Volume 116 — Massachusetts Reports

<p>Indictment on the Gen. Sts. c. 161, § 43, charging the defendant on October 21, 1871, with feloniously buying and receiving and aiding in the concealment of certain legal tender notes and bank bills of the goods, chattels and moneys of the National Mahawie Bank, knowing the same to have been feloniously stolen, the said legal tender notes and bank bills having been before then feloniously stolen, taken and carried away by one William S. Hine.</p> <p>At the trial in the Superior Court, before Rockwell, J., the defendant pleaded in bar to the jurisdiction that the offence set forth in the indictment was only cognizable by the Circuit Court of the United States for the District of Massachusetts; but the presiding judge disallowed and overruled the plea.</p> <p>William S. Hine was called as a witness, and testified as follows : “ I was the book-keeper and teller of the National Mahawie Bank of Great Barrington, Massachusetts, from February 1,1869, to October 21, 1871, inclusive; as such teller I had the control of the combination locks of three of the four doors of the vault and safe, (there being two doors on the vault and two on the safe,) the cashier had the other combination; without a knowledge of the combinations of these four locks, access could not be obtained to the inner safe, in which the money of the bank was kept; the cashier did not have the combinations of the three locks which I had, nor I of the one which he had, which was that of the outside door of the inner safe, being the third door of the vault. At noon, October 21,1871, the cashier left the bank to go to dinner, putting the money into the vault, and locked the outside door of the vault, leaving the outside door of the inner safe standing open; I opened the outer door of the vault, the combination of which lock I had, and finding the outside door of the inner safe open, I took a screw driver and removed the brass box which held the number of the combination on that door, and in that way obtained a knowledge of the combination of that lock, which enabled me to unlock that door when locked while that combination was in use. There being an error in the books of the bank, the cashier and I remained in the bank that evening till half-past eight o’clock, at which time I placed the money in the safe and fastened the doors; the cashier and I then left the bank together, he going towards his home, and I then returned to the bank, unlocked the door, entered the bank, lighted a candle, and unlocked the doors of the safe and vault, using the same combinations which existed at noon-time, and removed all the funds and money of the bank, wrapped them up in a paper and left the bank, locking all the doors, and proceeded with the .money - to my .boarding-house. On Friday, October 20, 1871, 1 received notice from the cashier that I would be discharged from the employ of the bank on account of my irregular habits; on the evening of that day, at about nine o’clock, having made up my mind to take the funds of the bank, I met the defendant Barry in the streets of Great Barrington, and asked him to drive me to Pittsfield the next afternoon, as I wanted to take the nine o’clock P. M. train from Pittsfield to Albany, and agreed to give him $50 if he would get me there in time to do so ; he seemed astonished at the offer; I told him if I chose I could take the funds of the bank, and I thought of doing so the next day; he asked me if I meant business, and I said yes ; we then proceeded down the railroad track some distance, and I then disclosed to him my plans; this was the commencement of the defendant’s knowing or having anything to do in the transaction; after I had taken the funds of the bank to my boarding-house, and placed them in a satchel, I proceeded with the money from my boarding-house to Humphrey’s Bridge, the place agreed upon for meeting Barry; I found Barry there without a conveyance of any kind, and we then concluded to walk to Van Deusenville, where I was to take the cars, and did so; I took from the satchel three packages of money, amounting in all to about $1700, and delivered them to the defendant Barry, and took the train for Pittsfield ; that was the last I saw of Barry.”</p> <p>It was proved that Hine at January term, 1872, of the Superior Court in Berkshire, had pleaded guilty to an indictment for larceny of $24,894 of the moneys of the said National Mahawie Bank from the building of said bank, and been sentenced thereon to the house of correction for two years.</p> <p>The government proved the organization of the National Mahawie Bank, under the laws of the United States, and in accordance with the provisions of the acts of Congress in relation to the organization of national banks contained in the U. S. St. 1864, c. 106.</p> <p>The defendant asked the judge to rule that upon this evidence his offence was not within the jurisdiction of the court. The judge declined so to rule; the jury returned a verdict of guilty and the defendant alleged exceptions.</p>

Complaint under the St. of 1869, e. 415, §§ 31, 36, for the illegal keeping of intoxicating liquors. At the trial in the Superior Court, before Brigham, C. J., the evidence tended to show that the defendant occupied the lower story of a three story building as an eating-house, and therein kept a bar, and sold hop beer and cider by the glass. Evidence was also introduced to show that he kept and sold whiskey, which need not be stated in detail.

<p>A complaint on the St. of 1869, c. 415, § 39, to a police court alleged that the defendant, at a place within this Commonwealth, unlawfully did convey certain intoxicating liquors in a wagon to another person who intended to sell them in violation of law, the defendant having reasonable cause to believe that they were so intended for illegal sale. On appeal in the Superior Court the defendant objected that the complaint set forth no offence, because it omitted the words “from place to place within this Commonwealth.” Held, that the defect was merely formal and the objection was taken too late.</p>

<p>On a complaint under the St. of 1869, c. 415, § 36, for keeping intoxicating liquors with an intent to sell them in violation of law, it is sufficient to authorize a verdict of guilty, if it is proved that the defendant was in possession and exercising control of the liquors with intent to sell the same in violation of law, although he was not the owner of the liquors.</p>

Indictment for perjury. The indictment set forth at length that at a session of the Police Court of Charlestown, on March 6, 1873, one Lydia L. Grant was in due form of law tried under the name of Lydia L. Linnell on a complaint charging her with larceny from one Theodore L. Grant, within the jurisdiction of said Police Court; that at the trial aforesaid said Theodore L. Grant did appear as a witness for the Commonwealth, and then and there was sworn to speak the truth, the…

<p>Complaint under the St. of 1869, c. 415, § 44, alleging that certain intoxicating liquors seized on a warrant were kept, and deposited in the freight-house of the Connecticut River Railroad Company, by-a person unknown, for sale in violation of law.</p> <p>At the trial in the Superior Court, before Wilkinson, J., before the empanelling of the jury, the claimants filed their claim to said liquors; and moved to quash and dismiss the complaint and warrant, because they did not contain the name of the person by whom said liquors were kept and deposited. The presiding judge overruled this motion and the claimants excepted. The government put in the following evidence :</p> <p>ElijahN. Sampson testified: “Iseized the liquor on September 24. I went then to the Connecticut River Railroad freight depot in Northampton. As I was going down Strong Avenue, Patrick Garvey drove by me with a horse and buggy, making motions towards the depot as he went down. Barton was about half way betwixt me and the freight-house; I motioned to him to go down as quick as he could. When I got down to the freight-house I found these two barrels of gin there, and Garvey standing near it and Barton. The two barrels of gin were marked 'T. D., South Vernon, Vermont, to be held at Northampton.’ Gauge mark on the barrels. I seized it and brought it away. Garvey was at work for his brother at that time in a grocery store on Main Street. The liquors were in the freight-house of the Connecticut River Railroad. It was in among other freight.”</p> <p>A. R. Barton testified: “I was between Clark’s livery stable and the freight-house, Sampson was up towards Main Street; this young Garvey came down with a team making motions back, as I supposed, that Sampson was coming. As soon as he passed me, I ran along and got in immediately after he did. One of, the men employed on the railroad had one of these barrels, and Garvey had the other, rolling them out on the back side of the depot. I stopped them, told them that it said ‘to be held at Northampton,’ and I guessed we would hold them. Sampson came in and seized the liquors.”</p> <p>The claimants offered no evidence, but asked the court to rule that the charges in the complaint and warrant were not sustained upon the evidence. The court declined so to rule, but submitted the case to the jury under proper instructions. The jury found that the liquors were kept as charged in said complaint and warrant, and the claimants alleged exceptions.</p>

Complaint under the St. of 1869, c. 415, §§ 44, 45, against certain intoxicating liquors alleged to be kept and deposited by William McCandless in his dwelling-house, he intending to sell the same in violation of law.

Complaint on the St. of 1869, c. 415, § 44, against certain intoxicating liquors alleged to be kept and deposited by some person unknown, in a certain building known as the Greenwich depot, “ occupied by said unknown person as a store-room, the said unknown person intending to sell the same in violation of law.” At the trial in the Superior Court, before Wilkinson, J., William E. Lewis, a state constable, testified that he seized nine casks of liquor at the depot of the…

Complaint on the St. of 1869, c. 415, §§ 44, 45, averring that certain intoxicating liquors were, on May 19, 1874, kept and de posited by John Dewey “ in a certain dwelling-house building situate on Cherry Street, so called, in Northampton, on the northerly side of said street, the same being the second house from Market Street, on said Cherry Street, and occupied by the said Dewey as a dwelling and premises, and a place of common resort is kept therein, and which liquors…

Indictment under the Gen. Sts. c. 87, § 7, charging the defendant with keeping a common nuisance, to wit, a tenement in Northampton used for the illegal keeping and illegal sale of intoxicating liquors, on March 1, 1874, and on other days between that day and May 21, 1874.

