Volume 115 — Massachusetts Reports

<p>Petition filed April 16, 1873, under the St. of 1873, o. 189, § 2,* by William L. Burt, as the agent employed by the United States under said statute, to the Superior Court for this county, against the Merchants’ Insurance Company, and Charles D. Head and Francis Curtis, receivers of said company, which had been declared insolvent. The petition described the first estate men-tinned in § 1, being the estate of the Merchants’ Insurance Company, on the comer of Congress and Water Streets in Boston, and alleged that the plaintiff had attempted to purchase the said land of the defendants, and that the parties could not agree upon the price to be paid therefor; and prayed to have a valuation of the defendants’ estate made by a jury in the manner provided in said chapter.</p> <p>Trial before Rockwell, J., who, after verdict, allowed the following bill of exceptions:</p> <p>“ The receivers of the Merchants’ Insurance Company were the general owners of said estate. Charles L. Haley was the lessee thereof, and Avery & Harris were sub-lessees under said Haley. The buildings on the land were totally destroyed by fire November 9 and 10, 1872, and only land was taken.</p> <p>“ The defendants offered evidence to show the value of said estate at the time of trial, claiming that the valuation to be made was to be the value of the estate at the time of the trial, as the nearest approach to the time of the taking, and not the value at the time of filing the petition: to which evidence the plaintiff objected; but it was admitted.</p> <p>“ The plaintiff asked for the following instructions : That in this case, under the St. of 1873, c. 189, the jury are to determine the value of the land of respondents, and their respective interest therein, at the time of filing the petition in this case, to wit, April 16, 1873, and not at any subsequent time, nor at the time of the hearing before the jury: That in no event, as against the said petitioner, is the value of said land to be increased beyond its fair cash market value, by reason of any apportionment of damages between the respective parties claiming an interest in said land; notwithstanding the jury should be of opinion that, as between the respondents, under their several contracts and leases, the aggregate value of their respective claims might or should exceed, or fall short, of the fair cash market value of said land, free from and not subject to any lease or contract made upon or concerning said land, as against the petitioner: That, as against the United States, the petitioner, the jury are to determine the value of said land, as land, at its fair cash market value, free from, and not subject to, any lease or contract made upon it, and as though one person owned it as one estate in fee, with interest thereon from April 16, 1873. These instructions the presiding judge refused to give.”</p> <p>The bill of exceptions then set forth at length the entire charge to the jury; so much of which as is material to the understanding of the points decided by the court was as follows :</p> <p>“ The object of the proceeding is to ascertain the value of certain real estate which the government of the United States manifests a desire to purchase, and to pay therefor the fair market value of the interest and claims of the respective owners of the estate. It is the fair market value that you are to ascertain; and your verdict will consist of several items, substantially these : In the first place, you will ascertain the total amount of the value to the owners of the estate, estimating the same as an entire estate and as if the same was the sole property of one owner in fee simple; and that may not improperly be called the total value of the estate. In the next place, you will ascertain the fair market value of the estate to the Merchants’ Insurance Company, who, in this case, are the owners of the fee of the land. In the third item, you will ascertain and find the fair market value of the interest and term of Haley, the first lessee. In the fourth item, you will ascertain the fair market value of the interest and term of Harris & Avery, the sub-lessees. And the sum of the last three items will be equal to the first; for it is a division that you are to make among these several parties in interest. The time at which these values is to be ascertained and fixed is the present time, the time of the trial and verdict, as being nearest the time when the purchase would be made and completed.</p> <p>“ You will, then, proceed to consider the evidence in that light, to ascertain the fair market value at this time. And I have stated that the first thing for you to ascertain is the total market value of the entire estate, to he ascertained from the evidence ; that is, its value to the owners of the estate, estimating the same as an entire estate as if the same was the sole property of one owner in fee simple; and I add now, regard being had to the situation of the estate, and the manner of its occupation, that may not improperly be called the total value. You are to estimate it at its value to the owners of the estate, not to the owner, — to the owners of the estate. It is the value to all the owners that is to be found; and you are to estimate the same as an entire estate as if the same was the sole property of one owner in fee simple; not as the sole property of the owner in fee simple, but as if it was the sole property of one owner in fee simple. You will then ascertain the value to the owners as an entire estate and as if there was but one owner in fee simple. You must, therefore, ascertain the value to all the owners ; and, in doing so, you must estimate it as an entire estate and as if the same was the sole property of one owner in fee simple. Thus you will get the total value, or the fund which you are to divide among the several owners.</p> <p>“ Now, the several owners in this case are, first, the Merchants Insurance Company, who own the fee of the land; another owner is Haley, who leased this property of the Merchants’ Insurance Company, for fifteen years from the 1st of March, 1870, and who has parted, substantially, with the value of his lease, for a consideration, but the term which he has conveyed to the sub-lessees is a little shorter in point of time than the lease to him; he is, therefore, an owner of this property, and he holds an interest in a term. The other owners are Harris & Avery, the sub-lessees, who hold the lease under Haley. These, then, are the three owners ; and it is the value to them that you are to ascertain. And, when you come to apply the rule, that it is to be estimated as an entire estate as if the same was the sole property of one owner in fee simple, you will remark that it is not the same as if the language was, ‘ the value to the owner of the estate in fee simple.’ It is the value as it would be to one owner in fee simple; and then that total value is to be divided between this owner in fee simple and the owners of the terms.</p> <p>“ The counsel for the United States contend, that this total value to all the owners of the estate is not so large as it would be if the term created by the leases was not in existence. In speaking of the term created by the leases in this connection, I may as well call it a term, though it belongs to the two owners, — Haley and Avery & Harris. The counsel for the United States contend that the value of the entire estate, estimated as I have stated, should not be found by you to be so large as it would be if the terra created by those leases was not in existence. That is to say, that the existence of the term diminishes the total value of this property, estimated in this way, from what it would be if there was no such term. The term which remains is eleven years and eight months. Does that term affect the total value of this estate to the owners ? You will consider that in weighing the evidence, and making up this first item in your verdict; and if you find, upon the whole evidence, that the existence of that term makes the total value of this estate, estimated as I have said, less than it would be if the term was not in existence, you will regard that fact in making up your verdict, and make it up at the value, as you determine it ought to be, in the present situation of the estate, and the manner of its occupation. If you are satisfied, from the whole evidence in' the case, that the existence of that term has no effect upon the total value, you will so find; and your verdict on that particular item will not be affected by the existence of the term.</p> <p>“ Having ascertained the total value, in this first item of your verdict, you have then to ascertain three things more ; and, when you have ascertained them, you will have ascertained three items which will exhaust this total value, into which this total value will be divided. And the rules by which you are to ascertain them are these:</p> <p>“ In ascertaining the value of the interest and claim of the owners of this estate in fee, the Merchants’ Insurance Company, you will look at their interest. You will see that they have conveyed a part of the interest which they held ; you will ascertain the fair market value of their interest, as it stands to-day, with a term created upon it by their lease having about eleven years and eight months to run; and consider, also, that that lease secures to them $15,000 rent, annually, payable quarterly, according to the terms of the lease. And you may, if you please, and it seems good to you, consider in this valuation the term as an incumbrance upon the fee of the estate owned by the Merchants’ Insurance Company ; and you may, if you please, come at the result of what the fair market value of their interest is, by ascertaining its value as a fee, and then deducting from that value the value of this Incumbrance. And the incumbrance is made by the term, and the term is owned by the other parties ; and if there is anything in the case to induce you to believe that the injury of that incumbrance to the owners of the fee is exactly equal to the value of the term to the tenants, it may be the proper way for you, having ascertained the injury which the term makes to the owners in fee simple, to consider that as the value of the term to the tenants, and then to divide that value between the tenants, thus making the third and fourth items of your verdict.</p> <p>“ But you may not be of that opinion. It is not for the court to decide facts upon the evidence; it is only for the court to suggest the rules of law, in the light of which you are to examine the testimony. There are various provisions in these leases; and you will recollect them, and have them before you. And if those leases, by virtue of any or all of their provisions, alter that fact, and show to you that the injury which this term considered as an incumbrance creates to the owners of the fee, the diminution of their value is not in amount the same as the value of the term to the tenants, you will then make the division in the light of those facts. That is to say, the division will be different from what it would be if you did not arrive at that opinion, by taking something from one and adding it to the other, and still leaving the sum of the three last items in your verdict equal to the total value as ascertained by the first item.</p> <p>“ Having proceeded thus, if you choose to adopt this method, you will have found, first, the total value, according to the law; you will then have divided it into three parts, and assigned each part to the three several owners, and thus have performed your duty.</p> <p>“ The total market value of the entire estate is first to be ascertained from the evidence ; that is, its value to the owners of the estate, estimating the same as an entire estate as if the same was the sole property of one owner in fee simple, regard being had to the situation of the estate, and the manner of its occupation. The owners are the Merchants’ Insurance Company, holding the fee, Haley, the lessee, and Harris & Avery, the lessees under him. It is the value to all these owners that is to be ascertained as the first item in your verdict. That will be the sum which the United States are to pay, and may properly be called the total value. This sum is the aggregate value of the entire estate to lite owners before named, estimating it as an entire estate as if the same was the sole property of one owner in fee simple. This is not the same as the value of this estate to the owner of the fee in it, but is larger, and includes that. . You are to ascertain the total value from the evidence.</p> <p>“ The counsel for the United States contend that this total value is not so large as it would be if the term created by the leases was not in existence. If you are satisfied that the existing term of eleven years and eight months affects this total value in that way, you will consider it in weighing the evidence, and making up this first item in your verdict.” To all these rulings and instructions and refusals to instruct, the plaintiff excepted.</p> <p>Exceptions were also taken by Avery & Harris, but as these were not passed upon by the court they are omitted.</p>

Contract for breach of the following agreement signed and sealed by the defendant, a married woman, under date of June 9, 1870: “ I hereby acknowledge that I have purchased by public auction, house and lot 29 on Beethoven Street for the sum of six thousand dollars, and have paid into the hands of Gr.

Tort in the nature of trover for the conversion of building materials. The case was heard in the Superior Court without a jury, by Lord, J., who after judgment for the defendant allowed ft bill of exceptions in substance as follows: The plaintiff sought to recover the value of certain building materials, detached from a building in Boston, the estate of the plaintiff, upon which the defendant, a mason, was employed by the tenant of the plaintiff, to make some alterations.

Contract to recover of the defendant the sum of $39.00, a balance due the plaintiff for personal services as water-tender in the defendant’s rolling mill, at Readville.

Contract on a recognizance, in which the defendant Lewis was principal, and the defendant Judson Murdock was surety. • At the trial in the Superior Court, jury waived, before Putnam, J., it appeared that the plaintiff commenced an action on a promissory note against the defendant Lewis, returnable at January term of the Superior Court, 1872; that the defendant appeared and filed an answer, but was afterwards defaulted, and judgment was entered for the plaintiff in June…

<p>Contract by Marshall N. Cutter and Benjamin F. Parker upon a joint and several bond to dissolve an attachment conditioned to pay a judgment within thirty days. The case was heard in the Superior Court upon the following agreed statement of facts:</p> <p>“ The writ was dated March 12,1873. The defendant, Evans, was a surety upon the bond, and George C. Angelí was principal, and the date of the bond was June 13, 1870. The original action, in which the attachment was made and the bond given, was brought in the Superior Court, for goods sold and delivered. Judgment, was recovered against Angelí in that action, at January term 1871, and has never been satisfied or reversed. The defendant offered to prove certain facts which plaintiffs objected tc as incompetent and immaterial; but if the same are competent and material, the following is to be taken as a true statement thereof:</p> <p>“ At July term, 1870, pending the above original action, James Sumner, an attorney at law, appeared and filed an answer therein for the defendant Angelí. Thereafter, on September 27, 1870, Angelí was adjudicated a bankrupt, under the laws of the United States, in the District Court of the United States for the district of Massachusetts, and on the same day, Charles G. Keyes, Angell’s solicitor in bankruptcy, entered his name in said action, with Sumner’s name, upon the clerk’s docket, as of counsel for defendant, and made an oral suggestion of defendant’s bankruptcy, which the clerk noted in pencil upon the docket, Sumner having been notified by said Angelí to withdraw from the case. Keyes’s name was never withdrawn. No motion or paper touching the bankruptcy was filed in this case. The plaintiffs put the action upon the trial list for January term, 1871. In January or February, 1871, one of the plaintiffs’ counsel met Sumner upon the street, and said to him, ‘ I suppose you have no objection now to our having judgment in the Angelí case.’ And Sumner said ‘No.’ About the first day of March following, the case was reached upon the trial list, and plaintiffs were in" court and said they were ready, and defendant not appearing, plaintiffs moved for a default, which was allowed. Ten days afterwards, on March 11, judgment was entered upon the default, on motion of the plaintiffs. In October, prior to the default and judgment, the first meeting in bankruptcy of Angell’s creditors was held, and one of plaintiffs’ counsel chosen assignee; and at the same meeting plaintiffs proved their claim, and the same was allowed , and plaintiffs appear upon the record of the bankrupt court as creditors who have proved their claim. Within thirty days after recovering the judgment, plaintiffs gave notice thereof in writing to Angelí, and made demand for payment; and immediately after the expiration of the thirty days, gave similar notice to, and made demand upon Evans. Shortly after this, on April 17,1871 Angelí filed a bill in the United States District Coun, taking for an injunction against- plaintiffs, and, by consent, plaintiffs were enjoined in the following terms: ' By consent in open court, ordered that injunction issue restraining respondents from levying their judgment mentioned in complainant’s bill upon the person or estate of complainant, and from levying, or in any way proceeding in said judgment against the complainant, until the further order of the court.’ Angell’s discharge in bankruptcy was refused January 14, 1873, and the above injunction dissolved March 1,1873.</p> <p>“ If these facts offered by defendant are competent, and afford a legal defence or ground for abating or barring this action, then such decree is to be made for the defendant as the court deems proper; otherwise, judgment to be entered for plaintiffs in one thousand dollars, the penalty of the bond.”</p> <p>On the foregoing facts judgment was ordered for the plaintiffs, and the defendant appealed to this court.</p>

Contract for money had and received. The case came before this court on an appeal by the defendant from a judgment of the Superior Court for the plaintiffs upon the following agreed facts: “ The plaintiffs held a lease from the defendant of a store in the building No. 202 Washington Street, in Boston, which con* turned the following clauses, viz.: To hold for the term of two years from the first day of January, 1872, yielding and paying therefor the rent of three thousand…

<p>Tort to recover damages done to the goods and property of the plaintiff by the bursting of a water pipe. The case was heard in the Superior Court, trial by jury being waived, by Lord, J., who after judgment for the plaintiff allowed a bill of exceptions in substance as follows :</p> <p>“ The defendant was the owner of a building in which the accident occurred. She leased the store on the first floor and the cellar of this building to George W. Vinton, by indenture dated April 9, 1866, for a term of ten years, and by indenture of the same date she leased all of said building over said store for a like term of years to William Cumston. The Vinton lease was assigned to the plaintiff in 1868, with the assent of the defendant, and the plaintiff has since occupied the leased premises thereunder. In 1869, an under-tenant of a part of the premises under the Cumston lease put in a water-closet in the entry on the second floor of the building, (being the first floor óf the part under the Cumston lease,) and ran the supply pipe from this closet into the plaintiff’s premises, and there entered it into a supply pipe running through the plaintiff’s premises up through this entry to another water-closet in the entry in the third story of the building. It did not appear when or by whom this latter water-closet was put in. The only faucet to turn off the water from the supply pipe in question was in the plaintiff’s cellar. The pipe leading from the cellar to the water-closet in the second story was not the same that supplied the premises occupied by the plaintiff. The water had been shut off in the cellar from the latter. The plaintiff testified that the pipe in the entry above was left all open. Between Saturday evening, November 30, 1872, and the following Monday morning, the supply pipe leading to this water-closet in the entry on the second floor, put in in 1869, as aforesaid, burst in the entry at or near the door leading into the closet and caused the damage complained of. The only evidence in regard to this pipe came from the plumber who put it in for the tenant as aforesaid, who testified that it was a good pipe of the size and thickness of those usually put in in Boston, and that it was boxed in. One of the plaintiff’s witnesses testified that it was not boxed in, as the box had been opened for repairs. The bursting of this pipe was caused by freezing, and the only evidence in regard to this was that on said Saturday evening the thermometer stood nineteen degrees above zero; Sunday, at noon, twenty-one degrees above, ana that after that it was higher.</p> <p>“ There was no evidence that the defendant had any knowledge in regard to this water-closet and fixtures. Cumston underlet the premises under his lease to one Shaler, whose sub-tenant put in the water-closet in 1869 as aforesaid. In November, 1872, Cumston’s estate assigned his lease to one Morse, and it was agreed for the purposes of the trial that it was to be treated as an assignment to the defendant. There was a conflict of testimony as to whether, after this assignment, the room on the second floor opening from the entry where this water-closet was and this pipe burst, had been given up to and accepted by the defendant before the accident.</p> <p>“ The court ruled that as the place where the pipe burst was not within the premises held by the plaintiff under the Vinton lease as aforesaid, the provisions in that lease that the property on the leased premises should be at the risk of the lessee, and that no part of the loss or damage to it from the causes stated should be a charge to the lessor as therein particularly set forth, did not apply to damage caused by such bursting; that it was immaterial whether the room aforesaid was or was not surrendered, as where there were water-closets in the entries of a building let to different tenants, and in this case to tenants other than and not including the plaintiff, there was an implied agreement on the part of the owner of the building that such water-closets and fixtures should be suitable and proper and should be kept suitably and properly protected from the weather. The court found upon the evidence aforesaid that the supply pipe was either not a proper one or was not properly protected, (otherwise it would not have frozen up and burst,) and held in pursuance with the aforesaid rulings that the defendant as the owner of said building was liable for the damage occasioned by such bursting. The defendant excepted to the foregoing rulings.”</p> <p>The material provisions in the lease are stated in the. opinion of the court.</p>

Writ oe entry, dated December 17, 1872, to recover the undivided half of certain premises situated in East Boston. Plea the general issue, which was joined.

<p>When, a case is referred to arbitration to determine the boundary line between two estates, and an award is made accordingly, it is competent to show that the referee has made a mistake on his own theory; but it is not competent to show that he has erred in judgment, or that he has made a mistake in his decision as to the true starting point.</p>

Contract against James Cooper, George K. Babcock, Edward M. Chase, and Samuel F. Ricker, the principals and sureties on a bond alleged to have been signed and sealed by them, as follows: “ Know all men by these presents, that we, Edward M. Chase and Samuel F. Ricker, both of Boston, in the county of Suffolk, and Commonwealth of Massachusetts, as principals, and James Cooper and George K. Babcock, as sureties, are holden and stand firmly bound and obliged unto Cyrus E. Hewes,…

Contract upon an account annexed for work done and material furnished, in repairing and fitting up certain buildings of the defendant. Trial in the Superior Court before Devens, J., who after verdict for the plaintiffs allowed a bill of exceptions in substance as follows: “ It appeared by the testimony, that there was a conflict between the plaintiffs and the defendant as to the terms of the agreement under which the work was done.

Tort for breaking and entering the plaintiff’s close, and pulling up and removing a fence. The defendant claimed title in the land on which the fence stood, and at the trial in the Superior Court before Putnam, J., trial by jury being waived, put in evidence certain deeds and oral testimony.

Bill in equity for specific performance of an agreement to purchase real estate.

<p>In an action of tort to recover damages for slander and malicious prosecution, if the defendant after verdict against him and before judgment is adjudicated a bankrupt under the U. S. St. 1867, c. 176, such a claim is not provable against his estate, under § 19 of said act, and he is not entitled to a continuance of the action to await the proceedings in bankruptcy, but the plaintiff is entitled to judgment.</p>

<p>Bill in equity for an injunction, alleging that the plaintiff was and had for a long time been the owner and occupant of a certain parcel of land situated on the southerly side of Marlborough Street, and between Gloucester and Fairfield Streets, in Boston, and also of the building standing on said parcel of land, used by the plaintiff as a dwelling and residence for himself and his family; that among the terms, conditions and restrictions of the sale and grant of said parcel of land unto the plaintiff was the condition and restriction that it and the buildings thereon or to be erected thereon should be used only for the purposes of a residence and dwelling, and that no stable other than a private stable should be erected thereon, and that no offensive or improper use should be made of the same ; said conditions and restrictions as the plaintiff avers and believes being made for the benefit, comfort and convenience of those occupying said parcel of land and premises in the vicin'ty thereof; that the plaintiff is informed and believes that like conditions and restrictions were imposed upon each and every of the present purchasers and owners of land upon said Marlborough Street, which is a street of great width and beauty, and in every way desirable for private residences; that the Metropolitan Railroad Company has purchased, or in some manner become possessed of a large parcel of land upon said Marlborough Street and adjacent to the plaintiff’s said parcel of land; and upon said parcel of land, purchased or otherwise obtained as aforesaid, said corporation has erected a large stable, which said corporation uses and occupies for keeping a great number of horses and carriages and other property; that the plaintiff avers and believes that said corporation holds said parcel of land subject to the restrictions and conditions imposed as aforesaid upon the plaintiff and others; that the plaintiff avers that said corporation erected or caused to be erected said stable, and has used and occupied, and does now use and occupy said stable, for keeping a great number of horses and carriages, without having obtained authority therefor from the mayor and aider-men of the city of Boston; and that the erection, use and occupation of said stable as aforesaid has diminished the value of property on said street, and especially the premises of the plaintiff, and the noise and ill odor proceeding from said stable, in consequence of its use and occupation as aforesaid, is greatly detrimental to the health and comfort of the occupants of houses in the neighborhood, and especially to the health and comfort of the plaintiff.</p> <p>The prayer was for a writ of injunction, enjoining and restraining the defendant from in any manner using or occupying said stable hereafter for the keeping of horses or carriages as aforesaid, and commanding and enjoining said defendant to remove said stable so erected, used and occupied as aforesaid, from said parcel of land on Marlborough Street; and for such other and further relief in the premises as the circumstances of the case required.</p> <p>The defendant demurred to all of the bill except that part thereof which is in the following words : “ and the noise and ill odor proceeding from said stable, in consequence of its use and occupation as aforesaid, is greatly detrimental to the health and comfort of the occupants of houses in the neighborhood, and especially to the health and comfort of the plaintiff,” on the ground that the plaintiff had not in his bill stated such a case as entitled him to relief in equity ; and to the part of the bill not demurred to the defendant filed an answer.</p> <p>The case was reserved by Devens, J., upon the bill and demurrer fox the consideration of the full court.</p>

Petition to prove exceptions under the Gen. Sts. c. 115, § 11.

<p>An application for a jury to assess damages for land taken in Boston under the St. of 1869, c. 291, § 5, cannot be made to the Superior Court at a term later than that next after the estimate of the commissioners named in that statute is made known to the parties.</p>

<p>If A. by virtue of a contract, not under seal, with B. builds a division wall, one half on the land of each, and B. agrees to pay one half the expense, A. acquires no interest in the land of B., and none passes to the grantee of A., which he can enforce against B. by a suit at law.</p>

Tort in the nature of trover for conversion of certain merchandise. Trial in the Superior Court before Pitman, J., who by-consent of the parties after verdict, made the following report to this court: “ The only question at issue was the title to the property, the defendant, upon receiving a bond of indemnity, having delivered the property to Reuben A. Adams, who claimed to own the same.

Contract, for goods sold and delivered, commenced by trustee process. In the Superior Court the following facts were agreed: “ The writ was dated October 5, 1872, and returnable at January Term, 1873.

Tort for an assault. Trial in the Superior Court before Putnam, J., who, after a verdict for the defendant, allowed the following bill of exceptions : “ The plaintiff kept a boarding-house on Washington Street, Boston, and the defendant boarded with her.

Tort in the nature of trover brought by Elisha A. Packer and Daniel Packer, against Jacob E. Lockman, W. H. Love, H. E. Hayward and L. S.… Held: and that it was the usage, known to Love, Hayward & Co., for purchasers of cargoes of coal to give their notes corresponding in dates with the bills of lading and amounts with the invoices thereof. “ The plaintiffs introduced evidence, the defendants objecting, tending to show that Love, Hayward & Co. sold the cargo of the W. R.…

Tort in the nature of trover for the conversion of two wooden buildings, with a count in contract, alleging a breach on the part of the defendant in refusing to allow the plaintiffs to remove the buildings, both of the counts being for the same cause of action.

<p>The owner of a building with a roof so constructed that snow and ice collecting on it from natural causes will naturally and probably fall into the adjoining highway, is not liable to a person injured by such a fall upon him, while travelling upon the highway with due care, if the entire building is at the time let to a tenant, who has covenanted with the owner “ to make all needful and proper repairs both in ternal and external,” it not appearing that the tenant might not have cleared the roof of snow by the exercise of due care, or that he could not by proper precaution have prevented the accident.</p>

Bill in equity brought by Hannah Burns and Elizabeth Burns, a minor, suing by her guardian the said Hannah, to redeem a mortgage of an estate in Chelsea, made by John Bums, the husband of the first named plaintiff, and the father of the other, to Edward Potter, June 16. 1855. The mortgage contained a power of sale, but there was no clause in it authorizing the mortgagee. to purchase at any sale made under the power. The bill was filed January 22, 1868..

