Volume 112 — Massachusetts Reports

<p>Petition of ten persons representing that they were all taxable inhabitants of the town of West Roxbury; that on the 18th of November, 1872, a town meeting of the town was held in pursuance of a warrant issued by the selectmen therefor, which warrant contained, among others, the following article • “ To see if the town will appoint a committee to petition the legislature, at its next session, for the passage of an act authorizing the annexation of the town of West Roxbury to the city of Boston, and to make an appropriation therefor.”</p> <p>That this article came up for consideration in the course of the meeting, and thereupon the following votes were separately passed by a majority of the voters then present: “ Voted,” that certain persons who were named “ be, and they are hereby appointed a committee to petition the legislature, at its' next session, for the passage of an act authorizing the annexation of the town of West Roxbury to the city of Boston, and said committee are hereby authorized to appear, with counsel, before any committee of the legislature to whom said petition may be referred, and favor the granting of said petition.”</p> <p>“ Voted, that for the purpose above named, the sum of $5000 is hereby appropriated, and the treasurer, under the direction of the selectmen, is hereby authorized to borrow the same.”</p> <p>The petition then alleged that the petitioners had no accurate or exact information as to the action of this committee, or what, if any steps had been taken by it under the votes, or whether the sum of $5000 pretended to be appropriated, or any part of it, had been raised by pledging the credit of the town, or otherwise, but that they were informed and believed that none of it had been paid out by said town or by its treasurer; that they were informed and believed that the treasurer of the town deemed himself bound by these votes, and authorized to act under them, and intended and was preparing to pay out of the town treasury the whole or a part of the sum voted.</p> <p>The petition then averred that the votes were illegal; that the town had no legal right to raise, appropriate or pay over money for the objects named in the votes, and prayed that the treasurer of the town be enjoined from taking any action under the votes.</p> <p>To this petition the defendant demurred because the petitioners had not stated a case which entitled them to any relief.</p> <p>The case was heard and reserved by Chapman, C. J., for the consideration and decision of the full court, on bill and demurrer.</p>

<p>Hie mere fact that the rooms beneath a tenant are occupied by a woman, also a tenant of the same landlord, of notoriously bad character, who keeps in her apartments lewd women as lodgers, uses the rooms for purposes of prostitution, and receives there the visits of drunken men, does not constitute an eviction, although the noise and riot proceeding from the rooms attract crowds of hays around the spot, and the singing of bawdy songs by, and the loud talking of the women and their visitors, and the frequent ringing of the door bell disturb the tenant and his wife, and although the tenant notifies the landlord of this state of affairs, and he promises to attend to it but does nothing. Neither under such circumstances is the tenant entitled to a diminution of rent.</p>

Contbact upon an agreement by which the plaintiff engaged with the defendants to lay all brick used on a building for the sum of $9.75 a thousand. The case was referred to an auditor, who reported that the defendants were indebted to the plaintiff in the sum of $559.50, and stated the account as follows : Messrs.

<p>One to whom the owner of a vessel has bargained and sold, but not conveyed, a part of it, and who has partly paid for it, under an agreement that he shall be employed as its master, and pay the balance out of his wages, may rescind the contract and recover back the money paid, upon the owner’s wrongfully discharging him from his employment and taking possession of the vessel.</p>

Contract. Trial in the Superior Court, before Lord, J., who at the close of the plaintiff’s evidence reported the case to this court upon the agreement of the parties that if, upon the plaintiffs’ evidence, they were entitled to recover, the question of damages should be referred to an assessor; if otherwise, judgment should be entered for the defendant.

Contract to recover damages for the non-fulfilment of a contract to convey the estate referred to in a writing, of which the following is a copy: “ Boston, Nov. 10, 1870. Received of Patrick Scanlan twenty dollars as forfeit money and part payment the price of house on Fifth Street, between D and E streets ; the price agreed on to be paid for the house is thirty-four hundred dollars.

Petition to enforce a mechanic’s lien under Gen. Sts. a. 150, for work done on the defendant’s building in Boston, in the fall of 1869.

Contract for the breach of an agreement for the purchase of land. Among other defences the Statute of Frauds was relied upon. The case was tried in the Superior Court, before Devens, J., without a jury, who, upon the facts as found by him, reported the case for the determination of this court. The facts, so far as they were material to decision, were as follows : The plaintiff, being the owner of certain land in Brookline,advertised and offered it for sale by auction.

Counts in tort and in contract, for the same cause of action. The defendant filed a declaration in set-off. At the trial in the Superior Court, before Putnam, J., the plaintiffs, before opening the case, stated that they should rely only upon one count in tort, and discontinue as to the other counts. The defendant then stated that he did not wish to be prejudiced in any of his rights, as he had filed and should insist upon a set-off.

<p>In an action for the breach of a covenant against incumbrances, the breach relied upon being that a tax upon the estate was due and unpaid at the time of the conveyance, evidence is admissible to show that the amount of the tax was deducted from the consideration paid, and that its mention in the covenant was omitted at the request of the grantee, he p-omising to pay it himself, and to indemnify the grantor against it.</p> <p>If the amount of a tax due and unpaid is deducted from the consideration given for an estate, and at the request of the grantee is not mentioned in the deed in the covenant against incumbrances, the grantee promising to pay the tax himself and indemnify the grantor against it, the grantee, in an action against the grantor for a breach of the covenant, can'recover but nominal damages.</p>

Contract against the defendant as administratrix of the estate of Charles Stone, late of Newton, in the county of Middle-sex, deceased. Writ dated January 19, 1871. The answer, among other defences, set up that the action was not commenced within two years from the time of her giving bond as administratrix.

<p>The answer to an interrogatory in a deposition, seeming when taken by itself to be the expression of an opinion rather than the statement of a fact, will not be rejected as evidence on that account, when it appears from the other answers that it is in truth the statement of a fact and not the expression of an opinion.</p> <p>A witness called for the purpose of proving that a person was not at a certain place at a given time, testified to conversing with him at another place at that time. Held, that the conversation itself was not admissible for the purpose of fixing the time.</p>

Contract to recover back money paid by the plaintiff to the defendants for a promissory note signed by one Hanson, the indorsement upon which was forged.

<p>Damaged flour was offered for sale at auction, divided into two classes. One class, slightly damaged, was offered by the barrel, in the barrels in which it was originally packed. The other, much damaged, had been repacked, and was offered by the pound as repacked flour or “dough.” The sale took place in an auction room ; the flour was in the street outside. After the auctioneer had sold, as he thought, all of the first class, he offered for sale the second class, stating the differences between the two classes. The plaintiff, who was the highest bidder, selected by their numbers two rows of barrels as the flour he would take. These rows were made up of barrels of flour of the first class, accidentally misplaced without the knowledge of the owner or auctioneer. Held, there had been no sale, as the minds of the parties had not met as to the subject matter of the sale.</p>

Tort to recover for personal injuries received in getting off the defendants’ horse-car.

<p>Petition for partition, filed September 13, 1870. Trial before Morton, J., who reserved the case for the consideration of the full court; such order or judgment to be entered therein as should be proper. It appeared that Benjamin B. Appleton died intestate seised of the three several parcels of land described in the petition, and leaving a widow, one of the respondents, and four children. The petitioner owned one undivided fourth part of each of the parcels. The remaining three fourths were owned by others of the respondents. Each of these shares was subject to the dower of the widow, who was one of the respondents. Her dower had never been assigned or set out to her; The premises, since the decease of Mr. Appleton, had been let, and the rents had been shared between the parties interested, the widow receiving one third part thereof, the petitioner receiving his share with the others. The widow, April 13, 1872, duly demanded of the petitioner and the other respondents her dower in the several parcels.</p>

<p>Tort under the Gen. Sts. e. 44, § 22, to recover for an injury received by the plaintiff through a defect in Dudley Street, a highway in the city of Boston.</p> <p>Trial before Morton, J., who, after a verdict for the plaintiff, reported the case, upon the agreement that if the whole evidence was insufficient to sustain the verdict, judgment was to be for the defendant. If the ruling requested by the defendant should have been given, or if the charge given was not sufficiently favorable to the defendant, a new trial was to be granted. Otherwise, judgment was to be entered on the verdict. The laying out of the way was admitted. It was admitted by both parties that one or two days prior to the accident, a drain had been in process of construction in Kenilworth Street, near its junction with Dudley Street, which terminated in a “ man-hole ” which had been opened in Dudley Street. The track of the Metropolitan Horse Railroad in Dudley Street ran across this hole, and included the greater portion of it between its rails. Its cars passed over this track from Roxbury to Boston, but not in the other direction.</p> <p>William H. Crimp was called by the plaintiff and testified: “ At the time of the accident I was in the employ of the Metropolitan Horse Railroad Company. I was put there to guard the hole and run the cars over it. I had been there for that purpose two nights and three days. It was nine feet deep and six in diameter. On the Kenilworth Street side of the track there were piles of earth four or five,feet high on each side of the hole, and a plank stretched between them running along on the edge of the hole the same way as the track. On the side of the track opposite the Kenilworth Street side there were barrels, one on the Boston side and one on the Roxbury side of the hole, and a plank laid on the barrels, running parallel with the track, opposite to the plank on the other side. The planks ran the length of the hole on each side, and the cars passed between them. They were far enough apart to let them do so. Ho plank was put across the track at any time while I was there. There were lights placed on each pile of dirt, and on each barrel, four in all, which were lower than the top of the cars. The driver would unhitch his horses and take them round the hole, and I would take the car through. There was a slight decline there, and the car would go along of itself, and I would brake it up when it got over the hole. I had taken a car over this way and stopped with it two or three minutes, and after coming back heard a voice say, ‘ Save me; ’ and found the plaintiff in the hole, and helped him out. The cars, after nine o’clock P. M., passed about every fifteen minutes, and every five minutes before that time.”</p> <p>The plaintiff testified: “I had been passing the evening at my uncle’s on Kenilworth Street, which I reached by another route. I left soon after nine o’clock, came down Kenilworth Street to feike a car, and saw the dirt piled up on the side, as I came along, as high as my shoulder. As I came down I saw the car coming along from Roxbury. As I reached the corner it stopped. J stepped from the sidewalk on to the track behind the car, and it started. I was then within two or three feet of the car. It started very slowly, and I followed close behind it, between the rails. I was following slowly close to the car when it stopped again; and just as I put my hand on the handle of the rail it started again and I fell into the hole. There was no conductor at the rear of the car. I saw the shoulders of a man on the front platform. The car had gone several steps from where it first started before I fell. It was quite dark.”</p> <p>The defendants then called S. C. Smith, John S. More and Patrick Mitchell, who testified substantially that Smith had contracted with the city to build the sewer, and had employed More as his foreman and Mitchell as one of his servants ; that they had at about sunset of the day of the accident placed a plank between the two piles of earth on the Kenilworth Street side of the track, also a plank between two barrels on the opposite side, these planks going the length of the hole, and running longitudinally .on each side of the track, and sufficiently far apart (ten feet or more) to enable the cars to pass through ; that they had also placed on the Roxbury side of the hole a plank stretching completely across the track, one end resting on the pile of dirt on the Kenilworth Street side of .the track, and the other end on the barrel on the opposite side, and that they had stretched a similar plank on the Boston side of the hole, so that the hole was completely closed by planks on every side ; that the planks across the track were not fastened, but were left movable, with the expectation and for the purpose that they should be removed from time to time to let the cars pass through ; that the hole was not covered up; that four kerosene lights were placed there, substantially as described by Jrimp; that this was the condition of things when Smith and More left; that Mitchell stayed a short time afterward, and saw Crimp take down and put up the planks twice to let cars through; that after that, the next time a car came through, he did not put up the planks ; that Mitchell told him he ought to do so, but he said that he was there to look after the hole, and that was hia business, and that Crimp did not put up the planks before he Mitche'l, left, which was at a quarter before seven.</p> <p>John W. Chase, captain of police of the district, testified that fee passed the place between seven and half past seven o’clock, that he saw Crimp with the plank in his hands, on the Roxbury side of the hole, and saw him replace it across the track, and that it was up between the barrel and pile of dirt and resting on them when he left.</p> <p>Hawley Folsom, sergeant of police of that district, testified that he examined the place between half past seven and quarter before eight that evening; that the plank on the Roxbury side of the hole was then up between the piles of dirt and the barrel and across the track, and that Crimp was leaning or sitting on it, and that it was so when he left.</p> <p>The defendants then requested the court to rule that there was no evidence which-would justify the jury in finding a verdict for the plaintiff. For the purposes of the trial, the court declined so to rule.</p> <p>The defendants then requested the court to instruct the jury as follows: If the jury are satisfied that barriers and lights were placed around the hole into which the plaintiff fell, so that they would have sufficiently protected a person travelling on the street, and using due care, from danger, the city is not liable, if those barriers, or any of them, were afterward removed, and not replaced, by the servants or employes of the railroad corporation, for the purpose of passing their cars on their tracks over the hole, But the court declined to give the instruction.</p> <p>The defendants claimed that the plaintiff’s remedy, if he had any, was against the Metropolitan Horse Railroad Company, and not against the city.</p> <p>The court then instructed the jury substantially as follows: That in this case the city had a right to construct the sewer and make the excavation, but that it was bound to erect suitable barriers and safeguards ; that it was not the hole, but the absence of safeguards, which constituted the defect, if any; that it was purely a question of fact whether such barriers or safeguards had been erected in this case; that no rule of law could be laid down, except this general one, that the city must either by lights, bars or boards, or in some other way, provide a reasonable safeguard that in ordinary cases the city would not be liable if these barriers or safeguards were removed by others; but that in this case it was competent for the jury to consider the fact that it was known that horse-cars would pass ; that it was for the jury to say whether, taking this fact into consideration, the barriers were sufficient; or whether other precautions, such as stationing offi cers or servants there, or planking over the hole, should have been adopted; that if, considering the circumstances, the city should have stationed an officer there or taken other precautions to render the street reasonably safe, the city was liable; that in the opinion of the court, the question whether the barrier was thrown across the track at times when the cars were not passing, was not of much consequence, as it was removable and intended to be removed to let the cars pass through ; that the jury should inquire whether it was necessary that there should be something, when the cross-barrier was down, to warn travellers; that it was not of consequence to inquire in this case whether there was a liability on the part of the Metropolitan Railroad Company; that if the city trusted to agents of the Metropolitan Railroad Company to properly guard the hole, it is responsible if these agents were negligent, and must take the consequences of and are liable for such negligence.</p>

<p>Where a policy of insurance provides that a loss shall not be payable until the assured pr> duces the certificate of a magistrate to certain required facts, the production of such certificate, unless the company have themselves prevented the obtaining i( or waived cj* want, is a condition precedent to the right to sue.</p>

Cross libels for divorce from the bond of matrimony, heard together before Morton, J. The libel of the husband was filed October 17,1871, and alleged acts of adultery committed by the wife with one Wyman in March and April 1870.

<p>Tort against a street railway corporation for a personal injury caused by a collision between one of its cars and the plaintiff’s wagon.</p> <p>Trial before Gray, J., who reported the case as follows:</p> <p>“ At the trial it appeared that at the time of the injury the defendants were the owners of a street railway formerly owned by the Dorchester Avenue Railroad Company, and duly located along the centre of Dorchester Avenue; that the South Boston Railroad Company, formerly called the Broadway Railroad Com - pony, had been authorized by its charter to locate a street railway from South Boston Point 6 to a point near the intersection of Broadway and Turnpike Street or other street, for the purpose of forming a junction with and entering upon the Dorchester Avenue Railroad in Boston,’ and had duly located it along the centre of Broadway 6 to the track of the Dorchester Avenue Railroad in Dorchester Avenue: ’ that the switch at the point of connection between the two roads was about fourteen feet long, and was, with the assent of the defendants, put down and since kept in repair by the South Boston Railroad Corporation; and so placed and constructed that the right branch of it formed part of the defendants’ right rail, upon which the defendants’ cars ran, and had a groove two inches deeper than the left branch, which formed the beginning of the right rail of the South Boston Railroad ; so that when the switch was in good order, the defendants’ cars, bearing against the left side of the right groove and below the beginning of the left groove, were retained on their track; and the cars of the South Boston Railroad Company, being made with a flange clasping the upper part of the rail, and not reaching to the bottom of the groove, turned off upon the track of that company; that at the time of the accident, and for a week or more previously, the beginning of the left groove had been worn down to the depth of the right groove, so that the defendants’ cars occasionally turned out of their course and upon the track of the other company; that this condition of the switch had been known to the defendants, and by them notified to the South Boston Railroad Company at least a week before the accident; and that upon this occasion, the defendants’ car, while driven at a rate of speed which was variously estimated by the witnesses at from three to seven miles an hour, turned through the defective groove in the switch, and ran upon the track of the South Boston Railroad a short distance, and struck the plaintiff’s wagon with such force as to throw him from his seat to the ground.</p> <p>“ The defendants requested the court to rule that there was no evidence of negligence'on their part, to be submitted to the jury; that the switch was the property of the South Boston Railroad Company, and they were bound to repair it; that the defendants had no right to repair it, or to put down a new one; and that if they were liable at all, it was not for the defect in the switch, but because, knowing of that defect, they used it carelessly or without putting a safeguard at the crossing. But the court declined so to rule; and to this refusal the defendants excepted.</p> <p>“ The case was submitted to the jury with instructions, to which no further exception was taken, that the defendants were bound to use ordinary care to have kept in repair, either by themselves or by the other corporation, so much of the switch as was constructed for the purpose of keeping the defendants’ cars on their own track; and that for any negligence of the defendants in this respect, or in the manner of driving their cars thereon, while they knew it to be defective, the defendants were liable. The jury returned a verdict for the plaintiff, upon which, if the request of the defendants was rightly refused, judgment is to be rendered; otherwise a new trial is to be ordered.”</p>

Contract upon a recognizance to appear and take the oath for the relief of poor debtors, signed by the defendant Mahan as principal, and the defendant Campbell as surety.

Tort for false imprisonment. The defendants justified under a mittimus, and other special matter, and denied the arrest.