<p>The first case was an indictment found at the June session of the grand jury, 1873, under the Gen. Sts. c. 87, § 7, for keeping a common nuisance, to wit, a tenement for the illegal keeping and sale of intoxicating liquor, on July 1, 1872, and on divers other days between that day and May 1, 1873.</p> <p>At the trial in the Superior Court, before Dewey, J., after evidence had been introduced concerning the character of the defendant’s place on July 2, 1872, the presiding judge allowed evidence to be introduced, against the defendant’s objection, as to what was found at the defendant’s place on other days between said July 2, and May 1,1873.</p> <p>The jury returned a verdict of guilty, and the defendant alleged exceptions.</p> <p>The second case was an indictment under the Gen. Sts. o, 87, § 7, for keeping a common nuisance, to wit, a tenement for the illegal keeping and sale of intoxicating liquor on May 1,1873, and on divers other days between that day and June 12,1873.</p> <p>At the trial in the Superior Court, before Dewey, J., the defendant filed a plea that he had been found guilty on an indictment found against him at the same session of the grand jury, for keeping a common nuisance, to wit, a certain tenement for the illegal keeping and sale of intoxicating liquor from July 1,1872, to May 1, 1873, and that the tenement was the same set out in this indictment.</p> <p>A demurrer to this plea was sustained; the defendant was required to answer over, and pleaded not guilty. The jury returned a verdict of guilty, and the defendant alleged exceptions.</p>

<p>Complaint for larceny of a guinea hen. Trial in the Superior Court, on appeal, before Dewey, J., who allowed a bill of exceptions in substance as follows :</p> <p>The jury not having agreed at the time of adjournment of the morning session, the presiding judge directed the officer, that if the jury should agree on a verdict before the afternoon session, they should seal up the same and bring it in at the afternoon session, and directed the officer to tell the jury to return a verdict of guilty or not guilty, according as they might agree, and to have it signed by the foreman and sealed up; that then they might separate and return their verdict when they came into court in the afternoon.</p> <p>The officer thereafter wrote, for the direction of the jury, all that is on the face of the following paper returned by the jury, except the word “ guilty ” at the conclusion, and the signature, “ E. B. Haskell, Foreman,” which word and signature were written by the foreman: “ Verdict. In case of Commonwealth vs. ___, the jury find defendant guilty or not guilty, as the case may be. Guilty. Signed, E. B. Haskell, Foreman.” After the jury had agreed and this paper had been signed and sealed up with the complaint, the jury separated. On their return into court in the afternoon, the defendant being present and all the jurors, the clerk, by order of the presiding judge, inquired of the jurors if they had agreed on a verdict in this case, and the foreman replied they had, and handed the envelope to the clerk, who opened the same and read to the jury the paper returned as their verdict, and inquired of them if their verdict in said case was that the defendant was guilty, to which they assented.</p> <p>The presiding judge ordered said paper to be filed as a verdict, and the clerk to record a verdict of guilty as found by the jury in said case. The defendant objected to the reception of and recording of said paper as a verdict, or of any verdict whatever. The court, overruling said objections, directed the reception and reading of said paper and record thereof and entry of the verdict as above stated. The defendant then moved to set aside the verdict for the following reasons: “ 1. Because no proper verdict was rendered by the jury. 2. Because, before any verdict was rendered, the jury had separated without the consent of the defendant. 3. Because, after the jury had retired, the officer wrote for their direction the paper returned by the jury as their verdict, and gave it to them with directions that they should return a verdict of guilty or not guilty, as they might agree, and to leave it signed by the foreman and sealed up.” This motion was overruled, and the defendant alleged exceptions.</p>

Indictment under the Gen. Sts. e. 161, § 38,* charging the defendant in different counts at a place and timé named “ being then and there the clerk, servant, and agent of Gustavus F. Swift, Edwin 0.

<p>Indictment against Lucian M. Titus and Elbridge F. Horr, charging them jointly with the larceny of certain articles of personal property alleged to be the property of Nancy Meacham.</p> <p>Trial in the Superior Court, before Aldrich, J., who allowed the following bill of exceptions: “ The defendant Horr pleaded guilty. Titus pleaded not guilty. Upon his trial the government introduced evidence tending to prove the ownership of the property as alleged in the indictment; and that the owner, while riding on one of the public highways in Athol, lost the wallet or travelling bag containing the articles mentioned in the indictment ; that the defendants, passing along the same highway not long after the loss of the bag, discovered it, picked it up, and afterwards appropriated the contents of the bag to their own use, and destroyed the bag by cutting it in pieces and concealing the same in a wood lot remote from the place of finding.</p> <p>“ As bearing upon the question of the intent with which the defendant Titus originally took the bag and its contents, the government, against his objection, was permitted to introduce evidence to show what Titus said and did about the property and his possession of it, subsequently to the original finding and taking. This evidence was offered by the government and admitted by the court for the single purpose of proving, so far as it tended to do that, the intent with which Titus originally took the property into his possession at the time of finding it. And the jury were instructed that they could properly make no other use of this evidence, as against the defendant.</p> <p>“ The defendant’s counsel asked the court to rule that lost property cannot be the subject of larceny. This ruling the court declined to give; but did instruct the jury that to authorize a conviction of the defendant Titus, they must be convinced by the evidence in the case beyond all reasonable doubt: First, that at the time of the finding of the property by the defendant and the taking of it into his possession, he had a felonious intent of appropriating the property to his own use and depriving the owner of it Secondly, that he then knew who the owner was, or then had reasonable means of knowing or ascertaining who the owner was.</p> <p>“ The court further instructed the jury that if the evidence failed to satisfy them beyond every reasonable doubt that, at the time of finding the property, Titus knew or had reasonable means of knowing who the owner was; or if they should find that he did not originally take the property with the felonious intent of converting it to his own use, but formed such purpose afterwards, it would be their duty to acquit him.</p> <p>“ To the admission of the evidence objected to, the refusal to rule as requested, and the foregoing instructions, the defendant objected. Other and appropriate instructions, not objected to, in relation to the nature of the offence charged, and in relation to the evidence, the burden of proof, &c., were given.</p> <p>“ The jury returned a verdict of guilty, and the defendant alleged exceptions.”</p>

Complaint on the Gen. Sts. e. 87, § 6, for keeping and maintaining a liquor nuisance on July 1, 1873, and on divers other days between that day and October 4, 1873. At the trial in the Superior Court, before Dewey, J., Augustus W. Keene, called as a witness for the Commonwealth, testified : “ I have known the defendant at Milford for several months, including the time covered by this complaint; called at his place on Main Street, July 5, 1873.

<p>An indictment alleged that A. at a time and place stated “ in and upon one B. then and there being pregnant with child, unlawfully did make an assault, and a certain instrument, the name of which is to the jurors unknown, up and into the womb and body of the said B. unlawfully did force and thrust, with intent then, there and thereby to cause and procure the said B. to miscarry, abort and to bring forth the said child of which she was pregnant as aforesaid, and to kill and murder said child, by reason,” &c. Held, that whether it was intended to charge an assault with intent to commit a felony, under the Gen. Sts. c. 160, § 33, or an intent to procure miscarriage of a woman, under the Gen. Sts. c. 165, § 9, yet as the bill of exceptions stated it to be an indictment for procuring an abortion, it must be so regarded in this court. Held, also, that the allegation as to the time and place of the offence applied to the particular acts set forth as the means by which the abortion was alleged to be performed, as well as to the alleged assault. Held, also, that the instrument and the means by which it was used were sufficiently described. Held, also, that it was not necessary to prove an assault, or an intent to kill the child, and that the defendant might be convicted although the woman consented.</p> <p>At the trial of an indictment on the Gen. Sts. c. 165, § 9, for procuring an abortion, two of the witnesses for the government testified, with great particularity, that the act was performed at a place stated on a certain dsy named in the indictment; The remaining witness stated that it was on or about that day, that he was not sue of the date. The defendant introduced evidence tending to show that on this day, the day before and the day after, he was one hundred miles away from the place named. The defendant requested the court to instruct the jury “ that there was no evidence in the case which would warrant the jury in finding that the defendant did the act complained of upon any other day than the day named in the indictment, and if the jury are satisfied that the defendant did not do the act upon that day, that they cannot convict.” The judge declined to give this instruction, and instructed the jury that it need not be proved that the offence was committed on the exact day alleged; that if the jury found that the witnesses for the government were in error as to the date, this might be considered upon the question of the degree of credit they were entitled to, and that if the jury were not satisfied beyond doubt that the defendant performed the operation as alleged, they should acquit him. Held, that the defendant had no ground of exception.</p>

Indictment on the Gen. Sts. a. 87, § 6, for keeping and maintaining a tenement used for the illegal sale and keeping of intoxicating liquor. At the trial in the Superior Court, before Lord, J., the government offered the evidence of S. Dana Hayes and C. O. Thompson, chemical experts, who had analyzed samples of beei admitted to have been sold by the defendant in the place and between the times alleged in the indictment.

Indictment for assault and shooting Timothy Callaghan with a pistol. At the trial in the Superior Court, before Lord, J., there was evidence tending to show that the shooting took place in the defendant’s saloon ; that a quarrel occurred between Callaghan and the defendant, and that Callaghan threw one or more beer mugs at the defendant, who then fired two shots from a revolver, and that the second shot hit Callaghan in the neck.

Indictment on the Gen. Sts. c. 87, §§ 6, 7, charging the keeping of a tenement used for the illegal sale of intoxicating liquors. Before arraignment the defendant filed a plea in abatement, a motion to quash, and a specia. plea in bar, setting forth that two of the jurors upon the grand jury by which the indictment was found and presented were not charged by the presiding judge, but were simply sworn by the clerk in open court. The court overruled the pleas and motion.

<p>Under the St. of 1869, c. 415, § 39, a person may be convicted who conveys spirituous or intoxicating liquors in this Commonwealth to another, having reasonable cause to believe that the latter intends to sell them to a third person in violation of law, whether the person so conveying the liquors is the owner of them or not.</p>

<p>Complaint on bhe St. of 1869, a. 415, charging the defendant with the keeping of intoxicating liquors on April 17, 1874, with intent to sell the .same in violation of law.</p> <p>At the trial in the Superior Court, before Putnam, J., the government put in the testimony of two state constables, as to certain acts of the defendant in a saloon, and that intoxicating liquor was found there on said day. The defendant testified for himself, that in March, 1874, he sold out the liquor business in that saloon to his brother, and had had no connection with it since that date, and nothing to do with the bar room since that time.</p> <p>The government thereupon recalled the state constables, who testified, the defendant objecting, that they visited the place again on May 16, 1874, and on that occasion found some lager bier there, which the defendant was delivering to some customers.</p> <p>The court instructed the jury that they might consider the evidence of the officers, as to what occurred on May 16, only as contradicting the defendant and as bearing on his credibility, but not to consider it as having any tendency to show that he kept liquors for illegal sale on April 17. The jury returned a verdict of guilty, and the defendant alleged exceptions.</p>

Tort for a personal injury. At the trial in the Superior Court, before Lord, J., the defendant admitted that it was a corporation, and the owner of the estate at Turner’s Falls, upon which the accident was alleged to have happened.

