Volume 114 — Massachusetts Reports

<p>Contract by George K. Palmer, Charles F. Phillips and George D. Bates against the defendant for the non-performance, by a refusal to execute the lease therein specified, of the following contract, signed and sealed by all the parties:</p> <p>“ This agreement made and concluded this thirtieth day of November, A. D. 1870, by and between Addison M. Sawyer, of Athol, in the county of Worcester, and Commonwealth of Massachusetts, of the one part, and George K. Palmer, C. F. Phillips, and Geo. D. Bates, all of Montague, in the county of Franklin, copartners in business under the firm name of Palmer, Phillips & Co., of the other part, witnesseth :</p> <p>“ That the said Addison M. Sawyer covenants and agrees with the said parties of the second part, that he will erect a certain building upon land of Benjamin Estabrook, on the south side of Main Street, in Athol, near the dwelling-house of P. A. Fay, provided he can secure a deed of said land at a cost not to exceed three hundred dollars, and will rent said building to said parties of the second part in accordance with the agreements hereinafter contained. The said Sawyer agrees that said buildings shall be one hundred feet long and twenty-five feet wide, two stories in height, with a basement story underneath. Both stories to be' nine and one half feet high, with windows in both stories not more than four feet apart all around the building, with suitable entrances from the outside. The first story to be celled overhead, and the walls in first and second stories to be lathed and plastered, and the ceiling in the second story also to be lathed and plastered. Two doors in basement and windows sufficient for lighting the same, and a good floor to be erected in basement — the whole to be completed in accordance with a plan already furnished by the parties of the second part, with an additional office room twenty by twenty-five feet.</p> <p>“ The said Sawyer agrees to put shelves in the packing room and benches in the first and second stories suitable for the accommodation of the business of manufacturing wallets, it being hereby understood that this agreement is based upon the consideration that the parties of the second part agree to rent said buildings for the purpose of manufacturing diaries, portemonnaies, wallets, or any other articles of merchandise they may desire, and that they have no right to occupy the same by virtue of this agreement for any other purpose than that of manufacturing as aforesaid. And the said Sawyer agrees that said building shall be completed on or before the first day of May, A. D. 1871, and that he will lease the same to the parties of the second part for and during the term of five years from the said first day of May, A. D. 1871. That the said parties shall for the first two years be exempt from the payment of any rent, and for the remaining three years of the term they shall pay him the annual rent of ten p r cent, on the actual cost of the land and building, including all six ns actually paid for the same, excepting and reserving the cost of shelves and benches, to be put in and given to the said parties of the second part free from cost. And the said parties of the second part agree to lease said building for the term above specified and for the purpose before mentioned, and to pay the rent stated in quarterly payments, and they further agree that they will do no act nor suffer anything to be done in said building which shall increase the insurance on said building beyond what is necessary for the ordinary and legitimate prosecution of the business before mentioned. And the said parties of the second part have the privilege of purchasing said land and building at any time within five years from May 1, A. D. 1871, upon payment of the actual cost of the same, completed as aforesaid.”</p> <p>The declaration alleged that the plaintiffs “ had performed and stood ready to perform each and all the matters and things which they by said contract were bound to do, but the defendant, unmindful of his obligations thereunder, though duly requested, neg’ected and refused to carry out his agreements with the plaintiffs.” The answer denied “ the several allegations of the declaration,” and alleged that the defendant “ was ever ready to perform the contract made with the plaintiffs, but the plaintiffs were never ready to perform the same on their part.”</p> <p>At the trial in the Superior Court, before Bacon, J., evidence was introduced on the part of the plaintiffs, tending to establish the following facts: In the fall of 1870, the defendant sent a message to George K. Palmer, one of the plaintiffs, requesting him to come to Athol, with a view of making an arrangement to remove the business of the firm of Palmer, Phillips & Co. from Montague, where the firm had been previously established in the business of manufacturing wallets, to Athol. Palmer visited Athol, and, after conferences, the contract declared on was entered into between the parties. The defendant erected a building substantially in accordance with the contract. It was not completed May 1,1871, but the plaintiffs waived this non-performance of the contract, and made no demand for a lease until afterward.</p> <p>On May 12, Palmer bought out both his partners, and the firm was dissolved by mutual consent, Palmer taking all its rights and assets and assuming all its liabilities. It was admitted, both by Palmer and by Phillips, that the latter, after leaving the firm, had never individually offered to perform any of the covenants of the contract, had never demanded a lease, and had never been willing personally to carry on the business of manufacturing in the building, erected by the defendant, nor had he been consulted about the bringing of this action, or ever authorized the use of his name as a" plaintiff therein.</p> <p>May 19, Palmer had an interview with Sawyer at Athol. He testified that the first time he met Sawyer he told him he had bought out his partners; that the meeting was casual, and that was all that was said on the subject; that on the same day, in the evening, he rode out with Sawyer, who asked him if he was going to board in the lower village of Athol, and said that he should not have the lease if he boarded there; that he replied that he had not determined to board in the lower village, but that he should not be dictated to, as to where he should board; that Sawyer replied that he should not do any more fixing up, until the question as to boarding in the lower or upper village of Athol was decided | that at this time the building was nearly or quite done, but there was fixing up and grading to be done about it; that on May 31, he was in Athol, and went to the upper village to Sawyer’s place to demand a lease; that he saw Sawyer in the yard of the hotel. “ I asked him if he insisted on the condition that he made the 19th, that I should live in the upper village. He said he most certainly did; that he meant if when he said it, and he meant it now. I told him I was there to demand a lease in the name of the firm. He said we should n’t have it unless I would board in the upper village; that he did n’t get us there for our good looks, but for the business. Sawyer said he did not care whether I took the lease or not, there were other parties ready to take it.”</p> <p>One Glazier testified : “ May 19,1 was in Athol. I rode up with Palmer to see the shop ; I saw Sawyer. He said, Palmer, you have bought out Phillips.’ Palmer said, Yes.’ This was all at that time. I saw Sawyer again that day alone. He hailed me as I was riding by. He said he understood that Palmer, Phillips & Co. had failed. I said ‘ No,’ that they had had a heavy loss in Boston, but that it was all fixed up right. He asked me if Palmer would be all right alone, and I said Yes.’ He asked if I was going in with Palmer. I said, No.’ Sawyer said he had done all his business with Palmer, that he regarded him as the principal man of the firm; that he did n’t think much of Phillips. Before this he came into my store in Boston and said they wanted Palmer there; were bound to have him there, and wanted me to send to him. May 31,1 was present at Athol upper village, in the yard of the hotel, at the conversation there. Palmer said, Do you hold to the conditions you made when I last saw you about the lease.’ Sawyer said, Most certainly.’ Palmer then said, ‘ I demand the lease according to the contract.’ Sawyer said he could n’t have it unless he boarded in the upper village ; ‘We didn’t get you here for your good looks, but for the business; if you board in the lower village, you won’t be thought anything of up here.’ He also said in this conversation, ‘ I don’t care whether you have the lease or not; other parties want it for business I would rather aave than yours.’ ”</p> <p>The following letter, produced by the plaintiffs, was put in evidence by the defendant:</p> <p>“ Athol, June 1, 1871.</p> <p>“ Messrs. Palmer, Phillips & Co. Gents: I have learned this day that a report is current in Athol that I have refused to give a lease of my shop, in Athol, to your company, upon a demand made by Mr. Palmer, a member of your firm. I am very much surprised to learn that such a report is in circulation, as it is without foundation in fact. Last week, on Monday, the 22d ult., I directed and mailed a letter to your firm at Montague, saying that the shop was ready according to contract; after which I heard nothing till yesterday from any one of you, when Mr. Palmer called on me, and I at that time informed him that he could have a lease in accordance with the terms of our agreement. I am ready to execute and deliver to you, gentlemen, such a lease, and only expect, on your part, a faithful performance of all the stipulations expressed in the contract with you, both in letter and spirit. When Mr. Palmer made a demand upon me for a lease, my reply was, You can have it,’ and without any reply from him, he left me, and since then the report above stated is circulated. Yours truly, A. M. Sawyer.”</p> <p>It was in evidence that between the interview of May 31 and the time when this letter was handed to Palmer by Sawyer’s messenger, June 1, Palmer had concluded an agreement with gentlemen in the lower village of Athol, for the erection of a building for the accommodation of his business, to be moved there from Montague.</p> <p>The defendant requested the judge to rule that the plaintiffs could not maintain their action for the following reasons:</p> <p>“ 1. That the contract, upon which this action is brought, was with the firm of Palmer, Phillips & Co., in their copartnership capacity, and the voluntary dissolution of said firm before any . ease was executed, or there was any breach of contract, deprived said firm, or any member of it, of any right of action against the defendant on account of his refusal to give a lease upon a demand made by one of the members in the name of the firm. And the fact that there is evidence in the case of a demand made by one of the members of the firm in the name of the firm, which is the only evidence of any demand for a lease, estops the plaintiffs from claiming any waiver on the part of the defendant of his right to hold each plaintiff individually liable on said contract :</p> <p>“ 2. The agreement was to be executed on both sides at the same time by the execution of a lease, and there must have been a demand and an offer to perform on the part of each plaintiff, and there is no evidence in this case of such demand and offer to perform:</p> <p>“ 3. The members of the firm of Palmer, Phillips & Co. could not transfer their interest in said agreement to any individual member thereof so that after dissolution he could bring an action in the name of the firm, for damages resulting in consequence of a breach of said agreement, occurring after dissolution of the firm, without proof that each individual member of the firm was ready and offered to perform the stipulations in the agreement on his part, and there is no such proof in this case:</p> <p>“ 4. The firm having dissolved before any alleged breach of the agreement upon which this action is brought, and two members of the firm having changed their relations with said firm, so that no damage had resulted to them in consequence of a breach of said agreement after said dissolution, the remaining member of the firm cannot maintain an action in the name of the firm for damages. The damages, if any, in this action must be to all of the members of said firm in their copartnership capacity, and not to any particular member, to the exclusion of the other member or members.”</p> <p>The plaintiffs claimed the right to go to the jury, on the question whether the defendant had not waived any rights which he might have had, to consider himself, by reason of the dissolution, exonerated from performance of the contract on his part as set forth in his first and second prayers, and further claimed that the court, in view of the evidence, was not warranted in granting any of the prayers for instructions, and further that the matters suggested and set forth,' in the prayers for instructions, were not open to the defendant under his answer..</p> <p>The court ruled in conformity to the prayers of the defendant, and without permitting the plaintiffs to go to the jury on any question of fact, ruled that the action could not be maintained, and directed a verdict for the defendant.</p> <p>The jury returned a verdict for the defendant, and the plaintiffs alleged exceptions which were argued at October term, 1872.</p>

Bill in equity for specific performance, alleging that the defendant, being seised of a parcel of land, and the house thereon, situated on Hayward Place, in Boston, sold it to the plaintiff for $25,000 ; $50 to be paid down, $4,950 to be paid on the delivery of the deed, and $20,000, bearing five per cent, interest, to remain upon a mortgage in the usual form.

Contract. The declaration was in the usual form, upon a promissory note. The note, a copy of which was annexed, was as follows: “Boston, May 3,1870. Four months after date I promise to pay to the order of myself, five hundred dollars, payable at Suffolk Bank.

Actions or contract. The declaration in the first action, which was to recover the sum of $600, alleged that October 18, 1870, the plaintiff was in possession of an eating saloon as tenant under a written lease from the defendant, who then agreed to pay him $600, and release him from further liability for rent in consideration of a surrender of the lease, and a conveyance of the fixtures of the saloon, and the good will of the business; that the, plaintiff thereupon…

<p>Contract, against the executors of the will of Robert C. Hooper, for a legacy of $5000 given to the plaintiff by the will. Writ dated January 2,1871.</p> <p>The defendants in their answer admitted the facts alleged' in the declaration, but denied that they owed the plaintiff any part of the legacy, because at the time of the testator’s death the plaintiff was indebted to him in a large sum, which was assets of the estate, and ought in law and equity-to be applied to the satisfaction and payment of the legacy. They also filed a declaration -in set-off for $6685, upon an account annexed, in which the plaintiff was charged with a balance due according to an account rendered December 31, 1862, and interest, and credited with a payment of $100 January 25,1864, and interest. The plaintiff’s answer to the declaration in set-off was, that the cause of action mentioned therein did not accrue within six years of the suing out of the writ.</p> <p>At the trial in this court, before Gray, J., the defendants contended that the statute of limitations did not apply to this case; and, if it did, that the claim stated in the declaration in set-off was taken out of the statute by the payment of $100 thereon.</p> <p>The plaintiff contended that a debt due to a testator could not be set off in an action against his executors for a legacy; that, by the terms of the will, the debt due to him from the plaintiff was forgiven, and was not to be set off against the legacy; and that there was nothing to take the defendants’ claim, in set-off out of the general statute of limitations.</p> <p>It was agreed that the testator died November 26,1869, that his will was dated June 7,1862, that it was duly proved and that letters testamentary issued to the defendants December 22,1869 ; that the plaintiff was his nephew, and for many years his clerk; and that his will contained the following provisions :</p> <p>“ First, I give to my friend William Boott, of Boston, five thousand dollars.</p> <p>“ Second, I give to my nephew William H. Blackler five thousand dollars.</p> <p>“ Third, I give to Simon T. Williams, of Boston, one thousand dollars.</p> <p>“ Fourth, I give to my nephew William R. Hooper (provided the sum of one thousand dollars which he now owes me shall be paid) the sum of one thousand dollars, the income of which is to be paid to him during his life, and at his death to his wife and children, or the survivor or survivors of them then .living.”</p> <p>By agreement of parties, the only question submitted to the jury was, whether the sum of $100 was paid upon the plaintiff’s debt to the testator by the plaintiff’s authority after October 27, 1863. The jury, under instructions, to which no exception was taken, found that it was; and returned a general verdict for the defendants. The questions of law were reserved for the determination of the full court, and for such judgment as law and justice might require.</p>

<p>Contract upon a promissory note for $2000, dated August 18, 1870, signed by the defendant, payable to one Asa French or order in one year from date with interest at seven per cent, per annum till paid, and indorsed to the plaintiff by French without recourse. The declaration also contained a count for money paid by the plaintiff to French for the expenses incurred by French in advertising for sale a parcel of real estate in Boston, the equity of redemption of which was owned by the plaintiff, and of which French was mortgagee under a mortgage containing a power of sale.</p> <p>The case was submitted, in the Superior Court, upon an agreed statement of facts, from which it appeared that the defendant, August 18, 1870, being seised of the premises, subject to a mortgage to one Eleanor Barrett for $8000, by his mortgage deed of that date with power of sale, conveyed them to French to secure the payment of the note set forth in the declaration; that October 4, 1870, the defendant by deed of warranty, in the common form, conveyed the premises to his brother, William Gallagher, subject to the two mortgages, which the “ said grantee assumes and agrees to pay; ” that June 20, 1871, William Gallagher conveyed the premises to the plaintiff by deed of warranty, in the common form, subject to the mortgage to Eleanor Barrett only; that William Gallagher had agreed with the plaintiff that the mortgage debt to French should be paid before the delivery of the deed, and the plaintiff, believing that there was no other incumbrance upon the estate, and as the consideration of his deed from William Gallagher, paid the full value of the estate above the Barrett mortgage; that subsequently, the mortgage debt not having been paid at its maturity, French advertised the premises for sale, under the power contained in the mortgage, and for breach of the condition thereof; that the plaintiff, to prevent the sale and the foreclosure of the mortgage, was compelled to pay the amount of the mortgage debt to French, together with the expenses incurred by French in advertising the sale; that French thereupon indorsed the note to the plaintiff without recourse; that French had not assigned the mortgage to the plaintiff unless the indorsement of the note operated as an assignment, neither had it been discharged; and that the plaintiff had recovered a judgment against William Gallagher, upon the covenants in his deed to the plaintiff, which judgment had not been paid.</p> <p>In the Superior Court, judgment was ordered for the plaintiff, and the defendant appealed.</p>

Contract, with a count in tort for the same cause of action, to recover a portion of the contents of a trunk, once the property of Sarah Craig, deceased. The plaintiff claimed the property as a gift mortis causd from the deceased; the defendant claimed it as administrator of the deceased.

Contract for a breach of the following written agreement: “ Boston, June 4, 1869. Mr. Dean Dudley. Please insert our advertisement in the Mechanics’ Fair Journal and Directory, to occupy one page; for which we promise to pay one hundred dollars upon publication of said directory and presentation of this order with a copy of the book. Payable in trade.

Bill in equity by James A. Dupee, James Beck and Henry Sayles, shareholders in the corporation known as the Boston Water Power Company, on behalf of themselves and all others the shareholders of the corporation, except the president and directors thereof, who should come in and seek relief by, and contribute to the expense of, the suit, against the Boston Water Power Company, its president and its directors, alleging that the Boston Water Power Company was incorporated June…

Tort to recover damages for a personal hurt received upon the Maine Central Railroad while the plaintiff was travelling from Boston to St. John, New Brunswick, upon a through ticket purchased of the defendant.

Contract for money had and received by the defendants to the plaintiff’s use. The plaintiff filed the following specification of his claim : “ Moneys collected by defendants as rent and income from real estate in the city of Boston, of which Ann Maria Hatfield, late of Medford, and wife of the plaintiff, died seised, and which rents belong to the plaintiff as tenant by the curtes ' The answer was a general denial.

