lots, conveyed it to the defendant.</p> <p>At the time of the deed from the plaintiff to Mary W. Niles, the then owner of the defendant’s lot did not know of said deed, and neither he nor any of those succeeding him in the ownership of the lot ever consented thereto.</p> <p>The defendant built a house on his lot within eight feet of Auburn Street.</p>

Two petitions for a jury to assess damages caused to the estates of the petitiouers by reason of the respondents raising the grade of Fourth, Pearl and Cherry streets in Chelsea. Trial on both petitions was had before a sheriff’s jury, and verdicts were returned for the petitioners.

Two ACTIONS OE TORT for obstructing a private way called Cherry Street Place, in Newton, by digging a ditch therein. In the declaration in each case the first count alleged that the plaintiff was seised in fee of one half of Cherry Street Place, the second count alleged that he had a right of way in said place.

Tort against Stephen C. Kendall, Willard Walcott and Darius Dow, for breaking and entering the plaintiff’s close and demolishing his ice-house.

<p>The plaintiffs’ horse and wagon were backed up to the sidewalk in front of their shop and extended half across the highway. The horse was fastened by a strap and weight. While the plaintiffs, who were the only persons in charge of the team, were engaged in putting a barrel into the wagon, the defendant’s runaway horse ran into the plaintiffs’ horse. Held, in an action to recover for the injury to the plaintiffs’ horse, that the judge rightly refused to rule, as matter of law, that the plaintiffs were not in the exercise of due care.</p>

<p>The objection that a demurrer to a bill in equity is not accompanied by the certificate required by the Gen. Sts. c. 113, § 5, cannot be taken after the case has been reserved on bill and demurrer.</p> <p>A bill in equity by A. and his wife against B. and his wife alleged that B. promised to convey a lot of land to A.’s wife free from incumbrances ; but that he fraudulently gave her a deed of only part thereof; that he fraudulently induced the plaintiffs to give his wife a mortgage on the land conveyed; that also, A. owing B. a certain amount, B. induced the plaintiffs to give his wife a promissory note for more than was due; that he entered in his wife’s name to foreclose the mortgage; that a suit was brought on the note in the name of an indorsee, but for the benefit of B.; that judgment was recovered in this suit against the plaintiffs ; and that the equity of redemption of A.’s wife in the land was sold on execution, and was bought by B., who had the deed made to his wife. There were other frauds of B. alleged; but the prayer was for an account, and that upon payment of the amount found due the defendants might be decreed to execute to A.’s wife a deed of the land free from incumbrances, to discharge the mortgage, and to cancel the note and judgment. There was no allegation of any fraud on the part of B.’s wife. Held, on demurrer (1), that the husbands and wives were all properly joined; (2), that the bill was not multifarious ; (3), that no offer of payment of what should be found due was necessary; and (4), that the plaintiffs had no adequate remedy at law.</p>

<p>A deed by a man and wife of her land, made when he was insane, is, under the Gea St*, c. 108, § 3, void, and not merely voidable.</p> <p>In a writ of entry by a woman to recover land from one to whom she and her husband have given a deed thereof, on the ground of her husband’s insanity, the order of a judge of probate under the St. of 1862, c. 223, § 3, committing the husband to a lunatic hospital, is not admissible to prove his insanity.</p>

Appeal by Emeline W. Frobisher and Georgianna Everett, only sisters and heirs of Antoinette E. Mansfield, wife of William D. Mansfield, from a decree'of the Court of Probate, allowing an instrument, dated April 14, 1870, as her last will. By this instrument she gave all her estate to her husband and appointed him her executor. At the trial, before Morton, J., two issues were framed for the jury: First. Whether she was of sound mind when she executed the instrument. Second.

Petition for a certiorari to be directed to the respondents, ordering them to return 'into this court the record of their doings under the St. of 1869, c. 266, in the assessment of the expense of repairing Malden Bridge, and alleging that the assessment on the petitioners was unlawful.

Contbact on an account annexed, the items of which were for glass ware sold and delivered. Trial in the Superior Court, before Brigham, C. J., without a jury, who reported the case for the consideration of this court substantially as follows: The defendants were incorporated in 1867, under the Gen. Sts. c. 61.

<p>II the seller of a chattel accepts the promissory note of the buyer’s agent, knowing him te be such agent, in payment, intending to receive it as payment and to give an exclusive credit to the agent, it operates as payment, and, upon its dishonor, he cannot recover the price of the chattel from the buyer.</p>

<p>A. provision dealer had his shop in N., but most of his customers lived in W., and he weighed and measured the provisions from his market-wagon as he delivered them to hia customers. His weights and measures were sealed in W., but not in 2sf. Held, that they were not sealed in the town where he had his “usual place of business” within the St. of 1870, c. 218, § 1, and that he could not recover for goods sold by them.</p>

Tort by a servant against his masters to recover for injuries occasioned by his falling into a barrel of hot water which the defendants had negligently put and allowed to remain in the ground. Writ dated February 24, 1871.

<p>Misconduct of the libellant may be a sufficient defence to a libel for desertion, although not sufficient to support a libel for divorce by the libellee.</p> <p>A libel by a wife against her husband for a divorce from bed and board on the ground of extreme cruelty and gross and confirmed habits of intoxication contracted since marriage, was dismissed. Subsequently the husband brought a libel against the wife for desertion. Held, that she could introduce evidence of his cruel and abusive treatment, not amounting to extreme cruelty, and of his gross habits of intoxication.</p>

The first of these cases was an appeal, by Harriet M. Shannon, from the decree of the Probate Court ordering that a copy of the will of Oliver N. Shannon, late of Terre Haute, in the State of Indiana, should be filed and recorded, and that letters testamentary should be issued to Mary C. Shannon, as executrix of the will.

<p>A testator gave his executor power to sell land covered by a mortgage; the executor caused A. to take an assignment of the mortgage, furnishing him with the money needed; he then sold part of the land, and had A. execute a release of the mortgage on the part sold; and afterwards, for a consideration paid to himself, he caused A. to assign the mortgage to the plaintiff. Held, in an action by the plaintiff, under the Gen. Sts. c. 140, §§ 1, 3, against the testator’s devisees, for the possession of the mortgaged premises, that evidence that the money furnished by the executor to A. was his own, and did not belong to the testator’s estate, was admissible; and that a ruling that the mortgage was discharged was erroneous.</p> <p>A. held a mortgage in trust for B.; at the request of B., A. executed an assignment of the mortgage to C. and delivered the assignment to B. who put it on record; several years afterwards B. delivered the assignment to C.’s attorney, and C., who then first learned of the assignment, gave the attorney a power to enter to foreclose. Held, that C. could maintain an action against the mortgagor, under the Gen. Sts. c. 140, §§ 1, 3, to recover the premises although B. went into insolvency before he put the assignment on record.</p> <p>The owner of land gave a promissory note, payable on demand, secured by a mortgage on his land, and died; his executor bought the mortgage with his own money, and had it assigned to A. The executor received from the testator’s estate money more than enough to pay off the mortgage, but he applied part of the money in paying off other debts. Afterwards A., at the executor’s request, assigned the mortgage to C. Held, in an action, under the Gen. Sts. c. 140, §§ 1, 3, by G. against the testator’s devisees, to recover the mortgaged premises, that to sustain a defence of payment on the ground of the con* duct of the executor, the burden of proof was on the defendant to show that the execute* received money from the estate which he might have applied in discharge of the mort* gage debt and did not apply in discharge of other debts.</p>