<p>Contract against John C. Hursell and Horace Humphrey on a promissory note of the tenor following:</p> <p>$1500. Boston, March 14, 1870.</p> <p>Four months after date I promise to pay to the order of Horace Humphrey fifteen hundred dollars. Value received with interest at 10 per cent.</p> <p>John C. Hursell.</p> <p>[Indorsed] Horace Humphrey.</p> <p>Both defendants appeared by the same counsel and filed a joint answer denying each and every allegation of the plaintiff’s declaration.</p> <p>At the trial in the Superior Court, before Putnam, J., the plaintiff sought to recover of the defendant Humphrey both upon the ground that the defendants were partners under the firm and style of John C. Hursell, and that the note was made by them as a firm, and upon the ground that Humphrey had waived the plaintiff’s omission to make demand of payment upon the maker, and to give notice of non-payment to him as indorser.</p> <p>During the course of the trial, and before Hursell testified, the defendants’ counsel withdrew his appearance as to him, but he was not defaulted on the docket.</p> <p>The plaintiff, as a witness in his own behalf, testified that the note in suit was given in renewal of an old note which was signed John C. Hursell and indorsed Horace Humphrey; that $800 was paid on the old note, and this note given to make up the balance; that the consideration of the old note was money lent to John C. Hursell; that Humphrey brought the note in suit to him after the old note was due, and said that all he could pay on the old note was $800, but that he would pay the rest in a short time, and mentioned four months; that Humphrey at this time said that he would see that witness got the money before that time; that he gave the note to witness at that time and said he wanted four months, but would pay it before it was due; and that the body of the note was filled in in Humphrey’s handwriting. The foregoing evidence was admitted against Humphrey’s objection.</p> <p>The plaintiff also testified that about the time the note was due he lost his pocket-book containing the note in suit and other notes and some money, and called upon Hursell and told him the note was lost, and that Hursell said he would notify Humphrey of it. To the admission of this conversation between Hursell and the plaintiff the defendant Humphrey objected. The court admitted it only as affecting Hursell, but Humphrey subsequently testified that Hursell did see him and notify him of it.</p> <p>The plaintiff further testified that after the note was due he requested Hursell to go and see Humphrey about it, and Hursell said he would do so. Hursell said Humphrey was out of sorts, but would pay it by and by.</p> <p>This evidence was, against Humphrey’s objection, admitted, but only as affecting Hursell, and the court instructed the 'jury that this and other like statements made by Hursell were not evidence affecting Humphrey.</p> <p>There was evidence on the part of the plaintiff tending to show that having found the note, and having it in his possession, he called upon Humphrey repeatedly the next week after its maturity, and subsequently during July, August, September and October of that year, and told him it was due, and asked for payment, and that Humphrey promised absolutely and repeatedly each time to pay it; that he said on one occasion that he did not see why Hursell did not pay it as there was money enough on the books.</p> <p>A witness, called by the plaintiff, testified, against the defendant Humphrey’s objection, that he was present on March 14, 1870, when the note was given, and that Humphrey said he had drawn the note on four months and would probably pay it before.</p> <p>The defendant Hursell was called by the plaintiff as a witness, and testified on direct examination that when the note was given and before, he was in the flavoring extract business ; that Humphrey was never a partner with him, and never engaged in carrying on business with him; that Humphrey was not to receive and did not receive any part of the profits of the business; and that Humphrey lent him money for which he was to pay him seven and three tenths per cent, interest, and no more. The plaintiff then, while Hursell was under examination by him, put in evidence a bill of sale from Humphrey to Daniel C. Gould, which is referred to in the opinion as exhibit A. Hursell appeared an unwilling witness and adverse to the plaintiff, and the plaintiff asked him if he had not stated, in letters which were produced and shown to him, that Humphrey was his partner, and if he had not stated that he and Humphrey had carried on business together. Hursell, in reply, said that he had so stated, but that it was not the fact; that he conveyed his stock to Humphrey in September 1869, as security for a debt he owed him, and that he, Hursell, owned copyrights in his business and wanted a partner, and wanted to get some one to buy the stock of Humphrey, and that the letters were written in reply to newspaper advertisements inserted by one Gould; that Gould bought of Humphrey the stock, and became his, Hursell’s, partner, December 1, 1869, and continued his partner till August 1870, and that he told Gould before he became his partner that Humphrey was not his partner and had no interest except in the goods; that the money he, Hursell, borrowed of the plaintiff, and for which the original note was given, he put into his business. The plaintiff, on the examination of Hursell, put in evidence a letter, which is referred to in the opinion as exhibit B, and which was written and signed by Humphrey with Hursell’s knowledge, and also read in presence of the jury, and called the attention of the witness to an extract from articles of copartnership, signed by Hursell and Gould, dated December 1, 1869, which extract was as follows: “ The above named parties [Hursell and Gould] have agreed to become copartners in business under the name and style of John C. Hursell & Co. in the manufacture and selling all sorts of flavoring extracts, to the said business belonging, in the same general manner as heretofore carried on by said Hursell and Horace Humphrey; said business to be carried on at Boston, in the Commonwealth of Massachusetts, and to begin on the first day of December, A. D. 1869.” To this evidence the defendant Humphrey objected, but the court permitted the plaintiff to use it to refresh the recollection of the witness, and to discredit him by contradicting him, but not to affect Humphrey unless it was known to and sanctioned by him.</p> <p>The plaintiff introduced in evidence a paper referred to in the opinion as exhibit C, and also a letter referred to as exhibit D, but offered no direct evidence that this letter was written or signed by Humphrey; he claimed, however, that it was competent to go to the jury to be compared by them with admitted signatures of Humphrey, and if found by them to be written by him then to be evidence, and the court so ruled, against the defendant Humphrey’s objection. Humphrey subsequently testified that he knew of the letter being written, and that it was written for him by one Luke.</p> <p>On cross-examination, Hursell testified that he did business •always under the style of John C. Hursell & Co. both before and after he became a partner with Gould, and while he was a partner with him. There was no other evidence in the case as to the style under which the business was done at any time. The letter referred to in the opinion as exhibit B, Hursell swore was written by Humphrey, and signed by Humphrey, and Humphrey also admitted that he wrote and signed it. There was no evidence against Humphrey that Humphrey ever was a partner with Hursell, except the papers referred to in the opinion as "exhibits A, B and C. Hursell also testified on direct examination that nothing was ever said in any conversation between him and Humphrey as to whether any demand for payment of the note had been made vipon him. He also testified that payment of the note was not demanded of him at maturity, and that he signed the articles of copartnership between him and Gould in the way they were drawn, because Gould had got his own lawyer to draw them, and wanted him, Hursell, to sign them as they were .vritten.</p> <p>Humphrey was called as a witness in his own behalf, and testified that he never was a partner with John C. Hursell, that he never agreed to share any of the profits or bear any of the losses of the business, and never did receive any of the profits or bear any of the losses; that he lent Hursell eight thousand dollars at seven and three tenths per cent, interest, and afterwards took a conveyance of his stock of merchandise as security; that he sold it to Gould for about $3000, and the balance of his claim against Hursell never had been paid; that he kept no memorandum of the note in suit, and did not know or have any information whether payment of it was ever demanded of Hursell or not; that some time before it was sued he knew it was due, and he knew he had not been notified of its non-payment; that by Hursell’s direction he wrote the letter referred to as exhibit B, and signed Hursell’s name to it.</p> <p>He testified that he had an interview with Hursell about the note soon after its maturity, and before the plaintiff saw him. The plaintiff read to the jury the following interrogatory which had been filed by him to Humphrey as a party, and his answer to it: Int. “ Did you, when the note matured, promise to pay it ? What did you say at that time and at the subsequent times when the plaintiff called on you for it ? Give the words, and all of them, you used at the different times the plaintiff called on you subsequent to the maturing of the note, as nearly as you can recall them. Did you not know that the note had not been protested at any or all- of those times ? ” Ans. “ I did not promise to pay the note when it had matured. I said nothing to the plaintiff at that time, not seeing him at that time. He called two or three times on me after the note had matured. I told him I had no money of John C. Hursell’s, and that he must look to Hursell. He said he had been to Hursell, but could get no satisfaction. This was the substance of the conversation; I cannot recall the words used. I did know at every conversation I had with him that the note had not been protested.”</p> <p>There was no evidence in the case other than what is herein recited that Humphrey had any knowledge or information that payment of the note had not been seasonably demanded of Hursell. But Humphrey’s counsel admitted that he knew that he had not been notified of the presentment and non-payment of the note.</p> <p>The defendant Humphrey asked the court to instruct the jury that there was no evidence to warrant the jury in finding that the note in suit was the partnership note of Hursell & Humphrey ; and that there was no evidence that if Humphrey promised to pay the note after its maturity, he knew or had information at the time of such promise, that payment had not been demanded of Hursell at the maturity of the note, and there being no evidence on this point the verdict of the jury must be for Humphrey. The court declined to give these instructions.</p> <p>The court was asked by the plaintiff to rule, and did rule, that if the plaintiff was entitled to recover against Humphrey it was for the amount of the note and interest at the rate of ten per cent, per annum from the date of the note to the time of the ver» diet, and to this ruling the defendant Humphrey excepted.</p> <p>The jury, by the direction of the court, reported their special findings. They found, in addition to rendering a general verdict, that Humphrey & Hursell were partners under the firm of John C. Hursell, and that this note was given in settlement of a partnership liability, and that Humphrey promised to pay the note, knowing that demand for payment had not been made on Hursell, and that notice of non-payment had not been made upon him, Humphrey; and the jury returned a verdict for the plaintiff against both Hursell and Humphrey for the amount of the note, and interest at the rate of ten per cent, per annum from the date of the note to the date of the verdict, viz.: $1839.50. The defendant Humphrey alleged exceptions.</p>

<p>The sender by telegraph of an unrepeated message, which is written upon a blank of the company having a printed heading in which it is specified that the company shall not be liable for mistakes in the transmission of any unrepeated message beyond the amount received for sending the same, cannot recover a greater amount for a mistake in its transmission, not caused by gross negligence or fraud.</p>

<p>k constable and deputy collector, in serving a warrant for the collection of taxes, is a public officer, and not a servant of the city; and if he illegally arrests the person named in the warrant, who thereupon pays under protest a tax legally due, the person so paying cannot maintain an action against the city to recover it back.</p>

Contract. The declaration contained two counts, one for the breach of an alleged covenant in a lease, the other for money had and received. Trial in the Superior Court, before Lord, J., who, before verdict, by consent of parties, reported the case for the determination of this court upon the question whether the plaintiffs could maintain the action.

Tobt for damages received by the plaintiff from the runaway horse of the defendant. Trial in the Superior Court, before Lord, J., who, after verdict for the plaintiff, reported the case for the determination of this court.

<p>If the lessee of a part of a building covenants with the lessor that he will pay the taxes which may be payable or assessed in respect of the premises, the lessor may prove a usage to apportion the taxes among the different tenants according to the amount of rent paid by each.</p> <p>Under a lease which expired on the first of July, 1870, and in which the lessee covenanted that he would pay the taxes which might be payable or assessed in respect of the premises during the term, the lessee is liable to pay the taxes for the year 1870, although the assessors did not complete their valuation and determine the rate of taxation till August; the tax being in law regarded as assessed upon the first of May.</p>

Contract against the principal and surety on a recognizance of the defendant Wheeler, made upon his arrest on an execution issued by the Police Court of Boston.

Tort with a count in contract, and an averment that the counts were for the same cause of action.

Tobt. The plaintiff in her declaration alleged that she was owner and occupant of certain premises and a dwelling-house on D Street in Boston, bounded on the southwesterly by the defendant, who was the owner and occupant of the building “ standing side by side of the plaintiff’s,” and about three feet therefrom ; that the defendant, himself and by his servants and employees, raised his building about fifteen feet for the purpose of adding an additional story thereto, leaving…

Contract, with a count in tort. The first count was on a promissory note dated May 1, 1869, for $620; payable to the plaintiff in three equal instalments on November 1,1869, May 1, 1870, and November 1, 1870; signed by the defendant and one Henry C. Goodrich, of California. The second count was for $620, money had and received by the defendant on or about May 1,1869, to the plaintiff’s use, with interest.

<p>State courts have jurisdiction of actions brought by assignees of bankrupts to recover properly conveyed by such bankrupts in fraud of the bankrupt laws.</p> <p>At the trial of an action brought by the assignees of a bankrupt to recover back property alleged to have been conveyed by him to the defendants, his creditors, with a view to give them a preference, the plaintiffs, upon the question whether the bankrupt was at the time insolvent, may introduce evidence of the amount of the property found and attached in his shop three or four days afterwards, and delivered by the attaching officer to the assignees after their appointment; and, as affecting the issue whether the bankrupt was insolvent or contemplated insolvency and intended a preference, may interrogate the bankrupt, being a witness, as to his belief at that time as to his -nsolvency, and his belief as to his possession of money sufficient to.pay his debts; and may show that, about the time of the conveyance in question, he mortgaged his stock, tools and machinery.</p> <p>The exclusion of a question asked upon cross-examination furnishes no ground of exception where the bill of exceptions does not show the purport of the question or that it had a material bearing upon any point in controversy.</p> <p>The provision of the bankrupt act of 1867, c. 176, § 35, that if a conveyance is not made in the usual and ordinary course of business of the debtor, the fact shall bq prima fade evidence of fraud, applies to conveyances made with a view to give a preference within four months before the commencement of proceedings in bankruptcy.</p> <p>In order to maintain an action by assignees in bankruptcy to avoid a conveyance made witn a view to give a preference under the bankrupt act of 1867, c. 176, § 35, it is not necessary to prove that the defendants knew that the conveyance was made in fraud of the bankrupt act, or was not made in the ordinary course of business of the debtor; but it is sufficient that they had reason to believe it.</p> <p>In an action brought by the assignees of a bankrupt to recover the value of property conveyed by him to the defendants by way of preference, it appeared that the bankrupt was a manufacturer of boots and shoes, and that the conveyance by him to the defendants was a conveyance of unmanufactured leather. Held, that evidence on behalf of the defendants that they had frequently bought unmanufactured stock of other hoot and shoe manufacturers was immaterial, and that the opinion of witnesses was incompetent upon the question whether the sale of unmanufactured stock by such a manufacturer would be a suspicious circumstance which would affect his credit; but that evidence was admissible to show that it was a general custom and within the ordinary course of business of boot and shoe manufacturers to make such sales, and that such custom was generally known.</p>

<p>Contract upon a promissory note for $1600, signed by the defendant Beichardt and indorsed by the other defendant.</p> <p>At the trial in the Superior Court, before Wilkinson, J., the plaintiff read the note and indorsement to the jury without objection, and proved due demand of payment from the promisor on the last day of grace, and due notice to the indorser of its nonpayment, and rested his case.</p> <p>The defendant Beichardt, in support of the issue of payment on the part of the defendants, testified that May 15, 1867, the note was held and owned by one Papendeik, who died the latter part of July, 1867; that on that day, in pursuance of an arrangement made previously for pre-payment, he paid to Papendeik $300 in part payment; that in Papendeik’s presence he entered the payment upon a small bit of paper ; that Papendeik made a similar entry in a pocket memorandum book ; that each saw and knew and was shown at the time what the other had written down; that June 7, 1867, he paid Papendeik $800 ; that he entered the payment upon the same paper; that Papendeik entered it in the same memorandum book; that July 7,1867, he paid Papendeik $500, which was also entered by him upon the same piece of paper, and by Papendeik upon the same book; that neither payment was indorsed upon the note; that he spoke of having the payment indorsed when he made the first payment; that Papendeik said he did not care to do it then, as the note was entered on his books and was a business note, and said that with these entries on the paper and book they would understand it; that each party knew and saw and was shown what the other wrote down. It was agreed that this suit was brought in behalf of, and was prosecuted for the benefit of the estate of Papendeik. The de» fendants gave notice to produce the book of Papendeik in which the entries were made, but it was not produced when asked for at the trial. The defendants offered in evidence the paper upon which Reichardt made the entries; to the admission of this paper the plaintiff objected, but it was admitted by the court so far as it related to the entries.</p> <p>The jury returned a verdict for the defendants ; and the plaintiff excepted.</p> <p>The case was submitted on briefs.</p>

<p>Contract by the plaintiff, who was the administrator de bonis non of the estate of Sarah 0. Sargent, the wife of Lucius M. Sargent, against the defendant, who was the executor of the will of Lucius M. Sargent.</p> <p>Those portions of the will of Lucius M. Sargent which were material to this case were as follows: “I will, devise and bequeath all the rest and residue of my estate, real, personal and mixed, to my son, Horace Binney Sargent, to him and his heirs forever, in trust nevertheless .... Secondly, to pay for the support of my wife during her insanity.....Fifthly, to apply to his the said Horace Sargent’s own use and behoof all the income of my estate which may not be required for the due execution of the trusts hereinbefore declared.”</p> <p>The case was reported for the consideration of the full court, by Ames, J., upon the following facts found by him:</p> <p>“ This is an action of contract by John M. Pinkerton, as he is administrator of the goods and estate of Sarah 0. Sargent, against Horace B. Sargent, as he is executor of the will of Lucius M. Sargent, late of Roxbury, deceased. Lucius M. Sargent died in June 1867. His last will was duly proved, approved and allowed by the court of probate holden on the 26th September 1867, and said Horace B. was duly appointed executor thereof, without sureties, on his official bond. At the time of the decease of the testator, his widow, said Sarah C., was insane and an inmate of the McLean Asylum, where she had been placed by her husband some twenty years before. The said Horace B. was the only child of the testator by his first wife; the only child by his second wife, the said Sarah C., had died before him, leaving a widow and several children. At her husband’s decease, the said Sarah C. had no property in her own right, and no prospect of any kind except such as she might hope to derive from the estate of her deceased mother; from such rights to dower in various valuable estates of which her husband had been seised and possessed during her coverture, which she had not released; and from the personal estate of her husband, in case she could and should waive the provisions made for her in his will.</p> <p>“ Upon the decease of the testator, the brother and sister of the said Sarah C. deemed it necessary, for her care and protection and for the protection of her legal rights and rights of property in her husband’s estate, that a guardian should be appointed for her. Upon their petition the said Pinkerton was on the 17th of July 1867 duly appointed her guardian, and assumed the trust, and gave bonds for the faithful execution thereof. The said Horace had no notice or knowledge of this proceeding.</p> <p>“ The said Pinkerton, as such guardian, on behalf of said Sarah C., filed in said court of probate a paper writing purporting to be a waiver of the provisions made for her in said will; and also caused a like paper, signed by her, to be filed in said court within <ix months from the proof and allowance of said will. He also applied to the judge of said court for an allowance to the said Sarah 0., as the widow of the testator; and an allowance of $2500 was ordered and decreed. The guardian, as the ground for an allowance, alleged that he had assumed the payment of her bills. From this decree the executor appealed.</p> <p>“ Said Pinkerton, as guardian of said Sarah C., commenced and promoted several suits for the recovery of her dower in large estates, of which the testator had been seised during her coverture, and which he had sold and conveyed by deeds of general warranty, without her release of dower. The aforesaid appeal and these suits were pending in court when she died, as hereinafter stated.</p> <p>“ Said Pinkerton, as guardian, instituted proceedings for the recovery of what he supposed to be her share of her mother’s estate received by her husband, which this court decided was not recoverable.</p> <p>“ Said Sarah 0. died August 8, 1868, and her brother James C. Dunn was duly appointed administrator of her estate. He died in September 1869, and said Pinkerton was appointed administrator de bonis non, accepted the trust, and gave bonds. As such administrator, said Pinkerton petitioned the court of probate to order the defendant as executor to pay over to him the distributive share of said Sarah C. in the personal estate of the testator. A decree was passed directing such payment to be made; and from this decree the executor appealed to this court, which reversed said decree.</p> <p>“ After the appointment of the said Pinkerton as guardian, the executor furnished him with no means to pay for the board, clothes or other necessaries of the said Sarah C., or for her support at said asylum, or to pay any portion of the costs or expenses of said legal proceedings, or for the services of said guardian ; nor was he asked or requested to do so. Said Pinkerton, as guardian, paid all such expenses, and divers sums of money for the board, clothing and support of said Sarah C. at said asylum. He expended money and performed services in the prosecution of said legal proceedings and in the care of his said ward, all which were charged in his accounts as guardian; which said accounts have been settled and allowed by the Probate Court, but without notice to or knowledge of the executor.</p> <p>“ Said Pinkerton, as administrator, claims to recover the balances of his guardian’s account of the executor, under the express provisions of the will. Mrs. Sargent continued insane till her death. Demand was made on the defendant before suit. If the plaintiff is entitled to recover the whole or any part of his claim, the case is to go to an assessor to ascertain the amount; if he is not so entitled, judgment is to be entered for the defendant.”</p>