Petition to the Superior Court for a review, filed October 11, 1872.

<p>Bill in equity by Charles Hess and August Eiler, executors of the will of George A. Kramer, to which all the persons interested in the estate were made parties defendant, to obtain the directions of the court.</p> <p>The bill alleged that Matthias Kramer, the father of George A., died, having devised his property by a will, the material parts of which were as follows :</p> <p>“ All the rest, residue and remainder of all my estate and property, real, personal and mixed; including all of which I may be seised, and to which I may be entitled at the time of my decease, I give to my son George A. Kramer : To have and to hold the same to him, his heirs and assigns forever, to his and their own use, but subject however to the following charges : namely: To pay to and for the use, support and maintenance of my wife Polly Kramer, for and during her natural life, at the rate of fifteen dollars a week : and to pay to or for the use of my sister Genevieve Singler, for and during her natural life, at the rate of twelve dollars and a half a month.</p> <p>“ I hereby authorize the executor or executors acting under this will, or my said son, to purchase annuities for the above-mentioned payments at the Massachusetts Hospital Life Insurance Company, or at some other secure office, in favor of my said wife and my said sister, at any time or times, and by and upon such purchases the said charges upon the estate and property given to my said son shall cease and be discharged.</p> <p>“ It is my will, and I hereby direct the executor or executors acting under this will to expend, in addition to the above provision for my wife, any and all sums of money which may be necessarily incurred in or about the proper nursing and taking care of my wife in any sickness or sicknesses with which she may be visited or afflicted, whether for medical attendance, medicines, nursing or other necessary or proper attentions to her or for her comfort in sickness; it being my intention to provide for the suitable and comfortable support, care and maintenance of my wife (who is subject to mental derangement) during her natural life; and the provision whinh I have thus made for her is intended by me to be in lieu of and in full and in the stead of any dower or right to dower or thirds or interest in my estate or property.</p> <p>“ I hereby signify to my said son my desire and hope that he will so provide, by will or otherwise, that in case he shall die leaving no lawful issue living, the property which he will take under this will shall go in equal shares — to the children of my late brother Melchior Kramer, one share; to the children of my said sister Genevieve Singler, including any she may have after the date of this will, one share; to my cousin John Kramer, of Liverpool, in the State of Ohio, one share; to my cousin Matthias Kramer, of said Liverpool, one share; and to my cousin Crescenz Kramer, of said Boston, one share.”</p> <p>The bill then alleged that the greater portion of the estate devised by George A. Kramer, of whose will they were executors, (a copy of the will being set forth,) was that devised to him as the residuary devisee under the will of his father, and that the children of Genevieve Singler, the surviving children of Melchior Kramer, and John Kramer, Matthias Kramer and Crescenz Kramer, mentioned in the will of Matthias Kramer, contended that by the true construction of that will they were entitled to a greater proportion of the estate than had been devised to them by the will of George A. Kramer, and denied the plaintiffs’ authority to sell the real estate according to the authority given by the will of George A. Kramer.</p> <p>The answer of those claiming under the will of Matthias Kramer alleged that George A. Kramer died leaving no lawful issue living, and alleged that they were entitled to the residue and remainder of the estate of Matthias Kramer, the son George A. Kramer having taken it subject to the trust that in the event of his dying without lawful issue it should go to them respectively in the shares provided in the will.</p> <p>The other defendants admitted the allegations of the bill.</p> <p>The case was heard and reserved by Ames, J., on the bill and answers.</p>

Tort against the defendant Colcord, an attaching creditor, and against the other defendant, Charles Kimball, as sheriff, for the conversion of a horse, sleigh, and sundry other articles of personal property.

Tort, against the defendant corporation, as a common carrier of passengers, for a hurt received by the plaintiff while leaving the defendant’s ferry-boat.

Contract, for work done and for money paid for the defendant. At the trial in the Superior Court, before Devens, J., after the plaintiff had stated that he had closed his case, the defendant objected that the proof did not support the allegations of the declaration, and moved that the plaintiff be nonsuited.

Bill in EQUITY against the Florence Manufacturing Company, Isaac S. Parsons, George A. Burr and George A. Scott, alleging that the plaintiff corporation was and for three years had been engaged in the manufacture of sundry articles, among which were toilet mirrors, made from a composition, invented and patented by one Merrick, which was capable of being moulded by heat and pressure into various shapes, and that they had applied to this material the trade-mark name “…

Contract for a refusal by the defendant to deliver to the plaintiff a deed of a parcel of land in Brighton, offered for sale by the defendant at an auction sale at which the plaintiff was the highest bidder.

Contract against the sureties upon a recognizance under Gen. Sts. c. 124, § 17, by which the principal, having been arrested on execution, recognized to appear at the time fixed for his examination, and to abide the order of the magistrate.

CONTRACT in the Superior Court upon a judgment recovered by the plaintiff in the Supreme Judicial Court. The answer was a general denial, and payment and satisfaction. At the trial, before Devens, J., the plaintiff called the clerk of the Supreme Judicial Court, who read from the record of that court a judgment corresponding in date and amount with that set forth in the declaration.

<p>A recital of the property used by a married woman in doing business upon her se¡ orate account need not be inserted in the certificate filed under St. 1862, c. 198; and if a recita! that includes property of the husband is there inserted, its insertion does not invalidate the certificate; nor does the intermingling of the husband’s property with the woman's, in the business carried on under the certificate, invalidate it.</p> <p>Papers produced on notice and inspected by the other side, become evidence for the prrty producing them.</p>

Contract. The declaration alleged that the plaintiff and the defendant made a bet as to the place of burial in Holyhood Cemetery of the body of one Dr. Cahill, the plaintiff betting that it was buried on the left hand side of the main avenue, and the defendant betting that it was buried on the right hand side of that avenue, and that the money was deposited, twenty dollars by each party, in the hands of one James Stack as stakeholder ; that on investigation it was determined…

Tort to recover damages for a bodily hurt, received in a collision between the plaintiff’s wagon in which he was driving and the defendants’ horse-car, caused by the negligence of the defendants’ servant in driving the car.

<p>Bill in equity alleging that the plaintiff corporation, (a horse railroad company,) under leases and contracts with the Boston & Chelsea Railroad Company, were using the tracks of the last mentioned corporation ; that these tracks were laid over Chelsea Bridge, which had formerly been, a turnpike, but by St. 1868, c. 309, had become a public highway; that the eastern portion of the bridge was in the county of Middlesex; that the plaintiffs occupied the easterly portion of the bridge with their tracks, and drew over them their cars and passengers ; that they ran their cars from six o’clock in the morning to twelve at night, making 224 trips a day; .that the travel in their cars was very great; that for the next fortnight, commencing on Monday, June 17, there was to be held in the city of Boston a musical festival, to attend which, great multitudes of people would come from all carts of the country; that a great concourse from the city of Chelsea and the adjoining towns would on each day of that festival visit the city and require to be carried in the cars to and from the city over the bridge ; that the plaintiffs were bound by their charter and by their leases and contracts to transport these passengers to and from Boston, and to furnish them reasonable accommodation ; that they had arranged to increase largely the number of the trips of their cars for that purpose ; that any interruption of the travel would be attended with great and irreparable loss and damage to them, and would deprive the public of their reasonable accommodation in travelling to and from said city of Boston and over the bridge. The bill then alleged that the Mystic River Railroad Corporation was authorized to construct a railroad over certain flats and across Chelsea Bridge; that the Boston and Lowell Railroad Company had been authorized to purchase and had purchased the Mystic River Railroad, and were about constructing it across Chelsea Bridge and across the track of the plaintiffs, upon a level with the bridge and track, without any authority in law ; that the Boston and Lowell Railroad Company had made no application whatever to the county commissioners of the county of Middlesex, in which county the crossing was, for any order, decree or direction in regard to the mode of constructing their road at the crossing, or in regard to any alteration in the bridge, but were proceeding in the matter in utter disregard of law; that they had already taken up a portion of the planking of the bridge and were driving piles for the support of their tracks in the space from which the planking had been removed ; that they threatened to commence on June 17 to remove the planking from the portion of the bridge on which the plaintiffs’ track was laid, and to place a pile-driving machine upon the tracks to drive piles for supporting their own tracks across the bridge, and to remove the tracks of the plaintiffs and to lay the tracks of the Boston and Lowell Railroad Company across them, and thereby interrupt the travel and the passage of the plaintiffs’ cars. The bill prayed for an injunction, and for other relief.</p> <p>The defendants in their answer admitted that they were about to commence the construction of a track within the location of the Mystic River Railroad, across and at a level with Chelsea Bridge, and that the track when completed would cross the plaintiffs’ track, and would be upon a level with it, but denied that it would be constructed in violation of law, or that any application to the county commissioners of Middlesex County was requisite for the purpose; and denied that it infringed the rights of the public or of the plaintiffs, and alleged that, to obviate any possible wrong and remove all grounds of complaint, they had applied to the commissioners at a regular meeting since the filing of the bill, and that the commissioners then (due notice of the application having been given to all parties interested, and they having appeared and been heard and the matter duly considered) had decreed and determined the crossing at grade to be of public necessity, and had authorized it.</p> <p>This cause came on for hearing on bill and answer before Gray, J., when the following facts, in addition to those stated in the bill and admitted in the answer, were agreed: The agreement between the Salem Turnpike and Chelsea Bridge Company, of the first part, and the Boston and Chelsea Railroad Company, of the second part, was put in by the plaintiffs, by which it was provided that the railroad company, by the payment of an annual sum of $2346, was to have the right to lay tracks upon and to use the turnpike and bridge, and no other railroad company was to be permitted to pass over the same without the written consent of both parties to the agreement. It was agreed that, so far as it could be done by contracts by subsequent instruments between the parties, the plaintiffs became vested with all the rights and stood in the place of the Boston and Chelsea Railroad Company under the agreement, and operated the road of that corporation ; that the track of the horse railroad was laid within its location on the easterly side of Chelsea Bridge; that the allegations of the bill concerning the extent of the use of the tracks by the Lynn and Boston Railroad Company were true ; that since the filing of the bill the defendants had applied to the county commissioners, and had obtained from them permission to lay their tracks across Chelsea Bridge, as set forth in the answer. The plaintiffs contended that upon the facts the defendants had no right to lay their tracks across the tracks of the plaintiffs, but the court ordered that the bill be dismissed; from which decree the plaintiffs appealed.</p>

<p>Petition to enforce a mechanic’s lien. The petition was inserted ' in a writ of original summons, dated June 16, 1871, in which Mark Dowling was summoned to answer to the petition at July term, 1871, of the Superior Court. It was alleged in the petition that the premises were owned by Henry Greenough, Charles Henry Parker, and Charles W. Huntington. The writ was served on Dowling alone, and he duly appeared and filed an answer.</p> <p>At April term, 1872, the case having been then for the first time put on the trial list, Dowling was defaulted, and at the end of the term, the clerk, in pursuance of a general order passed by the court, minuted upon the docket, “ Judgment, May 23d.” No special decree of the court was made, there being no person before the court, with the exception of Dowling, against whom such decree could be made. Nothing further was done in the case until. January term, 1873, when, on motion of the petitioner, the court ordered the entry of judgment to be stricken off, the action to be brought forward, and Greenough, Parker and Huntington, the owners of the premises, to be notified. An order of notice was thereupon issued to them and to all persons interested, returnable on the second Tuesday of March, 1873, at which time Greenough, Parker and Huntington appeared.</p> <p>At the trial before Putnam, J., at April term, 1873, Greenough, Parker and Huntington admitted the allegations of the petition, but requested the court to rule that upon the foregoing facts the petition could not be maintained as against them. The court refused so to rule, and ruled that upon the foregoing facts the petitioner was entitled to maintain his lien, and directed the jury to find for the petitioner; which they did, and the owners of the premises excepted.</p>

Contract for breach of an agreement to take proper care of a horse.

<p>Tort against the president and three of the directors of the Massachusetts and Oil Creek Petroleum Company, to recover the amount of two promissory notes of the company, dated respectively June 4,1866, and September 10,1866, the title to which was in the plaintiff, upon the ground that the certificate filed June 21, 1866, by the officers of the corporation with the clerk of the city of Boston, where the corporation was established, was not a certificate sufficient to meet the requirements of St. 1862, a. 210, § 1. Writ dated September 16, 1871.</p> <p>The case was submitted in the Superior Court upon an agreed statement of the facts necessary for the determination of the question of the officers’ liability, and judgment was there ordered for the defendants, arid the plaintiff appealed.</p>

Contract for $1350, money had and received by the defendant to the plaintiff’s use, being the amount received by the defendant beyond what was necessary to satisfy his mortgage, upon a sale under a power contained in a mortgage deed of land of which the plaintiff owned the equity of redemption. At the trial in the Superior Court, before Wilkinson, J., without a jury, the following facts were admitted: .

<p>False representations as to the condition, situation and value of real estate, knowingly made by the vendor to the purchaser, are not actionable, unless the purchaser has been fraudulently induced to forbear inquiry as to their truth; and, in such case, the means by which he has been thus induced to forbear inquiry must be specifically set forth in the declaration.</p>

Contract against the defendant as a surety upon a bond given to the plaintiffs to dissolve an attachment made by them upon the property of William S. Gibbs and John H. Gibbs, copartners.

<p>Contract. After trial and a verdict rendered for the defendant in the Superior Court, the plaintiff made a motion for a new trial, upon the ground that one of the jurors rendering the verdict had been convicted of a scandalous crime.</p> <p>There was no. allegation in the motion, and no testimony was offered to show, that the plaintiff and his attorney did not know of the objection before the juror was called and sworn. The plaintiff proved that the juror had been convicted some years before in the Municipal Court of Boston, upon his plea of guilty, of being an idle and disorderly person, and had been fined one cent. The court ruled that the offence alleged was not a scandalous crime within the meaning of the Gen. Sts. e. 132, § 9, and that it was not ground for a new trial, and overruled the motion of the plaintiff. To this ruling the plaintiff alleged exceptions.</p>

<p>The consignee of a vessel’s cargo cannot be held for the freight, as a trustee of one who signed the bill of lading but had no interest in the vessel, voyage or freight.</p>

Tort, for the conversion of twelve barrels of flour. At the trial in the Superior Court, before Rockwell, J., it appeared that the defendants were public warehousemen, and kept a storehouse in Boston for the storage of flour; that the plaintiffs had with them upon storage one hundred and fifty barrels of flour; that they drew orders for parts of it; that prior to June 27, 1871, all but twelve barrels of it had been delivered; that June 27, 1871, all storage and charges being…

Tort for the conversion of personal property. Writ dated February 15,1872. At the trial in the Superior Court, before Devens, J., the plaintiff produced a chattel mortgage, under which she claimed title, made to her by one Searle, dated September 4, 1868, and recorded January 19, 1870.

<p>Contract against George P. Little and Henry K. Appleton, as the makers of seven promissory notes, signed “ Little & Co.,” payable to the order of “ ourselves,” and indorsed “ Little & Co.’' George P. Little was defaulted. Appleton defended, denying, among other things, that the signature, “ Little & Co.,” was his signature, and denying that he was a partner of the other defendant.</p> <p>At the trial in the Superior Court, before Devens, J., the following agreement, signed by the defendants, the execution of which was admitted, was put in evidence by the plaintiff:</p> <p>“ This memorandum of agreement, made this 23d day of November, A. D. 1868, at Boston, and Commonwealth of Massachusetts, by and between George P. Little and Henry K. Appleton, both of said Boston, witnesseth that George P. Little is the proprietor and publisher of the Commercial Catalogue, and being about to begin the canvass for the third number thereof, he agrees to and with said H. K. Appleton, in consideration that he pay to the business aforesaid the sum of $400, as the said Little may from time to time require and demand, to deliver to him, the said H. K. Appleton, the orders which he, said Little, may receive in the prosecution of said canvass. And the said Appleton agrees to furnish said amount of money, as said Little may require it, and upon the further consideration and agreement that he shall share with said Little one half of the net profits of said business, And said Little covenants and agrees to and -with said H. K. Appleton to give him said orders, as they may be received, and to share with said equally, after deducting all expenses thereof.”</p> <p>It was admitted that the third number of the Commercial Catalogue was published, and the business relating to it was transacted, under the name of Little & Co.</p> <p>Cyrus Cummings, a witness for the plaintiff, testified that he had desk-room in the office with Little and the plaintiff ; that in the year 1869 Appleton came into the office frequently; that the name of Little & Co. was on the door, and the Commercial Catalogue, an advertising pamphlet, was published by Little at that office. He further testified, on cross-examination, that the Catalogue, was published in 1868, and that Appleton sometimes came there then; that his calls in 1869 were from one to three times a week on some weeks, and that he stayed from five to ten. minutes; that the same name, “ Little & Co.,” was on the door in 1868, and that no change was made in the name in either year; and that the plaintiff was connected with Little in the year 1868.</p> <p>The plaintiff testified that he was connected with Little in 1868 ; that he was not a partner ; that he knew that Appleton was furnishing Little with money, and that he frequently saw Appleton in the office in 1869.</p> <p>Appleton testified that he was a tailor, and had been engaged in that business for forty-two years, and had never been engaged in any other; that he furnished the $400 mentioned in the agreement, to get pay for a former $300 that Little owed him; that he took the orders there mentioned, to secure to himself the $400 and the old debt; that he called frequently on Little in 1868 and 1869, to collect the money due him, “ but not on any business of the Catalogue; ” that he had nothing to do with it, but to receive the orders which were taken under the contract.</p> <p>Defendants’ counsel contended and requested the court to rule that the case should be submitted to the jury on all the evidence, that the agreement did not by itself constitute a copartnership, but that the intent to form a copartnership was a question for the jury on all the facts in the case, taken in connection with the written agreement; but the court declined so to rule, and ruled that the written agreement constituted a copartnership in the business therein mentioned as to third parties.</p> <p>The other questions raised by the answer were submitted to the jury under instructions which are not excepted to. The jury found for the plaintiff and the defendant Appleton alleged exceptions</p>

Replevin for two pianos. The defendant answered denying that the property was in the plaintiff, and asserting property in himself.