<p>Bill in equity against Samuel Loud, Albert B. Low, Henry N. Stone and Thomas F. Temple. The bill set forth that the plaintiffs were on March 24,1873, and long before and ever since, seised and possessed, as tenants in common, of a parcel of land, wharf and flats, with the buildings thereon, known as McKay’s ship-yard, in East Boston; that they derived their title to the same by deed from Charles E. Brigham, under his deed from Donald McKay; that Samuel Loud, Albert B. Low and Henry N. Stone, combining, conspiring and confederating together with Thomas F. Temple, the register of deeds for the county of Suffolk, to injure, annoy and prejudice the plaintiffs in their rights and property in the estate aforesaid, on March 15,1873, executed a paper, of which the following is a copy : “ To all whom it may concern. The undersigned hereby give notice that they will dispute the validity of any title which Charles E. Brigham may attempt to give of McKay’s ship-yard and wharf adjoining the estate of Paul Curtis on Border Street in East Boston, and being the same premises conveyed to said Brigham by Donald McKay by deed dated March 22, 1871, and recorded with Suffolk Deeds, lib. 1040, page 10. Henry N. Stone, Samuel Loud, Albert B. Low. Boston, March 15,1873; ” that having executed the same and delivered it to Temple, he, as said register, recorded the same in the registry of deeds for said county, with the deeds thereof, where the same is now remaining of record; that said defendants- in further pursuance of said combination, confederacy and conspiracy, on March 24,1873, made and executed another paper, of which the following is a copy: “ To all whom it may concern. This is to give notice that, in behalf of myself and others, I claim that a certain piece of real estate, situate in East Boston on Border Street, and known as McKay’s ship-yard and adjoining the yard of Paul Curtis’s heirs, is subject to a trust in our favor. The said title to said property is now in Edward G. Nickerson or Isaac Pratt, Jr., and I shall dispute any title that he may attempt to give. Samuel Loud, Henry N. Stone. March 24. 1873; ” that having executed the same, and delivered it to said Temple, he thereupon recorded the same in the registry of deeds for said county, with the deeds thereof, where the same now remains of record; that as soon as the plaintiffs were informed and knew that said papers had been recorded, they called upon the defendants, and required that tne same should be withdrawn from said record, so that -no cloud should be and remain upon their title to the premises aforesaid by reason thereof; that the defendants refused and still refuse to comply with the request of the plaintiffs, but instead thereof placed upon the margin of the record of the first paper aforesaid the following memorandum: “ Boston, March 27, 1873. We hereby waive all claim, right and interest or title we may have under the instrument here recorded. H. N. Stone, Samuel Loud, Albert B. Low. Witness, Charles W. Kimball; ” and, upon the margin of the record of the second paper aforesaid, the following memorandum: “ Boston, March 27, 1873. We hereby waive all claim, right and interest we may have under the instrument here recorded. Samuel Loud, Henry N. Stone. Witness, Charles W. Kimball.” The bill then averred that the defendants had no right to execute said papers for the purpose of recording the same in the registry of deeds as aforesaid, and that Temple had no right to record the same, and did so in violation of his duty as register of deeds; that the memoranda placed in the margin of the record by the defendants do not remedy the wrong and injury suffered by the plaintiffs as aforesaid, but said record still remains, and is a cloud upon the title of the plaintiffs, whereby the plaintiffs have lost a sale of the said premises to parties who would have purchased the same of the plaintiffs at a valuable price, being afraid of the title by reason of the record aforesaid, and in consequence thereof refusing to complete the purchase and take a deed of the premises as they otherwise would have done; that the plaintiffs have been and are deprived of the opportunity to sell the same, and are compelled to hold the same to their great disadvantage and injury.</p> <p>The prayer of the bill was that the defendants “ be required to withdraw said papers and memoranda from the records of the registry aforesaid, and that said records be reformed and expurgated so that no cloud shall be and remain upon the title of the plaintiffs in the premises aforesaid; and that the defendants be decreed to pay to the plaintiffs all damages they may have suffered by reason of the premises; and for further relief.”</p> <p>To this bill the defendants demurred for want of equity; and Morton, J., reserved the case for the consideration of the full court upon the bill and demurrer.</p>

Bill m equity under the Gen. Sts. e. 113, § 2, el. 11, against Peleg McFarlin, A. Tillson and Matthias Ellis.

<p>Indictment on the Gen. Sts. c. 87, §§ 6, 7, charging that the defendant “ did keep and maintain a certain common nuisance,” to wit, a tenement in Framingham used for the illegal sale and illegal keeping of intoxicating liquors, without having any license, appointment or authority, first duly had according to law, to keep intoxicating liquors for sale; ” and without having any license, &c., to sell intoxicating liquors.</p> <p>At the trial in the Superior Court, before Bacon, J., the defendant moved to quash the indictment for the reason that it did not set forth that the intoxicating liquors therein described were not ale, lager-bier, porter, or cider; and the judge overruled the motion.</p> <p>The defendant requested the judge to rule that the burden of proof was upon the Commonwealth to show that the defendant acted without license or appointment, and the judge refused so to rule.</p> <p>The jury returned a verdict of guilty, and the defendant alleged exceptions.</p>

<p>Bill in equity brought by Theodosia Scott, suing by her next friend, against Edward S. Rand, Jr., and Charles Scott, alleging:</p> <p>That the plaintiff was the wife of the defendant Scott; that in 1862, she was adjudged by the Probate Court for the county of Middlesex to be an insane person ; that in September, 1871 the plaintiff filed a petition in said Probate Court, .praying to be discharged from guardianship, and that she was discharged from guardianship by an order of said court in January, 1872.; that the defendant Scott took an appeal from said order, which appeal was waived May 7, 1872, and the decree of the Probate Court affirmed May 14, 1872.</p> <p>The bill then set forth an indenture of trust signed and sealed by the defendants April 21,1871, the material parts of which are as follows:</p> <p>“ Whereas Theodosia Scott, the wife of the said Charles Scott, has been adjudged an insane person, and is now as such under the guardianship of William A. Herrick, of the sam Boston, who succeeded Isaac Holt, of Cambridge, in the said trusts: and whereas, in time past, while the said Theodosia was under the guardianship of the said Holt, the said Charles Scott sold and conveyed certain parcels of real estate situated chiefly in Newton in said State of Massachusetts, in which parcels of land the dower and homestead rights of the said Theodosia were duly released by the said Holt, guardian, under order had by virtue of licenses from the Probate Court for the county of Middlesex and State of Massachusetts; and whereas the said Charles Scott has always provided liberally for the maintenance and support of bis said wife, the said Theodosia, and is now minded and disposed to set apart certain property, the income thereof to be paid to the said guardian of the said Theodosia during the lifetime of him, the said Charles, so that in any event of fortune a comfortable support and maintenance will be secured to her the said Theodosia, during the lifetime of the said Charles : now therefore this indenture witnesseth, that in consideration of the premises and of one dollar to him paid by the said Edward S. Band, Jr., the receipt whereof is hereby acknowledged, the said Charles Scott does hereby assign, transfer, set over and convey to the said Band, and his heirs and assigns forever, the following securities and evidences of property, namely, (naming them.) To have and to hold the same to him, the said Band, and his heirs and assigns forever; but in trust, nevertheless, to hold, manage and invest the same in productive real or personal estate, at his discretion, with full power to sell and convey any real estate of which the trust estate may at any time be composed, to receive the income and profits thereof, and after the payment of all taxes and expenses incurred in the management of said trust estate, to pay over to the guardian of the said Theodosia for the time being, the sum of one thousand dollars per annum, in equal quarterly pay ■ ments, beginning on the first day of July, .1871, during the life of him the said Scott; the receipt of the said guardian to be a full acquittance to the said trustee for any payments; and the residue of the said net income of the said trust fund remaining after the payment of the said sum of one thousand dollars to said guardian as aforesaid, if any such there be, to account for and pay over to the said Charles Scott, or in such manner as he may direct, at least once in each and every year during the xmtinnance of this trust. And in further trust, upon the decease of the said Theodosia, living the said Charles, to transfer, pay over and convey the said trust fund, with any accumulated income, to him the said Charles, to hold to him and his heirs and assigns forever, free and discharged from all trusts. But if the said Charles shall decease during the lifetime of the said Theodosia, then in trust to transfer, pay over and convey the said trust estate in such manner, to such uses and purposes, and for such estates, as he the said Charles Scott shall by his last will and testament direct and appoint; and in default of such appointment, to transfer, pay over and convey the said principal or trust fund, with any accumulated income, to his heirs at law, free and discharged from all trusts. And the said Charles Scott hereby covenants and agrees to and with the said Band and his successors in the said trust, that should the net income received from the said trust estate in any year fall below the said sum of one thousand dollars, he the said Scott will-make up such deficiency to the said trustee; the intent of this provision being, that the said Theodosia shall in each and every year receive the full sum of one thousand dollars. But if the said Theodosia, her guardian for the time being, or any person authorized by her or acting in her behalf, shall at any time commence legal proceedings against the said Charles Scott, for or on account of the real estate heretofore sold by the said Charles, and in which the dower of the said Theodosia was released as aforesaid, then and in that event, the said trustee is to withhold all payments of income until such time as such proceedings shall have been wholly discontinued. And in the event of the said proceedings continuing more than two years, the said trustee shall pay over the whole of the said principal or trust fund, with all accumulated income, to the said Charles Scott, and this trust shall thereby be terminated. And the said Band hereby accepts the said trust, and in consideration of the premises, covenants to and with the said Charles Scott, that he will faithfully discharge and perform the duties enjoined upon him by this indenture. It is hereby understood and agreed, that the said trustee shall not be held liable for any loss or depreciation of the said trust estate not occasioned by his fault, but only for wilful negligence and default.”</p> <p>The bill also alleged that on May 6,1872, the defendant Rand, without right, and in violation of the terms and obligations of his trust as set forth in said indenture, paid, transferred and delivered over all of said trust property and funds to said Scott, and without notice to the plaintiff; and that the said Rand had ever since wholly neglected and refused to pay to the plaintiff the sum of one thousand dollars per annum, or any sum whatever.</p> <p>The defendants demurred to the bill, and assigned the following grounds of demurrer:</p> <p>1. That the plaintiff hath not in and by her said bill made or stated such a case as doth or ought to entitle her to any such relief as is thereby sought and prayed for from or against the defendants.</p> <p>2. That, by the true legal construction of said indenture of trust, said trust terminated on the discharge of the said plaintiff from guardianship.</p> <p>3. That said bill of complaint does not allege any demand made upon the defendant Rand, by any guardian of said Theodosia Scott, since the time when said bill alleges that said plaintiff was discharged from guardianship.</p> <p>4. That it appears by said indenture that the defendant Rand only agreed to pay to the guardian of said plaintiff the income of said trust property in quarterly payments, after payment of all taxes and expenses incurred in the management of the trust fund, to the extent of one thousand dollars per annum; and that the bill does not allege that the income of the trust fund in any one year exceeded the taxes and the expense of the management of the trust fund.</p> <p>5. That it appears by the indenture of trust that it was understood and agreed that the defendant Rand should not be held dable for any loss or depreciation of said trust estate not occasioned by his fault, but only for his wilful negligence and default; uid that the said bill of complaint does not allege that there was any wilful negligence or default on the part of this defendant.</p> <p>At the hearing before Endicott, J., on the bill and demurrer, the demurrer was overruled, and the defendants appealed to the full court.</p>

Bill of interpleader by the Provident Institution for Savings against George White, administrator of Margaret Sullivan, Michael Sullivan and Thomas Sullivan, filed June 27, 1872.

Bill in equity by Rose G. Forbes, wife of Robert Bennett Forbes, against John F. Tuckerman, Robert B. Forbes, Jr., James Murray Forbes, and Edith Forbes Perkins, wife of Charles Eliot Perkins, setting forth the conveyance by the plaintiff and her husband to the defendant Tuckerman of certain property in trust to pay the income to the plaintiff during life, and upon her decease to convey the property to such persons as she should appoint by her will, and, in default of…

Bill nr equity by Thomas W. Cox and Judah H. Cox, to enjoin Timothy W. Hoxie from selling an estate situated on the corner of Fort Avenue and Highland Park, Boston, under a power of sale contained in a mortgage given by William Bowe to Hoxie. After the filing of the bill Stephen M. Allen was made a party defendant.

<p>Bill in equity by Edward S. Rand and Warren Sanger, administrators with the will annexed of Sarah Louise Hubbell, praying for instructions as to the distribution of the rest and residue of the estate of the said testatrix; and that the defendants might be decreed to interplead. The case was reserved for the consideration of the full court, by Ames, J., upon the bill, answers and report. From these It appeared that:</p> <p>The testatrix by her will, after sundry legacies and bequests, by the forty-second article thereof disposed of all the rest and residue of her estate in the words following: “ All the rest and residue of my estate, real, personal or mixed, of which I shall die seised and possessed, or to which I shall be entitled at the time of my decease, I give, devise and bequeath to be equally divided among those persons who shall be my legal heirs at the time of my decease, excepting my son John H. Hubbell; and this exception is made only for the reason that at my decease he will come into the possession of his father’s estate, which will be ample for all his wants.</p> <p>“ And in the distribution of the said residue among my heirs, I desire and direct that the children of my sisters Mrs. Anne Smith and Mrs. Caroline Sanger shall share the same equally; that is, that it be divided among them numerically or per capita, and not per stirpes, and that the offspring of any deceased child of theirs only take by right of representation, or the share that the parent of such offspring would take if living.”</p> <p>The testatrix left at her decease as her heirs at law her only surviving sister, Caroline Sanger; Cornelia Baird and Gerrit H. Smith, the children of her deceased sister Anne Smith, and John H. Hubbell, (called in the said will her son, meaning her stepson,) the only child of her deceased sister Jane Hubbell, who being expressly excluded from any share in the said rest and residue, was not made a party to this suit. At the decease of the testatrix there were living seven children of Caroline Sanger ; namely, Anna L. Paddock, Mary J. Bearding, Mary W. Swinscoe, Caroline Campbell, Joseph P. Sanger, Henry P. Sanger and Fanny Davis. No change in the legal heirs or next of kin of the deceased took place between the date of the will, November 2, 1872, and her decease, September 10, 1873.</p> <p>Caroline Sanger submitted her rights under the will to the decision of the court. Cornelia Baird and Gerrit H. Smith contended in their answers that the intention of the testatrix was to give the residue to those persons who should turn out to be her legal heirs at her decease by the statute of distributions, excluding her nephew John; and that they were the said Caroline Sanger and the said Caroline Baird and Gerrit H. Smith, and that the residue should be divided into three equal parts between the said Caroline Sanger, Cornelia Baird and Gerrit H. Smith; but that if the division was not to be made into three equal parts, to the three persons who were her legal heirs, (excluding John,) then it was to be made between them in the proportions provided by the statute of distributions; namely, into two equal parts; one to the said Caroline Sanger, the other to the said Cornelia Baird and Gerrit H. Smith.</p> <p>Anna L. Paddock and others, children of Caroline Sanger, contended that the testatrix by the forty-second article of her said will, intended that the residue of her estate therein disposed of should be equally divided between the children of her surviving sister Caroline Sanger, and of her deceased sister Anne Smith, each being entitled to and taking one ninth part.</p>

Contract for goods sold and delivered with a count in tort foi the conversion of the same goods. Trial in the Superior Court without a jury, before Rockwell, J., who, by consent of parties, reported the case to this court, stating that he “ made a verdict for the plaintiffs ” for a certain amount, and giving the grounds of his finding and his rulings.

Conteact on four recognizances against Charles A. Peterson and William Child, bail of John Dowdican. The questions of law presented in each case being similar, they are reported together. Trial in the Superior Court, without a jury, before Put-Ham,, J., on agreed facts in substance as follows : The original action in which the first recognizance was given, was a complaint against John Dowdican, for maintaining a liquor nuisance.

Complaint under the Gen. Sts. c. 87, §§ 6, 7, charging that the defendant did on July 30, 1873, and on divers other days between that day, and January 30, 1874, keep and maintain a certain tenement In Boston, “ used for the illegal sale and illegal keeping of intoxicating liquors,” whereby the same was a common nuisance.

Complaint to the Municipal Court of the city of Boston, averring that the defendant was, on .certain days named, without then having any license, appointment or authority therefor, a common seller of spirituous and intoxicating liquors*.

<p>Complaint to the Municipal Court of the city of Boston, charging the defendant with an unlawful sale of intoxicating liquors.</p> <p>At the trial in the Superior Court, before Wilkinson, J., and before the jury were empanelled, the defendant moved to dismiss the complaint, because it appeared from the copies that the judgment in the court below, and the complaint, were not under the seal of that court, and also because the copy of the judgment, and of the complaint, were not certified to be true copies, under the seal of the court. This motion was overruled. After verdict the defendant moved in arrest of judgment, for the causes stated in his motion to dismiss. This motion in arrest was also overruled. The defendant excepted.</p>

Indictment.under the Gen. Sts. c. 87, §§ 6, 7, charging the defendant with keeping a common nuisance, to wit, a tenement in the city of Boston, used for the illegal sale and illegal keeping for sale of intoxicating liquors, on the sixth day of January, 1874, and for six months next preceding said sixth day of January.

Complaint under the St. of 1869, c. 415, § 44, alleging that certain intoxicating liquors were kept by the claimant in a building in Boston, with an intent to sell the same in violation of law; and praying for a decree of forfeiture thereof.

<p>Complaint to the Police Court of Somerville on the St. of 1869, c. 415, § 44. Trial in the Superior Court, on appeal, before Bacon, J., to whose rulings the claimant alleged exceptions, the substance of which is stated in the opinion of the court.</p>

Complaint to the Somerville Police Court for keeping intoxicating liquors with intent to sell the same in violation of law. At the trial in the Superior Court, on appeal, before Bacon, J., the defendant was found guilty, and a bill of exceptions, in substance as follows, was allowed: The defendant before trial filed a motion to quash the complaint, on the ground that there was no duly certified and proper copy of the record of the Police Court in and before the court.

Complaint to the Charlestown Police Court under the St. of 1869, o. 415, § 39, averring that the defendant on August 9, 1873, did carry intoxicating liquor to a certain house in Charles-town, “having reasonable cause to believe that the same had been sold and was intended for sale ” in violation of law.

<p>A misrecital of a verdict in a motion contained in a bill of exceptions, will not affect the verdict as shown by the record.</p> <p>On an indictment for a felonious assault with the malicious intent to maim and disfigure, a verdict that “ each defendant is guilty of an assault without the intent as alleged in the indictment,” operates as a conviction of a simple assault.</p> <p>On an indictment for a felonious assault on A. with the malicious intent to maim and disfigure A. by putting out and destroying the eye of A., if the defendant is found guilty of an assault without the intent as alleged in the indictment, he may be adjudged guilty of a simple assault under the Gen. Sts. c. 172, § 16.</p>

Complaint on the St. of 1869, a. 415, §§ 81, 86, to the Municipal Court of the city of Boston averring that the defendant, on January 20,1874, kept intoxicating liquors with intent to sell the same. The defendant pleaded guilty in the Municipal Court and was sentenced, but appealed. In the Superior Court the district attorney moved for sentence; the defendant objected and claimed a trial by jury. The objection was overruled by Wilkinson, J., and the defendant excepted.

<p>The St. of 1869, c. 415, relating to the manufacturing for sale and the sale of intoxicating liquors, including malt liquors, is in the nature of a police regulation of a . particular kind of property, and applies to the property of corporations as well as to the property of individuals; and does not impair the obligation of the contract contained in the charter of a corporation, although the corporation was created, before the passage of said statute, under a charter which authorized it to manufacture malt liquors, and the legislature had no power to alter, modify, or repeal said charter.</p>

Replevin of certain fixtures and chattels, which were at the time they were replevied in a store numbered 49 Lincoln Street, Boston. Trial in the Superior Court, before Devens, J., who allowed a bill of exceptions in substance as follows: On October 1, 1870, the defendant, who was the owner of the store in question, made a written lease of it to one William J. Cain, who entered under the lease, and placed in the store the fixtures and other chattels replevied.

<p>Contract, alleging an agreement on the part of the plaintiff to sell certain lumber to the defendants, and an agreement on their part to purchase the same, delivery of the lumber to the defendants and a refusal by them to receive the same. There was also a count for goods sold and delivered. The plaintiff subsequently filed an amended declaration alleging a contract as before, part performance on his part, and an abandonment of the contract by the defendants before the expiration of the time fixed by the contract for delivery.</p> <p>At the trial in the Superior Court, before Putnam, J., without a jury, judgment was entered for the plaintiff, and the following bill of exceptions was allowed:</p> <p>“ In 1872 the plaintiff entered into the following written contracts with the defendants, who were copartners, for the sale and purchase of lumber : °</p> <p>“ ‘ Boston, April 4, 1872. We, Delaporte & Blumberg, agree to take of M. Collins 8 thousand four inch, 20 thousand two inch, and the balance 1 inch chestnut at the price of twenty-seven dollars per thousand, delivered in Worcester on the cars. It is understood that all the lumber be straight edge and sound in every way, and delivered about the end of August or September. Delaporte & Blumberg.’</p> <p>" Boston, April 4, 1872. I, M. Collins, agree to deliver to Delaporte & Blumberg, 8 thousand 4 inch, 20 thousand 2 inch, balance of 1 inch chestnut, all straight edge and sound every way, at the price of twenty-seven dollars per thousand, delivered in Worcester on the cars, about end of August or September. M. Collins.’</p> <p>" One of the defendants went to see the lumber several days before said contracts were made, and said it would suit him, but it was not found that the number of feet which there was in the lot was agreed upon, except so far as said written contracts may show. A few days after the contracts were made, the plaintiff received the following letter from the defendants, containing further directions as to the sawing of the lumber : ' Mr. M. Collins: Dear Sir, — You will please saw the chestnut lumber as follows : 8,000 ft. 4 in. thick wide plank; 20,000 ft. 2 in. thick ; 8,000 ft. 1¿ in. thick; 10,000 ft. If in. thick; and the balance 1 in. thick. Please give us the above widths instead of the order you had before.’</p> <p>" The plaintiff proceeded to saw the lumber, and about the last of August or first of September, when he had sawed a part of it, came to Boston, called at the defendants’ place of business, and saw Blumberg, one of the defendants, told him the lumber was all ready and showed him the following figures as what he had sawed, viz.: 1,088 feet of 1-inch, 7,846 feet of 2-inch, and 4,618 feet of 4-inch. Blumberg told him that they were then out of business and did not want the lumber, and should not take it. The plaintiff then told him that he should commence legal proceedings against him, and went home, and completed the sawing of the lumber as stated below, and subsequently sold fifty-eight hundred and twenty feet of it, at an average price of about $27 per thousand, and now has the balance of the lumber on hand, subject to the defendants’ order. Prior to the sale of the fifty-eight hundred and twenty feet, he had no communication with the defendants, other than has been stated. The whole number of feet in the lot which was actually sawed was 27,914 feet; 1,301 feet ox 1-inch, 20,813 feet of 2-inch, and 5,800 of 4-inch.</p> <p>" The defendants’ counsel offered to show that of said 27,914 feet, not more than one half was sound, at the' time of the interview in Boston, about September 1, and not more than one half of it was sawed so as to be straight-edged, and that this fact was unknown to them at the time of the interview. This testimony was held to be immaterial, and was not admitted, as there was no claim that the lumber was rejected on that ground.</p> <p>“ Upon these facts the court found that the defendants had declined to receive the lumber without legal right, and the plaintiff might, without any further tender of the lumber after the sawing was completed, recover what was a fair value of the lumber he had left, after the sale of the 5,820 feet; and found that the amount of said lumber was 22,094 feet, a fair value of which was $27 per 1,000 feet, according to the contract price; and found accordingly for the plaintiff in the sum of $626.46, which includes interest.”</p> <p>The defendants excepted to the above rulings.</p>

Contract by the members of the firm of William Somers & Co., against the defendant as acceptor of the following order signed by Noah G. Harriman: “Boston, October 18, 1871, $296.00. Mr. George B. Thayer, please pay Wm.

Scire facias by the members of the firm of William Somers & Co., upon a judgment recovered by them against the defendant in a trustee process, in which he was summoned as trustee of John Shaughnessy. At the trial in the Superior Court, before Putnam, J., without a jury, the defendant admitted that the sum of $1000 was due from him to Shaughnessy, and the issue was as to the right of John Lally to this sum.

<p>Where evidence is admitted which is competent when connected with other evidence, an exception to such admission cannot he sustained, unless the bill of exceptions shows affirmatively that such other evidence was not introduced, or that the evidence admitted was improperly used for a purpose for which it was not competent.</p> <p>It is the province of a judge who presides at a trial, to pass upon all preliminary matters which are necessary to be shown in order that a record entry may be properly admissible as evidence; and if he admit such record entry, it is presumed that he found as facts all such preliminary matters; and such finding is conclusive, unless he saves the question on report or it is brought up on a bill of exceptions which contains a statement of the evidence.</p> <p>Where the judge presiding at a trial admits as evidence a family record of births, the first part of which, including the name of the person whose age is sought to be established, is a copy of a former record; it must be presumed that the judge found as a fact that the original record was lost and the copy, properly substainted, is admissible as secondary evidence.</p> <p>An entry contained in a church record of baptisms of the birth of a child, though of itself it he not competent evidence to prove the date of the hirth, is admissible to prove the date of the baptism, and this, if connected with other evidence tending to show the age at baptism, is admissible to show the date of the birth.</p>

<p>An objection to a bill in equity that the plaintiff has a plain, adequate and complete remedy at law will be deemed to he waived if taken for the first time in an answer filed by a defendant after he has appeared without objection to the jurisdiction, at a hearing appointing a receiver and ordering the sale of property, and also at a hearing before a master.</p> <p>A mortgage on a vessel is postponed to the lien given to material men by the Gen. Sts. c. 151, § 12.</p> <p>The compensation of a receiver appointed to complete, launch, and sell a vessel and pay the proceeds into court, is not to be determined by a fixed commission on the amount of money passing through his hands; but should be such an amount a* would be reasonable for the services rendered by a person competent to perform the duty.</p> <p>An exception to the finding of a master upon the facts before him is to be regarded only so far as it is supported by the statements of the master, or the evidence re< ported by him.</p> <p>A master appointed “ to hear the evidence and to report the same and all facts ” bearing upon the questions at issue, has authority to decide upon controverted facts.</p> <p>The findings of a master upon questions of fact are not to be set aside without clear proof of error or mistake on his part.</p> <p>Notes given by the builder of a ship to a person who has furnished materials used in her construction, merely for the accommodation of such person, not to be credited on the bill, are not payment for the materials, and the fact that the notes have not been surrendered does not prevent the material-man from enforcing his lien.</p> <p>The including in a claim of a lien on a vessel, materials furnished another vessel, through ignorance and not wilfully or knowingly, does not prevent the material-man from enforcing his lien against the first vessel for the materials actually used in her construction.</p> <p>A person who performs labor on two vessels under an entire contract for a round sum, cannot maintain a lien under the Gen. Sts. c. 151, § 12, on one of the vessels for the work done on that vessel, whether he has performed his contract or has been prevented from finishing his work by the failure of the owner of the vessel to complete the vessel sufficiently for him to perform it.</p> <p>A material-man, who has performed labor and furnished materials to two vessels under an entire contract for a round sum, and who after the work is done destroys, with the assent of the owner of the vessel, the original contract, and makes and antedates a new contract applicable to one vessel only, and sets up this contract in his claim for a lien as the one under which the work was done and materials furnished, cannot maintain a lien.</p> <p>Under the Gen. Sts. c. 151, § 12, a lien exists for labor and materials furnished, as well as for labor performed and materials used in the construction of a vessel; and a person contracting with the owner of a vessel may enforce a lien for labor performed and materials furnished by persons with whom he has made a sub-contract.</p> <p>A person employed at day’s wages by the owner of a vessel to work as a blacksmith in making spikes and bolts from the owner’s iron for use in the construction of the vessel, and who does this work and also some jobs on other vessels and some outside work by the owner’s direction, has a lien on the vessel under the Gen. Sts. c. 151, § 12, for the labor performed on the spikes and bolts used in her construction.</p> <p>A material-man, who, in his statement of a lien filed in the town clerk’s office, wilfully and knowingly claims more than is due him, cannot enforce his lien.</p>

Contract by the owners of the building on the corner of Tremont and Court Streets in Boston, against the lessee to recover the amount assessed thereon by the city of Boston, November 20, 1871, pursuant to the St. of 1866, o. 174, under an order passed by the Board of Aldermen November 4, 1870, to widen Tremont Row and Court Street, and paid by the plaintiffs on April 29,1872, after notice to the defendant. The writ was dated May 3, 1872.

Contract by Edward Blake and John A. Loring, trustees under the will of Fitz Henry Homer, to recover of the defendants the amount of an assessment made upon an estate on Central Wharf, Boston, in pursuance of the St. of 1866, c. 174, and the St. of 1868, c. 276, by the city of Boston, for the laying out of Ail antic Avenue. The writ was dated December 24, 1872.

