Volume 113 — Massachusetts Reports

Complaint to the Second District Court of Southern Worcester alleging that “ John Taylor, on the tenth day of August, in the year eighteen hundred and seventy-two, at Uxbridge, in said county, without any authority therefor, did keep intoxicating liquor, with intent to sell the same in said Commonwealth.'’ The warrant commanded the officer “ to arrest John Taylor, if he may be found in your precinct, and him bring before the Second District Court of Southern Worcester, in…

<p>The provision of St. 1869, c. 415, § 35, that the delivery of intoxicating liquor in certain places shall be deemed prima fame evidence of a sale, is confined to cases under that statute.</p> <p>The defendant’s payment of costs in a criminal prosecution, by order of court, as a prerequisite to the removal of his default, is not a bar to the further prosecution of the case.</p>

Complaint to the First District Court of Southern Worcester, alleging that the defendant kept and maintained a tenement used for the illegal sale and for the illegal keeping of intoxicating liquors.

Complaint to a trial justice alleging that the defendant on June 10, 1873, at Brookfield, “ was a disturber and breaker of the peace, and then and there contriving and intending to disturb the peace of said Commonwealth, did, in and near to one of the public streets of said town, utter loud exclamations and outcries, and did then and thereby draw together a number of persons, to the great disturbance, damage and common nuisance of all the citizens of said Commonwealth, then…

Complaint to the First District Court of Eastern Worcester, under St. 1867, o. 285, § 8, alleging “ that Augustus Legassy, of Grafton, in the county of Worcester, on the first day of July, in the year eighteen hundred and seventy-two, and from thence continually till the fifteenth day of April, in the year eighteen hundred and seventy-three, at Grafton, in said county, did allow and consent to the employment of Joseph Legassy, a child under the age of fifteen years, in the…

<p>Complaint under Gen. Sts. c. 87, §§ 6, 7, for keeping a tenement used for the illegal sale of intoxicating liquor.</p> <p>At the trial in the Superior Court before Bacon, J., the defendant offered evidence tending to show that certain certificates granted by the United States revenue officers were posted in the tenement claimed to be a nuisance, and the evidence was admitted. He then offered to show orally the contents of these certificates, especially the name of the person authorized by them to carry on business in that place. But the court refused to admit the evidence.</p> <p>The jury returned a verdict of guilty, and the defendant alleged exceptions.</p>

<p>Complaint under St. 1869, c. 415, § 44, as follows: “ To the Central District Court of Worcester, in the county of Worcester, and Commonwealth of Massachusetts, James M. Drennan, of Worcester, and Samuel J. Fletcher, hath of said county, and both of full age, and competent to testify, in behalf of said Commonwealth, on oath complain, that they have reason to believe, and do believe that intoxicating liquors, to wit: a certain quantity of whiskey, being about, and not exceeding five hundred gallons; a certain quantity of gin, being about, and not exceeding five hundred gallons; a certain quantity of rum, being about, and not exceeding five hundred gallons; a certain quantity of wine, being about, and not exceeding five hundred gallons; a certain quantity of brandy, being about, and not exceeding five hundred gallons; a certain quantity of ale, being about, and not exceeding five hundred gallons; a certain quantity of porter, being about, and not exceeding five hundred gallons ; on the twenty-fifth day of July, in the year eighteen hundred and seventy-three, were, and still are, kept and deposited by Joseph Chase and Benjamin D. Dwinnell, of said Worcester, in a certain grocery store, the cellar under the same, and the premises there situate, to wit, on the easterly side of Main Street, and numbered three hundred and seventy-five on said street, in the city of Worcester, in said county, and occupied by said Chase and Dwinnell, a place of common resort being then kept therein ; and which liquors are intended by said Chase and Dwinnell for sale in said Commonwealth, said Chase and Dwinnell not being then and there authorized to manufacture, keep for sale, or sell the same in said Commonwealth; and said complainants pray for a warrant to search said building described as aforesaid, for said liquors, and that the same may be declared to be forfeited, and that said Chase and Dwinnell and all other persons claiming an interest in said liquors, may be summoned to appear before said court, to show cause, if any they have, why said liquors should not be declared forfeited. Jas. M. Drennan, Sam’l J. Fletcher, complainants. Worcester, ss. Received and sworn to this twenty-fifth day of July, in the year of our Lord one thousand eight hundred and seventy-three, before said court. T. S. Johnson, Clerk.’</p> <p>The warrant issued on this complaint, after reciting that “ James M. Drennan of Worcester and Samuel J. Fletcher, both of said county,” made complaint, recited the allegations of the complaint and directed the officers to enter the premises, search for the liquors, seize them if found, and summon the complainants to testify, “ probable cause having been shown for the issuing of this warrant.”</p> <p>The officer who served the warrant made the following return; " By virtue of this warrant, I have searched the within described premises, and have seized therein, and conveyed to a place of safety, the liquors described in this warrant, with the vessels in which they are contained, to wit: About two hundred and ninety-five gallons of whiskey, in six barrels, six demijohns, and one hundred and sixty-two bottles, and about sixteen gallons of gin in three demijohns and one hundred and sixteen bottles ; about eight gallons of rum in three demijohns and one jug; about seventy-six gallons of brandy in two casks, two demijohns, and fifty-six bottles ; about one hundred and ninety-eight gallons of wine in one cask, ten demijohns, and eight hundred and seventy-two bottles; about sixty gallons of porter in five hundred and fifty-two bottles; about eleven gallons of ale in one hundred and thirty-two bottles. Jas. M. Drennan, Constable of the Commonwealth.”</p> <p>The material portion of the record of the District Court was as follows: “ Worcester, ss. By virtue of a warrant issued upon the within complaint diligent search has been made of the within described premises; and the within described liquors, together, with the vessels containing the same, as set forth in the officer’s return upon said warrant, were on the twenty-fifth day of July, in the year eighteen hundred and seventy-three, there found and seized, and together with the aforesaid warrant were returned to the Central District Court of Worcester, in said county ; and in the opinion of said court the value of said liquors, so seized, together with the vessels containing the same, does exceed twenty dollars. It was thereupon ordered by said District Court, that a notice be issued; which said notice was duly issued on the twenty-sixth day of July, in the year eighteen hundred and seventy-three, to Joseph Chase and Benjamin D. Dwinnell and all other persona claiming an interest in the aforesaid liquors and vessels, summoning and commanding them and each of them to appear before the Superior Court of Worcester, in said county, on the second Monday of August next, then and there to show cause, if any they have, why said liquors and vessels should not be forfeited. Attest, T. S. Johnson, Clerk.”</p> <p>The warrant to serve the notice concluded as follows: “ Hereof, .ail not, and make return of this warrant, with your doings thereon, before the Superior Court to be holden at Worcester, in out county of Worcester, on the second Monday of August, in the year eighteen hundred and seventy-three,” and bore date July 26, 1873.</p> <p>The notice required Chase and Dwinnell and all other persons claiming any interest in the liquor seized, “ to appear before the Superior Court to be holden at Fitchburg, in said county of Worcester, on the second Monday of August next,” and was dated July 26, 1873. The officer’s return of the service of notice bore date July 28, 1873.</p> <p>In the Superior Court Chase and Dwinnell appeared as claimants, and filed the following motion to quash : “ Now before the empanelling the jury in said case come Joseph Chase and Benjamin D. Dwinnell, claimants of said liquor, and move the court to quash and dismiss said complaint and warrant, and for grounds of this motion assign the following, to wit: 1st. The said complaint and warrant do not sufficiently describe and identify the complainants. 2d. The said complaint and warrant do not sufficiently describe the building, structure and place to be searched. 3d. The said complaint and warrant do not sufficiently describe the liquors alleged to be kept for sale. 4th. The return on said warrant does not show that the liquors seized are the same described in the warrant. 5th. The return on said warrant does not show that the liquors seized were found in the building, structure and place described in the complaint and warrant.”</p> <p>The court overruled the motion, and the claimants excepted.</p> <p>At the trial in the same court, before Bacon, J., the evidence tended to show that the place where the liquor was seized was a . com and a cellar under it, in a brick block four stories high, situated on the easterly side of Main Street in Worcester, and occupied by the claimants as a grocery store; that there were two rooms on the first floor occupied by other parties as stores, besides the room occupied by the claimants ; that the upper stories were occupied by different parties and for various purposes; that the door of the premises occupied by the claimants opened upon Main Street; that over it was the number 375 ; that there was no other place numbered 375 on that street; and that the other rooms in the same block and occupied as stores had other numbers,</p> <p>At the time of the seizure, and as a part of the same transaction, the officer seized three dozen bottles of bay water, not described in the warrant or in the return.</p> <p>After the seizure had been made and the warrant returned, the officer who made it gave up to Schlesinger & Blumenthal of New York two casks of brandy, and six barrels of whiskey, and twelve cases of claret wine, which were a part of the liquors described in the warrant and seized under it, and the same were not in the custody of the officer at the time of the trial. These liquors were given up upon the representation of Schlesinger & Blumenthal, that they belonged to them, and not to Chase and Dwinnell They were delivered up with the concurrence of the district attorney. Before the delivery, the claimants addressed a letter to the officer, containing these words, “ they [referring to the liquors] are rightfully owned by the consignors Messrs. Schlesinger & Blumenthal, who marked them and intended them for E. A. Warren, but by accident they were stored in our cellar, we make and have no claim to them, and you have our full assent to deliver them to Mr. Schlesinger or Mr. Warren, or do with them as you like, we have no sort of interest or claim to them.”</p> <p>The claimants did not deny that the liquors, except that part of them delivered up as above, were kept by them for sale in the place where seized, but admitted that the government could prove it.</p> <p>They contended and asked the court to rule that there was a variance between the allegation and proof with regard to the place to be searched, and contended and asked the court to rule that the effect of the delivering up of the liquors to Schlesinger & Blumenthal was to avoid the whole proceedings, and asked the court to direct a verdict against the government for these reasons, and also because of the unauthorized seizure by the officer of the bay water.</p> <p>The court ruled against the claimants, and the jury returned the following verdict: “ The jury find that the liquors described in the complaint and warrant and seized on the warrant, at the time of making the complaint were owned and kept by the said Chase & Dwinnell in the premises described in the complaint and warrant, for the purpose of being sold in said Commonwealth in violation of the four hundred and fifteenth chapter of the statutes of this Commonwealth, passed in the year 1869, excepting the six barrels of whiskey and two casks of brandy.” The claimants alleged exceptions.</p>

<p>Complaint to a district court under St. 1869, c. 415, § 44, for the forfeiture of intoxicating liquors alleged to be kept for sale by Ephraim D. Weatherbee. In the opinion of the court before which the warrant was returnable, the value of the liquor seized with the vessels containing it exceeded $20, and the notice was made returnable to the Superior Court.</p> <p>At May term, 1872, of that court Weatherbee appeared and claimed the liquors and afterwards, during the same term, was defaulted.</p> <p>At October term, 1872, Weatherbee moved that the default be stricken off, and that he be allowed to appear and claim the goods. The motion was overruled by Scudder, J., and “ it was thereupon adjudged by the court that said intoxicating liquors and the vessels containing them were forfeited to the Commonwealth.” From this decision Weatherbee appealed.</p>

Contract against the defendant as the guarantor of the following promissory note: “ Worcester, October 26, 1859. For value received, We, John Keith, principal, Chas. Sibley, G. W. Bentley, H. E. Bugbee, and Chas. Devens, Jr., sureties, jointly and severally promise to pay to the Worcester Mechanics’ Savings Bank, or order, the sum of Fifteen Hundred Dollars on demand, with interest semi-annually, at the said Bank. John Keith. G. W. Bentley, as surety. H. E. Bugbee, as surety.

<p>That one acted in aid of an officer is no defence, if the officer himself was a trespasser.</p> <p>One in lawful occupation of a close can maintain trespass for the unauthorized entry of a stranger.</p> <p>One who has himself no right of entry upon land cannot authorize the entry of a third person.</p>

<p>Contract. The declaration contained two counts, one on an account annexed for rent, the other upon an award.</p> <p>At the trial in the Superior Court, before Dewey, J., it appeared that the defendants had been tenants of the plaintiff for several years, under a parol lease, at an annual rent of $800; that a controversy arose as to whether any deduction should be made from the rent, on account of alleged interruptions of the beneficial use of the premises; that the parties made a parol agreement to submit the matters in controversy to three referees ; that in accordance with this agreement referees were selected that they gave notice to the parties and heard them upon the matter submitted; that the defendants wished a postponement till the next morning, in order to introduce the evidence of one Goodell; that the defendants not appearing the next morning, and not offering the testimony of Goodell, the referees made a parol award in favor of the plaintiff of a definite sum for rent, and notified the parties thereof.</p> <p>Rice, one of the defendants, testified that he understood that the award was not to be made till Goodell had been called as a witness, and that the necessary absence of Goodell rendered it impossible to call him the next morning.</p> <p>There being a controversy between the parties as to whether all the matters growing out of the defendants’ tenancy were submitted to the referees, or only the amount of deduction, if any, that should be made from the rent, this question was left to the jury, who found “ that there was a submission between the plaintiff and the defendants of all matters between them growing out of the hiring by the defendants.”</p> <p>The defendants contended that the submission and award, being by parol, were not binding upon them.</p> <p>The court ruled that the award was not on that account invalid.</p> <p>The defendants contended that the award was not binding, because they had not been fully heard before the referees.</p> <p>The court instructed the jury as follows : That before the referees made an award, they must give reasonable notice to the parties, and give them an opportunity for a hearing ; that if they did so and made their award, it was binding in the absence of fraud or corruption; that the jury were to consider what was done in relation to the submission, what took place at the hearing, and what was said as to further evidence, upon which question they had the testimony of the parties and of the referees; that if reasonable notice of the hearing was given and an opportunity given to the parties to introduce evidence, it was a matter in the discretion of the referees, whether they would postpone the case for further hearing or would give other opportunities of calling witnesses to either party; that if they decided the case without so doing, their award was not invalid for that cause, unless there was evidence of fraud or corruption on their part; that fraud or corruption on the part of.the referees would invalidate the award, and that the plaintiff could not then recover.</p> <p>At the conclusion of the charge, the defendants’ counsel asked the court to instruct the jury, “ that, if the hearing was postponed for further evidence, and the referees made their award without having further evidence, the award would not be valid.”</p> <p>The court declined so to instruct the jury, but instructed them that such conduct of the referees would be evidence of fraud and corruption on their part.</p> <p>The jury found a verdict for the plaintiff for the amount of the award, and the presiding judge reported the case for the determination of this court. If the rulings given were incorrect, or if the court should have ruled as requested by the defendants, then the verdict was to be set aside and a new trial ordered; otherwise judgment was to be entered upon it.</p>

Contract. The action was brought in the Superior Court. The defendant filed a plea in abatement upon the ground of the pendency of another suit for the same cause of action. The issue arising upon the plea in abatement was submitted to the jury, and a verdict found in favor of the plaintiff. The court then passed an order, that the defendant might answer by the first day of the next term. Before that time, the defendant filed a demurrer to the plaintiff’s declaration.

Actios on Gen. Sts. c. 137, for forcibly detaining a dwelling-house. At the trial in the Superior Court, before Dewey, J., the plaintiff put in evidence a mortgage of the premises from Martha E. Henry to Leonard Hosmer, dated October 3, 1865, and duly recorded; and assignments of the same through various persons to himself. The mortgage was made to secure a note for $700, which was due and unpaid prior to the assignment to the plaintiff.

<p>Tort for the conversion of 18,907 feet of oak and walnut lumber.</p> <p>The defendant justified as collector of taxes for the town of Uxbridge under a collector’s warrant by which be was required to levy and collect, among other sums, “ the sum of twenty thousand nine hundred and ninety-two dollars, it being the appraised value of the property of the several school districts taken by the town and assessed in accordance with the laws of this Commonwealth and the vote of the town at said meeting, less such sum as you are hereinafter authorized and required to deduct to certain districts, whose debts do not equal the value of its property.” He was also required to pay to the town treasurer “ fourteen thousand three hundred and thirty-four dollars and sixty-three cents, being the balance of the appraised value of the school property of the several school districts, after deducting the sum of six thousand six hundred and fifty-seven dollars and thirty-seven cents, due to said districts for said property; which said sum of $14,334.63 you are to pay over to said Henry Capron, treas., as aforesaid, on or before-.the first day of March, A. D. 1871. And said sum of six thousand six hundred and fifty-seven dollars and thirty-seven cents you are to pay over to the tax-payers of the several school districts, whose names are in the accompanying list; and to each person his respective proportion of said sum as therein set down, excepting, however, the tax-payers of school districts No. (1) one and No. (11) eleven, who are not entitled to said payment. And you will make said payments to said taxpayers by deducting from each person’s total tax committed to you, his respective share of said sum to be paid and remitted to said districts.”</p> <p>At the trial in the Superior Court, before Dewey, J., the plaintiff put in evidence the following article of a warrant calling a town meeting to be held July 27, 1869 : “ Art. 2. To see if the town will vote to take possession of all the school-houses, lands, apparatus and other property owned and used by the several school districts and to appoint appraisers to appraise the same, under the provisions of chapters 110 and 423 of the acts of the Legislature of Massachusetts, passed at the session of 1869, and to pass any votes necessary to carry the same into effect.”</p> <p>The plaintiff also put in evidence the record of the proceedings of the town under this article as follows : “ On motion of Francis Deane, Esq., voted, that the school committee of the town be authorized to take possession of the school district property under the provisions of the law in this behalf made and provided. Voted, that a committee of one from each school district be chosen to appraise the school-houses and property heretofore belonging to the several school districts in town, and report at an adjournment of this meeting, and this committee shall also ascertain the amount of any debt or debts due from any school districts and report the same at the adjournment.” “ Chose the following persons [naming them] said committee.” “ At adjourned meeting; ” “ Voted, that the report of the committee chosen at the last meeting be accepted and adopted, and said committee are hereby discharged.”</p> <p>“ The committee chosen to appraise the school district property in the town of Uxbridge met on the 16th inst., and organized by the choice of Samuel Taft for chairman, and Alvin Cook for secretary, and the committee, before entering upon the duties of their appointment, were sworn to the faithful discharge of that service by Francis Deane, Esq.</p> <p>“ The committee having attended to the business assigned them beg leave to submit the following appraisal. [Here followed an appraisal of the property of each district], making an aggregate of school district property in town of $20,992.00. [Here followed an enumeration of the indebtedness of various districts], making all the indebtedness of the school districts in town of $14,346.32.</p> <p>“ It was voted by the committee that the chairman and secretary make a report of their doings, sign the same, and present it to the town.”</p> <p>The plaintiff put in evidence the following article of a warrant calling a town meeting to be held on the first Monday of March, 1870: “Art. 6. To raise such sums of money as maybe necessary to defray town charges for the ensuing year, and make appropriations for the same.”</p> <p>And the vote of the town thereon at the meeting held April 11, 1870, by adjournment from the first Monday of March: “ Took up Art. 6. On motion of Geo. W. Hobbs, voted that the assessors be instructed to assess upon the whole town a sum equal to the appraised value of the school district property, and that they remit to the tax-payers of the districts their respective portions of said sum, after deducting the debts of their districts.”</p> <p>. It appeared that the defendant had sold the lumber after having given the following notice :</p> <p>“ Uxbridge, Mass., July 7, 1871. Distrained for the payment of taxes and will be sold at public auction near the saw-mill of John S. Taft, in Uxbridge, on Wednesday, the 12th day of July, at 2 o’clock P. M., unless said taxes shall be paid before the sale, about eighteen thousand nine hundred and seven feet of oak and walnut lumber, be the same more or less, which I have distrained to pay the taxes assessed against Charles B. Rawson of Uxbridge, for the year 1870, amounting to $211.28, together with the inter est on the same and charges of said sale and expense of keeping the same. Terms cash. H. D. Spencer, collector for 1870.”</p> <p>There was no evidence that any other action except that set forth above was taken by the town to determine the amount of the debts of said several districts, or to authorize the assessors to assess the inhabitants for the value of the school district property, and to make the remittances named in the warrant to the taxpayers in the several school districts.</p> <p>No evidence was offered tending to show that the several school districts were represented in the appraisal of their property or in the determination of the amount of their several debts, except what is contained in the records above quoted.</p> <p>The plaintiff offered evidence tending to show that the assessors remitted to the several tax-payers in the several school districts in proportion to the valuation of the property of each taxpayer, and that one sixth of the said remittance was made on the polls.</p> <p>The plaintiff asked the court to rule that the defendant could • not justify his acts under the warrant:</p> <p>“ Because the statute of 1869, c. 110, and § 3 of chapter 39 of the General Statutes providing for the taking the property of school districts by towns, are unconstitutional and void:</p> <p>“ Because no lawful adjudication of the debts of the several districts was ever made:</p> <p>“ Because the assessors of 1870 had no lawful authority to assess the tax for the school district property named in the warrant :</p> <p>“ Because the assessors had no lawful authority to remit any sums to the tax-payers of the several school districts and to determine the balance to be paid by each inhabitant:</p> <p>“ Because if the manner of assessing the tax and making the remittance to the inhabitants of the several districts was determined by the vote of April 1870, it was erroneously determined.”</p> <p>The court declined so to rule, but reserving the determination of these questions and of the competency of the evidence as affecting the defendant, for the determination this court, submitted to the jury the questions as to whether the defendant had given the requisite notice of the sale of the property, and whether he had so mismanaged in relation to the sale as to render himself liable.</p> <p>The plaintiff asked the court to rule that the notice of the sale by the defendant was insufficient in law, but the court declined so to rule, but did rule and instruct the jury, that if they were satisfied that the notice produced at the trial, or one like it, was posted up during the time required by law (which was stated to the jury), in a public place, in said town, it would authorize the jury to find that the defendant complied with the law as far as giving said notice was concerned; to which ruling the plaintiff excepted.</p> <p>The jury found a verdict for the defendant.</p> <p>If in the opinion of this court the proceedings of the inhabitants of Uxbridge and of their officers, as far as competent in the case, showed that the defendant was not justified thereby, or under his warrant, in distraining the property of the plaintiff, or if the notice given by the defendant was insufficient in law, then the verdict was to be set aside and a new trial ordered, otherwise judgment was to be entered on the verdict for the defendant.</p>

Contract for the rent, from April 1, 1869, to April 1, 1871, of a tenement occupied by one Patience Kenney, alleged to be a pauper and lawfully settled in the defendant town.