<p>Contract against the makers of a promissory note payable to Clark, Smith & Company, or bearer. Trial in the Superior Court, before Pitman, J., who, after a verdict for the plaintiff, allowed the following bill of exceptions:</p> <p>“ Among other defences the defendants claimed that the note was obtained from them by the fraudulent representations of the original payees as to furnishing certain patented machines to them for sale, and that the plaintiff took the note with notice of its infirmity and not in good faith. The plaintiff, who was a New Hampshire farmer, testified that he took the note from his nephew, one of the payees, before it was due, in good faith, and for value; giving a detailed account of the transaction. Both parties claimed that the evidence of the plaintiff tended to support their respective positions; and the defendants also offered evidence tending to show the fraudulent inception of the note.</p> <p>“ Among the instructions asked by the defendants were the following : 11. It is a presumption of law that a person who procures a note by fraud will place it in the hands of another person to sue upon it. 2. If the jury find that the note was obtained of the defendants by fraud, and that the plaintiff purchased it of the party so obtaining it, and under such suspicious circumstances as would have induced a man of ordinary care and prudence to inquire into the consideration of the note and how it was obtained, and that at the time of such purchase the plaintiff could have easily ascertained these facts, and yet bought the note without making any inquiry in regard to them, he cannot recover.’</p> <p>“ The judge declined to give either of these instructions; saying to the jury in regard to the first, that there was no presump^ tian of law in the matter, but that the suggestion of counsel as to the course of human conduct was for their consideration and the application of their judgment and experience; but that whatever might be the conduct or motives of the party obtaining the note, it was immaterial unless the plaintiff conspired with him or took the note in bad faith; that as to the second prayer the law did not impose the duty of inquiry upon the taker of negotiable paper; that the plaintiff would not lose his right to recover by mere carelessness or the failure to make such inquiries as should seem to the jury to be prudent; but that there might be such recklessness as would be inconsistent with honesty of purpose and good faith; and that the jury might consider the points suggested in the prayer in connection with all the circumstances of the purchase in passing upon the true issue — whether the plaintiff in fact purchased without knowledge of any infirmity in the note and in good faith.”</p> <p>The defendants excepted to the refusal to give the instructions prayed for and to those above substituted therefor.</p>

Appeal by Lucy A. Haynes from a decree of the Probate Court, allowing the first and final account of the executors of the will of Hainan Smith. The executors moved to dismiss the appeal on the ground that the appellant was not interested in the account.

Writ oe entry to recover a parcel of flats in Prison Point Bay, lying between the old burying ground in Charlestown and low-water mark. The demanded premises are shown on the plan in the margin. At the trial in the Superior Court, before Wilkinson, J., it appeared that the demandants acquired title to the demanded premises in 1633 by grant from the Colony. The tenant introduced in evidence the following extracts from the records of the town of Charlestown: “ 1648.

<p>The mayor and aldermen of a city rejected the vote of a ward at a meeting held under tne St. of 1871, o. 334, as illegal, and ordered the city clerk not to record the return. Held, on a petition, to which the mayor and aldermen were not parties, for a mandamut to the clerk directing him to record the return, that the writ ought not to issue.</p>

Two ACTIONS OF TOBT, the first against Emery for the conversion of a wagon; the second against Ripley, for the conversion of a pair of harnesses. The cases were tried together in the Superior Court, before Rockwell, J., who allowed the following bill of exceptions: “ It was admitted that a demand was made upon the defendants by the plaintiff before action, and a refusal was made by them.

<p>A woman was driving in the daytime, with due care, a horse which would sometimes shy but had not a vicious habit of shying, along a highway twenty feet wide on the top of an embankment. Owing to a depression in the highway, filled with mud and water, the travelled rut, along which she drove, was within fourteen inches of the edge of the embankment. There was no railing on the edge. By reason of the horse shying, the travelled way being so near the edge, and the want of railing, her wagon was overturned and she was injured. Arbitrators, to whom was referred a claim by her against the town bound to keep the highway in repair, found the above facts, and also that the highway was defective in having the travelled way so near the edge without a railing, and tho* the town knew the defect. Held, that these findings would warrant an award in favor of the woman.</p>

Contract for necessaries furnished to the plaintiff for himself and his family. The Hamilton Manufacturing Company were summoned as trustees of the defendant, and answered that they owed him $39.61.

<p>At a meeting of a school district, called by a warrant containing an article “ To see if the district will raise money to pay debts of the district, or act thereon,” the district may vote “to authorize the treasurer to borrow money to pay debts of the district; ” and under this vote the treasurer may borrow money at seven per cent. ; and if he gives the promissory note of the district therefor, such note, even if not negotiable, is evidence for the payee of money lent.</p> <p>A promissory note, purporting to be made by the Inhabitants of School District lío. 5 in a town, and signed “A. B., Treasurer of District lío. 5,” is the promise of the district.</p> <p>To an action against a town by a creditor of one of its school districts, which were abolished by the St. of 1869, c. 110, it is no defence that the town did not deduct the debts of the district from the amount it remitted to the district, as authorized by the St. of 1869, c. 423.</p> <p>A statute imposing upon towns the debts of their school districts which have been abolished by a previous statute, passed at the same session of the Legislature, is constitutional.</p>

<p>CONTRACT with counts in tort. The first three counts were in contract. The first alleged that the plaintiff intrusted to the de« fendant a United States bond for $500, to be kept for the benefit of the plaintiff until called for ; that the defendant agreed so to keep it and to deliver it to the plaintiff on demand, in consideration of services which had been rendered by the plaintiff to the defendant; and that the plaintiff demanded it and the defendant neglected and refused to deliver it. The second count was for money had and received, with a specification that it was for cash intrusted to the defendant to buy a United States bond for the plaintiff. The third count was for money had and received, with a specification that it was for cash received by the defendant from the sale of a United States bond for $500 belonging to the plaintiff. The other counts, from the fourth to the seventh, were in tort. The fourth alleged that the plaintiff intrusted to the defendant a United States bond for $500, to keep for the plaintiff and to deliver it to him on his demand therefor, but that the defendant, upon demand made by the plaintiff, refused to deliver it, and converted it to his own use. The fifth alleged that the plaintiff intrusted to the defendant a United States bond for $500, to keep for the plaintiff and to deliver it to him on his demand therefor, but that he did not deliver it to the plaintiff, although the plaintiff demanded it, but so negligently and carelessly kept it, that he lost it. The sixth count alleged that the defendant converted to his own use a United States bond for $500, the property of the plaintiff. The seventh count alleged that the plaintiff intrusted to the defendant a United States bond for $500, to be kept and disposed of as the plaintiff should direct; and that the defendant did not dispose of it according to any direction of the plaintiff, but wholly withheld it, although the plaintiff requested the defendant to deliver it to him.</p> <p>The declaration closed thus : “ And the plaintiff says that the counts in tort and in contract herein are for one and the same consideration.”</p> <p>The defendant demurred on the ground that counts in contract and tort were improperly joined. The Superior Court overruled the demurrer, and the defendant appealed.</p> <p>At the trial in the Superior Court, before Pitman, J., it appeared “ that at the time of the transaction between the plaintiff and the defendant relating to the bond, the plaintiff was about to proceed upon a voyage to the East Indies, which voyage lasted between three and four years ; that the defendant kept the bond in his safe with his own papers and effects for nearly a year after the departure of the plaintiff on the voyage ; that when the first six months’ interest on the bond became due, the defendant’s bookkéeper cut the coupon therefor from the bond and sent it by mail to the plaintiff’s wife at West Barnstable; that she, by letter to the bookkeeper, acknowledged the receipt thereof; that in the spring of 1865 the defendant, finding the bond in his safe, directed his bookkeeper to send it to the plaintiff’s wife at West Barnstable, but gave no directions as to how it was to be sent; that the bookkeeper mailed it to the plaintiff’s wife; and that it never reached her.”</p> <p>The plaintiff testified “ that he requested the defendant to purchase the bond for him and to take care of it, or keep it for him, (but was unable to say which form of expression was used;) that the defendant agreed to do as he requested; that he expected the interest on the bond, as it became due, to be sent to his wife at West Barnstable, or held and placed to his credit by the defendant ; and that he never gave the defendant or any agent of his direction to send the bond to his wife.”</p> <p>The plaintiff called his wife as a witness, and asked her whether she ever gave the defendant or his bookkeeper any directions or orders to send the bond to her, to which question she replied she had not.</p> <p>It was admitted by the plaintiff that the defendant was to receive no compensation for his services, and that whatever the defendant’s undertaking in relation to the bond was, it was gratuitous.</p> <p>Among other things the defendant asked the judge to instruct the jury as follows : “ If the defendant undertook and agreed in relation to the bond as the plaintiff alleged, and afterwards, without authority express or implied from the plaintiff, gave directions to his bookkeeper to send the bond to the plaintiff’s wife, and the land was sent to her by mail and lost therefrom, the defendant is not liable to the plaintiff for the value thereof, unless the jury are of the opinion that such directions by the defendant were fraud ulent, grossly negligent or grossly careless. The fact that the plaintiff offered his wife as a witness, and asked her whether she at any time gave directions or orders that the bond be sent to her, is one from which the jury may infer that she was the agent of the plaintiff during his absence at sea.”</p> <p>The judge declined so to instruct the jury, but instructed them “ that the plaintiff might recover by proving either gross negligence of the defendant in the care and custody of the plaintiff’s property, or, without respect to 'the particular degree of care shown, by proof that the defendant took the bond upon the agreement to keep it for the plaintiff, and thereafter, without authority express or implied, sent it to the plaintiff’s wife or directed his clerk to do so, and the defendant thereby lost it by a disposition of the bond contrary to the original undertaking.” Upon the other branch of the case, the judge instructed the jury as to what would constitute gross negligence in a manner not excepted to.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