<p>Neither the insolvency.of a mutual fire insurance company, nor the cancellation of a policy, deprives the company of the right to assess upon the policy holder losses that accrued while He was a member of the company.</p> <p>The St. of 1864, c. 196, which provides that the conditions of insurance shall be stated in the body of a policy of fire insurance, does not apply to the obligations of the insured as a member of the corporation.</p> <p>The liability to assessment of a policy holder in a mutual fire insurance company is not in accordance with the proportion of the expired to the unexpired term of the policy, but in accordance with the liabilities of the company.</p> <p>When the losses by fire suffered by a mutual fire insurance company render it insolvent, and require an assessment to the full amount authorized by law, the holder of an unexpired policy, the cancellation of which has been rendered necessary by such insolvency, has no right of set-off, or of recoupment, or claim for return of premium, or for damages on account of the unexpired term of his policy.</p> <p>The holder of a policy in a mutual fire insurance company which has been cancelled while the company was solvent, and who by his contract with the company is entitled to a return premium, has a right, in case of the subsequent insolvency of the company and the distribution of its assets by receivers, to share in the assets.</p> <p>When a mutual fire insurance company has become insolvent, the previously accrued profits which have been credited to the policies do not belong to the policy holders, but are funds for the payment of losses.</p> <p>The St. of 1863, c. 249, § 4, which allows the directors of mutual fire insurance companies to make two assessments between which policy holders may elect, is permissive, anji moreover does not apply to an assessment made to close the affairs of a company.</p> <p>A. policy holder in a mutual fire insurance company is liable to assessment while his policy remains uncancelled, although he has and has had no insurable interest under, or right to recover upon, the policy.</p> <p>A person who has neither taken a policy in a mutual fire insurance company, nor sign id an application, nor paid a premium, is not a member, and in case of the insolvency o! the company, is not liable to assessment.</p> <p>An assignee of a policy in a mutual fire insurance company who is entitled to the benefit of the insurance is liable to assessment in case of the company’s insolvency.</p> <p>Gen. Sts. c. 58, § 48, which direct the manner of malting assessments upon the members of insolvent fire insurance companies, do not deprive a company chartered in 1798 of the right to assess in the manner provided by its charter.</p>

<p>When the property of an insolvent insurance company has been sequestered and placed in the hands of receivers, under Gen. Sts. c. 58, § 6, the amount of a loss before that time sustained under a policy of the company can be set off against a debt due from the assured to the company, even if the company holds collateral security from the debtor.</p>

<p>A provision in a policy of fire insurance that the insured “covenants and engages that the representation given in the application contains a just, full, and true exposition of all the facts and circumstances in regard to the condition, situation, value, and risk of the property insured,” is waived by an insurer who issues the poliej' upon a bare request to insure the property unaccompanied by any statement as to its condition, situation, value, or risk.</p> <p>Before the issuing of a policy of fire insurance, a dummy engine had been used near the insured building as often as its use was required. Held, that its subsequent use when required, although its use increased the risk, did not make void the policy under a provision therein contained that “if the situation or circumstances affecting the risk shall be so altered or changed as to increase the risk” the policy should be void.</p> <p>A policy of fire insurance upon property described only as “property in freight buildings,” will not cover articles of a kind specified in the policy to be not insurable unless by special agreement.</p> <p>A policy of fire insurance issued to a railroad corporation upon “ any property upon which they may be liable in freight buildings or yards ” of the corporation covers merchandise belonging to other parties for which the corporation are liable as common carriers, although other common carriers are by contract bound to indemnify the corporation for all loss upon such merchandise.</p> <p>A policy of fire insurance which insures “freight cars owned or used” by a railroad corporation covers cars belonging to another corporation but in the possession of the first corporation and used by them as common carriers.</p> <p>Under a policy of fire insurance which insures a certain sum “ on all or either ” of certain specified buildings, the insurers are liable for the full amount of a loss, not exceeding the sum insured, occasioned by the burning of a single one of the buildings.</p>

<p>The St. of 1862, c. 181, applies to cases of assessments or calls made by mutual fire insurance companies by authority of statute, but has no application to assessments or calls made by them by virtue of contracts contained in the deposit notes of their members.</p>

<p>Petition to affirm an assessment made by the directors of the Monitor Mutual Fire Insurance Company, an insolvent mutual fire insurance company, which upon the petition of the Insurance Commissioner had been enjoined from the further prosecution of the business of insurance. The case is stated in the opinion.</p>

<p>Bill in equity. The facts appear in the opinion of the court.</p>

<p>A testator, having two sons, George and Albert, devised an estate to trustees to take and apply the income for the use of his son George and on his death for his children; but should he leave no children, then to apply the income for the benefit of the testator’s eon Albert during his life, the surplus to be invested and allowed to accumulate. He further devised an estate to trustees to take and apply the income for the support of his son Albert during his life, and provided that if this income should be insufficient, the trustees should take from the income of the other estate a sum, not, however, exceeding one half the income, sufficient to supply the deficiency. He further provided that on the death of Albert the property devised for his use and benefit should go to his children if he left issue, otherwise to George, and in case of the death of George then to his children and their issue, should he leave any; but in case both George and Albert died without issue, then both estates should be divided among his nephews and nieces, children of certain of his brothers and sisters who were named in the will, for life, and after their decease to be equally divided among their children. Albert died without issue be fore George, who also died without issue. A portion of the estate devised to the use of George was taken to widen a street, and damages awarded therefor. Held, that George took an estate for life in the estate devised for his use, and either an estate for life or a base fee determinable upon the event of his dying without issue in the estate devised for the use of Albert; that the limitation over to the nephews and nieces was not void for remoteness, and took effect upon the death of George; that the widow of George was not entitled to dower; that the sum awarded as damages was to be regarded at real estate, and did not pass to the administratrix of George; that the children of a sister of the testator, who was not named in the will, were not entitled to share with the Other nephews and nieces; and that upon the death of George the trust terminated, and the nephews and nieces became entitled to the possession.</p> <p>A testator devised an estate to trustees to take the income for the use of his son George W. “until he arrives at the age of forty years, and on his attaining that age or should die without issue, then to the use of said George W. and his heirs.” ffeld, that the trust terminated upon the arrival of George at forty years of age.</p>

<p>A solicitor or agent for a mortgagee selling under a simple power of sale m the common form cannot he the purchaser of the property either for himself or for another.</p> <p>A notice of sale under a power of sale in a mortgage need not name those who have acquired an interest in the estate from the mortgagor since the mortgagee’s title accrued.</p> <p>In the absence of agreement to the contrary, one interested in land sold under a mortgage with a power of sale, is entitled to only the usual published notice.</p>

<p>Bill nsr equity, brought by the children of Patrick Wall against their uncles William and Timothy Hickey, alleging that Patrick Wall being seised in fee of a parcel of land in Dorchester conveyed it by mortgage to one Patrick Norton; that it was afterwards sold to one Hannah Clarkson for seven hundred dollars under a power of sale contained in the mortgage; that the land was worth at least thirty-five hundred dollars; that Wall tried to repurchase the land, but that Clarkson refused to sell to him at any price, but agreed that if parties could be found who would pay her a bonus, and take the property and hold it in trust for Wall’s minor children, she would convey the premises to such parties upon such conditions; that thereupon Wall applied to William Hickey and Timothy Hickey, who were brothers of Wall’s deceased wife, and uncles to his minor children, and asked them if they would advance the necessary sum to buy the property from Clarkson, and take a deed of it in trust for their nephews and nieces; that the Hickeys agreed to advance the necessary funds and hold the property upon such trust; that in pursuance of this agreement, Clarkson, the Hickeys, and Wall proceeded to an attorney’s office in Boston for the purpose of carrying out these arrangements and executing the necessary deeds ; that a deed was then drawn conveying the premises in fee from Clarkson to the Hickeys and executed by her; that the attorney, after inquiring of the parties on what terms the Hickeys were to hold the premises, noted down in a book, used by him for making minutes of the real estate transactions of his office, memoranda of a declaration of trust, which he read over to the parties, and to which they all assented, and which the Hickeys agreed to sign, that this declaration of trust was as follows:</p> <p>“ Declaration of Trust. William Hickey and Timothy Hickey, as to estate conveyed by Hannah Clarkson. To manage same, keeping in good repair, &c., and from proceeds of rents repay to themselves the sum of paid for the premises, with interest thereon semi-annually at 7-fa per cent., and thereafter hold the same for the benefit of Mary Ann McNally, wife of Hugh Mc-Nally, Ellen Wall, Michael Wall, Timothy Wall, and Honora Wall, children of Patrick Wall, and Mary Hickey, deceased; and upon youngest of said children reaching twenty-one years, to make over the whole estate to said Mary, Ellen, Michael, Timothy, and Honora in equal portions, discharged of trusts, and meanwhile pay the net income to them in equal shares, except, in case of the minors, they shall apply such portions of their share of said income as they may think proper to their maintenance ; and the balance, if any, keep safely invested, and pay over the same on their reaching their twenty-first year, respectively ; the children of either of said parties who may have died to take their parents’ share.”</p> <p>The bill then alleged that the Hickeys, having paid Clarkson the sum agreed upon, were permitted to take the deed, they agreeing to execute a declaration of trust according to the memoranda when they should be extended, and at the same time to record both the deed and the declaration of trust; that with this understanding the parties separated; that shortly afterwards the attorney wrote out a declaration of trust in accordance with the memoranda, and it was taken to the Hickeys; whether the Hickeys ever executed it or not the plaintiffs were unable to say, “but the records showed that the declaration of trust had never been recorded,” and the Hickeys claimed to hold the premises in fee simple, and unincumbered with any trust; that the plaintiffs supposed that the Hickeys held the premises in trust for the children of Wall, since he was permitted to occupy a part of them together with his children, without rent, for nearly two years; but that the Hickeys had since demanded and collected rent of Wall, and claimed toehold the premises in fee.</p> <p>The bill prayed that the defendants might be restrained from alienating or incumbering the premises ; that they might be ordered to execute a declaration of trust, and render an account of rents and profits, and for general relief. The defendants demurred to the bill, and the case was reserved by Morton, J., upon the bill and demurrer, for the consideration of the whole court.</p>

Bill in equity, in which the plaintiff prayed that the defendant might be compelled to execute a release of all her right, title and interest in and to an estate on Cunard Street in Boston.

Writ of entry to recover land in Boston. It appeared from an agreed statement of facts that both parties claimed title from one Wentworth ; that one McNiel sued Wentworth an action of contract, and attached the land in question; that, after the attachment, Wentworth mortgaged the premises ; that the mortgage title by assignment came to the demandant; that after the making of the mortgage McNiel filed an amended declaration containing additional counts; that it did not appear…

<p>Upon the trial of an issue to determine the value of ¿and taken by the city of Boston under St. 1867, c. 308, which empowers the city to take certain land and raise the grade so as to abate a nuisance, the question is what was its market value at the time of the taking; neither the fact that improvements were afterwards made by the city, nor that they were contemplated before the land was actually taken, is competent as independent evidence, to show what the market value was; and the exclusion of evidence of proceedings of the city council, showing the contemplated improvements, and published before the taking, affords no ground of exception.</p> <p>Upon the trial of an issue to determine the value of land taken by the city of Boston under St. 18b7, c. 308, evidence of the sum paid by the city for other land similarly situated, by agreement with its owner, is inadmissible as evidence of the market value of the land taken.</p>

<p>Bill ih EQUITY, filed January 16,1873, by William A. Bowdlear and Thomas Green, executors of the will of Samuel G. Bowdlear, against Elizabeth L. Bowdlear, widow of the testator, Fanny Lincoln Bowdlear and others, named in the will as legatees, praying for instructions.</p> <p>Fanny Lincoln Bowdlear claimed that she was the legal child and heir of the testator; that she had not been provided for in the will; that such omission was occasioned by accident or mistake ; that she had not been provided for by the testator in his lifetime, and that therefore she was entitled to take the same share of his estate, both real and personal, that she would have been entitled to if the testator had died intestate. The other defendants claimed that the property which had come into the possession of the plaintiffs as executors should be disposed of according to the provisions of the will.</p>

Bill in equity for the redemption of land sold for the payment of taxes. The bill was filed December 2, 1871. The bill alleged that the sale was made August 30, 1865. The defendants demurred upon the ground that the bill was not filed within five years. The case was reserved by Morton, J., upon bill and demurrer, for the consideration of the full court.

<p>Bill let equity. The case was reserved by Morton, J., upon the bill and answer for the consideration of the full court.</p> <p>From the bill it appeared that the plaintiffs were lessees for years of two shops on Cornhill upon which a betterment had been assessed by the city of Boston for the removal of Scollay’s Building; that the plaintiffs’ lease was for twenty-one years, from December 30, 1855 ; that the covenant in the lease was “ to pay the rent, and also all and singular the taxes, rates, charges, and assessments which shall or may. from time to time and at any time during said term be levied, assessed, or made on the demised premises, or in respect of the same, for or on account of any matter or cause whatever; ” that the lease further contained a clause that unless the assessments, &c., were paid in ten days, it might be forfeited. The bill alleged that the lessors demand a betterment of $2200, assessed upon the fee in the premises and against the owners, and that they threatened to enter and put an end to the lease, if the betterment was not paid. The bill contained an offer to pay the amount into court, or give security, and asked that the defendants be enjoined against entering to forfeit the leasehold estate, till the question of liability was determined.</p> <p>It also alleged that if liable at all for the betterment, the plaintiffs were only liable for a yearly interest upon it, of ten per cent., under St. 1871, e. 382, § 9.</p> <p>The answer did not deny the right of the plaintiffs to maintain the bill, if they were not liable for the betterment.</p>

Bill in equity by William Birmingham, Roger H. Scannell, Thomas Cook, John W. Sullivan, John B. Riley, Thomas R. Wallace, and Thomas O’Donnell, for and on behalf of themselves arid others, members of an association called the Boston Pressmen’s Benevolent Union, who might become parties to the bill, against Francis C. Gallagher and the Boston Five Cent Savings Bank.

Petition praying the court to examine and ratify two assessments made by the directors of the Mechanics’ Mutual Fire Insurance Company, an insolvent mutual fire insurance corporation which had been enjoined by this court, on the application of the insurance commissioner, from the further prosecution of its business.