Replevin of a horse, harness and blanket. Writ dated January 10, 1872, returnable at March term 1872 of the Superior Court.

Tort, in the nature of trespass quare clausum fregit, for entering into the plaintiffs’ close and dwelling-house, and ejecting them therefrom. The defendant claimed title through a purchaser at a sale under a power of sale contained in a mortgage of the premises made by one Michael Conners, the father of the plaintiffs.

<p>Tort. The declaration alleged that the plaintiff owned a tract of land on the southerly side of Ash Street, in Clinton ' that upon the land was a dwelling-house and barn occupied by her; that at a distance of one hundred and fifty feet from her land, Ash Street at its westerly end intersected Main- Street, and at its easterly end terminated at a mill pond; that the plaintiff had a right of passage from her land over Ash Street to Main Street; that the defendant corporation negligently and improperly put large quantities of earth, &c., upon Main Street at its intersection with Ash Street, and did not grade the streets so as to make them safe and convenient for travellers, but filled up Main Street in such an improper manner that she was greatly incommoded in her access to her estate, and that the surface water from Main Street was turned upon her land.</p> <p>The answer alleged that the corporation were authorized by Sts. 1865, cc. 170, 239, to cross Main Street at grade with their railroad ; that for this purpose they raised the grade of the street under, and according to, the directions of the county commissioners and to their acceptance, and that the plaintiff’s remedy, if she was injured, was by petition to the county commissioners.</p> <p>At the trial in the Superior Court, before Pitman, J., it appeared that in order to enable the defendant corporation to cross Main Street, in Clinton, with their railroad at grade, the corporation raised the grade of the street. The plaintiff offered to prove that the corporation had done this work in a careless and negligent manner and with a wanton disregard of her rights, and that in consequence her property was damaged as set forth in the declaration.</p> <p>The defendant offered in evidence the record of the county commissioners, relating to the raising of the street, the material part of which was as follows:</p> <p>“ The said Agricultural Branch Railroad Company petition to cross said street [Main Street] at grade and on a level therewith, and having viewed the route and premises set forth in said petition, and having heard all persons and corporations interested therein who expressed a desire to be heard thereon, and said Agricultural Branch Railroad Company having a special act from the legislature to cross said street at grade and on a level therewith it is considered and adjudged that said petition ought to be granted, and the Agricultural Branch Railroad be authorized to construct their said crossing at grade and on a level with said street by raising said street 6.4 feet to the same level as the top of the rails of said railroad. Provided that the approaches on the north be worked a regular inclination of 1° 34' for 240 feet, and on the south a regular inclination of 1° 13' to the street that passes on the north side of the Clinton House in said Clinton, called Church Street, and that the travelled part of the road over said approaches be worked to the width of twenty-four feet between and exclusive of the side ditches, and the travelled part of the road on the southerly approach thereto be covered with good gravel to the depth of nine inches, and crowned fifteen inches.....</p> <p>“ And now it is ordered that the crossings of the Agricultural Branch Railroad over the town and county roads aforesaid and the alterations of the town and county roads aforesaid in the towns of Northboro, Berlin, Bolton, Clinton, Lancaster, and Sterling be worked and made hard, safe, and convenient for travellers to pass over with their teams, cattle, horses, carts, and carriages,' and that they be made and completed by the Agricultural, Branch Railroad Company before the day of opening their said railroad for the passing of engines or the transaction of business thereon, to the acceptance of the county commissioners.”</p> <p>It was agreed that the county commissioners would testify, if competent, that after the street was raised, the commissioners, after notice to parties interested, viewed it, were satisfied that the work was done in substantial compliance with their order, and verbally accepted it, of which acceptance no record was made; that for several years no record of acceptance by the commissioners has been made, to their knowledge, and that prior to that time, during the last ten years, such records were sometimes but not usually made. This evidence was not controverted. It was not claimed by the defendant that any personal notice was given to the plaintiff of the intent of the commissioners to view for the purpose of accepting the work.</p> <p>The plaintiff offered evidence tending to show that the street was not raised as directed by the commissioners, but was raised much higher, thereby occasioning greater damage to the plaintiff’s premises than otherwise would have been done. The defendant corporation claimed that the action could not be maintained, and the judge so ruled, and directed a verdict for the defendant, and at the request of the plaintiff reported the case for the opinion of this court. If the action could be maintained then the case was to be remitted for a new trial, otherwise judgment was to be entered upon the verdict.</p>

<p>Bill in equity against Lucian Harris, Mary A. Harris, his wife, and Harriet Bugbee.</p> <p>The bill alleged that the plaintiff was seised in fee of a lot of land with a dwelling-house upon it lying between the mansion-house which once belonged to one Charles Negus, deceased, and a lot called the spring lot, which was also once his property, that Negus sunk a well upon the spring lot; that this well was supplied by a spring which furnished water abundantly sufficient to supply the wants of Negus’s estate and of some six other estates in the vicinity ; that Negus constructed an aqueduct and conveyed water from, the well to his house, and that Negus and the plaintiff’s husband, Rufus Amidon, who was then seised of a life estate as tenant by the curtesy in the plaintiff’s land, and who had since died, executed the following indenture:</p> <p>“ This indenture made and executed this 1st day of January, A. D. 1849, by and between Charles Negus, of Webster, in the county of Worcester and Commonwealth of Massachusetts, physician, of the one part, and Rufus Amidon, of the same Webster, of the other part, Witnesseth:</p> <p>“ That whereas the said Negus, being the owner of a certain spring of water situated in said Webster, has brought and is still bringing water therefrom by means of an underground pipe running from said spring to the premises now occupied by him in said Webster, and whereas it is his intention to dispose of privileges to use said water so conveyed as aforesaid, to such individuals as may desire to purchase the same: And whereas the said Amidon is desirous of obtaining the right of using the said water upon the premises of him the said Amidon, situate in said Webster : Now, therefore, the parties hereto have mutually covenanted and agreed as follows, to wit:</p> <p>“ First. The said Negus, for himself, his heirs and assigns, doth covenant and agree to and with the said Amidon, that he, the said Amidon, his heirs and assigns, may at any and all times ■hereafter, so long as water shall run from said spring through said pipe as aforesaid, draw from the main pipe of said Negus, at a point agreed upon by the parties, so much water as shall be necessary for the supply of the family or families resident in the house now owned by said Amidon.</p> <p>“ Second. And the said Amidon doth hereby covenant and agree to and with the said Negus, that he will pay to the said Negus for the right of water so granted to him as aforesaid, tho sum of fifty dollars, to be paid upon the execution of this instrument, and that he will, and his heirs and assigns shall, pay his oi their proportion of any and all expenses which may hereafter accrue for the repair of the main pipe, the whole of said expenses to be proportionately borne by all those who shall use the said water; that is to say, that at each and every time that the mom pipe shall become out of repair, the expense of repairing the same shall be divided into as many equal parts as there may be houses supplied with water from said main pipe, and the owner of each house shall pay one part.</p> <p>“ Third. And the said Amidon for himself, his heirs and assigns, doth further covenant and agree to and with the said Negus, his heirs and assigns, that he or they will lay down and keep in repair at his or their own proper cost and charge a branch pipe leading from said main pipe to the house of said Amidon; that he and they will use the said water so granted as aforesaid in an economical manner, and not suffer the same to be uselessly wasted or extravagantly expended.</p> <p>“ In witness whereof, the parties have hereunto set their hands and seals, the day and year first above written.</p> <p>“ Charles Negus. [l. s.]</p> <p>“ Rufus Amidon.” [l. s.]</p> <p>The bill then alleged that the plaintiff was, by conveyance from the heirs of her husband, the owner of the right granted to him by this indenture; that her husband laid a branch pipe from the main pipe to her house; that she and her husband drew from the pipe all the water necessary for the house; that they had always paid their proper proportion of the expense of repairing the main pipe; that Negus afterwards granted similar rights to take water to six other persons; that there was always abundance of water for the plaintiff and the six other grantees; that Negus devised his mansion-house estate to the defendant Mary A. Harris ; that the spring lot had by conveyances (which were set forth in the bill) become the property of the defendant Lucian Harris; that Lucian and Mary Harris had empowered the defendant Bugbee and others, who owned estates situated upon a lower level than the plaintiff’s estate, to extend the main pipe to their estates, and had thus enabled them to draw water from the spring when the plaintiff and the other grantees of Negus were suffering from its want; that for four months before the filing of the bill the plaintiff had been almost wholly deprived of water, and had been obliged to obtain a supply elsewhere ; that she had called upon the defendants to desist from the unlawful taking of the water, but that they had refused, and had threatened to continue the taking. The bill prayed for an injunction and for general relief.</p> <p>The defendants demurred generally, for the want of equity.</p>

<p>A town may submit to arbitration a controversy to which it is a party.</p> <p>A vote of a town empowering the selectmen to settle a claim against it, “ at their discretion,” authorizes the selectmen to submit the claim to arbitration.</p> <p>One who has submitted his claim against a town to arbitration, and has appeared before, and been fully heard by the arbitrators, cannot after an adverse decision dispute the authority of the selectmen of the town to enter into the submission on its behalf.</p> <p>The selectmen of a town were authorized by a vote of its inhabitants to submit the claim of W. C. to arbitration ; the claim submitted by them was the claim of W. T. C., who appeared before the arbitrators, was fully heard, and after an adverse decision objected to the authority of the selectmen to make the submission. Held, that the variance between the names was immaterial, it not appearing that there was any other person than W. T. C. of either name, or that any question of identity had been made before the arbitrators.</p> <p>A submission to arbitration, under Gen. Sts. c. 147, § 2, provided that the award being made to the Superior Court, “the judgment shall be final,” instead of pursuing the statute form of “ the judgment thereon shall be final.” Held that the omission of the word “ thereon ” did not invalidate the submission.</p> <p>A submission to arbitration, entered into by a town and signed “ The inhabitants of U., by A. and B. selectmen of U.,” is properly acknowledged by A. and B. “in behalf of said inhabitants.”</p> <p>The certificate of a justice of the peace to a submission to arbitration under Gen. Sts. c. 147 that the parties “personally appeared and acknowledged said instrument by them signed,” shows, in the absence of evidence to the contrary, that the submission was signed in his presence.</p> <p>Arbitrators, appointed under Gen. Sts. c. 147, having met and come to a final decision, may sign the award at different times and places without again meeting for that sole purpose.</p> <p>Where arbitrators, without authority to do so, award costs to be paid by the prevailing party that portion of the award may be rejected.</p>

Tort in the nature of trespass, for breaking and entering the plaintiff’s close, and cutting and carrying away a quantity of wood there growing.

<p>A.t the trial of a writ of entry under Gen. Sts. c. 103, § 48, against husband and wife, to establish the title of a creditor of the husband to land alleged to have been paid for by the husband, while the record title was conveyed to the wife with intent to defraud his creditors, declarations of the husband, made after the conveyance, are inadmissible to prove the fraud.</p>

<p>The contingent interest of a railroad corporation in the property of others endangered by its engines will not be presumed to be covered by a policy of insurance in which that interest is not described in appropriate terms, when the corporation has property of its own to which the terms of the policy are applicable.</p>

<p>Contract to recover five assessments, each of twenty per cent., on fifty shares of the plaintiff’s capital stock subscribed for by the defendant.</p> <p>In the Superior Court the case was submitted upon the following agreed statement of facts:</p> <p>The plaintiff was incorporated as the Barre and Worcester Railroad Company, by St. 1847, c. 276, and received its present name by St. 1849, e. 55. At the first meeting of the corporation, held May 19, 1847, by-laws were adopted, the ninth article of which was as follows': “ The capital stock of the corporation shall consist of seven thousand shares of one hundred dollars each, and the number thereof may be increased from time to time as the directors may determine, so that they do not exceed ten thousand shares.” At a meeting of the stockholders, held August 3, 1851, this article was amended by striking out the word seven and inserting the word six.</p> <p>The corporation, December 30, 1848, filed a location, in which that portion of the road extending from Worcester to a point in Princeton, indicated on the location, was designated as the first division; that portion extending from the point in Princeton to Gardner was designated as the second division; and'that portion of the road extending from Princeton to Barre was called the third division.</p> <p>July 19, 1869, the defendant signed the following instrument:</p> <p>“ Whereas, by an act of the Legislature of the Commonwealth of Massachusetts, passed April 26, 1847, the Barre and Worcester Railroad Company was incorporated; and whereas, by another act, passed March 24,1849, the name was changed to the Boston, Barre and Gardner Railroad Corporation; and by another act, passed on the 12th day of May, 1853, the said corporation, among other things, was authorized to construct its railroad in three sections: the first section to extend from the Worcester and Nashua Railroad, in Worcester, through West Boylston and Holden, to some convenient point in Princeton, ‘ the second section to extend from the northerly end of the first section in the town of Princeton, through the town of Hubbardston, to some convenient point on the Vermont and Massachusetts Railroad, in the town of Gardner; the third section to extend from some convenient point on the first section, through the towns of Rutland, Hubbardston and Oakham, to some convenient point in the town of Barre, all in the county of Worcester ; ’ and the said corporation was, by the same act, authorized on cer tain conditions to construct one or all of said three sections oi railroad ; and by subsequent acts the time for the construction oi the said railroad has been extended from time to time, and by an act passed February 21, 1868, said time was extended to the first day of July, 1871;</p> <p>■ “ Now therefore, be it known that we, whose names are hereto subscribed, being convinced that the construction of said railroad would be greatly conducive to the prosperity of the community, in consideration of the premises, and of the benefits and advantages resulting to us respectively, have and do hereby become subscribers to the capital stock of said railroad corporation, and we do hereby promise said corporation, and do faithfully undertake, each of us respectively, to pay to said corporation, in such instalments as the president and directors of said corporation, under the provisions of law, may require, one hundred dollars for each share set against our respective names, and to comply in all respects with the provisions of law regulating the subscription to the capital stock of railroad companies ; and we severally promise and agree to and with said corporation that when the said president and directors shall have legally assessed and declared payable one or more assessments amounting in the aggregate to twenty per cent, upon each share subscribed for by us respectively, we will pay the'same to said corporation within twenty days of the time when the same shall thus be declared payable, and in case of neglect or failure so to do, we each of us respectively authorize and empower the directors aforesaid to make sale of the shares subscribed for by each of us respectively, in such a manner as they shall deem expedient, according to law; and we do hereby acknowledge ourselves to be firmly bound and indebted to said corporation for any deficiency arising from the sale of said shares for a less sum than one hundred dollars for each share, provided that the amount of our subscription shall be applied to the construction of the section or sections of said railroad set against our respective names.”</p> <p>September 30, 1869, the president and directors of the company voted an assessment of twenty dollars a share on the stock then subscribed for on the first and second sections of the road, payable on or before the 25th of the next October. September 6,1870, they voted a second assessment of twenty dollars a share on all the shares subscribed for on both sections, payable within thirty days from the 10th of the same month. January 21, 1871, they voted a third assessment of twenty dollars a share on all • the shares subscribed for on both sections, payable on or before the 10th of the next March. April 4,1871, they voted a fourth assessment of twenty dollars a share on all the shares subscribed for on both sections, payable on or before the 10th of the next May. June 6, 1871, they voted a fifth assessment of twenty dollars a share on all the shares subscribed for on both seetions, payable on or before the 10th of the next July. January 4 1870, they voted “ that the number of shares for the present be fixed at eight thousand.” The defendant had notice of and was requested to pay all of the assessments.</p> <p>November 10, 1869, the corporation entered into a written contract for the construction of its railroad from Worcester to Gardner with R. P. Cooke & Co., by which Cooke & Co. agreed to “ execute, construct and finish in every respect in a substantial and workmanlike manner, and to the satisfaction and acceptance of the chief engineer of said railroad corporation, the first and second sections of the said Boston, Barre and Gardner Railroad, extending from its junction with the Worcester and Nashua Railroad, near the city of Worcester, through the towns of Holden, Princeton, Hubbardston and Gardner, to its junction with the Vermont and Massachusetts Railroad at the Gardner station; ” and “ that the said railroad should be completed as described in ” the specifications set forth in the contract, “ on or before the first day of July in the year 1871.” And in said contract the railroad company agreed that they would, “ for the full doing and performing of the aforesaid work, pay or cause to be paid to the said R. P. Cooke & Co., at the rate of $24,600 for each mile contracted for between the termini of said railroad; ” and it was further stipulated in the contract that ten per cent, of the total amount of said payments was to be in the capital stock of said corporation, at its par value of one hundred dollars per share.” At the same time R. P. Cooke & Co. subscribed for a number cf shares equal to the ten per cent, to be paid them in stock divided between the first and second sections.</p> <p>The road was built under this contract, from Worcester to Gardner, and was completed and commenced running as soon as September 4, 1871. Cooke & Co. were paid as provided for in the contract.</p> <p>June 30, 1871, the corporation filed a relocation of its road from Worcester.to Gardner, under St. 1870, c. 69, upon which location the road was built. In this location there was no dl. vision of the road into sections, nor was there any point indicated upon it in Princeton as the end of the first section or the beginning of the second section, but the relocation passed over and included the point indicated in the first location as the line between the first and the second division. There was never any division of the road into sections, nor any point in Princeton fixed upon as the termination of the first section and the commencement of the second and third sections, except as here stated ; but more money was expended on the construction of the road between the Worcester terminus and the point of division in Princeton, than was subscribed for the first section, including the plaintiff’s subscription; the balance being obtained by loans and by general subscriptions.</p> <p>The third section has never been built or located, and no stock has ever been subscribed for it.</p> <p>At the date of this first assessment, more than two thousand shares had been subscribed for the first and second sections; but less than eight thousand shares in all have ever been subscribed for.</p> <p>At the date of the first assessment no part of the stock had been paid in, and no work had been done on the road.</p> <p>Upon these facts judgment was to be entered for the plaintiff for the whole or any part of said assessments, or for the defendant, as the court should determine.</p> <p>The court entered judgment for the defendant, and the plaintiff appealed.</p>

<p>Complaint under Gen. Sts. c. 149, for flowing the complainant’s land by the respondents’ dam.</p> <p>After the decision reported in 110 Mass. 298, a warrant was issued for a sheriff’s jury. At the trial before such jury evidence was introduced tending to show that more than forty years before a dam had been erected below the premises, which to some extent affected and flooded a large part of the complainant’s lower meadow, but which caused a part only of the damage complained of; that between 1850 and 1860, this dam was raised twenty inches higher than before; that thereby the rest of the complainant’s lower meadow and all of her upper meadow was flooded, and that the rest of the damage complained of was caused by this raising of the dam.</p> <p>The complainant introduced evidence tending to show the condition and value of all the land and crops before the erection of the original dam and before the commencement of any injury or of any flowage; and also introduced evidence (against the defendant’s objection) tending to show the condition and value of the land and crops immediately prior to the time when the dam was raised.</p> <p>The complainant also introduced evidence of the condition and value of the land and crops during the three years preceding the filing of her complaint, and of the injury to the land flooded.</p> <p>Evidence was introduced by the respondents, tending to show that the original dam, before it was raised, was used as a winter privilege only, and evidence was introduced by the complainant tending to show that the original dam, before it was raised, was used as an annual privilege, flowing eight acres and twenty-nine rods of the lower meadow.</p> <p>The respondents requested the sheriff to instruct the jury that in estimating damages regard should be paid only to the state and condition in which the land would have been if no dam had been erected, as compared with its present condition, and that no regard should be had to the value or the actual products of the land subsequent to the erection of the dam and more than three years before the filing of the complaint, unless the jury believed that the land during that time was wholly unaffected by the dam and the flow of the water caused thereby :</p> <p>That in estimating damages, if the jury believed that at any time subsequent to the erection of the dam and more than three years before the complaint was filed, the dam or flume was raised so as to raise the water higher than before, or that the privilege was changed from a winter privilege to an annual privilege, no regard was to be paid to the value or the products of the land prior to such time and subsequent to the erection of the dam, unless the jury also believed that the land at that time had been wholly unaffected by the dam and the flow of water caused thereby.</p> <p>The sheriff refused to give these instructions,' but instructed the jury to “ estimate the pecuniary loss to the land-owner from the direct injury done to his land taken as a whole by flowing, and to deduct therefrom any benefit to the same land by the same cause.” And that “ in estimating damages regard should be had to the condition of the land at the commencement of the injury, and as if no dam had been erected; ” that “ in estimating future annual damages, the jury should assess by way of' annual damage, so much as the improvement of the land would in its ordinary state be annually worth to the owner had no dam ever been erected; ” that “ the commencement of the injury, and not the erection of the dam, is the point of comparison as to the value or product of the land and the present value or products of the same land; ” and that “ the effect upon upland and other adjoining lands of complainant is to be considered in estimating damages.</p> <p>The jury found for the complainant, and the verdict being certified by the sheriff, together with his rulings, to the Superior Court, was there accepted, and the respondents appealed.</p>