Contract upon a promissory note signed by Pratt & Wentworth, and indorsed by the defendant. In the Superior Court, trial by jury was waived, and the case was heard and determined by Brigham, C. J., who found for the plaintiff for $4176.53 damages, and the defendant alleged the following exceptions: “ The defendant indorsed the note declared on, of which the makers were Pratt & Wentworth, who paid to the plaintiff $1250 in part payment of said note.

Bill in equity alleging that for five years previous to November 9, 1870, the plaintiff was in the habit of taking loans of money of one A. G. Peck; that in taking the loans, he deposited with Peck, as collateral security, notes secured by mortgages, bonds, checks, certificates of stocks, and indorsements; that he was in the habit of making payments to Peck on account, and taking up the collateral securities from time to time, whenever Peck stated that sufficient money had…

<p>Evidence is admissible to prove a custom that, upon a sale of berries in bags by samp.a !kc sample represents the average quality of the entire lot, and not the average quality of the amount contained in each bag taken separately.</p>

Contract upon the covenants of seisin and right to convey in a deed of land given by the defendant and his wife to the plaintiff. The consideration named in the deed was $950. At the trial in the Superior Court, before Devens, J., the execution and delivery of the deed were proved, and it was admitted that neither of the grantors had any title or interest in the land, except the right of the female grantor to dower, the land having been the property of her former husband.

Bill in equity filed July 1, 1873, alleging that the plaintiff was and for more than a year had been a stockholder of the defendant corporation, which was a corporation owning a railroad in Chis Commonwealth, and which was and had been for many years consolidated with a corporation of the same name, created by the State of New Hampshire, and owning a railroad in that state, and with another corporation of the same name, created by the State of Maine, and owning a railroad in…

<p>A second mortgagee’s advertisement offering for sale “ all the right, title, interest and estate which, by virtue of the power contained in said mortgage and the assignments thereof, I have the right to sell in and to ” the mortgaged premises, is not defective though the authority given by the power is “to sell and dispose of the granted premises,” the premises being described in the mortgage as “ all that lot of land, [bounding it,] subject, however, to a prior mortgage; ” nor is an omission to state that there was a default itt the performance of the condition a material defect.</p> <p>An advertisement of a mortgagee’s sale under a power, describing the premises as they are described in the mortgage, is not defective, although the street number of the building has been changed since the making of the mortgage, when it does not appear that the mortgagee knew of the change, and when the number is not given in the mortgage, but appears only upon a plan there referred to.</p> <p>The sale of an equity of redemption under a power in a second mortgage is not void though the advertisement of sale does not state the amount due upon the first mortgage, even when both mortgages are held by the same person; and the fact that the mortgagee attempting at the sale, in good faith, to state the amount due, slightly overestimates it, will not invalidate the sale.</p> <p>An advertisement of a sale of real estate, announcing the sale as “by virtue of the power given ” in the mortgage, is not defective for omitting to state that there has been a default in the performance of the condition of the mortgage.</p> <p>A mortgagee, selling under an ordinary power contained in the mortgage, can sell for cash to be paid at the sale; therefore the requiring but a portion of the purchase money to he paid at once, and the giving time for the examination of title, though not stated in the advertisement, being favorable to the mortgagor, cannot be objected to by him.</p> <p>A mortgage is not extinguished by being assigned to the wife of the mortgagor, after he has conveyed to a third person all his interest in the estate.</p>

<p>Writ of entry to recover a strip of land on I Street, South Boston, the strip being three feet in breadth on the street, and extending back from the street in length forty-five feet. Writ dated June 19, 1871. Plea nul disseisin.</p> <p>At the trial in the Superior Court, before Pitman, J., it appeared that the demandant and tenant owned adjoining estates upon I Street, the northerly estate belonging to the tenant. Formerly one Whittemore owned land on I Street which included the land of the tenant, that of the demandant, and also the land upon the south of the demandant. This land was conveyed by Whittemore in lots, the lot of the demandant, which was' conveyed by Whittemore to one Atkins, October 16,1845, being the one last conveyed. The demandant was the widow of William McMahan, who died December, 1862, and who purchased the lot conveyed by Whittemore to Atkins, August 22, 1854. The demandant claimed title to this lot “by a recorded deed of the same from John McMahan, of-Ireland, as heir of William McMahan,’ dated October 10, 1864. In the deeds, through which the de« mandant claimed, her lot was bounded “ westerly by I Street fifty-two feet j southerly by land now or late of Watts, forty-five feet; easterly by land now or late of Eaton fifty-two feet; and northerly by land now or late of Jeremiah Brown forty-five feet.” It was conceded that the land described in these deeds as “ land now or late of Jeremiah Brown ” was owned by the tenant, and this land was distant fifty-five instead of fifty-two feet from the land described in the deed as “land now or late of Watts.” The strip of three feet in width adjoining the “land now or late of Jeremiah Brown ” was the strip in controversy.</p> <p>The demandant introduced evidence that the strip was in the possession of her husband till 1858, when it was built upon by John Lyons, the then owner of the adjoining estate, but was not conveyed by the deed of Lyons’s estate made to one Simmons in 1858, and that the structures were occupied by the owners of this adjoining estate till 1869, when they were removed, and that then the demandant was in possession. There was no evidence that John McMahan, the demandant’s grantor, who lived in Ireland, ever had an actual possession of the demanded premises.</p> <p>The tenant introduced a deed of the adjoining estate from one Mary Bowe to himself dated January 16, 1871, which recited a deed from one Hyland to Mary Bowe of the same premises dated October 7, 1865. The side strip in question was not included in any of the conveyances of the tenant’s lot. The tenant offered evidence of adverse possession in himself of the strip since the date of his deed, and a witness testified, against the demandant’s objection, that since 1836 the strip had been within the inclosure of the tenant’s lot; that buildings were erected on it some twenty-three years before by the then owner of the tenant’s lot, and that from 1836 to the time of bringing the action, it had been occupied by the several owners of the tenant’s lot in the order of their conveyances, and at no time by the demandant or her grantors. It did not appear that there was any privity of estate between the tenant and the prior occupants except as above stated, nor was there evidence of a paper title in any one other than the demandant. The tenant, at the trial, denied the de* mandant’s seisin and claimed title in himself by adverse posses* sion. The demandant asked the presiding judge to rule :</p> <p>“ 1. The demandant’s recorded deed vests in her a de fycto seisin of the premises therein conveyed, and gives the demandant a primá facie title. And seisin once proved is presumed to continue till shown to be changed.</p> <p>“ 2. The demandant proving her seisin, the burden of proof is on the tenant to show that he has the right of entry.</p> <p>“ 3. The demandant, having proved her seisin under her deed, must recover unless the tenant shows a better title.</p> <p>“ 4. The tenant in support of his claim shows no title under his deed. It forms no part of the lot conveyed. He shows no title by sufficiently long adverse possession in himself, and he cannot tack to his own possession the disseisin, if any, of his grantor, if the locus is not conveyed to him by the grantor’s deed. The demandant is therefore entitled to a verdict for the side strip.</p> <p>“ 5. The tenant claiming title can only show a disseisin of the demandant by showing adverse possession in himself or those in privity with him.”</p> <p>The presiding judge declined so to rule, but did instruct the jury as follows so far as related to the first count and to the matters embraced in the above prayers.</p> <p>“ The plea of nul disseisin puts in issue the legal title to the land, or in other words, the seisin on which the demandant has counted, and the lawfulness of the tenant’s entry. It is apparent now, that upon a proper construction of the deeds the demandant has the better paper title. It appears that the grantees on each side of her lot get their requisite quantity of land by prior deeds, and that what remains, including this passage-way, is by operation of law embraced in the subsequent deed to the ancestors or parties under whom the demandant claims. But this alone will not entitle her to recover in this action. It is a principle of law that a party who is disseised, who is held out of possession, cannot convey a title. Therefore, if this John McMahan never had any seisin of this strip of land, if he was held out of possession and never entered upon it, then he had no title to convey to the demandant. Sometimes a party may be seised of land without going upon i;. Ordinarily a person buying a piece of land, taking a deed and putting it on record, has not only a conveyance but also seisin of the estate. The seisin is said to follow the title. But if it happens that somebody else has actual possession of the land and claims adversely, — claims that you have no right there, — you must do something to vindicate your right before you can be seised. So in this case, if Mr. McMahan when he was actually disseised, that is to say, while somebody else was in possession claiming to hold against him, made a deed to the demandant, he could not, as a matter of law, convey this controverted strip. It was his duty to enter upon the land if he chose to enforce Ms rights, and make his conveyance thereafter; or to bring suit to recover possession.”</p> <p>After referring to the evidence the court added: “ If there was a seisin in John McMahan, then he had a right to convey the title, and the demandant would take his title. It seems to me that as you find this, your verdict must be for tenant or demand-ant. The tenant, to be sure, claims that he has acquired title by adverse occupation, but there is this principle of law in the way of his title under this claim. Successive disseisins do not aid one another. Nothing being sold to the tenant except what was included in the boundaries stated in his deed, he has no right by an entry under the deed to the excess which was in the possession of his grantor. In regard to the burden of proof, the general burden of proof is on the demandant. It is for her to make out satisfactorily her seisin. Her seisin would, ordinarily, be made out by producing her record title; but if the tenant satisfies you that there has been adverse occupation so that she has had no actual possession, then the primá facie case disappears. It will be for you to put the burden of proof, so far as adverse occupation is concerned, upon the tenant. But upon the whole case the demandant is to prove that she has seisin of the premises as well as rightful title.”</p> <p>The jury returned a verdict for the tenant, and the demandant alleged exceptions.</p>

<p>The owner of a building to the chimney of which a gas company has, without the owner’s consent, so affixed a wire as to render the chimney unsafe, and ultimately to cause its fall upon a passer-by, may be liable for the damage so caused; and if, when so liable, he pays the damage, he has an action against the company for indemnity.</p>

<p>Contract for $5000, money had and received to the use of the plaintiff’s intestate. The writ was dated January 1, 1869. The answer was a general denial and the statute of limitations. A declaration in set-off for money lent by the defendants to the plaintiff’s intestate was also filed. The answer to the declaration in set-off was a general denial and the statute of limitations. The case was reported by Morton, J., for the consideration of the full court upon facts which sufficiently appear in the opinion.</p>

<p>Contract to recover $41,042.47, alleged to be due as profits under a written contract made between the plaintiff and the defendant, a copy of which with a copy of the extension thereof was annexed to the declaration. Writ dated February 5, 1867.</p> <p>By the contract, which was made May 13, 1857, the plaintiff covenanted and agreed to perform the duties of superintendent of the defendant’s machine shop for five years from the first of the next June, “ unless the present agreement shall be sooner terminated as hereafter provided.” And the defendant “ covenants and agrees with the said Thompson to pay him the sum of $1800 per annum, in four equal quarterly payments ; and the said company further agrees that an account of the profits of said machine shop shall be made up annually in the manner hereinafter provided, and the said Thompson shall receive as a further compensation for the service above mentioned the sum or sums following, to wit, a sum equal to one half of the profits so made up, until and unless the said profits shall exceed the sum of $6400 ; and in case the said profits shall exceed the said sum of $6400, the said Thompson shall also receive a further sum equal to one third of such excess; but the said Thompson shall have no interest in said profits as profits, nor any lien thereon for the amount of his compensation as aforesaid. And it is further agreed between the said parties, that the annual profits of said machine shop shall be made up as follows: the business of the year shall be charged with all the expenditures and items following; to wit, all expen* ditures f jr labor and materials used and employed in the business of said machine shop, including fuel, oil, watchmen, materials and labor, for keeping the tools, machinery and buildings in good repair ; ” “ the expenses of repairing or replacing the flumes or wheels of the carpenter’s shop, blacksmith’s shop or foundry, shall be charged to the current operations of the year as a part of the annual expenditure; also the cost of any new patterns or tools that may be required for the building of cotton machinery; and of the amount now charged to the account of new tools, that part which belongs to the tools now in use in said machine shop shall in due proportion from year to year be chargeable to current expenses ; also one half of the salary and of the expenses of the office in Boston of the treasurer of said company; also the amount of interest paid by said company on account of the business of said machine shop, and the amount paid as taxes and for insurance on the buildings, machinery, tools and other property employed in carrying on the business of said machine shop; together with all customary and reasonable charges for general expense in conducting the business ; also the sum of $1800 a year as salary of the said Thompson, and the sum of $6000 a year as rent of said machine shop, tools, foundry, carpenter’s and blacksmith’s shops, and for wear and tear of the same. The sum total of all the foregoing charges and items shall be deemed and considered to be the cost of the machinery or other articles manufactured in said machine shop under the direction and superintendence of said Thompson during the year. This sum shall be deducted from the amount received as the price of the machinery or other articles sold, and the excess, if any, shall be considered as the profits derived from the business of said machine shop, and as the sum by which the compensation of said Thompson is to be determined, according to the computation hereinbefore mentioned. It is further agreed between the said parties, that all accounts between them shall be made up and settled annually; and that after such yearly settlement no claim arising out of the present agreement shall be made or allowed by or on behalf of either oi the said parties, and all necessary and proper writings, receipts and other vouchers shall be interchanged annually by the said parties, fixing and determining such settlement; provided, nevertheless, that in case the present agreement shall be terminated as hereafter specially provided, before the expiration of five years from the first day of June next, the foregoing provision shall not restrain or affect the allowance and adjustment of all claims arising out of such earlier termination as aforesaid.” “ And at the expiration or other earlier termination of this agreement as hereinafter provided, the value and cost of all raw materials or unfinished machinery then on hand shall be computed and ascertained according to the provisions of the present agreement.” “ It is further agreed between said parties, that all the buildings, machinery and tools shall be kept in good repair, and an account shall be made up and rendered annually by the said Thompson of the amount expended for that purpose ; and further, that the said buildings, machinery and tools shall be given up to said company by the said Thompson, at the expiration or other earlier termination of this contract, in good working order and condition. It is further understood and agreed between the said parties, that in case the said Saco WaterPower Company shall at any time decide to close up and discontinue the business of manufacturing machinery, or to appropriate the aforesaid premises now occupied for that purpose to some other use, or to sell the said premises ; or in case the said Thompson shall fail to perform all and singular the acts by him to be performed under this contract, the said Saco Water Power Company, in either of the cases mentioned, may terminate the present agreement, subject to the following agreement and stipulation; to wit, if the said company shall terminate the said contract within the term of three years from the first day of June next, and provided also that at the date of such termination the said Thompson shall have received as compensation under the present agreement a sum less than $4000 a year, the said company shall pay to the said Thompson the amount requisite at the date of such termination to make up the said yearly compensation of $4000. But if the said Thompson shall have already received under this contract an amount equal to such yearly compensation, he shall have no claim against the said company. And in case the said company shall terminate the present contract after three years from the first day of June next, the said Thompson shall receive an amount sufficient to make up a yearly compensation of $5000, for and during the continuance of said contract; provided always that the said Thompson shall not have already received under this contract a sum equal to or greater than such yearly compensation. And it is further agreed between the said parties, that in case the present agreement shall be terminated by the death of said Thompson, the said company shall pay to the personal representative of said Thompson the amount necessary to make up to the date of such termination a yearly compensation of $4000, provided always that if the said Thompson shall have already received under the present agreement a sum equal to or greater than such yearly compensation, this provision shall be wholly void and of no effect.”</p> <p>This contract was extended for the further term of five years, by the following vote of the company’s directors, accepted and assented to in writing by the plaintiff:</p> <p>“ Voted, that the proposition of said Thompson, in said letter contained, to renew the present contract existing between said Thompson and the company, and to extend the same for the term of five years from the time of the expiration of said contract, that is, for five years from the first day of June, which will be in the year eighteen hundred and sixty-two, be and the same is hereby accepted, with the following modifications, as proposed in said letter, of the present contract; to wit, that in making up the accounts of the company in May, 1860, one eighth of all that may stand charged on the books of the company for new tools in use in the shop, and for steam-engine, its building, fixtures and appurtenances, and for gas fixtures, or for any new building that may be added to the plant of the company in connection witn the machine shop and appurtenances, and of all other similar charges, shall be charged to current expenses ; and that in making up the accounts of the company in May, 1861, one seventh of all the before mentioned charges which may stand charged to any or all the foregoing accounts on the books of the company shall be charged to current expenses; and in like manner i® May, 1862, one sixth of the foregoing charges shall be charged to current expenses; and in May, 1863, one fifth; and in May, 1864, one fourth; and in May, 1865, one third; and in May, 1866, one half; and in May, 1867, the balance of said charges which may stand charged on the books of the company on the foregoing accounts shall be charged to current expenses.”</p> <p>At the trial in this court, before Morton, J., the defendant admitted that the plaintiff performed the contract on his part; that the defendant elected to sell and did sell the machine shop, buildings, appurtenances, machinery and tools in the contracts mentioned, and on the 18th December, 1866, notified the plaintiff thereof, and requested him to deliver to the agent of the purchasers the purchased property; that the plaintiff thereupon notified and requested the defendant to make up an account of the profits of the business from June 1, 1866, to December 18, 1866, in the manner provided for in the contracts, and to pay him what should appear on such account to be due and coming to him; that the defendant neglecting to take and make up such account, he caused an account to be taken, by which it appeared that under his construction of the contracts a large sum of money was due to him. Thereupon it was agreed that the case should be reported; and that if in the opinion of the full court the plaintiff was entitled to a share of the profits between June 1, 1866, and December 18, 1866, an assessor should be appointed to determine the amount; otherwise the plaintiff should become non-suit.</p>

<p>A promissory note made payable to a married woman at the request of her husband, upon a consideration moving solely from him, is a voluntary gift from the husband, and she does not, under Gen. Sts. e. 108, § 3, acquire a title to it as her sole property free from his control; nor can she maintain an action upon it in her own name.</p>

Contract to recover the sum of $280.90 for lumber sold and delivered by the plaintiffs to the defendant.