<p>l'he directors of the East Boston Ferry Company bought a steamboat in their individual capacity, and so owning it, bought it of themselves, on behalf of the company as directors, at a large advance upon its cost and value. Held, that the transaction was fraudulent; that the profits made by them enured to the benefit of the company, and that the company could recover them with interest.</p> <p>The directors of the East Boston Ferry Company voted that the treasurer be authorized to purchase a certain steamboat “at cost of boat and repairs.” This steamboat was the property of the Citizens’ Ferry Company, of which company they were also the directors and the only stockholders. As the Citizens’ Ferry Company they sold the boat to the East Boston Ferry Company, at a sum much in excess of the “ cost of boat and repairs,” and divided the proceeds among themselves. Held, that the transaction was fraudulent), that the profits made by them enured to the benefit of the East Boston Ferry Company, that that company could recover of them personally all that was received by them above the “ cost of boat and repairs ” ; that money expended by them for professional services and expenses in obtaining the charter of the Citizens’ Ferry Company, and paid as salaries to themselves as officers of that company, was not a part of “ the cost of boat and repairs,” and that they were entitled to charge but six per cent, interest in making up the amount of the payments made on account of the boat.</p>

<p>Bill in equity by Theophilus P. Chandler and nine other persons, alleging that they were each and all citizens, property owners, residents, and tax payers of the town of Brookline, in the county of Norfolk, and as such were entitled to all the rights, privileges, and immunities appertaining to a town government; that the General Court, by an act passed May 16, 1873, St. 1873, c. 290, annexed the town of Brookline to the city of Boston on certain conditions in the act specified; that the town of Brookline, at the time of the passage of the act, did not contain twelve thousand inhabitants, as is required by the second amendment of the Constitution of the Commonwealth;* that on the contrary, the number of its inhabitants did not exceed seven thousand; that the act was passed without first obtaining the consent and without the application of a majority of the inhabitants of the town, as is required by the amendment; and that the city and the town designed and intended to execute and carry out the directions of the act as therein provided ; that if the act was carried into execution, it would deprive the plaintiffs of valuable rights which they enjoyed as citizens, property owners, tax payers, and residents of the town, and would unjustly and wrongfully subject them to heavy pecuniary and other losses.</p> <p>The bill charged that the act was in direct violation of the amendment, and should be declared null and void: and prayed for a writ of injunction prohibiting the city and town from proceeding under the act; and that the act might be declared null and void; and for general relief.</p> <p>The city of Boston demurred to the bill, because the plaintiffs had not stated a case which entitled them to any relief.</p> <p>The case was heard on demurrer and reserved by Ames, J., for the consideration of the full court.</p>

<p>Petition for a writ of certiorari to quash the proceedings of the county commissioners of the County of Berkshire in refusing to abate a town tax for the year 1869, assessed upon the petitioner by the assessors of the town of Otis.</p> <p>The petition set forth that the petitioner was incorporated by St. 1867, o. 134, for the purpose of building, erecting, and maintaining reservoirs of water on the Farmington River and its tributaries, in the town of Otis, for manufacturing and mechanical purposes; that on and before May 1, 1869, it was seised and possessed of certain lands in Otis and the adjoining town of Tolland, on which were great ponds of water, and prior to May 1, 1869, the petitioner, under the powers granted by its charter, enlarged the ponds by erecting a dam in the town of Otis, setting back the water, raising the same, and flowing its lands about the ponds in Otis to create a reservoir of water; that in the purchase of its lands in Otis and Tolland, and in the erection of its dam in Otis, it had expended about forty-four thousand dollars; that it purchased and owned 294 acres 102 rods of land in Otis designed to be flowed, and which it flooded, and constituted the reservoir in Otis, and which with 350 acres 88 rods of land in the great ponds in Otis existing at the time of the purchase, and belonging to the petitioner, constituted 645 acres and 30 rods of land covered by water May 1,1869, belonging to it; that it had no mills or water power, and depended for its income and support and profits upon the tolls it should receive of and from the mills and mill owners below its dam on the Farmington River, and from which it had been unable to collect any tolls or payments, or to make any agreement or contract therefor; that it had no power to compel payments for the use of its water, and was compelled to hoist the gates in its dam to furnish water to one Canfield, the first mill proprietor on the stream and river below its property and dam, which water enured to the benefit and enjoyment of all mill owners on the river below; that the shares of its capital stock were without value and worthless; that over its dam the town of Otis has laid out and established a town road leading from Otis to Tolland; that it had no income from its property; but that, notwithstanding, the assessors of Otis for the year 1869 assessed to it a tax, to wit: “ On land flowed for reservoir and dam, 596 acres, valuation $20,000, tax $280 ; highway tax on same, $85; tax to pay the several districts in the town of Otis for their school property, $80; ” that it presented to the assessors of Otis a sworn list and statement of its property held by it within the time allowed by law for such lists to be presented to assessors, to enable them to make an abatement of taxes; that having applied for and been refused an abatement of the tax by the assessors, it duly filed with the county commissioners of Berkshire its complaint asking for an abatement of the tax because of over valuation ; that afterwards such proceedings were had on this complaint that the board of commissioners adjudged and determined as follows: “ They ” do not find upon the “ annexed evidence in fact or in law that said tax should be abated, or any part or portion thereof, and they order said petition dismissed.”</p> <p>The petition then alleged that this finding, and the order that the petition be dismissed, were wholly erroneous, unjust, and wrongful; that the valuation of the assessors was excessive and erroneous, and the taxation of the land flowed for reservoir and dam at that valuation was unjust, erroneous, and excessive; that the commissioners erred as matter of law upon the matter before them, in not abating the tax, or the principal part of it, and that their actions, findings, and proceedings were contrary to the facts and the law upon the facts, and the decree erroneous, invalid, illegal, and void; because the record of the case and report showed the tax was assessed on land flowed for reservoir and dam in Otis, and that the value of the land and dam was nominal, was without market value, and had no cash value, and was useless and valueless as property, and was not assessed at a fair cash value; because the value of its property was estimated by the incidental use and benefit that flowed from its construction to parties in the State of Connecticut, from whom no compensation could be had; because the property had no such capacity for valuable use as to make or give it any value as property, it being under the existing laws of the state a valueless although a costly creation; because at the time of the tax it was of nominal value only, and if ever made valuable it could then be taxed, but should not be taxed at its capacity to furnish a supply of water of prospective value, which prospective value future legislation or contract might or might not bring to it; because the dam was a public road in Otis, and not liable to taxation; because the valuation of the land and dam taxed was not based upon the capacity of the property for valuable use in the year 1869; because the supply of water furnished by the reservoir passed into the Farmington River, and by the inadvertence and misfortune of the petitioner was then beyond its control, and that the waters thus passing into the said river, though valuable as an adjunct of the river to the property and parties below, were by such very fact destructive to the petitioner and rendered its property valueless ; because in the judgment of the county commissioners they have not found, as required by law, whether the petitioner was or was not overrated by the assessors in the assessment of said tax.</p> <p>The record of the county commissioners, a copy of which was annexed to the petition, set forth the evidence of the parties in interest at great length and concluded as follows: “ The board having carefully considered the whole matter, do not find, upon the annexed evidence, in fact or in law, that said tax should be abated, or any part or portion thereof, and they order said petition dismissed.”</p> <p>Afterwards, the petitioner objecting, the respondents applied for leave to file the following answer :</p> <p>“ Upon the hearing on the petition for an abatement of the tax assessed by the town of Otis upon the complainant corporation, the county commissioners certify that they found the following facts, to wit: that about 1850 an iron establishment was erected in Otis by one Wells, called the Cold Spring Iron Works. Wells also erected a reservoir dam at the outlet of a natural pond in Otis, called the Rand Pond, and thereby raised the water of said pond, flowing a large tract of land, containing two hundred and fifty acres and upwards, for the use of the said iron works, and Wells purchased of the owners the land so flowed. This reservoir was called the Wells Reservoir. This reservoir with the iron works subsequently came by due conveyances to one Wm. J. Canfield.</p> <p>“ That about 1864 and 1865, divers individuals and corporations owning manufacturing establishments in the State of Con nectieut, on the Farmington River, together with said Canfield, and one Albert Hull who owned manufacturing establishments in Otis and Sandisfield in this county, by joint effort and contribution created at great cost (say forty-four thousand dollars), an immense stone dam substantially upon the site of the Wells dam, and thereby flowed another large tract of land in addition to that previously flowed by the Wells dam. And the land so flowed was purchased of the owners and was conveyed to said Canfield. The said Canfield subsequently conveyed his interest in the reservoir dam and lands, including the lands acquired for the Wells reservoir as well as the lands acquired for the new reservoir, to one J. B. Foster in trust for the parties who had erected the new reservoir, reserving to himself certain water rights and privileges in favor of his said iron works, in said Otis.</p> <p>“ That after the act incorporating the complainant corporation, to wit, August 15,1867, the said Foster conveyed the same to the complainant corporation. That the stock in this corporation was wholly taken and has continued to be held by those who contributed to the erection and purchase of the said reservoir, and the stock of each was to the amount each had contributed. That the reservoir was built to supply the manufacturing establishments of the stockholders with a more uniform and permanent flow of water, which establishments are in the State of Connecticut, excepting the tannery of Hull and the iron works of Can-field. That the stockholders of said corporation manage and control its affairs as they think proper, and they enjoy, have, and possess at their several establishments, the uses and benefits of said reservoir, according to their pleasure and just as they contemplated at the time of the construction thereof. These uses and benefits are of great value to them, and almost, if not quite, indispensable a considerable portion of every year, to the success and prosperity of the aforesaid manufacturing establishments. That by this reservoir town and county roads and bridges were submerged, and others were required and built instead by the complainant, at its own expense.</p> <p>“ The corporation made a road upon and over the top of its dam and along the west side of the pond, in place of a town way and bridge submerged, and at its request the selectmen of Otis laid it out as a town way, and the town conditionally accepted it, which vote was as follows: ‘Voted, that the town establish the road as laid out by the selectmen, commencing near the house formerly owned and occupied by Lewis Clark and terminating near the house now owned and occupied by Wm. Clark, provided that William J. Canfield, or his heirs and assigns, will build the road to the acceptance of the selectmen, and pay all damages caused by laying and building of said road and save the town harmless from all expense, and to keep the road in repair across the dam and support railing on said dam.’</p> <p>“ That the assessment by the town of Otis of the tax for 1869, was in no part laid on land originally covered by natural ponds prior to the erection of the Wells dam, but on land which was purchased and flowed by Wells, and on lands in addition thereto which were purchased and flowed by the new stone dam of complainants, and the number of acres so assessed were the same as given in to the assessors as belonging to the complainants.</p> <p>“ And now these respondents, to wit, the county commissioners and the inhabitants of Otis, respectfully submit that the Supreme Judicial Court will not canvass the evidence laid before the commissioners with the view of drawing inferences and establishing facts therefrom, but will assume as true the facts found by the commissioners.</p> <p>“ The substantial fact found by the commissioners was that the complainant corporation was not taxed more than its just proportion and was not overrated, and therefore they dismissed the petition for abatement, as appears from their record which is attached to the petition in this case. And the respondents submit that the finding of facts from the evidence before them by the commissioners is final upon all matters of fact, and that their doings, findings, and judgments were in all respects just and without error, and that the complainant corporation shows no cause entitling it to the writ of certiorari as prayed for.</p> <p>“ County Commissioners, by Wilcox & Bowerman, Attorneys.</p> <p>“ Inhabitants of Otis, by Wilcox & Bowerman, Attorneys.”</p> <p>The ease was reserved by Ames, J., for the consideration of the full court. If the court should be of opinion that the respondents had the right to file the answer, and that it constituted a good defence, then the cause was to be continued for such further hearing upon the facts set up in the petition and answer, and such other proceedings as should be determined by the court were open to the petitioners; and if the respondents had not such right, the writ of certiorari was to issue.</p>

<p>Petition of the town of Great Barrington for a writ of certiorari to quash the proceedings of the county commissioners of the county of Berkshire in abating a portion of the town tax assessed upon David S. Draper.</p> <p>The petition set forth that the assessors of the town for the year 1870 assessed David S. Draper, an inhabitant of the town, $587.02 upon his personal property, valued in the assessors’ list at the sum of $78,269.00; that one of the items in the assessors’ list which was included in the sum total was, “ Interest in sundry cargoes or stock in trade, $17,326.00;” that before the time fixed for bringing in lists had expired, Draper presented a list of his property which did not include this or any similar item; that he claimed that if he had any such interest or property it was not taxable; that the assessors at the time told him that they considered it taxable, and requested him to inform them of its amount and value May 1, and add it to the list which he had presented; that he said he could not tell its amount, but would ascertain and inform them soon; that the board of assessors received his list in connection with this promise, and one of the board administered to him the required oath; that he never thereafter came before the board, or answered the question put to him in regard to this property as they had requested him, and as he had promised to do; that afterward he handed to one of the assessors, as he met him in the street, a paper which purported to be an account current of the business of James Robinson & Co. importers in the city of New York, for a period ending January 1, 1870, but which did not give any statement of their business between January 1 and May 1; that this paper had no tendency to give the assessors the amount and value of his property thus invested May 1, 1870, and which he had promised them he would do ; that the petitioners had not this paper, as it had been handed back to him at his request; that after he had neglected and refused to give the board of assessors any information of the amount and value of his property thus invested May 1, and had neglected' and refused to answer the question concerning it, they fixed the amount and value of his property so invested according to the best information they could get, at the sum of $17,326.00, and added that sum to his list, and taxed him for it; that within the time allowed by law he applied to the assessors to abate the tax assessed upon this sum; that they refused to make the abatement; that thereupon he applied to the county commissioners for an abatement; that the petitioners appeared and filed a motion to dismiss, denying the jurisdiction of the commissioners ; that the motion to dismiss was overruled, and a hearing had on the petition, and at the hearing it was admitted by Draper that he had, May 1, an interest in a cargo of brimstone, then on board a vessel at the city of New York, and that his interest in the cargo was worth $4600.00; that he also admitted that he had, May 1, an interest in certain cargoes purchased at Messina and then on the way to New York; that it was agreed that his interest in these cargoes was worth $10,000.00. That in connection with this admission he claimed that his interest was not taxable, because the cargoes were purchased with a letter of credit on Baring Brothers & Go. of London, and the invoices and bills of lading were filled up to the order of Baring Brothers & Co., in accordance with the terms of the letter of credit; that these cargoes were on board of vessels owned by and under the control of Draper alone, or in connection with other persons having a like interest, and were in his or their possession, and were being brought by him or them to Hew York; that the commissioners granted an abatement of the tax to the amount of $95.65.</p> <p>The petition then alleged that the commissioners erred in matter of law upon the facts above stated (all of which it alleged were proved or admitted before the commissioners) in refusing to dismiss the petition; and that as the only overtaxation complained of was as to this single item, if it should appear that the assessors overvalued the amount of property in that item, it was caused by his neglect to furnish them a statement of the amount and value of his property so situated, and that therefore the commissioners erred as matter of law in allowing him to take advantage of his own wrong, and in abating any part of the tax on this item; that it was apparent, upon the commissioners’ report, that they abated the tax on his interest in cargoes purchased at Messina as above stated, and that this was erroneous and wrong as matter of law.</p> <p>It appeared from the list of Draper’s estate liable to taxation, referred to in the petition, and a copy of which was" annexed to it, that various species of property, both real and personal, owned by him, instead of being specifically enumerated and valued, were described simply by the phrases, “ As last year,” and “ Same as last year.”</p> <p>To this petition the respondents filed the following answer:</p> <p>“ The county commissioners .... certify the facts as found by them at the hearing to be as follows, to wit: That the assessors of the town of Great Barrington assessed said Draper in the sum of $587.02, as his tax on his personal property as stated in said petition, and that one of the items in said assessment was, e Interest in sundry cargoes or stock in trade, -$17,326.00,’ as stated in said petition; that within the time by law allowed the said ' Draper brought in to said assessors a list of his property.</p> <p>“ It was admitted and proved that said Draper made oath in due form of law to said list before one of the assessors, when he handed in his said list, and that the assessor administering the oath inadvertently omitted to make a certificate thereof.</p> <p>“ At the time of giving in his list, the assessors interrogated him as to having property in the form of cargoes at sea, May 1, 1870, and he fairly answered all questions so put to the best of his knowledge and belief. That said Draper claimed and informed the assessors that his interest in cargoes at sea, May 1, 1870, was conditional and uncertain, and that he did not consider himself taxable therefor; and that it was impossible then to say what or how much his interest might prove to be, if anything; and as affording some means of information, the assessors requested him to hand them an account of certain cargoes of a similar character to January 1 preceding, and the said Draper complied with said request by handing said account to one of the assessors, who took it before the board of assessors, and it was by them retained as long as they pleased, and then was returned to said Draper without further questions or requests; and without notice of dissatisfaction with the list handed in by said Draper, they added thereto the said item of $17,326.</p> <p>“ The commissioners found as a fact that Mr. Draper neither neglected nor refused to answer any questions put by the assessors truly according to the best of his knowledge and belief.</p> <p>“ At the hearing, Draper admitted he had, May 1, 1870, an interest in a quantity of brimstone in -the city of Hew York, which he claimed, and the commissioners so found, had been unintentionally omitted from his list as given in, and of the value of $4600.</p> <p>“ The commissioners found as a fact that the sum of $17,326, added to Draper’s list, was intended by the assessors to cover the amount of taxable property which they supposed said Draper had in the form of cargoes of fruit on May 1, then, as well as at the time of receiving said list, afloat at sea from foreign ports to this country. And upon the evidence as to this description of property the commissioners find the facts as follows: That said Draper and others received of Baring Brothers & Co. of London a letter of credit authorizing one A. B. of Messina, named therein, to draw on them to a given amount for the cost of shipments of merchandise on vessels for New York or Boston, if accompanied by invoices and bills of lading of such shipments, filled up to the order of Baring Brothers & Co., it being understood that the property in said cargoes should be and remain the absolute property of Baring Brothers & Co., and be disposed of under their directions, and that from the proceeds they should retain the amounts drawn upon them under said letter of credit, with which said cargoes were purchased, and the balance if any, when ascertained, to be paid to Draper and his associates.</p> <p>“ Upon these facts the commissioners declined to dismiss the petition of said Draper for an abatement, and abated the tax assessed to him to the amount of $95.65, being the tax on the sum of $12,761.69; the tax on the balance of said sum of $17,326, being the value of the brimstone inadvertently omitted in the list of said Draper, was not abated.”</p> <p>Draper, who was summoned in to show cause why the writ of certiorari should not issue, relied upon the answer of the county commissioners.</p> <p>The case was reserved by Ames, J., for the consideration of the full court, upon the petition and answer. If upon the facts found by the commissioners, and stated in their answer, the abate-: ment of which the petitioners complain was legally made by the commissioners, then the petition was to be dismissed, unless the court should be of opinion that it was open to the petitioners to controvert those facts in this proceeding, or to change their effect by proving any of the other facts alleged in their petition ; in that case such direction was to be given that the petitioners might have opportunity so to do.</p> <p>The case was argued in writing by</p>

<p>A clearly defined right of way, originating in giant or reservation, is not lost by mere non-user.</p> <p>A right of way as appurtenant to land may he established by a reservation in a deed of the land over which the way is claimed; and will pass by a deed of the land to which it is appurtenant without express words.</p>

Tort for obstructing a right of way of the plaintiff across a close in New Marlborough. The answer denied that the plaintiff had the alleged right.