<p>A writ of dower, made in the form of a writ of summons and attachment, may he served hy, a nominal attachment of the tenant’s goods or estate and delivering a summons to him.</p> <p>Under the St. of 1869, c. 418, if an interlocutory judgment is rendered that the demandant recover her dower and her damages for the detention thereof as assessed hy the jury to that time, and commissioners are appointed to set off the dower, the demandant is entitled to further damages to the time of final judgment upon the report of the commissioners.</p>

<p>Upon a petition to the county commissioners under the St. of 1872, c. 262, § I, for an alteration in the crossing of a railroad by a highway, a county commissioner, who resides in the city or town in which the crossing is situated, is disqualified by the Gen. Sts. c. 17, § 12, to act, unless a board cannot be organized without him.</p> <p>County commissioners have no power, under the St. of 1872, c. 262, to change the grade of a railroad, where it crosses a highway.</p> <p>A petition by the directors of a railroad corporation to the county commissioners, under the St. of 1872, c. 262, representing that in their opinion it is necessary for the security and ctravenience of the public that the method of crossing two streets by their railroad should be altered, and requesting the county commissioners “ to prescribe such an alteration as will separate the grade of said railroad from the grades of said streets and allow said streets to pass under said railroad,” does not prevent the railroad corporation from objecting that an order passed by the county commissioners upon that petition is invalid, because it undertakes to change the grade of the railroad.</p> <p>Under the St. of 1872, c. 262, § 2, one of the special commissioners to determine by whom an order of the county commissioners for an alteration in the crossing of a railroad by a highway in a city shall be carried into effect, and the expenses thereof paid, is to be named by the county commissioners, and not by the mayor and aldermen, although the highway is wholly within the city.</p> <p>Upon a petition of the mayor and aldermen of a city in which a railroad crossing was situated, and of the directors of the railroad corporation, under the St. of 1872, c. 262, § 1, for an alteration of the same, the order of the county commissioners required an alteration in the grade of the railroad. Held, that upon the petition of the railroad corporation, filed seven months after that order, but before any award of the special commissioners appointed under § 2, a writ of certiorari should issue to quash the order of the county commissioners.</p> <p>Under the St. of 1873, c. 355, a writ of certiorari may be ordered to be issued in vacation and returnable forthwith.</p>

<p>While a petition of the mayor and aldermen of a city in which a railroad crossing is situated, and of the directors of the railroad corporation, to the county commissioners under the St. 1872, c. 262, for an alteration of the crossing, so as to allow the highway to pass under the railroad, is pending, the mayor and aldermen are not authorized to join with the common council in changing the grade of the highway at the same place, even with the consent of the railroad corporation; and a writ of certiorari to quash an order of the city council to that effect will be granted upon a petition filed by an abutter, before any work has been done under the order.</p>

<p>Petition filed August 31, 1874, for a writ of certiorari, to quash an order of the city council of Springfield, passed July 20, 1874, lowering the grade of Chestnut Street at and near the crossing of the same by the Boston and Albany Railroad, and awarding damages to the abutters, of whom the petitioner was one. The case was heard and reserved with that of Powers, ante, 84, and was substantially like that case, except that the only hearing upon the question of the assessment of damages, notice of which was served upon the petitioner, was before the board of public works, and prior to the order passed by the city council on the report of that board; that the city began to cut down Chestnut Street on July 29, and on September 2, when this petition was served, had removed eleven thousand cubic yards of earth, being about eleven thirteenths of the whole amount which would have been removed in completing the work called for by the order of the city council; that it would cost $5500 to replace the street in the condition in which it was before the work was begun; and that the petitioner knew of the commencement and progress of the work.</p>

<p>The validity of an order of a city council, for the alteration of a highway and the payment of damages occasioned thereby, can only be impeached directly by petition for a writ of certiorari, and not collaterally by petition in equity to restrain the appropriation and payment of money under it.</p>

<p>Bill IN EQUITY to enforce specific performance of a contract for the sale of a parcel of land in Holyoke. The case was reserved by Morton, J., for the consideration of the full court, upon the bill, answer and a report of a master, and is stated in the opinion.</p>

<p>Tobt under the Gen. Sts. a. 44, § 22, for personal injuries sustained through an alleged defect in a highway which the defendant was bound to keep in repair.</p> <p>At the trial before Morton, J., the jury found for the plaintiff and a bill of exceptions was allowed in substance as follows : It appeared in evidence that the plaintiff, a lad of fifteen years of age, on the evening of June 12, 1872, while it was dark, was travelling on foot along the highway in question, and, coming upon the alleged defect, fell and received the injury complained of. The highway, from one outside limit to the other, was fifty-five feet wide; upon either side of it dwelling-houses were situated close together and close to the line of the highway, and the immediate vicinity was thickly settled.</p> <p>The plaintiff also testified that the street in question was one of the greatest business streets in the town; that there was a large school-house fitted for some 250 scholars, within a few rods of this place; that school was kept therein during school hours, and the school children passed all over the street; that a Catholic church was being built near it; that there were no cross-walks, and people crossing from one side of the street to the other were accustomed to cross at all places over the street.</p> <p>The alleged defect consisted of two bolts, each five eighths of an inch in diameter, standing vertically an inch and a half or an inch and three quarters in height above a perforated iron plate, which formed the cover to a sewer; these bolts were used to hold the plate in place, and iron nuts half an inch thick were screwed on the bolts down upon the plate, the bolts extending an inch to an inch and a quarter above the nuts. The plate was two feet square, and the bolts were twenty inches apart. This plate was placed nine feet from the southerly limit of the highway. The highway extended along the side of a steep, sandy hill, down which the water often ran in great quantity over the highway ; to protect the highway from washing away at such times, and to guard the land below, the sewer was constructed.</p> <p>The evidence as to the description and common use of the said highway was conflicting. Several witnesses testified that from one side to the other it was substantially flat; that there were no sidewalks or gutters; that carriages as well as foot passengers travelled over the whole width of the way; that people in the ordinary line of travel, in carriages or on foot, passed as well over said plate as over any other portion. Several other witnesses testified that an earth sidewalk, well defined, eight feet wide and six to eight inches high above the carriage way, extended along both sides of said way; that the carriage way between said sidewalks was thirty-nine feet wide; that the plate was in the bottom of the gutter six inches below the level of the sidewalk, and ten inches below the middle of the carriage way; that said gutter extended several rods in either direction from the plate, and that the lines of carriage and foot travel were entirely distinct.</p> <p>There were no posts or trees along the line of said gutter. The plaintiff for several years before had resided a few rods from the place where he received the injury, was familiar with the place, knew where the sewer was, and had noticed the plate and bolts several times before. He testified that while walking along in company with another boy, not thinking anything about the sewer plate, he hit his foot against one bolt, and, falling forward, struck his knee upon the other" bolt and was injured. There was evidence which the defendant contended tended to show that the plaintiff was engaged in play at the time of the accident, and that he was not in. the exercise of due care as a traveller.</p> <p>The defendant conceded that the plaintiff was of suitable age to be upon the street as he was; that there was no want of care upon the part of any one in permitting him to be out upon the street at the time he was; and that he was a boy of the ordinary capacity of boys of his age.</p> <p>After the evidence was all in, the defendant asked the court to rule as follows : “1. The drain cover, with the nuts and bolts used to fasten it down, placed in the highway at the point and in the manner described, was not a defect or want of repair for which the town was liable. 2. On all the evidence in the case the jury would not be warranted in finding that there was any defect in the highway, for which the town was liable. 3. The degree of care required of the plaintiff is such care as persons of common prudence exercise, and the same rules are to be applied to children as to adults, in regulating the use of the highway for the purpose for which it was designed.”</p> <p>The court declined to give these rulings; but instructed the jury that it was in this case for them to determine on all the evidence whether there was any defect, and if so, whether it was • such a defect or want of repair as would render the way unsafe for travellers who were using it while in the exercise of due care ; that if the plaintiff was engaged in play at the time of the hi jury he could not recover; that if he was using the street as a traveller, he must show that he was in the exercise of due care; and that due care was such care as is usually and ordinarily exercised by boys of his age and capacity, using the ordinary prudence of baya of that age. The defendant alleged exceptions.</p>

<p>Contbact, to recover the value of a box and its contents, delivered to the defendant at Lewiston, in the State of Maine, to be carried to Dexter, in the same state.</p> <p>Trial in the Superior Court, before Putnam, J., who, after a verdict for the plaintiff, allowed the following bill of exceptions : “No question was made as to the delivery of the package to the defendant company, or that it was a common carrier. The plaintiff offered no other witness than herself, and she testified as follows;</p> <p>“ ‘ I had worked at Lewiston in the mills. I left there August 17, 1869. I boxed up the goods in question, which were my own and mostly my wearing apparel, in a large box, which was nailed and fastened with cleats, and delivered it to the defendant’s office in Lewiston. The box was marked Edward Gough, Dexter, Maine. I have made efforts to find the box, but have never been able to do so. I have made inquiries at Lewiston and Dexter, at the offices of said express company, for this box. I have not received it or heard from it since. I made inquiries of the agent. I asked Edward Sands. He was in the express office. He was writing in the office. No one else was in charge. I also made inquiry of Gough about the box. I have not seen it since I sent it.’ The rest of her testimony related only to the value of the contents of the box. No testimony was offered by the defendant.</p> <p>“ Upon this evidence the defendant asked the court to rule that the plaintiff had not offered sufficient proof to sustain her case. But the court refused, and submitted the case to the jury under instructions. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

Contract on an account annexed. Writ dated July 24,1872. Trial in the Superior Court, before Allen, J., who, after a verdict for the plaintiff, allowed a bill of exceptions in substance as follows : The question raised at the trial was in regard to the fourth item of the plaintiff’s account, in which he sought to recovei $3361.40 for excavating 9604 yards of earth, at 35 cents a yard.