<p>Bill in equity by the widow, being the administratrix with the will annexed and the sole legatee of John B. McDonough, to enforce a resulting trust.</p> <p>The bill alleged that April 1,1870, her husband purchased of one Godfrey, for $3000, a lot of land with a dwelling-house upon it; that the deed was made to the defendant upon the express agreement that he would hold the premises in trust for her husband ; that her husband paid $1500 in cash; that the defendant, at her husband’s request and for her husband’s benefit, gave his note for $1500, secured by a mortgage of the premises, in payment of the remainder of the purchase money ; that the deed was absolute in form, but was taken in trust for her husband; that her husband, relying upon the defendant’s agreement to hold the estate in trust for him and to convey to him upon repayment of the amount advanced, with the defendant’s knowledge and consent had occupied the premises during his lifetime, had expended more than $2000 in permanent improvements, and had paid all the taxes from the time of the purchase; that since her husband’s death she had offered to assume and pay the mortgage and had requested a conveyance, but that the defendant refused to convey, and denied the existence of the trust.</p> <p>The material part of the will (a copy of which was annexed to the bill) was as follows :</p> <p>“ After the payment of my just debts and funeral charges, I bequeath and devise as follows: I give, bequeath, and devise to my wife, Ellen E. McDonough, all my estate, real and personal, and mixed. And whereas James O’Niel holds a deed of certain real estate for my benefit, in trust, and has paid certain sums of money on my account, therefore,'! order all such sums with interest to be paid back to him, and I then direct that he shall convey said property as follows, to wit, in fee simple, to my said wife, Ellen E. McDonough, to her and her heirs and assigns forever, immediately after my decease, unless the same shall have been conveyed to me, or some person at my request, during my lifetime.”</p> <p>The answer denied that the plaintiff’s husband purchased the estate, or paid any part of the purchase money, or that the deed was made to the defendant upon any agreement that he should hold the estate in trust, and asserted that the defendant purchased with his own funds for himself, and denied the existence of any trust express or implied, but alleged that the plaintiff’s husband, wishing to occupy the premises permanently as a place of business, and wishing to purchase them of the defendant if he should become able to do so, made some slight improvements, upon the express understanding that if he did not purchase, the sum expended in improvements should be allowed him in the rent.</p> <p>The plaintiff filed a formal replication, and the case was referred to 'n, master to report the facts and such portions of the evidence as either party might desire.</p> <p>The master reported the following facts:</p> <p>“ That John B. McDonough purchased the estate described in the deed from B. D. Godfrey to James O’Niel, dated April 1, 1870.</p> <p>“That the consideration paid for said conveyance was the money of said McDonough, loaned in part to him by said O’Niel, and by other parties, but received by the grantor from O’Niel.</p> <p>“ That the price of said estate was $3000. There was a mortgage upon the premises for $1500, which was paid and discharged by a new mortgage for the same amount given by said O’Niel, the grantee in said deed, which mortgage still remains upon the estate, the interest having been paid up to the time of McDonough’s death, by McDonough to O’Niel, and through O’Niel to the mortgagee.</p> <p>“ That of the cash paid for said estate O’Niel furnished McDonough with $600; also $400 borrowed by O’Niel of one Dolan, O’Niel giving Dolan his note therefor, on which McDonough has since paid $320, leaving $80 due on said note. McDonough paid $300 cash, which he had on hand, and $200 borrowed of Mrs. McGovern on his note signed by O’Niel as surety, toward the purchase money for said conveyance.</p> <p>“That said O’Niel advanced said $600, and said sum of. $400 had of Dolan, and gave said mortgage of $1500, and said notes amounting to $400, to Dolan, and signed said note to Mrs. McGovern, for and in behalf of said McDonough, intending the same as a loan to him, and that the deed from said Godfrey was given to said O’Niel to secure him for said loan and liability.</p> <p>“ That said McDonough has occupied said premises and received rent of a tenant therein, and paid the taxes for 1871 and 1872, and made permanent repairs thereon to the amount of $1040.84.</p> <p>“ That said O’Niel has paid the taxes for the year 1870, amounting to $44.08, and $100 towards the repairs, which sums I find he paid for McDonough, who is indebted to him therefor.</p> <p>“ That the complainant, after said John B. McDonough’s death, made demand upon respondent, before this bill of complaint was filed, to convey said premises to her, offering at the time to pay said O’Niel all sums of money he had paid out thereon, with interest and for his services in the matter, but respondent refused to execute a conveyance of the premises to her. But complainant did not offer to assume said mortgage of $1500, which fact I report at request of defendant’s counsel.</p> <p>“ The defendant was present during the hearing before me, but did not offer to testify, which fact I report at request of complainant’s counsel.”</p> <p>The master also reported all the evidence introduced before him, the material part of which is stated in the opinion.</p> <p>The defendant excepted to the master’s report, “For that the said master finds, upon all the evidence which is reported in full and upon the facts agreed, 1. That John B. McDonough purchased the estate described in the deed from Godfrey to O’Niel, dated April 1, 1870. 2. That the consideration paid for said conveyance was the money of said McDonough, loaned in part to him by said O’Niel and other parties-. 3. That O’Niel advanced said $600 and said $400, and gave said mortgage of $1500, and said notes amounting to $400, to Dolan, and signed said note to Mrs. McGovern for and in behalf of said McDonough, intending the same as a loan to him, and that the deed from said Godfrey was given to said O’Niel to secure him for said loan and liability. 4. That said O’Niel paid the taxes named and $100 towards repairs for McDonough. Whereas he ought to have found, upon said evidence and facts, 1. That said O’Niel purchased said estate. 2. That the consideration paid therefor was the money of said O’Niel. 3. That said O’Niel advanced said money and gave said mortgage and gave said note to Dolan and to Mrs. McGovern, for and in his own behalf, and that said deed was given to said O’Niel for his own benefit. 4. That said O’Niel paid said taxes and said $100 in his own behalf.”</p> <p>The case was reserved by Gray, C. J., upon the pleadings, master’s report and exceptions, for the consideration of the full court.</p>

Petition for a revision by a jury of an assessment of betterments upon the petitioner’s estate, situated on High Street and on Chatham Street, in the city of Worcester, made under the provisions of St. 1870, c. 163.

<p>the power conferred by St. 1872, c. 262, in relation to the alteration of railroad crossing, is confined to alterations in the approaches to, or in the “method of,” a crossing within the limits of the existing highway.</p>

<p>Contract. The declaration contained two counts. The first alleged in substance that the plaintiff conveyed by deed certain real estate to the defendant, for the sum of $1,000, and that the defendant owed the plaintiff $600, the balance due of that sum. The second in substance alleged that the plaintiff and defendant owned a farm in common, which they agreed to divide ; that the plaintiff was to have all the wood, timber and trees on a portion of it, with a right to cut and take them away; that the parties mutually made conveyances, the plaintiff attempting to reserve in the conveyance made by him the wood and timber as agreed upon; that the attempted reservation was invalid, and that the defendant in violation of his agreement prevented him from taking the wood, timber and trees.</p> <p>In the Superior Court the case was submitted upon an agreed statement of facts, from which it appeared, that April 22, 1865, John Hill, Sen., who then owned a farm in Charlton, conveyed it to his two sons, the plaintiff and the defendant in this suit; that they entered into possession and occupied it in common till May 5, 1865, when they made partition between them by quitclaim deeds; that the defendant released his right in a part of the farm to the plaintiff, and the plaintiff released his right in the remainder to the defendant, making the following reservation : “ Said grantor, John Hill, Jr., reserves for his own use all the wood, timber and trees now standing and being on ” a certain part of the land conveyed, described by metes and bounds, “ containing eight acres, more or less, with the right and privilege for the grantor, his heirs and assigns, to enter on said premises at any and all times, to cut and take away said wood and timber, with the privilege of crossing over the land of the grantee for that purpose; ” that this reservation was made as a part of the consideration of the release from the plaintiff to the defendant and in order to make the division equal; that each entered into and continued in the possession of. the premises released to him; that soon after May 5, the defendant asked the plaintiff when he was going to cut and remove the wood, timber and trees; that the plaintiff replied that he should do it when he got ready, and that he had a right to have it stand and remain there as long as he pleased.</p> <p>It further appeared that the plaintiff never did cut any of the wood, timber or trees, but suffered them- to remain till about June 22,1868, when the defendant gave him a notice in writing, forbidding him from entering for the purpose of cutting or removing them; that February 5, 1870, the plaintiff sold the wood, timber and trees to Horace Cutting, Jr., for $600, and gave him a written bill of sale ; that Cutting paid $300 in money, and gave his note, which has not been paid, for the balance; that Cutting entered and cut more than one half of the wood, timber and trees, and removed and sold them ; that for this the defendant brought an action of tort in the nature of trover against Cutting, which is reported 107 Mass. 596; and that the defendant refused to permit the plaintiff or Cutting to cut and remove the balance of the wood, timber and trees.</p> <p>If the plaintiff was entitled to recover in this action, the case was to be sent to an assessor to assess the damages; otherwise judgment was to be entered for the defendant.</p> <p>The court ordered judgment for the plaintiff, and the defendant appealed.</p>

<p>A parol license to enter upon land “ at any and all times ” and cut and carry away growing wood must be acted upon within a reasonable time, and if not acted upon within a period of more than three years may be revoked, and after revocation a sale of the wood by the licensee is, as regards the licensor, a nullity.</p> <p>A judgment in an action for the conversion of wood is no bar to an action in the nature of trespass quare clausum for entering the plaintiff’s close and cutting the same wood while growing.</p>

Petitions to the Superior Court for juries to assess damages alleged to have been caused to the petitioners’ estates by the laying out of a highway in Worcester.

Contract to recover damages for the revocation, by the defendant, of an agreement to submit the controversies between the parties to arbitration. The agreement, which was under the hands and seals of the parties, was “ to refer all our said differences as to any transaction or otherwise, whether between ourselves individually, or between either of us and any firm to which the other may have belonged,” to three persons named.

<p>At the trial upon a writ of entry the tenant introduced a deed from the demandant to a third person of other land, and argued to the jury that a recital contained in it supported his title; the demandant then argued that the recital was opposed to the tenant’s claim; whereupon the tenant asked a ruling, which was refuses, that the recital could not be used to affect his title. Held, that the tenant having himself introduced the deed, and argued the effect of the recital, could not then object that it was not evidence.</p> <p>At the trial upon a writ of entry the tenant claimed title from the demandant by a deed containing a recital that “the grant includes a right of way on the west side of said premises,” and the bounds of the land conveyed being in dispute, asked a ruling, which was refused, that this was a right of -v^ay over land conveyed in fee. Held, that the ruling was rightly refused as it did not appear to have any bearing upon the point in issue.</p> <p>At the trial upon a writ of entry the tenant, who claimed title from the demandant through the demandant’s deed to A., and a deed from A. to himself, the issue being whether the deeds included the demanded premises, introduced a deed from A. to a third person conveying a right of way over the premises, and requested a ruling, which was refused, that A. could lawfully grant such right of way. Held, that the ruling was properly refused as it did not appear to have any bearing upon the point in issue.</p> <p>At the trial upon a writ of entry, where the demandant claimed under an assignment of dower, and the tenant under a deed from the demandant, the issue being whether the deed included the demanded premises, the tenant requested a ruling, which was refused, as to the demandant’s right under the assignment of dower to have a building stand on land the title to which was not in controversy. Held, that the ruling was rightly refused as it did not appear to have any bearing upon the point in issue.</p>

<p>As to third persons, the assignment of a chose in action is valid without notice to the debtor.</p> <p>Upon a bill in equity by a creditor to obtain the payment to him of a judgment due the debtor, it appeared that the debt of $80 upon which it was founded had been assigned before judgment to secure a debt of $126 which was also secured by mortgage, but it did not appear that the mortgaged property was of more value than the excess of the debt secured by it over the assigned debt. Held, that the assignee was not obliged first to resort to the mortgaged property.</p> <p>Upon a bill in equity by a creditor to obtain the payment to him of a judgment due the debtor, it appeared that execution had issued at the time of filing the bill and was in the possession of the debtor’s attorney. Held that by Gen. Sts. c. 121, § 37, the attorney had a lien thereon for his taxable costs.</p>

<p>Contract to recover a broker’s commission. At the trial in the Central District Court of Worcester it appeared that the defendant employed the plaintiffs to exchange his stocks for real estate, and that he agreed to pay them a commission therefor; that at this time the plaintiffs were also employed by other parties to sell or exchange their real estate; that the plaintiffs introduced the defendant to these parties, and through the plaintiffs’ instrumentality the defendant’s stock was exchanged for the real estate. There was evidence that the plaintiffs were employed and, acted as brokers for both parties in this exchange; that they were to receive, and did receive from the owners of the real estate a commission for disposing of it; that the defendant knew at the time he employed them and agreed to pay them a commission, that they were employed by the owners of the real estate to dispose of it, and that they were to receive a commission from them, buD that the other parties did not know that the plaintiffs were employed by the defendant, or that they were to receive a commission from him for disposing of the stock.</p> <p>The defendant asked the court to instruct the jury that if a broker acts for both parties in effecting a sale or exchange of property, he cannot recover compensation from either of the parties, unless both parties knew and assented to his acting for both.</p> <p>The court refused to give the instruction prayed for, but did instruct the jury as follows : “If the plaintiffs were employed by the defendant as brokers to exchange his stock for real estate, end he was informed by them, or had knowledge, that they were to make the exchange with persons whose estates had been left in their hands for exchange or sale, and that they were to receive commissions from those persons for disposing of their estates, and that with this knowledge the defendant agreed to pay the plaintiffs a commission for making the exchange, the fact that the plaintiffs were employed by and were to receive a commission from the other parties would not in itself defeat the plaintiffs’ claim.”</p> <p>The jury returned a verdict for the plaintiffs, and the defendant alleged exceptions.</p>

<p>Contract to recover the price of a suit of clothes.</p> <p>At the trial in the Central District Court of Worcester, the defendant contended, and there was evidence tending to show, that the clothes were to be made and delivered to the defendant in North Brookfield, on or before a specified day, and that they were to be made to the satisfaction of the defendant.</p> <p>It was agreed that the clothes were delivered on the evening of the day specified, which was Saturday, and that on the following Monday the defendant returned them to the plaintiff by the same person who delivered them, with written notice that the clothes did not fit, were unsatisfactory, and were not accepted.</p> <p>The defendant offered evidence that the clothes did not fit him, and that they were not made in the manner and form agreed upon. While the defendant was testifying, the plaintiff produced the clothes in court, and requested the defendant to try them on in the presence of the jury. The defendant assented, and, having put them on, wore them in the presence of the court and jury. The plaintiff then called several tailors as experts, who testified that the clothes needed some alterations before they could be called a good fit, but that such alterations could be easily made without injury to them. He also offered evidence that he wrote a letter to the defendant the same day the clothes were returned, in which the following language was used : “ Can’t you come and let us see what the trouble with the fit of your clothes is ? From what .you say about the coat we think we could remedy that, and we could make another vest if necessary, and coat too.” To this letter the defendant replied that the clothes were unsatisfactory to him as they were, and that he would not accept them after they had been worked over and botched up, and refused to allow the plaintiff to make a new suit, or to accept any alterations to the suit already made.</p> <p>There was evidence that the defendant came to the plaintiff’s store soon after the clothes were returned, and the plaintiff asked him to try them on to see what alterations, if any, were necessary to make them fit; this the defendant refused to do.</p> <p>There was also evidence to show that a custom existed among tailors of having garments tried on after they were finished, and then making any alterations which might be necessary to make them fit.</p> <p>The defendant asked the court to give the following instructions to the jury:</p> <p>“1. If you find that the-plaintiff agreed to make the clothes in question to the satisfaction of the "defendant and failed so to do, then the plaintiff cannot maintain this action, and you will return a verdict for the defendant.</p> <p>“ 2. If you find that the plaintiff agreed to deliver the clothes on or before a specified time, made up in the manner and form agreed upon, and failed so to do, then the defendant was under no obligation to accept them, and you will return a verdict in his favor.”</p> <p>The court refused to give the instructions in the form prayed for, but after giving instructions upon the other points raised, to which no objections were made, instructed the jury as follows :</p> <p>“ The plaintiff was bound to make the clothes of the material ordered, in a workmanlike manner, and to deliver them at the time agreed upon by the parties. If the plaintiff agreed to make the clothes to the satisfaction of the defendant, he was bound to do so, with these qualifications : if, when the clothes were delivered, there were defects in the fit of them, such as are liable to occur in first class tailoring establishments, but such as could be easily remedied, and a custom among tailors has been proved, to remedy such defects when they occur, the plaintiff was entitled to a reasonable opportunity therefor, and if he was willing and offered to remedy said defects, and the defendant refused to allow him to do so, the plaintiff is entitled to recover if the other facts in the case are proved.”</p> <p>The jury returned a verdict for the plaintiff, and the defendant excepted.</p>

<p>A. master’s report upon questions of fact will not be set aside or modified without cleft? proof of error.</p> <p>A master to whom was referred a bill to redeem land from a mortgage found that the plaintiff, being the owner of the land subject to a mortgage, had again mortgaged it by giving an absolute deed, to secure a new loan and any sum which the grantee might pay in purchasing an assignment of the first mortgage, and by taking a bond of defeasance with the condition that the grantee should reconvey upon being repeld within three years; that the Mortgagee, having purchased the first mortgage, had received from the mortgagor a certificate of peaceable possession; that at the expiration of three years, the land not having been redeemed, a new bond had been substituted for the first bond, and, by successive renewals, had been extended for many years; that the mortgagor had regularly for many years paid interest which was received as such, the mortgagor in the mean time occupying the premises and paying the taxes. Held, that upon the&a facts the master was justified in finding that the mortgages had not been foreclosed.</p>

<p>Parol evidence is admissible in equity to prove that the assignment of a mortgage, absolute in form, was a security for a loan.</p>

Contract to recover $100, the agreed consideration for which the plaintiff had delivered to the defendant a written instrument of compromise signed by a part of the defendant’s creditors.

Petition to establish the' truth of exceptions. The petition set forth that at the trial of an action in the Superior Court the petitioner excepted to certain instructions given by the court to the jury, and duly reduced the exceptions to writing and presented them to the court, but that the presiding justice failed to sign and return them. The bill of exceptions, a copy of which was annexed to the petition, was as follows : “ This is an action upon a warranty of a horse.

Bill in equity, alleging that the plaintiff married Geo. A. Jacobs December 20, 1864 ; that he died August 28, 1870; that the defendant was appointed administrator of his estate; that during the marriage the plaintiff had S918.ll, which was her sole and separate property; that she delivered it to her husband in trust to invest it for her in United States bonds, and to deliver to her the bonds to be held by her as her own property; that he received the money on the trust;…

The FIRST CASE was a petition filed by the mayor and aldermen of the city of Worcester, for a writ of certiorari to quash certain proceedings of the board of railroad commissioners.

<p>A. executed a bond to B. conditioned to convey to him, for a certain sum, his land and buildings, and his practice and good will as a physician. To carry out the agreement, the money was paid by B.’s wife, and the real estate conveyed to her. In a suit brought by B. to restrain A. from practising as a physician in violation of his agreement, Held, that, as the money was paid by, and the real estate conveyed to, the wife by consent of the parties, A. could not object that B. had failed to perform his part of the agreement.</p> <p>A contract by a physician for the sale of his “ practice and good will ” in a specified town is not void as against public policy.</p> <p>In a contract of sale of a business and its good will, there is an implied covenant that the vendor will not interfere with the enjoyment of what he has sold; if he does, such interference may be restrained by injunction.</p>

Bill in equity brought by William A. Snow and five others, on behalf of themselves and other members of the North Brook-field Lodge, No. 28, of the order of the Knights of St. Crispin, against Daniel W. Wheeler, Cornelius Duggan, and the People’s Savings Bank of Worcester, to compel the defendants Wheeler and Duggan to draw an order upon the defendant bank to enable the plaintiffs to withdraw from the bank a deposit made by Wheeler and Duggan, in their names as trustees, but…

Contract to recover damages for an alleged breach of the following agreement signed by the parties ; “ This agreement made this third day of August, A. D. 1872, by and between John G. Hassard, Joseph W. Foster and Russell B. Foster, and Thomas J. Harper, witnesseth, that whereas the said Hassard and Fosters intend to carry on the business of making oil and water colors in Milford, county of Worcester, and Commonwealth of Massachusetts, under the firm of Hassard, Foster &…

<p>In an indictment under Gen. Sts. c. 87, § 7, for keeping and maintaining a tenement used for the illegal keeping and sale of intoxicating liquors, it is not necessary to allege by whom the tenement was used.</p>

Tort for slander. The declaration was as follows: “ And the plaintiff says the defendant publicly, falsely and maliciously accused the plaintiff of the crime of keeping and maintaining a common nuisance, to wit, a place and building resorted to for illegal gaming, by words spoken of the plaintiff substantially as follows, viz.: ' Buckley ’ (meaning the plaintiff) ‘ keeps a gambling hell.’ ' Dan Buckley ’ (meaning the plaintiff) ‘ makes his money easy, he ’ (meaning the…

<p>Actions of contract for breaches of the conditions of the bonds severally declared on. Upon the hearings in the Superior Court, before Devens, J., to determine the amount for which executions should issue, the defendants alleged exceptions. The facts are fully stated in the opinion of the court.</p>

<p>Contract for money bad and received, brought by the children and sole heirs of Atkins S. Rich, against the defendant as administrator of the estate of Thankful B. Rich, deceased.</p> <p>It was agreed that no objection should be taken by the defendant for any misjoinder of plaintiffs.</p> <p>At the trial in the Superior Court before Pitman, J., the plaintiffs offered evidence to show that they were the children of Atkins S. Rich, late of Truro, who died in 1846, leaving as his widow, Thankful B. Rich ; that he left a will, of which she was executrix, containing the following provision: “ I give to my beloved wife Thankful Bangs Rich, all my household furniture, and all the interest I have in vessels and cash, and all other personal property of every description, and the improvement of all my real estate, so long as she shall continue my widow: and I give to my beloved wife full power and authority to dispose of and sell so much of my real estate as may be necessary for the support, maintenance and education of my children during their minority, and also for herself, if she may be reduced to want, while she shall remain and be my widow.” The will contained no other clause relating to the real estate, and made no further disposition of it.</p> <p>It appeared that Atkins S. Rich owned a homestead and three other parcels of real estate when he died; that the widow and children occupied them until 1864; that in that year 1864, the children being all of full age and married, the widow desired to remove to Provincetown, and requested the plaintiffs to join with her in conveyances of the real estate ; that thereupon sales were made and deeds executed by the widow and the plaintiffs, and the consideration, amounting to about four hundred and forty-five dollars, was paid to and received by the widow.</p> <p>The plaintiffs testified that they joined in the deeds, and that the widow received this money with their consent, upon the express agreement that she should receive and keep the money during her life upon precisely the same terms as those upon which she held the lands under the will.</p> <p>Upon this evidence the defendant asked the court to rule, that the action could not be maintained by the plaintiffs, but should have been brought by an administrator de bonis non of the estate of Atkins S. Rich. The court declined so to rule, and held that the action was rightfully brought by these plaintiffs.</p> <p>The jury found for the plaintiffs, and the defendant alleged exceptions.</p>

<p>When an inferior court has jurisdiction of an offence upon property if the value of Hie property does not exceed a specified sum, a plea of a former acquittal of such offence in the inferior court is a good bar to an indictment for it in a superior court, although the value of the property is alleged in the indictment to be a sum exceeding the jurisdiction of the inferior court.</p>

Complaint to the Municipal Court of Taunton under Gen. Sts. c. 87, § 7, for keeping and maintaining a tenement used for the illegal keeping and sale of intoxicating liquors.