<p>The rule that a servant cannot recover of his master for damage sustained from the negligence of his fellow-servant does not prevent his maintaining an action against his master for consequential damages by him sustained through an injury to his wife from such negligence.</p>

<p>Tom for slander in accusing the plaintiff of having committed the crime of sodomy with a mare. Trial in the Superior Court, before Rockwell, J.</p> <p>The declaration contained three counts. The first count set forth “that the defendant publicly, falsely and maliciously accused the plaintiff of the crime of sodomy by words spoken of the plaintiff substantially as follows [setting out the words] ; and 'the said defendant at another time, in a certain conversation, of and concerning the «aid plaintiff, falsely and maliciously said that he the said plaintiff [setting out other words] ; and the plaintiff says that the said defendant, by the words, statements, assertions and utterances so publicly, falsely and maliciously made m the presence and hearing of divers good citizens of this Commonwealth, of and concerning the plaintiff, designed to accuse and did accuse the plaintiff of having committed .... ■lodomy,” &c.</p> <p>The third count set forth “that the defendant publicly, falsely and maliciously accused the plaintiff of the crime of sodomy by words spoken to and of the plaintiff in the presence and hearing of divers good citizens of this Commonwealth, substantially as follows: in a certain conversation by plaintiff with defendant, defendant said to plaintiff [setting out words which of themselves conveyed no imputation] ; and at another conversation had by plaintiff with defendant, defendant said to plaintiff [setting out other words which of themselves conveyed no imputation] ; and again repeating said words afterwards publicly, and in being inquired of as to what he meant by the use of such words, replied [setting out other words], and at another conversation repeating the words made use of by the defendant to the plaintiff as above stated, defendant said [setting forth still other words], he the said defendant designing and intending by the use of said words .... to accuse and did accuse the plaintiff of the crime .... de-i nominated sodomy,” &c.</p> <p>At the trial, the defendant contended that the first count of the declaration contained no legal charge of sodomy, because the language of itself implied no illegal act; and that the first and third counts each alleged two distinct causes of action, and asked that the plaintiff be required to elect upon which cause of action he would rely. The court ruled that the plaintiff could not be required to elect until the evidence was closed.</p> <p>The plaintiff then offered one Heath, a citizen of this state, as a witness, who testified to a conversation he had with the defendant in which the defendant made assertions about the plaintiff, though not in the precise words set forth in either count of the declaration. The witness further testified that only he and the defendant were present at this conversation.</p> <p>The defendant contended that Heath’s evidence did not support either count, because not in the language there alleged, and because only one person was present at the conversation.</p> <p>The plaintiff called one Steadman as a witness, who also testified to a conversation which he had with the defendant, in which the defendant made assertions about the plaintiff, though not in the precise words set forth in either count of the plaintiff’s declaration.</p> <p>The plaintiff offered in evidence the deposition of one Otto Stamm, which deposition stated that he was a citizen of New York at the time of his conversation with the defendant. The deposition and the commission and interrogatories were returned together in a sealed envelope to the court, but the answers were not annexed to either commission or interrogatories. The defendant objected to this evidence, because the deposition was not annexed to the commission, and because it was not properly certified to the court. The deposition was admitted in evidence. .In this deposition were detailed remarks made by the defendant about the plaintiff, though not in the precise words set forth in either count of the plaintiff’s declaration.</p> <p>The deposition of Arthur Stewart was offered in evidence by the defendant, in which was evidence tending to show that the plaintiff had sexual connection with a cow. The court excluded this evidence as incompetent and immaterial. The plaintiff’s attorney attended the taking of this deposition, and cross-exam-" ined the witness, upon his testimony in regard to the cow. The defendant offered that portion of the evidence of the deponent relating to the cow given in reply to the plaintiff’s cross-examinatian. Upon the plaintiff’s objection, this was also excluded by the court.</p> <p>There was conflicting evidence relating to all the alleged conversations with the defendant.</p> <p>At the close of the evidence, the plaintiff elected to rely upon the first and third counts of his declaration, and to rely upon the testimony of Heath and of Steadman, and the deposition of Stamm, in support of these counts.</p> <p>The defendant asked the court to rule that there was a substantial variance between the words alleged to have been uttered and the evidence of each of the witnesses relied upon in support of the same; but the presiding judge ruled otherwise, and said he could not so rule as matter of law, but must leave the language to the jury; and if they found the language of the testimony the same in meaning as the language set forth in the declaration, it would be sufficient.</p> <p>The defendant also requested the court to rule that the conversation of Stamm -with the defendant, no person being present except the witness and the defendant, was not competent to prove either count of the plaintiff’s declaration. The court declined thus to rule, but ruled that if the jury were satisfied that Stamm was not a citizen of this Commonwealth, the testimony must be laid out of the case, and could have no effect.</p> <p>The jury returned a verdict for the plaintiff, and the defendant excepted.</p>

Actions oe contract upon a bond. Both actions depended upon the same facts and involved the same questions, and were tried together in the Superior Court before JRockwell, J. At the trial it appeared that the defendant had executed the following bond: “In consideration of six thousand dollars this day received of Electa Pierce, of Peru, Berkshire County, Massachusetts, widow of the late Ebenezer Pierce, of said Peru, I, Martin Pierce, of Peru, aforesaid, do hereby covenant…

Tobt for trespass in forcibly entering the close of Octavius J. Hollenbeck, digging a ditch and laying an aqueduct from the spring there, to the defendant’s premises, and taking the water by means of the aqueduct. Trial in the Superior Court before Dewey, J., who reported the case as follows: “ It appeared that George Tyler conveyed the premises where the spring is situated, to Hiram Pomeroy, November 3, 1834. Pomeroy conveyed the same to Hubbard Fox, March 16, 1837.

<p>The neglect of a married woman, doing business on her separate account, to file the certificate required by St. 1862, c. 198, gives the husband no authority to dispose of her separate property.</p> <p>A husband to secure a debt of his own mortgaged his wife’s property; the mortgagee in the presence of the wife threatened to foreclose and demanded more security ; the wife said to him “What more do you want? You have a mortgage on all the personal property already: ” Held, that this would authorize a jury to find that she had ratified the act of her husband in giving the mortgage.</p>

<p>Contbact on the following receipt: “ Whereas, Lucian B. Moore has this day at my request delivered to me the following property: 4 red cows, 1 yearling, 1 gray horse, 1 bay horse, 1 two-year old colt, 1 set harness, and 10 tons of hay, all of the value of $700, attached by him as the property of Lucy M. Hubbard, on a writ in favor of W. C. Langdon, returnable to the Superior Court fourth Monday of February 1868 : In consideration thereof I promise safely to keep the aforesaid property until the said Moore or his order shall call for the same ; then to deliver it to him or his order at such time and place as he shall appoint, in like good order as the same now is: and I do further promise that I will save and keep harmless said Moore from all cost, trouble and expense that shall or may arise to him through any default in consequence of his intrusting said property in my hands.</p> <p>James M. Fargo.”</p> <p>At the trial in the Superior Court, before Dewey, J., there was evidence that the plaintiff returned an attachment of the property ; that the defendant signed the receipt and took a mortgage of the property to indemnify him; and that the property remained in Lucy A. Hubbard’s possession.</p> <p>It was admitted that the plaintiff was a deputy sheriff when the receipt was made, and for more than thirty days after judgment given in the suit in which the property was attached ; that the judgment was recovered July 9, 1870 ; that the execution issued Tuly 25, 1870 ; and that the execution and the receipt were delivered by W. C. Langdon, the plaintiff in the suit, August 8, 1870, to M. H. Langdon, a deputy sheriff, with instructions to demand of the defendant the property specified in it.</p> <p>The plaintiff testified that when he made the attachment he took the receipt by direction of W. C. Langdon, the plaintiff in that suit; that he kept it until August 7, 1870, when W. C. .langdon sent for it, and he sent the receipt to him; that the _rroperty was never demanded of him, (the present plaintiff,) and that the receipt had never been indorsed by him.</p> <p>M. H. Langdon testified that he was a deputy sheriff; that he called at the defendant’s house on August 8 twice within about an hour; that he inquired for the defendant; that he did not find him; that he was told by the defendant’s wife that he probably would be there soon; that he told the defendant’s wife he had the receipt and the execution, and that he was there to demand the property; that he did demand it; that he immediately went away; that he had no authority except the execution and receipt ; and that he had made no other demand.</p> <p>The defendant’s wife testified that Langdon called and inquired for the defendant, and said he wished to see him to demand the property of Mrs. Hubbard which he had; and there was other conflicting evidence of what Langdon said at the defendant’s house.</p> <p>There was other evidence that the defendant, when Langdon called, was engaged on his farm upon which his house was situated, but there was no evidence that Langdon knew it.</p> <p>There was also evidence that the hay named in the receipt had been consumed by the stock, and the colt and one cow sold without the defendant’s consent, and that the other property was where the defendant could have delivered it. .</p> <p>The defendant contended that Langdon should have made the demand as agent of Moore, and should have stated by what authority he made it; and he requested the court to instruct the jury “ that, if no demand was made on Moore by an officer having the execution, and no execution placed in his hands within thirty days after judgment in the action, and no demand made by Moore or by his order on the defendant for the property so attached, within thirty days after judgment, the action cannot be maintained; and that if the officer who made the alleged demand at the defendant’s house was acting under the direction of the judgment creditor, and not by the direction or order of Moore, or that if he failed to disclose to the defendant or to the defendant’s wife, on whom demand is said to have been made, the authority by which he made the demand, or under whose direction he made it, or failed to appoint a time and place for the delivery of the property according to the terms of the receipt, or failed in any manner to make himself understood by the defendant or by his wife, the demand would be ineffectual, and an action cannot be maintained on the receipt.”</p> <p>The court refused so to instruct the jury, but instructed them as follows : “ The plaintiff is entitled to maintain the action on proof of the delivery to him of this receipt by the defendant, and that the writ on which the attachment of property was made was duly entered, judgment therein rendered, and an execution thereon was issued, and within thirty days thereafter delivered to an officer qualified to serve it, who, having received the receipt for that purpose within thirty days from the day of judgment, made a demand upon the defendant for the property receipted for, and the defendant neglected to deliver it, and the execution has never been satisfied. If this is found, the plaintiff is entitled to a verdict for the amount of the execution and interest, the value of the property being admitted to be greater.</p> <p>“ To constitute a demand, the officer making it must make a request of the person upon whom it is made in such a manner as that the person on whom it is made may reasonably be informed of the nature of the request and know what is required. It is proper he should state or show his authority, but if he makes it without showing or stating his authority thus to demand it, yet if his authority is not questioned, at the time of the demand, it may be considered as admitted or waived; that if the defendant was not at his dwelling-house, having no other usual place of business, when the officer called to make a demand, a demand made on the person in charge of the premises would be sufficient. And that if no demand was made, the plaintiff would be entitled to recover for such portion of the property as had been so disposed of that the receiptor could not deliver it to the officer, notwithstanding there was other property in the receipt sufficient to satisfy the judgment creditor’s claims.”</p> <p>The jury returned a verdict for the plaintiff for the full amount of his execution and interest, and in answer to the inquiry of the court replied that they found a demand was made by the officer. The defendant excepted.</p>

<p>A railroad corporation had a regulation and usage by which cars containing certain kinds oi goods should be unloaded by the consignee within twenty-four hours after notice to him of their arrival, and for delay in unloading after that time the corporation charged $2 a day for each car which contained such freight and was owned by another railroad company. Held, that, for a delay in unloading, the corporation in its capacity as a warehouseman, as against a consignee who had knowledge of these facts, had a lien upon the goods for storage.</p>

Tobt for the conversion of a promissory note made by the defendant and payable to the plaintiff, which it was alleged the defendant took for the purpose of casting the interest due, and retained under the pretence that she had paid it. The defence was that the note had been actually paid.

Contract on this account annexed : “ John H. Langdon, Dr. March 20, 1869. To one double runner sleigh, $86.00.” The writ was dated November 28, 1870.

Complaint under the mill act. Trial in the Superior Court, before Dewey, J., who, after a verdict for the respondent, allowed the complainant’s bill of exceptions, from which it appeared that the complainant derived his title by deed from Allen S. Yale, July 81, 1871. The respondent derived his title by deed from Marshall Brace, February 26,1868, and claimed a prescriptive right to maintain his dam at the height it was maintained during the time covered by this complaint.

<p>Under the Gen. Sts. c. 117, § 25, and notwithstanding o. 92, § 20, it is within the discretion of this court to order that no costs shall be awarded to either party upon an appeal from the probate of a will, although the issue is upon the sanity of the testator and is found by a jury against the appellant.</p>

<p>A married woman, to enable her son to borrow money, gave her note secured by a mortgage of her separate estate, to which mortgage the husband assented in writing, and the money was advanced upon it. In a suit in equity against her and her husband to make the debt a charge upon the mortgaged property: Held, that there was no remedy at law; that the note at law was void; that the mortgage was also void, and could not be foreclosed by action; that the debt was a charge upon the mortgaged estate; that the pendency of an action to foreclose the mortgage was not a valid objection to the maintenance of the suit in equity; and that the husband was properly joined as a defendant.</p>

Indictment on Gen. Sts. c. 87, § 9, against the awrier of a building for omitting, after due notice, to take all reasonable measures to eject therefrom a tenant who used the building for the illegal keeping and sale of intoxicating liquors.

Complaint to a trial justice, by Bernhardt Leipshutz, charging the defendant with an assault and battery upon the complainant on the second day of September, 1872. The complaint also bore date September 2, 1872.

Complaint for the illegal keeping of intoxicating liquor. The complaint alleged the keeping on the tenth day of September, in the year eighteen hundred and seventy. At the trial upon appeal in the Superior Court, before Book-well, J., the évidence was confined to a keeping on the 10th of September, 1872. The defendant objected that such evidence would not support the allegation in the complaint.

Complaint for being a common drunkard from August 15, 1872, to December 7, 1872. At the trial, upon appeal, in the Superior Court, before Rockwell, J., the district attorney claimed that there was evidence tending to show that the defendant was drunk on from five to seven different occasions on as many different days within the period mentioned in the complaint.

Complaint to a trial justice charging that the defendant was a common seller of intoxicating liquor.

Indictment against Alexander Strangford and Andrew Strangford on Gen. Sts. e. 161, § 61, alleging that the defendants “ at Easthampton, in said county of Hampshire, with force and arms, with a fraudulent intent to place mortgaged personal property beyond the control of the mortgagee, then and there from the shop there situate, occupied by the said Alexander and Andrew Strangford, a large quantity of ready made clothing, the whole of the value of five hundred dollars, a large…

The defendants, since the entry of the action, had been duly adjudged bankrupts. It appeared from the officer’s return upon the writ that he had attached, September 6,1872, real estate of the defendants, and September 27, 1872, a kiln of bricks. A petition in bankruptcy was filed against the defendants February 6,1873, and Enos Parsons was appointed assignee of their estate.

Contract on an account annexed, to recover for “ 831 creal castings, 2004 pounds, at 12 cents per pound.” At the trial in the Superior Court before Rockwell, J., there was evidence tending to show that the defendants agreed with the plaintiff to supply a quantity of creals used in the manufacture of cotton yarns ; that the number to be furnished was to be about four hundred, or about eight hundred, that if the defendants took four hundred they were to pay twelve cents a…

<p>Libel eor divorce, in which the libellant set forth that he was married to Frances M. Dickinson, June 7, 1871; that soon after their marriage he and his wife commenced housekeeping, and that with occasional absences of the wife they continued to occupy the same house till April, 1872, since which time she has ceased to live with him ; that she from the time of their marriage had been guilty of cruel and abusive treatment of him, in refusing to have any sexual intercourse "with him, and had never had such intercourse, and had ever refused to have it. Wherefore he prayed that the bonds of matrimony between them might be dissolved.</p> <p>The libellee was defaulted, and the libel was heard before Wells, J., who refused to grant either a divorce or a decree qf nullity, solely on the ground that the utter denial of sexual intercourse was not a cause for which such a decree in either form could be made by the court. The libellant excepted.</p>

Contract upon an account annexed, containing as its first item: “ To amount of contract price for house as per contract annexed, $700 ; ” and giving as a credit: “ Credit by cash paid, $600.” The contract referred to was a written agreement of the defendant to pay the plaintiff $700 for building a house according to certain specifications therein set forth.

Petition to enforce a mechanic’s lien for labor performed and for materials furnished and used in the erection of a house. The respondent Humphrey was defaulted. Edwin B. Goodwin and James Converse, the other respondents, defended the action.

Contract against George A. Wood and Henry S. Higgins, as makers of the following promissory note : “ $1000. North Hadley, March 31st, 1868. “ For value received we promise to pay L. L. Draper or order one thousand dollars on demand, with interest at twelve per cent, “ Geo. A. Wood, “ H. S. Higgins.” Wood was defaulted.