<p>Petition, filed May 28, 1874, for partition of three tracts of land. Trial in the Superior Court, before Allen, J., who, after a verdict that the petitioner held two of the tracts in common with the respondent, but not the last tract described in the petition situated in Oakham, allowed a bill of exceptions in substance as follows:</p> <p>The petitioner introduced the following evidence. On June 2, 1864, the respondent made a mortgage of the tract, of land last mentioned and described in the petition to his father, Timothy Nourse, and his brother, the petitioner, to secure the payment of a note of the same date for two thousand dollars on demand with interest. The mortgage was duly recorded in the registry of deeds, June 6, 1864. On August 6, 1864, the respondent indorsed on the mortgage a certificate, signed by him, of peaceable entry and possession of the premises for breach of condition of the mortgage and for the purpose of foreclosing the same, which was duly recorded on August 9, 1864. Timothy Nourse, the father, died intestate in 1868, and the petitioner died intestate in March, 1872, and this suit is being prosecuted by his heirs. The petitioner claimed to hold the land above mentioned by foreclosure of said mortgage.</p> <p>The respondent contended that the mortgage was made without consideration and to keep his property from attachment, and that it never was delivered to the mortgagees or either of them ; and against the petitioner’s objection was permitted to introduce the following evidence, the petitioner contending that the respondent was estopped to deny the delivery of the mortgage: The respondent testified that he was threatened with an attachment of his property, and that he made and executed the mortgage for the purpose of covering his property from attachment; that when the mortgage was made neither of the mortgagees was present or knew anything of it, or had ever had any conversation in regard to it, or had ever paid anything for it; that he sent the mortgage himself to have it recorded, with instructions to have it returned to himself, and that in a day or two after, and while the mortgage was at the registry for record, he took the note to his father, and told his father that he had put the property into his and his brother Timothy’s hands by mortgage, and had sent the mortgage to Worcester to be recorded; that his father at first said he would have nothing to do with it; that he told his father that unless he assented to it, he, Benjamin, would be in danger of losing his property; that his father finally said he would take the note, and did take it; that subsequently the respondent sent and got the mortgage from the registry of deeds, and had the certificate of possession written upon it, which he signed and acknowledged, and had that also recorded; that subsequently he obtained the mortgage from the registry, and had kept it in his possession ever since, and that he never delivered it to either of the mortgagees; that he did not at the time he made the mortgage intend to deliver it to the mortgagees; that he made the certificate of possession for the purpose of preventing his creditors from attaching the crops, and that he had been in possession of the property ever since.</p> <p>Mark Haskell was also called as a witness by the respondent, and testified against the petitioner’s objection, that he wrote the certificate of possession upon the mortgage, and as a justice of the peace took the acknowledgment of it; that the respondent requested him to send it to be recorded, and also to send to the registry for it, after it was recorded, and keep it till he called for it; that at the same time the respondent told him that he did not intend to deliver the mortgage to the mortgagees; that he made it to cover up his property from attachment, and that he should not deliver it unless it should become necessary, in order to keep it from his creditors; that he was advised to give his father possession under the mortgage so that he could hold the crops; that they had sued him but could not find anything to attach. All of this conversation was in the absence of the mortgagees.</p> <p>The evidence was conflicting as to the consideration for which the mortgage was given, the respondent testifying that it was entirely without consideration, and several witnesses for the petitioner testifying to admissions of the respondent that it was given for money which he had had from Ms father. The mortgage was produced at the trial by the respondent upon notice, It appeared that the respondent was the administrator of his father’s estate, and it was contended by the petitioner that he obtained said mortgage from his father’s papers.</p> <p>The question submitted to the jury was whether there was a delivery of the deed. The petitioner alleged exceptions to the admission of the above testimony.</p>

<p>A. employed a real estate agent to sell his farm, and agreed In writing to pay him a certain sum “ if it is sold to any party within a year from this date, or at any time thereafter, before I have given you thirty days’ notice in writing of my intention to withdraw the property from the market.” Held, that the clause relative to withdrawing the property from the market applied only to the time after the expiration of the year.</p> <p>Evidence that a real estate broker has advertised a farm for sale, that his agent took several persons to the farm with a view to purchase, and talked upon the subject with others, one of whom testified that he had purchased the farm from the owner in person, paid him money on the farm, and moved himself and his goods upon it, is sufficient (no objection being taken to its competency) to warrant a finding that the broker had faithfully endeavored to sell the farm, and that the owner had made an agreement, binding upon him, to sell it.</p>

<p>Writ or entry against Hannah Smith and her husband, Henry C. Smith, to recover a tract of land in Westborough. Hannah Smith pleaded nul disseisin. Henry C. Smith pleaded non-tenure and disclaimer.</p> <p>At the trial in the Superior Court, before Baeon, J., it appeared ‘•hat the demandant’s title was derived from a sale of the land on execution as the property of the last named defendant, the same having been attached on February 9, 1870, in an action by the demandant against him.</p> <p>It further appeared that Henry C. Smith was on April 24,1868, the owner of the demanded premises, and on that day he conveyed the same in mortgage to George W. Mann. The deed contained a clause authorizing the grantee and his legal representatives, on breach of condition, to sell the granted premises and all benefit and equity of redemption of the grantor, and to execute the necessary deed to convey the premises in fee simple: provided that the person herein authorized to make such sale “ shall make before some justice of the peace an affidavit, that he had at the time of such sale an interest in this mortgage, that such sale was made at public auction, on or near said granted premises, and that notice was given of the time and place of such sale, by posting up notifications thereof, thirty days at least before the time of sale, in two public places in said town of Westborough, and publishing the same three weeks successively in some newspaper printed in said county of Worcester, and that such affidavit shall be so made., and, together with a copy of the notice, shall be recorded in the registry of deeds for said county of Worcester within thirty days after such sale.”</p> <p>This mortgage was assigned June 14, 1869, by Mann to Cyrus Fay, to whom also Henry C. Smith had on July 2,1868, conveyed the demanded premises in mortgage, by a deed whereby the grantee was authorized to sell the premises, in case of any breach by the grantor in the conditions of the deed, and to convey the same in his own name or as attorney of the grantor.</p> <p>The tenant Hannah Smith put in evidence a deed, dated January 20, 1871, of the premises from Cyrus Fay to John A. Fayer-weather; and a deed of the same premises from Fayerweather to her, dated January 20,1871. Both of these deeds were duly recorded. Annexed to the first deed was an affidavit made by Fay., which set forth his acts under the powers in the two deeds, but omitted to set forth that he had at the time of the sale an interest in the mortgage. The deed from Fay to Fayerweather recited the two mortgages; that there had been default in respect to each; and that notice had been duly published. The granting clause was as follows: “ blow, therefore, know all men that we the said Henry C. Smith, by the said Cyrus Fay, his attorney, duly authorized as aforesaid, and the said Cyrus Fay, by virtue and in execution of the power contained in said mortgage deeds, respectively as aforesaid, and of every other power and authority we thereto enabling, do in consideration of the sum of $5250, to us paid by John A. Fayerweather, give, grant,” &e. The deed was signed “ Henry C. Smith, by Cyrus Fay,” and also “ Cyrus Fay,” and sealed.</p> <p>The demandant asked the judge to rule that the tenant Hannah took no title under the sale by Fay, because his proceedings under the powers were defective and invalid in the following particulars : “ 1. Because no affidavit was made as required by the first mortgage, that Fay at the time of the alleged sale had an interest in the said mortgage.” “ 2. Because the two mortgages and two powers of sale are entirely distinct, and a notice was given of two distinct sales, one under each mortgage, to take place at the same time and place, and it appears that there was but one sale of the premises for one entire sum, upon one bid to the same purchaser, and one deed was given, and one affidavit made, by which it was sought to execute both powers jointly.” Other defects were also insisted upon, which need not now be stated.</p> <p>The judge directed a verdict for the demandant against Hannah Smith. Judgment was ordered on the pleadings for the tenant Henry C. Smith, to which order no exception was taken. The case was, after verdict, by consent of the parties reported for the consideration of this court.</p>

Contract by H. P. Boutelle, H. R. Horton and H. L. Houghton, against Henry F. Smith and Charles T. Cushing, to recover the sum of one thousand dollars as liquidated damages, on a bond executed by the defendants, March 18, 1873, the condition of which was as follows: “ The condition of this obligation is such, that whereas the said Boutelle, Horton and Houghton have this day purchased of the said Smith and Cushing their business as bakers, together with the personal property…

<p>A motion to dismiss cannot be sustained which is not founded on matter of law apparent on the record.</p> <p>If a judge has authority to entertain a suggestion of a fraudulent abuse of the powers of the court, upon a summary motion, without putting the party making the suggestion to plead and try it in regular form, it is within his discretion to decline to do so, and his action cannot be revised by this court.</p>

Writ of entry to recover “ a certain tract of land situated in Worcester on the easterly side of Southbridge Street; bounded and described as follows : commencing at a point on the easterly side of Southbridge Street where College Street intersects South-bridge Street, thence northerly on said Southbridge Street three hundred and forty feet to the river, thence easterly on said river forty-eight and one half feet to a willow tree, thence southerly on land of the tenants…

Tort for the conversion of four oxen. At the trial in the Superior Court the jury returned a verdict for the plaintiff, and the defendant presented the following bill of exceptions, which was disallowed by the presiding judge. “ The plaintiff claimed the property by sale from one McFarland, who bought of Santom.

Petition for the assessment of land damages sustained by the petitioner by reason of the passage of the respondent’s railroad through his farm. The respondent, being dissatisfied with the estimate made by the county commissioners, applied for a jury to assess the damages, pursuant to the provisions of the Gen. Sts. c. 63, § 22.

Appeal under the Gen. Sts. c. 99, § 8, from a decision of the commissioners, appointed by the Probate Court to receive and examine the claims of creditors against the estate of the defendant’s testator, disallowing a claim made by the plaintiffs against said estate.

Tort for placing a sign on the outer wall of the plaintiff’s room.