<p>Complaint under St. 1869, c. 415, § 44, to the Municipal Court of Taunton. The complaint alleged that the liquors were “ kept and deposited by Albert R. White, of said Taunton, in a certain small wooden shed, in rear of another shed or storehouse, in rear of Washington Hotel, so called, occupied by said White on north side of Westminster Street in said Taunton, and occupied by said White, as a storehouse.”</p> <p>In the Superior Court, to which court the notice was made returnable,' White appeared and made claim, and before the jury was empanelled moved to quash the complaint, because the place to be searched was not designated and described with the particularity required by law. Pitman, J., overruled the motion.</p> <p>The case was then submitted to the jury upon issues framed by the' court. At the close of the government’s testimony, the claimant called the city clerk of Taunton, and it appeared from his testimony and from the records of the city council, by him produced, that in the year 1870, by vote of the city council, the street denominated in the complaint Westminster Street, “ was designated and declared to be High Street,” and had since been always known as High Street in official action pertaining to it. Upon this evidence, the claimant contended that there was a variance between the allegation and the proof, that was fatal to the maintenance of the complaint.</p> <p>The district attorney then called two witnesses, deputy sheriffs of Taunton, and asked them the name of the street referred to in the complaint. The claimant objected to the question, and contended that it was not competent for the government to contradict the record evidence in the case. The court admitted the testimony, and ruled that it was competent for the government to show that the street was as well known by the name of Westminster Street as High Street, and that if it were so, the allegation in the complaint would be supported by the evidence, and there would be no variance. The witnesses then testified that they had lived in Taunton many years, were well acquainted with the locality, had used the street constantly, and never had heard it called anything but Westminster Street.</p> <p>The claimant demurred to this evidence, and asked the court to rule that it was insufficient to warrant the jury in finding that the street was as well known by one name as the other. The court declined so to rule, and left the whole matter to the jury under instructions substantially in accordance with the ruling above stated. The jury returned a verdict condemning the liquors, and the claimant alleged exceptions.</p>

Indictment alleging that the defendant did assault and “ indecently strike, push and handle ” a woman. At the trial in the Superior Court, before Devens, J., the defendant, for the purpose of showing that his acts were with the consent of the woman, offered evidence, which was admitted, of former familiarities between her and himself. He then offered to impeach her character for chastity by general evidence of her reputation in that respect.

<p>Upon a trial for the keeping of intoxicating liquors with intent to sell them, the only evidence to connect the accused with the offence was the fact that he was seen in a room adjoining the bar room in which the liquors were. Held, that he was not called upon to explain his presence there; that the benefit of the provision of St. 1870, c. 393, § 1, that “his neglect or refusal to testify shall not create any presumption against him,” was to be preserved to him in spirit as well as in letter; and that, therefore, the reading by the court to the jury of a charge, given in another case upon a different state of facts, as to the inference of guilt that may he drawn from a failure to offer explanatory evidence when it is apparent that, if it be true, such evidence is within the power of the accused, was erroneous as tending to mislead the jury, although qualified by the statement that the evidence which it must be apparent he can produce must be evidence other than "hia own testimony.</p>

<p>Action on the Gen. Sts. c. 137, to recover possession of certain premises in Fall River for the non-payment of rent.</p> <p>At the trial in the Superior Court, before Pitman, J., the plaintiff testified that he was tenant at will of one James Anthony, the owner of the premises, that he sub-let to the defendant; that there was an agreement between himself and the defendant that the defendant should pay the rent to Anthony monthly; that for three months previous to the service upon him of the notice to quit, the defendant had paid rent neither to the plaintiff nor to Anthony, but that he himself had paid to Anthony. He testified upon cross-examination that he had not called upon the defendant or given him any notice that he should require him to pay the rent to him, the plaintiff ; that he had made an assignment of all of his interest in the premises to one Delos before the service of the notice to quit; that the assignment was recorded; that Delos entered upon the premises and demanded the possession of the defendant under the assignment, and told the defendant he should put him out; that the defendant called upon the plaintiff and told him about it, and the plaintiff said he would see about it; that he did see him, and there were no further proceedings by Delos; and that he, the plaintiff, was indebted to the defendant for board and borrowed money at time of the service of the notice to quit.</p> <p>It appeared that at the same time that the plaintiff made the assignment to Delos, and as a part of the same transaction, Delos made an assignment to another person, and that person made an assignment to the plaintiff, and that these assignments were all made, executed and delivered at the same time.</p> <p>The defendant testified that he had had no knowledge of a re-conveyance to plaintiff until the plaintiff testified to it at the trial; that he paid rent to one Peckham, Anthony’s agent, except the rent due for the three months; that on these months he offered to pay him, but he said Anthony had not handed him the bills; that at the time of the service of notice upon him the plaintiff was indebted to him to an amount equal to or exceeding the rent for the months claimed to have been unpaid; that the plaintiff never had notified him to pay the rents to him, or informed him that the plaintiff was paying the rent to Anthony.</p> <p>There was no evidence tending to show that the defendant refused or neglected to pay the rent in consequence of the demand by Delos, or that he did or did not change his position in consequence of that demand.</p> <p>The defendant’s counsel asked the court to instruct the jury, that the plaintiff must notify the defendant of any other way of paying rent than that agreed upon, before he could be holden liable in this action for the non-payment of the rent to the plaintiff, and that the plaintiff must show to the satisfaction of the jury that the defendant knew that Delos had made a re-conveyance to the plaintiff before the plaintiff could maintain the action.</p> <p>The court refused to so instruct the jury, and instead thereof instructed them that the defendant must pay the rent either to the plaintiff or to Anthony without any notice to or demand upon him, and that the assignment by the plaintiff to Delos, under the circumstances, did not effect a change of title, and did not estop the plaintiff from maintaining the action, unless the jury were satisfied that the,defendant was misled thereby and induced to. do or omit something to his prejudice. The jury returned a verdict for. the plaintiff, and the defendant alleged exceptions.</p>

<p>A city constructing a system of sewers, into which private persons have a right to drain, in such a manner that the wash and the dirt from the streets are conveyed into a tide water dock and create an obstruction constituting a private nuisance, is liable to an action therefor.</p> <p>The owner of a wharf upon a tide water creek cannot maintain an action for an illegal obstruction to the creek, this being a common damage to all who use it; but for an obstruction adjoining the wharf which prevents vessels from lying at it in the accustomed manner, this being a particular damage, he can maintain an action.</p>

Contract brought March 3, 1873, by the executors of the last will of Ellis Blackinton, against his widow, for the breach of an antenuptial contract by which “ in consideration of the marriage, to be hereafter solemnized between them,” it was agreed that he should retain for himself, his heirs and assigns, all his real and personal estate “ clear of a'l claim ” on her part, and that she should receive out of his estate $100, to be paid within one year after his decease,…

<p>A mill-owner, who, after a verdict of a jury fixing the height of his dam or the manner of his using the water, without any change in the situation, refuses or neglects to comply with the requirements of the verdict, is liable to an action at common law, and not to a complaint under the mill act; the provisions of Gen. Sts. c. 149, § 29, not being applicable to such a case.</p>

Complaint under Gen. Sts. c. 149, charging that the respondent overflowed the complainant’s meadow by his mill-dam. The respondent pleaded that he had a right to maintain his dam without compensation as high as the centre of a hole drilled into a granite stone set in the ground above the dam; and that the dam had not during the three years preceding the commencement of the suit been raised higher than the centre of the hole.

Writ of dower. The tenant filed the following plea: “ And the said Fall River National Bank comes and says that the said Nancy B. Buffinton ought not to have her dower of the premises described in her said writ, by the endowment of the said Israel Buffinton, heretofore her husband, and is not dowable thereof, because it says that during the lifetime of said Israel Buffinton, to wit, on the 5th day of May, A. D. 1868, said premises were levied upon and seized by James Wixon,…

<p>A bill in equity brought upon the dissolution of a partnership to settle the partnership accounts, was referred by agreement of the parties to a master “ to appraise and take an account of all the property and assets of every kind and description belonging to the co-partnership, except the Wickford Oil Works, as the same stood on and up to ” the day of the dissolution, and “ all the property belonging to such parties as part owners shall be included in and deemed to be a part of the partnership property,” “ except the Wickford Oil Works property.” The master appraised and included in the account two boats that had been conveyed to the parties by the deed conveying the Wickford Oil Works. Bald, that, by the terms of the agreement, the property appertaining to the Wickford Oil Workt at the date of the dissolution of the partnership, and not that appertaining to them at the time of the conveyance, was to be excluded from the account and appraisal.</p>

Tort. The declaration was as follows: “ And the plaintiff says the defendant sold him a cow, for which the plaintiff paid him one hundred dollars, and to induce the plaintiff to buy said cow, the defendant falsely represented to the plaintiff that said cow was a good milker, was gentle and kind, and was gentle and kind while being milked, and could be milked anywhere.

Contract. The defendant filed a supplemental answer, in which he averred that since the filing of his former answer he had been adjudged a… Held: and no steps taken by the debtor to procure his discharge; and that March 11, 1871, the judge of the District Court where the proceedings in bankruptcy were pending permitted the plaintiff, who had proved his claim against the estate of the bankrupt, to withdraw his claim. The defendant asked the court to instruct the jury : “ 1.

<p>Bill in equity, filed by a trustee, to obtain the direction of the court in the execution of his trust.</p> <p>The case was heard before Morton, J., upon the bill and answers, and was reserved for the consideration of the full court.</p> <p>The bill alleged that in April, 1870, and for a long time before, Lucian H. Davis of Taunton, and Mary A. Davis, his wife, had been living together very inharmoniously and in such a manner as to cause great discomfort to each other and great annoyance to the community; that April 8, for the purpose of effecting a peaceable separation, they and the plaintiff, as trustee for the wife, made the following agreement in writing :</p> <p>“ Taunton, April 8, 1870. In consideration that my wife Mary A. Davis and myself do not live harmoniously together, and it is thought better for us to live separately, I hereby agree to pay to William H. Fox the sum of one thousand dollars, the same to be put at interest and held in trust for her, the interest to be paid to her from time to time as it accrues, so long as she lives apart from me and makes no charge upon me for support. And I further agree that if we are ever lawfully divorced, then the whole sum of one thousand dollars so held in trust shall be paid directly to her. And it is further agreed between us that if she ever makes any charge upon me for support or comes back to live with me, then this trust shall terminate and said sum shall be repaid to me. And I, William H. Fox, in consideration hereof agree to accept said trust and to hold said money and apply it according to the above agreement. Lucian H. Davis,</p> <p>“ Mary A. Davis,</p> <p>“ Wm. H. Fox.”</p> <p>The bill then alleged that Lucian H. Davis, in accordance with the agreement, gave to the plaintiff $1000, which was put at interest, and the interest paid from time to time to the wife; that the wife had since then lived separate and apart from her husband, and had made no charge upon him for her support; that at November term of this court, 1870, the husband brought a libel for divorce against the wife on the ground of her gross and confirmed habits of intoxication contracted after marriage, upon which libel a divorce nisi was decreed at that term ; that the divorce was obtained without collusion on the part of the wife, and against her wishes and efforts; that the husband was demanding of the plaintiff the $1000, on the ground that the agreement was void; that the wife was also demanding that the fund should be paid to her, on the ground that a lawful divorce had been decreed between her husband and herself, or that she should continue to receive the income, at least, of the fund, and that, if the divorce should be made absolute, she should then receive the fund itself.</p> <p>The answer of the husband admitted that he made the agreement ; that he had paid the trustee $1000, the interest of which he believed had been paid to his wife, and that a divorce nisi had been decreed between himself and his wife, upon his petition, and alleged that he was a mechanic; that at the time the agreement was made he was working daily at his trade, and was of necessity absent from his home all day every week day, except one hour at noon; that he had a family of young children, and was obliged to procure, and did procure, the services of a competent person to take charge of his household and of his children; that between the time of the making of the agreement and the time of filing his libel for divorce, his wife was in the habit of coming to his house in his absence, in a state of intoxication, and of using towards his housekeeper, in the presence of his children, the most profane and obscene language; that on one or two occasions she drove the housekeeper out of doors, by threats of personal violence, claiming herself to be the lawful mistress of the house; that by reason of such misconduct of his wife, he felt obliged, for his own peace, as well as for the safety and welfare of his family, to ask the intervention and protection of the law ; that since the decree of divorce, his wife had been a resident of- the State of Rhode Island; that there was pending in the Supreme Court of that state a libel for divorce, brought by her, in which she asked a decree of divorce on the ground that he had failed to furnish her suitable maintenance and support; that he was informed and believed that the stipulation in the agreement which contemplated a future legal divorce of himself and wife, and, in that event, the payment of the whole of the money to her, was against public policy and would not be sustained by the court; and that he was informed and believed that the agreement was also invalid, because no provision was made by it for the disposition of the trust fund, in the event of the death of either party. The answer prayed that the principal and interest of the trust fund should be decreed to him.</p> <p>The answer of the wife admitted all the averments of the bill, and alleged that she made the agreement after having been treated by her husband with extreme cruelty for many years, and after having been expelled from his house with great violence many times, and often in the night-time without sufficient clothing and entirely without money or other provision, and after having been beaten and bruised by him to the great peril of her life , that since the making of the agreement she had lived separate and apart from her husband, and had been of no charge or expense to him for her support or otherwise; that at all times she had kept and obeyed the provisions of the agreement that, by its terms, were to be kept by her; that shortly after obtaining his divorce, her husband demanded the payment of the principal and interest of the fund to himself, and forbade the trustee to pay the same to her, and that thereafter the trustee ceased"to pay the interest to her, whereby she had been left wholly without provision for her support. And she prayed that the trustee might be directed to pay her the whole of the fund with the accrued interest; or, if not, that he might be directed to pay her the income.</p>

<p>The solicitor of a trustee bringing a bill in equity to obtain instructions, cannot, under tho 27th rule in chancery, be appointed to represent contingent interests under the bill.</p> <p>Under a bill in equity, filed by trustees for directions as to the settlement of an estate, where the defendants who are named, and who have life interests only, are citizens of another state, and where the persons who are interested in remainder have not been brought before the court, an application made under the U, S. St. of 1789, c. 20, § 12, for the removal of the suit to the Circuit Court of the United States, will be refused.</p>

<p>On a hearing before a sheriff’s jury for an assessment of the damages caused by taking land for a highway, it is within the discretion of the presiding officer to exclude evidence of sales of other lands the year previous to the taking as too remote in point of time to have a material bearing upon the question of value.</p> <p>On a hearing before a sheriff’s jury for an assessment of the damages caused by taking land for a highway, the jury may deduct from the amount otherwise due the value of the direct and special benefit done the estate, even against the objection of the respondents, who propose to afterward assess the estate for betterments.</p>

<p>Tort in the nature of trespass quare clausum. The facts are sufficiently stated in the opinion.</p>

<p>Contract against the principal and surety of a bond, given in pursuance of the order of a justice of the peace, with the condition that the principal should appear and answer to a bastardy complaint, at the next term of the Superior Court. The bond was signed but by one surety.</p> <p>The case was submitted in the Superior Court upon an agreed statement of facts.</p> <p>The defendant Klenert was arrested February 28, 1872, on a warrant in the usual form issued upon a bastardy complaint, in which the plaintiff was the complainant, and brought before Christopher C. Stone, Esq., a justice of the peace.</p> <p>The justice’s record in the case was as follows : “Worcester, ss. Feb. 28th, 1872. By virtue of this warrant, the within named John F. Klenert is brought before me, and the complaint is read to him, and the hearing in said case was continued from time to time till the twenty-ninth day of April, 1872, when, after due hearing, he is thereupon ordered to give bond in the sum of five hundred dollars, with sufficient surety or sureties, for his appearance at the next term of the Superior Court, to be holden at Fitchburg, within and for said county, on the second Monday of June next, with which order the defendant complied ; Amos A. Getting, surety: Christopher C. Stone, justice of the peace.’ The bond was drawn by the magistrate and executed by the defendants in open court, in pursuance of the order, and the defendant Klenert was thereupon discharged from custody. Tha complainant duly entered her complaint at the June term of the Superior Court. The defendant Klenert appeared at that term and filed a plea of not guilty, but at the next term did not appear and was defaulted, and upon default was adjudged to be the father of the bastard child, and an order was passed that he pay $125.00 from March 9, 1872 to November 20, 1872, and $2.00 per week afterwards towards the support of the child. Nothing had been paid under the order, and this action was brought to recover the amount alleged to be due to the date of the writ. If the court were of the opinion that the plaintiff could recover, judgment was to be entered for her; if she could not recover, then judgment was to be entered for the defendants.</p> <p>The court ordered judgment for the plaintiff, and the defendants appealed.</p>

Contract. After the defendant’s exceptions were overruled as reported, 108 Mass. 270, he filed in the Superior Court, January 9, 1873, a motion entitled a “ motion for remittance of damages,” as follows: “ And now comes the defendant, and says that the above described action was brought and tried upon the allegation, express or implied, that the plaintiff had paid the full consideration agreed upon and mentioned in the deed, to wit: $840 for the land, for a breach of the…

<p>A., having received from B., with whose handwriting he was unacquainted, a letter inclosing money sent to C., paid it to D., claiming to be authorized so to do by two subsequent letters from B. In an action by C. against A. for the money, the loss of these letters having been proved, A., as evidence that the two subsequent letters were from B., offered to testify that all three were in the same handwriting. The court having rejected the evidence, Held, that its rejection did not appear to have been erroneous.</p>

<p>The purchase, under Gen. Sts. c. 63, § 19, by a railroad corporation of land without the limits of its road, necessary for depot and station purposes, does not extinguish an existing inchoate right of dower therein.</p>

Tort against the defendants as common carriers for the loss of a trunk and its contents, intrusted to them to be carried from Providence, Rhode Island, to West Mansfield, Massachusetts, and to be there delivered to the plaintiff.

<p>Bill in equity, filed March 2, 1872, praying for the specific performance of, or other relief upon, a covenant for the renewal of a lease.</p> <p>On March 8, 1867, the defendant leased a store and barn to the plaintiff, to hold for the term of five years from March 1, 1867, yielding and paying therefor the rent of $600 per year in quarterly payments of $150 at the end of every three months during said term. A covenant was inserted in the lease in these words: “ And the said Clark agrees to renew the lease of the above premises upon the expiration of the above term; rent to be proportioned to the valuation of said premises at said time.”</p> <p>The defendant, by his answer, set up that between March 8, 1867, the date of the lease, and March 1, 1872, from which last date the plaintiff claimed a renewal of the lease for five years more, the market value of the premises had more than doubled, and that the plaintiff had made no arrangement to have the rent of the renewed lease proportioned to such increased value, but had attempted to evade the provision of the covenant in regard to proportioning the rent to the increased value; and alleged that the sum at which the premises were to be let, upon a renewal of the lease, were so vague and uncertain by the terms of the agreement that the court ought not to interfere to decree a specific performance.</p> <p>The plaintiff, wrote to the defendant the following letter: “ Taunton, June 1st, 1872. C. A. Clark, Sir: Inclosed please find check for ($150) one hundred and fifty dollars, for rent of store and barn from March 1st, 1872, to June 1st, 1872, and as soon as the valuation is decided upon I am ready (if it be more) to settle the difference, and if less valuation is given I shall expect a return according to that valuation. E. Pray.” The defendant collected the check of $150 which was inclosed in the letter.</p> <p>The case was reserved by Morton, J., for the full court. If by reason of the uncertainty as to the amount of the rent upon a renewal of the lease, the plaintiff was not entitled to a decree, for specific performance, then the bill was to be dismissed, but otherwise such order was to be made as, in the opinion of the court, might be conformable to equity.</p>

Contract to recover the price of certain spirituous and intoxicating liquors sold by the plaintiffs to the defendant.

<p>A policy of insurance on the owner’s interest in the catchings of a whaler, ‘about two thirds of which is to apply to this policy, the crew’s share (about one third) not being covered by this insurance,” covers merely the share of the catchings reserved to the owner in accordance with the lays agreed on in the shipping articles, without reference to the state of the accounts of the crew with the vessel at the time of the loss.</p>

<p>Petition to the Superior Court, under Gen. Sts. c. 26, § 56, for a jury upon an appeal from an order of the board of health of the city of Taunton prohibiting the carrying on of an offensive trade.</p> <p>A warrant was issued upon the petition, and a trial was had before the sheriff of the county. At the trial exceptions were taken to certain of the sheriff’s rulings and instructions, and were certified 'by him to the court with the verdict. The petitioner moved to recommit the sheriff’s report of the exceptions. This motion was overruled, and the petitioner excepted. He then moved to set aside the verdict. This motion also was overruled, and the petitioner excepted.</p> <p>The respondent moved that the appeal be dismissed; this motion was overruled, and the respondent excepted.</p> <p>The questions of law arising in the case were, by consent, reported to this court by Bacon, J., the appeal to be dismissed, the verdict to be set aside or accepted, or such other order to be entered as the court should see fit.</p>

Action in which counts in contract were joined with a count in tort.

<p>Conversations had between a grantor and his agent for making the sale, after the delivery of the deed and the payment of the purchase money, are inadmissible as against the grantee to prove that the agent had no authority to deliver the deed.</p>

Tort. After verdict for the plaintiff, in the Superior Court, the defendant moved before Pitman, J., to set the verdict aside on account of the disqualification of a juror. At the hearing upon the motion it appeared that Henry B. Macomber, one of the jurors, was the husband of the plaintiff’s niece.

Action with counts in contract and counts in tort, joined, for the same cause of action. The first were for a breach of contract, the second for negligence in transmitting, from New Bedford to Boston, the following message: “ New Bedford, April 15, 1871. To Samuel Gould, Pres. of the Manufacturers’ Ins. Co., Boston. Please continue the Cordage Company policy at the old rate until I see you Monday. Answer.

Tort upon the following declaration : “ And the plaintiff says that one George L. Allen, being the owner of a certain parcel of land with the dwelling-house thereon, situate on the northerly side of Tremont Street in said Lawrence, on the 1st day of April, 1869, mortgaged the same to one Eben L. Chapman, to secure the payment of three thousand dollars, in three years from said date, with interest thereon; and afterwards, to wit, on the 7th day of May, 1870, said Allen…

<p>Libel by a husband for a divorce for the cause of adultery. At the trial the adultery was proved.</p> <p>It further appeared that after the adultery had been committed, the libellant, with full knowledge of it, had brought a libel for divorce, alleging as the only cause therefor desertion for five years. Upon that libel the libellee defended, and upon the hearing the libellant proposed to sustain his libel by proof that he had separated from and had left his wife on account of her misconduct. Upon that statement the libel was dismissed with costs, and this libel was filed.</p> <p>Wells, J., being doubtful whether the former proceedings ought not to preclude the libellant from maintaining this libel upon any ground that was a known existing cause for divorce when the former libel was filed, reported the question for the decision of the full court. A decree was to be entered in accordance with the decision upon this question.</p>

Libel by a wife for divorce for utter desertion, filed October, 1872. Notice was ordered to be given by publication in a newspaper, in the usual form. This order was complied with, and, there being no appearance on behalf of the libellee, a default was entered. At the hearing, before Ames, J., the marriage and the cohabitation of the parties within the Commonwealth were proved.