<p>One who files a bill in equity to reform a policy of insurance by striking out a clause of warranty, and who afterwards brings an action at law upon the policy as written, alleging compliance with the warranty, and after a trial upon that issue has judgment rendered against him, has elected his remedy and waived his right to prosecute further his bill for the reformation of the policy.</p>

<p>When the promise of the insurer in a policy is to the insured, his executors, admin strators and assigns, to pay him, his executors, administrators or assigns, an action upon it cannot be maintained in the name of one for whose benefit it is expressed to be made.</p>

<p>Contract on a promissory note for $300 made by one Pratt, payable to the defendant, and by him indorsed. The answer among other defences set up the defence of payment.</p> <p>At the trial in the Superior Court, before Pitman, J., the plaintiff offered the testimony of one Warner, from which it appeared that Warner bought the note in suit, with another similar note of a different amount, of Pratt, before its maturity ; that Warner owned the note, and that the action was brought for his benefit; that while the notes were held by Warner, they were dishonored by the promisor; that the defendant called upon him and said the notes were all right, but that he was short of money, and isked if Warner would take a new note; that Warner thereupon gave up the two notes, and took therefor a note for $550, signed by the defendant, payable in four months; that afterwards the defendant sent Warner the following letter, enclosing the two original notes: “ Boston, December 11, 1871. To Mr. Edward Warner. I hereby notify-you that the note given by me to you for five hundred and fifty dollars, and dated November 18th, 1871, was given without consideration. I never received any benefit whatever from you or any one, for giving the same, and I shall not pay it. And if you make any disposition of the same it will be wholly and solely at your own risk. U. K. Mayo.”</p> <p>Warner further testified that, at the time, he considered the $550 note as given in payment of the original notes ; that he had never offered to return the note before suit; that he accepted the original notes back when he received them, and that he held the $550 note subject to order of the defendant. At the trial the plaintiff tendered the $550 note to the defendant.</p> <p>Upon this testimony for the plaintiff, the court ruled that he not having returned or offered to return the $550 note, received by him in payment, before bringing the suit, could not maintain the action, and directed a verdict for the defendant, solely on this ground, and by consent of parties reported the case for the determination of this court. If the ruling was right, the verdict was jo stand; if not, it was to be set aside and a new trial ordered.</p>

<p>Phe Legislature can confirm a deed of land made by an executor, an administrator or a trustee under a will, when the sole objection to the efficacy of the deed is that the grantor had not been so appointed and had not so given bond as to authorize him to execute a power of sale conferred by the will.</p>

Bill in equity, filed June 19, 1872, for the specific performance of the defendant’s alleged written agreement, dated May 20, 1872, to convey to the plaintiff on June 3 following a parcel of land of the defendant’s, situated in Chelsea, for the sum of $7000.-The agreement purported to be signed on behalf of the defendant, “ Benjamin Churchill, by his agents, Otis Merriam & Son.” The defendant, in his answer, alleged that in October, 1871, he employed Merriam & Son to let a…

<p>The plaintiff, by a written contract, gave the defendant a license to manufacture machines nnder the plaintiff’s patent, the defendant paying a royalty, with a proviso that if the defendant failed to perform his agreement, the plaintiff might terminate the contract by giving thirty days’ notice, “and in case of a difference of opinion between the parties as to whether there has been such a failure as will warrant to give or to have given such notice, it is hereby agreed to submit that question to arbitration and to abide the result of the decision.” On a bill in equity to cancel the contract, for an account and for an injunction, no offer to submit to arbitration having been made by the plaintiff, Held, that the agreement to submit, as its effect would be to oust the courts of jurisdiction, was void.</p>

<p>By-b.dding at an auction sale, advertised “to be positive,” of land in lots, will render the sale voidable by a purchaser influenced by such bidding, whether that bidding was upon the lot pu’chased by him or upon lots previously offered, even though such bidding was instigated jy the auctioneer without the seller’s knowledge; but if it appears that he was not so influenced the sale is valid.</p> <p>Land, that, without the owner’s knowledge, was under attachment, was sold by auction, ten days being “ allowed to examine the title, within which time the property must be settled for at the office of the auctioneer.” The attachment was not discharged within the ten days, but within that time the purchaser had written to the auctioneer, declining “to proceed further in the matter,” as he considered “the whole proceeding invalid.” In an action against the purchaser for a refusal to complete the contract, Held, th.at, as the vendor was bound to give a good title only upon compliance with the terms of the sale within ten days, the purchaser’s letter was a waiver of his right to object to the attachment as an incumbrance.</p> <p>Land was sold by auction, a sum of money to be paid “ on the spot, which will be forfeited to the seller if the terms and conditions are not complied with, but the forfeiture of said money does not release the purchaser from the obligation to take the property.” In an action against the purchaser for not taking the property, Held,, that the money paid at the sale should be considered by the jury in reduction of damages.</p>

Contract by the Short Mountain Coal Company and the Summit Branch Railroad Company against James C. Hardy and John S. Lamprey, upon an account annexed made up of four charges for Franklin coal sold the defendant, and a charge for interest, the whole amounting to $508.61.

<p>A statute uniting two municipalities, and providing that the act shall not take full effect unless accepted by the voters of the respective municipalities, is not unconstitutional as a delegation of legislative power.</p> <p>The Legislature, in uniting two municipalities, has the power to provide how their respective properties and debts shall be shared and adjusted; and such provisions do not impair the obligation of contracts.</p> <p>As the public properly of counties is held for public use, the Legislature, when changing county boundaries, may itself divide among the counties the county property, or may intrust the division to the courts,* and in doing so, need not provide for a trial by jury.</p> <p>By statute one city was united with another, and the right to the uncollected taxes of the first was transferred to the second without express provision for abatements of those taxes. Held, that the statute was not for that reason void, as abatements could be made under the general laws of the Commonwealth.</p> <p>Section 3 of the St. of 1873, c. 286, (a statute uniting the cities of Charlestown and Boston,) and section 3 of the St. of 1873, c. 314, (a statute uniting the city of Boston and the town of West Boxbury,) make due provision for the determination of petitions to the county commissioners for the assessment of damages from the laying out of roads iu Charlestown and in West Boxbury, which were pending when the acts took effect.</p> <p>The Sfc. 1873, c. 286, uniting the cities of Charlestown and Boston, in providing for the election of representatives and senators in the Legislature and of representatives in Congress, and in providing that the duties of the mayor and aldermen and of the city clerk of Charlestown shall devolve upon the board of aldermen and the city clerk of Boston, is not unconstitutional, as it duly secures to the inhabitants of Charlestown the right of election.</p> <p>The St. 1873, c. 286, uniting the cities of Charlestown and Boston, is not void for providing that it shall take effect for different purposes at different times.</p> <p>The provision of section 15 of the St. 1873, c. 286, (a statute uniting the cities of Charlestown and Boston,) which makes it unlawful for the municipal boards of Charlestown to contract debts after the publication by the secretary of the Commonwealth of the certificate declaring the act accepted, is valid.</p> <p>The provisions of section 12 of the St. 1873, c. 286, (a statute uniting the cities of Charles-town and Boston,) which appoint new trustees of the free school fund and of the poor fund and provide that they shall continue to manage the funds according to the terms of the trust, and continue the Mystic Water Board as a separate organization under the direction of the city council of Boston, are valid.</p> <p>The fact that the meeting of the legal voters of the town of West Boxbury, at which was accepted the St. 1873, c. 314, uniting the town with the city of Boston, was presided over by a moderator and not by the selectmen, does not render the acceptance void.</p>

Contempt. An application under Gen. Sts. c. 58, § 6, had been made to this court by the insurance commissioner against the Hide and Leather Insurance Company, representing that upon an examination had by him, he was of opinion that it was insolvent, and praying that an injunction might issue restraining it from proceeding with its business, and asking for the appointment of receivers.

<p>Tort, to recover damages for injuries alleged to have been sustained through a defect in a way which the defendant was bound to keep in repair.</p> <p>At the trial before Wells, J., at September term, 1873, it appeared the defect alleged was an opening in Prince Street, through the sidewalk, into the cellar of a building facing on the street. This opening was surrounded by a stone frame, and was used for taking in coal and wood, and for other uses in connection with the cellar. It was from thirty to thirty-two inches long, from eighteen to twenty inches wide, and about three feet deep. It was admitted that Prince Street, including the sidewalk, was a public way, which the defendant was bound to keep in repair; that it was a thoroughfare leading from Hanover Street to one of the Charlestown bridges, and a street over which there was much foot travel. It was also admitted that there was a plank cover fitted to and used for closing the opening complained of.</p> <p>The plaintiff proved that while passing over this sidewalk in the daytime, she fell through the uncovered opening, and sustained serious injury. The horn? at which the accident occurred was in controversy, the defendant’s evidence tending to show that it was about twelve o’clock at noon, and the plaintiff’s evidence tending to show that it was nearly one hour later. The evidence upon the question of the plaintiff’s care is not now material.</p> <p>Upon the question of notice to the defendant of the defect, the plaintiff offered evidence, that on the day before the accident, the occupant of the cellar, who was also the occupant of the store above it, had had the cellar cleaned out; that the opening in the sidewalk was uncovered for that purpose; that laborers were at work all day in the cellar, and that in the afternoon rubbish was brought up through the opening in the sidewalk, and removed in carts. A Mrs. Richardson, who lived in the next house, was called for the plaintiff, and testified, among other things : “ This hole the day before was open all day. I saw it opened as early as eight o’clock in the morning, and also in the afternoon. I did not see it closed that night. On the day of the accident, I first saw the hole between seven and eight o’clock in the morning, and it was then open. My little girl, about two years old, went out on to the sidewalk, and I saw her going by this hole, and was afraid she might fall in, and went out and got her. I did not see it closed between that time and the time Miss Harriman fell into it.” (Upon inquiry by the court whether she saw it at all between those times, she replied that she did not, or did not remember that she did.) “ I saw no one at work about the cellar or the hole on the day of the accident.” On cross-examinatian, she said she could not say that she saw the place later than three o’clock in the afternoon of the day. before the accident. The plaintiff offered no further testimony showing that the hole was uncovered on the day of the accident before she fell into it.</p> <p>On request of the defendant the jury were taken to view the premises, which it was agreed by the counsel for the parties were, at the time of the trial, in the same condition as at the time of the accident. When the jury, with the officers and counsel in attendance, reached the spot, the opening was found covered, and several unsuccessful efforts were made by the officers and by some of the jury to remove the covering from above, but the cover could not be removed until'the counsel for the defendant descended into the cellar and lifted it from below.</p> <p>The defendant called as a witness the person who occupied the cellar at the time of the accident, who testified that he had employed some men to clean it out the day before the accident; that the job was finished in the afternoon; that he then went into it to see how the job had been done, was satisfied with it, paid the laborers and closed the opening at about six o’clock in the afternoon; that he came to his store at seven o’clock on the morning of the day of the accident, and_noticed that the opening in the sidewalk was then covered; that he did not leave his store or see the opening again until after Miss Harriman fell in; that he did not uncover the hole or cause it to be uncovered, or know by whom it was uncovered. There was no evidence contradicting this statement directly; but the plaintiff’s counsel contended, upon various grounds developed on the examination and cross-examination of this witness, that his testimony was not to be believed.</p> <p>The defendant also called a policeman, who testified that Ca.. part of Prince Street complained of was in his beat on the night before the accident; that he was on his beat from 8 I. K. tc 1 ^ M., and passed over Prince Street twice an hour during that time, and did not notice that the opening in the sidewalk was uncov ered. In his direct examination the witness testified: “ The scuttle was closed; recollected it the next day ; heard of the accident ; they had been clearing out the cellar.” In cross-examination he said, “ Couldn’t pass without seeing it; didn’t see any hole; there was a little dirt opposite, in the street; noticed that.” The witness could not, however, swear that he remembered the distinct fact that he took notice that night that the scuttle was closed.</p> <p>The defendant also called the policeman who was assigned, from 8 A. M. to 1 P. M. on the day of the accident, to the beat which included Prinoe Street. This witness testified that he was engaged in court on that day from 9 A. M. till 12 m., and he could not say he was in Prince Street at all until after the accident. He did not know the scuttle had been open that day There was no evidence that any other policeman was assigned tc his beat during his absence. Both policemen, on cross-examinatian, testified, against the defendant’s objection, that their duty required them to go over every part of this beat at least once during every hour of their respective tours of duty, and that the beat was short enough to admit of their doing so ; and also that, if they had noticed this hole uncovered, they would at once have covered it or caused it to be covered, and that that was a part of their duty. The policeman on the beat embracing Prince Street, between 1 A. M. and 8 A. M. of the day of the accident, if there was any, was not called.</p> <p>The defendant offered no evidence that the opening was covered at any time between the time when the plaintiff’s witness testified to seeing it open in the morning of the day of the accident and the time when the plaintiff fell into it, and there was no evidence upon that point, except as above stated. The plaintiff did not claim that any actual notice of the existence of the defect was received by the chief of police or at his office.</p> <p>The case was submitted to the jury, who were unable to agree upon a verdict; and the case was reported to the full court by consent of parties. If the court should be of opinion that the evidence would not warrant a jury in finding a verdict against the defendant, then judgment was to be entered for the defendant ; otherwise the case was to stand for trial.</p>

<p>He St. of 1873, c. 376, § 1, directing the justices of this court to appoint supervisors of election, is unconstitutional and void.</p>

<p>Indictment for keeping, April 22, 1873, and on divers other days and times during the six months next before that date, a tenement used for the illegal sale of intoxicating liquors.</p> <p>At the trial in the Superior Court, before Dewey, J., the evidence was directed to a tenement numbered 141 on Merrimack Street. One witness had testified that the defendant had told him that he kept the place. Then a police officer named Sleeper was called by the government, and was asked, for the first question, “ What, if anything, have you seen the defendant doing on the premises 141 Merrimack Street during the six months preceding the 22d day of April last ? ” This question was objected to, but the .court admitted it. He answered: “ I have seen him there behind the counter most every night waiting on his customers; seen parties calling for whiskey, and he take a jug and pour out into a tumbler, and the persons take and drink it.” He further testified that he was in the premises on one occasion within the six months embraced in the charge, and that a party of three were then in the place, and that he heard them call for whiskey, and saw the defendant pour something out of a jug. He was then asked: “ What appearance was it ? ” This was objected to, and the question was withdrawn, and he was asked: “ What color was it ? ” This was objected to, but admitted ; and the witness answered, “ Reddish.”</p> <p>The first question asked by the government of another of its witnesses named George, who was also a police officer, was the same first asked of the preceding witness, and it was admitted against the defendant’s objection.</p> <p>One Joseph Leavitt, another police officer, testified, on behalf of the government, that “ previous to about two months before the expiration of the time named as the last limit in the indictment, he saw upon the premises, 141 Merrimack Street, a sign Mattie F. Owens.’ This was all the testimony that appeared in the case from any source, or of any kind relating to said sign.”</p> <p>The defendant, at the close of the case, requested the court to instruct the jury as follows :</p> <p>“ That the government must show that during the whole of the six months embraced herein it was a liquor nuisance.</p> <p>“ That the government must show that the entire and exclusive business carried on in his premises was a liquor nuisance.</p> <p>“ That the mere sale, or keeping for sale, of prohibited intoxicating liquors is not enough to make this place a nuisance without other proof of its disorderly and illegal character.</p> <p>“ That under the liquor law, as it existed up to the first Tuesday of May, 1873, under an indictment framed like this, the burden is upon the government to negative legal appointment or authority in the defendant.</p> <p>“ That it is not competent for the Legislature, nor within legislative power and authority, to make the entire traffic in an ordinary article of merchandise, and the mere keeping of a place for such traffic and sale, a crime, provided the business is conducted in an orderly and peaceable manner, and the traffic is not accompanied with circumstances of disorder and misconduct.</p> <p>“ That the sign of ‘ Mattie F. Owens,’ testified to, cannot be considered as a part of the government’s case against the defendant ; that being another and different name from that ascribed to defendant as named in the indictment.”</p> <p>These instructions the court refused to give, but instructed the jury that if the government had satisfied them that the defendant kept the place as a nuisance during any substantial period of the time covered, it would be enough. That to prove that the defendant kept the place for a week, was as good as to prove that he kept it the whole six months. That the sign was not to be taken as a part of the evidence that the defendant kept the place, unless they were satisfied beyond a reasonable doubt that it was his sign and intended by him to mark the place as the defendant’s place of business.</p> <p>The jury returned a verdict of guilty, and the defendant alleged exceptions.</p>

Complaint for keeping a tenement “ used for the illegal sale and illegal keeping for sale of intoxicating liquors.” Trial in the Superior Court, before Aldrich, J. The jury having returned a verdict of guilty, the defendant alleged exceptions, in which the evidence in the case was stated at length.