Contract for breach of warranty. At the trial in the Superior Court, without a jury, before Brigham, C. J., the following facts were found: The defendants, by a warranty deed, dated June 5,1869, conveyed to the plaintiff a lot of land in Worcester, bounded and described as follows : “ Beginning one hundred feet northwest from Bloomingdale Road, thence running sixty-nine feet more or less on Ascension Street to the Boston and Albany Railroad, thence turning and running…

<p>If A. is arrested in a suit against himself and B. as copartners, and gives a bail bond to appear, answer and abide the judgment in the suit, the liabilities of the sureties on the bond are not affected by a discontinuance as to B. in the original action.</p>

Contract on an account annexed. Trial in the Central District Court of Worcester, the judge of which allowed a bill of exceptions which stated that on the return day of the writ the plaintiff demanded a trial by jury, and that at March term, 1874, the parties submitted the case upon an agreed statement of facts, which was set forth at length, and by which the parties agreed that if the plaintiff was entitled to recover, he was to have judgment for a sum stated and costs;…

Poor debtors’ oath. On December 31, 1872, after the arrest of the defendant on an execution issued on a judgment recovered in a civil action, and pending his examination before a master in chancery upon his application to take the oath for the relief of poor debtors, the judgment creditor filed charges of fraud, under the Gen. Sts. c. 124, §§ 31-34, alleging that since the debt was contracted and the cause of action accrued for which the defendant had been arrested, he had…

Complaint for flowing lands under the mill act, Gen. Sts. c. 149.

<p>Contract brought for the benefit of Mary M. Titus, on a joint and several bond to the judge of probate executed by Lewis Torrey as principal, and the defendant and Dexter Putnam as sureties, conditioned that Torrey, who had been appointed executor of the will of John Titus, Sen., should faithfully administer the estate of the testator.</p> <p>After the former decision, 110 Mass. 195, the case was sent to an assessor, to ascertain and report to the court the amount of damages sustained by Mary M. Titus, and the value of her interest in the estate sold, at the time of the sale and in the condition in which it then was. On the coming in of the assessor’s report the plaintiff moved that execution should issue for the benefit of Mary M. Titus, for the sum of $1367.72, and his costs; and the defendant filed certain exceptions to the report. The case was reserved by Wells, J., for the consideration and determination of the full court, upon the plaintiff’s motion, the assessor’s report, the defendant’s exceptions thereto, and so much of the report of the case at the former hearing, and of the will and other accompanying documents, as either party deemed material and desired to refer to, and appeared to be as follows :</p> <p>John Titus, Sen., died in 1851, leaving a will, which was duly proved, and by which he devised certain real estate to his son John Titus, Jr., and appointed Torrey executor. Letters testamentary were issued to Torrey, and he gave the bond in suit.</p> <p>The executor, in April, 1853, in pursuance of a license from the Probate Court, sold part of the real estate which had been devised to John Titus, Jr., for the payment of debts and legacies.</p> <p>On January 4, 1854, John Titus, Jr., made a mortgage of all his real and personal estate to James T. Howard, which was fraudulent as to creditors ; and he died in September, 1854, intestate, leaving Mary M. Titus, who was of age, and two other children, his heirs at law.</p> <p>The executor of John Titus, Sen., in December, 1854, in pursuance of a license from the Probate Court, for the payment of debts and legacies, sold to Obadiah Morse some more of the real estate which had been devised to John Titús, Jr., and executed and delivered a deed to the purchaser. Both of these sales were unlawful, the executor having sufficient assets to pay all debts and legacies.</p> <p>This second sale was made for the purpose of defeating the mortgage to Howard and for the benefit of the heirs of John Titus, Jr., except Mary M. Titus, who refused to assent to the transaction or to have anything to do with it. The executor never received anything on this sale, and has never rendered any account. An entry to foreclose the mortgage was made January 25,1855, and on August 31, 1858, it was sold and assigned to Morse, who now claims to hold the land under the foreclosure.</p> <p>The material clauses in the will of John Titus, Sen., are as follows:</p> <p>“ I give to my daughters Betsey Torrey and Seraphina Morse, the sum of five hundred dollars to each of them, to hold to them, their heirs and assigns forever.”</p> <p>“ It is my will that two third parts of the legacies hereinbefore given to my said daughters be paid by my said sons John and Henry, immediately after my decease, and the remaining third part of said legacies to be paid by said John and Henry immediately upon the decease of my said wife, and interest after payable, and hereby charge my real estate with the payment of said legacies.”</p> <p>“ I give, devise and bequeath unto my son John Titus, Jr., one undivided sixth part of my Waters wood lot and one undivided third part of my McKnight lot lying west of and adjoining Manchaug Pond, and the two first following described tracts of land to hold the said two tracts of land and said undivided third part of said McKnight lot and the undivided sixth part of said Waters lot, in trust for the especial use and benefit of nay son Henry and his wife Mary, during their lives and the longest liver of them, and at the decease of the survivor of them. It is my will and I give and devise the same to all the children then living of my said son Henry and begotten by him, the males to take two dollars each as often as the females do one dollar each, at the appraisal of men ; to hold to them, their heirs and assigns forever.”</p> <p>“ I give, devise and bequeath all the rest and residue of my estate, real, personal and mixed, to my son John Titus, Jr., (excepting and reserving one undivided fourth part of all my buildings with the privileges thereto, which it is my will that my son John shall hold in trust for the use and benefit of my son Henry and his wife Mary and their family, during the lives of said Henry and Mary and the survivor of them, and for the use and occupancy of no other person whatsoever.”</p> <p>The assessor ruled that, even if the language of the will did not make the legacies to Betsey Torrey and Seraphina Morse a specific charge upon the real estate devised for the benefit of Henry and John, Jr., equally, and to be paid by them out of said real estate, and not by the executor out of the personal property, yet that one half the amount of them was a charge upon the (.state devised in trust for Henry, there being no other real estate of Henry to which the language of the will could have applied, and that the whole could not be legally taken out of the personal property which went to John Titus, Jr., as residuary legatee.</p> <p>The assessor also found that, at the time of the first sale, there was personal property available for the payment of debts and legacies, (including a note omitted to be accounted for by the executor,) to the amount of $1117.65, and that the debts and legacies at that time were $818.28, taking in this estimate one third of the legacies to be due, one third being payable from the estate of Henry Titus, and one third not till after the death of John Titus’s widow, leaving a balance of $299.42. He also found that at the time of the second sale this balance would have been left, and the legacies and expenses to be paid out of it as follows: One sixth of legacies to Betsey Torrey and Seraphina Morse, (tvo thirds having been paid, and one sixth being payable from the estate of Henry Titus,) with interest from December, 1853, the time of the death of the widow of John Titus, Sen., §177.49, which sum, with a balance of charges of administration, amounted to §227.49; that the sales were unnecessary, and that the damage sustained by Mary M. Titus was the full value of one third of the land of John Titus, Jr., sold at the first sale, and the value of one third of all of his land sold at the second, subject to the mortgage to Howard before mentioned, which the assessor found was given for a legal consideration ; that the total value of the land sold at the second sale, belonging to John Titus, Jr., was §1133.06. This, however, with other property amounting to §1563.80, was subject to the mortgage to Howard of §1912.20, which had been foreclosed; and the assessor estimated the difference between these two sums, viz : §348.40, as the amount of the incumbrance on the land sold; and deducting this from §1133.06, the amount left viz., §784.66, represented the damage to the heirs of John Titus, Jr., and one third of the damage to the interest of Mary M. Titus. This sum, with simple interest, amounted to §568.87. The plaintiff contended that interest should be allowed with annual rests, which claim the assessor disallowed.</p> <p>The defendant contended that the plaintiff had no claim for. damages under the first sale, because John Titus, Jr., was then alive.</p> <p>The assessor also reported that the evidence showed no property of Henry Titus except that left for his benefit by the will, and tended to show that he had no other; and that the share devised in trust for Henry was amply sufficient to pay one half of the legacies to Betsey Torrey and Seraphina Morse.</p> <p>The defendant, for the purpose of proving that there were other debts against the estate of John Titus, Sen., which were paid by his executor, offered as evidence before the assessor certain papers purporting to be bills against said estate, and to have been paid by said executor, and amounting in the aggregate to §150, which were in the possession of the wife of the defendant, who is also the daughter of the executor, and who testified that they were placed in her hands by her father; but this method of proof was objected to by the plaintiff, and was rejected by the assessor.</p> <p>The assessor reported as the whole damage sustained by Mary M. Titus, if interest snail be allowed by the court with annual rests, the sum, including such interest, of $1367.72; and if only simple interest shall be allowed, the sum, including such interest, of $917.43.</p> <p>The defendant filed the following exceptions to the assessor’s report:</p> <p>“1. That in estimating the property of John Titus, Sen., charged with the payment of debts and legacies, that portion specifically devised in trust for his son Henry and wife for life, with remainder to his children, ought not to have been included.</p> <p>“ 2. No interest, either simple or with annual rests, should have been allowed, prior to the date of the writ in this case.</p> <p>“ 3. As the legacies to Seraphina Morse and Betsey Torrey are made chargeable by the will upon the real estate, the personal property is exempted from the payment of any portion of them, and the assessor has erred in marshalling the value of the personal property among the assets for their payment.</p> <p>“ 4. As the assessor has found that all of the real estate belonging to John Titus, Jr., sold at the second sale, was of the value of $1133.06, and was incumbered by a mortgage of $1912.20, he has erred in reducing the amount of that incumbrance by estimating and deducting therefrom the value of other property included in the mortgage, and treating the remainder only as the real incumbrance upon that property.</p> <p>“ 5. In any event, only the value of Henry’s fife estate in the property specifically devised to his children can be marshalled among the assets for the payment of said legacies.”</p>