Petition under Gen. Sts. c. 134, §§ 49, 50, and St. 1873, c. 178, to quiet the petitioner’s title.

<p>Writ of entry in which the demandant claimed to recover an estate in fee in the parcel of land described in the writ. The plea was nul disseisin.</p> <p>In the Superior Court the case was submitted upon an agreed statement of facts, from which it appeared that July 12, 1837, Benjamin Shillaber conveyed the land to Henry A. Breed, the demandant, and Catharine H. Breed, his wife, by a deed in which it was expressed that, in consideration of five dollars to him paid “by Henry A. Breed and Catharine H. Breed in her right,” he granted “ unto the said Henry A. and Catharine H. Breed, their heirs and assigns,” the granted premises.</p> <p>Catharine H. Breed died in the year 1845, intestate, and left Henry A. Breed, Jr., an insane person, as her only child and heir at law. One Charles C. Ayer, being duly appointed guardian of Henry A. Breed, Jr., sold the parcel of land described in the writ to the tenant, and gave a guardian’s deed in due form of law to pass the estate to the tenant. The tenant entered into the possession of and claimed to hold the premises in fee simple.</p> <p>The demandant contended that the deed of Benjamin Shillaber to Henry A. Breed and his wife, conveyed the estate to them as joint tenants, they being husband and wife, and that upon the death of Catharine H. Breed, he took the entire inheritance by survivorship, and that he owned the fee. The tenant contended that the wife, by force of the deed from Shillaber, took the entire inheritance in the land; that at her death it descended to her only heir, Henry A. Breed, Jr., and that by virtue of the sale by the guardian, he owned the fee of the land.</p> <p>If by the true construction of the deed from Shillaber the fee and inheritance was in the demandant, judgment was to be entered for him ; if, on the other hand, the deed operated to convey the estate to Catharine H. Breed, in her own right, in which case the fee and inheritance was in the tenant, judgment was to be entered'for him. Further, if the deed operated to convey the estate to Henry A. Breed and Catharine H. Breed, as tenants in common, the court was to enter judgment for one undivided half of the fee and inheritance in the land described in the writ, and the demandant was to have leave to amend his writ accordingly-</p> <p>Upon these facts judgment was entered for the tenant and the demandant appealed.</p>

<p>Contract for the breach of a written agreement by which the defendants agreed to do certain work in laying stone and in paving at the reservoir of the Lowell Waterworks in Lowell, and by which the plaintiffs agreed to make payments therefor on the tenth of every month as the work went on.</p> <p>The declaration alleged that the defendants commenced the work and afterwards abandoned it, and that the plaintiffs were put to the expense of $2594.65 above the contract price by having the" work done by others. The answer, among other defences, not now material, alleged that “ the plaintiffs did not perform their part of said contract in the matter of payment, as required by said contract, and that the plaintiffs neglected to make to them any payment under said contract, although by the terms of said contract they were bound to make two payments to them for the work which they did' perform.”</p> <p>At the trial in the Superior Court, before Brigham, C. J., one of the plaintiffs testified, that pending the negotiation and before the contract was executed, he pointed out to one of the defendants a building near where the work was to be performed, saying that it was the plaintiffs’ office where they paid their bills. This, with the exception of evidence that, in a discussion about payment when the job was given up, the office was named by the plaintiffs as the place where the defendants ought to have called for their pay if they wanted it, was the only evidence as to the place of payment, and no question was made as to its sufficiency in 'law to prove such a place. The defendants offered evidence that two payments were due them under the contract; that no payment or offer of payment had been made ; and that after the payments were due they notified the plaintiffs that they should not go on under the contract. There was no evidence that a demand for payment had been made, and there was evidence that upon stating non-payment as one of the reasons for abandoning the job, the plaintiffs said, if that was the reason, they were ready to pay what was then due, which was a small sum at time of the first payment, and from $300 to $500 at time of second payment. No tender was ever made to the defendants. The defendants asked the court to rule as follows : “It was the duty of the plaintiffs to pay or tender the money to the defendants on the day it was due, and the defendants were not bound to seek out the plaintiffs and demand payment.” The court gave the ruling asked for, qualifying it by the addition of the words following: “ But the contract failing to provide as to the place and mode of payment, if the parties orally agreed that defendants should receive their payment at plaintiffs’ office upon their call, then demand of their payments at the place mentioned was necessary before the contract could be avoided for non-payment.”</p> <p>The jury returned a verdict for the plaintiffs for $2266, and the defendants alleged exceptions.</p>

<p>One who purchases a promissory note for the indorser, even if he advances the funds himself, does not become its holder so as to maintain an action upon it against the indorser.</p>

Contract. The writ, which was returnable at a term of the Superior Court to be holden at Lawrence on the first Monday of March, 1869, was served by the arrest of the defendant. The bail bond executed by the defendant recited that the writ was returnable at the Superior Court to be holden at Salem, and was to be void if the defendant should “ appear before the said justices of said court as aforesaid.” Lawrence, not Salem, was the place where the term was to be held.

<p>Contract to recover for a loss upon the schooner Annie Linwood, and upon her outfits, under two time policies of insurance, underwritten by the defendants, the one June 6, 1871, the other July 20, 1871.</p> <p>The defence relied upon was, that the schooner when damaged was sailing upon a voyage prohibited by clauses in the policies which provided that “ no vessel shall sail from the harbor of Gloucester on any voyage east of Cape Sable, after the tenth day of November next, at noon; or on a trip to Georges after the fifteenth day of November next, at noon; nor shall any vessel sail upon any voyage whatever after the twenty-fifth day of November next, at the risk of this company.”</p> <p>At the trial in the Superior Court, before Lord, J., the plaintiffs offered evidence that the schooner sailed from Gloucester harbor on the 13th day of November, 1871, on a voyage to East-port in the state of Maine, for the purpose of procuring bait for a fishing voyage, which they intended to make after obtaining the bait; that while on her voyage to Eastport, and when within about .one hundred miles thereof, she was driven ashore upon Long Island, near Penobscot Bay, about twenty miles from the coast of Maine, and suffered the damage claimed under the policy.</p> <p>There was evidence tending to show that the schooner at the time of her sailing from Gloucester harbor, was manned and provided with every equipment and outfit, excepting bait, suitable for a fishing voyage east of Cape Sable, with dories and with trawls, and with ice to preserve the fish that might be caught; and that her crew were shipped at Gloucester for a fishing voyage. Her master testified, that when he started from Gloucester, he meant to go east of Cape Sable. “ If we got bait, I suppose we should have gone to the Western Banks; I should not have tried to fish to the westward of Cape Sable at that time of year.” There was evidence that vessels going on a fishing voyage east of Cape Sable, sometimes procured their bait at Gloucester, sometimes, and in a majority of cases, at Boston, Eastport, or other places; that the plaintiffs fully expected to be able to procure their bait at Eastport, and intended to do so ; that in the event of their procuring bait at Eastport, the schooner was to proceed from that place on a fishing voyage east of Cape Sable; but if she was not able to procure bait there, then she was to return to Gloucester (although one of the plaintiffs testified that no directions were given to the master, as to what he should do, if he failed to obtain bait at Eastport), and that a vessel going directly on a voyage east of Cape Sable would have pursued a different and more southerly course than that pursued by this one on her passage to Eastport.</p> <p>Joseph O. Procter, president of the defendant company, testified, among other things, as follows s “ November 20, 1871, there was a meeting of the company, to which Mr. Story (the secretary) brought a telegram, announcing the disaster to the Annie Linwood. On the same day, Mr. Somes (one of the plaintiffs) called at my house, and asked what we were going to do about the Annie Linwood. I asked where she was bound ? He said, ' To the Western Banks,’ I asked, ' When did she sail ? ’ He said, ' A week ago to-day.’ I then asked, ' What was she doing up there by Long Island ? ’ He said he supposed she was going to Eastport for bait. I told him she was not covered by the policy if she sailed on a voyage to the Western Banks, after November 10, and he said he was surprised to learn of this provision of the policy. I got a copy of the policy and by-laws, and read it to him."</p> <p>The plaintiffs requested the court to rule as follows:</p> <p>“ That if the vessel, when she left Gloucester, was not fully prepared for a voyage to a point east of Cape Sable, in consequence of her having no bait, but was, when the loss happened, on a passage to Eastport for the purpose of completing her preparation by taking in bait, and which was a necessary part of the equipment, or the taking of it a necessary part of the preparation for the prosecution of her voyage to a point east of Cape Sable, and she would not, and it was not intended she should, have gone to a point east of Cape Sable without having obtained bait at East-port, then her going towards Eastport for bait was not a violation of the prohibitions in the policies of a voyage east of Cape Sable, although she might have been in other respects fully equipped and prepared for such a voyage.</p> <p>“ That if this vessel started from Gloucester with the purpose of going on a voyage to a point east of Cape Sable, only in case she could obtain bait at Eastport, and the obtaining of such bait was a necessary part of the preparation for the prosecution of her voyage to a point east of Cape Sable, and she did not intend to go and would not have gone to such point unless she could have obtained and had obtained bait at Eastport, then on her passage to Eastport for bait she was not violating the clauses in the policies forbidding her sailing from Gloucester on a voyage east of Cape Sable, although she might have been in no otherwise, than want of bait, deficient in equipment or preparation for a voyage east of Cape Sable, when she left Gloucester.</p> <p>“ If, at the time this vessel left Gloucester, she was not fully prepared for a voyage east of Cape Sable, and the question whether she should go to a point east of Cape Sable was open so far as to depend upon her ability to procure or upon her procuring bait at Eastport, and the procuring of such bait at Eastport was a necessary part of her preparation for the prosecution of her voyage, and without it she would not have gone to a point east of Cape Sable, then her passage to Eastport, for the purpose of procuring bait and thereby completing her .preparation, was not p violation of the prohibitions in the policies of a voyage east of Cape Sable; she having been wrecked before arriving at East-port, and there being no evidence whether she could have procured bait there or not.</p> <p>“ That she was not on a voyage east of Cape Sable while she was on her passage to Eastport to procure a necessary part of her preparation for such a voyage; that she was not on the prohibited voyage unless it was determined absolutely that she should go to a point east of Cape Sable, irrespective of her being able to procure or of procuring bait at Eastport, that bait being a necessary part of her preparation to go east of Cape Sable.</p> <p>“ That if her going to a point east of Cape Sable depended upon any contingency of her being able to obtain or of her obtaining bait at Eastport, that being a necessary part of the prosecution of her preparation to go east of that cape, her passage to Eastport was not a violation of the policies.</p> <p>“ That if her going to a point east of Cape Sable depended upon any contingency of her being able to obtain or of her obtaining bait at Eastport, that being a necessary part of the prosecution of her preparation for a voyage east of Cape Sable, hex passage to Eastport was not a violation of the prohibitions.</p> <p>“ That if this vessel left the harbor of Gloucester with two purposes — one to go to Eastport for bait, and the procuring of bait at that place was a necessary part of the preparation for the prosecution of her voyage east of Cape Sable — and the other purpose was to proceed from Eastport on a voyage east of Cape Sable, if she could procure, or after she had procured said bait, and she would not have gone without such bait, then the plaintiffs are entitled to recover for the loss having occurred on her passage to Eastport for the above purpose.”</p> <p>The presiding judge commenced his charge by saying, that very voluminous prayers for instruction had been presented; that upon a hasty reading of them he was not prepared to say that with a proper definition of the terms used they were not correct, but that sometimes language was equivocal, and words were capable of being used in different senses; that the word voyage, for example, was sometimes used to express simply the idea of route, while at other times it meant the entire undertaking ; that necessary preparation for a voyage, might mean those things necessary to make the vessel in all respects seaworthy and capable of a proper performance of the voyage; or it might mean such things as were necessary for the successful accomplishment of the purposes of the enterprise ; and that therefore, without deciding whether the prayers for instruction were in any sense proper to be given, he preferred to use his own language, which he intended to be clear and unequivocal, and to cover all the points necessary to the proper decision of the case, and if he should fail to state the law accurately, the party Aggrieved would have his remedy.</p> <p>He instructed the jury that the question in the case was what voyage the vessel was pursuing at the time of the loss. If she was pursuing a voyage east of Cape Sable, she was not protected by the policies — if not, she was; that voyage did not necessarily mean route, although often used in that sense; that the word voyage in the policies meant enterprise; that when the policies said that a vessel should not leave Gloucester on a voyage east of Cape Sable, after the 10th of November, it meant that she should not leave Gloucester on that enterprise; that the question was, Was this a voyage east of Cape Sable liable to be defeated at Eastport, or was it a voyage to be contingently continued to Cape Sable after the arrival of the vessel at Eastport ? What voyage was it understood the vessel entered upon when she left Gloucester ? If she left Gloucester on a voyage to Eastport, contingently to be prolonged to Cape Sable, then the plaintiffs might recover; but if she left Gloucester with full purpose of going on a voyage east of Cape Sable, liable to be defeated on her going to Eastport, then the plaintiffs could not recover. Was the vessel on a voyage in the usual course of a voyage to Cape Sable, or was she in the usual course of a voyage to Eastport ? When she left Gloucester, was she pursuing the one enterprise or the other ? If the plaintiffs did not show that they had kept themselves within the terms of the policy, they could not recover; and in order to do that, they must show that the vessel was not on a prohibited voyage j that if the vessel was on a voyage to Eastport, subject to the contingency of being prolonged to Cape Sable, the plaintiffs might Recover j if she started on a voyage east of Cape Sable, liable to be interrupted by going to Eastport, then the plaintiffs could not recover. No exception was taken to the ruling in regard to the burden of proof. At the conclusion of the charge no objection was taken to the instructions given, and no prayer or request for any other or different ruling was made. The verdict was for the defendants, and the plaintiffs alleged exceptions.</p>

<p>Tort for the breaking and entering of the plaintiff’s dwelling-house in Lynn, and the taking and carrying away of a sofa and a table, the property of the plaintiff.</p> <p>The defendants justified the entry and the taking of the goods by virtue of a writ of attachment in favor of the defendant Southworth, against the plaintiff, service of which was made by the other defendant, a deputy sheriff.</p> <p>At the trial in the Superior Court, before Lord, J., the plaintiff contended that the sofa and the table were exempt from attachment, because without them household furniture to the amount exempt by law had not been left by the officer; and the defendants contended that the sofa and table were not exempt from attachment, because the plaintiff had other household furniture to an amount greater than was by law exempt from attachment, which was left by the officer at the time of the taking. Evidence was introduced at the trial by both parties as to what household furniture the plaintiff had, and its value at the time of the taking.</p> <p>The defendants contended, and asked the court to instruct the jury, that the burden of proof was upon the plaintiff to satisfy the jury by a preponderance of testimony that the defendant officer, in making the attachment, did not leave other household furniture of the kind and to the value exempt by law from attachment. The court declined so to do, but instructed the jury that the burden of proof was upon the plaintiff, in the first instance, to show title to the property, and to show the trespass ; but this being conceded, and the defendants justifying the taking under a process against the plaintiff, it was incumbent upon them to satisfy the jury by a preponderance of testimony that the officer left, in making the attachment, other household furniture of the plaintiff, of the kind and to the value exempt from attachment.</p> <p>The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.</p>

Tort to recover damages for the defendant’s withholding from the plaintiff the possession of certain personal property to which the defendant claimed title as assignee of a mortgage given by the plaintiff to one Bryant.

Petition for partition of certain land in Haverhill. The petitioner claimed title to one half of the premises. The respondent admitted her title to one third, but denied it to more. The case was heard in the Superior Court before Brigham, C. J., without a jury. Both parties derived their title from the will of one Rachel French, the material portions of which were as follows : Art. 1.

Tort to recover damages for injuries sustained by reason of an alleged defect in the highway.

Bill in equity praying that the defendant might be decreed specifically to perform an agreement for the purchase of certain described real estate. The answer denied that the plaintiff was seised in fee simple of the premises so as to be able to make a valid conveyance of the same according to the terms of the agreement.

Writ of ENTRY to obtain possession of land upon which the demandant had levied an execution as land conveyed by one George W. Warner, in fraud of his creditors. At the trial in the Superior Court, before Lord, J., it appeared by the return on the execution, that the appraisers were chosen by the officer and the plaintiff, Warner refusing to appoint one. And it further appeared that one of the appraisers appointed by the officer was a cousin of the plaintiff’s mother.

<p>Contract to recover $18.75, being three months’ rent, for the three months preceding June 17, 1872, according to the terms of a lease, by which the plaintiff demised to the defendant a dwelling-house to hold for one year from June 17, 1872, for the rent of $75, and the lessee covenanted to pay the rent in equal monthly payments of $6.25 at the end of each month.</p> <p>In the Superior Court, trial by jury was waived, and the case was heard by Brigham, C. J., who found that the defendant occupied the premises, and paid rent according to the terms of the lease to March 17, 1872; that at the time of the making of the lease the plaintiff had an estate in the premises for the life of one Joel Lancy, who died on December 26, 1871; that one Wareham Drake owned the reversion of the premises; that he, March 26, 1872, served upon the defendant this notice: “ Newburyport, March 26, 1872. Mr. Clarkson, Sir, — Please. not pay to Mr. Lampson any more rent of house now occupied by Mr. Lancy & Johnson until further notice. Wareham Drake; ” that thereupon the defendant refused to pay to the plaintiff or to Drake the rent which accrued under the lease after March 17, 1862, until he could ascertain the title of the premises; that the defendant, after the notice, occupied the premises until the end of tie term without disturbance, or other interruption than that arising from the notice; that the defendant, when he thus refused, knew that Lancy was dead, and knew the claim of the plaintiff and of Drake as to the title; that the plaintiff had no knowledge of the service of the notice on the defendant; and that after the expiration of the lease, and before action brought, the defendant informed the plaintiff of the notice.</p> <p>The court ruled that upon the legal effect of the foregoing facts, the plaintiff was entitled to recover, and found for the plaintiff, and assessed damages in the sum of $20.25. The defendant alleged exceptions.</p>

Contract for the price of certain barrels, and half barrels of mackerel sold by the plaintiffs to the defendants.

<p>Under the Gen. Sts. c. 124, § 14, a new notice of a desire to take the poor debtor’s oath cannot be served until the expiration of seven days, exclusive of the first day, from the proper service of a former legal notice, although the magistrate has adjudged such former notice to have been insufficient.</p> <p>A debtor’s appearance before a magistrate, in pursuance of a notice of a desire to take the poor debtor’s oath, does not prevent a breach of the recognizance, if no proceedings are had under the notice.</p> <p>The fact that a debtor who has given notice of a desire to take the poor debtor’s oath does not appear at the appointed time and place, is not a breach of the recognizance when there remains sufficient time before the expiration of the thirty days to give a new notice.</p>

Contract. The declaration was as follows : “ And the plaintiff says the defendants owe her, in her said capacity as administratrix, the sum of six hundred eighty-four dollars forty-seven cents for money received by the defendants go the use of the plaintiff’s intestate, and interest thereon. “ And the plaintiff further says that the defendants were on the fourth day of November, 1868, the owners and managers oi a line of steamships between New York and Ireland, and were also…

<p>A railroad corporation, neglecting, when a train is approaching a place where its road crosses a highway at grade, to give the warning required by St. 1862, c. 81, or neglecting to give other proper warning beyond that required by statute, is liable to one injured thereby, though the injury results not from a collision, but from the fright, not guarded against for want of such warning, of the horse he is driving.</p>

Bill in equity by Jonathan Peirce and Hannah J. Peirce, his wife against the defendants, who were the administrator and the heirs at law of Joseph A. Colcord, alleging that the female plaintiff in May, 1868, was the owner in fee in her own right, of a house and land, in Salem, subject to a mortgage made by the plaintiffs to the Salem Savings Bank, to secure the note of Jonathan for $2500, dated July 13, 1857; that the tenants then occupying the house were the plaintiffs’…

<p>One entering upon the sea beach of another and removing, for the purpose of restoring to its owner, a boat cast ashore by a storm and in danger of being carried off by the sea is not a trespasser.</p>

Writ of entry to recover possession of certain land in Lawrence.

<p>Trustee process. The writ commanded the officer “ to attach the goods or estate of John R. Perry and Patrick Grimes, copartners under the name and style of Perry & Grimes,” and to summon the Bay State National Bank as trustee.</p> <p>The corporation filed this answer: “And now comes the Bay State National Bank, and, for answer, say, that they had in their hands and possession, at the time of the service of the plaintiff’s writ upon them, no goods, effects or credits of the said firm of Perry & Grimes, the defendants, and of this they submit themselves to be examined on oath, and ask to be discharged. And for a farther answer they say that, at -the time of the service of said writ upon them, to wit, on the ninth day of May, 1872, they had in their hands and possession, of the individual goods, effects and credits of said John R. Perry, one of said firm, the sum of nine hundred and twenty-two dollars and seventy-seven cents, but that since said service, to wit, on the twenty-third day of said May, said individual effects of said Perry have been attached to'the amount of eighteen hundred dollars, on a writ sued out of this court and returnable at the September term thereof, wherein the Swampscott Machine Company is plaintiff, said John R. Perry is defendant, and said bank is made trustee. Wherefore they ask to be discharged, and of this they submit themselves to be examined on oath.”</p> <p>The corporation appealed from an order charging it as trustee upon this answer.</p>

Contract. Moses Carr, as administrator, was summoned as trustee. The officer, beside serving the writ upon the trustee, returned that he had made an attachment of real estate. The declaration was upon a judgment recovered in the Court of Common Pleas, December term, 1857, for $841.54 damages, and $19.99 costs of suit. The defence relied upon was a discharge in bankruptcy.

Appeal to the Superior Court, under Gen. Sts. c. 124, §§ 32, 33, by a creditor, from the decision of a commissioner of insolvency finding the defendant not guilty of certain charges of fraud filed against him by the creditor on his application to take the poor debtor’s oath.