<p>At the trial of an indictment for keeping a tenement used for the illegal sale of intoxicating liquor, a witness may be asked, “ What have you seen him [the defendant] doing the past six months ? ” and an answer, “ Selling whiskey,” is admissible evidence; he may be asked, in reference to the contents of tumblers, “What did it look like?” and his answer, “Whiskey,” is admissible; he maybe asked, “What was in the tumblers?” When he has testified that he has had a conversation with the defendant, he may be asked, “About what?” He may he asked, in reference to the tenement, “In what condition have you seen people there ? ” and an answer, “ Going in sober and coming out drunk,” is not objectionable; and an instruction to the jury that the burden is upon the government to show, by evidence confined to the time covered by the indictment, that the defendant kept the place, and that it was kept for the purpose of illegal sale during that time, and that the presumption is that it was kept for legal purposes, is not erroneous.</p>

Complaint to the Municipal Court of the city of Boston, under Gen. Sts. e. 87, § 7, charging the defendant with keeping and maintaining a tenement used for the illegal sale of intoxicating liquors. At the trial in the Superior Court, before Aldrieh,, J., it appeared that the defendant sold intoxicating liquor in the premises described in the complaint, during the time set forth in the complaint, sometimes in the presence, and sometimes in the absence, of the proprietor.

Complaint for keeping and maintaining a tenement used for the illegal sale and illegal keeping for sale of intoxicating liquors. At the trial in the Superior Court, before Aldrich, J., a witness, called by the government, was allowed, for the purpose of refreshing his recollection as to certain dates, to refer to memoranda, which he said he made at the times of the dates and occurrences of which he was about to testify.

<p>An Indictment for perjury alleged the perjury to have been committed by the defendant’» falsely swearing, in answer to questions, that he had never had in his possession a deed purporting to convey any interest in real estate from the heirs of Samuel Holt to Mary Holt. The assignment of perjury was that he had “ had in his possession a deed of quitclaim signed and executed by heirs of the said Samuel Holt,” “ whose names and the number of whom are to the jurors unknown, purporting to convey and conveying to the said Mary Holt,” “ certain real estate;” “ being the farm of which the said Samuel Holt ” “ died seised and possessed, and on which the said Samuel Holt lived at the time of his decease.” The evidence was that he had had in his possession a deed purporting to convey real estate from the heirs of Samuel Holt to Polly Holt; that he knew that Polly Holt was known as Maiy Holt, and that she was the person referred to in the questions he answered. Held, that, if this were a variance at common law, it was made an immaterial variance by St. 1864, c. 250, § 1.</p>

Complaint to a trial justice under Gen. Sts. c. SO, § 27, for going from place to place, and from dwelling-house to dwelling-house, April 5,1872, at Northbridge, carrying for sale and exposing to sale sewing machines, sewing machine attachments, sewing silk and thread, without having a license so to do. The defendant was convicted and appealed.

Indictment under Gen. Sts. c. 161, § 7, containing five counts, and alleging in the first count that the defendant and Jacob Davis, March 29, 1873, at Boston, “ with force and arms, unlawfully, wilfully and feloniously did set fire to and burn ” certain jackets, under-shirts, drawers, towels, clouds, stockings, handkerchiefs, gloves, brushes and collars, of the property, goods and chattels of the said Philip, “being then and there insured against loss and damage by fire in…

Indictment containing two counts, the first for forgery, and the second for the uttering of “an order for the payment of money,” of the tenor following: “ Mr. Campbell, please give John Kepper ten'dollars. Frank Neff.” The defendant demurred to the indictment, because the writing there set forth was not one of which forgery could be committed. The demurrer was overruled.

The defendant, having been indicted in the Superior Court for a misdemeanor, pleaded in abatement that his name was Bartholomew Carr, and that he was not, and never had been known by the Christian name of Bartley. The Commonwealth replied that he was known as well by the name of Bartley as by the name of Bartholomew. Issue was joined, and the jury found that he was known as well by the name of Bartley Carr as by the name of Bartholomew Carr.

Indictment under Gen. Sts. c. 87, § 7, for keeping a building used as a house of ill fame: At the trial in the Superior Court, before Pitman, J., the prosecution introduced evidence tending to show that the building was used as a house of ill fame, and that the defendant was “the head woman,” and ostensibly had control of the house.

Complaint to the District Court of East Norfolk, alleging that the defendant at Quincy, in the county of Norfolk, on February 5, 1873, did keep intoxicating liquors other than ale, porter, strong beer, lager beer and cider, with intent to sell in violation of law.

Indictment alleging that the defendant, June 25, 1872, at Brighton, in the county of Middlesex, committed adultery with one Antoinette M. Morris. At the trial in the Superior Court, before Pitman, J., the defendant testified in his own behalf that he never had criminal intercourse with Antoinette M. Morris in Middlesex County.

Complaint to the Police Court in Cambridge, made May 3, 1873, alleging that the defendant, May 7,1873, at Boston, in the county of Suffolk, “ unlawfully did receive certain intoxicating liquors, to wit, three gallons of lager bier in twenty-four bottles, nine gallons of porter in forty-eight bottles, three gallons of ale in twelve bottles, for the purpose, then and there, of conveying said liquors to' some person whose name is to the complainant unknown, and was. then and…

<p>Intoxication neither justifies nor extenuates an assault and battery.</p> <p>A mother may use reasonable force to protect her daughter from a violent and indecent assault committed by a man, even though the daughter is sixteen years old; and the use of such force does not justify the man in striking the mother.</p> <p>Separate assaults upon different persons can by separate counts be united in one indictment.</p> <p>A police officer who has arrested a man for voiding his urine upon a woman in the street can upon the prisoner’s trial testify that his attention was called to the woman’s dress, and that he saw that it was wet.</p>

Indictment under Gen. Sts. c. 161, § 11, against Michael McGorty and Dennis Carney, for burglary. The indictment charged the breaking and entering of the dwelling-house of Margaret Finnegan, and the stealing of certain described property of Margaret Finnegan, and of certain other described property of Abby C. Horgan.

<p>Indictments, each charging that the defendant, upon a certain yonng woman, in the indictment named, made an assault and administered to her a large quantity of cantharides, “ the same being ” “ a deleterious and destructive drug,” with intent to injure her health, whereby she became sick and her life was despaired of. Both cases were tried together.</p> <p>It appeared at the trial in the Superior Court, before Eevens, J., that the defendant, in company with another young man, called upon the young women in the indictments named, and during the call offered them some figs, which they ate, they having no reason to suppose that the figs contained any foreign substance ; that a few hours after, both young women were taken sick and suffered pain for some hours; that the defendant and his companion had put into the figs something they had procured by the name of “ love powders,” which was represented by the person of whom they got it to be perfectly harmless.</p> <p>There was evidence that one of the ingredients of these powders was cantharides, and that this would tend to produce sickness like that which the young women suffered.</p> <p>The court instructed the jury that if it was shown beyond a reasonable doubt “ that the defendant delivered to the women a harmless article of food, as figs, to be eaten by them, he well knowing that a foreign substance or drug was contained therein, and concealing the fact, of which he knew the women to be ignorant, that such foreign substance or drug was „• ntained therein, and the women eating thereof, by the invitation of the defendant, were injured in health by the deleterious character of the foreign substance or drug therein contained, the defendant should be found guilty of an assault upon them, and this, although he did not know the foreign substance or drug was deleterious to health, had been assured that it was not, and intended only to try its effect upon them, it having been procured by him under the name of a ‘ love powder,’ and he being ignorant of its qualities or of the effects to be expected from it.”</p> <p>The jury found the defendant guilty of a simple assault in each case, and he alleged exceptions.</p>

Complaint for an illegal sale of intoxicating liquor. At the trial in the Superior Court, before Brigham, C. J., two witnesses testified that March 23,1873, they went to the defendant’s dwelling-house twice; once in the forenoon, when they remained an hour and a half, and again in the afternoon ; that each time, one of them purchased whiskey of the defendant’s wife, in the kitchen of the house, the defendant not being present, but coming in while the witnesses were there,…

<p>Under the Gen. Sts. c. 168, § 5, one who procures a felony to be committed in a county of this Commonwealth by means of letters written elsewhere, can be convicted in that county as an accessory before the fact.</p> <p>ETpon a criminal trial, an expert, having testified for the prosecution that certain letters material to the issue were in the defendant’s handwriting, was, on cross-examination, shown other and immaterial letters and asked if these were in the defendant’s handwriting. He declined to express an op.aion without further time for their examinat ¡on, and the court refused to allow the defendant to put them in evidence. Held, that, the extent to which they might be used being in the discretion of the court, their rejection was not a subject of exception.</p>

<p>One who with intent fraudulently to utter a promissory note as the note of a person other than the signer, procures to it the signature of an innocent party who does not thereby intend to bind himself, is guilty of forgery.</p>

Complaint for assault and battery. At the trial in the Superior Court, before Bacon, J., it appeared that the defendant was driving in a sleigh down Beacon Street, and was approaching the intersection of Charles Street, when a team occupied the crossing. The defendant endeavored to pass the team while driving at a rate prohibited by an ordinance of the city of Boston. In so doing, he ran against and knocked down a boy who was crossing Beacon Street.

<p>Upon the trial of an indictment for procuring A.’s signature to a partnership agreement by false pretences, with intent to defraud, it appeared that the defendant with intent to defraud made false representations to A. as to his, the defendant’s, pecuniary responsibility, in order to induce A. to advance him money for a pretended joint purchase of hay ; that A. trusting in the representations agreed to advance the money, but requested the defendant first to execute with him the partnership agreement; that this agreement was thereupon jointly executed and retained by A. Held, that from this it was competent for the jury to find that, the execution of the agreement having become necessary for the obtaining of the money, the defendant had adopted its execution as a part of hia plan; and that, as the agreement was complete without delivery, the defendant might oe properly convicted. ,</p>

<p>A by-law of a city providing that no one having charge of a hackney carriage shall, under a prescribed penalty, demand or receive more than a specified fare for a given distance, is a reasonable exercise of the authority given by Gen. Sts. c. 19, § 14, permitting the mayor and aldermen of cities to make regulations for carriages, with penalties for their violation; and the receiving a greater rate of fare under a special contract for unusual speed is a violation of such by-law.</p>

<p>The defendant, a sheriff, by a writing directed to one by name “ or bearer,” appointed him keeper of attached property; he, with the sheriff’s knowledge, transferred his office and the writing to another, who, without the sheriff’s knowledge,' transferred them to the plaintiff. In an action by the plaintiff to recover pay as keeper, it was ruled that the ac tian could be maintained, and the defendant’s offer to show that the plaintiff’s assignor had agreed to act without pay was rejected. Upon exceptions, Meld, that the action could not be maintained, because the assignor could not delegate his authority; but if the authority could be delegated, then the evidence was admissible, because the plaintiff must take the authority on the terms on which his assignor held it.</p>

<p>Tho plaintiff contracted with the defendant town to dig trenches in its streets for the laying of water-pipe, he to guard and light them and to be responsible for all damages caused by neglect, twenty per cent, of his pay being reserved till the end of the work as a guaranty for the performance of the contract, and any damages to person or property caused by his negligence to be deducted from the twenty per cent, reserved. Suit having been brought against the town for personal damage caused by falling into one of the trenches, the plaintiff was notified and assisted at its defence, and, the issue to the jury being whether the trench was properly guarded and lighted, a recovery was had against the town. In an action by the plaintiff against the town to recover pay for digging the trenches, Held, that the town and the plaintiff were not in pari delicto, and that the town could recoup in damages the amount paid by them in the former suit, although it exceeded twenty per cent, of the contract price.</p>

Petition for a writ of certiorari, to quash the proceedings oi the county commissioners of the county of Middlesex, abating a tax assessed upon the President and Fellows of Harvard Collegé, by the assessors of Cambridge.

<p>One who maintains a dam under the mill acts has not such an easement in the flowed lands as will enable him to maintain a petition under Gen. Sts. c. 134, § 49, and St. 1873, c. 178, against the landowner, to compel him to try the title.</p>

Contract. The declaration alleged that the board of selectmen of Arlington duly relocated, repaired, and widened a town way, within the limits of the town, running across land of the defendant; that the street was accepted by vote of the town, at a town meeting duly held; that in making such relocation, repair and widening of the street, it became necessary to cross over and touch upon a flume belonging to the defendant, which ran beneath the street, to carry water under it…

Petition under Gen. Sts. c. 150, § 8, to enforce a mechanic’s lien. The case came to this court by appeal. The answer denied every allegation of the petition. The record transmitted to this court contained beside the pleadings nothing except the following unextended minutes from the clerk’s docket. “ 1872, June, Answer. 1873, June, Default. September Decree of sale. Motion to vacate decree, and allowed. Motion to amend petition, and allowed.

<p>Libel for divorce. At April term, 1873, the libel was heard, and a decree entered granting to the husband a divorce nisi from the bond of matrimony, under St. 1870, c. 404, for extreme cruelty, and gross and confirmed habits of intoxication contracted by the wife after marriage.</p> <p>The libellant asked that a share of the wife’s estate might be given him in the nature of alimony.</p> <p>It appeared in evidence at the hearing, before Endicott J., that the libellant conveyed all his real estate, of the value, at the time of the hearing, of $7500, to his wife on or before the date of his marriage in 1865 : that after the' marriage he gave $2000, all his personal property, to her; that he was old, and feeble in body and mind, and unable to work, and having been driven from his home by the treatment of his wife, was, and had been for more than a year, supported in the Lowell almshouse.</p> <p>The libellee contended that alimony could not be decreed under Gen. Sts. o. 107, § 44, upon the granting of a divorce nisi, and the court so ruled, and, at the request of the parties, reserved the question raised for the decision of the full court.</p>

Contract to recover the amount of two promissory notes made by the defendant payable to his own order and indorsed in blank. At the trial in the Superior Court, before Brigham, C. J., the signatures of the defendant were admitted, the notes were read in evidence, and the plaintiff rested his case.

Tort for damage caused to the plaintiff while passing along a highway under a railroad bridge, by his horse taking fright at the noise made by cars upon the bridge.

<p>Bill in equity, filed September 9, 1872, by the city solicitor of Somerville in behalf of the city, to restrain by injunction Charles O’Neil, Jr., from enlarging and extending contrary to the St. of 1871, o. 167, the buildings occupied by him in Somerville, used for a melting and rendering establishment and for the manufacture of soap. The answer of the defendant denied that he had erected, or was erecting, any building for enlarging and extending the premises heretofore used by him, or for enlarging or increasing his business, but alleged that he erected a new building upon the premises he had for a long time occupied in his business, instead of repairing an old one, and that he proposed to use the new building for the same purposes for which he had long used the old building, but denied that he had extended or increased, or that he proposed to extend or increase, his business.</p> <p>Upon the hearing of the cause, before Ames, J., it appeared that the defendant was the owner of the land and buildings described in the bill of complaint, and, at the date of the bill, and for a long time previously, had used the building for a melting and rendering establishment, and for the manufacture of soap, in Somerville, a city containing more than four thousand inhabitants. In this rendering business, he made use of two open kettles ; but the building in which they were placed did not cover the entire lot of land. In the year 1872, he tore down a part of his buildings, which were old and dilapidated, and, without coneent or permission from the mayor and aldermen of Somerville, erected a new building, standing partly on land covered by the old buildings, and partly on land that had not been so covered. The new building covered about one third as much space as the old buildings, and was two stories high, with a French roof* while the old buildings were, for the most part, only one story in height. The defendant’s purpose was to place in that part of the new building formerly covered by the old one a covered kettle or tank, for melting and rendering purposes, and to use the residue of the building for storage, and other purposes connected with his business, and to tear down and discontinue the use of the old buildings, and of the two open kettles. And it appeared that the capacity of the proposed new tank for rendering purposes would not exceed, and might not equal, that of the two open kettles. The old buildings were standing and in use, except so far as displaced by the new building.</p> <p>The judge reserved the case, upon the bill and answer, and upon the foregoing facts, for the consideration of the full court.</p>

Petition for a divorce from the bonds of matrimony, and for leave to marry again.