Tort for personal injuries sustained by the plaintiff. The declaration contained three counts. The first count was for negligence of the defendant in, driving its engine and cars over a crossing at grade in the town of Natick, and thereby injuring the plaintiff, then travelling on the highway, and using due care.

<p>In an action for a malicious prosecution, the burden of proof is on the plaintiff to show that the defendant acted without probable cause.</p> <p>In an action for a malicious prosecution, whether there was a want of probable cause is a question of law upon the facts proved.</p> <p>If a person obtains flour by falsely representing himself to be the agent of another, evidence that he is in good credit, that he has money in the hands of another person sufficient to pay for the flour, and that there is a practice amongst flour dealers, not shown to he one of the established usages of the trade, to buy flour in the name of other persons, has no tendency to show that a prosecution for obtaining the flour by false pretences was instituted without probable cause.</p> <p>The docket of a municipal court is the record of proceedings in that court, until the more full record is made up, and is sufficient proof of those proceedings.</p>

<p>The grant of an easement of light and air is not implied from the grant of a house having windows overlooking land retained by the grantor.</p> <p>If the eaves of a house belonging to one person have projected over the land of another for more than twenty years, the owner of the house has no title in the land of such other person under the eaves, and cannot prevent him from building on that land, if he can do so without interfering with the eaves.</p>

Bill ir equity against Jacob L. Williams, the occupant of a house on Mount Vernon Street, in Boston, adjoining a house in said street, owned by the. plaintiffs, alleging that the defendant was about to construct a bow-window upon the front of his house, projecting before said front more than one foot, in violation of the St. of 1799, c. 31, § 5,* and the ordinances of the city of Boston of 1850 ;* that said bow-window would obstruct the view from the windows of the…

<p>The delivery by an owner of goods of a common carrier’s receipt for them, not negotiable in its nature, as security for an advance of money, with the intention to transfer the property in the goods, is a symbolical delivery of them, and vests in the person making the advance a special property in the goods sufficient to maintain replevin against an officer who afterwards attaches them upon a writ against the general owner.</p>

<p>Tort for the conversion of one hundred and eighty-nine bales of cotton. At the trial, before Morton, J., the jury were directed to find a verdict for the plaintiffs, and the case was reported for the consideration of the full court, and is stated in the opinion.</p>

Replevin of four hundred barrels of flour. In the Superior Court judgment was ordered for the plaintiff on agreed facts in substance as follows, and the defendant appealed to this court. On June 5 and 6, 1871, R. H. Sage owned and shipped at Chicago for Boston five hundred barrels of flour by bills of lading whereby the flour was deliverable to his own order.

Contract for non-delivery of two car-loads of oats alleged to have been delivered by the plaintiff’s agents to the defendant for carriage over its railroad and for delivery to the plaintiff. In the Superior Court judgment was ordered for the defendant on agreed facts, in substance as follows, and the plaintiff appealed to this court.

Tost for the conversion of a car-load of oats. In the Superior Court judgment was rendered for the defendant on an agreed statement of facts, in substance as follows, and the plaintiff appealed to this court: On March 13,1871, Botsford, Hibbard & Company, of Detroit, Michigan, delivered the car-load of oats in question at Detroit, to a line of transportation known as the Blue Line Through Freight Company, to be transported to Salem, Massachusetts, and there delivered to the…

<p>Contract against the principal and sureties on a recognizance entered into by them under Gen. Sts. c. 124, § 10, upon the arrest of the defendant Howard on mesne process in a suit against him by the plaintiffs in this action.</p> <p>At the trial in the Superior Court before Devens, J., the jury found for the plaintiffs, and the case was reported for the revision of this court, in substance as follows :</p> <p>At the trial the defences relied upon were, that there had been no lawful arrest in the original action, and no breach of the recognizance.</p> <p>The affidavit upon the writ, in the original action, purported to have been taken before a master in chancery in Suffolk County ; and upon this affidavit the arrest was made in Norfolk County. The defendant in the original action did not reside or have any place of business in Suffolk County at the time of the arrest. The court ruled that the arrest was legal.</p> <p>When Howard was arrested he gave notice that he desired to take the oath that he did not intend to leave the state, and entered into the recognizance sued on, the condition being that he should within twenty days from the time of his arrest deliver himself up for examination, before some magistrate authorized to act, giving notice of the time and place thereof in the manner provided by law.</p> <p>To prove the breach of the recognizance, the plaintiffs introduced evidence tending to show that the only notice given to the plaintiffs of Howard’s intention to take the oath mentioned in the recognizance, was served by an officer at twenty minutes past eleven o’clock in the forenoon of April 19, 1872, and that this stated that the examination was to take place at Randolph, in the county of Norfolk, which was fifteen miles from the place of service, at five o’clock in the afternoon of the same day.</p> <p>It appeared incidentally at the trial that the notice was not served within Norfolk County, of which the officer was a deputy sheriff. The officer’s return did" not state the place of service, except that it was headed Norfolk, ss. The plaintiffs did not rely on or desire to prove that the place where the notice was served was without the officer’s precinct, (as at the time of such service they waived objection thereto on that ground, though not on any other ground,) but only the fact that the service was made at a place fifteen miles from the place of hearing; but the defendants objected that this would be in contradiction of the officer’s return. But, upon its being shown that there were various places within the officer’s precinct, more than fifteen miles from the place of examination, the objection was overruled, and the plaintiffs proved the fact to be as contended for by them.</p> <p>The defendants also contended that the notice had been waived by the plaintiffs. To enable this, which was the only question of fact, to be submitted to the jury, the above questions — the facts stated in connection therewith not being in dispute — were ruled pro forma against the defendants, upon the consent of parties that if the verdict upon the question of waiver should be against the defendants, the case should be reported to this court, and such verdict should- stand and judgment be rendered thereon, or verdict set aside, and judgment rendered for the defendants as this court should order.</p> <p>There was evidence tending to show that the attorney of the plaintiffs, in the original suit, who resided and had an office in the town and immediate neighborhood where the examination named in the notice was to take place, went in company with the magistrate who issued the notice, to the office where the exam« ination was to be held, at about the time fixed therefor, and on arriving there asked to see the original notice, and the officer’s return thereon; that on reading the same, he told the magistrate, in the presence of the debtor and his attorney, that he did not propose to examine the debtor under that notice and return, and requested the magistrate to preserve the same, and immediately arose and left the office. The defendants requested the court to rule as matter of law, that this was a waiver on the part of the attorney of any objection to the notice or service thereof, and that no breach of the recognizance appeared upon the evidence herein before recited. The court declined so to rule. The defendants then introduced the notice and the officer’s return thereon; and also oral testimony bearing upon the question of waiver. The court submitted to the jury the question of waiver, under instructions not objected to, except as above stated.</p>

<p>Tort for an injury sustained by the plaintiff while a passenger in one of the defendant’s horse-cars, by being thrown from it by the alleged carelessness of the driver. At the trial in the Superior Court, before Devens, J., the plaintiff testified that in May, 1871, he was a passenger on one of the defendant’s horse-cars, which had no conductor, and was driven by a man usually employed as a watchman, but who also was employed by the defendant once or twice in the evening to drive. The plaintiff also stated that when he entered the car he observed the seats within were full, and took his place on the front platform beside the driver; that the driver started his horses upon a run, and when he had ridden about half a mile, and the car was going down a declivity, the driver suddenly reined in the horses and applied the brake, and stopped the car, and he was thereby thrown from the platform and fell upon his side, and the wheel crushed his arm.</p> <p>“ The plaintiff also called as a witness a man who, previous to the accident, had been in charge of the stables of the defendant at Medford, who stated that he had hired for the company the driver of the car from which the plaintiff was thrown, and that this driver had driven but four or five times over the road, and the witness had seen him stop several times very suddenly, and the defendant objecting to such evidence, the counsel of the plaintiff proceeded no further with the inquiry, and thereupon the defendant took exception to this evidence.”</p> <p>The evidence at the trial was conflicting on the points whether the car stopped suddenly, and whether the plaintiff was intoxicated at the time of the accident.</p> <p>The defendant requested the court to instruct the jury that if the plaintiff was standing on the front platform of the car, when there was room for him to have gone inside, and fell, or was thrown to the ground, that he could not recover; but the court declined so to rule, and left it to the jury to determine under all the circumstances of the case as proved, whether or not the plaintiff had shown that he was in the use of due care when he met with the injury.</p> <p>The defendant also requested the court to instruct the jury that if the plaintiff was intoxicated at the time he received the injury, he could not recover; but the court declined to do so, and instructed the jury that if they were satisfied that the plaintiff was intoxicated, and that his intoxication contributed to the injury, then the plaintiff could not recover.</p> <p>The jury found for the plaintiff, and the defendant alleged exceptions to these rulings and refusals to rule.</p>

Contract on a policy of insurance containing the following provisions: “No insurance whether original or continued shall be considered as binding until actual payment of the premium,” and, “ If 'his insurance be a mortgagee’s interest, the assured shall assign to this company, in case of loss, an interest in said mortgage equal to the amount of loss paid.” At the trial in the Superior Court, before Lord, J., the loas was admitted, and there was evidence tending to show that…

<p>Bill in equity to enforce specific performance of the following agreement signed and sealed by the parties thereto :</p> <p>“ This indenture, made this fourth day of December, A. D. 1872, by and between Leonard S. Jones, of Cambridge in the Commonwealth of Massachusetts, and Benjamin B. Newhall, of Boston in said Commonwealth, witnesseth,</p> <p>“ That said Jones agrees to sell, and said Newhall to purchase, first, all the right, title, share and interest of the said Jones to And in any and all property belonging to the Worthington Land Associates, together with one promissory note for ten thousand dollars, dated April 18, 1872, belonging to said Jones, and being one of five of even amount and date given by Samuel A. Wheeloek and secured by mortgage on land conveyed by said associates to R. A. Ballou and others ; second, all the right, title, share and interest of said Jones to and in any and all property belonging to the Dorchester Land Association, the share of said Jones consisting of fourteen shares of the stock of said Dorchester Land Association, together with two mortgage notes of $3467.95 and $4743.36, respectively, given by Samuel A. Whee* lock to said Benjamin B. Newhall.</p> <p>“ For which said property, said Newhall agrees to pay to said Jones the amount of all moneys invested by said Jones in said associations, interest on the same at seven per cent, per annum from the time of investment to the date hereof, and the additional sum of five thousand dollars as bonus. Said investments, interest, and bonus, amounting in all to thirty-four thousand one hundred and ninety-six dollars, payable as follows ; viz., ten per cent, of said sum, viz., 3419 dollars in cash, on the delivery of this agreement, and the balance in nine monthly payments, the first five of such payments to be 3755 dollars each, and to be made one in each of the first months of the year A. D. 1873, and the remaining four of said nine payments to be of 3000 dollars each, and to be made one in each of the months of June, July, August, and September of said year 1873, with interest on said payments at the rate of seven per cent, per annum. It is agreed, nevertheless, that if said Newhall shall elect to anticipate any of said payments, said Jones shall receive the same when offered.</p> <p>And it is further agreed, that of said first payment of ten per cent, of said whole amount, two thousand dollars shall be applied to the payment of the property second above described, and 1419 fmr dollars shall be applied to the payment of said property first above described; that the five of said monthly payments next ensuing shall be applied to the payment of said property first above described, and, together with said 1419 dollars, shall be deemed full payment therefor; and when made, said Jones agrees to transfer, convey, and deliver to said Newhall or his heirs or assigns, all the property first above described, and execute and deliver to him or them all instruments of conveyance necessary or proper for the conveyance of said property; that after said transfer or delivery, the property second above described shall be transferred, conveyed, and delivered to said Newhall or his heirs or assigns, in amounts of one thousand dollars or multiples thereof, as payments of like amounts shall then be made by said Newhall; an amount of said property equal to said 2000 dollars of said first payment of ten per cent, oeing retained by said Jones until the final transfer; and that all proper instruments cf conveyance of the same shall be executed and delivered as is above provided in toe case of the property first described.</p> <p>“ All increase arising in the mean time from the sale of eitket of said properties above described or otherwise, whether in cash mortgages, notes, or other securities, shall be held in trust by said Jones for said Newhall, and delivered, transferred, and conveyed to said Newhall, his heirs or assigns, at the times above provided for the final transfer of either of said properties respectively. And it is further agreed, that said Newhall shall hold said Jones harmless from all taxes or assessments of whatever kind or by whomsoever levied or assessed upon said property above described, whether now existing or hereafter created.</p> <p>“ Said Newhall is hereby empowered to appear at all meetings of the associations above named, vote, and otherwise take part in the transaction of business at said meetings, in the place and stead of said Jones, as fully as said Jones could do: and is hereby nominated and appointed the attorney of said Jones to that extent.”</p> <p>The bill alleged the execution of the above agreement, the transfer of the plaintiff’s interest in the Worthington Land Association, and payment therefor; that there remained due to the plaintiff from the defendant four of the monthly payments of three thousand dollars each mentioned in the agreement, with intérest at seven per cent., together with the assessments that may be made on the Dorchester Land Association.</p> <p>The bill also alleged readiness on the part of the plaintiff to perform his part of the contract and tender of performance, and refusal on the part of the defendant.</p> <p>To this bill the defendant demurred on the ground that the plaintiff had a plain, adequate, and complete remedy at law. The demurrer was overruled, and the defendant appealed.</p> <p>The case was then heard before Ames, J., who reported it to the full court in substance as follows: The defendant executed the contract set up in the bill. The interest of the plaintiff in the Worthington Land Association has been conveyed to the defendant and paid for by him. In regard to the Dorchester Land Association, one instalment of $3000 became due to the plaintiff under the contract, which the defendant refused to pay on demand, and also refused to pay an assessment then due or about to become due,</p> <p>The plaintiff was permitted to testify, against the defendant’s objection and exception, that his purpose in making said contract with the defendant was to effect a sale of his interest in the Dorchester Association property, and that the $5000 bonus or profit was entirely on account of the Worthington property.</p> <p>It appeared also that the defendant had made payments on the Dorchester Land Association property, amounting to the sum of $4800, before the above mentioned instalment had become due.</p> <p>It further appeared that the legal title to the land belonging to said association was in trustees, and that the plaintiff’s interest therein was the right to receive a certain portion of the net proceeds of the sale of said land.</p> <p>Upon these facts, the defendant insisted that the plaintiff was not entitled to relief in equity, on the ground that he had a full, adequate and complete remedy at common law.</p> <p>The judge decided that the plaintiff was entitled to a decree according to the terms of his bill, and that a decree should be entered accordingly. From this decision the defendant appealed ; and the case is accordingly reported for the consideration of the full court, on said demurrer, and all the above questions of law and fact.</p>

<p>Bill in equity. The case was heard by Ames, J., who ruled that the bill could not be maintained for the reason that the plaintiff had a plain and adequate remedy at law, and reserved this question for the consideration of the full court, and also the question whether upon the evidence the bill could be maintained. The nature of the case appears in the opinion.</p>

<p>Bill in equity against the administrators and the heirs of George Barrett, deceased, to compel the reconveyance of a certain parcel of real estate, conveyed by the plaintiff to said Barrett by a deed absolute in form, but which the bill alleged was agreed between the parties to be security for a debt which the plaintiff owed Barrett. The bill did not allege that the agreement to that effect was in writing; the plaintiff offered to pay such sum as should be found due to the defendants.</p> <p>The defendants demurred to the bill assigning for grounds of demurrer, that the agreement set forth, being in regard to an interest in lands, and not to be performed within one year from tile making thereof, was not expressed to be in writing.</p>

<p>Bill in equity brought by the remaining partner in the firm of Stark, Stanley & Co. to recover a sum of money alleged to have been received by one of the defendants, a former copartner in said firm, upon a trust for the purpose of reestablisMng the firm in business, and to have been deposited with the other dafendant, who had knowledge of the trust, and who applied it to the payment of a debt which the firm owed him.</p> <p>At the hearing upon the pleadings and proofs, before Endicott J., a decree was passed that the defendants should pay to the plaintiff the sum of five hundred dollars with costs. The defendants appealed to the full court. The evidence was not taken by a commissioner, and no report of the facts was made by the judge. The case is stated in the opinion of the court.</p>

<p>A voluntary settlement fully executed cannot be revoked or altered by a second set tlement of the same property, in the absence of any provision in the deed of settlement reserving such power to the settler.</p> <p>A. in 1825 made a voluntary conveyance, without reserving any power of revocation, of personal property to an annuity company in trust to pay the income to him for life, and upon his death to transfer the principal sum to his executor or administrator, in trust for the special use and benefit of any child or children of A.; if one only, in trust for his or her use and benefit; if more than one, for their use and benefit equally, the legal representatives to take their parent’s share; in case of A.’s death without leaving any issue, to pay the principal to the mother of A. for her own use; in case A. survived his mother and died without leaving any lawful issue, then to pay the principal sum to his executor or administrator in trust for the use of his heirs at law and the heirs at law of his mother equally to be divided between them. A. subsequently undertook to change the terms of the settlement. In 1865 he adopted a child in pursuance of the provisions of the Gen. Sts. c. 110, and died in 1872, leaving no other child. Held, that A. had an equitable life estate, and no power to change the terms of the settlement. Held, also, that the adopted child took the remainder of the property as a “ child ” under the settlement, as one of the “ legal consequences and incidents of the natural relation of parents and children,” by virtue of the Gen. Sts. c. 110, § 7.</p> <p>The provisions of the Gen. Sts. c. 110, § 7, declaring that an adopted child “ shall be deemed, for the purposes of inheritance by such child and all other legal consequences and incidents of the natural relation of parents and children, the child of the parents by adoption, the same as if he had been born to them in natural wedlock,” is not unconstitutional unless it interferes with vested rights.</p> <p>Under the Gen. Sts. c. 110, if the parents of the child to be adopted are dead, and the Probate Court on the petition of the guardian of the child for leave to adopt it, which is assented to by the petitioner as guardian, makes a decree in accordance with the prayer of the petition, the fact that no guardian ad litem was appointed, even if such appointment should have been made, does not make the decree void, but voidable only, and it cannot be avoided by a stranger to the injury of the child.</p>

<p>Two petitions : one of William S. Bullard and others, trustees, that the receivers of the Franklin Insurance Company should be ordered to pay them the rent of a building No. 44 State Street, Boston; the other of George Higginson and others, members of the firm of Lee, Higginson & Company, that the said receivers should be ordered to pay them the rent of a building at the corner of State and Devonshire Streets, Boston.</p> <p>Hearing before Morton, J., who reported the case to the full court as follows:</p> <p>“ The Franklin Insurance Company for many years occupied as their counting-room premises now numbered 44 State Street. In the year 1871 the occupation of this company was under a - lease from William S. Bullard and others, trustees, at a yearly rent of $5000, which lease expired April 1, 1873.</p> <p>“ Under the agreement with Lee, Higginson & Co., hereinafter set forth, the Franklin Insurance Company vacated 44 State Street in the year 1871, when Lee, Higginson & Co. as occupants and tenants entered into possession thereof, and still continue such occupation ; but said Franklin Insurance Company continued to pay to said Bullard and others, trustees, the rent and taxes due and payable under and by virtue of said lease, and said trustees never released said company from any of its covenants or obligations under said lease.</p> <p>“ As an inducement for this change of occupation, Lee, Higgin-Bon & Co. paid said insurance company $10,000 in cash, procured and underlet to said company rooms at the corner of Devonshire and State Streets, under a lease expiring like the former on April 1, 1873, and reserving the same amount of rent; viz., $1250 a quarter, and agreed verbally with said company that payment by the latter of the rent and taxes due said trustees should be equivalent to payment of rent under the new lease; in other words, that said company should pay rent under one lease only, viz., under the lease from said trustees.</p> <p>“ Under both leases $1250 became due and payable on the first day of January, and first day of April, 1873, but no taxes then.</p> <p>“In the fall of the year 1872, said company moved from the premises at the corner of State and Devonshire Streets to a third counting-room, No. 46 State Street, and' verbally underlet to the Eliot National Bank the room at the comer of State and Devon-shire Streets, for the remaining term of the lease from Lee, Higginson & Co., for the sum of $1200. The Eliot Bank occupied the same from October 1872, till after April 1,1873.</p> <p>“ By decree of this court the Franklin Insurance Company passed into the hands of receivers on December 3, 1872. In December, Lee, Higginson & Co., threatened to eject the Eliot Bank unless the quarter’s rent due January first was paid, amounting to $1250. Said bank notified said company and receivers of this threat and demand. Various propositions were made by the counsel of Lee, Higginson & Co. to said receivers relative to a settlement of the claim ; among others, a proposition in writing to take $1250 on January first, and a dividend as the rent and taxes due April first.</p> <p>“No formal action was taken in regard to this by the receivers, but on January 1, 1873, one of the receivers paid Lee, Higginson & Co. $1250, and collected of the Eliot Bank $1200. The check for $1250 was indorsed and paid to said "trustees as rent of 44 State Street. Said trustees had always received said rent by check of said insurance company. No rent was paid on either lease April 1, 1873. No taxes were due.</p> <p>“ The petitioners, said trustees, claim $1260, the whole rent due April first, or a dividend thereon, pro rata, with other creditors. The petitioners, Lee, Higginson & Co., claim a like dividend on the same sum, but admit that under their agreement with said company, if either claim of said trustees is allowed, they, Lee, Higginson & Co., have no claim.”</p>

<p>Although an advertisement, under a power of sale in a mortgage, does not state the terms of sale, or that the terms would be stated at the time of the sale, the fact that at the sale a deposit was required, and that this prevented a person then present from bidding, does not invalidate the sale, if the mortgagee acted in good faith, and the requiring a deposit was usual and reasonable.</p> <p>The finding as- a fact that the holder of a mortgage in selling the mortgaged premises did all that was required by the terms of the power of sale contained in the mortgage, and by the good faith required of a mortgagee selling under a power is equivalent to a finding that the terms of the sale were usual and reasonable, ana calculated for the protection of all parties interested.</p>

<p>The eirst case was a bill in equity filed June 3, 1870, by two judgment creditors of a corporation, against the officers and stockholders thereof, but not joining the corporation as a party defendant. The bill did not purport to be in behalf of the plaintiffs and all the other creditors of the corporation, but alleged “ that the plaintiffs are the only creditors of said company known to the plaintiffs.”</p> <p>The grounds upon which the defendants were sought to be made liable are stated in the opinion of the court. Certain of the defendants demurred and the case was reserved on bill and demurrer by Chapman, C. J., for the consideration of the full court. P. M. Sears, for the defendants.</p>

<p>A. agreed in writing under seal to sell by warranty deed a lot of land to B. for a certain sum payable in lumber “ at current retail prices.” The land was subsequently conveyed, a mortgage upon it still existing, and an agreement in writing under seal was made between A. and B. reciting the conveyance of the land subject to a mortgage, “ which mortgage was according to previous agreement to have been discharged prior to said conveyance.” A. also covenanted to discharge the mortgage before a certain day, and it was agreed that B. should not pay the lumber agreed upon as the price, above the. amount of the mortgage, computed at the current retail price of the lumber delivered. A. did not discharge the mortgage, and B. paid it to prevent foreclosure. Held, that B. in an action for breach of the second contract was entitled to recover the loss of profits which would have accrued by the delivery of the lumber, and that the measure of damages was the difference between the wholesale and the retail price of the lumber.</p> <p>Where the measure of damages is the plaintiff’s loss of profits in having to pay cash when he is entitled to pay in a particular kind of goods at retail prices, evidence of the profits of any particular dealer in such goods is incompetent.</p> <p>When a part of the consideration for the purchase of a house conveyed by A. to B. was the agreement of B. & Co. to deliver a quantity of lumber to C.; and A. agreed to discharge a mortgage on the house before a certain day, a refusal by B. & Co. before said day to perform their agreement is no excuse for a failure on the part of A. to perform his, although B. & Co. were the parties beneficially interested in the house.</p> <p>The vendor of land agreed to pay off a mortgage at a time certain, the vendee retaining by agreement a part of the consideration until the mortgage was discharged; the vendor failed to discharge the mortgage at the time agreed upon, and the vendee paid the amount due with interest thereon some months subsequent to the time at which the vendor agreed to discharge it. Held, that vendee was not entitled to recover the interest paid which accrued after the date at which the vendor agreed to discharge the mortgage. .</p>

<p>Contract by the members of the firm of A. Russell & Co. to recover the price of lumber furnished on the following order, signed by the defendant: “ Messrs. A. Russell & Co., Please deliver Mr. John McDonald lumber for my house on Codman Street, and I will be responsible for the payment of the same when the house is completed ; said sum not to exceed five hundred dollars. M. M. Barry.” The answer denied that the lumber was furnished on the order, that the house had been completed by McDonald or by any one else; and alleged that the lumber was not to be paid for by the defendant unless said house was completed by McDonald according to his contract.</p> <p>The defendant also filed a note of the plaintiffs in set-off which Was admitted by the plaintiffs. At the trial in the Superior Court before Lord, J., the jury found a verdict for the plaintiffs, and the case was reported to this court substantially as follows:</p> <p>The plaintiffs’ evidence tended to show that the order was signed by the defendant, and that the plaintiffs furnished the lumber to the amount of the order, and that it went to the defendant’s house, and that the house was completed before bringing the action. On cross-examination the plaintiff, Russell, adtoitted that at the time the order was signed he read the contract between McDonald and the defendant for building the house. The contract was then put into the case. It provided among other things that the house was to be finished before December 1, 1871, and that the work was to be done in a workmanlike manner.</p> <p>The defendant, in his opening, offered to prove that at the time the order was signed by him, the plaintiffs agreed to finish the house according to the contract between him and McDonald if the latter should fail to do so ; that before January 2, 1872, McDonald ceased working on the house, leaving it unfinished; that the plaintiff, Russell, on January 2, 1872, requested the defendant to loan him on said order three hundred dollars, saying they had then furnished five hundred dollars’ worth of lumber for the house, but the defendant declined to pay anything on the order. That Russell then said they must have some money to pay a note coming due that day at the bank, and requested the defendant to lend the plaintiffs three hundred and fifty dollars for thirty days on their note, promising that if the defendant would do so, he would immediately see McDonald and get him to complete the house, and if he would not, then that the plaintiffs would themselves complete it in thirty days, and if neither they nor McDonald should finish it in thirty days, then the plaintiffs would return the order to the defendant and also pay their said note ; that on these conditions and promise the defendant loaned to the plaintiffs three hundred and fifty dollars on their note, but that neither McDonald nor the plaintiffs did any more work on the house, and at the expiration of thirty days the defendant demanded payment of the note and a return of the order, but the plaintiffs refused to do either; that the house remained unfinished for two or three months afterwards, when the defendant laid a part of the floors, finished the stairways and painted the house inside and out one coat, and did other work, and that then the house was not completed according to said contract.</p> <p>The presiding judge ruled that inasmuch as it is conceded that the house was substantially finished, although not done in the workmanlike manner which the contract between the parties may have called for, the rights of the parties would not be affected by any of the proffered evidence, and that the plaintiffs were entitled to recover the difference between the amount of the order a^d the note, and the case is reported for the determination of the Supreme Judicial Court. Judgment to be entered on the verdict, if the ruling was right, otherwise a new trial to be ordered.</p>

<p>A common carrier may hy an express contract exempt himself from liability for loss happening without his fault.</p> <p>If the law of the place where a contract signed only by the carrier, is made for the carriage of goods, requires evidence other than the mere receipt hy the shipper to show his assent to its terms, and the law of the place where the suit is brought presumes conclusively such assent from acceptance without dissent, the question of assent is a question of evidence, and is to be determined by the law of the place where the suit is brought.</p> <p>/i common carrier who negligently delays to send forward goods delivered to him for transportation is not liable for an injury to the goods hy a peril excepted in the contract of carriage, happening without his fault, while the goods are in his custody at the place where they were delivered to him, although the goods would not have been exposed to the peril hut for such delay.</p>

Bill nr equity for an injunction against Henry S. Little and James Brooks. The case was heard on bill and demurrer by Morton, J., who reserved it for the consideration of the full court. The facts of the case appear in the opinion of the court.