<p>Contract alleging that the defendant made a promissory note payable to the plaintiff by the name of Russell M. Stoddard, or order, and owed the plaintiff the amount thereof and interest. Writ dated November 17, 1869. The copy of the note, annexed to the declaration, was as follows:</p> <p>“$400. Lawrence, April 1, 1869.</p> <p>“ Two months after date I promise to pay to the order of myself Russell M. Stoddard, four hundred dollars. Value received. James W. Hanson."</p> <p>Indorsed upon the note were the signatures of John B. Penniman, (the defendant,) Charles A. Brown, and Russell S. Stoddard, (the plaintiff.) The answer alleged, among other things, that the note had been materially altered since the defendant signed it, so as to be no longer binding upon him.</p> <p>After the decision, reported 108 Mass. 366, the case was again tried in the Superior Court, before Brigham, C. J.</p> <p>The defendant relied upon the fact that the note, subsequent to his signature, had been materially altered, (the alteration consisted in erasing the word “ myself ” and substituting the name of “ Russell M. Stoddard,” as in the body of the note,) without his knowledge or consent. The plaintiff contended, and introduced evidence to show, that the defendant consented to the alteration at the time it was made. And the question of the defendant’s consent was the question for the jury.</p> <p>The plaintiff, to show the defendant’s consent, introduced the deposition of Hanson, who testified that the 'note was signed by Penniman and by Brown, at his request, to enable him to get $400 from the Bay State National Bank; that he did not obtain it there, because the bank would not discount the note; and that be then got the money of, and gave the note to, the plaintiff. The eleventh interrogatory was, “ Before you obtained the money of Stoddard, did you notify Penniman ? Did he consent ? If you had any conversation with Penniman in reference to obtaining the money of Stoddard, state the whole conversation particularly.” To this the answer was: "I did notify Penniman and he consented under the following circumstances: When I learned that I could not get the money from the bank and that C. A. Brown had left the city for several days, I went to Penniman and laid the whole circumstances of the case before him, and told him that I could get the money from R. S. Stoddard on that note with the consent of the indorsers. He consented that I should get the money of Stoddard on that note, provided that I would notify Brown on his return, and if he made objection, I would relieve both and furnish other security, and in this way I obtained the money, and as soon as Mr. Brown returned, I informed him of what I had done, and he made no objection, and thus the case stood.” The defendant’s second cross-interrogatory was as follows : “ If you shall answer that you obtained the money on said note from one Stoddard, and informed said Penniman from whom you obtained said money, state whether or not this information was given by you to said Penniman some days after you received the money on said note.” To this the answer was, “ No; it was not given after I received the money, but before I received it, and Penniman gave me his full and unequivocal consent, that I should get the money from Stoddard, in just the manner I did, after I had failed in getting it from the bank, provided I should get the consent of Brown, after he returned, which I did.” The defendant’s third cross-interrogatory was as follows: “ If you shall answer that you received the money on said note from one Stoddard, please state whether or not, at the time you obtained said money, you altered said note at the request and in the presence of said Stoddard, by erasing the word ‘ myself ’ in the body of said note, and by interlining in the place thereof, the name ‘ Russell M. Stoddard.’ ” To this the answer was: “ By previous agreement with Penniman, I did, at the time I obtained the money, erase the word ' myself,’ and in the place thereof insert the name ' Russell M. Stoddard,’ I think in the presence of Russell M. Stoddard, and I went with the money in my hand to Penniman, and told him what I had done, and he fully assented.”</p> <p>There was in the deposition other evidence bearing upon the question of consent. It was admitted that Brown was absent from Lawrence at the time spoken of by the defendant, and that he was never consulted, and never consented to the alteration. The defendant introduced testimony tending to prove that he was never consulted by Hanson on the subject, and never heard of the alteration until long afterwards, at about the time of the maturity of the note.</p> <p>The plaintiff requested the judge to instruct the jury as follows t “ If the jury find that Penniman consented to the alteration at the time it was made, upon a condition to be performed by Hanson afterward, as if he would obtain the consent of Brown after he returned from New York, then, if Hanson made the alteration at the time he obtained the money and before Brown returned, and afterwards failed or neglected to get the consent of Brown, this would be sufficient consent, upon the part of the defendant, to the alteration,”</p> <p>But the judge declined to instruct the jury as requested, but did instruct them, that if Penniman consented to the' alteration of the note, before the time the money was obtained, as stated by Hanson in his answer to the second cross-interrogatory, and Hanson did not obtain the consent of Brown, then the plaintiff could not recover, unless it also appeared that Penniman subsequently consented to and ratified the alteration. The verdict was for the defendant, and the plaintiff alleged exceptions.</p>

<p>Actions of contract to recover the price of whiskey sold. The two cases were tried together in the Superior Court, before Brigham, C. J. At the trial the plaintiffs called one Patton as a witness, who testified, among other things not now material, that he was in the service of the plaintiffs during the years 1870 and 1871, with authority from them to travel through the New England States and obtain orders for liquors ; that he had authority from the plaintiffs to receive orders and agree upon the price of liquors ordered, the terms of payment and the freight, but that he had no authority to agree absolutely that the orders would be accepted or the liquors delivered; that the plaintiffs were to determine whether the liquors ordered should be sent to the parties giving the witness orders ; that the witness sent the orders to the plaintiffs’ place of business in Louisville, Kentucky, for the plaintiffs to accept or reject as they saw fit; that acting under such authority, he took the order of the defendants at Lawrence, Massachusetts, for the liquors described in the declarations ; that betook the order of the defendant Woodhall, June 17, 1871, and che order of the defendant Bolduc, in February or March of the game year; that at the same times he agreed with the defendants upon the prices to be paid and upon the times of payment, provided the plaintiffs should accept the orders, and agreed that the plaintiffs should repay the defendants all sums of money which they should pay for the freight upon the liquors from Kentucky to Lawrence; and that the liquors were afterwards sent to the defendants upon the terms of sale thus agreed upon.</p> <p>There was evidence tending to prove that the witness Patton knew, at the time he took the orders from the defendants, that there was a prohibitory liquor law then in force in this Commonwealth ; that he knew the substance of it, and also knew that the defendants then entertained the purpose of selling the liquors, when received, within the Commonwealth, in violation of this law. There was evidence tending to prove that the defendants entertained such purpose at the time they gave the orders. The plaintiffs contended that the contract of sale was made in Kentucky ; the defendants, that it was made in Massachusetts.</p> <p>The defendants asked the court to give the following instructions :</p> <p>“ If the jury find that at the time of the sales the agent of the plaintiffs, who had negotiated the sales to the defendants for the plaintiffs, knew that the defendants entertained the purpose of selling the liquors in this Commonwealth in violation of our laws, then this was in law knowledge of the plaintiffs, and they are bound thereby, if the jury also find that such was in fact the purpose of the defendants :</p> <p>“ If the jury find that the agent, who negotiated the sales to the defendants for .the plaintiffs, had at the time of the negotiations reasonable cause to believe that the defendants entertained the purpose to sell the liquors in this Commonwealth in violation of the law here, then the plaintiffs are bound thereby, and cannot recover, if the jury also find that such was in fact the purpose of the defendants.</p> <p>“ If the jury find that the plaintiffs were to deliver the liquors to the defendants at Lawrence, then the contracts of sale were made in Lawrence and subject to the laws of this Commonwealth.”</p> <p>“ If the jury find that the plaintiffs were to pay the freight upon the liquors from Louisville to Lawrence, this is same evidence tending to prove that the plaintiffs were to deliver the liquors at Lawrence to the defendant, under the contracts, and also some evidence tending. to prove that the contracts were made in Lawrence.”</p> <p>The court refused to give either of these instructions, but upon the questions raised by the requests, instructed the jury as follows:</p> <p>“ If the plaintiffs, being sellers of intoxicating liquors in the State of Kentucky, employed an agent who obtained in Lawrence orders for such liquors from the defendants and sent the orders to plaintiffs, who accepted them, and thereupon delivered the liquors thus ordered to carriers in Kentucky, who transported them to defendants, the contracts of sale were made and the sales completed in Kentucky, notwithstanding defendants paid the cost of the transportation of the liquors thus ordered from Kentucky to Lawrence under agreements with the plaintiffs’ agent that if such orders were accepted by the plaintiffs, when the liquors were paid for, the cost of such transportation should be deducted from the price.</p> <p>“ The burden of proof is upon the defendants to prove that the plaintiffs, when they completed the contracts of selling the intoxicating liquors ordered by the defendants, did so under circumstances which gave them reasonable cause to believe that the defendants intended to sell such liquors in Massachusetts, when received by them, in violation of the laws of Massachusetts, and that the defendants did in fact so intend to sell them. If the agent of the plaintiffs who obtained ñ-om the defendants the orders for such liquors, from circumstances attending the same, had at the time when he obtained such orders reasonable cause to believe that the defendants would sell the liquors ordered, when received by them in Massachusetts, in violation of the laws of Massachusetts, that fact would not affect the plaintiffs in their right to recover in this action, unless at the time of completing the sale they were notified by such agent, or otherwise, directly or by circumstances, of facts or circumstances relating to the defendants and their business and its relation to the laws of Massachusetts, which would induce any reasonable man to believe that such was the intention of the defendants.”</p> <p>The jury found for the plaintiffs in each action, and the defendants each filed exceptions.</p>

<p>Neglect to fence the ordinary machinery of the employment will not of itself make a master liable to a servant for a hurt preventable by such precaution.</p> <p>Neglect by a master to give a child employed on machinery other instruction as to its use than an injunction to " do as the other boy ” did, will not of itself make him liable for the child’s hurt caused by the machinery.</p> <p>If a child employed upon machinery has gained from any source the knowledge how to use it, the master’s personal neglect to give instruction will not make him liable for the child’s hurt caused by the machinery.</p>

<p>One whose property has been replevied by a writ against his agent or his bailee, can retake it by replevin from the plaintiff in the first action, even during the pendency of that action..</p>

Petition for partition of land in Georgetown. Trial by jury was waived in the Superior Court, and the case was heard by Brigham, C. J., who found the following facts.

<p>Bill in equity for an injunction, alleging that the plaintiffs, in right of the wife, were seised in fee of a parcel of land in the bill described, with buildings thereon, situated in Amesbury; that they and their grantors had been in quiet possession for more than forty-five years, and had erected buildings and inclosed the land by fences which had been in the same position, fronting upon the highway bounding the premises, for more than forty years; that the defendants, who were the road commissioners of Amesbury, asserted that the county commissioners of the county of Essex in 1827 had widened the highway, and had laid out a portion of the land within the line of the fence as a part of the highway. The bill alleged that if any portion of the land was so laid out, the true boundaries of the highway could not be made certain by records or monuments ; that the land had never been entered upon, taken possession of or worked by the officers of the town, and that it had been inclosed by fences for more than forty years ; that the defendants had notified the plaintiffs’ tenant, occupying the premises, to remove his shed and fences within forty-eight hours; and that they intended to enter at once upon the land and remove a portion of the buildings and fences, and to cut down the trees there growing. The bill prayed for an injunction, and for such other decrees and orders as justice might require.</p> <p>The bill was presented to Ames, J., at chambers, who made an order, indorsed upon the bill, as follows: “ Supreme Judicial Court. In Chambers, Brookline, June 12th, 1872. On the filing of this bill an injunction is to issue, restraining the defendants from entering upon the plaintiffs’ land, or removing any trees, buildings or fences belonging to plaintiffs, to continue in force until further order by some justice of this court. Seth Ames, J. S. J. C.”</p> <p>The answer denied that the plaintiffs had been in quiet possession of the premises for more than forty years, or that the fence had been maintained- for that length of time, but alleged that the highway was widened and straightened in May, 1827 ; that then there was no fence upon the premises; that the fence had not stood for forty years, and had not been claimed by the owners of the land as the line of the road; that the owners of other lands bounding upon the highway had built fences upon the line of the highway as it was located in 1827; that the officers of the town had taken possession of the land within the location, and had constructed the street upon it with a sidewalk on the line of the location; that for a few years the plaintiffs had maintained a fence projecting from three to five feet within that line, so that in passing in front of the plaintiffs’ land it was necessary to turn a sharp angle to go around the projection of the fence ; that the defendants had been petitioned by a large number of the inhabitants of the town to remove the fence; that they were in duty bound to remove it; and that, after notifying the occupant of the premises, they had removed the fence and a portion of a shed, doing no unnecessary damage.</p> <p>After the filing of the bill, the plaintiffs filed against the defendant Nayson a complaint for a contempt in disobeying the injunction. The complaint, after setting forth the substance of the bill and the order indorsed thereon, proceeded as follows :</p> <p>“ In the forenoon of the 13th day of June, 1872, the said bill was filed in the clerk’s office for the county of Essex, and at the same time an injunction was issued against the defendant and others, as directed by said order. On the said 12th day of June the said Nayson, well understanding that the plaintiffs were preparing to obtain the said injunction, in order to anticipate and prevent its effectual operation upon him by executing the work threatened as above, before the injunction could be obtained, proceeded by himself and his servants to tear away a part of the plaintiffs’ said barn, and to dig up their soil; that on the said 12th day of June, immediately after the said order was made by Mr. Justice Ames, W. C. Binney, Esq., solicitor for the plaintiffs, sent to Amesbury for Dr. Sparhawk, the occupant of the said premises, in whose charge they were, the following telegram: ‘ Tell Sparhawk an injunction has been granted by Judge Ames, tell him to notify Nayson; will bring injunction down with me to-morrow noon. W. C. Binney.’</p> <p>“ Early in the morning of said thirteenth of June, the defendant again entered upon the premises with a large number of men to proceed with his said threatened operations, and thereupon said Dr. Sparhawk, in the presence of witnesses, read to him the above telegram, and also told him that the plaintiffs had applied for the injunction and that it had been granted, and warned him not to go on with the work, as he would be held responsible. The defendant refused to give any heed to the telegram, the information or the warning, but immediately proceeded to increase the number of teams and workmen, and with them entered and continued upon the premises and pressed forward the work of injury and destruction he had begun, with' still greater vigor tad speed. He dug up and carried away the plaintiffs’ soil, tore down fences and dug up posts, cut down and tore up useful trees and bushes and ornamental shrubbery, and exposed and cut the roots of large elm trees, and continued to work in this manner, apparently wilfully doing all the damage he could, until about two o’clock in the afternoon of said June the thirteenth, when said Binney, having proceeded with all possible dispatch, arrived at the premises with the injunction, and immediately told the' defendant that he had an injunction from the Supreme Court to restrain him from entering or working upon the premises, or removing buildings, trees or fences, and offered to read it to the defendant; placed the injunction in the hands of the defendant, and told him to read it if he wanted to; told him to stop his work and take off his men ; and endeavored to persuade him to leave the premises and do no further damage ; but the defendant refused to desist from his operations or to take any notice of the injunction of which he was thus fully and distinctly notified; and thereupon the defendant continued by himself, and from fifteen to twenty laborers or servants in his employ, to dig up and carry away the plaintiffs’ soil, tear down fences, dig up posts, cut away and pull up useful bushes and ornamental shrubbery, and injure the roots of trees, on the plaintiffs’ said estate, until about three o’clock in the afternoon of said thirteenth day of June, when the said injunction having been served upon the defendant by an officer, and the said Binney having again notified and warned him, he reluctantly ceased his operations and left the plaintiffs’ premises.</p> <p>“ And thereupon the plaintiffs say that in the proceedings and acts aforesaid the defendant has acted in contempt of the authority of this court, and in total disregard of its injunction, and has wantonly and wilfully disobeyed the same in every particular as aforesaid.</p> <p>“ The plaintiffs further say that the said waste, wrong and in jury were committed and done against the consent of the plain»tiffs and contrary to repeated requests and warnings above stated 3 that the value of the premises has been greatly lessened thereby, viz.: in the sum of one thousand dollars; and that irreparable damage has been done to the plaintiffs.</p> <p>“ Whereupon the plaintiffs pray that the court will, in consideration of the breach of said injunction, issue a writ of attachment against said defendant, and order that said defendant stand committed until he pay to the plaintiffs the amount of damages they have sustained in consequence of the acts and doings above specified and alleged, together with all the costs and expenses of the plaintiffs in procuring this application and the writ of attachment, together with such fine or other punishment as to your honors shall seem meet; and the plaintiffs further pray for such other relief in the premises as may be suited to the nature of their case.”</p> <p>To this the defendant answered “ that on the 12th day of said June he commenced to remove the fence and an old shed belonging to the petitioners and within the line of said highway, and to change the grade to conform to the grade of said highway ; that on the morning of the 13th of June, Dr. Sparhawk informed him that a telegram from W. C. Binney had been received, stating that he had made application for an injunction, and that he should obtain one, and should bring it to Amesbury; that the defendant replied that he should obey such injunction, if obtained, that, previous to that, he had had no notice that it was the intention of the petitioners to obtain an injunction, and he denies that he did the work aforesaid to anticipate or prevent the operation of an injunction, as alleged in said petition. And he further says that he did not suppose that the notice that he received from Dr. Sparhawk as aforesaid was a sufficient notice to him or as binding upon him, and restraining him in the execution of his said work; that in fact at that time the said petition was not filed in court, and the injunction by the order of the court was not to issue until the filing of said petition; that he continued to work until the afternoon of that day, and during that time he did remove some soil from the land claimed by the petitioners, and he took down a portion of the fence and removed a lilac bush 5 that at or about three o’clock in the afternoon said Binney informed him that he had obtained an injunction against him, restraining him from entering upon the Winslow estate, and committing any waste thereon, but did not read any paper to him, though he held one in his hand, or give him any further information as to the contents thereof; that the defendant, supposing that service to legal process should be made by an officer, asked Mr. Binney, knowing him to be a lawyer, if that was a legal service of an injunction,— if so, he would recognize it and obey the order; that Mr. Binney made no reply to the inquiry as to the sufficiency of the service, and went away; that the defendant immediately went to the office of Mr. Turner to obtain advice whether he was bound to take notice of an order of court so communicated to him; that upon leaving Mr. Turner’s office he met Mr. Binney, accompanied by a constable, who served a copy of said injunction upon him, and he immediately ceased operations and discontinued his work; and the defendant denies that he acted in the premises, or intended to act, in contempt of the authority of this court, and in disregard of its injunction, or that he has wantonly and wilfully disobeyed the same as alleged. And he further denies that he committed any waste, wrong or injury against the consent of the plaintiffs, or contrary to their repeated requests and warnings. And he denies that the work that was done on the thirteenth day of June lessened the value of said premises, or that the petitioners suffered irreparable damage thereby. And he denies that the work which he did there was done with intent of wilfully damaging the petitioners’ premises, or that he increased the number of teams and workmen for the purpose of pressing forward any work of injury and destruction ; but he says that all that he did there he did in execution of his duty as road commissioner, and with no other object in view than faithfully to perform the same.”</p> <p>The bill in equity was heard upon the bill, answers, replication and proofs, by Ames, J., who made the following report of the facts:</p> <p>“ The plaintiff Elizabeth S. Winslow is, and for a long time has been, the owner of the estate described in the bilL The highway in front of it was ordered to be widened, by the county commissioners of Essex County, in the year 1827; but although this widening appears to have been made a matter of record, the road never was altered in fact, or worked or levelled for travel in conformity to that record, in front of the plaintiffs’ house or in that immediate vicinity, and has continued since said record in the same apparent condition as before. A fence in front of the dwelling-house was erected in that year, or within two years thereafter, and has been maintained ever since, until it was removed by the defendants in the manner described in the bill. I do not find that it is a case in which the bounds of the highway, as established in 1827, could not be made certain ; but I do find, upon a preponderance of evidence, that the plaintiffs’ fence has been maintained and continued on the same line for more than forty years, and that her buildings were within that line. And I find that the defendants, under claim of right in their capacity of road commissioners of the town of Amesbury, have taken away a large portion of the fence, and have cut off and removed a portion of the stable or catriage-house standing on the land, and have dug away the bank and soil in front of the house, for about the depth of two feet, and have thereby made access to the premises by the usual carriage way inconvenient and unsafe.</p> <p>“And the case in equity is reserved upon the bill and answers, and the foregoing report, for the consideration of the full court.”</p> <p>The complaint for contempt was heard by the same judge, on the complaint, answer and proofs; and he reported the following facts:</p> <p>“ An application for an injunction to restrain the threatened proceedings of the defendants was made to me, in the afternoon of June 12, 1872, and upon such application an order was passed, in these words, viz.: ' Supreme Judicial Court. In Chambers, Brookline, June 12, 1872. On the filing of this bill, an injunction is to issue, restraining the defendants from entering upon the •plaintiffs’ land, or removing any trees, buildings or fences belonging to plaintiffs, to continue in force until further order by some justice of this court.’</p> <p>“ The bill of complaint, with this order indorsed thereon, was then delivered by me to the plaintiffs’ solicitor, who in the forenoon of the next day presented it to and filed it with the clerk of the court. A writ of injunction was accordingly made out, and delivered by the clerk to the plaintiffs’ solicitor, who then went with it to Amesbury, and caused it to be served on the defendant Nayson, by a certified copy delivered to him by a constable, of that town, at about three o’clock "in the afternoon of June 13; and the defendants then immediately desisted from their work.</p> <p>“ It appeared that the defendants, acting in the capacity of road commissioners, had been at work, for some time before the filing of the bill, in setting back fences, and widening the road in order to make it in conformity with the line laid out by the county commissioners in 1827; and notice was given to the plaintiffs May 13, 1872, to the effect that their fences and buildings encroached upon the road. The right of the plaintiffs to maintain the fence and building where" they stood was a matter of some discussion, and several attempts at negotiation on the subject of ascertaining the true line by a new survey had been made, but nothing definite was agreed upon. On the 10th day of June the plaintiffs were notified that the fence, &c., must be set back to the commissioners’ line within forty-eight hours. The bill was drawn up the next day, and was signed and sworn to at Boston on the 12th. On this last mentioned day, in the afternoon, the plaintiffs’ solicitor sent the telegraphic message, as set forth in the complaint, from Boston, to his wife. The contents of this telegram were made known to the defendants, at seven o’clock in the morning of the 13th, by the plaintiffs’ tenant, who read the telegram to the defendant Nayson. To this Nayson replied that ‘ anybody could send a telegram,’ and that he should take no notice of it; but would obey the order of the court whenever it should be properly made known to him. It was understood by all parties that the plaintiffs claimed the right to maintain the fence as it stood, and that they denied that they were bound to set it back. I find also that after hearing the telegram, the defendants increased the number of men employed in widening the toad opposite the plaintiffs’ estate, and that the workmen were kept at work without taking any intermission at the usual hour of dinner. At about twenty-five minutes before three o’clock in the afternoon of that day, the solicitor of the plaintiffs (Mr. Binney) arrived at the scene of action with the writ of injunction, which he showed and fully explained to Nayson, who inquired of him, ' Are you authorized to serve a writ of injunction, and am I obliged to take it from you ? ’ adding the words, ' If you say, as a lawyer, that I am obliged to take it from you, I shall obey it.’ To this Binney replied, 'I will find somebody that can serve it.’ A copy of it was accordingly served upon the defendant by a constable at about five minutes before three o’clock. It did not appear how much or whether any large amount of work was done by the defendants during the last twenty minutes before the service of the writ by copy.</p> <p>" And the complaint for the alleged contempt, on the part of said Nayson, is reserved for the consideration of the full court, upon the complaint and answer, and upon the above report of facts.”</p>