<p>Actions oe contract to recover for alleged losses by fire under three policies of insurance, one issued by each of the defendant companies. The actions were tried together. The Manhattan Insurance Company insured the plaintiff against loss or damage by fire “ on stock of dry goods and other merchandise, hazardous and extra hazardous, his own or held by him in trust or on commission, or sold but not delivered, contained in the frame building known as Hunt Building, situate on Main Street in the village of Northampton, Mass., as per plan filed in this office, and on his store furniture and fixtures also contained in said building.” The policies issued by the other companies were the same, except that they did not contain the risk upon the furniture and fixtures; and, while the policy of the Greenwich Insurance Company referred to a plan filed in the office of Rathbone, Greig & Hamblin in the city of New York, the policy of the Market Insurance Company contained no reference to a plan. The plans referred to were like the one given in the margin,*</p> <p> </p> <p>These cases, with one against the Commonwealth Insurance Company, which was subsequently settled, were by the Superior Court referred to an auditor under the following rule: “ And now it is ordered by the court that Samuel T. Spaulding, Esq, be, and he hereby is appointed auditor in the above mentioned actions, to hear the parties and examine their vouchers and evidence, and to state the accounts and make report thereof to the court; and if either party neglects to appear on due notice, then the auditor is to proceed ex parte”</p> <p>The auditor made the following report:</p> <p>“ The plaintiff was insured on his stock of dry goods in the frame building known as the Hunt Building, situate on Main Street in Northampton, from the 19th' of March 1870 to the 19th of March 1871, to the amount of $2000, by policy issued by the Commonwealth Fire Insurance Company of the city of New York, in which a plan of the premises is referred to as filed in the office of Rathbone, Greig & Hamblin; to the amount of $1500, by policy issued by the Greenwich Insurance Company of the city of New York, in which the same plan is referred to, from the 19th of March 1870 to the 19th of March 1871; to the amount of $3500, by policy issued by the Manhattan Insurance Company in the city of New York, as per plan filed in the office of the company, being the same as, or similar to, the plan above named, from the 9th of December 1869 to the 9th of December 1870; and to the amount of $2500, by policy issued by Market Fire Insurance Company in the city of New York, in which no plan is referred to, and the building is described not as the Hunt Building, but as the framed building owned by B. North, from the 17th of October 1869 to the 17th of October 1870. No question was made that the same premises were not referred to in the last named policy as in the others. The plaintiff was insured also by the policy from the Manhattan Insurance Company to the amont of $600, on his store furniture and fixtures also contained in said building.</p> <p>“ The plan referred to represents the story of the Hunt Building opening immediately from the street, as divided into three rooms, parallel to each other and extending from front to rear the middle room being the smallest, and the east and west rooms about equal to each other in size. The plaintiff occupied the west room at the time the policies were issued, and there carried on business, where the goods, furniture and fixtures insured were then situated. The other rooms were occupied and used as stores severally by other parties. At the hearing the plaintiff testified that the shape of the room thus occupied by him was different from that represented on the plan, in this, that the middle room extended only about half way from the front to the rear of the building, and the space in the rear of that room was then included in the west room, and was part of the store occupied by him with his goods, furniture and fixtures.</p> <p>“ The building was wholly consumed by fire on the 19th of May, 1870. Due notice was given, and proof made by the plaintiff of his loss, to the defendants. Between the time the insurance was effected and the time of the fire, the plaintiff entered into possession of the east and middle rooms, took away the partition separating the west and middle rooms, and filled the whole space afterwards constituting only two rooms, designated as the East and West rooms, with goods, fixtures and furniture, and carried on trade therein until and at the time of the fire.</p> <p>“ The plaintiff claimed $8,905.19 as his loss on the goods, including the value of the goods burnt, and the damage to goods by their removal, besides $156.50 damage to the furniture and fixtures, and these actions were brought to recover those sums. It was agreed that the sum of $596.78 should be taken as a correct estimate of the damage to the goods saved, and $156.50 of the damage to the furniture and fixtures, as settled by appraisers mutually chosen. The plaintiff testified that he calculated the loss on the goods by adding together the cost of goods on hand the 14th of February 1870, as per inventory then taken, and the cost of goods purchased between that day and the 19th of May, as shown by invoices, and subtracting from the amount the cost of goods sold during the same period, and the value of the goods saved as ascertained by the said appraisers. To determine the cost of goods sold, he deducted from the price of cash sales, in the ordinary business of the store, 38 per cent., and from the price of goods supplied to a store at Amherst, and another store at Easthampton, 12^ per cent.</p> <p>“ Allowing for errors in invoices, or in the statement of them in evidence, and in the calculation of the cost of goods sold, I find that the whole loss on the goods, including the value of the goods burnt and stolen, and damage to goods saved by their removal, was at least $7000. Deducting the appraised damage to the goods saved, I find that $6403.22 was the value of the goods burnt and stolen.</p> <p>“ The defendants claimed as a matter of law to be referred to the court, that by the terms of the policies they were not liable for goods burnt in, or damaged by removal from any part of the store except what was the west store at the time the insurance was effected, nor for goods stolen. The questions therefore presented at the hearing for my decision, depending upon the said question of law, were, 1st. What was the value of the goods burnt in that part of the building occupied by the plaintiff at the time of the fire. 2d. What was the value of the goods burnt in that part which was originally the west store, and the damage to goods and furniture and fixtures removed from that part ? and 3d. What are the proportions, and shares of the loss, in each case to be sustained by the defendants respectively ?</p> <p>“ Several witnesses testified in behalf of the defendants that they assisted in removing goods from the store at the time of the fire, that the fire broke out under the roof, in the rear, about midway between the ends of the building; that the store was lighted with gas ; that all the goods were removed, except articles of small value, varying in the opinions of the witnesses from $50 to $150 ; that drawers, a counter, and case doors, and a desk were carried out; that they went over all parts of the store, and some saw no goods, except trifling articles scattered about the floor, and others only those and a few articles hanging upon a string; that they were finally driven out by the fire from the west store, the plaintiff coming out last with his arms full of goods, and especially that the west store was cleared of goods ; also that the plaintiff afterwards said that there were not many goods left in the store, but a great manj were stolen. On the other hand waa the presumption that the missing goods remained in the store until it was shown they were carried out, and that the observation of witnesses in the confusion, hurry and alarm of the fire, especially as to parts of the stores to which they did not seem to have given particular attention, was likely to be superficial and inaccurate. On the whole evidence therefore, I find that the larger part of the goods missing was removed; that the west store was nearly cleared; and that the goods, visible to the witnesses who testified, were few and comparatively of little value; and I have no certain guide as to the value of the goods which might remain unnoticed. However, I make the following estimate, not entirely satisfactory to myself, as probably covering the amount of goods actually consumed by fire.</p> <p>Value of goods burnt in what was the west store . $200</p> <p>Value of goods burnt in what became the east store of the plaintiff......1000</p> <p>which sums, with $596.78, the damage to goods removed, make $1796.78, to be apportioned among the defendants if they are liable for the whole loss, besides $156.50, the damage to the furniture and fixtures, to be charged to the Manhattan Insurance Company alone.</p> <p>“ If the defendants are liable only for the value of goods burnt in what was the west store, and the damage to goods, furniture and fixtures removed from that part of the building, then there is to be apportioned between them the sum of $498.39, being the amount of the goods burnt in that store and one half of the appraised damage to the goods, besides $78.25, being one half of appraised damage to the furniture and fixtures, to be charged to the Manhattan Insurance Company alone.</p> <p>“ I estimate the proportions and shares of the whole loss, if to be sustained by the defendants, as follows:</p> <p>The Commonwealth Fire Insurance Co. $378.26 20-95</p> <p>The Greenwich Insurance Co. 283.70 15-95</p> <p>The Manhattan Insurance Co. $661.97 35-95 plus 156.50</p> <p>Market Fire Insurance Co. $472.83 25-95</p> <p>“And the proportions and shares of the partial loss, if that inly is to be sustained by the defendants, as follows:</p> <p>The Commonwealth Insurance Co. $104.92 20-95</p> <p>The Greenwich Insurance Co. 78.69 15-95</p> <p>The Manhattan Insurance Co.</p> <p>$183.61 35-95 plus 78.25 = $261.86 35-95</p> <p>Market Fire Insurance Co. 131.15 25-95</p> <p>“ In the foregoing estimates and apportionments of damages no part of the value of goods stolen has been included.”</p> <p>Trial in the Superior Court, before Rockwell, J., who, after a verdict for the plaintiff, allowed the defendants’ following bill of exceptions :</p> <p>“ The plaintiff offered the auditor’s report in evidence; the defendants objected to the reading of any part of it to the jury except the findings of the auditor on the matter into which he was ordered by the rule to inquire ; but the court overruled the objection, and permitted the whole report to be read in evidence. The court gave proper instructions as to the use and effect as evidence of the auditor’s report.</p> <p>“ The plaintiff testified that when the policies were written, the main floor of the building was divided into three stores, the easternmost of which was occupied by one Arnold as a crockery store and extended from front to rear of the building; the middle one was occupied as a confectionery and fruit store, and extended through only a part of the depth of the building; the west store extended through the entire depth of the building and in the rear of the middle store. The plaintiff, when the insurance was effected, occupied only this west store. At the time of the fire he occupied the whole floor of the building, having removed the partition between the west and middle store, and opened passage ways and doors into the east store. The stock was in all parts of the main floor of the building.</p> <p>“ The defendants in each case asked the court to rule that the plaintiff could not recover for loss of or injury to any part of the stock; and the Manhattan Company, that he could not recover for loss of or injury to furniture or fixtures which were contained in that part of the building which he did not occupy when the insurance was effected; but the court declined so to rule, and did rule that the plaintiff was entitled to recover for all loss of or injury to goods, furniture or fixtures in any part of the building.”</p> <p>The case was argued September term 1872, by</p>

<p>Tort for damage caused by the construction of the defendants’ road-bed in such a manner as to turn the current of Mill River, in Northampton, against the plaintiff’s land, thereby causing the washing away of the soil.</p> <p>After the defendants’ exceptions were sustained, as reported 107 Mass. 352, the action was again tried in the Superior Court, before Brigham, C. J., when the plaintiff offered evidence that the defendants, about the year 1855, constructed their railroad along the north bank of Mill River, in Northampton, on piles; that the row of piles nearest the river-bed was driven just within the lower embankment of the river on the northerly side; that at ordinary stages of water in the river, the current never overflowed the lower embankment; that by means of a breakwater constructed along the left bank of the stream against the plaintiff’s land this embankment, for forty years prior to 1867, had been protected against the encroachment of the water, whatever may have been the height of the river ; that this lower embankment was three or four feet above the water at ordinary stages, but that the river was subject to occasional freshets, when the lower river-bed and embankment were overflowed; that then the water sometimes rose as high as twelve or fifteen feet above its ordinary level; that then the current swept round more to the north and east, being confined within a basin and restrained in its circuit by higher and well defined banks, which were protected by the breakwaters ; that for some ten years after the defendants’ road was built the track between South Street and the plaintiff’s land was supported on piles; that at no time within this period was the water at high stages prevented from taking the outward course it had always taken; that then the plaintiff’s land was uninjured; that about the year 1866 the defendants filled in with earth between the piles, with the exception of an opening a few feet in width, and filled in on both sides of the piles wide enough for double tracks and turnouts, and to such an extent into the river-bed, that from ten to fourteen feet of the width of the ordinary river-bed was occupied with solid railroad embankment ; that in consequence of this narrowing of the river-bed, and this preventing of the sweep of the current outwardly, the current, when there was a freshet, was driven forcibly against the plaintiff’s land, and in a high freshet in 1867, did the damage for which the plaintiff’s first suit was brought; that there was no other damage to the plaintiff’s land till a freshet in the fall of 1869; that for this last damage the present action was brought; that there had been two or three freshets since which did no material damage; that the defendants, to guard their road-bed against the action of the current on the southerly side and near the plaintiff’s land, had faced the embankment of their road-bed with broken stone up high enough to protect it against the usual freshets of Mill River, and against back water from freshets of the Connecticut River, but that there were occasional freshets on Mill River which arose above this stone facing; that when this was the case the plaintiff’s land suffered from the action of the current.</p> <p>The defendants relied on the former judgment (the substance of the record of which is stated in the opinion) as a bar to the present action. And the plaintiff relied on it to show that tht defendants’ road-bed was só constructed as to be a nuisance to the plaintiff, and contended that upon the recurrence of every new damage occasioned by freshets he was entitled to a new action.</p> <p>The presiding judge ruled pro forrad, that the judgment in the former action was a bar to this action, and it was agreed that upon the foregoing evidence the case should be reported to this court, and that if upon the foregoing evidence the action could be maintained the case should stand for trial upon the question of damages only.</p>

<p>Contract by a citizen of New York against a citizen of Massachusetts. After the filing of an answer and a trial on the merits, which resulted in a disagreement of the jury, the plaintiff filed a petition, affidavit and bond for the removal of the action into the Circuit Court of the United States, under the act of Congress of 1867, c. 196. The Superior Court ordered the action to be removed as prayed for. The defendant appealed to this court.</p>

<p>Tort to recover damages for breaking and entering the plaintiff’s close, situated at the comer of Bridge and Hawley streets, in Northampton.</p> <p>At the trial in the Superior Court, before Brigham, C. J., it appeared that the plaintiff claimed title under a deed from the executors of John Clarke; that in 1824 Clarke purchased the land at the corner, and erected a house on it, and built a fence around the greater part of it, leaving unfenced a triangular piece at the corner of the streets; that the trespass complained of was the tearing down a fence erected by the plaintiff in 1870, at the westerly corner of the triangle.</p> <p>The defendant admitted the act, but justified as a surveyor of highways acting under the authority of the town. He admitted that the triangle was included in Clarke’s purchase, and that the plaintiff had a title to it, if Clarke had not lost the right to convey it by having dedicated it to public use. He also admitted that it had never been laid out by the town as a highway ; that no municipal or official action had ever been had in regard to it, except that in 1826 the town instructed the selectmen to name the streets ; that they made a report, and among other streets named the street from Clarke’s to one Strong’s, Hawley Street; and Samuel Parsons, one of the then selectmen, testified that at this time he visited Hawley and Bridge streets, and the fence was then where it had ever since remained. Upon this report the town voted “ that the streets be established and known by the names designated in said report.” There was evidence that at that time the highway surveyors of Bridge and Hawley streets carted in earth at the corner of Hawley and Bridge streets, and filled up the lowland so as to affect the level of that corner of the triangle.</p> <p>The defendant offered evidence that Clarke’s fence had always remained as first erected; that Clarke had made repeated declarations indicating a purpose to dedicate the land to public uses, and also had done various acts indicating the same purpose. His evidence also tended to show a long continued use of the land by the public for foot travel, for hitching horses on public occasions and on Sundays, and various acts of a public nature tending to show that the dedication was accepted by the public; that at the time Clarke threw open the triangle in question to the public, he inclosed land at the easterly end of his line, which before had been public; that Clarke’s fence had been in the same position since 1826 ; and the defendant relied on evidence that ihe neighborhood about the disputed premises had so increased in population, buildings and business, that the land had become essential to the convenience and use of the public.</p> <p>The plaintiff offered evidence tending to show that Clarke, when he built the fence, put down a boundary stone at the corner of Bridge and Hawley streets; that he on one or more occasions erected posts on the line of Bridge Street and thirty or forty feet on Hawley Street on the triangle, but in such a way as not to exclude the public foot travel; and that he made various declarations and prohibitions, and did many acts, tending to show he had not dedicated the land to public use, but retained and claimed it as his own.</p> <p>One Lathrop, who was called by the plaintiff, testified that Clarke many years ago told him he owned further down than his fence extended on Bridge Street, but did not show him how far down. The defendant called one Edwards, who testified, against the plaintiff’s objection, that Lathrop, one Hubbard and himself were the appraisers of the estate of Clarke, who died in 1869 ; that they went over the estate together, but that Lathrop did not say anything about Clarke’s owning beyond the fence.</p> <p>The court ruled that the defendant in proving a dedication would be limited to a dedication previous to 1846; and gave, upon the question of what constituted a dedication, full general instructions to the effect that there must be an intent to dedicate or an assent to the dedication by one party, and an acceptance on the part of the public.</p> <p>On the question of dedication as affected by the public convenience the court instructed the jury, that while in general an1 intent to dedicate was essential, yet a man might do acts of such a character and so continue in the doing of them, and the public might so avail itself of such acts, that their convenience would be affected to such an extent as to prevent a withdrawal of the' land from the public use, and in this connection gave this specific instruction: “ If the conduct and declarations of Clarke induced a reasonably well founded public belief of the dedication of this land to public use, and thereupon public use of such land began and continued with Clarke’s knowledge until his disclaimer or withdrawal of such dedication would have seriously affected the public convenience, the dedication on the part of Clarke would have been consummated, notwithstanding in fact no intent to make such dedication was in the mind of Clarke in such conduct and declarations.” The jury returned a verdict for the defendant, and the plaintiff alleged exceptions. The defendant also excepted to the refusal of the presiding justice to rule in conformity to a request for instructions made by him.</p>

<p>A. and his wife had a homestead, and the wife an inchoate right of dower subject to a mortgage made by them; A.’s equity of redemption had been sold by his assignee in bankruptcy. In a suit in equity brought by A. and his wife against an assignee of the mortgage, offering to pay the amount due, and asking for an assignment of the mortgage, Held, that they were not entitled to an assignment, but that the bill might be maintained as a bill to redeem.</p>

<p>In an action to recover the price of goods sold, it appeared that upon the bill of parcels accompanying the delivery of the goods was the clause, “ Terms cash, 5 per cent, off; ” the defendant introduced evidence of the plaintiff's usage to allow other parties upon similar sales a credit of thirty days, but testified himself that at the time of the purchase this custom was unknown to him. Held, that the evidence was improperly admitted.</p>

<p>One who agrees with the owner of land to cultivate it on shares, he to have the exclusive possession of the land and the entire charge and control of the crops, retaining his own share, may, when the owner of the premises enters and removes the crops, maintain against him an action of trespass quare clausum fregit¡ and recover damages for the taking of his share of the crop as a matter in aggravation of the entry, or, waiving the entry, may maintain an action of trespass dc bonis asportatis, or, waiving the.trespass, may maintain an action of trover for the conversion.</p>

<p>The construction of a railroad upon a highway in such a manner as to exclude public travel therefrom, and the making of a new way fit for public travel, at the side of the railroad, connecting those portions of the highway not occupied by the railroad, are facts which, in an action against a town to recover for damage alleged to have been caused by a defect in the highway, will warrant the jury in inferring a location of the railroad which discontinues that portion of the highway occupied by the railroad.</p> <p>A town is not bound to erect a barrier or railing merely to prevent passengers from straying from the highway, where no dangerous place is in such close proximity to the highway as to make travelling on the highway unsafe.</p> <p>In an action against a town to recover for damage alleged to have been caused by a defect in a highway, the damage having been sustained at a dangerous place several feet outside of the limits of the highway, the question whether the dangerous place was in snch close proximity to the highway as to render the use of the highway unsafe for the purposes of travel may properly he submitted to the jury as a question of fact.</p> <p>At the trial of an action against a town to recover for damage alleged to have been caused by a defect in a highway, the jury having been instructed that towns are not obliged to erect barriers to prevent or warn travellers from straying from the highway where there is no dangerous place within such close proximity to the highway as to render the use of the highway, for purposes of travel, unsafe, were further instructed that by proximity to the highway was meant proximity to the highway as travelled and used. Held, that such further instruction was correct.</p> <p>By Gen. Sts. c. 43, § 83, a town is not authorized to close a private way leading from a highway into the grounds of an adjoining proprietor, neither is it made responsible for damage caused by a defect in such private way.</p>

<p>The fact that an indorsement of part payment made on a promissory note bore date upon a day of the month which was Sunday, joined with evidence that it was made at the time of the payment and in the presence of both parties and assented to by them, will warrant a jury in finding that the payment was made on that day.</p> <p>A part payment made upon Sunday will not take a debt out of the operation of the statute of limitations.</p>

<p>This imprecation, “ May the Lord have mercy on two men who brought me to court yesterday, bringing shame and scandal upon me; my curse and the curse of God be down upon Patrick Fitzgerald and Patrick Butler, who brought me to court yesterday, bringing me shame and scandal, and that it remain on them; ” uttered upon two of his parishioners by a Roman Catholic priest in his official character, in presence of his congregation during divine service on the Lord’s day, is not in itself slanderous.</p> <p>An anathema and sentence of excommunication pronounced by a Roman Catholic priest upon one of his parishioners, whether pronounced with or without authority, is not, in this country, at least in the absence of an intent to injure the parishioner in his temporal affairs, a cause for a civil action.</p> <p>The words, “He keeps a bad place of resort; keep away from it,” spoken of a tradesman in relation to his trade, are actionable.</p> <p>The words, “ He keeps a bad house, and not a proper place of resort; he keeps bad girls there,” taken in their natural and obvious sense, impute the keeping a house of ill fame, and are actionable.</p> <p>The words, “ Do not go to his house to bring disgrace on yourselves and on me; do not go that way at all; he is a bad man,” spoken of a tradesman, in relation to his trade, are actionable.</p>

Tort for the conversion of two cords of manure. At the trial in the Superior Court, before Wilkinson, J., it op« peared that the plaintiff had occupied a dwelling-house, a bam and a garden of something over a quarter of an acre, as a tenant at will of one Koontz; that he voluntarily terminated his tenancy February 28, 1872, before the expiration of a year from April 1, 1871, the period contemplated by the original letting; that when he came into possession of the premises,…

<p>Contract to recover back the amount of a tax assessed by the defendants upon the plaintiff for certain bank shares, and paid by her under compulsion and protest.</p> <p>On the trial in the Superior Court, before Wilkinson, J., the plaintiff offered evidence tending to show that she was formerly ft resident of Warwick, but at the time when and for some two years before the tax was assessed she was a resident of and had her domicil in Bernardston, and that she paid the tax under protest, to prevent her bank shares being sold for its payment. It appeared that the tax was assessed in May, 1872, upon 117 shares in the Franklin County National Bank of Greenfield and upon 13 shares in the Miller’s River National Bank of Athol; that in the fore part of April, 1872, she gave notice to the cashier of each bank that her then residence was in Bernardston and would sc continue to be till she should inform them to the contrary, and that no further notice was given.</p> <p>The defendants denied that she had changed her residence.</p> <p>Upon notice to them, the defendants produced a printed document, sent to them by the tax commissioner, purporting to be a list of all the shareholders in the several national banks of this Commonwealth with their residences, by which it appeared that the plaintiff was returned as the owner of these shares and as resident in Bernardston. This document was put in evidence against the objection of the defendants.</p> <p>The presiding judge ruled, that, under the St. of 1872, c. 321, in order to render the plaintiff liable to taxation for the bank shares aforesaid, in Warwick, the burden was on the defendants to show that the statement made to the cashiers by the plaintiff, as to her residence in the town of Bernardston, was intentionally false; and the jury having returned a verdict for the plaintiff, he re ported his rulings to this court for its determination.</p>

Contract. The declaration was as follows: “ And the plaintiff says that the plaintiff and the defendant, under the name of J. Russell & Co., made a contract, a copy whereof is hereto annexed. And the plaintiff says that all of the conditions, covenants and agreements in said contract made on the part of the plaintiff have been faithfully observed and performed, or expressly waived by the defendant.