Contract to recover the amount of a tax assessed by the defendants on the plaintiff, for the year 1869, and paid by him under protest. At the trial in the Superior Court, before Brighami, C. J., the following facts appeared: The plaintiff was born in Brewster, and continued to reside there until 1867. He was a shipmaster, and arrived at Brewster from a voyage in July 1867.

<p>J. S. owned a parcel of land; on the westerly part of which was the house in which he lived, with the land about it inclosed by a fence, a well inside the inclosure, and a bam. He built a new house on the easterly part, moved into it, occupied the bam and used the well as before, occupied part of the L of the old house, as he had for many years, as a carpenter’s shop, but leased the old house and the inclosed land about it: six years afterwards he made his will and died, devising his “ homestead ” to his wife. Held, in a writ of entry to recover the premises, that the above facts would warrant a finding that the old house and the inclosed land about it did not pass under the devise.</p> <p>In a writ of entry by two tenants in common against the third, the demandants may recover damages for mesne rents and profits; and the tenant, compensation for improvements.</p>

Appeal by Nathaniel A. Snow from a decree of the Probate Court ordering the distribution of the estate of Nathaniel Atwood. Hearing before Wells, J., who affirmed the decree of the Probate Court. Nathaniel A. Snow appealed, and the judge reported the case for the consideration of the full court. Nathaniel Atwood died intestate in 1871, and Jesse C. Snow was appointed administrator of his estate. The intestate left no issue, no parents, and no brother or sister.

Contract against the executrix of the will of Alfred Eldridge, for money due from her testator on an account annexed, the items of which were for board furnished to the testator’s minor children. Trial before Brigham, C. J., who, after a verdict for the plaintiff, allowed a bill of exceptions tendered by the defendant. The case is stated in the opinion.

<p>On an indictment against the owner of goods for larceny of them from an attaching officer, evidence is admissible that the defendant intended to leave and did leave with the officer goods enough to satisfy the claim of the attaching creditor.</p>

<p>Indictment for breaking and entering a building with intent to steal therein. At the trial in the Superior Court, before Bacon, J., one Hurley testified against the defendant. There was evidence tending to show that Hurley was concerned in the crime charged, and the defendant contended that he was an accomplice. The judge, against the defendant’s objection, instructed the jury that he was not to be regarded as an accomplice, unless “ he was an admitted accomplice or proved so beyond a reasonable doubt.” The jury returned a verdict of guilty, and the defendant alleged exceptions.</p>

<p>Indictment returned into the Superior Court for Suffolk at May term, 1871, holden at Boston, as follows: “ The jurors for the Commonwealth of Massachusetts on their oath present that some person or persons to the jurors aforesaid unknown, on the twentieth day of November, in the year of our Lord one thousand eight hundred and sixty-nine, at Boston aforesaid, with force and arms, a certain building there situate, to wit, the banking-house of the Boylston National Bank of Boston, in the night-time of said day, did break and enter with intent then and therein to commit the crime of larceny, the said person or persons to the jurors aforesaid unknown, so breaking and entering with said intent, then and there not being armed, nor arming themselves in said building with a dangerous weapon, nor making any assault upon any person then being lawfully therein, no person lawfully therein being put in fear, and divers promissory notes, payable to the bearer on demand, current as money in said Commonwealth, of the amount and of the value of one hundred dollars, a more particular description of which is to the jurors unknown, and divers internal revenue stamps of the United States, a more particular description of which is to the jurors aforesaid unknown, of the value of nine hundred dollars, of the property, goods, and chattels of the said -Boylston National Bank of Boston, in said building then being found, did then and there in said building feloniously steal, take and carry away, against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided.</p> <p>“ And the jurors aforesaid, upon their oath aforesaid, do further present that William A. Glover and Alonzo Ainsworth, otherwise called Dick Broker, late of Boston aforesaid, in the county aforesaid, laborers, before the said felony and burglary and breaking and entering said building with said intent was committed, in form and manner aforesaid, to wit, on the first day of November in the year of our Lord one thousand eight hundred and sixty-nine, at Boston aforesaid, in the county of Suffolk aforesaid, did feloniously and maliciously counsel, hire and move, incite, command, and in other ways procure said person and persons to the jurors aforesaid unknown, so breaking and entering said building with said intent, the said felony and burglary and breaking and entering said building with said intent, in manner and form aforesaid, to do and commit, and became and were then and there and thereby accessories thereto, to wit, to said felony and burglary^ and breaking and entering said building with said intent, before the fact. Against the peace of the Commonwealth, and contrary to the form of the statute in such case made and provided.”</p> <p>The defendant Glover was tried on this indictment in the Superior Court, before Brigham, C. J. Before the jury was empanelled, he moved that the indictment might be quashed for the following reasons: “ Because it is not sufficient in law upon which to find the defendant guilty of the offence charged; because there is no allegation of who the principal was that committed the principal offence; because it is not alleged that the person who committed the principal offence has been tried of found guilty, and hence the defendant cannot be tried as accessory before the fact; because there is no allegation against the principal person who committed the principal felony, and that the accessory is to be tried with the principal, or that he is the principal, or committed a substantive felony; because the indictment does not charge any person, known or unknown, with the commission of the principal felony, with substantial precision and certainty ; because the indictment does not show to whom the defendant was accessory; and because the second count is wholly inadequate to charge the defendant with a substantive felony in. that it does not describe in any manner the felony of which the defendant is charged to have been accessory, and the allegations are insufficient to import the language of the first count into the second.” The judge overruled the motion.</p> <p>There was evidence tending to show that on the morning of Monday, November 20, 1869, the vault of the Boylston National Bank was discovered to have been broken open, and a large lot of property stolen; that the entrance had been made through the wall of the building where another building adjoined it; that the aperture had been made through the brick walls of both buildings from a room in the adjoining building; that this room had been occupied for some time by a man calling himself Jvdson; that he was in the room on Sunday; that noises were heard in the room on Sunday; and that, besides Judson, two other men, named Corliss and Wilson, were concerned in the breaking and entering.</p> <p>Thomas H. Pratt testified that he was introduced to the defendant as a dealer in stolen goods; that about a week before the commission of the crime the defendant told him that “a job was coming off, and he was to have the sale of the stuff; ” that on the Thursday before the crime, the defendant pointed out to him the Boylston National Bank, and said, “ that bank is going to catch hell in a few days; ” and that on the next Monday, the defendant brought him a large number of bonds which he bought. Some bonds were shown to the witness, and he identified them as among those sold to him by the defendant, and it was afterwards proved that they had been in the vault of the bank.</p> <p>The defendant contended that there was a variance between the allegation and the proof in regard to the persons who committed the principal felony, and asked the judge to rule that it must be proved affirmatively by the Commonwealth that it was committed by persons whose names were not disclosed to the grand jury. But upon this subject the judge instructed the jury as follows : “ If the names of the persons who committed the crime of breaking and entering were disclosed and known to the grand jury at the time when the indictment was found, their names ought to have appeared in the indictment, and their absence from the indictment, if so known and disclosed, entitled the defendant to an acquittal; but the fact that such names were unknown to the grand jury need not be proved affirmatively by the Commonwealth ; but if there is evidence on that matter in this case, the burden of proving that such names were not disclosed to or known by the grand jury is upon the Commonwealth.”</p> <p>The defendant asked the judge to instruct the jury, as matter of law, that Pratt was to be considered an accomplice, and within the rule as to corroboration, but the judge declined so to instruct them, and instructed them as follows : “ If Pratt was informed by the defendant that the offence of breaking and entering, alleged in the indictment, was to be committed, and that stolen property to be thus procured was to be disposed of by the defendant, which Pratt engaged to receive or buy, he was an accomplice to the crime, as a person who had the criminal purpose of receiving stolen property, and concealing the larceny of the same. The considerations affecting the testimony of an accomplice do not require that an accomplice should appear to be an equal in criminality of the person of whose criminality he testifies; but the fact that he has not participated equally with that person in the criminality testified of is to be considered by the jury in determining how far it is safe to accept and act upon the testimony of an alleged accomplice.” Instructions as to what would amount to corroboration, if the jury should find Pratt to be an accomplice, were given, to which no objections were made.</p> <p>The defendant asked the judge to instruct the jury “ that unless the jury should find that the principal felony was committed in the night-time, the defendant could not be convicted; that they could not so find, unless they found that the building named in the indictment was feloniously broken and entered in the nighttime ; that it was not sufficient if part of the breaking through the wall was done in the night, unless the entry was also made in the night; that the offence was not completed until there was an actual entry within the building; and that in order to satisfy the indictment, it must appear that such entry was made in the night, and the defendant was accessory before the fact to that offence.”</p> <p>The judge did not instruct the jury as requested, but upon this subject instructed them as follows: “If the brick walls of the building occupied by the Boylston National Bank were in the night-time broken, and any entry made into the walls so broken by the persons who broke said walls, and those acts were for the purpose of stealing the property within said walls, the breaking and entering alleged in the indictment would be proved, notwithstanding such breaking and entering were acts of a series of acts by the same person for the same purpose, some of them in the daytime, and some of them in the night-time, and were not the final acts by which an entry into the building of said bank, and access to the property therein intended to be stolen, was consummated ; and notwithstanding such final acts were in the daytime. A person who counselled, hired or otherwise procured such acts of breaking and entering, would be proved an accessory before the fact to the same, if not being present at such acts, he knew that such acts of breaking and entering would be partly by night and partly by day, in consummating the breaking and entering, and consummating the purposes of such breaking and entering. A person who, knowing the purpose of another person to commit a specific crime, gives advice to that other person as to the mode or method of the crime, or encouragement by engaging to assist in disposing of the fruits of the proposed crime, or in any mode influencing the commission of it, counsels the proposed crime.”</p> <p>The jury returned a verdict of guilty against the defendant, and he alleged exceptions.</p>