<p>A trustee under a will who deliberately mingles the trust funds with his own, withholding information from the cestuis que trust, as to the investment of them, will be removed, though he is the testator’s son and the father of the cestuis que trust, and though the will directs him to pay to them the income, from time to time, as he thinks best, and exempts him from giving bonds.</p>

<p>Contract to recover the amount of two promissory notes. The answer denied the making of the notes, alleging also that they were without consideration, and that the defendant had paid them ; “ and the defendant further says that if the plaintiff shall show that he made said notes, then the defendant says the same were given as a part payment of the consideration of the conveyance of certain real estate by the plaintiff to the defendant; and said plaintiff covenanted and warranted with the defendant that said real estate was free from all incumbrances in said deed, and the said real estate was not free from all incumbrances, but was incumbered by a lien for taxes assessed thereon; and so the consideration of said notes has failed in part.”</p> <p>At the trial in the Superior Court, before Allen, J., the plaintiff put in the promissory notes, the making of which was then admitted, and rested.</p> <p>The defendant offered to show that the notes were given in payment for land conveyed by the plaintiff to the defendant by a deed of warranty containing a covenant that the land was free from all incumbrances except a certain mortgage therein specified ; that the deed was executed and delivered May 4, 1872; that for the year 1872, taxes which amounted to $58.89 were duly assessed upon the land by the city of Lowell; that the defendant requested the plaintiff to pay these taxes, and the plaintiff refused; and the defendant, to prevent the enforcement of the lien created by the taxes, paid them.</p> <p>The court ruled that the facts so offered to be proved by the defendant, if proved would constitute no defence to the action, and ordered a pro formd verdict for plaintiff, and the defendant alleged exceptions.</p>

Writ of entry to foreclose a mortgage. Writ dated July 10,1872. Upon a motion in the Superior Court, before Allen, J., to award a conditional judgment, it appeared that the mortgage debt was a promissory note given by the defendant to the plaintiff for part payment of the purchase money of the mortgaged premises, which were conveyed by the plaintiff to the defendant at the same time the mortgage was given.

Motion by the plaintiff to dismiss a bill of exceptions to rulings of Dewey, J., at a trial in the Superior Court at September term, 1873, as not having been seasonably presented.

Contract for money had and received. At the trial in the Superior Court, before Rockwell, J., the plaintiff, in opening his ease, stated that he expected to prove that the plaintiff was a dealer in ice, and furnished ice each week day to parties in Boston, under contracts to furnish a certain amount daily, upon all week days; that his custom was to have his carts loaded by twelve o’clock on Sunday night, in order to start early Monday morning; that any failure on the part of…

<p>A trust does not result to the grantor upon a deed of land in the common form reciting a consideration and containing an habendum to the grantee to the grantee’s use; and an attempt by the grantee by a void deed to execute such a supposed trust does not give it efficacy.</p>

Contract to recover for labor and materials furnished by the plaintiff, in curbing a cemetery lot for the defendant at an agreed price. At the trial in the Superior Court, before Allen, J., it appeared that prior to June 30, 1870, one Gill and one Bell, as copartners, carried on the business of stone-workers at a yard in Waltham.

<p>Upon an appeal from the decision of a single justice, when a suit in equity is heard by the full court upon a report of the evidence given at the original hearing, the decision cf the court below will not be reversed as to matters of fact, unless it clearly appears to be erroneous.</p>

<p>A grantee under a warranty deed, against whom a writ of entry has been brought, is not bound to permit the grantor to defend, and a refusal to do so will not discharge the grantor’s liability for a breach of the covenant of warranty.</p> <p>K grantee under a deed of warranty, who has been evicted by title paramount tram an undivided part of the granted premises, pertaining to which premises is a right to build upon a division wall, can recover the market value of that undivided part of the land with the building right pertaining thereto.</p>

Tort for the conversion of furniture and housekeeping goods. The answer denied property in the plaintiff and denied the conversion, and justified the taking by virtue of a mortgage given by oohn Mead to one Charles H. Morse, and assigned to the defendants.

<p>Petition filed at October term, 1873, under St. 1873, c. 371, § 3, for an absolute divorce from the bond of matrimony. The case was submitted to the court upon an agreed statement of facts, as follows:</p> <p>’ The petitioner and the respondent were duly married to each other May 10, 1865, and thereafter lived together, as husband and wife, in the county of Middlesex. At April term, 1873, of this court, the petitioner duly obtained a decree of divorce nisi, under St. 1870, c. 404, from the bond of matrimony, from the respondent, for cruel and abusive treatment, and for gross and confirmed habits of intoxication, contracted since said marriage. Since this decree nisi, the parties have not lived together. Both parties are under guardianship, as insane persons. George Stevens, the counsel for the petitioner, is his guardian; and Charles Cowley, the counsel for the respondent, is her guardian. Both were duly appointed by the judge of probate, for the county of Middlesex, since the decree nisi, and before the bringing of this petition. These guardians were duly appointed guardians ad litem for their respective clients, in this proceeding. If, upon the foregoing facts, the court are of opinion that the petition can be maintained, then the decree is to be made absolute, and the case is to stand for such other decrees upon the petition as may be proper; otherwise, the petition is to be dismissed without prejudice.</p>

Tort for obstructing a way. Writ dated Feb. 28, 1872. The declaration alleged that the plaintiff owned a lot of land, (describing it,) “ and there was a way leading to the same from Pleasant Street, so called, in said Malden, which the plaintiff had the right to use as a footway and carriage-way; and the defendant erected a fence in and across said way, and placed stones and posts in the same, so that the plaintiff could not use the same.” In the answer the defendant alleged…

Petition for a writ of certiorari to quash the proceedings of the mayor and aldermen of the city of Cambridge, in assessing upon the abutters upon certain streets the expense of the edge-stones and covering materials used in the construction of sidewalks.

Tort for the conversion of a wooden building used as a stable. The answer denied the conversion and the plaintiffs’ property.

Contract on an account annexed to recover the sum of $47.25 tor medical attendance and medicine. The defendant answered that he was a minor under the age of twenty-one years. The plaintiff replied that the sum sued for was for necessaries furnished the defendant suitable to his estate and degree.

Contract for money had and received by the defendant to the use of the plaintiff. Writ dated June 18, 1872. The answer was a general denial and the statute of limitations.

Contract to recover interest upon a legacy. In the Superior Court, trial by jury was waived, and the case was heard and was determined by Brigham,, C. J., upon finding the following facts : Joshua Magoun died December 6,1857, and left a last will, which was duly admitted to probate January 12, 1858. The material portion of the will was as follows : “ 8th.

Bill in equity against Leverett Saltonstall and Sarah A. Lerned, alleging that Thomas P. Lerned, being the owner of certain real estate, conveyed it to the defendant Saltonstall by a deed the habendum of which was as follows : • “ To have and to hold the aforegranted premises to him the said Saltonstall and to his heirs and assigns, in trust for the uses, trusts and purposes hereafter set forth and for none other; to wit: for the benefit and use of Sarah A. Lerned, wife of…

Contract. “ William Tidd, Charles H. Brown and Charles W. Tidd, copartners under the firm William Tidd & Co.,” were summoned as trustees.

<p>Contract for a breach of the following agreement to convey real estate:</p> <p>“ East Cambridge, March 2, 1872. Received of M. C. Mengis ten dollars on account of purchase of three double houses and land on Pearl and Lopez Street, Cambridgeport. Price $18,000. Balance within sixty days, two thirds cash, balance on mortgage at 7%. Wm. G. Carson.”</p> <p>At the trial in the Superior Court, before Brigham, C. J., it was agreed on both sides that the mortgage referred to in the agreement was to be a second mortgage, and that the buyer was at liberty, if he saw fit, to put a first mortgage on the premises in order thereby to raise the money to make his cash payment. The plaintiff offered evidence to show his readiness, on March 2 and 4, to perform his part of the agreement; that on the morning of March 4 he received from the defendant the following letter:</p> <p>“ Cambridge, March 4, 1872. Sir, Owing to opposition on the part of my wife, I shall not be able to give you a full title to the three houses on Pearl Street, and consequently I must withdraw my offer of them to you, in order that you may not be put to any unnecessary expense in looking up titles, &c. Your ten dollars returned herewith. Yours, Wm. G. Carson.”</p> <p>The suit was commenced in the afternoon of the same day.</p> <p>The defendant offered in evidence the following letter received by him from the plaintiff, which was admitted against the plaintiff’s objection. It appeared that the letter was mailed by the plaintiff, under direction of his counsel, on the morning of March 4:</p> <p>“ Cambridgeport, March 4,1872. Sir, Yours of this date has just been received. In reply I have to state that I hold you to your bargain. It is a square, fair trade, and unless you stand by it, I shall take legal proceedings against you. Upon the strength of that bargain I have entered into other transactions which will embarrass me very much, unless you do as you agree. Yours, tespectfully, M. C. Mengis.”</p> <p>The defendant also offered testimony, also against the plaintiff’s objection, tending to show that he, the defendant, employed counsel, who, with his authority, after the date of the writ, notified the plaintiff that he was willing to deliver a deed pursuant to his agreement; that two or three different deeds were prepared, but were not satisfactory to the plaintiff ; that finally, one was drawn to which he made no objection, until just before the expiration of the sixty days, when he objected that it did not purport to convey the land he had bought, but that a strip of two feet on one side of the lot was excluded from the description. It was also in evidence that at the time of the last interview about the delivery of the deed, the defendant refused to consent to take a second mortgage if the first mortgage note bore a higher rate of interest than six or seven per cent, per annum. There was no testimony that at the date of the contract any rate of interest for the first mortgage was mentioned. This evidence of the defendant was admitted to show that the breach of the contract committed by the defendant’s letter of March 4 (if there were any such breach) had been waived and the contract revived and continued in force until the expiration of the sixty days.</p> <p>No summons was served on the defendant until March 14, and there was a conflict of testimony as to the time when the defendant actually knew of the suit, the plaintiff contending that he and his counsel were informed of the suit soon after the date of the writ, and the defendant contending that he did not learn of it until the summons was served.</p> <p>There was no evidence that the plaintiff tendered to defendant the mortgage or money called for by the contract, but there was testimony tending to show that he was provided with the money and was ready to execute and deliver the mortgage, 'but he contended that he had been excused from making a tender of the money or mortgage or a demand for a deed. He introduced evidence to show that the conversations and transactions after March 4, were either entered into with a view to compromise the suit, or were in the nature of negotiations for a new contract; that the minds of the parties never met, and that there was no intention on his part to waive the breach of, or to revive, the original contract, if such contract could be revived by paroi, which he contended could not be done.</p> <p>The plaintiff requested the court to rule, and instruct the jury as follows:</p> <p>“ 1. If the jury are satisfied that the defendant absolutely refused to perform his contract on the next business day after the contract was made, then the plaintiff was discharged from all further obligation to perform his part of it, or to be ready to perform it.</p> <p>“ 2. The paper sent by defendant to plaintiff cm the 4th of March constituted a breach of the contract, and plaintiff could sue immediately.</p> <p>“ 3. The refusal on the part of the plaintiff to consent to the defendant’s breach of his contract was no waiver of the breach itself.</p> <p>“ 4. No waiver by plaintiff of the breach would be valid except upon a new consideration.</p> <p>“ 5. Any number of negotiations for a new contract would not be sufficient to show any waiver of the breach of the original contract.</p> <p>“ 6. At all events, if defendant could by a tender after breach place himself in the same position as before breach, such tender must be not only of a deed but also of costs of suit already in curred.</p> <p>“ 7. Any conversation after suit brought which related to the settlement of a suit cannot affect the rights of the parties.</p> <p>“ 8. If in any case of mutual and dependent promises, it is competent to offer evidence of a tender of performance of a contract after breach and in favor of a party who has already committed a breach of it, such evidence is only competent in mitigation of damages.</p> <p>“ 9. To be competent even for that purpose, the tender must be of a performance exactly in conformity to the terms of the agreement, and must be made not merely within the time limited in the original contract, but also so seasonably as to enable the ither party, who has been before notified of the breach, to place himself again in a condition of readiness.</p> <p>“ 10. In case of an agreement of sale and purchase of real estate and of a renunciation of the agreement on the part of the seller, of which a written notification is made to the buyer, the contract is at an end, and there can be no revival of the contract except by some new agreement, which agreement must be in writing signed by the party to be bound thereby.”</p> <p>The prayers numbered from 1 to 6 were refused; those numbered from 7 to 10 were given, coupled however, with the following instructions : “ If the plaintiff, on receiving the defendant’s letter of March 4, immediately wrote to the defendant the letter of March 4, and in that letter the plaintiff in effect informed the defendant that he should hold him to his contract to convey the land in question according to the terms of the contract, and gave him the alternative of fulfilling the contract, or a suit upon the contract, and thereupon the defendant gave the plaintiff reasonable notice of his intention to fulfil the contract, (such notice would have been reasonable if given before the delay in giving it had practically affected the plaintiff to his injury in his resources, means or arrangements for fulfilling the contract,) and thereupon the parties proceeded to arrange together for carrying into effect the original contract, there was no breach of the contract by the defendant on March 4 which would excuse the plaintiff from offering to fulfil his obligation under the contract. If the jury find that there was a breach of the contract on the 4th of March, they may find for the plaintiff; if no breach of the contract on the 4th of March, in view of the conduct of and communication between the parties on that day and subsequently, the jury will find for the defendant. If the negotiations between the parties after March 4th related to a new contract, such negotiations would-not warrant the inference by the jury of the waiver of any conduct of the defendant in the nature of a breach of the original contract; especially if such negotiations related to a compromise of the plaintiff’s suit. But if the plaintiff’s suit was not known or disclosed to the defendant, that fact would tend to prove that the defendant was not negotiating with reference to the compromise of that suit.”</p> <p>The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

Petitions to the Superior Court for juries to assess damages caused by the laying out of Canal Street, in Charlestown. Petitions filed December 81, 1869.

Tort, for breaking and entering the plaintiff’s house, thereby breaking the door, injuring the lock, and doing other damage.

Tort, brought by the administrator of the estate of Frank A. Rolfe, for the conversion of two horses belonging to the estate.

<p>In an action against a husband for jewelry purchased by his wife, evidence that the articles were such as women usually wore who dressed as the wife did, is not admissible to show that they were necessaries; but evidence that the husband wore diamonds and kept a fast horse is admissible for that purpose; and so is evidence that he bad paid for silk dresses bought by her.</p> <p>Ihe testimony of a wife as to conversations had by her with her husband, when they were alone, is inadmissible against him.</p> <p>Evidence of the amount of the tax forwhich a man is assessed, although he pays it, is inadmissible against him to show his condition in life, in a suit for the price of goods furnished his wife as necessaries.</p> <p>To maintain an action against a husband for articles sold his wife without his authority, while they are living together, it must appear that he neglected her suitable support, and that the goods were reasonably necessary, having regard to his condition in life;-and whether articles not wholly ornamental, bought for her personal use, are necessaries, is for the jury; and it cannot be ruled as matter of law that two gold chains, a gold locket, and a gold watch are not necessaries.</p>

<p>An officer’s return upon an execution given him to be levied upon land, set forth that he had appointed two appraisers, “ the creditor having neglected, after notice, to appoint,” and that he had delivered seisin to the creditor in full satisfaction of the execution. In a writ of entry by the creditor to obtain possession, Held, that the levy was void, the officer having no authority by Rev. Sts. c. 73, § 3, (Gen. Sts. c. 103, § 3,) to appoint for the creditor; and that as in appointing he had not assumed to be the creditor’s agent, his act was not ratified by the creditor’s acceptance of seisin.</p>

<p>A recovery can be had for the price of milk sold in milk cans not sealed as required by St. 1870, c. 218, if the sealer of weights and measures has not been refused permission to test the cans, and if they have not been by him condemned.</p>

<p>A recovery can be had for the price of articles sold by weights or measures not sealed as required by St. 1870, c. 218, if the sealer of weights and measures has not been refused permission to test them, and if they have not been by him condemned.</p> <p>By the Gen. Sts. c. 49, § 63, sales of oats and meal must be by the bushel, and an action cannot be maintained for their price if sold by the bag.</p>

Contract to recover for a balance alleged to be due for a stock of goods sold and delivered under the following written agreement, signed by the parties : “ This agreement, made between B. F. Holbrook, of Maynard, in the State of Massachusetts, of the one part, and Charles F. Setchel, of Norwich, in the State of Connecticut, of the other part, witnesseth, as follows, that is to say, the said Holbrook on his part agrees on or before the 20th day of November, A. D. 1871; to…

Tort. The declaration was as follows: “ And the plaintiff says that he rented of the defendant a certain room on second floor, with steam power, at a certain rent per month, to wit, the sum of twenty-two dollars and ninety cents, in a building situated on the southerly side of Market Street, in said Lowell, and being room No. 5 in said building, the entrances to which are Nos. 90 and 92 on said street; and that the defendant, without any legal notice, right or authority, cut…

Tort in the nature of trespass for breaking and entering the plaintiff’s close, and cutting down and carrying off a large number of trees thereon growing.