<p>Habeas cobpus. The petitioner was arrested on an execution for debt in a civil action, upon affidavit that he had property not exempt from being taken on execution, which he did not intend to apply to the payment of the plaintiff’s claim; and duly applied to a magistrate to be admitted to take the poor debtors’ oath. Pending his examination, the creditor filed charges of fraud against him for fraudulently conveying, concealing and otherwise disposing of some part of his estate with a design to secure the same to his own use, and to defraud his creditors; to which charges the debtor pleaded not guilty. The magistrate adjudged that he had not any estate, real or personal, to the amount of twenty dollars, except such as was by law exempt from being taken on execution; but that, since the debt was contracted, and the cause of action accrued upon which he was arrested, he had fraudulently conveyed a part of his estate, as charged in the specifications filed against him, and was therefore guilty of the fraud charged; and sentenced him to imprisonment in jail for thirty days. From that sentence he appealed to the Superior Court, and duly entered into a recognizance to prosecute his appeal. The magistrate also refused to administer to him the poor debtors’ oath. The debtor, after his sentence and appeal as aforesaid, was again arrested and committed, by virtue of the execution and the certificate of the magistrate thereto annexed.</p> <p>Upon a full hearing before Gray, C. J., he was of opinion that the debtor was entitled to be discharged upon a writ of habeas corpus ; but at the request of the creditor, he reserved that question for the determination of the full court, who were to render such order or judgment as law and justice might require.</p>

<p>The contract entered Into by an infant in signing a promissory note as a surety for the maker is not necessarily void, if it maybe beneficial to him; and if. after becoming of full age, knowing that his infancy is a defence, he promises to pay the note, he is liable upon it.</p>

Contract upon this account annexed: “ Messrs. Guilford & Whitney, to Rodman & Hepburn, Dr. To one log Rio rosewood, cut into 2f and 3| inch squares, 562 lbs. at 10c. $56.20.” The defendants filed this answer: “ They deny each and every of the plaintiffs’ allegations in his declaration made. They deny that the plaintiffs ever sold and delivered or bargained and sold to the defendant one log of Rio rosewood.

Tort for conversion of ten gallons of whiskey. The writ was dated August 1, 1872. At the trial of the case in the Superior Court before Wilkinson, J., it having been shown that the liquor had been seized by the defendant, he offered in justification the minutes on the clerk’s docket, the record not having been extended, where the following entries appeared : “ Superior Court, November Term, A. D. 1872. “ Dist. Atty. 248. Commonwealth vs. Í Certain Liquors.

Habeas corpus of a citizen of Vermont, arrested under a warrant of his Excellency the Governor of this Commonwealth, which warrant stated that application had been made to him by the supreme executive authority of the State of Vermont, for the delivering of said Brown, “ charged with the crime of selling and furnishing intoxicating liquors contrary to the laws of Vermont, and represented to be a fugitive from the justice of said State of Vermont,” and ordered him to be…

Indictments under St. 1871, c. 83, § 1, for occupying for more than five minutes at one time, with cars and engines, a part of Bridge Street in the city of Springfield, which is crossed by the defendant’s tracks.

<p>Indictment for larceny. At the trial in the Superior Court, before Rockwell, J., the evidence tended to show that one Bede, a dealer in diamonds, was travelling on the cars from New York to Boston; that the defendant was travelling in the same car; that there were other passengers in the car; that Bede arrived at Springfield about midnight, went out of the car leaving upon his seat a travelling-bag, was absent about ten minutes and returned ; that the bag was then missing ; that he notified the city police; that about a half hour after this the defendant entered the Massasoit House and recorded the name of W. Clark upon the register, was assigned a room and retired to bed; that the bag was soon after found in a lumber yard, cut open and rifled of its contents; that circumstances excited suspicion that the defendant was the thief; that the next morning he was arrested and searched before leaving his chamber; that none of the stolen articles were found in his possession; that he was taken by the officers to the police station; that while there the marshal had a conversation with him as to his connection with the larceny; that, among other things, he said his intention when he left New York was to stop at Hartford and visit a sister, but that he fell asleep and went by Hartford unintentionally, and then.decided he would go to Albany the next morning to visit an uncle, whose name at one time he gave as Abram Clark and at another as Abram Vosburg; that while he was conversing with the marshal a telegraphic dispatch was brought to him by a clerk of the Massasoit House, directed to W. Clark; that he opened it and carefully read it; that he then handed it to the marshal, and asked him to read it aloud, which the marshal did; that the defendant hesitated about half a minute, and then denied all knowledge of the telegram or of the writer; that he said it was “ all Greek to him.”</p> <p>The district attorney then offered the telegram as evidence, to which the defendant objected. The presiding judge admitted the testimony for the mere purpose of enabling the jury to understand the conversation, and stated to the jury that it would be used for no other purpose. The telegram was as follows : “ Hartford, 31st, 1871. To W. Clark, Massasoit House. Went home. Could not stop. Gus.”</p> <p>The district attorney in opening his case stated that the evidence would make it appear probable that the defendant had an accomplice in the theft. In his closing argument he commented upon the telegram as showing that the defendant had made a false statement when he said that he had intended to stop at Hartford, and that he intended to go to Albany ;• that there evidently was some one in Hartford who knew that he was to be in Springfield that morning, and that he was stopping at the Massasoit House.</p> <p>Upon the subject of the telegram the judge instructed the jury as follows:</p> <p>“ During the examination of the city marshal, who was testifying to the conversation between himself and the defendant, at his office, a paper was presented to the witness and recognized by him as a paper then received, and concerning which a part of the conversation was had. This paper purported to be a copy of a telegraphic dispatch received at the Springfield office, and directed to W. Clark. The introduction of this paper in evidence was objected to, and its introduction was allowed merely for the purpose of showing the subject of that part of the conversation and enabling the jury to understand it, and for no other purpose. This was stated by the court at the time of its admission, and is now repeated. If there is any intelligible statement of fact in that paper, it is not to be used as evidence tending to favor that fact, nor as evidence that it was intended for the defendant. It is only to be considered by the jury as an explanation of the defendant’s statement concerning it, as testified to by the marshal. The telegram is to go to the jury with the other papers in the case.”</p> <p>The jury returned a verdict of guilty, and the defendant excepted.</p>

Contract upon a policy of insurance against loss by fire upon a house described in the application and in the policy as a “ dwelling-house situated on the road leading from Warren to Palmer Depot,” and upon a barn described as “ near by ” the house.

Tort. The action was originally brought against Heman S. Lucas and Charles Alden. The plaintiff afterwards discontinued as against Alden.

Contract to recover damages for breach of a warranty in the sale of a horse.

CONTBACT upon a promissory note for $500, signed by the defendant and made payable to the plaintiff or order, upon which was indorsed a payment of $50.

Contract to recover $300, money had and received by the defendant to the plaintiff’s use. The answer alleged in substance that the plaintiff and the defendant were partners in the business of selling the “ Advance mop wringers ” and that the $300 sued for was advanced by the plaintiff as his share of the capital of the partnership to be used in the purchase of such wringers.

Contract upon a promissory note signed by the defendant, and payable to Vincent Holcomb or bearer. At the trial in the Superior Court, before Bacon, J., without a jury, it appeared that the plaintiff was the widow of Vincent Holcomb the payee of the note, and the administratrix of his estate; that the note was a part of that estate; and that she had not rendered a final account of her administration.

<p>A mortgage of land, given as security with a note payable in wood, provided that the mortgagor was “ not to cut wood or timber upon the said estate, except for the payment of said note, to reduce the value below the amount secured with interest annually.” Reid, that the mortgagor had the right to cut timber to any extent even after a breach cf the condition of the mortgage, provided he did not so strip the land as to leave it of l?ss value than the amount then due upon the note.</p>

Contract. The declaration was as follows: “ And the plaintiffs say the defendants received fifteen barrels of flour, the property of the plaintiffs, and of the value of one hundred and fifty dollars, and agreed with them to deliver the same to them at Palmer, in said county; and the plaintiffs paid to the defendants a legal consideration therefor, and duly demanded of them to deliver the same to them, but they neglected and refused to do so, and owe them the value thereof…

<p>A., B. and C. had been partners; D. had an unsettled claim against the partnership; A. had a private claim against D.; C. authorized A. and B. to settle D.’s claim, and gave A. a writing, signed by him, to that effect; A. and B. agreed that A. should settle the claim and be paid therefor $1000 by B. and C.; a written agreement to that effect was signed by A. and B. but not by C.; A. and B. intending by their sole signatures to make a binding contract. In an action by A., who had settled the claim, against B. and C. to recover the $1000, C. not contesting his liability, Held, that B. was bound by contract.</p>

Tort for personal damage caused by the defendants’ negligence.

<p>CoNTEAGT for a breach of warranty of soundness in the sale of a mare. The alleged unsoundness was a habit of crib-biting and wind-sucking.</p> <p>Trial in the Superior Court before Allen, J., who after a verdict for the plaintiff of $5000 allowed the defendant’s bill of exceptions, the portion of which, not waived at the argument, was as follows: There was evidence of the purchase of the horse for $9000; of the warranty; that the horse cribbed or sucked wind and that cribbing and wind-sucking were habits of the same nature,</p> <p>There was also evidence tending to show that cribbing or wind-sucking in its early stages, and under some circumstances, did not so affect a horse as to make him unsound; that under other circumstances it did; that some horses, when they made such motions as it was testified this horse made, and uttered the noise described by the witnesses, sucked wind, and others did not; that when a horse did suck wind it injured the animal, and when he did not, sometimes the animal remained uninjured.</p> <p>Witnesses were called by both parties to show the nature of cribbing and wind-sucking; the extent to which this horse was addicted to it; the effect it had and probably would have upon her power of endurance, and upon her value; the means usually employed to prevent this habit in horses; the appliances which had been used upon this horse, and the effect which these appliances had produced.</p> <p>For the purpose of showing the amount of his damages, the plaintiff put into the case a number of depositions, all taken on a single commission, and the same interrogatories were addressed to each witness.</p> <p>The third interrogatory was as follows : “ State what was the market value of trotting horses from eight to ten years old, sound, kind, honest, of pure and square gait, and able to trot, in good condition, in two minutes and twenty-five seconds to two minutes and twenty-six seconds, and of good size, say from 925 lbs. to 1025 lbs.” To this interrogatory, Joseph Barker answered, “$10,000;” John J. Waltermire answered, “From $8000 to $15,000, according to their color, shape and other qualities; ” James D. McMann answered, “ From $10,000 to $12,000 or $13,000 ; ” John Lovett answered, “ From $12,000 to $15,000 ; ” Daniel Pfifer answered, “ From $10,000 to 15,000; ” F. J. Nodine answered, “ Not over $10,000. I think that would have been a fair market price.”</p> <p>The fourth interrogatory was as follows : “ State whether or not cribbing or wind-sucking injures fast trotting horses for use or their market value ? If you say it does, state how much and what per cent, of their market value does it deduct from them.”</p> <p>In answer to this interrogatory, all the witnesses said cribbing or wind-sucking injured such horses very much: Barker said, “ I do not think the market value would be one quarter as much as if the horse were perfectly sound; ” Waltermire said, “ It detracts at least two thirds or 66f per cent, of their market value; ” McMann said, “ It detracts from 60 to 70 per cent from their market value; ” Lovett said, “ It would detract two thirds; ” Pfifer said, “From 65 to 70 per cent.;” Nodine said, “If the horse was a bad cribber, it would detract 60 per cent.”</p> <p>The fifth interrogatory was as follows: “Assuming such a horse as is described in the third interrogatory to have been of the market value of $9000, if sound, how much would be the market value if such a horse is a wind-sucker or cribber ? ”</p> <p>In answer to this interrogatory, Harker said, “ I do not think the market value would be one quarter of $9000. I would not buy at any price; ” Waltermire said, “ $3000 or less; ” McMann said, “ The market value of such a horse would be about $3000;” Lovett said, “ The market value would not be over from $3000 to $4000, and might be much less according to the amount it was affected;” Pfifer said, “Not over $2500;” Nodine said, “About $3600.”</p> <p>The defendant objected to these interrogatories and answers; but the court overruled the objections, and they were read to the jury, the plaintiff having offered evidence that the mare was a fast trotting mare, and of the value of $9000, if sound, and that she was in all respects, excepting soundness, as described in the third interrogatory, as far as therein described.</p> <p>The defendant was himself a witness, and in cross-examinatian, the plaintiff asked him if he would now give $3000 for the horse. The counsel for the defendant objected to the question. The court, as a matter of discretion, allowed the question to be asked, at the same time stating that he would not compel the witness to answer it. To this the defendant excepted.</p> <p>The question was repeated under the same declaration from the court, and the witness replied he had no money. Then, against objection, he was asked, under the same declaration of the court, if he would give his note for $3000, payable in two years, for the horse. The witness replied that he did not wish to purchase the horse. He had testified in 'chief that the horse was cheap when sold at $9000, and that she had improved since, and that she was as good or better now than when sold, and that the alleged unsoundness did not hurt her market value $1000.</p> <p>One Harrison was called as a witness for the defendant. In cross-examination, the defendant objecting, the plaintiff was permitted to ask him if he would now pay $3000 for the horse, he having given the same testimony substantially as the defendant. The court instructed him that he need not answer the question, and he did not answer.</p> <p>In his argument to the jury, the plaintiff’s counsel, referring to these questions and answers, stated that he had offered the horse for sale at the sum of $3000 ; that he had held an auction and could not obtain the sum of $3000 for her, of the defendant, or of his friends, who were dealers in horses.</p> <p>The defendant did not interrupt the plaintiff in the course o£ the argument, nor object to this part of it, nor ask any instruction concerning it, except to make the following request, which was given: That the refusal of the defendant to accept an offer to purchase the horse, when a witness on the stand, is not evidence to be considered by the jury in estimating the amount of damages, if they came to consider that question.</p>

Actions oe tort, which, by consent, were tried together in the Superior Court, before Dewey, J. The declaration in the first action contained five counts.

Tort for damage received on the highway by falling into an excavation in the sidewalk of a public street in the city. At the trial, in the Superior Court, before Allen, J., there was evidence to show that the plaintiff, while travelling along the street in the city in the evening, fell into an excavation made in the sidewalk for the purpose of constructing a coal vault for a building.

Contract. The declaration was as follows : “ And the plaintiff says that he is a machinist of great skill and long experience; that he was employed in business at Wailuku in the Sandwich Islands ; that the defendant engaged him to abandon his said business and leave Wailuku and come to said Chicopee to take the position of a foreman in the employment and in the manufacturing establishment of the defendant as soon as he, said plaintiff, should reach Chicopee; that he, the…

<p>In an action by a consignee against a carrier for the conversion of a part of a car load of grain in bulk, it is competent for the plaintiff upon the question of title to prove that he had paid for the entire car load.</p> <p>It is no ground of exception, that incompetent evidence was add. rad to prove a fact which is afterwards proved by other evidence, admitted without objection.</p> <p>The “White Line,” an association of railroad companies, of which the B. & A. Company was one, carried freights coming in White Line cars over the I., B. & W. Railroad under the contracts which the L, B. & W. Railroad Company had made. A consignor loaded in a White Line car, upon the I., B. & W. Railroad, 22,630 pounds of grain to be forwarded to a station upon the B. & A. Railroad, and received from the I., B. & W. Railroad Company a bill of lading, which he sent to the consignee, for a car load of grain in bulk on White Line car, weight 20,000 lbs. more or less, freight not to exceed 75 cents per 100 lbs.; the way-bill of the White Line stated the weight to be 20,000 lbs.; upon the arrival of the car at the station upon the B. & A. Railroad, that company took from the car and sold a portion of the grain, claiming the right so to do because it was not included in the way-bill. In an action by the consignee against the B. Sc A. Railroad Company for the conversion of that portion of the grain, Held, that the only questions for the jury were, Did the plaintiff own all the grain in the car ? Was he entitled to its possession ? Did the defendant convert a portion to its own use ? and that if the defendant sold the grain claiming that it was not the plaintiff’s property, or if it had given the plaintiff notice that it would not receive the freight money for it, the plaintiff was not bound to tender such money; and that the measure of damages was the value of the grain at the time and place it was taken, less freight at the rate of 75 cents per 100 lbs.</p>

<p>When a highway had been illegally laid out and damages awardee, for the land taken, and the location and assessment of damages had been declared valid by a statute, which also extended the time during which one aggrieved might have a jury, a petitioner, taking advantage of such extension of time, and representing that she was aggrieved by the appraisal of damages, applied for a jury, and at the trial contended that the damages were to be assessed according to the value of the land at the time the statute took effect. 3eldf that the damages were to be assessed according to the value of the land at the time of the location; that by applying for a jury under the statute she had admitted the validity of the location, and that the question of the constitutionality of the statute was not open.</p>

<p>The extension of a street by a city rendered necessary the removal of a part of a building; the mayor, in consideration of the owner’s agreement not to claim damages, promised that the city should repair the rest of the building ; the superintendent of streets made the repairs, but so unskilfully as to cause the building to fall. In an action by the owner against the city for the damage occasioned by the building’s fall, Held, that the mayor had no authority to make such a contract, and that the making of the repairs by the superintendent of streets was not evidence of a ratification of the contract by the city.</p>

Contract upon a negotiable promissory note for $65, dated January 31, 1862, signed by the defendant, and payable to the plaintiff. At the trial in the Superior Court, before Dewey, J., the execution of the note was duly proved, and it was admitted that at the time it was given, the defendant was a married woman residing with her husband.