<p>The authority given by the Gen. Sts. c. 115, § 6, to the Superior Court to report a case after verdict for determination by this court, extends only to questions of law. The report should be so framed as to state the nature of the case, and the questions of law intended to be reserved, and so much only of the facts or the evidence as may be necessary to present those questions.</p> <p>The purpose of the St. of 1870, c. 312, providing for the appointment, by the Superior Court in the county of Suffolk, of stenographers, is to afford assistance to the court and the counsel in conducting the trial, and in drawing up reports and bills .of exceptions, not that a complete record of all that took place in the court below, whether material or immaterial to the questions of law reserved, should be transmitted to this court.</p> <p>A. report from the Superior Court stated none of the rulings upon the admission and rejection of evidence, and upon the question reserved whether there was any evidence to bs submitted to the jury, referred to the stenographer’s report annexed, and this report as printed covered nearly two hundred pages, and consisted in greater part of irrelevant and unimportant details of testimony, long cross-examinations affecting only the bias and credibility of witnesses, and interlocutory discussions between the judge and the counsel, through which the rulings of the judge and the portions of the evidence bearing upon the questions of law to be determined, were scattered. Held, that the report was so irregular that it must be dismissed.</p> <p>In an action against A. for a breach of warranty in the sale of goods, the plaintiffs introduced evidence tending to show that they made an agreement for the purchase for a fixed price with a person representing himself to he an agent of A.; that-by the terms of the agreement the goods were to be equal to a sample ; that before closing the contract they saw A., who told them that they were buying directly of him and would get their bill direct from him ; that no price or other terms were agreed on or mentioned between them and A,, who received the price agreed upon by the agent and delivered the goods, but instead of giving a bill direct to the plaintiffs, gave them a bill to a firm of which A. had been a member, but which had ceased to exist, and a former clerk of this firm made out a bill of the goods from this firm to the plaintiffs, A. representing that this would make no difference. Held, that it was competent for the jury to find that A. adopted the contract of sale made by the agent, and that if so, A. could not repudiate the warranty, which was an essential part of the contract. Held, also, that the manner in which the bills were made out was open to explanation, and did not conclusively show that the plaintiffs bought of the agent.</p>

Contbact upon a promissory note, signed by the defendant, payable to Samuel Despeaux, and indorsed to the plaintiff. At the trial in the Superior Court, before Putnam, J., without a jury, judgment was ordered for the plaintiff, and the defendant alleged exceptions in substance as follows: The plaintiff produced the note, and the defendant admitted the execution of it and the indorsement to the plaintiff.

<p>Under the Gen. Sts. c. 129, § 41, an amendment may he allowed at any time before final judgment.</p> <p>If during the trial of a cause the court rules that the plaintiff cannot recover on his declaration, and allows him to amend, and suggests that the trial proceed and that the amendment he filed thereafter, and no objection is made to this course, it is too late to object at the argument in this court that the amendment was not filed until after the verdict.</p> <p>It is not a violation of the Gen. Sts. c. 84, relating to the observance of the Lord’s day, for a husband and wife to hire a horse and wagon to attend the funeral of the husband's brother-in-law.</p> <p>It is the duty of a livery stable-keeper to provide a horse suitable for the purpose for which it is let, and on the question of his liability for an injury caused by the horse’s running away it is immaterial that he did not know that the horse was unsuitable.</p> <p>When a stable-keeper lets a horse to A., knowing that it is to be used by A.’s son to take his family to a funeral, he is liable to the son and any member of the son’s family, for an injury caused by the unsuitableness of the horse for the purpose for which it was hired.</p> <p>When an accident is caused in part by the fault of a horse unsuitable for the purpose for which it is let, and in part by a defect in the highway, the stable-keeper who let the horse will he liable for the damage to the parties injured.</p> <p>If a person hires of a stable-keeper and by mistake takes a horse not intended for him, and the stable-keeper, knowing that he has taken the horse, and the purpose for which he intended to use it, does not make a reasonable effort to notify him of his mistake, he will he liable for any damage caused by the unsuitableness of the horse for the purpose for which it was used.</p>

<p>Evidence that wool was delivered at the station of a common carrier, in sacks marked with the name and address of the owners, whose place of business was in Boston, and with the initial of the agent who had purchased it; that the weights and numbers were upon all the sacks; that previous shipments had been made by the same agent at the same place to the same principals, during the same season; and that when said agent delivered this wool he piled it in one part of the building, pointed it out to the defendants’ agent, and said, “ That pile of wool is for Boston,” is evidence of a delivery to the carrier for shipment to the principals at Boston.</p> <p>In an action against the receivers of a railroad for the loss of goods by fire, while in the defendants’ freight house, evidence that the freight house was filled with wool in sacks, and paper stock in a ragged condition scattered loosely upon the floor; that some kind of oil was stored there, a portion of which had leaked out upon the floor; that much of the glass was broken out of the windows at one end of the building; that the most inflammable materials were stored in that end; that a locomotive engine passed over the track, twenty-five or thirty feet from said windows, about fifteen minutes before the fire was discovered, and that the fire caught at that end of the building, is evidence to be submitted to the jury of a want of ordinary care on the part of the defendants as warehousemen.</p>

The reasons of appeal related to matters of fact only, not appearing on the record. The appeal was set down for hearing before Devens, J., on May 23,1874, when the appellants, not appearing, were defaulted, and the decree of the probate court affirmed. The appellants on May 26 appealed to the full court, and immediately entered their appeal here.

<p>The town record kept pursuant to the Sts. of 1863, cc. 65, 229, of the soldiers who composed the town’s quota of the troops furnished by the Commonwealth to the United States, is competent evidence of the enlistment of one of such soldiers and of payment of bounty to him.</p> <p>A general order of the Governor of the State is competent evidence of a call for troops under an act of Congress, and of the assignment of quotas to the towns under the call.</p> <p>A certificate of discharge from the military service of the United States is admissible in evidence to show that a soldier was honorably discharged, and indorsements on the certificate, stating that the soldier had deserted, which indorsements were made without the consent of the soldier and after the certificate was delivered to him, will not affect its admissibility.</p> <p>The entry on the muster roll of a company that a member thereof has deserted is not conclusive evidence of the truth of the charge, intentional absence from military service without leave, does not of itself constitute the crime of wilful desertion; there must be in addition the intention not to return to the service.</p> <p>The “ wilful desertion ” referred to in the St. of 1865, c. 230, § 3, is the “ desertion ” defined by the Articles of War, U. S. St. 1806, c. 20, art. 20.</p> <p>A certificate from a public officer that certain facts appear from the records of his office, but which does not profess to be a transcript of the record, is not competent evidence of such facts.</p>

<p>If a person accepts a policy of insurance without dissent, the law presumes that Js knows and assents to its contents.</p> <p>A., the agent of an insurance company to solicit risks, obtained for B. a policy of insurance from said company, paying for it a cash premium and executing and depositing a premium note, in the name of B. The policy recited that B. had paid a cash premium and given a deposit note of like amount B. received the policy without reading it, and had no knowledge of the execution of the note by the agent Held, that the acceptance of the policy by B. was a ratification of the act of the agent in executing the note; and that the fact, known to B., that the agent was the agent of the company to solicit risks would not prevent his acting for B. in executing the premium notes.</p>

Tort for libel. At the trial in this court before Colt, J., the case was reserved for the consideration of the full court on the pleadings and evidence. The plaintiff afterwards died, and his administratrix sought to come in and maintain the suit, and offered to show that the intestate lost two offices in consequence of the alleged libel.

<p>Contract to recover one half of the expense of certain renewals of structures incurred by the plaintiff under a contract made originally by the defendant with the Malden & Melrose Railroad Company, and assigned by the latter to the plaintiff. The case was heard before Wells, J., who reserved it for the consideration of the full court, in substance as follows :</p> <p>On September 15, 1858, a contract was entered into between the defendant of the first part and the Malden & Melrose Rail-" road Company of the second part, the material portions of which are as follows:</p> <p>“ First. That the said party of the first part hereby agrees to construct the railroad tracks in the cities of Chelsea and Charles-town as therein located, and according to the contract and specifications this day entered into between said party of the first part and M. M. Hodgman; and also to construct stables and car-houses according to the plans and specifications submitted therefor, on land corner of Broadway and Eleanor Streets ; the work on said road to be commenced forthwith; the construction thereof completed according to said specifications; and said stables and carnouses to be erected ready for running on or before the first day of ¡November next.”</p> <p>“ Fifth. Said party of the second part hereby agrees to pay to the party of the first part on the first days of October and April, commencing on the first day of October, A. D. 1859, in each and every year during the said term for which the above grant is made, one half part of the rent herein reserved and agreed to be annually paid. The rent shall be at the rate of five thousand six hundred dollars per annum, and shall continue at this rate until the net earnings of the cars employed by the said party of the second part and running between Chelsea and Boston amount to the sum of $11,200 per annum. All the net earnings over and above said sum shall be equally divided between the two parties hereto, semi-annually, and paid as above provided. It is agreed by the parties hereto that the expenses of operating said road and running the cars between Chelsea and Boston, and keeping the same in repair, shall be calculated from the number of horses employed, estimating the cost of each horse at one hundred and thirty-five cents per day, and allowing that each horse can travel thirteen miles a day for 313 days in each year; and to the cost thus ascertained the toll paid the Chelsea Bridge Corporation shall be added, to make up the whole expense of operating.”</p> <p>“ Seventh. Said party of the second part agrees to furnish proper cars, horses, stock and other articles suitable for operating said railroad and running cars between Chelsea and Boston; that it will run cars as aforesaid as frequently as the public convenience requires, except when prevented by unavoidable casualties; and will keep said railroad, together with such portions of the streets and bridges, respectively, as shall be occupied by the tracks of said railroad, in good and proper order and repair ; and keep and perform all the agreements between the Salem Turnpike and Chelsea Bridge Corporation and the party of the first part, to be kept and performed by said party of the first part; provided, however, that if any of the materials used in the construction of the road shall be worn out or become unfit for use, and the track shall be required to be renewed, and the cost of such renewal properly assessed, on any one year, shall exceed one thousand dollars, then the expense thereof shall be defrayed from a sinking fund, to be set apart, one half by each of the parties hereto, from the surplus increase, after eight per cent, shall have been divided upon all the stock of said party of the first part; which fund shall be equal to one per cent, a year upon the capital of said party of the first part, and shall be invested in the stock of said Boston & Chelsea Railroad Company; or if said fund shall not be sufficient, then the same shall be provided in such a way as may be found equitable.”</p> <p>On April 16,1863, the plaintiff and the defendant entered into the following contract:</p> <p>“ Whereas the Malden & Melrose Railroad Company did on the day of A. D. 1862, assign the annexed contract to the Middlesex Railroad Company ; and whereas the said Middle-sex Railroad Company did on that day enter upon and take possession of the property in said contract demised, and have from that time until the date of these presents operated said railroad and paid to the Boston & Chelsea Railroad Company the rent in and by said contract provided:</p> <p>“ Now, therefore, in consideration of the premises, and of one dollar to it paid by the said Middlesex Railroad Company, the said Boston and Chelsea Railroad Company doth hereby assent to said assignment, and agrees that the said Middlesex Railroad Company may hold said demised property, or may underlet the same or any part thereof. Provided, however, that the said Middlesex Railroad Company shall do and perform all the agreements and covenants in said contract contained and to be performed by the said Malden & Melrose Railroad Company (save as the same are hereinafter altered) from and after the said 31st day of March, A. D. 1862. It being expressly agreed that the said Middlesex Railroad Company shall not be liable to make good or pay anything for any breach of contract aforesaid, made or suffered by the said Malden & Melrose Railroad Company prior to the said 31st day of March, A. d. 1862. The said Boston & Chelsea Railroad Company doth also further agree that it will abandon, and hereby doth waive and relinquish, all claim under the said contract to any and all participation in the profits or earnings of the railroad or property in said contract demised or growing out of the operation thereof. . And the said Boston & Chelsea Railroad Company doth further agree to cancel six hundred shares of its capital stock and reduce the capital stock of said company to the sum of one hundred and ten thousand dollars divided into two thousand and two hundred shares.</p> <p>“ And the Middlesex Railroad Company, in consideration of the premises, doth agree to pay the said Boston & Chelsea Railroad Company, in the place of five thousand six hundred named in the said contract, the sum of eighty-eight hundred dollars per annum in semi-annual payments, first payment to be made on the first day of October next.</p> <p>“ And the said Middlesex Railroad Company doth agree that its clerk shall sign, upon presentation, a statement written on the face of each certificate of the above named stock of said Boston & Chelsea Railroad Company in the following words: ‘ Entitled to a semi-annual dividend of two dollars a share, payable by the Middlesex Railroad Company on the first days of April and October, subject to the provisions of the lease assigned to and the contract with said Railroad Company.’ ”</p> <p>The award of a referee was made part of the report. From this it appeared that the materials used in the construction of the defendant’s road wore out and became unfit for use, and that certain an ms were expended by the plaintiff in making repairs or renewals, and the amount properly assessed in each year was stated. The referee also found that there was no sinking fund raised to defray the expense of such renewals, nor any profits from which such sinking fund could have been raised; that the capital stock of the defendant corporation consisted of 2800 shares at $50 per share, until the rent to be paid to said defendant was raised from $5600 to $8800 per annum; and that when the rent was so raised, the number of said shares was reduced to 2200.</p> <p>It was also agreed, if admissible, that certain holders of the deferred stock of the defendant company, which at that time had no market value, at or about the time of the making of the contract of April 16, agreed with the plaintiff that if it would pay the rent of $8800 named in said contract whereby eight hundred shares of the deferred stock were made preferred with a guaranteed eight per cent, dividend, that they would pay to the plaintiff $25 per share, and that this was paid to the amount of $20,000 , but there was no agreement in regard to the money on the part of the defendant, and none of it was paid by the defendant.</p>

<p>Bill in equity brought by the plaintiff as administratrix of the estate of Michael Drinan, against Rebecca A. Nichols and Clark R. Moore, to redeem an estate sold by the defendant Nichols to the defendant Moore under a power of sale contained in a mortgage made by John T. Pope to said Nichols; which estate had, after the execution of said mortgage, been conveyed by Pope to said Michael Drinan, subject to said mortgage.</p> <p>The case Avas heard before Ames, J., who reserved it for the consideration of the full court upon the bill, answers and the following report:</p> <p>“ It appeared that the condition of the mortgage described in the plaintiff’s bill of complaint had been broken by a failure to pay the semi-annual interest which became due July 18,1873, and has remained unpaid ever since. I find also that the sale made in pursuance of the power was made in good faith and in exact conformity to the provisions of the mortgage deed; that Clark R. Moore was the highest bidder at the sale, which was for $4600 ; that he acted in entire good faith, and claims the benefit of his purchase; and that he signed, at the time of the sale, a xvritten memorandum or agreement of purchase. The value of the estate at the time of the sale was proved to be at least $6200. No deed of conveyance to the purchaser Moore has' yet been executed, the completion of the bargain having been interrupted by the filing of the plaintiff’s bill. The plaintiff offers in her bill to pay all arrears upon the mortgage, Avith interest, and to indemnify the mortgagee for all the expenses incidental to or incurred in the advertising and selling of the property.</p> <p>“ It also appeared that the mortgage and note were made and executed by John T. Pope, who owned the equity of redemption, and who conveyed the estate, subject to the mortgage, to Michael Drinan, who was the plaintiff’s husband, and died intestate; that the note for some time past had been deposited at a bank in Boston for the promisee; and that the notices calling for the payment of interest as it became due were issued from the bank, addressed to said Pope; and that the plaintiff had twice paid the amount of the semi-annual interest into the hands of Pope, to be by him paid to the bank. But I do not find that Pope was the agent of, or had any authority to represent or act for, the mortgagee. It appeared that after receiving from the bank the notice that interest had become due, Pope called upon the plaintiff, and she paid the money into his hands, with the expectation on her part and upon the understanding that he should at once pay it at the bank, or to the mortgagee. About the first day of September last, she became aware that Pope had not made the payment, and sent him a message to attend to the matter, which he promised to do without delay. She also sent a messenger to the office of the mortgagee’s attorney, which messenger reported to the plaintiff that he had left word that if Pope did not make, the payment, she would pay it herself on notice. A student in that attorney’s office testified that the messenger came there twice, and said that Pope had received the money and would make the payment; but the witness had no recollection that any notice was agreed to be sent to the plaintiff.”</p> <p>The bill alleged that the plaintiff received notice from the attorney of Nichols, some time after the maturity of the interest, that the same had not been paid to the said Nichols, and that the plaintiff went immediately to the office of the said attorney, and stated to him the fact of payment to Pope, and requested the said attorney to inform her at once if Pope should not pay over said amount to him or to Nichols; that Pope was immediately seen in regard to it, and that he faithfully promised to pay the amount over at once; that the plaintiff did not hear from said attorney, and supposed Pope had paid the interest as promised ; that she heard nothing further of the matter until she heard that the property had been sold the day before.</p> <p>The answer of the defendant Nichols admitted that Drinan jecame the owner and died seised of the estate; and that the defendant received the interest on the mortgage from Pope or the plaintiff until June, 1873, when notice that interest was due was sent by the bank to Pope; and denied, upon information and belief, that the plaintiff requested the defendants’ attorney to inform her if Pope should fail to pay him, the said attorney, the interest due.</p> <p>The answer of the defendant Moore alleged ignorance of 0 the matter of the request, and averred that he was the highest bidder at the auction, and entitled to the property.</p>

<p>Under the Gen. Sts. c. 124, § 13, one who is arrested on an execution in favor of a plaintiff who resides in the county where the arrest is made, and who has an attorney who lives in that county, may give notice of his intention to take the poor debtor’s oath, to the attorney who made the writ upon which he was arrested, although such attorney does not reside in that county.</p>

<p>Contract to recover money alleged to have been paid to the 6rm (f Plankington & Armour in the purchase of hams in the . defendants’ behalf, and for commissions and charges in making such purchase.</p> <p>At the trial in the Superior Court, before Putnam, J., the jury returned a verdict for the plaintiffs, and the defendants alleged exceptions in substance as follows :</p> <p>The defendants telegraphed to the plaintiffs, who were brokers in Milwaukee, Wisconsin, to buy of Plankington & Armour two hundred barrels of green hams, rubbed in salt, at a limited price, and ship them to Boston. The plaintiffs bought, shipped and paid for the hams, and drew on the defendants for the amount expended by them in executing the defendants’ order, with their commissions. The hams arrived in Boston in bad order, and the defendants refused to receive or pay for them.</p> <p>The defendants introduced evidence tending to prove that the hams were unsound when packed, and were not rubbed in salt as required, and that it was the duty of the plaintiffs, as their agents, to attend to the matter themselves, in examining the goods, or to have some other persons inspect them before receiving or accepting the same, and contended that they did not do their duty, and that if they had done so the defect and improper condition would have been apparent and been discovered, and that they were in fault in this respect, and paid the money wrongfully and without authority; as they did not do their duty in making or having an examination made before accepting the goods.</p> <p>The defendants offered, and the court admitted evidence, tending to show a usage or custom in Milwaukee, for brokers or commission merchants, in a case like the present, either to examine the goods themselves, or have them examined and inspected by an inspector at the purchasers’ expense, before accepting or paying for them, and that the plaintiffs did not do it or have it done in this case, and failed of their duty in that regard. In rebuttal, the plaintiffs denied the existence of such a usage or custom, and controverted by other evidence the proof of the defendants. One of the plaintiffs testified that it was the custom and usage to have cured hams inspected, but not green hams ; that the shipping of green hams in barrels was of recent date. The plaintiffs further contended, and offered evidence tending to show that the hams were in good condition and were rubbed in salt and were properly packed, and that they spoiled in the course of transportation because of the unusually warm weather, and not because of their improper condition or defective packing when shipped, and also offered evidence that these hams were, in fact, inspected. Among other evidence, the plaintiffs offered, and the court admitted in proof, against the defendants’ objection, the act of the State of Wisconsin incorporating the Chamber of Commerce in the city of Milwaukee, and a printed pamphlet, sworn to and identified in the deposition of one of the plaintiffs as the rules and regulations adopted by the said Chamber of Commerce.* It was offered and admitted upon the question of usage and custom alleged by the defendants as aforesaid.</p> <p>The plaintiffs, on cross-examination of the defendants’ witnesses, inquired of them as to the reputation and standing of the firm of Plankington & Armour, to which the defendants objected.</p> <p>The plaintiffs, in rebuttal, offered and were allowed to introduce in evidence, against the defendants’ objection, the following questions and answers in the deposition of Mr. Plankington:</p> <p>“ Int. 8. State what, under such custom or usage, are the duties of the vendor or packer of hams in relation to the furnishing packing, inspection, and shipping or forwarding thereof.</p> <p>“ Ans. It is not the custom, so far as I know, for the broker t® send an inspector for green hams ; for instance, the broker buys a quantity of hams, cured in pickle; he usually sends an inspector — the inspector that is appointed by the Chamber of Commerce — to examine a sufficient amount to make a full report of the lot; that is, in making this inspection, they open a certain number of barrels out of every hundred — about five out of every hundred — hap-hazard. The broker would have the right to send the inspector to see that the hams sold dry, with or without salt, are sweet, in good condition, and properly cut at the time of delivery. It is not customary to have this kind of provisions inspected, The broker depends upon the responsibility of the house packing. The reason is, that hams sold green are not sold for consumption, but sold to parties who cure them for consumption. It is customary to have an inspector in all sales of cured meats.</p> <p>“ Int. 9. State how, under the usage or custom aforesaid, a transaction for the purchase of hams is conducted by the broker and the packer, from the inception to the conclusion of the transaction, and the time when the duties of each are fully performed.</p> <p>“ Ans. The broker comes to the packer to purchase a quantity of hams, and he states how he wants them put up, and when he wants them delivered, and where. Then the packer fills out the instructions that are given to him by the broker, and delivers them according to the instructions. The responsibility of putting the meat up right rests with the packer. It is not the custom here, except with reference to cured meats, that an inspector should be employed. They sometimes may have an inspector to look after green meats, but it is not the custom. With green meats, the broker takes the meats upon the responsibility of the packer.</p> <p>“ Int. 27. State whether or not, in your opinion, at the time you executed the order for the hams referred to in your answer to the fourteenth interrogatory, there was danger or hazard in shipping said hams, packed green and rubbed in salt, that they would not arrive in good condition, and what the chances of their arriving in Boston in a like good order and condition as when shipped, if not subjected to extraordinary delays or detention on the voyage.</p> <p>“ Ans. To my knowledge, the weather was bad at that time, warm, muggy weather; and there was danger in shipping hams in that condition. They could not at that season of the year, with the weather as it was then, have arrived in Boston in as good order as when shipped from here, even though not subjected to extraordinary delays or detention on the voyage.”</p>

<p>Contract on an account annexed for rent of store No. 54 and 56 Broad Street, Boston, from October 1, 1869, to January 1, 1870, and for the taxes assessed by the city of Boston on said store, May 1, 1869.</p> <p>At the trial in the Superior Court before Putnam, J., the jury found a verdict for the plaintiff, and the defendants alleged exceptions in substance as follows:</p> <p>It appeared in evidence that the store in question was formerly owned by George Odin, who died in 1866, and that on his decease it descended to his niece, Harriet L. Odin, a minor, of whom the plaintiff was duly appointed guardian.</p> <p>On July 1, 1864, Odin leased to the defendants, for the period of five years, the lower floor of the premises and cellar under the same, numbered 56 Broad Street, for the rent of 1500 per year, the lessees being exempt from paying taxes, and restricted from underletting. The lessees took possession of said premises, and remained therein during the term of said lease, and afterwards to October 23.</p> <p>During the term of said lease and subsequently, the defendants occupied only the first floor and cellar, numbered 56 Broad Street, the premises above forming part of the same building, but numbered 54 Broad Street, were occupied by D. Leland & Co. as tenants at will of said guardian,, until July 1, 1869; and after said July 1, in the manner hereinafter stated.</p> <p>The premises, in the spring of 1869, were very much out of repair and in bad condition, especially that portion occupied by Leland & Co.</p> <p>The defendants offered evidence tending to show, that in June, 1869, or some time before the expiration of the written lease to them, that firm and Leland & Co. both had a conversation with the plaintiff in regard to a renewal of their tenancies; that he said he preferred but one tenant of the whole estate, and finally agreed with the defendants that he would put said premises, from top to bottom, in good repair, so that the defendants and Leland & Co. should be pleased therewith, and that he would give to the defendants a written lease of the whole of the premises for the period of five years, from July 1, 1869, (the expiration of the former lease), for the rent of $1,600 per year, and all taxes, and with a right to underlet, to which agreement said firm assented. The evidence was conflicting as to whether the agreement of the plaintiff was to repair the whole building, or only the portion occupied by the defendants; but, with this exception, it was admitted that such an agreement was made.</p> <p>After making said agreement, the plaintiff notified Leland & Co. that he had agreed to lease said store to the defendants; and Leland & Co. thereupon, and before July 1, when their rent became due, agreed with the defendants that they would remain in store No. 54 as their tenants and at an advanced rent payable monthly, the defendants agreeing that the premises should be put in repair; and it was in evidence that Leland & Co. remained in the premises, No. 54 Broad Street, after July 1, and paid the defendants one or two months rent therefor, at the advanced rate, but finally refused to pay rent after that because repairs had not been made. The plaintiff after July 1 had never demanded rent of them, or treated them as his tenants, nor did Leland & Co. consider themselves as his tenants.</p> <p>On or about July 1, 1869, the plaintiff left with the defendants a written lease according to the terms of said agreement, excepting that the clause prohibiting underletting was not erased. Nothing was said in it about repairs. One of the members of that firm gave the lease a hasty examination, and laid it one side; but neither he nor his firm requested the plaintiff to erase therefrom the printed clause restricting them from underletting, nor ever notified him that said lease was in any way unsatisfactory to them. The lease was never executed. It was in evidence that the plaintiff made repairs and alterations in the lower store, numbered 56 Broad Street, to the satisfaction of the defendants, which were completed about August 1; but, though several times requested by the defendants after July 1, he refused to make repairs on the upper store, contending that he had never agreed to do so.</p> <p>There was evidence tending to show that on or about October 2, 1869, the plaintiff demanded $400 of the defendants, it being for one quarter’s rent of the whole estate at the advanced rate, which they refused to pay, because the plaintiff had not repaired the premises occupied by Leland & Co. During the conversation between them, the plaintiff said that he had been offered $1,800 per year for said premises, and that they, the defendants could not remain in said premises, if they did not pay said rent; and thereupon they paid said rent under protest, and continued to occupy the store until October 23, 1869, when they left, having given notice to the plaintiff of their intention so to do on October 18.</p> <p>The defendants requested the presiding judge to instruct the jury, that if the plaintiff agreed to repair all of said premises, and to give them a lease in writing for a term of years, and failed to keep said agreement in any respect, either failing to repair, or to give them a written lease with the right to underlet, the defendants would not be liable to pay rent after July 1,1869 ; that if they held over after the expiration of said old written lease, they were tenants at sufferance, of store No. 56 Broad Street, at the old rate of $500 per year, and were not bound to give notice in writing of their intention to terminate said tenancy; that under the facts disclosed in the case, the defendants were only liable for rent of store No. 56, at the rate of $500, for the period of twenty-three days from October 1.</p> <p>The court, instead of the instructions asked for, gave, upon those points, the following instructions to the jury: “If no new agreement was made, the defendants would be considered as holding over and would be merely tenants at sufferance, having the right to leave as they did, October 23, 1869, and paying only fro rata rent from July 1,1869, to October 23,1869, at the rate of the old lease, $500 per year.</p> <p>“ As the plaintiff contends they were tenants at will, he must satisfy the jury that there was some new agreement, expressed or implied, that the defendants should take the whole premises, at the rate of $1,600 per year, with privilege to underlet, and that the defendants entered under that agreement^ or continued to remain there, after July 1, 1869, under said agreement; that, as the lease was not executed, if they entered under the agreement as contained in the lease, they would be afterwards tenants at will, so long as the lease remained unexecuted, and they would be obliged to pay rent at the rate of $400 per quarter, and would have no right to leave as they did, in .the midst of the quarter, paying rent only to that time; that the evidence that, in point of fact, they did underlet, and accept rent of their tenant, for one or two months, and the other evidence in the case was for the consideration of the jury as bearing on the question whether they entered or remained in possession under said new agreement; that if they entered under this agreement, even if the jury should find that the agreement was to repair the whole building, the failure of the landlord to do so would not justify them in changing the character of the tenancy, from that of a tenancy at will to a tenancy at sufferance; and, though they left in the middle of the quarter, they would be obliged to pay the full quarter’s rent; if they chose to enter, under the terms of the new lease, before the repairs agreed upon were all made, they must look to the landlord for indemnity upon his promise, if they were not made.”</p>