Bill in EQUITY against the partnership of Vibbard, Foote & Company, the partnership of Jay Cooke & Company, George L. Brastow and Gardner Prouty, to compel the defendants to transfer and deliver to the plaintiffs 4190 iron rails lying in a United States bonded warehouse in Charlestown, to obtain the possession of which, the plaintiff had, as the bill alleged, sued out a writ of replevin, giving a bond in twice the value of the property, upon which the officer had returned…

Replevin of 4190 rails of railroad iron. The defendants were the members of the partnership of Vibbard, Foote & Co., and of the partnership of Jay Cooke & Co., all of the State of New York, and George L. Brastow and Gardner Prouty. Writ dated January 29, 1873.

Tort for damage done by the defendant’s cattle. The first count in the declaration, which was the count on which the plaintiff relied, was as follows : “And the plaintiff says that November 21, 1871, he was, and ever since has been, law fully seised and possessed of a certain tract of land in Watertown, [describing it.] And the plaintiff says, that the defendant, November 21, 1871, at said Watertown, had in his possession a certain number of cattle, to wit, fifty; and that…

<p>Bill in equity by a trustee appointed by the Probate Court, seeking for the instructions of this court.</p> <p>The bill alleged that November 1, 1839, Dexter Fairbanks being seised in fee of a certain parcel of land situated on Prospect Street in Cambridge, conveyed it to one Henry Prentiss, then of Boston: “ To have and to hold the same to the said Prentiss, his heirs and assigns forever, to the use and upon the trusts and confidences following, and for no other purpose whatever ; that Is to say, for the use and benefit of Sally Gr. Holmes, wife of Orpheus Holmes, Sarah Maria Holmes, daughter of said Orpheus by a former wife, Chester D. Holmes, Adaline Holmes, Henry 0. Holmes, and Betsey C. Holmes, children of said Orpheus by his present wife, Sally Gr. Holmes, and such other children as said Orpheus may lawfully hereafter have by his present or any other wife, and for the use and benefit of the heirs and assigns of the said Sally G., Sarah Maria, Chester D., Adaline, Henry 0., Betsey C., and of such other children as said Orpheus may hereafter have as aforesaid, and upon the further trust and confidences that the said Prentiss shall convey the above described premises or any part thereof to such person or persons as the said Orpheus and Sally G. Holmes or the survivor of them shall in writing direct, and not otherwise.” The bill then alleged that Orpheus had no other children by Sally G. than these named in the deed; that Sally G. died about the year 1841; that Sarah Maria was also dead, leaving as her only heir at law a daughter, now Helen Maria Hayden; that Orpheus and Sally G. and their children and Sarah Maria occupied the estate until the death of Sally G.; that November 17,1842, Orpheus was married to Martha Ann Dodge, who has borne him four children, Anna C. D. Holmes, K. Ella Holmes, Allan B. Holmes, and Esther B. Holmes, the last of whom was a minor over fourteen years of age ; that Orpheus separated from his wife, January 14, 1862 ; that Prentiss long ago died ; that Orpheus, until after the appointment of the plaintiff as trustee of the estate, always continued in possession of it, and had taken the rents and profits to his own use ; that the plaintiff was appointed trustee November 28, 1871; that he took possession of the premises, and has been in receipt of the rents and profits from that date, paying the taxes and expenses, and holding the balance for the parties entitled thereto.</p> <p>The bill set out the claims of the different parties above named, which are not now materia., and asked for instructions as to the meaning of the trust deed, and as to what he should do with the proceeds; and alleged that he had been directed in writing by Orpheus, February 21, 1872, to convey the property to Edward W. Drew, discharged of the trust. As to this he also asked instructions.</p> <p>The case was reported to the full court by Endieott, J., for the construction of the deed, and directions to the trustee.</p>

<p>The proceedings on a complaint for flowing under Gen. Sts. c. 149, bind one subsequently acquiring the mill-owner’s rights, though the damages to be paid are determined by an award rendered upon a submission entered into under a rule of court giving the referees the powers of a sherifi’s jury; and, the complainant having elected to take the gross sum awarded, the subsequent purchaser’s failure to pay such sum within the time limited by Gen. Sts. c. 149, § 22, forfeits his rights under the act, and makes the further maintenance of the dam a nuisance to be restrained by proceedings in equity; and a mortgagee of the mill, though out of possession, is a proper party defendant to such proceedings, and, making no disclaimer, will be enjoined.</p>

<p>Petition to. enforce a mechanic’s lien upon a lot of land and the school-house thereon, for work done upon the school-house.</p> <p>At the trial in the Superior Court, before Wilkinson, J., with out a jury, it appeared that the town of Lincoln duly appointed a committee to build the school-house ; that this committee executed in behalf of the town a contract in writing with one Hoar to build it and to furnish the materials therefor for $6500; that Hoar contracted with each of the petitioners to do and furnish the work for which he sought payment; that there was due the petitioner Edwin W. Stevens $151.69; the petitioner Henry S. Jewett $158.46; the petitioner Sherman H. Barrett $132.05; the petitioner Albert A. Haynes $142.21; and the petitioner Jonas A. Barrett $138.88; that the certificates were in due form, and that they and the petition were filed in due time.</p> <p>The following is the only material evidence relating to the land and the authority of the committee to contract for building the school-house thereon.</p> <p>The petitioners called one John C. Chapin, who testified that he was and for a long time had been treasurer of the town and one of the selectmen; that he was a member of the building committee appointed to build the school-house; that the committee made the contract with Hoar in behalf of the town; that the school-house was built partly upon the site of a formerly existing school-house; that the new school-house covered twice as much land as the old one; that it covered most of the land covered by the old one and some of his land which lay on the northerly, westerly and southerly sides of the lot on which the old school-rouse stood, and also a small piece of land at the southerly come» oelonging to the First Parish; that the lot on which the old schoolhouse stood measured about twenty-four feet on the Bedford Road, and was about thirty-six feet deep, and that he could not give the dimensions of the new one; that he had made diligent search for a deed to the town of any part of the land, and had searched in the Middlesex Registry for the record of any such deed, and could not find any such deed or any record of such a deed; that he had not given the town any deed of that portion of his land covered by the school-house, but had consented that the town might use it for school purposes so long as they maintained a town schoolhouse thereon ; that the building committee, acting under a vote of the town, duly passed, caused the old school-house to be removed and sold, and the proceeds thereof to be paid into the town treasury; that the old school-house had been used by the town for a school-house more than twenty years. On cross-examination he testified that after the work was done for which the petitioners sought to recover, Hoar surrendered his contract for building the school-house because he was not able to fulfil it, and that the committee finished the building.</p> <p>The petitioners called one Henry 0. Chapin, who testified that he was and for a long time had been clerk of the town and had resided therein over thirty years, and that during that time the town had used the old school-house for school purposes; that adjoining the old school-house was a small building used during that time by the town to keep the town hearse in; that at a town meeting legally called in 1870, before work on the schoolhouse was commenced, John C. Chapin and others were elected a committee to build a new school-house, with authority to remove the old school-house and hearse-house, if necessary for the location of the new school-house; that the old buildings were removed and the new house erected covering a portion, if not the whole, of the land on which the old school-house and hearsenouse stood.</p> <p>The respondents asked the court to rule that the petitioners had not maintained their liens, but the court declined so to rule, and found on the evidence that the petitioners had maintained their liens upon the building described in the petition and on so much of the land covered by it as was contained in the following description, to wit, the land formerly covered by the old school house, bounded easterly on road to Bedford about twenty-four feet, and southerly, westerly and northerly on land of James L. Chapin, and ordered a sale accordingly.' And the respondents alleged exceptions.</p>

Contract to recover $2000 upon a written agreement, by which the plaintiff contracted with the defendant for that sum to “ fit up with granite a burying lot in Reading Cemetery ” according to certain specifications, “ all of said work to be done except the urns on or before December 1, 1871.” The declaration contained also a count for work done and materials furnished.

Petition of the town of Winchester for a writ of certiorari to quash the proceedings of the county commissioners of Middlesex in the assessment of damages to the estate of Elizabeth L. Gardiner for land taken for a highway.

<p>The St. of 1869, c. 111, relating to sewers and drains, confers the power of making and maintaining sewers and drains, and of laying assessments therefor, upon the mayor and aldermen of a city, although by the city charter such power is given to the city council; but an order of the mayor and aldermen for the construction of a sewer is not invalidated by the concurrence therein of the common council; and the mayor and aldermen, Without the concurrence of the common council, may make an assessment for the construction of a sewer laid out by the city council before the passage of the act; but a valid order of assessment once made cannot be rescinded at a subsequent meeting, after the warrant has been committed to the city treasurer and notice given to the owners of the assessed estates.</p>

Petition to enforce a mechanic’s lien. The petition alleged that William ÉL Mills was the owner of a tract of land, and “ while such owner, entered into a contract with your petitioner whereby your petitioner was to furnish lumber and other material as building material to be used in the erection of a dwelling-house which said William H. Mills was building on said land.” The petition also alleged that the last materials were furnished June 3, 1871.

Petition to the county commissioners for a jury to assess the damage done to the premises of the petitioner, by the laying out of Portland Street.

<p>Contract for the use- and occupation of a mill by the defendant as tenant at sufferance of the plaintiff from August 27, 1872, to November 25, 1872. The answer denied that the defendant was tenant at sufferance of the plaintiff, and alleged that he was tenant at will of one Bruce.</p> <p>At the trial in the Superior Court, before Brigham, C. J., the title was shown to be as follows: July 15,1865, Bruce mortgaged the mill by a power of sale mortgage to the Mercantile Savings Institution. July 29, 1865, Bruce conveyed the mill subject to this mortgage to one Holmes. November 1,1870, Holmes conveyed the mill, with additional land, to one Wentworth, taking back a power of sale mortgage of the premises conveyed. This last mortgage of the mill and additional land was, July 6, 1871, assigned to one Rich, who, November 28, 1871, purchased the mill under the power of sale contained in the mortgage of the mill to the Mercantile Savings Bank. August 2,1872, Rich assigned the mortgage of the mill and additional land to the plaintiff, by the words “ do hereby sell, assign, transfer, set over and convey” “ said mortgage deed, the real estate thereby conveyed, and the promissory note, debt and claim thereby secured, and the covenants therein contained.” August 27, 1872, the plaintiff took possession under this mortgage.</p> <p>The defendant contended that the assignment by Rich to the plaintiff passed no title to the mill, but the judge ruled otherwise, and the jury having returned a verdict for the plaintiff, the defendant alleged exceptions.</p>

<p>Under the St. of 1870, c. 404, § 3, this court may in its discretion make absolute a decree of divorce, upon evidence that the parties have lived apart for three consecutive years, without special reasons being shown therefor other than the facts disclosed by the record of the case.</p> <p>Upon an application under St. 1870, c. 404, § 3, to make absolute a decree of divorce Bin", evidence is not admissible to disprove the existence of the facts upon which the decree was founded.</p> <p>In the absence of fraud in obtaining it, a decree for divorce nisi will not be opened three years after it was granted, to let in evidence to contradict the facts upon which it was founded.</p> <p>A decree of divorce nisi having been made absolute under St. 1870, c. 404, § 3, by a single justice, and the exceptions which were reserved before the passage of St. 1873, c. 371, (repealing the section of the statute under which the decision was made) having been overruled, Held, that the decree should be made absolute as of the time of the decision of the single justice.</p>

<p>After a decree, in a suit in equity to redeem an estate from a mortgage, establishing the plaintiffs’ right to redeem, and after a refusal of the defendant’s motion to re-open that decision, it is too late to deny the plaintiffs’ right to maintain the bill, at the hearing of exceptions' to the master’s report of the amount due upon the mortgage.</p> <p>Upon a bill to redeem an estate from a mortgage, brought against one who, besides having the mortgage title, was. in possession under a homestead right of less value than the entire estate, and who asserted an unfounded claim of absolute ownership under a foreclosure of the mortgage, Held, that the righto of the parties were those of tenants in common, and that the defendant was not liable for his personal occupation of the premises, or for rents received not in excess of his share as owner of the homestead right; and that his right under his homestead title was not affected by his unfounded claim of ownership.</p> <p>The owner of land having mortgaged it and conveyed the equity to a grantee who assumed the payment of the mortgage debt, afterwards himself reduced that debt. Upon a bill to redeem, brought by the grantee against the former owner’s widow, who, after her husband’s death, had become the assignee of the mortgage, Held, that she was entitled to receive only the amount actually due upon the mortgage, and not the whole amount of the mortgage undiminished by her husband’s payments.</p>

Tort for damage caused to a horse by a defect in the highway.

Upon a hearing before Endicott, J., in respect to the issues to be submitted to a jury, certain issues were agreed upon, and the appellant George F. A. Wallis submitted that he had evidence which he should offer showing that “ after the execution and publication of the instrument propounded for probate as the last will of the deceased, she revoked it by another instrument in writing executed and published by her as her last will and testament in the presence of three…

<p>Upon an assessment by a sheriff’s jury of the damages caused by taking land for a way, the value of the direct benefit done the estate should be deducted.</p>

Motion in the Superior Court made by the petitioner to set aside the verdict of a sheriff’s jury awarding him damages for the taking of his land by the respondent corporation. At the trial before the sheriff the respondent objected to the introduction in evidence of a paper purporting to be a record of the doings of the county commissioners, and which was signed only by their chairman. But the paper was admitted.

Contract. Writ dated May 10, 1870, returnable to the Superior Court. The defendant was summoned to answer to the plaintiff, as she was administratrix of Abraham Osborn, deceased.

Tort. The declaration was as follows: “ And the plaintiff says, that the defendant, on or about the eighth day of April, A. D. 1872, debauched and carnally knew Flora N. Howland, a minor daughter of the plaintiff, between the age of fifteen and sixteen years, and the servant of the plaintiff, whereby the said Flora became pregnant and sick with child for a long space of time, to wit, for the space of nine months then next following, at the expiration of which time the said…

<p>If there is wantonness or mischief, causing additional bodily or mental damage, in the injurious act of a servant within the scope of his employment, that wantonness or mischief will enhance the damages as against the master.</p>

<p>To recover possession of real estate levied on, under Gen. Sts. c. 103, § 1, as estate purchased by a debtor with title conveyed to another to defraud creditors, there must be proof, in the absence of a trust for the debtor, that the grantee was a party to the fraud, or that the deed was a voluntary deed and wholly without consideration moving from him.</p> <p>When a debtor, with intent to defraud creditors, pays part of the purchase money for real estate, and his wife with her own money pays the residue, and the title is conveyed to her, she being ignorant of the intended fraud, the creditors cannot by a levy under Gen. Sts. c. 103, § 1, recover from her any portion of the premises; and this though the money paid by her is money given her by her husband in repayment of money lent to him; but an instruction is erroneous which leaves the jury to infer that her payment may be made with her husband’s money or with money lent by her to him.</p> <p>Upon the question whether money borrowed belongs to the husband or to his wife, the fact that she gave her own note for it is evidence for the jury.</p> <p>When a person’s intent is in issue, he, being a witness, may testify to it.</p> <p>A declaration of a plaintiff that the action ought not to have been brought, is admissible evidence for the defendant.</p> <p>In an action against a wife, the issue being whether certain money in a bank was hers or her husband’s, she can testify that she had given her husband money to be there deposited for her.</p>

<p>A stone that has lain in a highway for twenty-four hours may be a defect under Gen. StP c. 44, § 22, making towns liable for defects existing for that length of time, although its position has been changed in the mean time by human agency, provided it has not ceased by the change to be the same defect; and the court cannot say, as matter of law, that it is not the same defect unless it has remained the whole time across the rut where it caused the injury.</p>

<p>An action for the breach of a written agreement to purchase land, brought before the expiration of the time given for the purchase, cannot be maintained by proof of an absolute refusal on the defendant’s part ever to purchase.</p>

<p>Contract for work done. The writ was dated July 12,1870, and an attachment of the defendant’s real estate was made the same day. At September term, 1871, of the Superior Court, there was a trial and a verdict for the plaintiff. Exceptions were taken by the defendant, but were waived in October, 1872. June 14, 1872, the defendant filed his petition in bankruptcy, and was duly adjudged a bankrupt; and January 25,1873, obtained his discharge in bankruptcy, and pleaded it in the suit. After the filing of the defendant’s petition in bankruptcy and the adjudication thereon, and before his discharge, he gave, July 22, 1872, under Gen. Sts. o. 123, § 104, a bond with sureties to dissolve the attachment.</p> <p>The plaintiff moved the court to enter a special judgment, to be enforced by action upon the bond, against the defendant and his sureties, and Putnam, J., upon the above facts, (which were agreed in writing by the parties,) ordered a special judgment for the plaintiff, and the defendant appealed.</p>

Contract to recover the amount assessed to the defendant, under Gen, Sts, e, 48, § 4, upon his entering his particular drain into a common sewer laid by the city. At the trial in the Superior Court, before Bacon, J., without a jury, the defendant, after the plaintiff had opened his case, asked 'Jie court to find a verdict for the defendant upon the ground that 10 action at law could be maintained for the assessment.