Tobt for an injury alleged to have been received by the plaintiff, February 20, 1870, througn a defect in a highway, in Holyoke.

<p>Oontbaot upon a promissory note. By the direction in the writ, the defendant was summoned to answer unto “the Washington County National Bank, a corporation duly established by law and doing business in Greenwich, in the State of New York.”</p> <p>The declaration was as follows: “ And the plaintiff says the defendant made a promissory note, a copy of which is hereto annexed, payable to Eddy, Reynolds, Weaver & Co. or bearer. And the plaintiff is the bearer of said note, and the defendant owes the plaintiff the amount of said note and interest thereon.”</p> <p>The defendant filed this answer: “ And now the said defendant comes and for answer says:</p> <p>“ 1. He is ignorant whether or not he executed the note, declared on, so that he can neither admit nor deny its execution, but leaves the plaintiff to his proof.</p> <p>“ 2. If it shall be proved that he executed said note, he says the consideration therefor has failed, and if the plaintiff is the legal holder of said note, which he denies, said note was taken by the plaintiff under such circumstances that it cannot recover by reason of such failure of consideration.</p> <p>“3. Except that he is ignorant whether or not he executed said note, the defendant denies each and every allegation in the plaintiff’s writ and declaration contained, and particularly and specially that the plaintiff is the owner of said note, or has any right to maintain an action thereon.”</p> <p>At the trial in the Superior Court, before Dewey, J., the plaintiff produced the note declared on, and the defendant admitted its execution.</p> <p>The plaintiff offered in evidence a certified copy of what it claimed was its original organization certificate, in which it was provided, among other things, as follows : “ First. The name and title of this organization shall be The Washington County National Bank of Greenwich. Second. The said association shall be located and continued in the town of Greenwich, county of Washington, and State of New York, where its operations of discount and deposit are to be carried on.” The plaintiff further offered in evidence a certificate under the hand and official seal of the comptroller of the currency, setting forth that it had been made to appear that “ the Washington County National Bank of Greenwich, in the town of Greenwich, in the county of Washington and State of New York,” had been duly organized, and certifying that it was duly authorized to commence business under the act of Congress.</p> <p>The defendant objected to the admission of this evidence, but it was admitted by the court. There being no other evidence in the case, the defendant contended that there was no sufficient evidence to prove that the bank was duly organized, so as to entitle it to maintain an action. The court ruled that the evidence was sufficient to authorize the jury in finding a verdict for the plaintiff. The jury returned a verdict for the plaintiff for the amount of the note.</p> <p>The judge reported the case to this court. If the ruling was correct, judgment is to be entered on the verdict; otherwise, the verdict is to be set aside and a new trial granted.</p>

<p>Contract against the defendant corporation, as a common carrier, for its failure to forward and deliver shingles to Joseph S. Clark, at Westfield. Writ dated June 28,1867. The declaration alleged the delivery to the defendant, its neglect to forward, and the destruction of the shingles while in its possession.</p> <p>- At the second trial in the Superior Court, before Putnam, J., after the decision reported in 102 Mass. 283, the plaintiff testified that May 9, 1861, he received at Clean, in the State of New York, a written order for a quantity of shingles, from J. S. Clark of Southampton, Massachusetts, to be forwarded to him at Southampton ; that he filled the order by shipping the shingles ordered on board the canal boat M. White, at Olean; that when he shipped the shingles, he filled in triplicate the following shipping bill: “ Clean, May 13,1861. Shipped for account of M. W. Finn, on board Canal-boat M. White of Niagara, N. Y., whereof James Smith is Master for the present trip, as follows : 100 bunches, 50 M. of 18 in. Sorted Shaved Shingles, marked J. S. C. — Extra. 150 bunches, 75 M. of 18 in. No. 1 Shaved Shingles, marked J. S. C. 360 bunches, 90 M. of 18 in. Extra Sawed Shingles, marked J. S. C. — Extra. In good order, to be delivered, in like good order, without delay, to the Great Western Railroad Company or their Assignees, at Greenbush, N. Y. Consignee to pay Freight on the delivery at the rate of seventy-five cents per M. for Shaved Shingles, and sixty-two and one half cents per M. for the Sawed Shingles, $2.50 for towing less amount advanced Master, one hundred and fifty-two and fifty one hundredths dollars. M. W. Finn, Consignor. James Smith, Master. $152.50; ” that one of the bills was sent by mail to Clark, one was given to the master of the canal-bcat, and one was retained by him; that the shingles were put up in bunches, and were branded upon the flat surface of each bunch; that the brand upon some of the bunches was “ J. S. C.,” and upon the rest was “ J. S. C., Extra ; ” that upon about one bunch in six, he wrote with a lumberman’s pencil, in letters plainly legible at a distance of twenty feet, the words “ J. S. Clark, Southampton, Mass.; ” that the shingles were forwarded by canal from Clean to Greenbush, to be forwarded from thence by the Western Railroad to Clark; that this was the usual mode of conveyance; that between the years 1858 and 1861, he had sent upon similar orders 6 or 8 lots of shingles to Clark, to Westfield or Southampton, by the same routes, marked in the same manner as the lot in question; that on June 6, 1861, he received from the agent of the Western Railroad a letter stating that the boat M. White had arrived at Greenbush with shingles, and asking for the name of the consignee; that upon the same day he wrote a letter in reply, in the post-office at Clean, in the presence of the postmaster, stating that the shingles were for J. S. Clark, of Southampton, Mass., and requesting them to be forwarded to him at once; that the letter was addressed to “ The Agent of the Western Railroad Company, Greenbush, N. Y.; ” that he delivered the letter to the postmaster personally, in the post-office at Clean; that by the ordinary course of mail, the letter would arrive at Greenbush on the next day; that at the time of shipping the shingles he drew upon Clark for the price of them ; that the draft was duly accepted, and paid at its maturity, but whether it was paid before the fire or not, he did not know.</p> <p>On his cross-examination, the plaintiff stated that with each of the prior lots of shingles, a shipping bill was given to the master of the boat, by which they were shipped, in which J. S. Clark, of Southampton or Westfield, was named as the person to whom the goods were sent, and a like bill was sent to Clark.</p> <p>Benjamin Barker, a witness called by the plaintiff, testified that he helped the plaintiff mark the shingles as they were loaded on the canal-boat, at Clean, and that he marked, with a lumberman’s pencil, on one bunch in every six or eight, the name and address “ J. S. Clark, Southampton, Mass.,” in letters that could be plainly read at a distance of twenty or thirty feet.</p> <p>The deposition of the postmaster at Olean was read in evidence, who testified to the mailing of a letter by Finn, June 6, 1861, addressed to the agent of the Western Eailroad, but that it was directed to East Albany, N. Y., and that his register of that day showed one letter sent to East Albany, N. Y., and that letter was mailed by the postmaster personally, and by him sent out of the office by the eastern mail.</p> <p>It appeared that the proper address for the defendant’s agent was either Greenbush or Albany; that East Albany was a village in the town of Greenbush, and the western terminus of the defendant’s road, and that Greenbush was sometimes known as East Albany, and that letters addressed to East Albany had at different times been received at and delivered from the post-office at Greenbush, and that letters addressed to Green, the defendant’s agent at East Albany, had been frequently received" by him from the post-office at Greenbush.</p> <p>The facts as to the shipment of the prior lots of shingles were also testified to by Clark, substantially as by the plaintiff, though he did not testify that he received shipping bills with them.</p> <p>Asa C. Parker, the defendant’s station agent at Westfield, testified that he knew of the receipt of the prior lots over the road, but that no bills of lading or any shipping bills accompanied any of these that he ever saw.</p> <p>Thomas L. Green testified that he was agent for the defendant at Greenbush in 1861, and had been for some time prior to 1858, and was still its agent there; that no one but himself and George H. Penfield opened letters addressed to him or to the agent of the defendant at Greenbush or Albany, and that he never received or saw the letter of June 6, testified to having been sent by the plaintiff, and that up to the time of the fire he did not know the name of the consignee; that when the shingles in controversy arrived at Greenbush, the master of the canal-boat exhibited to him the shipping bill before mentioned, and there being no person named therein to whom the shingles were to be delivered, he declined to receive them until, at the solicitation of the master, he agreed to take them upon storage, and that he wrote the letter mentioned by the plaintiff as having been received by him, before be agreed to take them on storage, and as soon as he saw the way-bill; that a day or two afterwards he examined the shingles and turned over one third of the bundles, so that he could see all sides of them, in order to see if there was a name of any consignee, or any direction upon them, and found no mark or direction upon them except “ J. S. C.,” and “ J. S. C., Extra;” that he had no recollection of having seen either of the prior lots testified of by Finn and by Clark, that he had no recollection of any of the prior consignments, and only knew from the books that they were forwarded; that it at that time was, and still is, a custom of the defendant corporation that all freight coming to their road by way of the Erie Canal, as these shingles did, should be governed by the directions contained in the shipping bill accompanying them, and not by the marks upon the goods.</p> <p>On cross-examination, he admitted that he received before the fire two letters from Clark, and one from Parker, the station agent at Westfield, in relation to the shingles in controversy.</p> <p>The plaintiff and William G. Bates both testified that at two former trials of the case of Finn v. Clark, in which the same facts were in issue, Green did not testify as to his receiving the shingles on storage, and did testify that he had seen the name of J. S. Clark, Southampton, in full, on some of the bunches of the former consignments.</p> <p>The foregoing is all the material evidence in the case.</p> <p>The defendant requested the court to rule that upon the whole evidence in the case, the plaintiff was not entitled to recover : That if the shingles were sent in pursuance of an order from Clark in Southampton, to Finn in Olean, to be forwarded by the usual conveyances to him in Southampton, and the shingles were so forwarded with proper directions, so that it was the duty of the defendant upon the receipt thereof to forward them, then the shingles belonged to Clark, and the plaintiff could not recover :</p> <p>That if the shingles were ordered of Finn at Clean, by Clark, to be forwarded to him at Southampton, and were forwarded by the usual means of conveyance, properly directed to Clark, then the shingles belonged to Clark, and the plaintiff could not recover.</p> <p>These rulings the court refused to make in the form requested, but instructed the jury at length as to the duties and liabilities of common carriers, and their obligations in forwarding freight, as applicable to the shingles in question, which instructions were not objected to by either party, and further instructed them that if the defendant’s agent knew, by reason of the receipt of the letter alleged to have been sent to him, or by reason of his having seen the name and address of Clark upon the bundles, that the shingles belonged to and were intended for Clark, it was the duty of the defendant to forward them within a reasonable time thereafter, and that the plaintiff could not recover unless he satisfied the jury that the defendant’s agent received the letter of June 6, or saw the full name and address of Clark upon the bunches of shingles, and that the jury might consider the fact of the former shipment from Finn to Clark as evidence upon the question whether or not the agent knew for whom the shingles were intended, provided they were satisfied that in such previous instances the freight was not accompanied with proper way-bills, disclosing its destination. •</p> <p>The jury returned a verdict for the plaintiff, and found specially upon the question submitted to them by the court, that Green did see the full name and address of Clark upon the bunches of shingles. The defendant excepted.</p>

<p>Wbit OB entby against Ambrose P. Hall, and against F. P. Goulding as assignee oí the estate of John Hill, to recover six parcels of land situated in Oakham.</p> <p>Goulding disclaimed as to all the tracts of land; Hall defended his right to the first, second and sixth described tracts, and disclaimed title as to the remainder.</p> <p>At the trial in this court, before Chapman, C. J., it appeared that the lands demanded consisted of a home farm and the outlying wood lots; that the demandant claimed title under a sale for the non-payment of taxes; that the tenant Hall and his father, Percival Hall, had occupied the demanded premises from 1865 until the time of the sale; that the taxes on all the parcels for the year 1865 were assessed to Percival Hall; that for the years 1866, 1867, 1868, they were assessed to John Hill; that the taxes for all these years were unpaid; that in 1869 they were reassessed to “ owner unknown; ” that August 3, 1869, Joseph Fobes, collector of taxes for that year, demanded the taxes of Percival Hall and of Ambrose P. Hall; that more than fourteen days thereafter, the taxes remaining unpaid, he advertised that he should sell the property at public auction, on September 27,1869, for the taxes, and gave notice of the time and place of sale, by posting and otherwise, and pursuant to such notice and advertisement, September 27, 1869, sold the lots separately to the demandants for the amount of the taxes and intervening charges; that having received only one bid, which was withdrawn, and having adjourned the sale “a spell,” and no other bid having been made at the adjourned sale, and having made a public declaration of the fact that no one had bid enough on either of the parcels to satisfy the taxes and charges thereon and no bid having been received immediately thereafter, he gave public notice that he should, and that he then and there did, purchase each of the lots for and on behalf of the town of Oakham for the amount of the taxes and charges thereon; that each of the parcels was accordingly struck off to the demandants, and that Fobes gave them the deed dated September 27,1869, under which they claimed at the trial.</p> <p>Fobes duly recorded a proper and sufficient affidavit of a disinterested witness to the posting of the notice with a copy thereof.</p> <p>The demandants introduced evidence of the election and qualification of collectors of taxes and assessors, and votes showing the annual appropriations, and votes for the assessment and collection of taxes at legal town meetings for the years 1865,1866,1867 and 1868, and evidence of the election and qualification of a collector of taxes and of assessors for the year 1869, and put in evidence the warrant and vote for the collection of taxes for that year and the list of taxes accompanying it, among which were those for which the land in controversy was sold.</p> <p>It further appeared that both the tenant Hall and Percival Hall declined to give the assessors for the year 1865 any information concerning the ownership of the land or to whom it should be taxed; that after it was set to Percival Hall, both the Halls told the collector of taxes for that year that it ought to have been taxed to John Hill; that they both declined to pay the taxes; that in 1866,1867,1868 and 1869 the tenant Hall told the assessors for those years respectively to tax it to John Hill • that John Hill told the collector of taxes for the year 1866,1867 and 1868 that it belonged to the Halls to pay it; that Hill told the assessor and collector of taxes for the year 1869 that it ought to have been taxed to “ owner unknown; ” and that thereafter the assessor for 1869 reassessed the taxes to “ owner unknown,” and committed them to the collector for that year with a warrant for their collection.</p> <p>The assessors for each year knew, or had the means of knowing, in whom the record title to the premises was, and also knew who the occupants were.</p> <p>The demandants also put in evidence the following deeds, recorded in the Worcester county Registry of Deeds, viz :</p> <p>Percival Hall to Cheney Hatch, conveying all the land except the Bell lot, dated January 27, 1864, recorded same day, book 678, page 89.</p> <p>Ambrose P. Hall to Cheney Hatch, conveying the Bell lot, dated January 27, 1864, recorded same day, book 678, page 90.</p> <p>Cheney Hatch to Ambrose P. Hall, conveying all the land, dated December 1, 1864, recorded December 6, 1864, book 695, page 108.</p> <p>Ambrose P. Hall to John Hill, conveying all the land, dated December 1, 1864, recorded December 6, 1864, book 695, page 110, and containing a reference to the deed from Cheney Hatch to Ambrose P. Hall.</p> <p>The above facts appeared upon the evidence put in by the demandants. The tenants put in no evidence.</p> <p>Upon the foregoing facts the defendant Hall contended that the demandants were not entitled to recover. And the case was reserved for the consideration and decision of the full court.</p>

<p>The powers, as to certain crooks therein named, conferred upon the city council of Worcester by St. 1867, c. 106, § 2, extend to all such portions of those brooks as are within the city.</p> <p>The St. 1867, c. 106, providing for a system of sewerage in the city of Worcester is constitutional.</p> <p>The St. 1867, c. 106, § 1, authorizes the city council oi Worcester to “lay, make and maintain in said city all such drains and common sewers as they shall adjudge to be for the public health and convenience; ” § 2 authorizes them “to fix the boundaries of Mill Brook,” “and alter, change, widen, straighten and deepen” its channel, and cover, pave and inclose it in retaining walls “ for the purposes of sewerage; ” § 4 provides that "every person owning real estate upon any street in which any drain may be laid,” “ or whose estate may he benefited thereby, shall pay to said city such sum as the mayor and aldermen shall assess upon him as his proportionate share of the expenditure ” “ fo drains and sewers.” The city council appropriated and laid out continuous portions of Mill Brook as a main drain and common sewer, and changed its course, cleared it out, deepened and paved its channel, walled it in, and covered it with a continuous arch for a portion of its length, and built bridges over the remaining portion at the street crossings: jSehf, that these acts were within the authority conferred by § 2; and that the cost thereof, together with cost of constructing drains and sewers in the neighboring streets under § 1, might be included in the expenditure of the city for drains and sewers, and assessed upon the owners of real estate under § 4.</p> <p>By St. 1867, c. 106, which provides for a system of sewerage in the city of Worcester, the estates upon any street in which a drain or sewer has been laid under the act and the estates upon the line of the drain or sewer and the estates which are benefited thereby, may be assessed a proportionate share of the whole expenditure of the city for drains and sewers under the act.</p> <p>Under St. 1867, c. 106, providing for a system of sewerage in the city of Worcester, one who has entered his private drain into a common sewer constructed under that act is liable to be assessed for his proportion of the whole expenditure of the city under the act, and cannot object that he had no previous notice of the laying out of the sewers. Under the St. 1867, c. 106, providing for a system of sewerage in the. city of Worcester, parties liable to assessment for a portion of the cost are not entitled to previous notice and a hearing upon the question of the amount of the assessment; their remedy, if dissatisfied, is by an application for an abatement, or by an appeal to a jury under § 4 of the act.</p> <p>An assessment under St. 1867, c. 106, providing for a system of sewerage for the city of Worcester, made upon a person whose estate is benefited, cannot be invalidated in an action to recover back an assessment paid, upon the ground that the assessment included estates not liable, and omitted estates liable; if the assessment is in this respect erroneous, it must be revised on certiorari.</p> <p>Under St. 1867, c. 106, providing for a system of sewerage for the city of Worcester, and empowering the mayor and aldermen to assess, upon persons whose estates are benefited, their proportionate share of the expenditure, an assessment made cannot be invalidated in an action to recover back an assessment paid, upon the ground that the assessment is not proportional because the estates benefited were divided into classes according to their value per foot, and the different classes assessed at a different per cent., the variation not being sufficient in amount to show that the entire scheme of assessment was unreasonable, or that it operated unjustly upon the plaintiff.</p> <p>The right, under St. 1867, c. 106, (providing for a system of sewerage for the city of Worcester,) to lay assessments upon estates benefited, is not affected by the exercise by the city council of the power to issue scrip under § 5 of that act.</p>