<p>An oral acceptance of a bill of exchange is binding upon the acceptor.</p> <p>A contract to build a house on the land of a married woman, although signed by her husband as well as herself, is a contract in reference to her separate property within the Gen. Sts. c. 108, § 3 ; and her liability under the contract is a good consideration for her acceptance of an order drawn by the contractor for building the house, upon her jointly with her husband, in favor of a third person, to whom the contractor was indebted.</p>

<p>Petition under the St. of 1866, c. 174, for a jury to revise an assessment of betterment made by the board of aldermen of the city of Boston, upon the estate of the petitioner, fronting on Hanover Street, part of which was taken to widen said street. Trial in the Superior Court, before Putnam, J., who after verdict reported the case for the consideration of this court in substance as follows:</p> <p>There was evidence as to the value of the estate in question, before and after said widening ; also, of the cost of the widening; and as to the questions what the benefit to the petitioner’s estate was, and what the amount of said cost was, that was assessed upon some of the neighboring estates; a schedule of the whole assessment, as made by the board of aldermen, was put in, and a witness called by the city to show that the apportionment as there made to the different estates assessed, was a fair one. There was evidence tending to show that all small pieces of land in Boston, susceptible of any use for business, were always worth more per foot than large pieces would be in the same locality.</p> <p>The petitioner contended, “ 1. That the. benefit or advantage for which an assessment of betterment, in consequence of the widening, is to be made, must not be any such benefit as could be the subject matter of set-off, in estimating the damages of the land owner, for the portion of his land taken to widen the street. 2. That the comparison must be made, not between the value of v the land as now on a street, and as rear land of the original lot before the widening, but simply between this lot on a narrow and on a wide street. 3. That the mere reduction of the original estate of the petitioner, by the taking of a part thereof to widen said street, to a small parcel of land, and so increasing its value, was not such a benefit of the widening as is within the benefit contemplated by the statutes.”</p> <p>And the petitioner requested the presiding judge so to rule and instruct the jury, which he declined to do, but submitted the case to the jury under such other instructions as he deemed proper, but not in conformity to the instructions asked for.</p> <p>The board of aldermen determined that the benefit which this estate had received from the widening was $9000, and assessed the betterment at the sum of $4500, one half part thereof. The .jury determined the benefit to be $6465, and assessed the betterment at one third thereof, to wit, $2155. The whole assessment made by the board of aldermen did not exceed the whole cost of the widening of the street.</p> <p>After the verdict the counsel for the city filed a motion for a new trial on the ground that the verdict was not in conformity to law, for the reason that the jury could not legally find that the petitioner should pay any other proportion of the benefit to said estate than one half thereof. The court overruled this motion, to which the counsel for the city excepted.</p> <p>If the rulings of the court were right upon the trial, and upon the motion for new trial, the verdict is to stand. If they were incorrect, the case is to be returned to the Superior Court for a new trial.</p>

<p>In a suit in equity under the St. ot 1862, c. 218, to enforce the liability of the officers of a manufacturing corporation, proof that the certificate required by § 8 of the Gen. Sts. c. 61, was signed, sworn to and filed in the office of the Secretary of the Commonwealth, by the defendants as officers of the corporation, that the association engaged in business in its corporate name, contracted debts and filed other certificates required by law, also signed by the defendants, declaring the corporate character of the organization, is conclusive, as against the defendants, of the corporate character of the association.</p> <p>The proceedings under the St. of 1862, c. 218, to enforce the liability of the officers of corporations, must be in strict accordance with the statute, and a return of the execution unsatisfied on the same day on which the demand thereon was made, does not make the officers liable; and it is of no avail to show that the corporation neglected to pay the debt, made no attempt to exhibit property, and had none to exhibit.</p>

<p>Under the provision of the revised charter of the city of Boston, (St. 1854, c. 448, § 24,) that “ the board of aldermen, the common council, and the school committee, shall have authority to decide upon all questions relative to the qualifications, elections and returns of their respective members,” the decision of the school committee, declaring a seat in the board to he vacant, for want of legal election and qualification, is conclusive, and cannot be revised by this court upon petition for a writ of mandamus, although the school committee states in its record, as the sole reason for its decision, that the petitioner is a woman.</p>

<p>Whether money lent to a member of a firm is advanced upon his credit or upon that of the firm of which he is a member, and whether the individual check of such person given for the loan is so far payment thereof, as to leave the creditor na recourse to the firm, are questions of fact depending upon the intent, understanding and agreement of the parties.</p> <p>On an exception to a refusal to rule that upon all the evidence the plaintiff had not established Ms case, the weight of the evidence will not be considered, but only whether there was any evidence to warrant a verdict.</p> <p>In a suit by A. against alleged copartners, where the issues, whether the alleged partnership in which the individual partners were authorized to borrow money on the credit of the firm existed in fact, and whether the alleged partners represented to A. that it did, are presented together, the separate admissions of the alleged partners, made to third persons, are competent to charge them respectively upon the first, but not upon the second issue; but declarations made to A. are competent upon both issues to charge the person making them.</p> <p>For the purpose of showing the nature and scope of an alleged partnership, evidence of the common and usual dealings of persons engaged in the same business in the same locality, is competent.</p> <p>A partnersMp in the business of buying and selling cattle is a trading partnership, one of the incidents of which is the right to borrow money for the purposes of the business.</p> <p>Statements made by an alleged partner at the time that a loan is obtained, showing that the money is for the use of the alleged firm, are part of the res gestee, and are competent to charge the other partners in a suit to recover the money lent, if the fact that the several individuals are partners, or that they have so held themselves out to the person making the loan, is established.</p> <p>An exception to the exclusion of testimony cannot be sustained unless the bill of exceptions shows that the excepting party was necessarily injured by such exclusion.</p>

<p>The Sts. of 1872, c. 53, § 12, and c. 180, § 3, relating to railroads thereafter “ constructed,” crossing at grade, do not apply to a railroad corporation which prior to the passage of these statutes has located the line of its road, exercised its right of taking land for the use of its road, incurred liability for land damages and expense in laying the road bed, in rock excavation, in the construction of abutments for a bridge, and in the building of a long bridge at grade in the immediate vicinity of the point where it intended to cross another railroad at grade, although the railroad and the crossing at grade were not completed.</p>

Tort for deceit against Thomas H. Pratt and W. A. Weaver. The declaration alleged in substance that on or about December 27, 1872, at Boston, the defendant Pratt being engaged in business styled by himself the “ Commercial and Business Exchange,” and having offered to sell out one half of the stock, fixtures and good will of his said business to the plaintiff, the defendants did with intent to deceive and defraud the plaintiff, falsely and fraud ulently represent to him that…

<p>Contract on a promissory note, signed by the defendant, payable to Parker L. Riggs, and indorsed, after maturity, to the plaintiff. At the trial in the Superior Court, before Devens, J., the jury returned a verdict for the plaintiff, and the following bill of exceptions was allowed:</p> <p>“ It was in evidence that the defendant, the payee, Riggs, and Francis Burr, were partners in business, under the name of Hawley, Burr & Riggs; that subsequently Riggs withdrew from the partnership ; that upon such withdrawal there were certain sums due Riggs for money advanced in the business by him, which the plaintiff contended amounted to $1600, and that this note was among others given in settlement of the defendant’s share of this indebtedness. The defendant denied that the sum lue amounted to $1600, and testified that the true sum would appear from the books, and that these notes were subsequently obtainéd from him by fraud, and were without consideration. The plaintiff introduced said Burr as a witness in his behalf, who tes* tiffed that the sum found due at the settlement was $1600j that said sum was made up from the books of the firm, which were referred to at the settlement, but he could not recollect the items, or how it was made up ; and upon his examination in behalf of the defendant, he testified that said books of account were in his possession at the present time; the defendant’s counsel requested Mm, before the afternoon adjournment, to produce those books the next day, before the close of the trial, but the said books were not produced by any one, and the defendant’s counsel argued to the jury upon the absence of those books.</p> <p>“ At the conclusion of the charge, upon the plaintiff’s request, the court ruled ‘ that inasmuch as the books are not in the custody of the plaintiff, no inference is to be drawn from the non-production of the books, it being in the power of either party to summon the witness with the books.’ The defendant’s counsel then stated that he notified the witness while upon the stand to produce them. In reply to which the plaintiff stated that he contended that notice pending the trial was not a sufficient notice. The defendant’s counsel excepted to the ruling. The plaintiff then said, ‘ I will waive the instruction.’ And the court said, ' If the party declines to receive it, I will leave that matter as it stands before the jury.’ ” The defendant excepted to the above ruling.</p>

<p>Contract to recover damages lac an alleged breach of the following contract in writing signed by the defendant: “ Boston, December 17th, 1872. This is to certify that I, Jonas Parker, have sold to Franklin Mead a house on Church Street for the sum of fifty-five hundred dollars; and, in payment, said Mead assumes the mortgage of . twenty-nine hundred dollars, and pays cash one hundred dollars; balance, bill of sale of a steam engine and crushing machine, and trucks and railway, and all the implements in the building; and also the building in which the said machinery and tools, now with the same; and papers necessary to convey above to be made and passed on or before 25th December, 1872.”</p> <p>The declaration alleged that the house referred to was on Church Street, Somerville.</p> <p>At the trial in the Superior Court, before Putnam, J., the defendant contended that the writing declared on was not such an agreement in writing as was required by the statute of frauds, Gen. Sts. c. 105. The court ruled that the writing was a sufficient agreement within the meaning of the statute. The case went to the jury, and evidence was offered by the plaintiff to prove the identity of the property, and that the bargain was made between the parties on the premises.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions to the above ruling.</p>

<p>Tort against the Boston & Lowell Railroad Corporation, and the Nashua & Lowell Railroad Corporation. Writ dated November 15, 1871. The first count of the plaintiff’s declaration alleged that the defendants before and at the times hereinafter mentioned were common carriers of goods and chattels for hire from Boston to Lowell, from Boston to Nashua, New Hampshire, from Boston to East Wilton, New Hampshire, from Lowell to Lawrence, and from Lowell to Salem; that said corporations owned, controlled, managed or operated all of said routes for the transportation of passengers, express matter and freight; that by the charters of said corporations, and the laws of the Commonwealth, the defendants were bound to give all persons reasonable and equal terms, facilities and accommodations for the transportation of themselves, their agents and servants, and of their merchandise and other property upon and over the railroads owned and operated by said corporations, and for the use of their depots and other buildings and grounds; that on November 17, 1865, and for a long time previous, the plaintiff was engaged in business as an expressman or common carrier for hire, by passengei trains, of merchandise and other property, over all of said routes and that by his skill, energy and courtesy he had built up a very large and profitable business upon said routes ; that on said day, the defendant corporations, conspiring and illegally contriving how they might deprive the plaintiff of the gains and profits of his said business, and appropriate the same unto themselves, notified the plaintiff that proposals would be received for the rent of the express privileges over said routes during the year 1866; that said defendant corporations, in violation of their charters and the laws of said Commonwealth, pretended to receive bids for said express routes and privileges, and in return therefor to grant the exclusive right to said express routes and privileges to the highest bidder therefor; that on December 19, 1865, the said defendant corporations pretended to have rented or let exclusively said routes and privileges to George F. Penniman, Frederick Lovejoy and P. W. Jones; and on said day last mentioned, notified the plaintiff, that they had leased the said express privileges to said Penniman, Jones and Lovejoy for the term of one year from and after the last day of December then instant, and that they required the plaintiff to vacate seasonably, for the use of said Penniman, Lovejoy and Jones, the depot, offices and other premises of said defendant corporations then occupied by the plaintiff in his business over said routes; that by and in pursuance of said notification, the said defendant corporations took away from the plaintiff the said rights and privileges over said express routes, and the valuable good will and trade which the plaintiff had secured in his said business, although the plaintiff had offered to pay the said defendant corporations a just and reasonable sum of money to be allowed to continue in his said business over the said routes as formerly, and transferred the same to the said Penniman, Jones and Lovejoy, to the exclusion of the plaintiff.</p> <p>The declaration further alleged that the plaintiff was credibly informed and had reason to believe that said Penniman, Jones and Lovejoy were and are only the paid agents of said defendant corporations, and not the proprietors of said express privileges, and that they have continued as such, and such only, to the date of this writ, and that the profits accruing from said fraudulent arrangement are the property of the said defendant corporations; that from January 1, 1866, up to the date of the writ, the said defendant corporations had and have had ample convenience and accommodation for the carriage and conveyance, not only of all freight and express parcels of the said Penniman, Jones and Lovejoy, but also for the carriage and conveyance of the freight and express parcels of the plaintiff; and that the defendant corporations, contriving unjustly and unlawfully to deprive the plaintiff of the profits and gains of his business as express carrier so built up as aforesaid, had excluded the plaintiff from receiving and transporting upon and over the routes owned and operated by said defendant corporations any express matter, and also had excluded as aforesaid the parties having charge of the same in the employment of the plaintiff from receiving and transporting upon and over said routes any express matter upon any terms which were reasonable and just, unless such express matter was intrusted to said defendant corporations, or to persons designated by them to act as express carriers of the same ; that by said illegal acts of the said defendant corporations, the plaintiff had lost all the profits and gains accruing from his said business over the said routes of the defendant corporations, from the date of said exclusion to the date of the writ; and that his said business as express carrier had thereby been entirely taken away and lost unto him.</p> <p>There was a second count, the nature of which is stated in the opinion. Trial before Colt, J., who reported the case to the full court in substance as follows:</p> <p>The plaintiff seeks to recover damages of the defendants for breaking up his business as an expressman over the railroads of the defendants, who were jointly liable, if liable at all. The plaintiff in his opening offered to prove that for a long time prior to November 17, 1865, the defendants had been common carriers of persons and merchandise over the railroads operated by them and mentioned in the first count; and that from the year 1842 to January 1,1866, there were often, and for long periods, opposition expresses running over each of said railroads, in the same baggage tar and at the same time, during all which period the plaintiff had run an express; that contracts were entered into by the defendants and these expresses upon said roads, for the conveyance of express matter over said roads, designating the- space in the cars of the passenger trains to be occupied by such express matter; that this express matter during its transit was in the actual custody of the expressman with whom such contract was made, or his agent that at the time of the alleged tort the good will of the plaintiff’s business was valuable, and that he was more or less damaged in his business and property by the alleged tort; that September 1, 1857, the plaintiff and E. S. Rand, under the style of Sargent & Co., and H. T. Morrill and Robert Howison, under the style of Morrill & Co., made a contract with the defendants for doing express business over the routes of the defendants, which was to continue till April 1, 1860, unless previously terminated by mutual consent; that under this contract said firms carried on the express business over the roads of the defendants until April 1,1860, and, by oral extension of said written contract, continued said business till December 19,1865, when the defendants notified them that the express route on which they had been accustomed to run had been let to other parties, and that thereafter they would not be afforded the facilities before enjoyed by them; that on November 17, 1865, a printed notice of the defendants was delivered to the plaintiff, as stated in the declaration, and a like notice was delivered to each of the copartners and others, to the effect that proposals would be received by the defendants for the renting of the express privileges, but that there was no public notification by advertisement or otherwise; that on December 19,1865, the defendants decided to let the express routes under said proposals to Penniman, Lovejoy & Jones, respectively, and on the same day delivered to Morrill, Howison, Sargent and Rand, respectively, the first mentioned notices; and that on December 20, 1865, the defendants made contracts with Messrs. Jones, Lovejoy and Penniman, respectively, for doing said express business; that upon the expiration of these contracts they were renewed for a year; that at the same time with the making of these last-named contracts, an order was promulgated by the defendants that the plaintiff and his messengers and agents were to be excluded from carrying on an express business over said roads, which order was enforced from January 1, 1866, to the date of the writ; that during that time the plaintiff had repeatedly demanded to be allowed to carry on his express business over said roads as formerly; that the plaintiff was able and offered to pay the defendants a reasonable compensation therefor; and that at the times of said demands there was sufficient accommodation in the defendants’ baggage cars for the plaintiff as well as the other occupants of said cars; that at the expiration of the year 1867 the defendants took upon themselves the exclusive management cf all the express business upon their roads, collecting, transporting and delivering express parcels under the name of the Boston &" Lowell and Nashua Railroads Parcel Department; and were so transacting the business at the date of the writ. That Edward Tuck was allowed, prior to 1865, and continuously since, to the date of the writ, to pass over the road between Lowell and Boston, on an ordinary passenger season ticket, for which he paid the usual price, doing a general collection business in Boston for banks, insurance companies and others in Lowell desiring his services.</p> <p>If upon the foregoing facts the plaintiff would be entitled to recover, the case is to stand for trial; otherwise, judgment is to be rendered for the defendants.</p>

<p>Where a testator directs that the judge of prohate shall approve of the appointment of a trustee, to he made by persons designated by his will, the person occupying the office of judge of probate acts under the authority conferred upon him by the will, and not as a court or judicial officer, and notice to the parties in interest is not required.</p> <p>The provisions of the Gen. Sts. c. 100, § 9, do not operate to vest the title to trust estates in trustees not appointed under the provisions of that statute.</p> <p>If an appointment by deed under the provisions of a will, which devises an estate to trustees, with power to appoint others to supply vacancies as they may occur, and which declares “ that the new trustees so appointed shall have the same power, right and interest touching the trust premises, as if herein appointed trustees,” does not operate as a good appointment of the estate by which the title will vest in the trustees by force of the devise itself, it will remain in the survivors of the original trustees as a naked trust, and upon the execution of a power of sale conferred upon the trustees by the will, it will pass to the purchasers by force of the terms of the devise, and by their deed under the power.</p> <p>Where a demurrer was filed to a bill in equity for the specific performance of an agreement to purchase real estate, and the defect in the plaintiff’s title was after-wards cured, Held, that whether the bill could be maintained must be determined on all the equities of the case after answer filed.</p>

<p>When labor is performed, or famished, under an entire contract, in the erection or repair of several buildings, owned by the same person and situated on the same lot, a lien attaches upon the whole estate for the whole value of the labor performed, although the contract specifies separate amounts for the work to be done on each house.</p>

<p>The first case was a bill in equity against the surveyors of highways in the town of Medford. The bill alleged in substance that the plaintiff corporation was and long had been engaged in the manufacture of bricks on its own land; that it owned the land on both sides of Riverside Avenue, a highway in the town of Medford, and the fee in the soil of the avenue itself, subject only to the public easement; that for the purpose of reaching the railroad, by which the bricks of the corporation were carried to Boston, it was obliged to lay iron rails across said highway, on which its cars loaded with bricks could run ; that this track was laid with the consent of the town, was no obstruction or inconvenience to the use of the way, and was indispensable to the prosecution of the company’s business ; that the defendants threatened to take the rails up, not for the benefit of the public, or in the discharge of any public duty, but instigated by the private malice and for the selfish purposes of an individual, and in order to extort money from the corporation. The bill prayed for an injunction against the removal of the rails and for general relief.</p> <p>The defendants in their answer demurred to the bill, for the reason that the plaintiff had a plain, adequate and complete remedy at law, and averred that the railroad track was an inconvenience, and an unlawful obstruction to public travel; and that in pursuance of their right and duty, as surveyors of highways, they had ordered it to be removed.</p>

<p>In an action against a husband for board furnished his wife, evidence of acts of cruelty by the defendant towards her of such a nature as to justify her in leaving him, committed prior to the cause of a like action between the same parties, in which the jury returned a verdict for the defendant, and found specially that the wife “ lived separate from her husband without his consent, and without any justifiable cause," and judgment was rendered accordingly, is inadmissible, although the witness offered was not a competent witness at the trial of the former action, and is competent in this.</p> <p>In an action against a husband for board furnished his wife who lived apart from him, a letter of the wife to the husband was put in evidence, tending to show that the separation was not caused by her fault, and that she was willing to return. The defence then introduced testimony to the effect that the plaintiff told the witness that the wife sent the letter to evade the law, and that she did not intend to live with her husband. Held, that this testimony was competent only to affect the credibility of the plaintiff as a witness, and the good faith of her claim; and that evidence offered in rebuttal, that the wife did the acts in question with a different intention from that stated by the plaintiff, was rightly rejected.</p> <p>Where the validity of a divorce is involved in the issue tried before a jury, objections to the sufficiency of the notice to the libellee, and to the form of the proceedings, which do not appear to have been made at the trial, are not open to an excepting party at the argument in this court.</p> <p>Where a husband, whose wife is living apart from him without justifiable cause, removes from this Commonwealth to another state and acquires a domicil therq without the purpose of obtaining a divorce, and afterwards obtains a decree of divorce in that state, according to the laws thereof, and after notice to her by leav ing a summons at her abode in this Commonwealth and by publication in a newspaper in that state, the courts of that state have jurisdiction of the cause and of both the parties, and the decree of divorce is, by the Gen. Sts. c. 107, § 55, valid and effectual in this Commonwealth as to all persons; although the wife was never in that state, had no settlement there derived from her parents or ancestors, never appeared in the suit there, had no knowledge or information that he contemplated going to that state, or that he had left this Commonwealth, till after he had filed his libel for divorce, and was never provided by him with a home or support in that state, or requested or furnished with means by him to go to that state, and was without such means.</p>

<p>An action on a policy of life insurance under seal, whereby the insurer covenants with A., his heirs, executors, administrators and assigns, to pay the sum insured to B. on the death of A., cannot he maintained by B.</p>

<p>An executory agreement for the manufacture and sale of a specific chattel, to he manufactured in accordance with the terms of the agreement, is not a contract of sale, within the statute of frauds, Gen. Sts. c. 105, § 5.</p> <p>When the vendor has done everything he was to do under an executory agreement for the manufacture and sale of a specific chattel, which was to he manufactured in accordance with the terms of the agreement, and has given notice thereof to the purchaser, the general property in the chattel vests in the purchaser, and the chattel is at his risk.</p> <p>A. agreed to build a buggy for B., and to deliver it at a time curtain. B. gave directions as to the style and finish of the buggy, and it was built in compliance with his directions, and marked with Ms monogram. Before the buggy was finished B. called to see it, and in response to an inquiry of A., asking if he might sell tin buggy, replied that he would keep it; when the buggy was fimshed, A, notified B., and sent him a bill for it. B. retained the bill and promised “ to see ” A. “ about it.” The buggy was afterwards destroyed by the fire while in A.’s possession. Held, in a suit by A. for the price that the agreement was not a contract of sale within the Gen. Sts. c. 105, § 5; and that the property in the buggy had pawed to B., and he was liable.</p>

Contract for commissions on the sale of a house. At the trial in the Superior Court, before I)evens, J., the following facts appeared: The defendant employed the plaintiffs, who were real estate brokers, to sell a house in Melrose, belonging to him.

Tort for the killing of a horse on the Newburyport Railroad by the defendants’ locomotive engine. Trial in the Superior Court, before Putnam, J., who allowed a bill of exceptions in substance as follows: I', was proved or admitted at the trial that the railroad was built and owned by a corporation chartered by the laws of Massachusetts, called the Newburyport Railroad Company, and at the time of the accident the defendants were operating the railroad, under a lease.