Indictment for an assault and battery upon Joseph S. How-land. The defendant filed a plea alleging that he had been convicted of the assault and battery on a complaint before a justice of the peace.

Complaint to the Municipal Court for the Southern District of the city of Boston, by Benjamin Merriam, a constable of said city, for a violation of the Gen. Sts. c. 26, § 47, relating to the public health, by neglecting to give notice to the board of health of Boston that a person within the family of the defendant, who lived in Boston, was taken sick of small-pox.

<p>Complaint for wilfully and cruelly overdriving a horse.</p> <p>At the trial, on appeal, in the Superior Court in Suffolk, before Devens, J., the Commonwealth introduced evidence that the defendant hired the horse from a livery stable and overdrove it, and it appeared that the defendant was at the time a minor The defendant introduced evidence that he had not overdriven the horse, and that he at any rate had not wilfully done so ; and also to what extent he was acquainted with horses and had to do with them.</p> <p>The defendant offered evidence tending to show that the owners of the stable had been requested by his parent, since the previous April, not to let horses to him, but the judge excluded it.</p> <p>The defendant’s mother testified, as a witness for him, that she had seen him driving, and that he was not then overdriving the horse. On cross-examination, the Commonwealth inquired of her about a conversation between her and one Baker, a witness for the Commonwealth, and whether she had not told him that her son was guilty, and she would advise him to plead guilty. She denied having said so, and stated what she did say in that conversation. The defendant reexamined her as to what Baker had said. The Commonwealth then offered to show by Baker that she told him that her son was guilty, and she would advise him to plead guilty. The defendant objected; but the judge allowed Baker to testify only to her saying that the defendant was guilty, as tending to contradict her testimony that she had not seen him overdriving the horse.</p> <p>The defendant asked the judge to instruct the jury as follows: “ The Commonwealth must prove not only that the defendant has overdriven this horse, but that he knew he was overdriving, and actually intended to do so. It is not enough to show that the defendant ought to have known that this horse was overdriven, but it must appear that he actually did know, and intended to do it. If he was not accustomed to have to do with horses, and not acquainted with the proper mode of treating them, this is to be considered by the jury in deciding whether he actually intended to overdrive this horse.”</p> <p>The judge declined to give these instructions as requested, and instead thereof instructed the jury “ that the Commonwealth must prove that the defendant overdrove the horse knowingly and intentionally; that the defendant, like all other men, was presumed to know what he did, and to intend the natural and necessary results of his acts ; that if, in the proper exercise of his own judgment, he thought he was not overdriving the. horse, he must be acquitted; and that upon these instructions the jury ' might come to the conclusion that it was a question of fact to be determined by the result to which they should come as to the truth respectively of the testimony introduced by the Commonwealth and by the defence.”</p> <p>The jury returned a verdict of guilty, and the defendant alleged exceptions.</p>

<p>On an indictment for sodomy with J. S., evidence was admitted, against the defendant'» objection, that, a week after the alleged crime, tnv nefen&ant, in soliciting a hoy to commit a like offence, said “he had done it witn muer boys.” The judge instructed the jury that if the defendant in this language intended to include J. S., the evidence was competent; but if he did not so intend, they were to exclude it from their consideration. Held, that the defendant had no ground or exception.</p> <p>On an indictment for sodomy with J. S-, >. 13. testified to the commission of the crime at a certain time in the defendant’s rooms- and that he heard a noise at an outer door at the foot of the stairs to the rooms; that the defendant went-down and unlocked the door, and said to some one that he had locked >t oecause he was having a nap; and that he saw a woman pass by the door of the defendant’s rooms, and go up stairs. A woman who lived over the defendant’s rooms testifica that she came at said time to the outer door, which was always kept open, and found it locked; that the defendant came down and said he locked the door, because he was having a nap; and that she went up stairs past the door of his rooms. A physician testified that he was called to J. S., who had taken poison, and that after his return the defendant came to the office of the witness and asked if J. S. had said why he took poison. A boy testified that the defendant, a week after the alleged crime, solicited him to commit a like offence, and said he had done it with other boys. Held, that this was sufficient evidence in corroboration of J. S. to warrant a conviction, even if J. S. was an accomplice.</p> <p>On an indictment for sodomy with J. S., J. S. testified to the commission of the crime, but denied his voluntary participation therein. The district attorney admitted in argument that J. S. substantially acquiesced in the act, and must be regarded as an accomplice and in need of corroboration. The defendant requested the judge to rule that it followed from this admission that J. S. knowingly and wilfully testified falsely; and that therefore the defendant could not be properly convicted upon his testimony. The judge refused so to rule. Held, that the defendant had no ground of exception.</p>

Wbits of ebbob to reverse judgments of trial justices. In the first ease it appeared by the record that the defendant was tried on a complaint alleging that he “ did feloniously take and steal ” some hay, “ against the peace of said Commonwealth and the form of the statute in such cases made and provided ; ” and that he was adjudged guilty. The error assigned was that the complaint contained no averment that the hay was carried away by the defendant.