<p>Tort. The first count alleged in substance that the defendant contriving and intending to cheat and defraud the plaintiff, fraudulently and unlawfully conspired and confederated with Samuel K. Elliott to injure, cheat and defraud the plaintiff by passing to him as collateral security for a loan of money, a false, fraudulent, forged and fictitious promissory note of a certain tenor [setting it forth] ; that Elliott delivered the note to the plaintiff, representing it to be a good and valid note, although the defendant and Elliott well knew it to be false, forged, fictitious and of no value; that the plaintiff relying upon said statement, and believing the note to be a valid security, delivered to Elliott a large sum of money and a promissory note payable to the defendant’s order, and the defendant and Elliott shared the money and note between themselves, and the plaintiff was cheated, injured and defrauded.</p> <p>The second count alleged that the defendant, with intent to defraud the plaintiff, unlawfully and fraudulently conspired with said Elliott to injure, cheat and defraud the plaintiff by means of a certain false, forged and fraudulent promissory note of the tenor set forth in the first count; that the defendant and Elliott pretended to the plaintiff that Elliott wished to borrow of the plaintiff a large sum of money, and would furnish ample security for such loan, and the plaintiff believing and trusting to said pretences agreed to loan to Elliott said money upon good collateral security, and Elliott thereupon made, forged and counterfeited the said note for the purpose of passing the same to the plaintiff as security fdr said pretended loan, and Elliott and the defendant falsely represented to the plaintiff that the note was a good and valid security, well knowing the same to be false, fraudulent and counterfeited, and of no value; that the plaintiff, believing the note to be valid, and trusting to and relying upon the said false and fraudulent representations, the defendant then and there intending that the plaintiff should so trust and rely upon said representations, did loan and deliver to Elliott a large sum of money and a promissory note signed by the defendant, and received as collateral security therefor said false, fraudulent and counterfeited promissory note; that the plaintiff by the' premises was defrauded and injured.</p> <p>There were also two counts for false representations, and one in trover. Trial in the Superior Court, before Allen, J., who after a verdict for the plaintiff allowed a bill of exceptions, in substance as fellows:</p> <p>There was evidence tending to show a combination and conspiracy between the defendant and Elliott as alleged in the first and second counts. The defendant, a broker, introduced evidence tending to show that the plaintiff took as security for a loan of eight hundred dollars to Elliott, due bills of the Weed Sewing Machine Company of the apparent value of seven hundred and seventy dollars from Elliott, who gave his note payable to the plaintiff in thirty days for the loan; that after the loan was made and the transaction fully completed, the plaintiff applied to Elliott for additional security for his loan and received therefor a promissory note purporting to be signed by one John Ward. It was admitted in evidence that the plaintiff retained the said due bills as security for said loan and had them in his possession at the time of the trial but refused to produce them upon the defendant’s request, to be used in evidence. To show the validity of said due bills as security for said loan the defendant offered to show that one Sibley had loaned money to Elliott, taking the same due bills as security therefor, and that at the time of said loan by the plaintiff part of said due bills were held by Sibley as security for loans, but this evidence was rejected by the court.</p> <p>The plaintiff introduced evidence tending to show that the defendant, who was a broker, made certain verbal representation* to the plaintiff concerning the conduct, character, credit, ability and dealings of Elliott to enable Elliott to obtain the loan from the plaintiff, to wit: that Elliott owned western lands, was largely engaged in the sale of sewing machines, and had always promptly paid loans; that the defendant and Sibley had loaned him money; that Elliott had purchased real estate of one Buttrick; that he was desirous of borrowing $800 from the plaintiff, and would furnish ample security; and that the defendant considered Elliott had ample means and was good. The plaintiff testified that he relied upon Elliott’s ability as represented by the defendant in making the loan ; that he believed the due bills to be good when he received them as security for his loan, and agreed to make the loan to Elliott upon these representations of the defendant to him.</p> <p>The defendant requested the court to rule that if the plaintiff relied upon the verbal representations of the defendant, and by reason of said representations agreed to loan and did loan the alleged amount, the action could not be maintained, but the request so to rule was refused as wholly immaterial.</p> <p>Elliott, who was a witness for the plaintiff, testified that the defendant agreed to assist him to take up his note to the plaintiff when it became due and that he intended to pay it, and there was also evidence tending to show that the defendant intended the note should be paid when due.</p> <p>The defendant requested the court to rule that if the jury believed that the defendant intended that Elliott’s note to the plaintiff should be paid when due they must find for the defendant, although the defendant and Elliott combined together to obtain the alleged loan, but the presiding judge declined so to rule.</p> <p>The evidence was conflicting as to whether or not the Ward note passed to the plaintiff at the time of the delivery of the money loaned by the plaintiff to Elliott, or was taken by the plaintiff as additional security after the loan was made. It was admitted that the Ward note was forged by Elliott, and the evidence was conflicting as to whether the defendant knew said note to be a forgery; and it was also admitted that the defendant represented to the plaintiff that he knew nothing about the forged note or John Ward, the apparent maker of the same, which was the only representation as to the forged note sought to be proved against the defendant.</p> <p>The defendant requested the court to rule that if the jury are satisfied that the defendant made false representations to the plaintiff concerning his knowledge of the Ward note and that the defendant was so situated at the time said note was made and passed to the plaintiff as to have had reasonable cause to believe said note was forged, and that the representations made by him to the plaintiff were false, yet if he did not absolutely know such note was forged or such representations false when made, the jury should find for the defendant; but this request was not granted.</p> <p>There was also evidence tending to show that the plaintiff had received a large amount of western land from Elliott in payment of said loan, since the date of the writ. The defendant put in evidence a certain receipt showing the amount of money to be paid by the plaintiff to Elliott for certain western land, the deed )f which was sent to the plaintiff with the receipt, which receipt was admitted in evidence. The defendant then offered as evi dence to prove the value of the lands received by the plaintiff and the responsibility of Elliott, the proof of certain deeds sent by express to the plaintiff by Elliott’s agent, which deeds were found in the express office directed to the plaintiff, two of which deeds were of previous sales between the parties owning the land prior to the conveyance to the plaintiff and one of which was to the plaintiff. In the deed to the plaintiff the name of the grantee was left in blank, but the deed was intended for the plaintiff in the same manner as other deeds which the plaintiff admitted he had in his possession from Elliott; but said, deed to the plaintiff had not been delivered and he had returned it to the express office unaccepted, and the plaintiff testified that he refused to accept it. In said deeds similar western lands adjacent to the lands already received by the plaintiff were described and the considerations named ; but proof of the deeds was rejected. The defendant also offered to prove what lands in the same range and county as those purchased by the plaintiff of Elliott were worth, which was refused. The plaintiff admitted that he had received fifteen hundred acres of western lands from Elliott and had the deeds thereof in his possession but refused to produce them at the trial. The plaintiff denied that the land he had received was in payment of the loan to Elliott, but admitted that he had received the land in question since said loan to Elliott, which lands Elliott had the right to convey by paying a certain amount per acre, the plaintiff paying the amount required to be paid in order to obtain a conveyance, the amount so paid by plaintiff being but a small part of and the balance of the original contract price of said lands. The plaintiff contended that the amount paid by him for said lands as aforesaid was the full value of said lands, which was controverted by the defendant.</p> <p>The judge instructed the jury that if the lands were received in payment for the loan the plaintiff could not recover; and if he had received his pay for any part of said loan through said lands, whatever he had received was to be deducted from his damages. The judge also instructed the jury that in order to find for the plaintiff, it was necessary to find that the forged note was delivered at the time when the loan was effected. The jury found for the plaintiff, and assessed damages for the full amount of the note given as security, and, in answer to a question of the judge stated that they found a conspiracy on the first and second counts. The defendant alleged exceptions.</p>