<p>Bill in equity by the administrators with the will annexed of Sarah Louise Hubbell, to obtain the instructions of the court as to whether certain shares of stock should be inventoried as part of the estate of said Sarah Louise, and whether said shares were income or capital. The case was reported by Ames, J., for the determination of the full court, in substance as follows :</p> <p>Sarah Louise Hubbell died September 10, 1873. By her will, which was duly proved October 7,1873, she disposed of her entire estate, real and personal.</p> <p>Peter Hubbell, by his last will, which was proved February 14, 1871, gave to his wife, the said Sarah Louise, during her life, the use, income and improvement of all the rest and residue of the estate, real, personal and mixed, of which he should die seised or possessed or entitled to, remaining after payment of his debts and sundry legacies, with full power to sell and reinvest proceeds at her discretion; and on her decease, such rest and residue to his heirs at law of lineal descent; and appointed her executrix of his will. She was also required to pay an annuity of $3000 to the son of the testator, and legacies of $1000 each to nine nephews and nieces.</p> <p>He died January 9,1871, and was at the time of his death the owner of 1355 shares of the capital stock of the Bay State Brick Company, a corporation organized under the general laws of Massachusetts, the capital stock of which was, down to April 14,1873, $500,000, divided into 5000 shares of $100 each. The certificates for said 1355 shares stood in the name of Peter Hubbell, until the transaction of May 23, hereinafter mentioned.</p> <p>On April 14, said corporation at a legal meeting of its stock' holders passed the following vote : “ That it is expedient to increase the capital stock of the company to the amount of two hundred and fifty thousand dollars, so that the capital stock shall be seven hundred and fifty thousand dollars, instead of five hundred thousand dollars as now constituted, divided into shares of one hundred dollars each; and that each stockholder of record of this date be entitled to one share in the new stock so created for every two shares held in the old stock; that said capital be increased accordingly, and that the new stock be paid for and taken on or before the 15th day of May, A. D. 1873; and that the directors be authorized and directed to take the requisite steps to this end, and do whatever is required by law for this purpose; and that new certificates be issued according to law.”</p> <p>On April 14, the directors of said corporation passed the following votes : “ That an extra and special dividend of fifty dollars a share be paid on or before May 15, 1873, to holders of the old stock as it stood April 14, 1873, the dividend to be applied by the stockholders in payment for the new stock created.” “ That in issuing stock under the recent vote of the stockholders the treasurer be authorized to recognize assignments of fractional parts of new shares among the stockholders; but he is not to issue new stock to other than the old stockholders without further action of the directors.”</p> <p>On the same day, the treasurer of said corporation issued to each stockholder therein the following notice: “By a vote of the stockholders the company has increased its capital stock to the extent of $250,000 more. Holders of shares of record April 14, 1873, are entitled to one share of the new stock for every two of the old, with a right to transfer fractional shares as between each other. An extra dividend has been ordered of fifty per cent, on the old stock, payable May 15,1873, which is to be taken in payment of the new stock. Please call, take the stock and dividend, and pay for the same. Please bring your old certificate.”</p> <p>The treasurer of the corporation made out checks upon the Blackstone National Bank for the respective amounts of the dividends so ordered by the directors, and intrusted them to the clerk of the corporation, from whom each stockholder received the check for the amount of his dividend, and gave therefor a receipt upon the dividend book of the corporation in the form hereinafter set forth; and on receiving the check, he was told by the clerk to take it to the president of the corporation; and he accordingly took the check to the president in the adjoining room, and exchanged it for a certificate of the shares apportioned to the stock held by him, and gave a receipt for the shares. This was the course of proceeding adopted by the officers of the corporation, and this course was pursued by every stockholder, except perhaps in one or two cases, when the clerk was absent, the president transacted the business ; and all the new stock was issued in this manner. After this use was made of the checks tney were ail destroyed. None of them were ever presented at the bank. In the case of fractional shares, parties concerned settled among themselves by payments in cash. The moneys of the corporation were from day to day deposited in the Blackstone National Bank, to the credit of Job A. Turner, treasurer, and drawn out ar.d used in the transaction of the business of the corporation.</p> <p>The checks were received by the respective stockholders on different days from May 14, to July 7, 1873, Ox which days there were on deposit in said Blackstone National Bank certain amounts to the credit of the treasurer; but these amounts were not specially provided or expected by the corporation to be drawn upon for the payment of said checks, nor were they sufficient therefor; but they were used by the corporation in the ordinary course of its business in the same manner as if no such checks had been given. Moneys were deposited by the corporation in said bank, and drawn out and expended from day to day in its business without regard to said checks. It was taken for granted that each stockholder would take his proportion of the new stock, and would use his dividend check to pay for it. All of the dividend checks were used in that manner; and the corporation was not prepared, and its officers did not expect, to pay them in any other manner. The bank account was not disturbed by any of these transactions, except so far as fractional shares were concerned, which were bought and sold. The corporation had no other bank account.</p> <p>Warren Sanger was employed by Sarah Louise Hubbell, from the time of her appointment as executrix of the will of Peter Hubbell, to act for her as executrix, and in the management of her personal affairs. She left for Europe on November 9, 1872, and returned to the United States in August, 1873. Just before leaving, she gave to Sanger a power of attorney. Sanger received, on or about April 14, 1873, the notice to said executrix of that date, issued by the treasurer to the stockholders as before stated. He was present at the meeting of stockholders of April 14th, and knew of their vote. He did not see the vote of the directors, but gathered its purport only from the notice. On May 23, 1873, he received from the clerk of the corporation a check signed by the treasurer for $67,700 on the Blackstone National Bank, and signed a receipt therefor in the name of Sarah Louise Hubbell, executrix, by him as her attorney, in the form following : “We, the subscribers, acknowledge to have received of the treasurer of the Bay State Brick Company a dividend of the sums severally set against our names, being extra and special dividend of $50 per share, payable May 15,1873. May 23. S. Louise Hubbell, Ex. Warren Sanger, Attorney.”</p> <p>On receiving this check, Sanger was told by the clerk to take it to the president of the corporation in the other room, and receive the certificate of the stock from him. He accordingly carried the check immediately to the president, and delivered it to him, and received certificates of 677 shares, for which he gave receipts. These certificates imported that the estate of Peter Hub-bell was entitled to the shares.</p> <p>Sanger was asked by the counsel for the heir of Peter Hubbell, “ Did you understand that you could use the check for any other purpose than to pay for the stock ? ” This question was objected to; but the presiding judge ruled that it might be put; he thereupon answered that he understood that he could use the check only for that purpose; and to this ruling the counsel for the legatees of Mrs. Hubbell took exception.</p> <p>Mrs. Hubbell arrived at New York, on her return from Europe, in August, 1873, very ill, not able to reach her home, and she died at a hotel in New York. Sanger saw her about three weeks before her death, and repeated to her orally what had been done, and that he had acted under the advice of her counsel in taking the new stock. Her mind was perfectly clear, but she did not express either assent or dissent. No papers were exhibited to her, nor did she know the form in which the certificates were taken. She was told that her counsel said it was a stock dividend.</p> <p>On April 14, 1873, the surplus earnings and accumulations of the corporation were invested as shown by the statement of all its assets and liabilities then existing, contained in the report of the treasurer, amounting to $259,450.62.</p> <p>No property was sold or converted into money to raise funds for the payment of said dividend or said checks, nor was any money ever specially provided or designed by the corporation for the payment thereof; nor did the corporation, in fact, have cash on hand at any time sufficient for the payment thereof, or of any considerable part thereof; nor were any moneys applied or used for the payment of any of said checks or dividends.</p> <p>Yearly reports were made to the stockholders by the treasurer, showing the entire property of the corporation taken at cost or estimated as aforesaid, and all its liabilities made up in like man ner, and showing a balance called “ surplus,” as follows :</p> <p>1870, April 1, surplus .... $108,211.50</p> <p>1871, April 1, “ .... 122,123.02</p> <p>1872, April 1, “ 182,886.91</p> <p>1873, April 1, “ . . . 259,450.62</p> <p>The- “ brick-yards, including land, buildings, machinery and the like, at Cambridge and Medford, owned by the corporation, were taken in some of these reports at their cost, $535,317.53 ; but the president of the corporation testified that in his opinion it would take somewhere between $750,000 and $1,000,000 to replace as much property as the corporation owned in Cambridge and Med-ford, and that the land on Columbus Avenue and Stanhope Street in Boston, taken at its cost, $56,949.60, was worth $150,000 or possibly $200,000.</p> <p>Cash dividends were declared by the corporation semi-annually of from four to five dollars per share from 1871 to 1873.</p> <p>On January 7, 1868, the directors passed the following vote : “ Voted, that a stock dividend be declared of 25 per cent, on the capital stock of the company, certificates of the same to be issued by the treasurer on or before April 1,1868.” And the stockholders at their meeting February 5,1868, voted, “ That the capital stock be increased so that the same shall be in amount $500,000, divided into shares of the par value of $100 each; that the new shares be issued to the stockholders of January 1, 1868, in the rates of one new share for every four old shares ; and that the extra dividend declared at the directors’ meeting held January 7, 1868, called stock dividend, be received, and applied in payment for the new shares to be issued, the holders of stock having the rights to sell and transfer their claims for the new stock for fractional parts of shares.”</p> <p>The new stock was issued in pursuance of these votes. As to the market value of the shares, it appeared that there wore never many transactions in it in the market. The stock was confined to a limited number of owners at first, and was for the most part kept by them among themselves. Before April 14, 1873, there had been sales at from par to ten per cent, premium, and after that date there had been a few sales at par, and one at 95 per cent. When the new stock was created, the directors expected to be able to pay half-yearly dividends at the same rate as before.</p> <p>John H. Hubhell, one of the respondents, contends that said shares are capital and belong to the estate of Peter Hubbell, and that he is under the will of Peter Hubbell entitled to the same ; and the other respondents, who were the residuary legatees and devisees under the will of Sarah Louise Hubbell, contend that the dividend of 50 per cent, belonged to said Sarah Louise; that it was the duty of the directors to sell the said 677 shares, as they remained untaken on May 16, and that' the proceeds, to the extent of their par value, would belong to the corporation, and any premium to the capital of the trust fund; that if the issue of the new certificates cannot now be set aside, the new shares should be treated as taken and paid for at par by the said Sarah Louise out of her own property, and that said shares should be sold now under the order of this court, and their proceeds, to the extent of their par value, should go to the estate of said Sarah Louise, and any premium to the heir of Peter Hubbell, her estate making good any loss of premium incurred by lapse of time since May, 1873 ; or that such order be taken as shall substantially secure to the estate of said Sarah Louise the value of the cash dividend, and to the heir of Peter Hubbell the value of the right to take the new shares under the vote of the stockholders.</p> <p>The case is reserved for the consideration of the full court; such disposition thereof to be made, or such order to be entered therein as shall be proper; and the court may make such inference from the facts stated as a jury would be justified in doing.</p>

Bill in equity by George H. Gifford, trustee under the will of Pardon Gifford, against the residuary legatees under said will, to obtain the direction of the court as to the disposition to be made of a sum of money received from the New Bedford and Taunton Railroad Company, in lieu of certain shares of the stock of said corporation, in which part of the trust fund had been invested.

<p>Indictment for cheating by false pretences. Trial in the Superior Court before Aldrich, J., who allowed a bill of exceptions in- substance as follows :</p> <p>The indictment contained two counts. On the first, which alleged an intent to cheat and defraud one Frank Shaw, the jury found that the defendant was not guilty. The second count, on which the defendant was found guilty, alleged that the defendant at Boston, on January 4, 1873, “ being a person of an evil disposition and devising and intending by unlawful ways and means to obtain and get into his hands and possession the goods, merchandise. chattels and effects of the honest and good citizens oE this Commonwealth, and with intent to cheat and defraud one John Ferris, and with the view and intent to effect the loan hereinafter mentioned, did then and there unlawfully, knowingly and designedly falsely pretend and represent to said John Ferris, that a certain paper writing and certificate which he said Coe then and there had and produced to said Ferris, and which was of tenor following, to wit:</p> <p>“ No. 59. Eastern Railroad Company. 100 shares.</p> <p>“ Be it known that John Ferris of Boston is a proprietor of one hundred shares in the capital stock of the Eastern Railroad Company, subject to all assessments thereon, and to the provisions of the charter and the by-laws of the corporation, the same being transferable by an assignment thereof in the books of the corporation, or by a conveyance in writing recorded in said books; and when a transfer shall be made or recorded in the books of the corporation and this certificate surrendered, a new certificate or certificates will be issued.</p> <p>“ Dated at Boston this third day of January, A. D. 1873.</p> <p>“ Thornton K. Lothrop, President.</p> <p>*- ea “ John B. Parker, Treasurer.”</p> <p>was then and there a good, valid and genuine certificate of ownership of stock in said company, lawfully and duly issued and signed by said Lothrop and Parker, and was then and there of the value of ten thousand dollars. And the said Ferris then and there believing the said false pretences and representations, so made as aforesaid by the said Coe; and being deceived thereby was induced, by reason of the false pretences and representations so made as aforesaid, to loan and deliver, and did then and there loan and deliver to the said Coe, upon the security and pledge of the said certificate, then and there by said Coe delivered to said Ferris as such security for said loan, the sum of seven thousand dollars, one check and order for the payment of money of the value of seven thousand dollars, one piece of paper of the value of seven thousand dollars, of the proper moneys, goods, mer chandise, chattels and effects of said Ferris. And the said Coe did then and there receive and obtain the said moneys, goods, merchandise, chattels and effects of the said Ferris as such loan, by means of the false pretences and representations aforesaid, and with intent to cheat and defraud the said Ferris of the same moneys, goods and merchandise, chattels and effects. Whereas in truth and in fact, said writing and certificate was not then and there a good, valid and genuine writing and certificate of ownership of stock in said company, duly and lawfully issued and signed by said Lothrop and Parker, but was then and there a false, forged and counterfeit writing and certificate, am was not then and there of the value of ten thousand dollars, but was then and there of no value, all of which he said Coe then and there well knew. And so the jurors aforesaid upon their oaths aforesaid do say that the said Coe, by means of the false pretences aforesaid, on the said fourth day of January in the year of our Lord eighteen hundred and seventy-three, at Boston aforesaid, unlawfully, knowingly and designedly did receive and obtain from said Ferris the said moneys, goods, merchandise, chattels and effects, of the proper moneys, goods, merchandise, chattels and effects of the said Ferris, with intent to defraud him of the same, against the peace of said Commonwealth and contrary to the form of the statute in such case made and provided.”</p> <p>Before the jury were sworn the defendant filed a motion to quash the indictment, as follows :</p> <p>“ And, as to the second count, the defendant says there is therein no offence or crime formally and distinctly set forth, in this:</p> <p>“ 1. That it does not appear thereof that the said Coe had or pretended, or claimed to have any, interest or property in said certificate set forth therein, or the property therein described, or could make any transfer thereof or give any title thereto, but the contrary thereof appears in said indictment.</p> <p>“ 2. Because, by said indictment, said certificate is described as the property of and certificate of said Ferris, and therefore said Ferris could not be deceived or defrauded by the delivery thereof to him.</p> <p>“ 3. Because said check or paper writing alleged to have been delivered by said Ferris to said Coe is not set forth as described.</p> <p>“4. Because the indictment does not set forth what is the tenor of the certificate alleged to have been delivered by the defendant.”</p> <p>The defendant, in addition to the above motion to quash, before the jury were sworn to try the issues arising upon said indictment, moved that said indictment be quashed, “ because it is not sufficient, and does not set out an offence or crime committed by him, in this:</p> <p>“ 1. That it does not appear by said indictment that the defendant had any right, title or interest in, or pretended or claimed to have any right, title or interest in, or any property whatever in the certificate of stock described in said indictment; nor that there was any way whereby the defendant could enable John Ferris, mentioned in said indictment, to obtain any property in or advantage from said certificate, other than he already at that time possessed; and thus he, said Ferris, could not be deceived thereby, nor have delivered anything of value upon the security thereof.</p> <p>“ 2. Because it appears by said indictment that said certificate was the property of said John Ferris, and that the said Ferris could not be defrauded by the delivery thereof to himself, nor by any representations regarding it.</p> <p>“ 3. Because it is not set forth in said indictment how, or in what manner, said Ferris could be deceived by the offer of said certificate, or any representations regarding the same.</p> <p>“ 4. Because said certificate by its terms, as appears in said indictment, was transferable only by conveyance in writing recorded in the books of the corporation by the said John Ferris, purporting to be the owner thereof, and the surrender of said certificate and the issue of a new certificate, or certificates; and thus it appears that the said Coe had no property in said certificate, and that the said Ferris could receive no benefit therefrom.</p> <p>“ 5. Because the check and piece of paper alleged to have been delivered to said Coe by said Ferris are neither of them set forth nor described.</p> <p>“ 6. Because in said indictment it is set forth that the said Coe obtained from said Ferris a loan only of the property therein mentioned, it not being alleged that the said Ferris was deprived of his property therein, and it is not alleged how he could be, or was, defrauded of his property therein.</p> <p>“ 7. Because the allegations of said indictment charge representations made relating to the means and ability of the defendant to repay, at some future day, a loan then obtained; and it is not alleged in said indictment that the representations made by the defendant were made in writing.</p> <p>“ 8. Also, because said indictment alleges that the described certificate was of a certain tenor, without setting forth what is its tenor.”</p> <p>The court overruled both motions, and the defendant excepted. At the trial, the attorney for the Commonwealth offered in evidence, as the certificate described in the second count, a certificate, similar to that set forth in this count, with blank transfers indorsed thereon. The defendant contended that said indorsements should have been set out in the indictment, and asked the court to rule that there, was a fatal variance between the allegation and the proof offered. The court declined so to rule, and the defendant excepted.</p> <p>It appeared in evidence that at the time of the delivery to Ferris by the defendant of the last named certificate, the defendant also delivered to said Ferris his, the defendant’s, promissory note for the amount of said loan, payable three months from its date. The defendant asked the court to rule that the giving of the note and the note itself should have been set out in the indictment ; and not being so set out, that there was in this respect a fatal variance between the allegations and proof. The court declined to make such ruling, and the defendant excepted.</p> <p>It was proved that the certificate of stock delivered to Ferris was, when originally issued, a valid certificate for one share of stock in the Eastern Railroad Company, and that it had been subsequently altered, without the authority of the company, so as to read “ one hundred shares ” instead of “ one share.” The defendant contended that the certificate, having been originally duly issued as a certificate for one share, still remained a good and valid certificate for one share, and was of value, notwithstanding the alterations subsequently made without the authority of the company; and asked the court to rule that in this respect there was a fatal variance between the allegations and proof. The court declined so to rule, and the defendant excepted.</p> <p>During the trial the attorney for the government, for the purpose of proving guilty knowledge on the part of the defendant, offered to show that he had at other times than those mentioned in the indictment uttered other forged certificates of stock, some of them being certificates of stock in a corporation other than the one named in second count of the indictment. The defendant objected to this evidence. But the court ruled, that for the purpose stated above, evidence was competent to show that the defendant had uttered other forged certificates of stock, similar to the one set forth in the second count, at or about the time he delivered the one named in this count to Ferris.</p> <p>Several certificates of stock, shown by the evidence to have been altered and forged, numbered 117, 274, 389, and 9,316, were then introduced by the government, together with evidence as to the times when, and the persons to whom, these forged certificates were uttered and delivered by the defendant. To the admission of these certificates and evidence the defendant excepted. At the time of the trial indictments were pending against the defendant for forging or uttering said certificates.</p> <p>It was proved that the certificate No. 59, set forth in the second count of the indictment, was delivered by the defendant to Ferris, January 4, 1873; that No. 5,558, set forth in the first count, was delivered to Shaw, April 23, 1873 ; that No. 117 was delivered to one Gary, in February or March, 1873 ; that No. 274 was delivered to the Third National Bank of Boston, January 31, 1873 j that No. 9,316 was delivered to one Deshon, about the same time; that No. 389 was delivered to Deshon, March 4, 1873. It was also shown that all these certificates were delivered by the defendant, to the several persons named, as collateral securities for loans made to him by said persons. It was further shown in evidence that certificate No. 5,558 was originally issued in the name of George Warner, for two shares, under date of April 16,1873, and that the words “ George Warner is” had been altered to “Warren & Co.,” and the word “two” altered to “one hundred,” and the figures in the date had been changed to “ 23 ” ; that certificate No. 59 was originally issued in the name of “ John Ferrer,” for one share, under date of August 7, 1872; that the word “ Ferrer ” had been altered to “ Ferris ” ; the word “ hundred” had been written after the word “one,” and the date changed to January 3, 1873. That all these changes in these certificates had been made after the certificates had been issued by the respective companies, and without their authority or permission or knowledge, and before they were uttered by the defendant. Certificate No. 117 was shown to have been issued in the name of W. Y. Coe, for one share, December 27, 1872, that the words “ one share ” had been changed to “ eighty shares,” and the name N. C. Cary substituted for that of W. Y. Coe. Certificate No. 274 was originally issued in the name of James A. Coe, for two shares, under date of January 31, 1873, that the “two shares” had been changed to “two hundred shares,” and “ Third National Bank” substituted for “ James A. Coe.” Certificate No. .389 was originally issued to James A. Coe, for “ one share,” under date of February 25, 1873, and subsequently the “ one share ” had been changed to “ fifty shares,” the name “ James Deshon ” substituted for that of “ James A. Coe,” and the date changed to March 4, 1873. It was shown that all these alterations in the several certificates were made after the certificates had been issued by the several companies, and without their knowledge or authority, and before they were uttered by the defendant.</p> <p>John Ferris was the only witness called to prove the representations and pretences made to him by the defendant at the time Ferris made the loan to him. He testified in substance as follows : I live in Boston; know the defendant; lent him money about January 4, 1873, and took a note for it. This is the note. I took it from the defendant. He gave me collateral. This certificate, No. 59, is I think the certificate he gave me. I didn’t look at the number. I received it at the time I took the note. I gave him a check. I do not know where it is now. I have looked for it and cannot find it. It was for seven thousand dollars. At that time I kept an account at the Eliot Bank, and one at the City Bank; and the bank on which I was then in the habit of drawing was, I think, the Eliot Bank. I put the certificate away among my papers in my safe. I did not alter the certificate. It appears now to be in the same condition it was in when I received it. On cross-examination the witness testified that he had been in the habit for some time of lending considerable sums of money to the defendant; that on the occasion when the note above mentioned was given he went to the defendant and asked him to take some money of him. The cross-examination of this witness then proceeded as follows :</p> <p>Ques. Did you make any inquiry into the security ? Ans. I did not.</p> <p>Ques. Did you not rather trust him, knowing him, than any security ? Ans. I had every confidence in him.</p> <p>Ques. And you went to him, and asked him if he would take some money from you, and he said he would ? Ans. I think I gave him the check in his own office.</p> <p>Ques. And then did he give you the note at the time you gave him the check ? Ans. Yes, sir.</p> <p>Ques. Was there anything said by you or by him as to the security, except that he handed you out a paper after you had made the bargain ? Ans. Nothing, sir.</p> <p>Ques. Then the transaction, if I understand it, is substantially this : You had some money to put at interest; you went to Coe and asked him to borrow the money; he gave you a note and this security, and you took them and put them away ? Ans. Yes, sir.</p> <p>Ques. Now I want to put you the question: Did you believe then, or do you believe now, that Mr. Coe got this money from you with the intent to defraud you ? Ans. I do not.</p> <p>The defendant’s note to Ferris for the $7000 loan was dated January 3, 1873, payable three months from date. The defendant offered evidence to show that he paid all his liabilities as they fell due down to the date of his arrest, May 14,1873 ; that at all times after the giving of said note to Ferris down to the time of his arrest, and always before, he had met his engagements with promptness ; that he had the means to pay all his debts as they became due in the ordinary course of business ; that he paid one of $80,000 on May 13, the day before his arrest, and that he had then $40,000 left on deposit, and that at the time of his arrest he had a large amount of property, and was engaged in a prosperous business. This evidence was objected to by the attorney for the government, and ruled out by the court, to which ruling the defendant excepted. The defendant did not in any part of his offer of evidence offer to prove, that at the time he obtained the loan from Ferris he was solvent, and had property in his own right, sufficient to pay all his debts.</p> <p>The loan from Ferris to the defendant, as appears by the testimony, was made by the delivery of the lender’s check to the defendant for the sum of $7,000, being the same sum for which the defendant at the same time gave his note to Ferris. The defendant asked the court to rule that this was not evidence of the delivery of anything of value to the defendant. The court declined so to rule, but submitted it as evidence to the jury.</p> <p>The defendant objected to the admission in evidence of the certificate described in the first count of the indictment, as issued to Warren & Co.; but it was admitted and the defendant ex* oepted.</p> <p>The government proposed to use the promissory note delivered by the defendant to Ferris as furnishing a standard of comparison to show that the alterations in the two certificates set forth in the indictment were in the handwriting of the defendant, as bearing upon the question of his guilty knowledge of said alterations. The defendant objected to such use of the note; but the court ruled that the note having been delivered by the defendant as his own, its genuineness was sufficiently proved to authorize its use as such standard of comparison, the defendant having neither offered, nor proposed to offer, any evidence in denial of the claim of the government that the writing in the note was the handwriting of the defendant.</p> <p>At the close of the evidence, the counsel for the defendant requested the court to direct a verdict of acquittal on the second count, contending that the evidence was not sufficient, in any view of it, to authorize the jury to find the defendant guilty. The court declined to comply with this request, but submitted the case to the jury upon the evidence with the following instructions, (first reading to them Gen. Sts. c. 161, § 54, upon which the indictment is founded.) Full instructions, not now objected to, were given in relation to the first count, and then the attention of the jury was called to the second count, and they were instructed that, to authorize a conviction on this count, they must be satisfied beyond all reasonable doubt:</p> <p>“ First. That the defendant, as alleged in this count, did unlawfully, knowingly and designedly falsely pretend and represent to said Ferris that the certificate therein described was a good, valid and genuine certificate of stock, and was of value as set forth in the count.</p> <p>“ Second. That said certificate was not a good, valid and genuine certificate of stock, but was a false, forged and counterfeit one, and was of no value.</p> <p>“ Third. That said Coe knew at the time he delivered the said certificate to Ferris that said pretences were false, and that said certificate was not valid and genuine, and of value, but that it was a false, forged and counterfeit certificate, and was of no value.</p> <p>" Fourth. That said Ferris believed said false pretences, and was deceived thereby, and was induced by reason of the same tx loan and deliver, and did loan and deliver, Ms order or check to said Coe upon the security and pledge of said certificate as set forth in said second count.</p> <p>“Fifth. That the defendant designedly made said false pretences, and obtained said loan and property of said Ferris as set forth in said count, with intent to cheat and defraud said Ferris. That if the jury, upon all the evidence, had any reasonable doubt of the affirmative proof of any one or all of these propositions it would be their duty to acquit the defendant.”</p> <p>The jury were further instructed, that a false pretence within the meaning of the statute which had been read to them might be defined to be a representation of some fact or circumstance calculated to mislead wMch is not true; that it must relate to some past or existing facts; that to give the false pretence a criminal character, the party making it must know it to be false, and must make it with an intent to cheat and defraud; that such false pretence may be made orally, or it may be made in writing.</p> <p>That the false pretence set out in this second count being that the certificate therein described was, at the time of said delivery, a good, valid and genuine certificate of ownersMp of stock, &c., and of the value of seven thousand dollars, if the defendant, know ing that certificate to be a false and forged one, and of no value, delivered it to Ferris as a valid and genuine certificate and of value, for the purpose of obtaimng from Ferris a loan of monej, and Ferris received it believing it to be valid and genuine, and of value, that would constitute a false pretence, even though the defendant at the time of the delivery made no oral representations respecting the character of the certificate. The court stated to the jury that if upon all the evidence they should find the certificate was a false, forged and counterfeit one, it would be a matter of some consequence, as bearing upon the question of the guilty knowledge of the defendant, to determine whether the alleged alterations in the certificate were in the handwriting of the defendant or not, and upon tMs question as to whether the defendant made these alterations, the court said to the jury that die district attorney had called their attention to the signature of the note, and had asked them to- say whether the handwriting in these alterations, if they are such, did not correspond with the signature in the note, and that the use of the note was objected to by the defendant. One of the counsel for the defendant, interposing at this point of the charge, said, “ The objection I made was not that. The mere passing of the note, while it may be evidence of signature, would not be evidence that the balance of the note was in the handwriting of' the defendant, as part of the note was printed; the objection was to comparing the word ‘ January.’ ”</p> <p>The presiding judge resumed and proceeded to say to the jury that in determining the question as to whether the defendant did or did not know that this was an altered and forged certificate, it was of importance for them to ascertain, if they could from the evidence, whether or not he made the alterations himself, and to this end comparison had been instituted between the handwriting in this note, and the altered parts of this certificate.</p> <p>“ The rule of law upon this subject is, that before any writing can be used as a standard of comparison, it must be shown, by clear and undoubted testimony, that the specimen offered as a standard is the genuine handwriting of the party sought to be charged. If he recognizes it himself as his handwriting, then it may be used. And I instruct you in this case that, for the purpose of comparison, the signature of this note may be used; and as the district attorney called your attention to the claimed similarity between the handwriting in the word ' January ’ in the date of the note and the altered parts of this certificate, that also may be used by you as a standard of comparison as well as the signature of- the note, for it is admitted that the defendant delivered this note to Ferris as his, the defendant’s, own promissory note.”</p> <p>The word “ January ” in the date of the note was written, and not printed. These instructions, respecting the use of the note as a standard of comparison, were excepted to by the defendant.</p> <p>In regard to the other forged certificates of stock offered by the government, and claimed upon the evidence to have been in the possession of the defendant, and passed by him to other parties as collateral securities for loans obtained by him, the court instructed the jury that these were not admitted for, nor could they be used as evidence to show that the defendant had committed other offences, or that he had obtained money by false pretences of other persons, in order to lead to the inference that he would be more likely to commit the offence charged against him in this indictment; but that the evidence was admitted solely upon the ground that it might tend to show that the defendant had guilty knowledge of the fraudulent character or forgery of the certificates named in the second count of the indictment ; and that before the jury would be authorized to make even this use of these certificates, they must be satisfied by the evidence in relation to them that they are false and forged certificates, and that the defendant passed them knowing them to be such.</p> <p>In further instructing the jury as to the only use they would be authorized to make of these other certificates, and the evidence relating to them, the presiding judge read to them the language of Chief Justice Bigelow, in delivering the opinion of the court in the case of Commonwealth v. Shepard, 1 Allen, 575, 581, upon the use to be made of this species of evidence, and the care and caution to be observed in its application; and that if, upon all the evidence, the jury find that the defendant knew this to be an altered and forged certificate when he delivered it to Ferris, they might next inquire with what intent he delivered the certificate to Ferris. For, before they could convict the defendant, they must further find, upon the evidence, that he delivered the certificate to Ferris with intent to cheat and defraud him by means of said false pretences, fraudulently to obtain the loan from said Ferris as set forth in the indictment. In this part of the charge, the jury were instructed that to obtain, by false pretences, the money or property of another upon a loan, is an offence against the statutes, as well as to obtain, by such pretences, the money or property of another with no intention or promise to repay it at any time; in other words, a false representation, designedly and knowingly made as to the security offered for a loan of money, is an offence within the statute punishing the obtaining of property by false pretences. But that the situations of the parties, and the proved facts existing at the time of the transaction, should all be considered by the jury, with all the other evidence in the case, in determining the question as to the fraudulent intent of the party to be charged. The presiding judge then proceeded as follows:</p> <p>“ The offence set forth in this indictment consists in obtaining, by false pretences, with intent to defraud, and not by contract, the property of another. And the criminality of the act is to be determined by the proved facts and situation of the parties at the time of the transaction. What the party defendant intended to do afterward cannot purge the act of its criminality, if it was a criminal act at the time of its commission.</p> <p>“ Suppose, in the present case, that Ferris had known at the time the certificate was delivered to him by the defendant, that it was a forged and worthless piece of paper, would he have loaned his money or delivered his check as he did ? If he would not, and was in fact induced to make the loan by the delivery of the certificate and his belief in its genuineness and value, and the jury further find, upon the evidence, that the certificate is false and forged, and that the defendant knew it to be so at the time of its delivery by him to Ferris, and he delivered it with the fraudulent intent to obtain a loan of money from Ferris thereby, and by that means did obtain the loan, that would constitute the offence set forth in the second count of the indictment. And the fact, if it was a fact, that the defendant then entertained the purpose of repaying the loan at some future time, would not divest the act of its criminality, or give to it the character of an innocent transaction.”</p> <p>This part of the instructions, relating to the obtaining of money or property upon a loan, by means of false pretences, was excepted to by the defendant.</p> <p>The jury were further instructed, if they should find that the certificate was an altered and forged one, that the defendant knew it to be such at the time he delivered it to Ferris’, and that he delivered it to him as a genuine one, and with intent to defraud Ferris; they must also find upon the evidence, before they would be authorized to convict the defendant, that Ferris was deceived by such false representation as to the character of the certificate, and was induced thereby to make the loan to the defendant, and did make it, as set forth in the indictment; and that the defendant did, by such false pretence, obtain the check and order of said Ferris, as charged in the indictment. Because, although the false pretence may have been made, and made with intent to defraud Ferris, and although the defendant obtained the property of Ferris, yet, if the false pretence was not the inducing cause, leading Ferris to make the loan and part with his property, the defendant cannot be convicted. But is not necessary to show that the false pretence was the sole inducing cause that operated upon the mind of Ferris to lead him to part with his property; the fact that Ferris had formerly loaned money to the defendant which he repaid, that he had confidence in the defendant, that the defendant gave his promissory note at the time of this loan for the amount of the loan, might have had more or less influence upon the mind of Ferris to induce him to make the loan; still, if he would not have made the loan but for the delivery of the certificate by the defendant, and his, Ferris’s, belief in its genuineness and validity, — if this had a decisive influence in the matter, and determined Ferris to make the loan, that will make out this part of the charge against the defendant, although, as before stated, there may have been other contributing causes operating to induce Ferris to make the loan and part with his property.</p> <p>In conclusion, the jury were instructed that before they would be authorized to convict the defendant, they must find upon the evidence, 1st, That the defendant intended to defraud Ferris. 2d. That Ferris was actually defrauded. 3d. That the defendant made or used a false pretence or pretences, as set forth in the indictment, for the purpose of prepetrating the fraud, 4th. That the fraud was actually accomplished by means of the false pretence made use of for that purpose; that is, that the false pretence was the cause which induced Ferris to part with his property, as charged in the second count, and that if the jury had any reasonable doubt as to the proof of any one of these propositions, it would be their duty to acquit the defendant.</p>