<p>Complaint to the Municipal Court of the city of Boston, by William M. Strachan, “ state constable,” alleging that John Harvey, on May 8, 1872, at Boston, “ did keep intoxicating liquors, the said intoxicating liquors being other than ale, porter, strong beer, lager bier or cider, with intent to sell the same in this Commonwealth,” not being lawfully authorized.</p> <p>The record of the Municipal Court alleged that the defendant was brought before the court by virtue of a warrant to answer to the Commonwealth on the complaint of William M. Strachan, “ state constable; ” that on May 11,1872, he pleaded not guilty; that the further consideration of the complaint was continued to May 14; that after hearing the testimony of witnesses and the defence of Harvey, the court adjudged him guilty, and sentenced btm ; and that he appealed. The copy of the record sent to the Superior Court was attested by “ Charles A. Barnard, Assistant Clerk.” In the Superior Court, before the jury were empanelled, the defendant moved to quash the indictment for the following reasons:</p> <p>Because it did not appear with sufficient certainty whether the defendant was charged with any violation of law whatsoever, or whether he was charged with having kept on May 8, 1872, ale, porter, strong beer, lager bier or cider, with intent to sell said ale, porter, strong beer, lager bier or cider, or whether he wag charged with keeping intoxicating liquors other than ale, porter, strong beer, lager bier or cider, with intent to sell said other intoxicating liquors in violation of law; because it did not appear with sufficient certainty that the defendant was charged with keeping intoxicating liquor with intent to sell in this Commonwealth ; because the office and addition of the complainant is misdescribed and misstated, and there is no officer known to the law as state constable; because the copy of the complaint, and the copy of the judgment of the Municipal Court were not certified to be true copies of the records of said court by the clerk thereof, and it did not appear by the record of the Municipal Court that the clerk thereof was unable to act or was absent from his duties, or that there was any legal or necessary reason for the assistant clerk to act in his place and stead in any part of the proceedings; and because it did not appear by the record that the defendant had any trial in the court below, or on what day, if any, he was tried, or that he was present at the trial if any was had, or that he was present at the passing of sentence.</p> <p>Bacon, J., overruled the motion, and the defendant, having been tried and convicted, alleged exceptions.</p>

Complaint to the Municipal Court of the city of Boston, for unlawfully keeping intoxicating liquors with intent to sell. The defendant was convicted and appealed. The copies of the complaint and of the record of the proceedings in the Municipal Court, transmitted to the Superior Court, were attested by an assistant clerk of the Municipal Court.

<p>On the trial, upon appeal, of a complaint for unlawfully keeping intoxicating liquor on a certain day with intent to sell, there was evidence of such keeping at several times, but the Commonwealth relied upon the offence committed upon the day charged; the judge ruled that time was of the essence of the offence, and that the presumption was that the offence was the same as that for which the defendant was convicted in the court below. There was no evidence that the offence was not the same: Held, that although time was not of the essence of the offence, the presumption was as stated; and that therefore the defendant had no ground of exception.</p> <p>On the trial of a complaint for unlawfully keeping intoxicating liquor with intent to sell, a witness was asked “to state, if he knew,” that barrels found in the defendant’s shop “were usually called by any particular name, what that name was he called them,” and he answered, against the defendant’s objection, that he called them whiskey barrels. Held, that this answer might be interpreted as meaning that they were usually called whiskey barrels, and that an exception would not lie to the admission of the evidence, unless the bill of exceptions showed that such was not its meaning.</p>

<p>Indictment under the Gen. Sts. c. 87, §§ 6, 7, charging that the defendant at Natick, on July 12, 1872, without having any license, appointment or authority, first duly had and obtained according to law, to keep intoxicating liquors for sale, and without having any license, appointmbnt or authority, first duly had and obtained according to law, to sell intoxicating liquors, did maintain a tenement for the illegal sale and illegal keeping of intoxicating liquors. At the trial in the Superior Court in Middlesex, . before the jury were empanelled, the defendant moved to quash the indictment because it contained no allegation that the intoxieating liquor therein mentioned was other than ale, porter, strong beer or lager bier ; but Lord, J., overruled the motion.</p> <p>It appeared that the town of Natick, by a vote passed May 17, 1872, under the St. of 1871, e. 334, authorized the sale of ale, porter, strong beer, and lager bier in the town.</p> <p>The jury returned a verdict of guilty, and the judge, at the request of the defendant, reported the case for the consideration of this court.</p>

<p>Indictment under the Gen. Sts. c. 87, §§ 6, 7, alleging that the defendant at Natick, “ on the twenty-eighth day of October, in the year of our Lord one thousand eight hundred and seventy-two, and on divers other days and times between that day and the day of the finding of this indictment,” kept and maintained a tenement for the illegal sale and illegal keeping of intoxicating liquors. At the trial in the Superior Court in Middlesex, before the jury were empanelled, the defendant moved to quash the indictment for duplicity, but Putnam, J., overruled the motion, and the defendant appealed.</p>

<p>Under the Gen. Sts. c. 116, § 13, and the St. of 1866, c. 280, § 3, a police or municipal court has jurisdiction of offences against the Gen. Sts. c. 87, §§ 6, 7.</p>

Complaint to a trial justice in Middlesex for an assault and battery. The defendant was convicted, and appealed. The papers sent to the Superior Court were not attested by the trial justice.

<p>An indictment alleging that the defendant certain goods, in a certain building and in ilia possession of a certain person being found, did steal, sufficiently charges a stealing in the building.</p> <p>A lodger in a dwelling-house went to bed, having placed his clothes on a chair; the defendant took from a pocket of the clothes the key of the lodger’s trunk, opened the trunk, which was in the same room, and stole money therefrom. Held, that the defendant was guilty of larceny in a dwelling-house.</p>

<p>Indictment for an assault on William A. Haines, with intent to Mil.</p> <p>At the trial in the Superior Court in Suffolk, before Bacon, J., Haines testified that he was assaulted on November 26 by the defendant, with a knife, without any provocation given, or words between them j and “ that there had been a previous difficulty of a few weeks’ standing.” On cross-examination, the defendant asked if the difficulty was not that the witness accused the defendant of having stolen $25 from him ? The Commonwealth objected to the question, and the judge did not allow it to be put. The defendant then asked the witness if he had not made the accusation before stated at divers times, and frequently but a short time before November 26. TMs was also excluded. The defendant then asked if the witness had not assaulted and beaten him some three weeks before. The witness answered that they had a fight, but he could not say which struck first. The defendant then sought to examine the witness further as to his assaulting the defendant, but the judge refused to allow it. The defendant contended that he acted in self-defence, and that the evidence excluded was competent, “ especially as bearing upon the subjects of bias, malice, intent, motive, Mnd and degree of force used by the defendant in self-defence, and the arming with and the use of the knife by the defendant in defence.”</p> <p>The defendant called one Mahoney as a witness, and offered to show by him that Haines, in the first fight referred to, was the assailant, and contended that the evidence was competent on the grounds above stated. But the judge excluded it.</p> <p>The jury returned a verdict of guilty of assault without intent to kill, and the defendant alleged exceptions.</p>

Indictment alleging that the defendant, on June 21, 1871, “ did embezzle and fraudulently convert to his own use divers promissory notes payable to the bearer on demand, current as money in said Commonwealth, of the amount and of the value of sixty-five dollars, a more particular description of which is to the jurors unknown, of the property, moneys, goods and chattels of one Henry Smith, the said promissory notes being then and there the subject of larceny, and the said…

Indictment for larceny from the person. At the trial in the Superior Court in Suffolk, before Allen, J., there was no direct evidence of the taking, and no stolen property traced to the possession of the defendant.