<p>Contract, to recover of the defendant, as indorser, the amount of a promissory note signed by one Alexander B. Campbell, and made payable to the order of the defendant.</p> <p>At the" trial in the Superior Court, before Brigham, C. J., there was evidence that Campbell about the time of its date put the note into the hands of one Abbott to sell for him, and that Abbott at some time sold it to the plaintiff. The plaintiff testified that he purchased the note of Abbott about the time of its date, and that he, about two weeks before its maturity, placed it for collection in the Central National Bank of Lynn. The defendant contended that the plaintiff was not a bond fide holder of the note; and offered to show that he called at the Central National Bank two. days before its maturity, and that the officers of the bank said that no such note was there. He also offered to show what Abbott, in answer to his inquiries, had said at different times be» fore the maturity of the note as to where the note then was,, and as to the ownership of it.</p> <p>The court excluded the evidence. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Actions of tort. The first action was in the nature of trespass quare clausum against Daniel Calhane and Thomas R. Cook for entering the plaintiff’s close and tearing down a building. Calhane answered that his wife was seised of a parcel of land adjoining the plaintiff’s close, appurtenant to which was a right of way in a twelve foot passage way leading from her land across the plaintiff’s close to Court Street; that the plaintiff obstructed this right of way by erecting a shed across it, and that he, by the authority of his wife, entered and removed the shed, which was the alleged trespass. The other defendant, relying upon the same facts, justified alsu under the authority of Mrs. Calhane.</p> <p>The second action was in the nature of trespass upon the ease tor distracting Mrs. Calhane’s right of way by the erection of the shed upon the passage way.</p> <p> </p> <p>In the Superior Court, trial by jury was waived, and the cases were heard and determined by Brigham, C. J., who found the following facts:</p> <p>Goss proved a deed from George A. Green to himself, dated March 31, 1868. This deed conveyed the land designated upon the plan as “ Land of Goss,” in two parcels, one bounded “ on said private way,” the other “ by said private way.”</p> <p>George A. Green had title to the estate by two distinct lines of conveyance, namely:</p> <p>The land on the western side of the way, was conveyed by James H. Duncan to Hiram Peaslee, by deed dated April 16, 1852, bounded “ thence running southerly by a twelve feet private way which I lay down; ” by said Peaslee to Charles H. Dunbar, by deed dated June 3, 1852; by said Dunbar to John P. Gilman and Rufus L. Chase, by deed dated July 28, 1860; by Gilman and Chase to Moses H. Green, by deed dated July 28,1860; and by said Moses H. Green to George A. Green, by deed dated October 19, 1860.</p> <p>The land on the eastern side of the way, and the land at the end of the way, was conveyed by James H. Duncan to Harriet Frye, wife of James S. Frye, by deed dated June 22, 1863, bounded “ thence easterly by land of said Green and a private way twenty-nine feet to a stake,” “ thence northerly seventy and a half feet by a private way twelve feet wide to a stake,” “ together with a privilege of passing and repassing ” “ from Court Street to said land in the twelve feet private way mentioned.” This conveyance included also the land now owned by the wife of Calhane. Harriet Frye and her husband conveyed the entire ot to John P. Gilman, by deed dated April 30, 1867, and Gilman subsequently conveyed part of the premises to George A. Green, by deed dated March 31, 1868, the same day on which Green conveyed to the plaintiff.</p> <p>It also appeared that Gilman subsequently conveyed the residue of what he had purchased of Mrs. Frye, to the defendant Calhane, by deed dated January 1, 1870, bounded “by said way,” “ with the privilege of passing and repassing in the private way from Main Street to the land described, and also from Court Street to said land in a twelve feet private way laid down by said Duncan. ’ December 1, 1870, Calhane conveyed the estate, so conveyed to him by Gilman, through a third party to his wife. All the deeds mentioned the way and purported to convey rights of way in it.</p> <p>The court found as a fact, that subsequent to his purchase, Goss erected on the easterly lot of land, on the southwesterly corner of the lot as shown on the plan, the building called on the plan, “ a carriage-house.” This building was erected in 1868, and in the fall of that year, he built a shed over the way in question, connecting the carriage-house with his dwelling-house, as shown on the plan. This shed was a substantial structure, about twelve feet high, supported by the adjoining buildings, and by posts which were supported upon timbers laid along on the ground by the sides of these buildings, and across the way at the rear of the shed. It was covered by mastic roofing, and was open on the side towards Court' Street, except near the top, and was boarded at the back closely, from top to bottom.</p> <p>In September, 1871, Calhane and Cook entered on the premises and demolished this structure.</p> <p>At the time of the conveyance by Duncan to Frye, there was on the premises a fence extending from the place where the southwestern corner of the plaintiff’s carriage-house now stands, in a westerly direction, across what is now claimed as a way to^ Court Street. This fence was an old fence, and had been there for many years, and was continued in that position, though more or less dilapidated, from that time until after the plaintiff purchased the estate, March 31, 1868. When Gilman owned both estates, on the easterly side of the way, he used the way to Court Street, as well as the way to Main Street; yet when he conveyed part of the estate to Green, there was a substantial fence, though in imperfect repair, erected on the place above described, practically obstructing any access from the residue of his estate to Court Street, and practically obstructing any access to Main Street from the parcel conveyed to Green.</p> <p>When Duncan conveyed to Peaslee in 1852, the way in question was obstructed by a fence, in the place above described, and the way as actually laid out and used did not extend beyond this fence.</p> <p>Evidence was introduced, however, tending to show that the fence was at one time attached to the end of the building, on the premises conveyed by Gilman to Calhane, and called the “ bowling alley,” and that the way was open to that point. And Mr. Frye testified, that while his wife owned the premises, he permitted the fence to be substantially removed by boys for the purpose of a bonfire, and that for sometime thereafter there waa no fence across the “ way.”</p> <p>Upon these facts and upon the deeds, the presiding judge ruled that Mrs. Calhane had no easement over the land and way from her premises to Court Street, and found for the plaintiff in the first action with damages in the sum of eighty-five dollars; and for the defendant in the second action.</p> <p>The defendants in the first action and the plaintiff in the second alleged exceptions.</p>

Bill in equity for instructions, filed by Andrew Haraden, the executor under the will of John Henfield, against sundry persons claiming under the will as the next of kin of Joseph Henfield, a deceased son of the testator. The case, as it appeared from the bill and answers, on which it was reserved by Morton, J., for the determination of the full court, was as follows : The testator died November 25, 1866, and letters testamentary were issued to the executor January 1, 1867.

<p>Writ op entry to recover Long Beach, now within the town of Nahant, and within the ancient boundaries of Lynn. Trial by jury was waived, and the case was heard by Gray, J., who made a report thereof, in substance as follows :</p> <p>It was admitted that the average height of the natural crest of the beach above ordinary high water mark was six feet, and that the length of that part of Long Beach now within the town of Nahant, being the demanded premises, was 7580 feet, and of the part still remaining -within the boundaries of Lynn, 1500 feet.</p> <p>The demandants offered the following records and documents, which were admitted subject to the tenant’s objection, and reserving the question of their competency:</p> <p>1. Records relating to the town of Lynn, from the first volume of the Massachusetts Colony Records :</p> <p>July 5, 1631. “ It is ordered there shalbe levyed out of the severall plantations the somme of thirty pounds for the makeing of the creeke att the newe towne, viz.”: [Assessing Saugus and nine other towns.]</p> <p>May 9, 1632. “ It was ordered that there should be two of every plantation appointed to conferre with the court about raiseing of a publique stocke ”: [Naming two persons for Saugus and seven other towns respectively ]</p> <p>November 20, 1637. “ Saugust is called Linn.”</p> <p>March 13, 1638-9. “ It is ordered, that the bounds betwixt Salem and Linn shall begin at the cliffe by the sea where the water runs, as the way lyeth from Linn to Marble Head, and run upon a straight line to the long pond, by the ould path that goeth to Linn, at the south end thereof next to Linn, and the whole pond to bee in Salem bounds ; and from that pond to run upon a straight line to the iland in Mr Humfreys pond, and from that iland to run upon a straight line to 6 great pine trees marked, called by those 6 men that laved out the bounds, the 6 Mens Bounds: and from those trees to run upon a straight line unto another little pine tree marked, by the side of a little hill beyond the trees, to run upon the same line, so farr as our bounds shall reach into the countrey.”</p> <p>March 13, 1638-9. “ Linn was granted 6 miles into the countrey, and Mr Hauthorne and Leift. Davenport to veiw and informe how the land beyond lyeth, whether it may bee fit for another plantation or no.” “ Mr John Oliver, Mr Robert Keayne, and Richard Sadler are appointed to run the bounds betweene Boston and Linn.”</p> <p>September 9, 1639. “ The petition of the inhabitants of Linn for place for an inland plantation at the head of their bounds is granted them 4 mile square, as the place will affoard, upon condition that the petitioners shall within 2 years make some good proceeding in planting, so as it may bee a village fit to conteine a convenient number of inhabitants, which may in dewe time have a churche there, and so as such as shall remove to inhabite there shall not withall keepe their accommodations in Linn above 2 yeares after their removall to the said village, upon paine to forfect their interest in one of them, at their owne election, except this court shall see just cause to dispence further with them; and this village is to bee 4 mile square at least, by just content.”</p> <p>2. Extracts from records of the town of Lynn since 1691, (it being admitted that the earlier records of the town were destroyed by fire in that year,) showing that on June 23,1691, “ It was voted Mr Hubbard of Branttry should give three shillings for every twenty tunn of rock mine that hee has from Nahant to the town for the town’s use and hee to have soc much as the town sees convenient ”; a vote of October 18, 1695, choosing a committee “ to defend the inhabitants of the town in the lands called Nahants,” in a suit brought by Mrs. Mary Daffine in the Inferior Court, post, 438; votes from 1698 to 1704, imposing fines up’on any persons cutting down trees on Nahant; and frequent votes between 1709 and 1774, granting to persons named the right for a year to all the shells, or clams and shells, upon Nahant Beach, for a certain sum to be paid to the town; and in various years afterwards, appointing committees to take care of the beaches, providing for the repair and preservation of the beaches, and prohibiting all persons not inhabitants of the town from carrying off sand, shells, stones or seaweed from the beaches.</p> <p>3. A deed dated September 4, 1686, acknowledged May 31, 1687, and recorded June 28, 1704, from David Kunkshamooshaw and other Indians, reciting that they were the nearest of kin and legal successors of “ old Sagamore George No Nose, so called, alias Wenepawweekim, sometime of Rumney Marish, and sometimes at or about Chelmsford, of the Colloney of the Massachusetts, so called, sometimes here and sometimes there, but deceased,” “ whom wee affirme was the true and sole owner of the lands that the townes of Lynn and Reading stand upon, and notwithstanding the possession of the English dwelling in those townships of Lynn and Reading aforesaid, we the said ” grantors “ doe lay claim to the lands that these two townes aforesaid Lynn and Reading stand upon and the dwellers thereof possess, that the right and title thereto is ours and belongs to us and ours; but howsoever, the townships of Lynn and Reading having been long possessed by the English, and although we make our clayme, and the selectmen and trustees for both townes aforesaid pleading title by graunts of courts and purchase of old of our predecessor George Sagamore and such like' matters, &c., we the claymers aforenamed,” “ considering the arguments of the selectmen in both townes, are not willing to make trouble to ourselves nor old neighbours in those two towns aforesaid of Lynn and Reading ; ” and therefore, in consideration of the sum of sixteen pounds sterling paid to the grantors “ by Mr, Ralph King, William Bassett, Senr., Mathew Farrington, Senr., John Burrell, Senr., Robert Potter, Senr., Samuel Johnson, and Oliver Purchas, selectmen in Lynn in the County of Essex in New England, trustees and prudentials for and in the behalf of the purchasers and now proprietors of the townships of Lynn and Reading,” “ doe hereby acquit, exonerate and discharge the said Mr. Ralph King, William Bassett, Senr., with all and every of the selectmen afore named, trustees and prudentials, together with the purchasers and now proprietors of the said townships of Lynn and of Reading, their heirs executors administrators and assignes forever ; ” “ and by these presents doe fully, freely, cleerly and absolutely give and grant a full and firm confirmation and ratification of all grants of court and any sort of alienation formerly made by our predecessor or predecessors, as alsoe all our owne elayme of right, title, interest and demand,, unto them the said Mr. Ralph King, William Bassett and the rest, selectmen forenamed, trustees and prudentials for the Town of Lynn, and the Worshipfull Mr. John Browne, Col. Jeremiah Sweyn and Leiut. William Harsey, trustees and prudentials for the Town of Reading, to their heirs and assigns forever, to and for the sole use, benefit and behoofe of the purchasers and now proprietors of the Towneships of Lynn and Reading aforesaid, etc. All the said Townships of Lynn and Reading joyning one to another, even from the sea, where the line beginneth between Lyn and Marblehead, and so between Lynn and Salem as it is stated by those Townes and marked, and so to Ipswich river, and so from thence as it is stated betwixt Salem and Reading, and as the line is stated and runne betwixt Wills hill, and as it stated and runne betwixt Reading and Andover, and as it is stated b.etwixt Oburne and Reading, and as it is stated and runne betwixt Charlestowne, Maldin, Lynn and Reading, and upon the sea from the line that beginneth Lynn and Marble and Salem to divide the Townes aforesaid, so as well from thence to the two Nahants, viz. the little Nahant and the great Nahant as the sea compasseth it about round, and soc to the river called Lynn river and Rumney Marish river or creeke unto the line from Brides brooke to the said creeke, answering the line that is stated between Lynn and Boston from the said bride brooke up to Reading.” “ To have and to hold all the said Townships of Lynn and Reading, as well the two Nahants aforesaid, the little and the great Nahant, as they are encompassed by the sea, with their 'beaches from the great Nahant to the little and from the little Nahant homeward -where Richard Hud now dwelleth, and so to Mr. Kings,” “ unto the said Mr. Ralph King, William Bassett and the rest, selectmen in behalfe of Lynn, and the Worshipful Mr. John Browne and the rest aforenamed for Reading, all trustees and prudentials for the Towneships of Lyn and Reading, to them and their heirs and assignes forever, to and for the sole use benefit and behoofe of the purchasers and now proprietors of the said Towneships of Lynn and Reading: ” With covenants of seisin and right to convey, quiet enjoyment, general warranty, and for further assurance.</p> <p>4. Records of the proceedings in a case in the County Court in Essex and in the Court of Assistants on appeal in 1657, and again upon review in both courts in 1678, in which Thomas Dexter sued the inhabitants of Lynn “in an action of the case concerning the title and interest of the said Thomas Dexter unto a parcell of land or ground commonly called Nahant, and for trespasse done thereon by keeping of cattle and cutting wood and giveing out lotts for building of houses and planting thereon, to the injury of the said Thomas Dexter; ” in which successive verdicts and judgments were rendered for the defendant.</p> <p>Also certain depositions on file in that case, the substance of which is stated in the answer of the inhabitants of Lynn to the petition of Mary Daffine to the Governor and Council, post, 443— 446, note.</p> <p>5. Copies, from the archives of the Commonwealth, of proceedings before Governor Andros and his Council in 1687-88, which are printed in the margin.*</p> <p>6. This record : “ At an Inferior Court of pleas holden at Salem December 31, 1695. Mrs. Mary Daffine and Mrs. Martha Padishale of Boston, widows, and heirs of Richard Woodey of Boston, deceased, plaintiffs versus John Atwills junior of Lin in an action of trespass of trespass on the case etc. according to writ dated September 30, 1695. The plaintiffs being called three times made default and are nonsuited. The judgment of the court is that plaintiffs pay unto defendants costs.”</p> <p>7. The following petition, dated November 1, 1861, and signed by a committee of the town of Nahant: “ To the Honorable the Mayor, Aldermen and Common Council of the city of Lynn. Your petitioners, a committee of the town of Nahant, would respectfully represent that the committee in the division of the common lands in Nahant did leave on the westerly end of Little Nahant so called, a certain piece of land over which the highway now runs, for the purpose of repairs on said way and beaches, as your petitioners fully believe, and whereas certain individuals have trespassed on said land by erecting fences and taking gravel and stone therefrom, and whereas in the separation of the town of Xah ant from the city of Lynn, Xahant was to receive its proportional part of the city property, and whereas those lands were not included in the settlement with the city of Lynn, the fee simple now belongs to the city of Lynn and the town of Nahant. Your petitioners would therefore ask of the city government to quitclaim by deed their interest in said lands of Nahant.”</p> <p>This petition was admitted to relate to the pasture or upland at the end of the beach, and was drawn up after the decision of the Superior Court and before the decision of this court in the case of Simmons v. Nahant, 3 Allen, 318.</p> <p>The tenants put in evidence, subject to the demandant’s objection, extracts from the records of the town of Wenham, established by the General Court in 1643, 2 Mass. Col. Rec. 44, and of the town of Beverly, established in 1668, 4 Mass. Col. Rec. pt. ii. 407, and both previously parts of Salem, showing that in the latter part of the seventeenth century each of those towns made grants of lands within its limits. It was admitted that no grant was made by Salem to Wenham or Beverly of any lands within their boundaries.</p> <p>The tenants also put in evidence the Sts. of 1848, c. 200, 1852, c. 214, and 1854, c. 294, regulating the taking of seaweed, sand, stones, gravel and mud from the Long Beach and other beaches in Lynn and Nahant; the St. of 1853, c. 114, incorporating the town of Nahant; the record of the division of the common lands of Lynn in 1706 ; an award between the city of Lynn and the town of Nahant in 1853; an agreement of settlement between them in 1854; and other documents; none of which need be stated.</p> <p>It appearing that the decision of the case depended mainly upon the construction and effect of written evidence, the case was reserved, by consent of the parties, for the decision of the full court upon so much of the facts and documents above stated as should be held competent and admissible, with power to draw such inferences as a jury would be warranted in drawing, and to enter judgment for either party.</p> <p>This case was argued in January, 1873.</p>

<p>Tile extent to which a witness may be cross-examined upon otherwise immaterial facts, for the purpose of showing his bias or of testing his credibility, is ordinarily a matter of discretion to the exercise of which no exception lies.</p>

Indictment for keeping and maintaining a tenement used for the illegal keeping, and for the illegal sale of intoxicating liquors. Upon the trial in the Superior Court, before Pitman, J., a witness for the government testified that he took up a tumbler in the defendant’s place, and smelled of it, and that it smelled cf ale.

Complaint under St. 1869, c. 415, § 44, to the Police Court of the town of Gloucester, for a warrant to search for intoxicating liquor “ kept and deposited by William Darcy, of said Gloucester, in a certain building situated in the rear of the tenement situate on the southerly side of Front Street, and under the store of Alexander Pettigrew on said street.” The description of the premises given in the warrant was the same as that given in the complaint.