<p>Contract against Henry H. Chamberlin, John M. Barker and Warren D. Hobbs, to recover the rent of certain premises situated in the town of Sutton, leased by the plaintiff to the defendants by two leases under seal, and for damages resulting from the alleged breach of certain covenants therein. By the first lease, which was dated January 17, 1865, the plaintiff leased to the defendants “ a certain factory building and water privilege with all the appurtenances thereto belonging for the term of five years from April 1,1865. The lessees covenanted, among other things, “ to quit and deliver up the premises and all future erections and additions to or upon the same, to the lessor or his assigns peaceably and quietly, at the end of the term, in as good order and condition (reasonable use and wearing thereof, and damages by fire or other casualties excepted) as the same now are or may be put into by the lessor, or those having his estate in the premises.” The lessor agreed to sell to the defendants, “ at any time within two years from date, all the property known as the Sutton Woollen Manufacturing Establishment” for a specified sum.</p> <p>By the second lease, which was dated April 1, 1865, the plaintiff leased to the defendants for five years “ all the land and buildings as they are upon the premises known as the Sutton Woollen Mills Estate” in Sutton, “meaning and intending to demise and let all that portion of the estate ” not let to the defendants by the first lease. The lessees covenanted to deliver up the premises at the end of the term in as good order and condition “ as the same now are, or may be put into by the lessor,” “ and not make or suffer any waste thereof.”</p> <p>At the trial in the Superior Court, before Bacon, J., the report of an auditor was the only evidence offered by the plaintiff. None of the findings .of the auditor were controverted except the following:</p> <p>The defendants offered evidence tending to show that the defendant Barker’s name was signed to the first lease by Warren D. Hobbs, one of the other defendants, not in the presence of the said Barker, and without authority in writing from said Barker, and that Barker never personally signed the same; and they requested the judge to instruct the jury that the plaintiff could not recover under that lease unless Hobbs had authority from Barker under seal to execute the same, or unless Barker was present at the time it was so executed. This ruling the judge refused to give, but ruled that even if Hobbs had no authority to sign Barker’s name, yet Barker, having entered under the lease, having afterwards taken the second lease of the other premises, and having executed that himself, was estopped from showing that Hobbs was not authorized to sign his name.</p> <p>The auditor found that after the first lease was executed, but prior to April 1, 1865, the defendants set the glass which was broken in the mill and factory houses and effected other repairs therein, in consideration of being permitted by the plaintiff to occupy part of the mill and one of the factory houses free of rent from the date of said lease to April 1, 1865; and that these repahs were regarded by the parties as if made by the lessor, and that the covenants in the leases referred to the condition of the leased property as it stood on April 1, 1865 ; and that when the defendants took possession of the premises demised in the first lease, the windows were in good condition in the buildings named therein and the panes of glass properly set therein, but that at the expiration of said lease several of the windows and a large quantity of the glass were broken by some party other than the plaintiff, and the damages sustained by the plaintiff in the premises the auditor found to be seventy-five dollars.</p> <p>The auditor further found that the premises were used by the defendants from April 1, 1865, until 1866, when they were changed to a cotton mill and afterwards used as such, the machinery used therein was operated by water power in the usual manner; that in 1866 the defendants placed in the mill additional machinery consisting of counter-shafting, pulleys, hangers and belts; the counter-shaft was belted from the main shaft, and with the pulleys and hangers appertaining thereto, was fastened to the timbers or floors of the building by bolts and screws, and waa connected to the machines by belts. All this machinety was purchased for and adapted to the use of the mill as a cotton mill, and all of it could be detached and removed from the building with out substantial injury thereto or to the machines. On December 1, 1868, the defendants ceased to occupy the premises, and E. Fisher & Sons occupied the same as lessees of the defendants. The plaintiff assented to this assignment by writing under seal. In 1869, E. Fisher & Sons removed from the premises the said counter-shafting, pulleys and hangers to the value of $220, and the aforesaid belts to the value of $50, and converted them to their own use.</p> <p>The defendants contended upon the above facts, that the plaintiff could not recover for the glass, counter-shafting, pulleys, hangers and belts, but the judge ruled that he could.</p> <p>It further appeared, from the auditor’s report, that the defendants, during their occupation of the mill, introduced appliances for heating it by steam, consisting of a portable boiler for generating steam, set horizontally on a flat stone, with cemented brick and stone set on each side of it, supplied with water by a force pump screwed to the floor, and operated by the wheel of the factory; the steam being conveyed over the building by three rows of steam piping extending horizontally along two sides and one end of three rooms and through the ell, and having the usual joints and elbows; these pipes passed through the floors of the factory from one story to another, and were supported by hooks screwed to the building, and when the posts in the building came in their way, holes were bored therein, through which the pipes ran. While Fisher & Sons were in occupation, a new boiler was put in which was set upright on the ground near where the old boiler had stood, and the connection of the pipes was changed to the new boiler. Both boilers were connected with the chimney by flues. In September, 1869, Fisher & Sons removed said steam pipes, amounting to 1500 feet, with the joints and elbows and other fittings belonging thereto, and converted them to their own use to the value of $405. The defendants contended, upon the above facts, that the plaintiff could not recover this item.</p> <p>It further appeared that at the commencement of the leases a machine called Daniels’s wood-cutting machine stood on the premises described in the first lease, outside the mill and eighteen inches therefrom. This machine was movable, weighed about 300 pounds, and was used for cutting up brush and wood. It was operated by a belt running from the main shaft of the factory to a counter-shaft, and thence to the machine. There was no agreement between the parties as to the use of this machine, unless the same passed by the first lease; but when the defendants took possession of the premises under this lease, they contin ued to use the machine, as it had before been used, and as above stated, until it was broken and disabled by the defendants, and became of but little value, and was not afterwards repaired by them. The table on which the machine stood remained on the premises at the expiration of the lease. The damage to the machine was $55. The defendants contended, upon the above facts, that the plaintiff could not recover for this item.</p> <p>The defendants asked the' court to rule that upon the above facts the plaintiff was not entitled to recover in this action, which ruling the judge refused to give, and instructed the jury that the plaintiff was entitled to recover the several amounts found by the auditor as in his report stated.</p> <p>The jury thereupon returned a verdict for the plaintiff for the sum of $1760, and the questions of law were, by consent of parties, reported for the consideration of this court. “ If the foregoing rulings are correct, judgment is to be entered for the amount of the verdict, less any of the foregoing sums which the court may rule he is not entitled to recover, if any, with interest thereon from the time from which interest lawfully runs ; if otherwise, the verdict is to be set aside and a new trial granted ”</p> <p>Part only of each argument is reported.</p>

Writ of entry against Lewis A. Cook and Daniel A. Cook, counting upon the plaintiff’s title in fee and in mortgage of a farm of two hundred and seventy-five acres. The defendants severally pleaded nul disseisin.

Petition under the Gen. Sts. c. 43, § 73, for a jury to assess the damages occasioned'by the laying out of a private way in the defendant town, over land of the petitioner. The way was laid out on March 15, 1862, by the selectmen of Oxford, who awarded the petitioner $30 as damages. The petitioner in due time applied to the county commissioners for a jury to assess the damages.

<p>A testator bequeathed a sum of money to a religious society in trust to invest and apply “ the interest thereon and increase thereof ” “ towards defraying the expenses of maintaining a minister and public worship ” in a mission chapel devised by the will to the same trustees. The will provided that the rent of certain real estate should be applied “ in keeping the premises,” which included the chapel, “ in repair, in paying the contingent expenses, in conducting and managing the same,” and “ the surplus, if any, towards the support of the minister.” It further provided that the principal of the fund might be applied to rebuilding the chapel if destroyed. The trustees applied a small part of the income of the trust fund to the payment of the sexton, and for fuel used in the chapel. Held, that such use of the income of the fund was not a misapplication of it.</p>

Contract upon a judgment of the Supreme Court of the state of New York. At the trial before Gray, C. J., the plaintiff introduced as evidence of the judgment declared on an exemplification of it which was partly printed and partly in writing. The defendant objected that the certificate of the clerk appended to the exemplification applied to the written part only.

<p>A 1 ate of a town to refund money paid to its agent on a condition, and by him wrongfully delivered to the town treasurer, is an express promise for a valuable consideration, and is competent evidence in an action against the town for money had and received.</p> <p>A town, into whose treasury money belonging to a person has been wrongfully paid by a town agent, to whom it was given by the person on a condition, may lawfully pass a vote to repay the money, and such a vote is not revocable by a subsequent vote.</p> <p>Evidence that A. deposited money with a member of a committee, appointed at a town meeting to investigate a claim of the town against A., to hold until such time as A. made an explanation of the matter to the town; that the committee paid the money into the treasury of the town; and that the town afterwards voted to repay it; is sufficient to sustain an action for money had and received brought by A. against the town, within six years from the passage of said vote.</p> <p>If, in an action against a town to recover money deposited with its agent on a condition, and by him wrongfully paid to the town treasurer, it appears that the town at one time voted to repay said money, evidence is not admissible that subsequently the town passed another vote rescinding the first.</p> <p>A town having a claim against A. appointed a committee to whom the matter was referred. A. paid the money to the committee, and in an action by him to recover the money against the town, put in the report of the committee for the purpose of showing the receipt of the money by the town. The report stated that A. had paid the money in settlement of the claim, and that the committee had paid it into the town treasury. Held, that evidence of what was said between A. and the committee at the time the money was paid tending to show that the money was not in payment of the claim, was admissible.</p> <p>If A. demand payment of a sum of money from B., and B. gives him the sum demanded, stating that he does so upon certain conditions, and A. receives the money and remains silent, he will be presumed to have acquiesced in the conditions.</p>

<p>A declaration which alleges that a nuisance has been created and maintained by discharging through a box drain filthy and polluted water upon the land of A. is supported by proof that the waters of a natural stream have been polluted, and by means of a box drain placed partly in the watercourse and partly upon the land of A., discharged upon said land; and A. is not deprived of his remedy for the nuisance by the fact that he has a right of action for the pollution and diversion of the natural stream.</p> <p>In an action against a manufacturing corporation for a nuisance, a statement of its superintendent that the nuisance existed and would be remedied, and that “ he would not have it around his place for $500,” is competent evidence against the corporation.</p>

<p>The exemption of the real estate of charitable institutions from taxation, by the Gen. Sts. c. 11, § 5, cl. 3, is only from taxation imposed for the general purposes of government, and does not extend to taxation for local improvement's under the St. of 1865, c. 159, or the St. of 1866, c. 174.</p> <p>When the owner of an estate upon which a betterment has been assessed by the mayor and aldermen under the St. of 1865, c. 159, applies for a jury under § 8, the proceeding is in the nature of an application for an abatement of the tax, and the assessment by the jury is to be made as of the time when it was made by the mayor and aldermen, without regard to interest since that time.</p>

<p>The exemption of the real estate of incorporated agricultural societies from taxation by the Gen. Sts. c. 11, § 5, cl. 9, is only from taxation imposed for the general public purposes of government, and does not apply to taxation for local improvements under the St. of 1867, c. 106, § 1.</p> <p>The misnomer of the owner of real estate in laying an assessment thereon is no ground for quashing the proceedings on certiorari unless it is shown that his rights were prejudiced thereby.</p> <p>A petition for a writ of certiorari to quash the proceedings by which a betterment tax had been assessed upon the real estate of an incorporated agricultural society alleged that the respondents had designedly omitted to assess any part of the expenditures for which the tax was laid upon houses of religious worship. The answer denied that houses of religious worship were designedly omitted from said assessment, but admitted that they were not included therein. The case was reserved on the petition, answer and a demurrer thereto. Held, that it did not appear that there were any houses of religious worship so situated as to be liable to the assessment.</p>

<p>Land of a county used for county purposes is exempt from all taxation, whether imposed for public purposes or for local improvements of a public nature.</p>

<p>In a proceeding under the Gen. Sts. c. 150, to enforce a mechanic’s lien, interest, even if not claimed in the certificate filed with the town clerk, nor in the petition, is to he computed upon the debt from the filing of the petition to the time of judgment, and upon the judgment to the time of satisfaction out of the proceeds of the Bale of the estate in execution of the order of the court.</p>

<p>Complaint under the bastardy act, Gen. Sts. c. 72. Trial in the Superior Court, before Brigham, C. J., who allowed a bill of exceptions in substance as follows:</p> <p>At October term, 1873, of the Superior Court, the complainant entered her action, by filing a copy of her complaint, warrant, and the proceedings before a justice of the peace. At February term, 1874, the complainant filed a formal complaint,’ against the objection of the defendant. At June term, 1874, the defendant filed a motion to dismiss the case on the following grounds:</p> <p>1. Because the complainant did not file a supplementary or formal complaint in the Superior Court within the time required by the statute, and not until the second term after the action was entered.</p> <p>2. Because the court, when it allowed the complainant to file her formal complaint, had no authority so to do, and no jurisdiction therein, as there was no case in court, except by name.</p> <p>This motion was overruled and the case proceeded to trial, and the complainant was called as the first witness, and was allowed to testify, under objection, that she in the time of her travail accused the .defendant of being the father of her child. The defendant alleged exceptions.</p>

Petition to the county commissioners for a jury to assess damages for the taking of land by the respondent to lay out a town way by widening and straightening a private way extending from Main to MonteHo street in North Bridgewater.