<p>Under the Gen. Sts. c 172, § 4, and the St. of 1862, c. 84, the right to challenge jurors per. emptorily in a capital case must he exercised before they are examined as to their interest, bias and opinions.</p> <p>This court, under the Gen. Sts. c. 173, § 7, may grant a new trial in a capital case, after sentence of death passed and a warrant issued by the Governor and Council for its execution.</p>

Habeas corpus to the warden of the state prison, issued August 5,1873. At the hearing before Morton, J., the following facts appeared: The prisoner was sentenced, on December 15, 1865, to the state prison for four years and a half.

<p>Tout for the conversion of seventy-eight bales of cotton.</p> <p>At the trial in this court, before Morton, J., the plaintiff testified that he was owner of the cotton, and authorized a broker to sell it for cash; that on ¡November 27 the broker brought him a sale note thereof to Jenkins Brothers & Chipman; that on November 28 the plaintiff sent to his weigher, and to A. C. Lombard, in whose loft the cotton was stored, written directions to weigh and turn out the cotton; “ that, although he did not know that the cotton was taken possession of by the purchaser, he supposed it would be, under such an order to turn out; that cotton comes from the South, with the producer’s marks of weight, and is exposed to damage in the transit, and to being sanded and falsely packed; that turning out is for the purpose of allowing the purchaser to inspect, reweigh, resample and examine the cotton; that, according to the usage, as understood by him at the time, the purchaser of cotton for cash has ten days within which he is to examine the cotton, and is bound to pay for it at some time within that period; that he had, himself, been for many years a seller of cotton, and occasionally a purchaser; that, within a day or two of the purchase, he received from the weigher the weights of the cotton, and then sent his bill to Jenkins Brothers & Chipman, with a certificate of weights; that, on December 7, not having received his money, he sent for the same to Jenkins Brothers & Chipman, who sent him a check which, on presentation to the bank, was refused payment; that, at the time of the sale, he did not know Jenkins Brothers & Chipman, nor their pecuniary ability, and made no inquiries as to their credit, supposing himself safe, the title of the cotton being in him; that he sent the order to turn out the cotton, understanding that such lelivery was conditional, not intending to part with the title until he got his money; and that he acted in this in conformity to the usage, as he understood it, when sales of cotton are made for cash.”</p> <p>It was proved that Jenkins Brothers & Chipman failed on December 8; that on November 28, the day the cotton was ■ turned out, they removed it, and pledged it to one Hurlburt, to supply the place of other cotton previously pledged to him, which had been taken away; that the defendants bought the cotton of Jenkins Brothers & Chipman, on Saturday, December 5, for “ cash on delivery; ” and that it was delivered to them on Monday, and paid for by them on the next day. Neither of the firm of Jenkins Brothers & Chipman were called as witnesses. The plaintiff demanded the cotton of the defendants on December 15.</p> <p>The plaintiff offered to prove that Jenkins Brothers & Chip-man were largely and deeply insolvent at the time of the purchase ; but the defendants objected, and the judge excluded the evidence.</p> <p>To fortify the plaintiff’s testimony as to his intention in ordering the cotton turned out and put into the possession of the purchaser, the plaintiff called George M. Barnard, and six other merchants and cotton brokers, who were, and had been for many years prior to 1868, and ever since, large dealers in cotton, who testified “ that they knew the usage as to cotton sales at the time of this sale, and long prior thereto; that, in a sale of cotton for cash, it was the usage to allow the purchaser to take possession of the property, and to have the cotton turned out for his examination, and within ten days of the sale he was bound to complete his examination, and pay for the cotton; that the delivery by the seller was a conditional one, for the purposes aforesaid, and did not, and was not intended to pass the title; and that no title passed until the money was paid.” Barnard, who had been many years in the business, testified that the usage arose “ from the nature of the article, from the fact that it is exposed to damage, false packing, and false samples; that it requires to be examined on all sides, which cannot be done in store, nor in bad weather; that sometimes cotton is on shipboard, and delays occur in unlading; that uncertainty and delays resulted from these causes; and that those delays had sometimes extended to thirty days, until the usage of ten days was established, within which the examination. must be made, and the money paid.” It was stated by most of the plaintiff’s witnesses that it was the practice of the purchasers to resell within the ten days, and that such practice was known to the sellers; some of them stated that such sales were understood to be subject to the title of the original seller; others, that the sale was made on the responsibility of the party so selling, and did not divest the seller’s title. Some of the witnesses testified that the usage of trade authorized resale, and that they all did it.</p> <p>The defendants called thirteen witnesses, dealers and cotton brokers, who testified “ that they knew of no such usage as that of a conditional delivery of cotton, in sales for cash, for the purposes of examination, and to be paid for within ten days; that by the usage of the trade all such sales were on a credit of ten days, vesting the property at once by delivery or turning out in the purchaser; that it was frequently the custom, if the purchase money was paid before the ten days, to demand and receive an abatement equal to the interest, and sometimes a bonus beyond interest; that whatever examination was made by the purchaser, was made at the time of turning out and taking possession; and that upon a sale for ‘ cash on delivery,’ it was understood that cash was paid contemporaneously.”</p> <p>The plaintiff’s witnesses, being recalled, testified that no usage existed, or was ever known to them, by which a credit of ten days, or any other credit, was given, in sales of cotton for cash.</p> <p>The plaintiff requested the judge to instruct the jury as follows :</p> <p>“ 1. In legal construction the written contract between the parties is a 6 conditional sale for cash,’ and vests no title in the purchaser until the terms have been complied with, unless it should be shown that the plaintiff knowingly and voluntarily waived the ■ condition. 2. The evidence of the defendant that the legal construction is not the true one, and that by the usage of trade such a contract is a sale on a credit of ten days, cannot be supported unless that usage be proved to be uniform and general; so that if there be a conflict of evidence on this point the defendant cannot by law maintain his defence on that ground, 8. Upon the question whether the plaintiff voluntarily waived the condition, if there be a conflict of evidence upon the question whether there existed a usage to deliver cotton on a cash sale conditionally and for the purpose of examination, yet as this evidence as to usage is offered by the plaintiff to show that his understanding, as stated by him, of a usage, was not baseless, and guided his conduct, it is not requisite that there should be no conflicting evidence as to the usage. 4. In relation to the question of a voluntary waiver of the condition of sale by a delivery of possession, the true inquiry is, What was the intent of the vendor ? Was it to make such waiver ? and not, What was the intent of the vendee, who has nothing to waive. Unexplained, the mere act of delivery may be taken as evidence of such waiver, but it is open to explanation by the vendor.”</p> <p>The judge declined to give these instructions, or either of them, except so far as is contained in his instructions upon the subjects embraced in the prayers, which were, in substance, as follows: “ The written contract, standing alone, imports a sale for cash upon the condition that the cash is to be paid upon delivery; delivery under it is presumptively a waiver of this condition; but such delivery may be conditional, in which case the title does not pass until the condition is performed. In this case, as it is not claimed that there was any expressed agreement that the delivery to Jenkins Brothers & Chipman was conditional, one of the questions is, whether there was a condition by a usage of the trade. The plaintiff contends, as one of the grounds entitling him to recover, that there is a usage of the trade, that in such a transaction as this the delivery is conditional, and by it the title to the property sold does not pass to the buyer until it is paid for. It is incumbent upon the plaintiff to show this. If he has done so, then no title to the cotton in controversy passed to Jenkins Brothers & Chipman; they could give no title to the defendants, and the plaintiff is entitled to recover. If no such usage is shown to exist, then by the sale and delivery the title passed, and the plaintiff cannot recover. Such usage must be shown to be uniform and general. It is not enough that half the trade practise upon tibe usage, if the other half do not.”</p> <p>The jury returned a verdict for the defendants, and the judge • reported the case for the consideration of the full court. If any of the rulings or refusals to rule were erroneous, a new trial to be ordered; otherwise judgment to be entered on the verdict.</p>

Bill in equity by John A. Lowell and nine others, taxable inhabitants of the city of Boston, praying that the defendants might be restrained from issuing bonds under the St. of 1872, c. 364,* on the ground that the statute was unconstitutional. The defendants demurred for want of equity, and the case was heard and reserved by Gray, J., upon bill and demurrer, for the consideration of the full court.