Indictment alleging that Thomas Thornton, “ having the charge and custody of a certain animal, to wit, a dog, did then and there knowingly and wilfully authorize and permit said dog o be subjected to unnecessary torture, suffering and cruelty, by men and there knowingly and wilfully suffering and permitting said dog to be bitten, mangled and cruelly tortured by a certain other dog.” Before the jury was empanelled and sworn, and before trial, the defendant made in the…

<p>A man who has been lawfully married in this Commonwealth, and whose wife has here obtained a divorce from the bond of matrimony for his adultery, (in which case he is prohibited by our statutes from marrying again without leave of the court,) and who, without having obtained leave of the court, and being still a resident of this Commonwealth, is married to another woman in another state according to its laws, and after-wards cohabits with her in this Commonwealth, the first wife being still alive, is not liable to indictment for polygamy here under the Gen. Sts. c. 165, § 4, without proof that the second wife was a resident of this Commonwealth, and that he and she went into the other state to evade the provisions of our statutes.</p>

<p>& surety upon an administrator’s bond of which there has been a breach, by becoming himself administrator, by indorsing upon the bond a receipt for the amount due thereon as money received from himself as surety, and by charging himself with the same in his inventory, relieves the first administrator from his liability to the estate, and can maintain against him an action for money paid for his use.</p>

<p>A lease of a “ building ” conveys the land under the eaves, if that land be owned by the the lessor.</p> <p>The erection, by authority of the lessor, of a wall upon land under the eaves of a leased building is a breach of the covenant of quiet enjoyment.</p>

<p>Bill if equity to redeem a mortgage given by the plaintiff to the defendant’s testator. To the original bill the defendant answered, that the full amount of the note secured by the mortgage, with interest, was due and must be paid before redemption, The plaintiff then amended his bill, alleging usury in the making of the note and mortgage. This amendment was allowed by the court, as reported 99 Mass. 315. The defendant still claimed the full amount of' his note and interest, and the case was committed to a master to find the amount due, and to be paid on redemption by the plaintiff. A hearing was had before the master, who found the fact of usury as alleged. This report was excepted to, upon the ground that it was against law, and not justified by the evidence. The exceptions were heard by the whole court, the evidence being reported in full by the master, and the findings of the master were affirmed as to the usury, and three times the amount of the usury found was adjudged to be deducted from the amount due on the mortgage note. 104 Mass. 400. The case was again committed to a master to state an account based on the opinion of the full court, and to make the deduction of three times the amount of the usury.</p> <p>The master made a second report, stating an account upon the principles established by the court, which was not excepted to by either party. The fact was found by the master in his first report, and affirmed by the court, that the plaintiff had made no demand on the defendant for an account before bringing his bill to redeem. Both the plaintiff and the defendant moved for costs. A decree was made permitting the plaintiff to redeem on payment of a fixed sum before a certain day, which was complied with, and the mortgage was redeemed. In the same decree it was ordered that the question of costs to either party should be reserved for the full court on the report of the presiding justice. And it was so reserved by Colt, J.</p>

<p>Contract, with a count in tort, against the defendants as common carriers, to recover damages for the partial loss by fire of 122 barrels and 2 boxes containing 29,890 pounds of wire.</p> <p>At the trial in this court, before Ames, J., it appeared that the plaintiffs, a manufacturing corporation in the city of Worcester, sent the wire to the defendants’ freight station in Worcester, May 23, 1868, and stated that it was to be transported to New York; that the wire was delivered to the defendants’ freight agent, who gave the plaintiffs a receipt therefor, as follows :</p> <p>“ Worcester, May 23, 1868. Received of Washburn & Moen Manufacturing Company, in good order, 122 bbls., 2 boxes, 29,890 lbs., for transportation, marked and numbered as per margin. For Providence and Worcester Railroad Corporation, J. E. Bacon.”</p> <p>[Marginal Marks.]</p> <p>“ Washburn & Moen Manufacturing Company, New York. Freight Paid.”</p> <p>From April 1 to May 23, the plaintiffs had delivered to the defendants’ freight agent at Worcester very large amounts of wire destined to New York, taking receipts like the one taken on this occasion, with the mark on the margin as in this case, “ freight paid,” without the freight having been then paid. Wire had been so delivered to the -defendants for transportation several days in each week between April 1 and May 23. The freight was paid in this manner; the defendants presented bills of freight of each shipment of merchandise to the plaintiffs soon after the shipments, and at the end of the week the plaintiffs paid all their bills for the week, and took a receipt therefor; the bills were like the one taken in this case, which is hereafter set forth, and the receipt like the receipt which is hereafter set forth. This course was adopted to prevent the trouble to both plaintiffs and defendants of paying and receiving the amount of freight on each several shipment as it was made. A duplicate of a receipt like the one given above was forwarded with the merchandise. The defendants’ railway extended from Worcester to Providence, R. I., its rails running upon the wharf of the Providence and New York Steamship Company, which company ran steamers from Providence to New York by the way of the Providence River, Narragansett Bay, Atlantic Ocean, and Long Island Sound. The defendants collected of the plaintiffs the whole freight money on all merchandise thus sent from Worcester to New York, at the rate of 20 cents per hundred pounds. The plaintiffs did not know how the freight money from Worcester to New York was divided between the companies, but they knew, when they delivered the goods in question and the goods previously delivered to the defendants, that the defendants’ railroad extended only from Worcester to Providence, and that the goods in question and the other goods would at Providence be delivered by the defendants to the steamship company, and would be carried by that company by water from Providence to New York, and they supposed and believed that there would be some division between the two companies of the freight money. All the merchandise delivered by the plaintiffs to the defendants was delivered on board of the steamship company’s steamers at Providence, and taken to New York, and upon its arrival the consignees were notified and took it from the steamship company’s wharf. May 25, 1868, in pursuance of the usual course of business, the defendants’ agent who signed the receipt for the merchandise sued for, presented a bill, in the following form, for the freight money to the plaintiffs : “ Providence & Worcester Railroad and Neptune Steamship Companies’ Line between Worcester and New York. Daily each way. May 25, 1868. W. & M. M. Co., Dr., for transportation of merchandise to New York, from Worcester via Providence, 122 bbls. wire, 2 boxes, 29,890 lbs., §59.78. Not responsible for contents of cases boots and shoes, unless strapped with iron or wood. Leakage of liquors in all cases at owner’s risk. No damage allowed unless notified before the goods leave the company’s pier. Received payment.” And June 1, 1868, the plaintiffs paid the defendants the freight for the preceding week, amounting to $992, which included the charges for the freight of the merchandise sued for, and took a receipt as follows: “ Worcester, June 1,1868. Received of Washburn & Moen Mf. Co., nine hundred and ninety-two dollars, in payment of freight bills to date. Julius E. Bacon, per Marshall, G. F. Agt.” The goods sued for were transported to Providence by the defendants, and were then delivered by them.on board one of the steamship company’s boats, which arrived at New York, Sunday, May 24, 1868, where she was burned as she lay at the pier, and the wire in question was damaged.</p> <p>Upon this evidence, and other evidence which proved to be immaterial, the case was reserved for the determination of the full court, with power to make such inferences from the facts stated as a jury would be justified in doing.</p>

<p>Action in which the declaration contained a count in contract alleging that the defendants were common carriers ; that on May 22, 1868, the plaintiffs delivered to them 30 cases of unbleached cotton cloth, containing 39,691 yards, of the value of $7000, which they agreed to transport safely from Providence to New York for a compensation agreed to be paid; that they did not transport it safely, but that while being transported it was injured by fire to the amount of $6000. A further count, in tort, alleged that the defendants so carelessly and negligently conducted themselves that the cloth was burned while being transported. Writ dated September 26, 1870.</p> <p>The defendants in their answer, among other things not now material, relied upon proceedings had in the District Court of the United States for the Southern District of New York, under the act of Congress of 1851, a. 43, entitled “An act to limit the liability of ship-owners and for other purposes.” *</p> <p>At the trial in this court, before Ames, J., it appeared that the cotton cloth mentioned in the declaration was delivered at Lowell to the Boston & Lowell Railroad Company to be convened to New York, — by railroad to Providence, Rhode Island, and thence by the defendants’ line of steamers; that it was delivered in Providence, to the defendants, May 23, 1868, and put on board their steamer the Oceanus; that the steamer sailed that afternoon, and arrived in New York the next morning, Sunday, but none of the cargo was discharged that day; that Sunday afternoon a fire, which originated in one of the defendants’ buildings on the pier, burned the steamer to the water’s edge, and destroyed or damaged the cloth and nearly the whole of her other cargo, which belonged to various shippers; that the defendants, having been sued in the present action, and other like actions having been brought against them, for injuries to the cargo, in New York and elsewhere, and desiring to contest their and the steamer’s liability and to claim the benefit of the act of Congress, filed in the District Court of the United States for the Southern District of New Y ark a libel, under the Rules 54-57 of Practice in Admiralty, setting forth the facts and circumstances; that upon this libel the District Court caused an appraisement to be had of the amount of the defendants’ interest in the steamer and in her freight for the voyage, and made an order for the giving of a stipulation, with sureties, for its payment into court whenever ordered; that the defendants entered into a stipulation in conformity with the order, and a monition was issued against all persons claiming damages for the loss occasioned by the fire on board the steamer, citing them to appear before the court, and make proof of their claims, on or before October 15, 1872, and designating George F. Betts, Esq., as the commissioner before whom the claims should be presented, and ordering public and other notice of the monition; that this notice had been served on the plaintiffs as well as on all other claimants; and the court made an order upon the plaintiffs and the other claimants, which had been served, restraining the further prosecution of all and any suit or suits against the defendants in respect of any such claim or claims.</p> <p>The plaintiffs contended that the fire occurred, and the steamer and their merchandise was burned, by the neglect of the defendants, and not by their design; and the defendants denied any neglect. The plaintiffs also contended that if the fire occurred by the neglect of the defendants, it was necessarily with their privity or knowledge; this the defendants denied.</p> <p>So much of the steamer and her machinery as was not defrayed was sold by the defendants November 21, 1868.</p> <p>The defendants contended that the plaintiffs could not maintain this action, the District Court alone having jurisdiction. Deeming the determination of these questions important, the presiding judge proceeded no further with the trial, but reported the case for the consideration of the full court.</p> <p>’ If upon the foregoing facts the plaintiffs could not maintain this action, they were to become nonsuit; or if the case ought to be continued to await the case in the District Court, that disposition was to be made of it;' otherwise, the case was to stand for trial under such directions as the court should give.</p>

<p>Ridges and hillocks of ice formed by the freezing of melted and trodden snow upon a city sidewalk, making the surface uneven and peculiarly dangerous, may be found by a jury to he defects for which, under Gen. Sts. c. 44, § 22, the city is liable to one hurt by reason either of stumbling against, or of slipping upon them.</p>

Contract upon a recognizance, to appear and take the oath for the relief of poor debtors, entered into before a master in chancery in the county of Middlesex, where the arrest was made, by one Broderick as principal, and the defendant as surety.

<p>A., by deed of warranty, with covenants to the “grantee, his heirs and assigns,” and in consideration of one dollar paid by B., (his brother,) “ trustee of ” C., (another brother,) and of “the love and affection” he bore to C., conveyed a parcel of land to B., “it being my intention ” “ to convey ” to B. “ in trust for ” C.; “ to have and to hold to the said grantee, his heirs and assigns, to his and their use and behoof forever.” Held, that upon the death of C. a trust resulted to the grantor.</p>

<p>A loss under a policy of» marine insurance made to the insured by name " for whom it concerns, payable to them or order,” is subject to set-off of sums due upon the insured’s premium notes for other policies, although the policy is made for the benefit of, and assigned to, a mortgagee of the insured vessel, if the insurer has no notice of the assignment before the time when the claims are mutually due.</p>

Contract to recover back a tax paid under a written protest. Writ dated October 2, 1872.

Contract, with a count in tort, against the defendants, as common carriers, for a failure to transport and deliver safely thirty bales of cotton at Shannock Mills, Rhode Island, to Aldrich & Co., the consignees.

<p>Contract to recover $200 which the plaintiff alleged the defendant owed him “ for a negotiable promissory note [described] sold and delivered by the plaintiff to the defendant.”</p> <p>The note was as follows : “ Boston, April 18, 1871. Four months after date I promise to pay to the order of S. Dillingham three hundred dollars. Payable at any bank in Boston. J. R. Dillingham.” Upon the back of the note was the signature “ S. Dillingham.”</p> <p>At the trial in the Superior Court, before Devens, J., the plaintiff introduced evidence to show that the maker of the note sold it to him about two weeks after its date for $275, and he testified that he did not know the signature of either party to the note; that he never heard anything about the indorsement, except that once the defendant, before he purchased the note, “ intimated to me that the indorsement might be a forgery.”</p> <p>The plaintiff introduced evidence to show that the signature of the maker of the note was genuine, but no evidence was introduced as to the genuineness of the signature of the payee. There was evidence to show a sale and delivery of the note to the defendant, February 20,1872, after the note had matured; that the writing on the back of the note, purporting to be the signature of the payee, resembled in some respects the signature of the maker, which signature it was agreed was genuine; that the plaintiff bought the note of the maker in the same condition as when he sold it to the defendant, and that the defendant knew this when he bought it; that the plaintiff did not know the indorser, and did not know whether the indorsement was genuine; that the defendant knew, when he bought the note, what knowledge the plaintiff had ; that when the defendant bought the note, he told the plaintiff he would give him $200 and “ take "his chances; ” that the defendant then had three or four other notes similar to this, with similar indorsements, and signed by the same party; that before he bought the note of the plaintiff, he spoke of it as the note the plaintiff had bought of the maker; and that the plaintiff did not indorse the note, or make any representations as to its goodness or as to the genuineness of the signatures.</p> <p>On the foregoing facts the defendant asked the court to rule :</p> <p>“ 1. That in order to recover under this form of declaration, the plaintiff must show the existence of a negotiable promissory note which was the subject of the trade between himself and the defendant. 2. That if the jury were of the opinion that the signature of the payee was forged, the plaintiff could not recover, and that the alleged note would not, under such circumstances, be a sufficient consideration for a promise to pay any sum whatever therefor. 3. That in order to recover under this form of declaration, the plaintiff must prove the genuineness of the signatures of both maker and payee of the alleged note. 4. That plaintiff cannot recover unless he shows he has conveyed a good title to the alleged note to the defendant, and in order to show a title in himself which he could convey to defendant, he must show genuineness of payee’s signature.”</p> <p>The court declined to rule as requested, but did rule: “ 1. That the evidence for the plaintiff, if true, was sufficient to sustain the declaration, and to make out a prima facie case for him in the absence of any evidence on the part of the defendant.</p> <p>“ 2. That if the parties entered into a negotiation for the purchase and sale of the alleged note, there being doubts of the genuineness of the signature of payee known to both parties, and the defendant agreed to buy the alleged note and take his chances, it would be of no consequence whether or not payee’s signature was forged, the bargain would be lawful, and if defendant took the note into his possession under a delivery from the plaintiff, the price agreed upon between the parties might be recovered.”</p> <p>The court also ruled that the note was sufficiently described in the declaration.</p> <p>The jury found a verdict for the plaintiff, and the defendant excepted.</p>

Bill in equity filed September 7, 1871, alleging that the plaintiff corporation was the owner of certain real estate in Boston, situate on the corner of Boylston and Washington Streets, upon which was a building called the Boylston Market; that the board of aldermen of Boston, May 9, 1870, voted to take certain land of the plaintiff, and the buildings upon it, for the purpose of widening Boylston Street; that by virtue of that vote, the city took 1729 feet of the plaintiff’s…

<p>Actions of contract, one to recover for the use and occupation of the two upper floors of premises numbered four, Lincoln Street, Boston, from November 1, 1871, to February 1, 1872; the other for the use and occupation of the same premises from February 1, 1872, to November 1, 1872.</p> <p>The first writ was dated February 10, 1872, and the second December 5, 1872. The answer in each case was, that the defendant denied “ each and every allegation in the plaintiff’s declaration.” Both cases were tried together.</p> <p>At the trial in the Superior Court, before Lord, J., the defendant conceded that he was liable for $66.66 and interest from the date of the writ, being rent from November 1, to December 1, 1871.</p> <p>The plaintiff testified that he let the premises to the defendant, under an oral agreement, for five years from May 1, 1871, at a yearly rent of eight hundred dollars, payable quarterly on the first day of each quarter, after May 1,1871; that the defendant went immediately into the occupation of the premises, and on October 23, 1871, sent the plaintiff a written notice, of which the following is a copy: “ Boston, October 23, 1871. Mr. Boynton — Dear Sir: — I find that the building of the store in the rear of the rooms that I occupy has ruined the light for my business, and I shall be obliged to leave them. This is to notify you that I shall vacate and deliver up to you the two rooms I now occupy, being the two upper floors of store No. 4 Lincoln Street, Boston. Yours truly, N. Bodwell.”</p> <p>The plaintiff further testified that he did not know when the defendant left the premises ; that he demanded the rent for the quarter ending February 1, 1872, of the defendant when due, who refused to pay it, and thereupon the bill was placed in the hands of his attorneys for collection, and that no part of the rent claimed in the actions had been paid ,• that the defendant called at his office some time after the notice was received, and offered to compromise the matter by paying $100, which he refused to accept, and informed him that his notice was not legal and sufficient, and that he should hold him responsible for the rent, that he never consented or agreed to allow him to leave the premises, and never took possession of them, nor entered, nor relet, nor offered to relet them during the period for which a recovery was sought in these actions; that he had never assumed or exercised any control over them until November, 1872, when he let them to other parties, and that the defendant has never returned the keys.</p> <p>On cross-examination the plaintiff testified that, after he received the notice, he went to see the defendant and tried to induce him to stay, and offered to take' off $100 from the rent rather than to have him leave, and offered to put in more windows to improve the light, so as to suit him; that he made out in his own handwriting three bills or receipts, each for a month’s rent, but that he did not present them till the first of August, 1871, when they were all paid together; that he often made out his bills monthly when the rent was payable quarterly; that only one bill or receipt was made out for the quarter ending November 1, 1871, which was paid in instalments indorsed on the bill as follows: “ December 9th, 1 month’s rent, $66.66.” " December 30th, paid $40, for rent.” “ January 13th, 1872, received balance, $93.34; ” that the last payment was made to the plaintiff’s attorneys, in whose hands the bill had been placed for collection. The plaintiff also testified upon cross-examination that November 1, 1871, he made out the bill dated November 1, 1871, and presented it to the defendant, at 4 Lincoln Street, on the 1st, 2d, or 3d day of November, 1871, but that he could not recollect whether or not he then talked with him about the notice, but there was some conversation about changing the defendant’s sewing machines so as to get more light.</p> <p>The plaintiff called Samuel T. Eames, the owner of the premises, of whom the plaintiff hired, who testified that the plaintiff told him that the defendant was going to leave; that the plaintiff wished he would see the defendant and induce him to stay; that he went to see the defendant and asked him why he was going to leave, and the defendant said he could get a cheaper rent, and also said something about the light; that he then told the defendant that the plaintiff had authorized him to say'that he would take off $100 if he would stay; that the defendant did not say definitely whether he would leave, but when the witness left him, he thought the defendant would stay</p> <p>The defendant testified that he was a manufacturer of ladies’ fine shoes and slippers ; that he required light rooms to carry on his business in; that he hired the premises in April, 1871, at $800 a year, payable monthly, the rent to begin May 1, 1871; that at the time he hired the rooms the space or lot in the rear was open; that he thought they might build on Summer Street and cut off his light, and he spoke to the plaintiff about it, who said there was no danger of any building being put up so as to affect the ■light; that he moved into the premises the last of April, 1871; that, after he moved in, a building was erected in the rear, eight or ten feet distant from the rooms occupied by him, and extending three or four feet above the building in which his rooms were ; that this building obstructed the light of his rooms so that he could not carry on his business there; that he could use but one half of his rooms when he gave his notice; that about a week after he gave the notice, the plaintiff came to see him and seemed anxious to have him stay, and said he would take off $100 a year from the rent and would put in more windows if he would stay; that he told the plaintiff that that would make it no better; that he told him he would try and alter or change his sewing machines and see if he could use the rooms, but found he could not; that after that, Mr. Eames came to see him and tried to induce him to stay, and said that the plaintiff said he would take off $100 if he would stay; that he vacated the premises about the middle of November, 1871; that he placed the keys to the rooms in an envelope and sent them by a boy then in his employ, to the plaintiff’s office in Boston ; that the plaintiff never made any objection to the notice; that after he had been sued he saw the plaintiff at his office; that he went to see if he could compromise with him, but he swore he would not take anything but the whole.</p> <p>Upon cross-examination the defendant testified that the plaintiff said nothing about the notice in any way at any time; that he did not leave because he could get a cheaper rent, but on account of the light; that he objected to the bill or receipt dated November 1, 1871, because it was not made out in monthly bills, but afterwards paid the bill in instalments, which were indorsed on it.</p> <p>The defendant called Thomas O. Potter, a tenant of the plaintiff, occupying rooms adjoining those occupied by the defendant, who testified that soon after the defendant left the rooms the witness tried to hire them of the plaintiff, and afterwards spoke to him two or three times about hiring them; that he wanted the rooms, and in October, 1872, he hired them of the plaintiff, and moved in the last of October, but the rent was not to begin till November 1; that when he first went to see the plaintiff about the rooms he said something about not having got through with the defendant.</p> <p>The plaintiff on being recalled, testified that when the defendant hired the rooms, he did not agree that he should have good light; that he did not know who owned the land the rear building was built on; that he had no definite application for the rooms till November 1, 1872. Upon cross-examination he said that he knew that Mr. Potter was in want of rooms, and tried to rent him other rooms.</p> <p>The plaintiff objected to the defendant’s evidence as to light, and also as to the evidence tending to show a waiver of notice, on the ground that such evidence was inadmissible under a mere general denial in the defendant’s answer, and further objected to the evidence as to light, for the reason that no agreement for light, express or implied, had been shown between the parties; but the court admitted the evidence under objection.</p> <p>Upon the foregoing evidence the plaintiff requested the court to rule and instruct the jury as follows :</p> <p>“ 1. There is no sufficient legal evidence to show any waiver of notice or of the defect in the notice, or to show a resumption of possession of the premises on the part of the plaintiff, or to show in any manner a termination of the defendant’s tenancy at any time during the period for which the plaintiff seeks to recover in these actions, or to show that the defendant has been discharged in any manner from his liability to pay the rent claimed by the plaintiff during said period. 2. It is immaterial whether the rent was payable monthly or quarterly. 3. Under a general denial, evidence tending to show a waiver of notice or a resumption of possession on the part of the plaintiff, or that the tenancy has in any manner been determined, is incompetent and immaterial and is not to be considered by the jury.”</p> <p>But the court refused to so rule and instruct the jury, but instructed them that the notice in itself was insufficient, and under instructions, which were not excepted to, as to what would be a waiver of a strict legal notice to quit, requested the jury to answer the two following questions :</p> <p>“ 1. Was the conduct of the plaintiff in his interviews with the defendant such as reasonably and properly to lead the defendant to understand that the plaintiff waived any irregularity in the notice of October 23, and did he so understand ?</p> <p>“ 2. Was the agreement between the parties that the rent should be payable monthly or quarterly ? ”</p> <p>To these questions the jury answered “ Yes ” to the first, and “ Monthly ” to the second, and thereupon the court ordered a verdict for the plaintiff, for $66.66, and interest from the date of the writ in the first suit, and a verdict for the defendant in the second suit, and the plaintiff alleged exceptions.</p>

<p>In an action for the breach of an agreement for an exchange of property at values to be found by an appraisement, the plaintiff is entitled to recover the difference between the market value of his property, and the value he would have received in exchange •, and the appraisement made is evidence of the value of the defendant’s property at that time; and the price brought by the plaintiff’s property at a subsequent auction sale, being less than the appraised value, is competent evidence of its value at that time, which, coupled with evidence that it had not depreciated in value in the mean time, will warrant the jury in finding substantial damages.</p>

Contract, upon the following promissory note: “ Boston, March 14, 1865. Twelve months after March 26, 1865, 1 promise to pay to the order of Ivory Bean nine hundred and one dollars, for value received, payable at the on policy No. 36,502. Steamer General Hooker. Ivory Bean.” “ Pay to the order of the Columbian Insurance Company.

Tort against Elijah Upton, Theophilus W. Walker, and Nathaniel Walker, described in the writ as “ copartners and owners of the Danvers Bleachery.” The declaration alleged that while the plaintiff was at work on a building belonging to the defendants, the defendants placed a derrick on the building above the place where he was at work, “ and by reason of the neglect of the defendants and their agents in not properly placing and fastening said derrick, and by reason of their…

<p>One to whom shares of stock had been pledged as collateral security, sold them wrongfully, but for the full market price at the time. Upon a bill in equity to redeem the shares, Held, that the plaintiff was entitled to be placed in the same position as if the sale had not been made; and that the defendant might be charged with the value of the shares at the time of filing the bill.</p>