Bill rs equity, under the Gen. Sts. c. 113, § 2, cl. 11, by the members of the firm of Giddings & Torrey, creditors of the first named defendant, against Richard W. Sears, Eben Sears and Adelaide L. Sears, to set aside certain conveyances of the property of Richard to Eben, which was afterwards conveyed by Eben to Adelaide.

<p>Ad administrator who, by verbal agreements with the creditors of an estate, has induced them not to commence actions against the estate within the two years allowed by the Gen. Sts. c. 97, § 5, cannot be required to set up the defence of the statute of frauds in personal actions against himself upon his promises, for the benefit of the next of kin of the intestate.</p> <p>Payments made by an administrator after the expiration of two years from the date of his appointment, in pursuance of promises, made upon valid considerations, within said two years, should be allowed him, and may be charged against personal assets in his hands, at any time before the settlement of his final account.</p>

<p>Replevin of 70 bales of cotton. Writ dated December 9,1868. At the trial in the Superior Court, before Devens, J., the following facts appeared: J. N. Brooks, one of the firm of J. 1ST. Brooks fc Co., cotton brokers of Boston, who were employed by the plaintiffs to sell this cotton, on Friday, December 4, 1868, went to the office of Jenkins Brothers & Chipman, cotton dealers in Boston, and offered the cotton to them for sale; they made an offer for it, which was communicated by Brooks to the plaintiffs, and by them declined ; and the plaintiffs then informed Brooks that he might sell it at twenty-five cents per pound. Brooks then went to Jenkins Brothers & Chipman and offered to sell it to them at that price, and they accepted the offer, remarking that the price was the highest in the market, but that they had a place for the cotton. These transactions on the part of Jenkins Brothers & Chip-man were conducted by Henry W. Jenkins, a member of the firm, with whom Brooks was well acquainted. Nothing was said as to the time of payment. Brooks, upon returning to his office, directed his partner to enter the sale, and some questions arose between Brooks and his partner whether the name of the purchasing firm had not been changed. Brooks’s partner made out a sale note of the cotton on December 4, 1868, and sent it on the same day to the plaintiffs’ store in Boston, and they received it on the afternoon of that day, the sale note, when so sent, containing the name of Jenkins Brothers & Co. as purchasers. There was at that time in Boston a firm by the name of Jenkins Brothers & Co., who sometimes purchased cotton; but the plaintiffs did. not know that firm except by name, and did not know their place of business, nor who composed the firm, and had never had any dealings with them. There was evidence tending to show that Jenkins Brothers & Chipman, on the afternoon of the same day, sent their cotton sampler, Dennis Driscoll, to the plaintiffs’ store, on Broad Street, Boston, to sample the cotton; and that he went there and informed Montague, one of the plaintiffs, that he had been sent by Jenkins Brothers & Chipman to sample the cotton; that Montague replied that it was not usual to sample cotton before it was weighed, and told Driscoll where he could get at the cotton, and that Driscoll sampled it the same day, and took the samples to Jenkins Brothers & Chipman.</p> <p>Samuel L. Montague, one of the plaintiffs, called as a witness on his own behalf, testified on direct examination that his firm owned the cotton replevied; that on Friday, December 4, he found the sale note on his desk made out to Jenkins Brothers & Co.; that he gave orders that night to have the cotton, which was then in a loft, lowered down and weighed and left in the store; that it was to be weighed by persons employed by his firm ; that it was lowered down and weighed the next morning; that he left the store between nine and ten o’clock, and on his return, about one o’clock, the cotton had been delivered on an order signed by Jenkins Brothers & Chipman; that he then went to Brooks & Co., showed them the order, and told them that the sale note had been, written Jenkins Brothers & Co., and he supposed the cotton had been sold to them; that Brooks & Co. said they supposed the cotton had been so sold ; but on looking at the directory they found that it was Jenkins Brothers & Chipman; that the witness about Saturday afternoon altered the sale note by changing “ & Co.” to “ & Chipman.” That the practice is, after cotton is weighed, for the weigher to make a certificate and hand it to the seller; that in this case the certificate was attached to the bill and sent by mail to Jenkins Brothers & Chipman on Saturday or Monday. On Tuesday, December 8, the witness heard of the failure of Jenkins Brothers & Chipman, and on Wednesday morning found the cotton on board a vessel at Constitution Wharf.</p> <p>On cross-examination the bill of the cotton was produced, and was as follows: “ Boston, December 4, ’68. Messrs. Jenkins, Bros. & Chipman, To Haskins & Montague Dr. To 70 bales 30,402 lbs". — 7600.50.” The witness also testified that the transaction was so entered on the books of his firm.</p> <p>Horace Haskins, one of the plaintiffs, testified that on December 8, he went to the store of Jenkins Brothers & Chipman and demanded payment for the cotton, and was told by Jenkins that he could not pay for it, that his firm had stopped payment. On cross-examination this witness testified that the cotton replevied was bought by a person named Mead in Charleston, South Carolina, who shipped it to the plaintiffs and drew for the whole amount of the expenses; that the plaintiffs were to sell the cotton, and if there was any profit Mead was to have one half; that if there was a loss the plaintiffs would have to stand the loss, as Mead was not a man of pecuniary responsibility, unless there was a profit on another lot.</p> <p>It also appeared in evidence that the cotton was lowered down from the plaintiffs’ loft and weighed on the morning of December 5, and that on the same morning on which it was weighed, Jenkins Brothers & Chipman directed Johnson & Co., teamsters, to go and get the cotton and carry it to the defendants’ storehouse on Constitution Wharf, and Johnson & Co. sent by one of their teamsters an order of Jenkins Brothers & Chipman to the plaintiffs’ store for the cotton, and the order was delivered on the same morning at the plaintiffs’ store by the teamster, to one Hill, who was in the employment of the plaintiffs, and a part of whose business, generally, it was to deliver cotton from their store. Hill testified that he told the teamster bringing the order that he had no authority to deliver it, and no orders to deliver it; and that the teamster said it was all right, and that the teamsters proceeded to load it, and did load it on their trucks and carted it from the store. That he did not prevent its going because he supposed the plaintiff Montague was then at Jenkins Brothers & Chipman, and might have sent down for it. The evidence was conflicting on this point, the teamsters swearing that nothing of the kind was said, and that there was no refusal to deliver it; and there was evidence tending to show that Montague was at the store when the teamsters went there and delivered the order, and that the lowering down from the loft and weighing and loading were going on at the same time, and that the plaintiffs’ men assisted the teamsters; but there was a conflict of evidence on this point.</p> <p>There was also evidence tending to show, and there was no evidence to the contrary, that the sale note, bill and certificate of weights were received by Jenkins Brothers & Chipman, — a copy of the said sale note * is in the margin.</p> <p>There was also evidence tending to show, and there was no evidence to the contrary, that the cotton was carried by the teamsters to the storehouse of Warren & Co. on December 5; that nothing further was done by the plaintiffs until the afternoon of Tuesday, December 8,1868, when the plaintiffs having heard of the failure of Jenkins Brothers & Chipman on that day, the plaintiff Haskins, as testified to by him, applied to them to pay for the cotton, and Jenkins Brothers & Chipman informed him that they were unable to do so ; that they had sold the cotton and got their pay for it. On the next day the plaintiffs replevied the cotton.</p> <p>There was also evidence tending to show that the defendants, prior to October, 1868, had lent money to Jenkins Brothers & Chipman on cotton as security, and that in pursuance of an agreement to lend them $25,000 on cotton as security, on the basis of a bale to every $100, on October 20, 1868, lent them $5,000, receiving a bill of lading for 42 bales of cotton, and on October 24, 1868, lent them $10,000, receiving a bill of lading of 101 bales of cotton, and on October 27, 1868, lent them $10,000, receiving a bill of lading of 100 bales of cotton, making together a loan of $25,000, and the security being 248- bales of cotton; that to suit the convenience of Jenkins Brothers & Chipman, the defendants, in pursuance of an understanding made at the time of this loan, had from time to time, prior to said December 5, delivered up the cotton, or bills of lading held by them as security, upon receiving other cotton or the bills of lading therefor as security, in place of the cotton so delivered; and that on the morning of said December 5, Warren & Co. having 212 bales of cotton as security for this loan, Henry W. Jenkins, in behalf of his firm, applied to the defendants to give them, Jenkins Brothers & Chipman, a negotiable storage receipt for 94 of the bales of cotton which the defendants thus held as security, promising that he would send in as security 96 bales of cotton in substitution, and stating that he had agreed to sell the 94 bales. That the defendants on the same day directed their clerk, F. A. Downing, to make out and sign such storage receipt, and upon the receipt of the cotton in substitution, to deliver the storage receipt to Jenkins Brothers & Chipman; that this clerk accordingly drew up the storage receipt and signed it, and upon the receipt on said December 5, into the defendants’ warehouse of 86 bales of cotton from Jenkins Brothers & Chipman, in substitution (of which 86 the 70 replevied are a part) delivered this storage receipt on the same day to Jenkins Brothers & Chipman, dating it back to the time when the cotton represented by it came into said warehouse, so that storage thereon would be charged from the proper date. Jenkins Brothers & Chipman on the same December 5, sold the cotton mentioned in that storage receipt to Jacob Hall for $11,170.46, and indorsed and delivered the said storage receipt to him ; and Hall paid on the same day on account of it, to Jenkins Brothers & Chipman, $8500 ; and on December 7, 1868, $1500; and the balance afterwards to their assignees in bankruptcy. The defendants on December 7, 1868, delivered to said Hall 25 bales of the cotton represented by said receipt, and on December 9, 1868-, delivered to him the balance. Jenkins Brothers & Chipman failed on December 8,1868, and their failure became known on the afternoon of that day; and they never paid for the 70 bales.</p> <p>There was evidence tending to show that the value of the whole 86 bales of which the 70 were a part was about $9600, the value of the 70 bales replevied being $7525.</p> <p>The plaintiffs offered evidence tending to show that at the time of the purchase, Jenkins Brothers & Chipman were hopelessly bankrupt and knew it, and that they had already actually failed, or were using their credit and buying goods in preparation for a failure; that they bought the goods of plaintiffs in fraud, intending not to pay for them, and contended that it was a scheme of fraud and that the defendants participated in it.</p> <p>There was evidence tending to show that Jenkins Brothers & Chipman at the time of the purchase were and continued in good credit until the day of their failure, and there was also evidence tending to show, as the defendants contended, that they acted in good faith, and at the time when they received the 86 bales and delivered the storage receipt for the 94 bales, believed that Jenkins Brothers & Chipman were the owners of the 86 bales, and had no knowledge or information, or cause of belief to the contrary.</p> <p>The plaintiffs controverted this evidence; and introduced evidence in contradiction of the defendants’ witnesses, and as the plaintiffs contended, tending to prove that the defendants did not act in good faith, and were in fraudulent collusion with Jenkins Brothers & Chipman, and either actually cognizant of the fraud, or having sufficient knowledge of facts to put them upon reasonable inquiry which they did not make. There was evidence tending to show that Jenkins Brothers & Chipman, on December 14, 1868, gave to the defendants the authority set forth in the paper, a copy of which is in the margin,* and that none of the cotton held by the defendants was sold before the time of the replevin in this case, and that all the cotton held by them, except the 70 bales, had since been sold, and after applying the proceeds, there still remains due to the defendants on said loan $10,291.49.</p> <p>The plaintiffs offered to prove by the clerk of the court of bankruptcy, and the original petition and record of adjudication, that Jenkins Brothers & Chipman petitioned in bankruptcy on December 26, 1868, and were adjudged bankrupts January 2, 1869 ; the court admitted the evidence against the objection of the defendants. The plaintiffs also contended that Jenkins Brothers & Chipman’s pecuniary condition had not changed between the date of said purchase and failure, and the adjudication in bankruptcy, and evidence tending to show this was afterwards introduced by the plaintiffs.</p> <p>The plaintiffs introduced evidence, without objection, tending to show that by the usage and general understanding of the trade, a sale like that named in the sale note, or where no time was mentioned, was for cash, and the same as if “ terms cash ” were inserted in the sale note. The defendants’ testimony in reply tended to show that when a sale was made of cotton for cash, or a sale was made of cotton and nothing said, it meant that payment was to be made in ten days, and that it was called cash in ten days; that the ten days was a credit and not a mere indulgence.</p> <p>The plaintiffs contended, and offered evidence to show, that there was at the time in question a usage in the trade regulating the sale of cotton for cash in Boston ; and that by the usage of trade and the general understanding among merchants, in cash sales, the goods were delivered or put into the possession of the buyer without prepayment, or first exacting payment of the money, with the understanding that it was not to pass title or be a waiver of the condition to pay cash. The defendants objected to evidence of such usage. The court ruled that evidence to show such usage was competent, and admitted it, and the defendants excepted. The evidence as to the alleged usage was stated at length. The nature of it appears in the opinion of the court.</p> <p>The plaintiffs, among other evidence tending to show Jenkins Brothers & Chipman’s pecuniary condition, and that they knew their condition, offered evidence which was admitted, tending to eho'K that Jenkins Brothers & Chipman had overdrawn theii bank account at the time of the said purchase, and for a week or more prior to that time, that it had been overdrawn by checks, so that the balance would be against them at the end of each day, they making it good on the next day by deposits of other persons’ checks before one o’clock, the hour of returning checks to the clearing-house. This state of things had been going on just before the purchase, and continued each day subsequently. The overdraft on December 8, 1868, exceeding their account to the amount of $37,363, which they did not make good, and which was not paid at bank. To the admission of this evidence the defendants objected.</p> <p>The plaintiffs were also permitted, against the defendants’ objection and exception, to show by Jenkins Brothers & Chipman’s assignees in bankruptcy the amount of Jenkins Brothers & Chip-man’s liabilities when they failed.</p> <p>The following question was asked by the plaintiffs’ counsel of one of the assignees in bankruptcy, who was introduced as a witness by the plaintiffs: “ How much has been realized from the assets of Jenkins Brothers & Chipman that came into your hands as assignees?” The defendants objected; but the court admitted the question. The witness answered as follows : “ About $7000 ; I could not state exactly; the money has been collected and deposited in bank.”</p> <p>After the admission of evidence as to custom and usage, and as to the amount of Jenkins Brothers & Chipman’s liabilities, the defendants introduced evidence tending to show that Jenkins Brothers & Chipman, at the time of their failure, had a large nominal surplus over and above their debts ; also, that by the custom and usage in Boston on December 4 and 5, 1868, where sales of cotton were made and' no time of payment was specified, ten days’ credit was given from the date of sale, and that the cotton was delivered to the purchaser whenever requested by him, and that where payment was made within ten days a rebate of interest was allowed. There was also evidence tending to show that upon a sale, cotton was always weighed and samples taken from it before delivery, called redrawn samples, which were sent to the purchaser and the quality tested by a comparison of these redrawn samples with those by which the cotton was sold ; that no other or further examination was usual; that purchasers, until they sold again, relied upon these redrawn samples and weights and did not reweigh, and that cotton was frequently sold by the purchaser within the ten days before paying for it, changing hands sometimes three or four times in that period of time.</p> <p>The plaintiffs, on the question of fraud on the part of Jenkins Brothers & Chipman, in their purchase of the seventy bales, and their pecuniary condition, were permitted to show similar purchases by them of cotton of other persons, some within a few days before the failure, and one completed subsequent to the purchase of the seventy bales, to wit, on the Monday following, the negotiations for which sale commenced upon the Saturday previous to said Monday. To the admission of this evidence the defendants objected.</p> <p>The defendants offered to show that some of these other persons replevied by suits in this court the cotton so sold, and subsequently abandoned the suits, and offered the writs and docket entries in those cases in evidence; but the presiding judge excluded the same.</p> <p>There was evidence, the truth of which the plaintiffs controverted, tending to show that the defendants first heard of the failure of Jenkins Brothers & Chipman on the afternoon of December 8, 1868, and that Frank Shaw, a member of the defendant firm, on that afternoon took over to Jenkins Brothers & Chipman’s office a memorandum of the cotton the defendants held as security, to ascertain about its quality and value, so as to see if they were amply secured, and that in the course of conversation at that time, he first heard that the seventy bales had been purchased of the plaintiffs and not paid for, and that he told said Jenkins that he should ship the cotton to the Liverpool house of the defendants for sale, to which Jenkins made no objection, and that on the next morning the same was, with other cotton, shipped by the defendants in a vessel loading for Liverpool. It was on board of this vessel when replevied. There was evidence tending to show that it was put on board of this vessel very early, as compared with business hours, on the morning of December 9 but there was a conflict of evidence as to the time the warehouse was opened and the cotton shipped.</p> <p>The only evidence as to the plaintiffs’ ownership of the cotton, and Mead’s interest or ownership in it, is what is hereinbefore recited in the testimony of Montague and Haskins.</p> <p>The defendants, before arguing to the jury, requested the court to rule as follows :</p> <p>1. “ If the plaintiffs and William Mead were jointly interested in the profit and loss on the cotton in question in this case, and the cotton was purchased by them on joint account with said Mead, then the plaintiffs cannot recover, because said Mead is not joined as a party plaintiff in this case.” The presiding judge ruled that, upon the evidence of the plaintiffs, if believed, it was not necessary that said Mead should have been joined as a party plaintiff.</p> <p>2. “ If this cotton was purchased by Jenkins Brothers & Chip-man, to be paid for by them in ten days, and no false pretences or deceptive contrivances were used by them, then the plaintiffs cannot rescind the sale even as against Jenkins Brothers & Chip-man, merely because they were insolvent at the time when they made the purchase, and they knew they were insolvent,' and purchased the cotton without disclosing that fact to the sellers, and at the time of the purchase had no reasonable expectation of being able to pay for the cotton in the regular and ordinary course of their, Jenkins Brothers & Chipman’s business.”</p> <p>3. “ To set aside the sale even as between Jenkins Brothers & Chipman and the plaintiffs, the jury must be satisfied that Jenkins Brothers & Chipman bought the cotton, intending, at the time when they bought it, never to pay for it; that it is not enough that the plaintiffs satisfy the jury that Jenkins Brothers & Chipman bought the cotton not intending to pay for it, or that they had no reasonable expectation of being able to pay for it, and the burden is upon the plaintiffs to satisfy the jury on this point, and if the jury are not satisfied on this point, or are left in doubt on this point, the jury need not go further on this branch of the case.”</p> <p>4. “If the'jury are satisfied that the defendants received the cotton in question on December 5, 1868, in substitution for other cotton which they held as collateral security for the loan, then it is not enough that the jury are satisfied that Jenkins Brothers & Chipman bought the cotton, intending, at the time they bought it, not to pay for it, but the jury must go further before they can render a verdict on that ground for the plaintiffs, and must be satisfied by the plaintiffs, and the burden of proof is upon them to show that before or at the time when the defendants received the cotton, they knew, or were informed of, or participated in the fraud.”</p> <p>“ What the defendants subsequently heard or learned is immaterial ; and it is immaterial what their subsequent conduct was in putting the cotton on board of a vessel, if, at the time when they received the cotton, they had no knowledge or information of fraud on the part of Jenkins Brothers & Chipman in the purchase of the cotton. That the burden of proof is on the plaintiffs to satisfy the jury on both propositions. First, that Jenkins Brothers & Chipman bought the cotton, intending, at the time, not to pay for it; and secondly, that the defendants, when they received the cotton, knew, or were informed, of the fraud; and if the plaintiffs fail to satisfy the jury on either of these propositions, or the jury are left in doubt on either of these propositions, then the jury need not consider this branch of the case any further, and the defendants, so far as this branch of the case is concerned, are entitled to a verdict. And in that event, the jury will proceed to the consideration of the next ground upon which the plaintiffs rely, and that is, that the sale was a conditional sale.”</p> <p>5. “If the jury are satisfied that the sale of the cotton was without any time of payment being stipulated or agreed upon; or, if by the custom and usage it was to be paid for in ten days, and the plaintiffs delivered it to Jenkins Brothers & Chipman, without insisting upon the payment of the cash at the time of delivery, and thus put Jenkins Brothers & Chipman in possession of the cotton, so that they would appear, and did appear, to others to be the owners of the cotton, and they being thus in possession of it, delivered it to the defendants, in substitution for other cotton held by the defendants, as collateral security, and the defendants at the time of the delivery to them had no knowledge, or information, or cause to believe Jenkins Brothers & Chipman’s title to the cotton to be defective or invalid, then the plaintiffs cannot recover.”</p> <p>6. “ A sale for cash is or is not a conditional sale, depending upon circumstances. If it is a sale for cash to be paid in ten days from date of sale, and the property is delivered within the ten days to the purchaser without insisting upon the payment of the money at the time of delivery, the sale is not a conditional sale, and the title to the property passes to the purchaser, and it cannot afterwards be reclaimed by the seller.”</p> <p>7. “ If the cotton was sold and delivered by the plaintiffs to Jenkins Brothers & Chipman, and, by the usage of trade at that time, it was to be paid for in ten days from the date of sale, the plaintiffs cannot recover.”</p> <p>8. “ If the sale was made, and no time of payment was specified, and the cotton was delivered by the plaintiffs to Jenkins Brothers & Chipman, without insisting upon the payment of the cash at the time of delivery, and without mentioning any condition, then the title to the cotton passed to Jenkins Brothers & Chipman, and the plaintiffs cannot recover.”</p> <p>9. “ Where property is sold for cash on delivery, the seller is not bound to deliver unless the purchaser pays for it at the time of delivery; but if the seller does deliver it to the purchase! without insisting upon the condition, he thereby waives the condition and the title passes to the purchaser, and the seller cannot afterwards reclaim the property.”</p> <p>10. “ In order to prevent the title to property, sold for cash on delivery, passing to the purchaser by a delivery, the delivery, as well as the sale, must be conditional; that is, the delivery must be upon the condition that no title to the property shall pass to the purchaser until he pays for the property, and the delivery must be stated by the seller to the purchaser to be made upon such condition."</p> <p>11. “A custom or usage that the title to property sold to be paid for in ten days from the date of sale, and which has been delivered to the purchaser within the ten days, without any mention made of any condition, shall not pass to the purchaser until paid for, is not a good or valid custom.”</p> <p>12. “ A custom or usage that cotton sold and delivered, where no time of payment is mentioned or specified, is to be paid for in ten days from the date of sale, and that a delivery thereof without any condition being mentioned or specified, is a conditional delivery and does not pass the title, is not a good or valid custom in respect to the condition, but such sale and delivery pass the title to the purchaser.”</p> <p>13. “ The plaintiffs do not claim that any mention was made of any condition at the time of delivery, but they allege a custom among cotton dealers in December, 1868, in sales of cotton, where no time of payment is stipulated, to deliver the cotton at any time in ten days from the date of sale when requested by the purchaser, and to give the purchaser such ten days in which to pay for the cotton. This time they say is by the usage given for the purpose of examining it, without the title passing until it is paid for. Such custom is invalid, and the title to cotton so sold and delivered passes to the purchaser.”</p> <p>14. “ An unauthorized delivery may be ratified by the seller, and if the seller, after knowing of the delivery, sends to the purchaser a bill of the property in the usual form, and a certificate of the weights of the property, as in this case, and takes no steps to reclaim the property, until after the purchaser has failed, he thereby ratifies the delivery.”</p> <p>The presiding judge charged the jury, among other things not now material, as follows:</p> <p>“ The plaintiffs say in this case that this was a fraudulent sale, that Jenkins Brothers & Chipman, at the time they bought the property, bought it intending not to pay for it, and that thus purchasing it they are entitled to recover the property in the hands of the defendants, and they are so entitled to recover provided they prove this fact, unless the defendants shall show a good title clear and independent of the fraud. In other words, in the first instance on this part of the case the burden of proof is on the plaintiffs, but if they have sustained that burden of proof, and shown you that the goods were got from their possession by fraud, then it is for the defendants to show a title which is clear of fraud, and which, notwithstanding the fraud, will enable them to hold the goods. The plaintiffs say that it was a title obtained by fraud by Jenkins Brothers & Chipman, and the fraud which they allege against Jenkins Brothers & Chipman is, that it was purchased by them with the intention of not paying for the same. In the matter of intention, they rely, as parties ordinarily or often are obliged to in many cases, upon collateral circumstances for the purpose of showing what that intent was. It does not necessarily follow that because a party is insolvent, or that because a party is borrowing money at large asd usurious interest, his purchase is a fraudulent one ; but those circumstances are circumstances to be considered in determining what his intent was; and in the present case, taking all those circumstances together, the mode in which they were conducting their whole business, their transactions with others, the state of their finances, the mode in which they were making purchases and transfers, and the whole detail of their business which has been laid out before you, the plaintiffs contend that you must be satisfied that this was a fraudulent purchase by Jenkins Brothers & Chipman. If they have failed to satisfy you of that, of course they cannot recover ; but if they have satisfied you on that point upon a review of the whole evidence, —if you come to the conclusion that the plaintiffs have made out that this was a fraudulent purchase on the part of Jenkins Brothers & Chipman, then the plaintiffs are entitled to recover unless this can be met by the defendants. The defendants endeavor to meet it in this case by showing that they had a title which was clear of fraud, and that they were bond fide purchasers for a valuable consideration. The defendants must in order to maintain their title, show that the purchase was an honest one, and that it was made in good faith; and they must further show that it was made for a valuable consideration.</p> <p>“ If the defendants made a loan of $25,000 to Jenkins Brothers & Chipman, to be secured by the pledge of collateral security, and from time to time as it was found convenient, they permitted them to change one piece of security for another, one lot for another; and on the date in question they permitted Jenkins Brothers & Chipman to receive out of their hands the ninety-four bales of cotton, and the defendants received those eighty-six bales; and at the time had no further knowledge of the transfer; then, assuming that the transaction was an honest transfer, and that the only ground of claim against the defendants is upon the ground that the sale was a fraudulent sale, they would maintain their title; because, in that case, they would show a title, in good faith and for a valuable consideration, and at the time when they received into their hands the seventy bales, they parted with other property of equal value.</p> <p>“ That in regard to conditional sales, the law is, that where a sale is made upon condition, that condition must be complied with before the title passes, and that if property be delivered apon the condition that the property is not to pass to the person to whom it is delivered, except upon the performance by him of some particular act; then the property does not pass until that act is done; in other words, that the condition continues with and follows the article itself; And in this case the condition claimed by the plaintiffs is, that this was a sale made for cash, upon condition that cash should be paid to them at the time of delivery of the goods, and that even if you should find that the plaintiffs did deliver the goods (because as to the delivery there is a dispute), yet still that delivery was made under a usage of trade by which it was not a waiver of the condition. Ordinarily, if a party makes a sale upon a condition, and delivers the property without any agreement in reference to the continuance of the condition, that would be construed as a waiver of the condition, and it would be a presumption of law, that if he delivered the article without any agreement that the condition should continue, he intended to waive the condition. But in this case, the plaintiffs set up that there was a usage of trade existing in this city known to Jenkins Brothers & Chipman, as well as to themselves, under which this sale was what is called a cash sale, made upon the condition of the payment of cash, and it was not a waiver of the condition to deliver over the article to the purchaser; but that the condition continued with it, until a compliance by the purchasers with the condition. In the first place, it is necessary to consider, as a preliminary question, whether or not there was a delivery of the goods. The plaintiffs contend, in the first instance, that they never delivered those goods; and if a party gets possession of goods wrongfully, that is not delivery. If a party by a trespass, there having been a contract of sale between him and another party, he having no right to the possession of the goods, wrongfully takes possession of them, that is a trespass and not a real delivery. It is therefore necessary to consider in the first place whether or not there was a delivery of the goods in question. A delivery is essential to the completion of every sale. A sale is imperfect until there is a delivery, and that delivery may be made, of course, either actually by handing over the article, or it may be made constructively by handing over a bill of lading, or a storage receipt, or any of those thir'gs which are constructively its possession, which would give the party holding this evidence ci title the right to receive the goods. The plaintiffs in this case contend that a delivery was never made by them, but that by a wrongful act on the part of some of the servants of Jenkins Brothers & Chipman, they obtained possession of these goods. The circumstances under which they obtained possession of these goods are for you to consider. And you will determine on the- evidence whether or not there was an assent by Haskins & Montague, made either by themselves or through their servants intrusted with the goods, to the taking of them by Jenkins Brothers & Chipman; because if there was such assent, that was a delivery of the goods.</p> <p>“ Further, whether there was or was not any assent to the taking of the goods, when the circumstances came to be known to the plaintiff Montague that the goods were actually gone (even supposing that he had intended that they should not be delivered actually into the possession of Jenkins Brothers & Chipman), did he or did he not assent to that delivery ? because if he assented to that delivery or consented that the goods should remain in the possession of Jenkins Brothers & Chipman, that was a sufficient delivery, although the original act of the party who permitted them to go -away had been in violation of Montague’s orders, or in violation of his intention. In order to determine, then, whether Montague assented, you will consider the circumstances which have been testified to in regard to the time when Montague knew it, and the time which elapsed between that time and the time of the failure, which is the first time when Montague took active measures to get possession of the goods; and you will consider the act done by Montague, or under his direction, in the way of sending bills or weigher’s receipts. If, on this testimony, the plaintiffs have failed to satisfy you that there was no delivery (because, the goods being actually in possession of Jenkins Brothers & Chipman, it is for them to show you that they were there wrongfully); if they have shown you that they were there wrongfully, that the whole thing was a trespass, as they say, and that they never assented to it, then they are entitled to a verdict upon that statement of the case. If, however, these goods were delivered to Jenkins Brothers & Chipman by the plaintiffs, or having been delivered, that delivery was assented to, then you come to the consideration of the questions which will arise under the matter of conditional sale, to which this matter of delivery is es. eentially a preliminary question.</p> <p>“ It is agreed in this case that there was nothing said upon the subject of when these goods were to be paid for; that the written contract, so far as evidenced by the bill of sale, makes no mention of it, and there is no evidence that anything passed at the time; but the plaintiffs contend that by the custom and usage of the trade in Boston, it was a conditional sale; that it was a cash sale; and if it was a cash sale, it would be a conditional sale ; because a cash sale strictly and legally, (I am not using now any artificial meaning which may be given to the words “ cash sale ” by usage here,) a cash sale means, if you pay me so much money, you have such an amount of goods; the one is conditional upon the other.</p> <p>“ The plaintiffs contend that this was a conditional sale, and that by the terms of that condition they were entitled to have the cash upon the delivery of the goods. And they further contend (assuming now that there was a delivery by them), that by the usage of the trade as it existed in this city, that was not a waiver of the condition. By the presumption of law a delivery would be made, with the intention of passing the title, and there being no agreement as to condition, and there being no usage, it would pass the title so as to give the title to the person to whom the delivery was made. But the plaintiffs set up in this case a conditional sale; and they further set up a usage that it is not a waiver of that condition to deliver over the goods; but that by the usage of merchants in this city, the goods are first delivered over, in order to give the purchaser an opportunity to inspect the goods themselves more accurately, and of comparing the samples and weights; and then, as a matter of indulgence, it is customary to allow him some little time for payment; but that the payment is due at once; and that, although as matter of usage it is not called for immediately, as a general thing, yet that the seller has always the right to call for it at the moment of the delivery of the goods. On the other hand, the defendants in this case contend that there is no such usage, and that where nothing is said as to the time of payment, at the time of the sale, a credit of ten days is allowed; that that is the usage of the merchants of this city, and that a party cannot be called upon until the expiration of that ten days; or if called upon before the expiration of the ten days, he is entitled to a rebate of the interest, because the amount he pays is calculated upon the fact that he is tv have a time equal to ten days, and that when called upon within the ten days, he is not under obligation to pay until the expiration of that time. You are to consider whether or not this custom, as it is contended for by the plaintiffs, is made out here, because they are to make out this custom that the sale is for cash, and that it is not a waiver of that condition to deliver and transfer the actual custody of the property to the other party.</p> <p>“ Then if you find in this case that the plaintiffs have made out that this was the usage, to deliver the goods, that this was a sale for cash according to the usage of the trade, for cash strictly, and that although in point of fact indulgence was permitted, it was indulgence only and not credit, and that by the same usage cf the trade and as a part of the same usage, the seller could pass over and deliver the goods to the buyer, and yet not waive the condition of payment, then upon this part of the case the plaintiffs would be entitled to your verdict, and it would be unnecessary to go further; because if they proved a conditional sale, they would in that case have further proved that their goods were delivered over under such circumstances that the delivery could not be interpreted into a waiver of the condition, and therefore the goods would have been theirs at the time when Jenkins undertook to transfer them to the defendants, and the conditions being still annexed to them, Jenkins could not transfer them to the defendants any more than he could transfer any other piece of property from Haskins & Montague, and the plaintiffs would be entitled to recover.</p> <p>“ If you find that the plaintiffs are entitled to recover, either upon the ground of a conditional sale, or on the ground of a fraudulent sale, you will render a verdict for them for nominal damages ; otherwise the defendants are entitled to a verdict for a sum which would be equal to the interest upon the value of this property from the time it was taken from them to the present time.”</p> <p>The presiding judge, before charging the jury, requested the counsel, that if in charging the jury he did not cover in the charge the subject matter of the prayers, either by charging for or against the party, they would call his attention to it at the close of the charge. After finishing the charge, the presiding judge inquired of the counsel on both sides whether there was any matter omitted, and the counsel made no response to that inquiry, but the counsel for the defendants stated that he excepted to the refusal to give the instructions requested, and to such part of the charge as related to the subject matter of the requests.</p> <p>The jury found a verdict for the plaintiffs, and the defendants alleged exceptions.</p> <p>The case was argued in November, 1872, by J. D. Ball, for the defendants, and A. A. Ranney, for the plaintiffs ; and reargued in March, 1874, by B. F. Brooks § M. Storey, for the defendants, and A. A. Ranney, for the plaintiffs.</p>