Contract by James M. Cutter, Levi L. Tower, Stephen A. Tower and Isaac L. Kidder, partners, under the style of Cutter, Tower & Company.

<p>Contract. The first count was on an account annexed, the first item of which was to “ amount of cash borrowed, $1000.” Another count alleged that the defendant, for value, gave the plaintiff the following instrument: “ $585 in gold. Boston, December 29, 1868. Pay to Gilman Currier or order five hundred and eighty-five dollars in gold. Joseph W. Davis; ” that the plaintiff presented it immediately to the defendant; that the defendant refused to pay it; and that gold was at that time at a premium of fifty cents on the dollar.</p> <p>At the trial in the Superior Court, at January term 1871, before Putnam, J., the plaintiff offered in evidence a check for $1000 on the National Hide and Leather Bank, dated November 18, 1868, payable to the plaintiff or order and signed by the defendant. He also offered evidence that he never presented this check to the bank; that it was given to him for money lent to the defendant; that it was agreed between him and the defendant, at the time he received it, that it should not be presented to the bank for payment, but was to be held by the plaintiff as evidence of the defendant’s indebtedness, and to be paid by the defendant on demand; and that he demanded payment of the defendant. The defendant objected to the admission of the evidence, but the judge admitted it.</p> <p>It appeared that the plaintiff demanded payment of the note for $585 on January 1,1869, and that the defendant refused it.</p> <p>The defendant requested the judge to rule that the plaintiff could not recover on the check for $1000 ; and that on the nota for $585 he could recover “ only such sum as that amount in gold, with interest to the present time, reduced to currency at the present value of gold, would amount to.”</p> <p>The judge declined so to instruct the jury, but instructed them that the plaintiff could recover the amount due upon the check for $1000, notwithstanding it had never been presented to the bank for payment, if they believed that it was originally agreed between the parties that it was to be held as evidence of the loan, and not to be so presented; and that the plaintiff was entitled to recover upon the note for $585 such sum as that amount of gold was worth in currency, on January 1, 1869, to which sum they would add interest from that date.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

CosteACT on a recognizance entered into, under the Gen. Sts. e. 124, § 10, by Oliver H. Flanders, as principal, and the defendant, as surety, conditioned that Flanders, who had been arrested on an execution in favor of the plaintiff, would, within thirty days, “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 fixed for his examination, and…

Contract against Orrin D. Myrick and Thomas A. Johnston, on a recognizance under the Gen. Sts. e. 124, § 10, entered into by Myrick, as principal, and Johnston, as surety, conditioned that Myrick, who had been arrested upon an execution issued on a judgment in favor of the plaintiff, would, within thirty days, “ deliver himself up for examination,” “ and appear at the time and place fixed for his examination, and from time to time until the same is concluded, and not depart…

Petition for a jury to assess the damages suffered by the plaintiff by reason of the defendants’ taking, for the purpose of widening a street, the land and building held by him under a lease from William Sohier. At the-trial in the Superior Court, before Putnam, J., the plaintiff introduced evidence of the taking of the land and build-mg; and that he had occupied the building as an apothecary’s shop.

<p>Replevin of com by Hersey B. Goodwin and Joseph H. Locke. Writ dated October 12, 1870. At the trial in the Superior Court, before Scudder, J., without a jury, the following facts appeared:</p> <p>The defendants on September 23,1870, received and held on storage for the plaintiffs in Boston 1056J bushels of corn, to be delivered to the order of the plaintiffs. On September 29 the plaintiffs agreed with Wesley P. Balch, a dealer in grain in Boston, to sell him 1056J bushels of corn for cash, and delivered to him an order therefor on the defendants. No time of payment Was specifically named. The name of Balch was not inserted in the order, when delivered by the plaintiffs, but was afterwards written in by Balch himself. Balch never paid for the corn, but on October 7 he borrowed money from the firm of Ware, Richardson & Company of Boston, and gave them said order, indorsed by him, as part security therefor, they being ignorant of the fact that he had not paid for the corn. On October 10, the order was presented by Ware, Richardson & Company to the defendants, and was accepted by them in writing; and on the same day the defendants delivered, upon an order of Ware, Richardson & Company, 100 bushels of the corn; and also on the same day a transfer of the corn was made upon the books of the defendants from the plaintiffs to Balch, and another transfer from Balch to Ware, Richardson & Company; and the plaintiffs never countermanded their order before this action was brought.</p> <p>It appeared, by evidence introduced by the plaintiffs, against the objection of the defendants, “ that by the usage of the grain trade in Boston, a sale is considered a cash sale if no terms of payment are named; and also, that it is the usage of said trade on cash sales to give an order for delivery to the buyer before payment is made, and to allow the buyer time, not exceeding ten days, before calling on him for payment.” No question was raised as to the unreasonableness of these usages. It also appeared, from evidence introduced by the defendants, against the objection of the plaintiffs, that it is the usage in said trade for the buyer in such cases to sell the property at any time after the delivery of such order to him.”</p> <p>Upon the above facts, or such thereof as were admissible, the judge, by the consent of the parties, reported the case for the determination of this court. If in the opinion of this court this action could be maintained, then judgment to be entered for the plaintiffs ; otherwise, for the defendants.</p>

Tobt against Hersey B. Goodwin and Joseph H. Locke, for conversion of 1000 bushels of corn. Writ dated November 7, 1870. At the trial in the Superior Court, before Lord, J., the following facts appeared: On September 29, 1870, Wesley P. Balch bought 1000 bushels of com from the defendants, to be paid for in cash in ten days, and the defendants gave him an order on the warehouse where the com was stored, being then parcel of a larger quantity lying in bulk.

Tort. The first count was for malicious arrest and false imprisonment. The second was for slander in charging the plaintiff with larceny.

<p>The exclusive remedy for a child to recover damages for her exclusion from the public schools is an action of tort under the Gen. Sts. c. 41, § 11, against the city or town.</p>

CONTRACT by Robinson Gill and Charles L. Peacock against Charles P. Herrick and Silas W. Merrill.

' Contract by an attorney on an account annexed. The first item was on June 27, 1868, for consultation and professional services, $5.00. The second was on September 18, 1868, for consultation and professional services and retainer, $405.00. The third was on June 2, 1869, for consultation and professional services, $5.00.

Contract by “ George H. Randall, trustee of Henry Randall,” against Samuel A. Way, Francis O. French and E. M. Simmons, to recover $100, the balance of a bank account kept with the defendants, who were bankers. Writ dated December 9, 1869.