Contract to recover the amount assessed upon the defendant under Gen. Sts. c. 45, § 7, as his share of the expense of grading a sidewalk. In the Superior Court, the case was submitted upon an agreed statement of facts. Judgment was ordered for the plaintiffs, and the defendant alleged exceptions,

<p>The year within which one aggrieved by the laying out of a town way must, under Gen. Sts. c. 43, § 73, make application for a jury, if it commence to run before the laying out is accepted under Gen. Sts. c. 43, § 65, at a meeting of the inhabitants, does not, at the earliest, commence to run before the transmission under Gen. Sts. c. 43, § 74, to the town clerk of the description of the location óf the way.</p> <p>A person aggrieved by the laying out of a way, who duly applies for a jury within the year limited by Gen. Sts. c. 43, § 73, is not prejudiced by a delay of the commissioners in issuing the warrant for the jury.</p>

<p>A deed from a third person to a wife, made at the request of her husband and with the intent to vest in her the legal estate, is presumed, in the absence of clear proof to the contrary, to have been intended as a provision for her, and does not create a resulting trust in the husband’s favor.</p> <p>A husband assents in writing, within the meaning of Gen. Sts. c. 108, § 3, to his wife’s mortgage of her real property when he signs as guarantor her promissory note secured by the mortgage, it being expressed upon its face that it is secured by the mortgage.</p> <p>The assignment to a husband of a mortgage upon his wife’s real estate, which by the term» of the deed conveying the estate to her she was to assume and pay, vests a good title to the mortgage in him, though his right to enforce it is suspended during her life.</p>

<p>A pauper’s settlement derived from that of his father, which was derived from the provisions of law in force before February 11, 1794, is not defeated by St. 1870, c. 392, § 2, when his father’s settlement prevents his acquiring the settlement his mother had before her marriage ; and consequently is not within the provisions of St. 1871, c. 379, § 3.</p>

Petition to the Superior Court for the appointment of three commissioners to determine, the towns in interest being unable to agree, the proportion to be paid by the town of Norfolk of the debt of the town of Wrentham, and the proportion of the property of the town of Wrentham to be received by the town of Norfolk, under St. 1870, c. 35, § 4,* which statute incorporates the town of Norfolk from certain territory formerly within the bound aries of the several towns of…

Libel for a sentence of nullity of marriage, on the ground that the libellee had another husband living at the time of the marriage.

<p>Where a guilty party in a case of divorce, marries again, without leave of court, during the life of the other party, and afterwards obtains such leave, a continued cohabitation in the belief that the marriage already solemnized is, or has become, legal, does not render it so.</p>

Petition to vacate a decree of divorce obtained in 1861, by the respondent against the petitioner, for the cause of her adultery. Petition filed in February, 1873.

<p>Tort against the sheriff of Norfolk County for the conversion by his deputy of a horse, by taking it upon a replevin writ sued out April 4, 1870, by the members of the partnership of Eaton, Moulton & Co., against those composing the partnership of Snyder & Co., returnable to and entered in the Superior Court for Norfolk County, at April term, 1870. Writ dated April 4, 1870.</p> <p>At the trial in the Superior Court, before Bacon, J., it appeared chat the horse, prior to January 10, 1870, was the property of the partnership of Snyder & Co., who carried on a paper factory in Franklin, and that the plaintiff claimed title by virtue of a sale to him by Van Trump, a member of that partnership. There was conflicting evidence as to the ownership, and as to the possession of the horse, “ the defendant claiming on the evidence that the sale of the horse to the plaintiff was colorable and not intended to pass title, but was made to make a pretence of title in the plaintiff to cover up the property from creditors; that the plaintiff had neither property nor possession.”</p> <p>The defendant requested the court to instruct the jury as follows :</p> <p>“ If the plaintiff’s possession was a merely colorable possession for and in behalf of Snyder & Co., or Van Trump, as a member of the firm of Snyder & Co., and the transfer by Van Trump to the plaintiff was colorable, and a cover not intended to pass any real title, but for the fraudulent purpose of creating an appearance of title to defraud creditors, the plaintiff is not entitled to recover for the taking of the horse under the replevin writ, especially when the replevin suit was settled between the parties without any return of the property; or if anything is recoverable by the plaintiff, it must be only nominal damages, not the full value of the horse.”</p> <p>But the court refused so to instruct the jury, and instructed them as follows:</p> <p>“ If the defendant’s deputy took the horse under the replevin writ, and the horse belonged to the plaintiff and not to Snyder & Co., the defendants in said writ, the defendant is liable to the plaintiff for the value of the horse at the time of the taking. The case turns on the question whether the horse was the horse of the plaintiff or of Snyder & Co. If the horse was the horse of the plaintiff, and not of Snyder & Co., the defendant has no justification. It is not necessary for the plaintiff to show he had the real full title to the horse. He must show a better title than the defendant, or rather than Eaton, Moulton & Co., the plaintiffs in the replevin suit. If the plaintiff had possession of the horse, and Eaton, Moulton & Co. had neither title nor possession, the plaintiff must recover. The plaintiff having possession, and the defendant taking the horse wrongfully, the plaintiff must prevail. If the plaintiff had the right to keep and hold the horse, and the defendant had neither, the plaintiff must recover.</p> <p>“ The court has ruled that there was no evidence that Eaton, Moulton & Co. had either title to or possession of the horse when the horse was taken possession of. If, then, you find that the plaintiff had possession, however bare or naked, he can maintain this action. If, however, his possession was the possession of another, as the servant or agent of some one else, such possession is not sufficient. A servant cannot maintain this action. Was, then, the plaintiff in possession of the horse ? You have nothing to do in this case with the principle of law making preferences by an insolvent debtor void, or witn the law making conveyances in fraud of creditors void. The only question is whether there was a conveyance of any title to the plaintiff. If the possession was transferred, although to hinder and defraud creditors, the plain tiff can maintain this action. The plaintiff is only bound to show a transfer to him of possession, and Van Trump, being a member of the firm of Snyder & Co., could transfer the title of the firm. If, however, the horse was not taken from the plaintiff’s possession, then the plaintiff cannot recover. If the possession was in Van Trump, then the plaintiff cannot recover. If Van Trump, for Snyder & Co., put the horse into the plaintiff’s possession, then the plaintiff is entitled to recover. If the story of the plaintiff, however, about the sale to him and the leaving of the horse in Thayer’s stable for Thayer to hold for him is false, the defendant must prevail. But if, whether honestly, or to give a preference, or to defraud creditors, there was a transfer of the possession to the plaintiff, he is entitled to recover the fair market value of the horse at the time he was taken under the replevin writ, and interest.”</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Bill in equity, filed April 15, 1873, brought by the plaintiffs as trustees of the Brookline Land Company, to remove a cloud on the title to a portion of the company’s property.</p> <p>By St. 1868, c. 182, § 1, the Jamaica Pond Aqueduct Corporation was given the right, “ for the purpose of better supplying fresh water, and for saving and retaining the water that may percolate from Jamaica Pond,” “ to take, hold or purchase ” certain described land. By § 2, parties whose “ land or water, or water rights, shall be taken or injured ” under the act, if unable to agree upon the amount of damages, are to apply to the Superior Court for Norfolk County for a jury to assess them, “ at any time within three years after such taking or injury; ” and a description of the land taken is to be filed in the registry of deeds for Norfolk County “ within six weeks after taking any land ” under the act. By § 3, “ This act shall be void, so far as it gives the right to take land, water or water rights, unless the same shall have been taken within two years from the passage of this act.”</p> <p>The act was approved May 8, 1868. A description of the land taken, which was land of the plaintiffs, was filed in the registry of deeds for Norfolk County April 28, 1870, which description contained a statement that the land was taken for the purposes expressed in the act.</p> <p>' At the hearing, before Wells, J., the evidence showed that the president of the aqueduct corporation, accompanied by an engineer, on the day previous to the filing of the description, “ made an entry upon the premises by walking over the bounds of the land,” declaring that he did so for the purpose of entering under the act, and that from that day to the time of the hearing, the land, water, water rights, trees, turf and all things upon the lot remained in substantially the same condition as on the day the act was passed.</p> <p>Upon this the plaintiffs contended that no such taking as the act contemplated had been made; and that the aqueduct corporation had lost any rights it had under the act.</p> <p>The aqueduct corporation maintained that the entry made was all that the act required, and that it having been made within the prescribed two years, it was immaterial to what purpose, if any, the land had since been put, and that its rights under the act were not lost.</p> <p>The presiding judge therefore reported the case for the determination of the full court.</p>

<p>Trespass. The case was submitted in the Superior Court upon an agreed statement of facts.</p> <p>In 1845 the heirs of Peter Adams and another were the owners of a tract of land in Quincy, lying upon the southerly side oí the Hingham and Quincy Turnpike, and bounded easterly by North Street, and containing eight acres and one hundred and thirty-six rods. This tract they caused to be laid out in ten different lots, numbered from five to fourteen inclusive, and a plan thereof to be made by L. Humphrey, surveyor, which was lithographed and used for negotiating the sale of these and other lots. A copy of the material part of the plan is given upon the preceding page. The plaintiff, by several conveyances at different times, acquired title to the lots numbered 12, 13, 14. The defendant, May 15,-1871, became the owner, through mesne conveyances from the original grantees, of the lot numbered 11.</p> <p> </p> <p>The original deeds from the heirs of Peter Adams conveying the several lots, described the premises or lots conveyed by metes and bounds which include the. strip marked “ Street ” on the plan; all the lots being bounded on their southerly sides by land of Jonathan Baxter and land of Thompson Spear. The original conveyance of each lot by the heirs of Peter Adams was by several deeds, the different heirs executing separate deeds of their respective undivided interests. Added to the description of the premises, in each deed, was a reservation in one or another of the three following forms. 1. “ Reserving, however, out of the lot of land above described, a piece or strip thereof, two and a half rods wide, across the bottom or southerly and south-westerly side of the same, and adjoining said Thompson Spear’s land and land of said Jonathan Baxter, to be used as a street or passage-way for the accommodation of the several lots numbered from five to fourteen, inclusive, on said plan, and to be used in common by the owners of said several lots numbered from five to fourteen, inclusive, their heirs and assigns forever, as a passage-way to said North Street as laid down on said plan.” 2. “ Reserving, however, out of the lot of land above described, a piece or strip thereof, two and a half rods wide, across the bottom or southwesterly side of each, and adjoining the land of said Thompson Spear and said Jonathan Baxter, to be used as a street or passage-way for the accommodation of the several lots numbered from five to fourteen, inclusive, on said plan, the same to be kept open as a passage-way to said North Street, as laid down on said plan, and to be used in common by the owners of said several lots numbered from five to fourteen inclusive, their heirs and assigns forever.” 3. “ Reserving, however, out of the lot of land above described, a piece or strip thereof, two and a half rods wide, across the bottom or southerly and south-westerly side of the same, and adjoining said Thompson Spear’s land and land of said Jonathan Baxter, to be used as a street or passage-way for the accommodation of the several lots numbered from five to fourteen, inclusive, on said plan, and to be used in common by the owners of said several, lots numbered from five to fourteen, inclusive, their heirs and assigns forever.”</p> <p>Each deed contained the reservation in one, only, of the foregoing forms, but among the deeds of eacn lot all of these forms were found. All of the deeds likewise referred to the plan, as follows: “Being lot numbered” “on a plan of lots of land belonging to the heirs of Peter Adams and another, made by L. Humphrey, and dated September 3, A. D. 1845, a copy of which plan is deposited in the registry of deeds for said county of Norfolk, for the purpose of reference.” The deeds, however, contained no grant or conveyance of any right of way to North Street or to any other point, or of any right of way over any premises or lot, unless the language of the reservations above set forth could be construed into such grant or conveyance of a right of way.</p> <p>The plaintiff purchased lots 13 and 14 at an auction sale in 1845, and lot 11 was purchased at the same sale by one Wilson, under whom the defendant derived title, and the conveyances of the lots to the plaintiff and to Wilson bore the same date, October 28, 1845. Before and at the time of the auction sales and conveyances in 1845, and ever since, the strip of land marked “Street” on the plan-was bounded on all sides but the side bounded on North Street by land belonging to and occupied by private persons, and did not lead to or abut on any public or private way except North Street.</p> <p>The plaintiff, in the spring of the year 1846, built a fence from the point marked A to the point marked B on the plan, on the east side of lot number 13, which remained standing until August, 1849, when it was removed by the plaintiff. This fence waa rebuilt between the same points, by the plaintiff, in 1858, and has remained standing ever since, until pulled down by the defendant as hereinafter set forth.</p> <p>In 1868, the plaintiff built a fence on the east side of lot number 12, from the point marked C to the point marked D on the plan. The defendant has not acquired any right of way over the rectangular parcel of land bounded on the plan by the lines A B, B D, D O, and 0 A, unless by the reservations above described. The fence erected by the plaintiff on the easterly side of lot 13, and pulled down by the defendant as hereinafter set forth, was placed on the easterly line of lot 13, standing one half on lot 12 and one half on lot 13.</p> <p>The trespass alleged in the plaintiff’s declaration was the removal by the defendant of the fence from C to D; his entry upon the rectangular parcel of land bounded by the lines A B, B D, D C, and 0 A; his passage over the same to the line A B, and the removal of the fence upon that line, doing no more damage than was reasonably necessary to remove the whole of the fences standing on the east and west lines of a strip of land, two and a half rods wide, on the southerly side of the lot numbered 12.</p> <p>If, upon these facts, the defendant was guilty of a trespass upon the plaintiff’s land, it was agreed that judgment should be entered for the plaintiff; if the defendant was justified in so entering and removing the fences, then judgment was to be for the defendant.</p> <p>Bacon, J., ordered judgment for the defendant, and the plaintiff appealed.</p>

<p>Petition for a writ of certiorari to quash the proceedings of the county commissioners, in locating a highway over the petitioner’s land.</p> <p>The petition alleged that a petition of the town of Brookline signed by its selectmen, and two other petitions signed each by inhabitants of the town, were presented to the county commissioners, requesting them to locate anew the highway called Washington Street; that the town did not, but that the other petitioners did give recognizances for the payment of costs ; that the petitioner appeared and remonstrated against the relocation of the highway, but that, notwithstanding, the commissioners relocated it over his land; that they ordered the damages to be paid by the town of Brookline, and further ordered “ that on condition that the said town of Brookline pays the damages aforesaid, and such other damages, costs and expenses as may accrue by virtue of the verdict of any jury, or the judgment of any court of competent jurisdiction, from the relocation of said Washington Street under these proceedings, or be incident thereto, and shall construct said street as required by the return and to the acceptance of said commissioners, and provided further, that said Washington Street shall then, at the time of said acceptance, and at the expiration of the said two years, be within the territorial limits of the county of Norfolk, then the sum of ten thousand dollars shall be paid from the treasury of said county to the town of Brookline; and upon a certificate of said facts made by the selectmen of said town, an order shall issue from the county commissioners for the payment of said sum to said town.”</p> <p>The petition further alleged that before relocating the highway the commissioners, at times other than their regular meetings, heard privately the selectmen of the town as to the expediency of locating the highway anew.</p> <p>All the allegations in the petition were admitted by the respondents to be true, except the allegation as to private hearings; and except that in regard to objections having been made by the petitioner at the hearing before the commissioners.</p> <p>At the hearing before Wells, J., it appeared that William Aspinwall was a selectman of the town of Brookline, and that he acted as selectman and as counsel of the town of Brookline in the proceedings before the county commissioners. Upon the testimony of the county commissioners and of others called by the petitioner, the judge found that after the public hearings by the commissioners, Aspinwall, on several occasions, saw one or more of them at an office in Boston, where they had a desk, and where they transacted business informally on Saturdays, and at those interviews expressed the opinion of the board of selectmen of Brookline that it was important that the relocation should be made, and that their determination should be made, and made known, soon ; and that he also made some suggestions as to the extent of the proposed widening and as to the damages to be awarded to abuttors; and to one of the county commissioners Aspinwall said that the relocation would be a great public benefit.</p> <p>The judge also found that “ there was no improper purpose to influence the action of the county commissioners, otherwise than to hasten it, and that their action was not, in fact, changed by reason thereof; that while engaged upon the business of examining and relocating the road, dinners or lunches were furnished by the town of Brookline to the county commissioners, the counsel and the witnesses of all parties, and to all persons interested who were present; that this was done in accordance with the custom which prevailed in the county, for petitioners so to provide, while the commissioners were engaged upon the business of the petitioners.” It appeared that the objections made to the proceedings at the hearings before the commissioners were made in behalf of other parties and not by, or in behalf of, Blake.</p> <p>The case was reported for the consideration of the full court.</p>

<p>The owner of land, intending to construct a street over it and over adjoining land, took a conveyance of a right of way over the adjoining land by a recorded deed which contained a condition that he should construct the street according to a plan and a profile referred to therein. While making the street according to the plan and profile, he conveyed that part of his land against which he was then making the street, by a deed, bounding it upon the “ projected street,” together with a right of way over the whole street, as shown upon the plan. In an action by the grantee against the grantor for taking away grave in the construction of the street from that portion of it included in the grantee’s deed, JHeld, that the plaintiff took his land with notice of the manner in which the street was to be constructed, and that the defendant was not liable for making it according to th* plan and profile referred to in his deed.</p>

<p>A town cannot raise by taxation, or pay from its treasury, money for expenses incurred in opposing before the Legislature the annexation of the whole or of a part of its territory to another town.</p>