Contract by a national bank organized under the national banking acts of the United States, and having its place of business in the city of New York, against the indorser of a bill of exchange drawn by Joseph M. Strong of New- York upon Matt Ellis of Boston, payable to the order of the defendant, and by him indorsed to the plaintiff, and accepted by Ellis.

<p>Contract against the acceptor of two bills of exchange. Trial in the Superior Court, before Bevens, J., who reported the case for the consideration of this court in substance as follows: The plaintiff, to maintain the issues on his part, proved that the Ocean National Bank, of the city of New York, a national banking association, formed pursuant to the laws of the United States, and located in the city of New York, having failed to redeem its circulation notes, when payment thereof was legally demanded at the office of said association, he was on December 12, 1871, duly appointed by the comptroller of the currency of the treasury department of the United States, receiver of said Ocean National Bank; that he accepted said office, took possession of the assets of the bank, and that the drafts in suit had come into his possession as such receiver as part of the assets of said bank ; that William B. Fiske & Company, a firm doing business in New York city, made the bills and drafts in suit, payable to their own order, and indorsed the same to said Ocean National Bank, presenting the same for discount at New York city, accepted by the defendant; that said bank discounted one of the drafts for $684.11, on September 16, 1871, and the other for $843.07, on November 11, 1871, and passed the proceeds to the credit of said W. B. Fiske & Co., less the discount; that said drafts were severally unpaid. The drafts were put in evidence, and the plaintiff rested his case.</p> <p>The defendant, to sustain the issues on his part, proved, under objection, the evidence being admitted to be considered if competent ; that on or about August 1, 1871, said firm of W. B. Fiske & Co. obtained a loan of five thousand dollars of said Ocean National Bank, through C. S. Stevenson, its president, and secured the same by a mortgage to the bank of real estate to the amount of five thousand dollars, agreeing to pay twelve per cent, per annum, the rate required by said bank for said loan; that the amount of said loan was passed to the credit of said W. B. Fiske & Co., who were entitled to draw the same at sight; that on applying to the bank for the money on said loan, the bank, through its president, requested Fiske & Co. not to draw out said loan at once, but to present drafts or bills to said bank on sixty and ninety days, or other short periods, as they might need the money, up to said five thousand dollars, so that the same would look more bankable, and that said bank would discount the same at the rate of twelve per cent, per annum, and keep on discounting drafts as fast as the same matured; that Fiske & Co., in order to oblige or accommodate the bank, through its president, in this respect, agreed to avail themselves of the loan in this way, but informed che president that such paper would have to be accommodation paper; that they knew several parties, amongst others the defendant in this action, who might be willing to accept for their accommodation, but it must be understood and agreed by the bank that the parties so accepting drafts or bills were not to be looked tc for payment, or to be held liable thereon in any way; but the bank must look to its mortgage security for the amounts received by said firm on said bills or drafts, so to be presented to said bank for discount, and that the acceptors must be informed of this arrangement to induce them to accept; that the president replied all right, the bank will discount such paper for you; that thereafter Fiske & Co. informed the defendant fully of the loan secured by mortgage, and of the understanding and agreement with said bank as above stated, and Fiske & Co. solicited the defendant to accept drafts to be drawn by said firm upon the defendant, informing him the bank had agreed not to look to him for payment in any way, and knew that his acceptances were to be wholly for accommodation ; that the defendant having no business relations with Fiske & Co., and being in no ways indebted to them, and having no effects of said firm in his possession or control, and solely for the accommodation of Fiske & Co., and to enable said firm to oblige the bank in the respect above stated, and to avail of said loan, and believing and relying on the fact that he was not to be called upon for payment as acceptor or otherwise, by said bank or any other person, did accept in all some four or five bills or drafts, at different times, including the two drafts in suit.</p> <p>The manner of acceptance was as follows : Drafts or bills with the amounts for which same were drawn and on which the name of W. B. Fiske & Co. did not exist, were by Fiske & Co. presented to the defendant, and the word “ accepted,” with the defendant’s name were written thereon, the same returned to Fiske & Co. and thereafter Fiske & Co. filled up said drafts, putting in dates, making them payable to their own order, signing, indorsing and delivering the same to said bank for discount, the president knowing the drafts had been accepted by the defendant for accommodation under said arrangement, and the bank never sending any drafts to the defendant for acceptance at any time, or having any correspondence with the defendant; that all the drafts accepted by the defendant except those in suit, had been taken up or paid by Fiske & Co. at maturity, and that the defendant had never been called upon to pay the same, or had paid the same in any way, the defendant regarding and believing his acceptance would be the last he should hear of the same; that the drafts or bills in suit were sent to him for collection after said bank had failed, or gone into the hands of the plaintiff as receiver, and that when ¿ailed upon for payment, he declined to pay the same on the ground that his acceptance was for the accommodation of Fiske & Co. ; that he had no funds of theirs, and that the Ocean Bank had agreed not to look to him for payment; that the whole amount obtained by Fiske & Co. on bills discounted by said bank, including these in suit, was about five thousand dollars, the amount of the original loan, and that the receiver of - the bank still holds the mortgage given by Fiske & Co. as part of the assets of said bank ; that the defendant had never received any consideration, payment, benefit or advantage, in any way for his acceptances, nor held any security indemnifying him for the same from any one.</p> <p>That all drafts on which his name appeared as acceptor, including those in suit, were presented by Fiske & Co., and were discounted by said bank in the city of New York. The defendant further proved that at the times of the discount of the bills or drafts in suit, the rate of twelve per cent, per annum was demanded by said bank and agreed to be paid by said Fiske & Co. on the discount of same by said bank; that seven per cent, was deducted at the time of their discount and thereafter and before the maturity of either, and on November 23, 1871, the bank sent to Fiske & Co. for the additional five per cent, which was paid by said firm, making twelve per cent, in the whole, paid on the loans or discounts on said bills or drafts.</p> <p>That under the laws of the State of New York, seven per cent, per annum is the legal rate of interest, and that all bonds, bills, notes, assurances, conveyances, all other contracts or securities whatsoever, except bottomry and respondentia bonds and contracts, and all deposits of goods or other things whatsoever, wherefore or whereby these shall be reserved or taken or agreed to be reserved or taken, any greater sum or greater value for the loan or forbearance of any money, goods or things in action, than is above prescribed (seven per cent.) shall be void; and the statute being an act to prevent usury, passed May 15, 1837, relating thereto, was read in evidence to the jury and may be referred to.</p> <p>The plaintiff not controverting the evidence on behalf of the defendant as to the circumstances under which the notes were indorsed and negotiated, and it appearing that no fact was in dispute between the parties, the presiding judge directed a pro forma verdict to be entered for the plaintiff for the amount of the drafts, and reported the case for the consideration of this court, such verdict to stand or be amended to a verdict for the defendant as this court should determine.</p>

Tort. The defendant demurred to the declaration; and before the demurrer came on for hearing the plaintiff died, and her administrator came in to prosecute the action; whereupon the defendant assigned as another ground of demurrer that the causes of action set forth in the declaration did not survive. Hearing before a single justice of this court, who sustained the demurrer and ordered judgment for the defendant. The plaintiff appealed to the full court.

<p>Where property is conveyed to a married woman, and by her, on the same day, mortgaged back to the grantor, the mortgage is void unless her husband joins in the conveyance or assents to it under the Gen. Sts. c. 108, § 3.</p> <p>A deed of assignment of a mortgage, without covenants of warranty, does not estop the assignor, or those claiming under him, to set up an after-acquired title.</p> <p>A recital in a conveyance, that the property is subject to a mortgage, and the excepting of the mortgage from the covenant of warranty therein, does not estop the grantee to dispute the validity of the mortgage as against the holder thereof.</p>

Trespass brought in the Police Court of Williamstown. It appeared by the pleadings that the title to real estate was brought in question, and the defendant objected that the court had no jurisdiction. Neither party requested the removal of the case to the Superior Court; but the presiding judge of the Police Court ordered the defendant to remove it and to recognize with a surety therefor.

<p>If goods are sold and delivered to A. and B. on the Lord’s day, the sale being induced by the false representations of A. on a previous day, and subsequently, not on the Lord’s day, the seller demands the price of A. and he promises to pay it, this amounts to a sale to him, and he is liable for the price.</p>

<p>In an action of tort in the nature of trespass quare clausum fregit, it should be alleged that the defendant “forcibly broke and entered” the plaintiff’s close; but the omission of the word “forcibly” may be cured by an amendment; and the defendant, if he wishes to avail himself of such a defect, should specifically point out the defect at the trial, and if this is not done the defect cannot be taken advantage of in this court on a bill of exceptions which states that the defendant asked the court to rule that the declaration did not set forth a legal cause of action.</p> <p>The fact that a portion of the time described in one of the declarations in two actions, by the same plaintiff against the same defendant, for trespasses committed on the same close, ,s also included in the other, does not give rise, to a presumption of law that the trespasses charged in the two declarations are the same.</p> <p>An exception to a refusal to rule cannot be maintained which does not show that there was evidence in the case from, which the jury might find the facts on which the request was based.</p>

Tort to recover for the loss of two colts which were run over and killed by the defendant’s engine.

Writ of dower. At the trial in the Superior Court, before Lord, J., the fact of the seisin of Danforth Nichols was admitted, and the only question in dispute was whether Danforth Nichols and the demandant were lawfully married; it being contended by the tenants that the demandant had a husband living at the time of her alleged marriage with Nichols.

Contract to recover pay for three two year old c'attle, about three tons of hay, one stone boat, one horse sled, one sink and one meat bench.

Tout to recover damages for a personal injury sustained by the plaintiff by reason of a defective highway.

<p>The condition of a mortgage was that if the grantor should pay to the grantee $2500 in one year with interest, or otherwise pay such notes as the grantee should sign for his accommodation during said term, the deed, as also a promissory collateral note whereby the grantor promised to pay to the grantee $2500 with interest at ten per cent, should be void. The grantee, the day the mortgage was delivered, signed one note for $2500 for the accommodation of the grantor, and paid it at maturity. Held, on a writ of entry to foreclose the mortgage, that the conditional judgment should be for the amount of the note paid by the mortgagee, with legal interest from the time of payment.</p>

Tort for the conversion of a horse. At the trial in the Superior Court, before Wilkinson, J., the plaintiff offered evidence that he sent the defendant with the plaintiff’s horses to draw certain logs on level ground, and told the defendant not to take the horses upon a hill, and that the plaintiff had engaged oxen with which to draw the logs on the hill down to level ground; that the defendant took the horses upon the hill to drag a log lying there, about sixty feet, to a…

Writ oe entry. At the trial in the Superior Court, before Aldrich, J., the jury found for the demandants, and the tenant excepted to the refusal of the presiding judge to rule as requested by him. The facts appear in the opinion.

Contract on a promissory note dated April 9, 1860, signed by the defendant, and payable to Roxanna Blinn or bearer. Writ dated October 1, 1870. The answer set up the statute of limitations.

<p>Under the St. of 1873, c. 353, § I, a person, to whom a debt is due for labor performed in constructing a railroad, by virtue of an agreement with a contractor whose contract with the owner of the railroad was made before the passage of the statute, has not a right of action against such owner, although the labor was performed after the statute took effect.</p>

Writ oe entry to foreclose a mortgage held by the plaintiff’s testatrix, under an assignment from one Mrs. Friel. At the trial in the Superior Court, before Wilkinson, J., the following facts appeared: The mortgagor signed the mortgage and notes by making his mark.

Contract on a note for $500, dated December 15, 1848, payable to the plaintiff. The writ was dated March 12,1869. The note purported to be attested by one Horace Bartlett, the word? “ attest, Horace Bartlett,” being written below the body of the note, and directly above and over the date of the note. The answer stated that the suit was not brought within six years nor within twenty years from the date of the note, and denied the making of the note.

. Three actions of contract upon the following instrument in writing signed by the defendants and others: “ Provided the city will place granite curb-stones around the large trees on North Main Street, for the purpose of protecting them, we the subscribers hereby agree to pay to the city the cost of the curbstones so placed opposite our land on our side of the street.” At the trial in the Superior Court, Aldrich, J., ordered, the plaintiff objecting, that the cases should be…

Bill in equity by the holder of a second mortgage on a parcel of land in the town of Ware against the Ware Savings Bank, to whom the land had previously been conveyed in mortgage, and Daniel Holden, the owner of the equity of redemption.

<p>Contract to recover for the breach of the following written agreement signed by the parties thereto: “ An agreement made this day between N. G. Gibbs, S. A. Cornell, L. C. Smith and J. C. Kingsley, that the said Gibbs and Cornell will not bid or influence any one to bid, and will not accept the contract of any one else; and further, the said Kingsley agrees to pay the said Gibbs and Cornell the sum of five hundred dollars if he gets the contract of the jail for the coming three years; and further, the said Smith agrees to pay said Gibbs and Cornell eight hundred dollars if he accepts the contract of the jail for the next three years and runs it.”</p> <p>At the trial in the Superior Court, before Wilkinson, J., the plaintiffs offered to prove that the agreement related to the letting upon bids advertised for by the overseers of the house of correction of Hampden County, for the services and labor for three years, of the inmates of the house of correction of the county; that they fully performed their agreement, and that the defendant accepted the contract of the jail as specified in the agreement and runs it, and although requested by plaintiffs to pay them the sum of eight hundred dollars, according to the terms of said agreement, refuses so to do; that the plaintiffs, by reason of favoritism, would not have obtained the contract if they had made bids therefor; and that the county was, therefore, in no manner injured by the agreement of said parties.</p> <p>Upon these offers the presiding judge ruled that the plaintiffs could not maintain their action, on the ground that the agreement was against public policy and void, and directed a verdict for the defendant, and the plaintiffs alleged exceptions.</p>

Contract on a promissory note, dated April 11, 1854, and purporting to be signed by the defendant, and witnessed by A. H. Allen. Writ dated May 24,1873. The answer set up the statute of limitations.

Contract on the following agreement in writing signed by the plaintiff and defendant: “ This agreement, made this second day of December, 1871, by and between Seymour Gates of Holyoke, Hampden County, Massachusetts, and James Ryan of said 'Holyoke, witnesseth, that for the consideration hereafter expressed, and the agreement hereafter named to be performed by the said Ryan, the said Gates hereby sells and transfers unto the said Ryan one yellow house, now situated on land of…

Contract upon a promissory note dated August 1, 1853, signed by the defendant, payable to the order of the plaintiff, and witnessed by the wife of the plaintiff. Writ dated August 15, 1872. The answer set up the statute of limitations. At the trial in the Superior Court, before Wilkinson, J., it was agreed that the liability of the defendant depended upon the legality and binding force of the attestation.