<p>Replevin of a locomotive engine from William M. Parker and the Boston & Albany Railroad Company. Writ dated November 21, 1870.</p> <p>At the trial in the Superior Court, before' BocJcwell, J., the plaintiff introduced evidence tending to show that in November 1869, Henry N. Farwell, a director of the Boston, Hartford & Erie Railroad Company, which was then in embarrassed circumstances, bought this engine from the maker; that the defendant Parker, who was superintendent of the railroad, asked him to let him have the engine to use on the railroad; that Farwell said he would not -deliver it to the company, but would deliver it to Parker to be run on the railroad, Parker to be personally responsible for it; and that Parker took it with that understanding.,</p> <p>The defendants introduced evidence tending to show that Far-well sold the engine to the Boston, Hartford & Erie Railroad Company; and that it was used on that railroad until the autumn of 1870, when it was sent for repairs to the repair shop of the Boston & Albany Railroad Company.</p> <p>It appeared that Farwell sold the engine to the plaintiff on November 19,1870, while it was still in the repair shop.</p> <p>The defendants introduced evidence that on a bill in equity in. this court against the Boston, Hartford & Erie Railroad Company, receivers were appointed to take possession of all the property of the company; that in August 1870, the receivers took possession of the property, directed Parker to continue in the employment of the receivers as superintendent, and to hold all the property of the railroad for them ; that he agreed so to do ; that after that time the railroad was run on their account; that the engine in question was in use on the railroad when they took possession, and continued so to be used until it was sent to the repair shop; that all the profits from its use were received by them; that Parker, after the appointment of the receivers, held the engine for them, and acted for them in sending the engine to the repair shop; and that Farwell applied to the receivers for the engine and they refused.</p> <p>The plaintiff admitted that he had never applied to this court for leave to bring the action.</p> <p>The defendants asked the judge to rule as follows : “ If, after the appointment and qualification of the receivers, they were, as receivers, in possession of and used and ran the engine by Parker, as their agent, or by their other employes, and claimed it as the property of the Boston, Hartford & Erie Railroad Company, and Farwell applied to the receivers to give it up, and they declined to do so, and the engine, while being so used, was injured, and Parker, acting for the receivers, and as their agent, sent it to the repair shop of the Boston & Albany Railroad Company to be repaired, and while at that shop it was replevied by the plaintiff, and the plaintiff did not obtain of the court which appointed the receivers permission to bring this action, the plaintiff cannot recover. Such possession of the receivers would be the possession of the court which appointed them, and the plaintiff could not legally interfere with that possession except by authority from that court, and it is immaterial whether Farwell, or the plaintiff, or the Boston, Hartford & Erie Railroad Company, had or had not any title to the engine. The proper and only remedy for the plaintiff in such case would have been to apply to the court appointing the receivers either to hear and pass upon his right, or for permission to bring a suit to try his title.”</p> <p>The judge refused so to rule; and ruled that the Superior Court had the same power to try the case as if no receivers had been appointed, and that the question was whether the plaintiff had proved his title.</p> <p>The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.</p>

<p>The facts that a traveller bought a ticket for his passage by a steamboat, and that he was not asked for the ticket during the passage, warrant a finding that he knew he was to give it up before leaving the boat.</p> <p>If it is the custom of carriers by a steamboat to collect the passage tickets as the passengers are leaving the boat, and a passenger attempts to land without a ticket, alleging that he has lost it, the carriers have a right to detain him a reasonable time, to inquire on the spot into the circumstances of the case.</p> <p>tf carriers by steamboat require passengers to buy 'tickets before going on board, and to deliver them up on landing, the loss of a ticket by a passenger falls on him, and not on the carriers, and it is his duty on landing to pay the amount of the fare.</p>

Cobtbact against David A. Warde, of Concord, in the State of New Hampshire, and fourteen others, “ all of said parties transacting business under the firm name of the New England Express Company,” to recover for services as auditor for the defendants from August 10, 1868, to December 12, 1868. After a trial in the Superior Court, and the decision of this court on a report thereof, 106 Mass. 518, the plaintiff discontinued against all the defendants except Warde.

Contract. The first count was against F. B. Smith, as maker, and the second count was against Francis O. J. Smith, as indorser, of the following promissory note, made by F. B. Smith, and indorsed by Francis 0. J. Smith : “ $11,472.74. Boston, June 3,1870.

Contract by Benjamin P. Ware and John Q. A. Clifton, executors of the will of John Clifton, against John E. Gowen and Franklin Copeland, on a promissory note dated April 22, 1856, signed by the defendants, payable to Charles F. Lougee or order, and by him indorsed to the plaintiffs’ testator. Writ dated July 29,1870.

Contract against the marshal of the United States for the District of Massachusetts, to recover $418 for labor and services done and performed by the plaintiff for the defendant as keeper of goods attached by the defendant as marshal on mesne process upon a writ issuing out of the Circuit Court of the United States for said district.

<p>The leaving of nine cart-loads of ashes, brickbats and rubbish by a tenant on quitting the demised premises, is no breach of his agreement to peaceably yield up the premises in good, tenantable repair.</p>

<p>Actions of contract. In the first case, Peter Edgerly, the defendant in the second action, was summoned as trustee, and Albert Bowker appeared as claimant. The second case was brought for the benefit of Bowker, and was upon certain premium notes, not negotiable, made by Edgerly and payable to the Piscataqua Fire and Marine Insurance Company. Both cases were tried together in the Superior Court, before Devens, J., without a jury, when the following facts appeared:</p> <p>Bowker, who was a citizen of this Commonwealth, having a claim against the Piscataqua Fire and Marine Insurance Company, who were a corporation established in the State of Maine under the laws thereof, brought an action in this Commonwealth against them, and summoned as trustee David Fairbanks, who was the president of the company, and also the agent duly appointed to receive service of process in this Commonwealth. Fairbanks, at the time of the service of the trustee process upon him, had goods, effects and credits of the company in his hands, including the said notes of Edgerly, which were not negotiable. Subsequently, proceedings were had to wind up the company, the Supreme Judicial Court of Maine appointed trustees for that purpose,- and, by direction of the trustees, Fairbanks made a settlement of the suit brought by Bowker, in accordance with which Bowker discontinued the suit, and Fairbanks delivered to him some of the assets of the company, including Edgerly’s notes, as collateral security for the payment of his claim, to be collected and applied by him in liquidation of his claim. Bowker can never realize a sufficient amount from these assets to pay his daim, and no part of the claim has been paid in any other manner.</p> <p>After this settlement, the first of these cases was brought, and later still, the second.</p> <p>The judge, by consent of parties, reported the cases for the consideration of this court, upon the foregoing facts; such judgment to be entered in each case as should seem correct to the court.</p>

Contract by an insurance company for money had and received, to recover the premiums on four policies issued by the plaintiffs, two in December 1870, and two in January 1871.

<p>In an action upon a policy of fire insurance on an engine and machinery “ contained in a building on A. Street, and for the manufacture of tin ware,” it appeared that among the articles damaged by fire in said building were six hundred dies of iron or steel used to give form to various utensils manufactured by the assured; that these dies were used in presses, one pair only being used at a time, and the others kept on shelves; and that the dies were not fitted to any particular presses. The assured contended that there was a custom to include dies in the term machinery, but no such custom was found by the . judge, who tried the case without a jury, to exist. Held, that the dies were covered by the policy.</p>

Writ op review of a judgment of the Superior Court in favor of the defendant in review recovered in an action brought by him against the plaintiffs in review for money had and received, being the amount of premiums paid on a policy of insurance issued by them.

Petition to the Superior Court by the Winnisimmet Company; alleging that by the St. of 1871, ee. 188, 345, the petitioners were authorized to widen their ferry slip in Boston, and, for that purpose, to purchase or otherwise take the land of William.

Tort to recover for injuries caused to the plaintiff while a passenger on the defendants’ railroad by reason of a gate or pole, maintained by the defendants at the crossing of a highway “ for the better protection of their trains from horses, carriages and other obstacles,” being thrown towards and entering the car in which the plaintiff was seated, and striking and injuring him. The declaration alleged that the accident was caused by the defendants’ negligence.