Tort for breaking and entering the plaintiff’s close in Taunton. Trial in the Superior Court before Allen, J., who allowed a bill of exceptions in substance as follows : It appeared in evidence that Oliver Danforth formerly owned a large tract of land in Taunton, of which the tracts now owned by the plaintiff and defendant were a part.

Contract for money had and received. The case was submitted to the Superior Court, and to this court on appeal, on an agreed statement of facts, in substance as follows: Elijah G. Hammond brought an action in the Police Court of ¡New Bedford, May 5,1873, against Leonard, the present plaintiff, in which suit the present defendant was duly summoned as trustee, under the name of the “ Five Cents Savings Bank.” On May 12, 1873, Hammond recovered judgment, against Leonard, for…

<p>Contract to recover the sum of $3198.63, with interest, alleged to be due from the defendant to the plaintiff on the following agreement signed by the defendant:</p> <p>“In consideration of the payment to me of the sum of five thousand dollars in lawful money of the United States by J. Prichard, trustee for the bondholders of the Vermont Iron Com' pony, in settlement of my claim for an equal amount (less interest) against the said company, I hereby promise and agree that in case a certain number of mortgage bonds issued by said company, amounting in all to thirty thousand dollars, becoming due and payable on the twelfth day of April next, are not paid by said company at maturity, and the property, real and personal, mortgaged to said J. Prichard, trustee, as security for the full payment of said bonds and interest, prove insufficient, after paying all lawful charges and expenses, to satisfy and pay said bonds in full, such deficiency from this or any other cause, to the extent of one seventh part of the whole amount of such deficiency, shall be paid by me to said J. Prichard, trustee, as soon as such deficiency shall be ascertained.”</p> <p>The amended declaration alleged the incorporation in Vermont of the Vermont Iron Company ; that it authorized the defendant, its president, by a vote passed March 9,1866, to issue bonds of the corporation to the amount of $30,000, and,to secure the payment thereof, conveyed all its real and personal property in.mortgage to the plaintiff as trustee ; that the bonds were issued and were not paid when due; and that the plaintiff as trustee instituted a suit to foreclose the mortgage in a court of chancery in Vermont; that the case was carried to the Supreme Court of Vermont, which court decided that the mortgage and bonds were valid, that an account should be taken, and that the plaintiff should have a decree of foreclosure ; that a master was appointed to take the account; that the parties to the suit appeared and presented their accounts, and the master made his report to the court, stating that there was due on July 12,1870, on said bonds, as principal and interest, the sum of $28,692.10, and that the sum of $2730.36 was due the plaintiff for services and money expended in carrying on said trust estate above what he had received from avails of the trust property.</p> <p>The amended declaration further alleged that on September 22, 1870, the court of chancery decreed that the said report be accepted, and that the property mortgaged be sold at auction under the direction of a master in chancery, unless before the sale the Vermont Iron Company should pay the plaintiff $31,422.46, with interest and costs; that the master should execute a deed t<r the purchaser, and that the sale should bar the equity of redemptian of the company and of all persons claiming under it; that on October 13, 1870, the master sold the mortgaged property to the plaintiff for $10,000, and executed a deed of it to him; that on October 14, 1870, the master presented his report of the sale to the court of chancery, and his report was confirmed; that the defendant Farrar was one of the principal defendants in the cause in chancery and in the Supreme Court, and employed counsel to defend the same, and was actually and actively engaged in the defence thereof; that on October 13, 1870, the deficiency in the assets of the said company to pay the bonds with interest amounted to $22,357.25; and the defendant owed the plaintiff one seventh part thereof, to wit, $3198.63.</p> <p>The defendant’s answer denied each and every allegation in the amended declaration, and alleged that the agreement if made was without consideration; that the defendant, at the time the agreement was said to be made, held property of the Vermont Iron Company to the amount of $10,000 as collateral security for $5000 lent by him to the company; that in consideration of his giving up this property the plaintiff paid this $5000 less the interest; that the plaintiff agreed to apply the avails of this property on the bonds of the company. The answer further denied that the defendant was a party to the litigation in Vermont, and averred that he had no notice thereof to appear and defend the same, and that he did not appear or employ counsel therein and had no knowledge of the proceedings in the cause ; that he did not appear before the master and was not notified to appear. The answer then proceeded as follows :</p> <p>“ That one Fairfield was .acting as the agent of the said Vermont Iron Company in collecting their testimony to prove their account against the said Prichard, trustee, and to disprove his account, and otherwise assisting in the preparation and trial of the said case ; and that in the absence of the counsel, or of any of the officers of the said company, and before the said matter of accounting had been heard, except that perhaps the said Prichard, and one other witness in his behalf, had been examined in chief but had not been cross-examined, the said Prichard, with the intent to prevent the said accounts from being examined by the said master, and thereby defraud the said company, did, unbeknown to said company, its officers or attorneys, bargain with the said Fairfield, and for some considerations, as this defendant is informed and believes, paid to said Fairfield, and in other ways prevailed upon the said Fairfield, and the said Fairfield did agree in the absence of said company’s officers and attorneys, and without any authority therefor, that no more testimony should be heard, and that the accounts of the said company should not be put in, and no arguments should be heard; but that the master should make his report upon the matter as it then stood upon the testimony of the said Prichard and his witness uncross-examined, and that they reported the said agreement to the master, and closed the hearing, and dispersed before the counsel who had charge of the case for the company originally arrived, and the counsel for the said Prichard having agreed to hold the case open until he could arrive; and that the master, without knowledge of the manner of the agreement, made his report, if he made one at all, in accordance with it; whereby the said company, without any fault on its part, was deprived of its rights in the premises, and of being heard, and of presenting its account at all to the master, or having it in any way considered.</p> <p>“ And the defendant further says, that the said company had a large account against the said Prichard, trustee, and much larger than the amount due on the said mortgage bonds and all accounts which said trustee had against said company which they intended to present and have allowed, but were prevented by the acts of said Prichard; that the said plaintiff had taken the iron and property which this defendant so had as security; and the said company had delivered to him large amounts of other property to be applied upon said mortgage bonds, which was not included in the said mortgage ; all of which property the said Prichard had, and has not accounted for the same; and the said Prichard also took possession of all the property of the said company, and its ores and works, and deprived the company of the use of the same; but did have the use thereof himself as said trustee for a long time, and has not accounted for the use thereof, and has disposed of large amounts of the property of the said company, and has wasted and destroyed large amounts of the property of the said company, which he has so in possession, by his carelessness and negligence in the care of the same, and suffered the same which was not wasted or destroyed or disposed of to be run down and depreciated in value; all of which he should render an account of and apply on the said indebtedness of the said company to him as trustee as between this plaintiff and defendant, and before this defendant can be made liable in this suit.</p> <p>“ And the defendant further says, if the said mortgaged property was sold as alleged in said declaration, that it was sold at very much less than its actual value; that it had been in the possession of the said Prichard for a long time before the sale, and up to the time of the sale; and for the purpose of purchasing the same himself at very much less than its value, he had permitted the said property to become run down, out of repair, and not in proper condition to bring its value, and thereby did bid the property off himself, and now has the same ; which said property then was and now is of sufficient value to pay and satisfy the full amount that said pretended report found due the said Prichard, trustee as aforesaid, from said company; and that said Prichard, trustee, should account for the full value of said property; and there is and was no deficiency of property to pay the said claims in justice and equity or law as contemplated in the said supposed contract declared upon; and this defendant does not owe the plaintiff anything.”</p> <p>Trial before Wells, J., who reported the case to the full court as follows:</p> <p>“ The incorporation of the Vermont Iron Company, under an act of the legislature of Vermont, the execution of the mortgages and mortgage bonds or notes, and of the agreement declared on, and the demand by the plaintiff upon the defendant before action brought, were not denied; and it appeared that the defendant, from January, 1866, until after the termination of the litigation in Vermont referred to in the declaration and answer, was a stockholder (owning 1000 shares) and director and the president of said company.</p> <p>“ The plaintiff put in evidence the record of the said proceedings in the courts of Vermont, consisting of a suit in equity for the foreclosure of said mortgage, and a cross-bill; a decree being rendered declaring said mortgage valid, and ordering an account of the trust under the same to be taken by a master ; and after-wards confirming the report of the master, and ordering a sale of the property; and finally confirming said sale.</p> <p>“ The defendant, Farrar, was not made a party to these proceedings, either by the form of the proceedings or by any process or notice issued to him to appear ; and he did not become a party to them or take any action therein in his own name. George A. Fairfield was appointed as agent to act for the corporation in the defence of the suit, at a meeting of the directors at which Farrar was not present; but he knew of the intention to appoint Fair-field, and acquiesced therein.</p> <p>“ After the commencement of the litigation in Vermont, an assessment of twenty cents a share was made upon each share of the capital stock of the company (30,000 shares in all) for the purpose of providing funds for carrying on the litigation ; but, no money being paid in on this assessment, an arrangement was made by which certain stockholders associated together to defend said suit in the name of the corporation, for the benefit of such stockholders as should contribute to the expense thereof. Farrar was knowing to, acquiesced in and participated in this arrangement, and contributed money towards the same, amounting to one hundred and thirty-eight dollars ; the whole, amount so contributed being about $900, which was received by the treasurer and paid over by him partly to the agent, Fairfield, who continued to have charge of said litigation, and partly to the legal counsel employed to conduct the litigation, lío meeting of the corporation or of the directors was held after this arrangement was made.</p> <p>“ Upon these facts, the plaintiff contended that the defendant was bound in the present suit by the decree rendered in Vermont, settling the accounts of the plaintiff as trustee, fixing the amount due on the mortgage notes or bonds, and confirming the sale of the property; and thus showing the insufficiency of the mortgaged property to satisfy and pay said notes or bonds, and the deficiency which existed; one seventh part of which he claims to recover.</p> <p>“ The defendant denied the conclusiveness and competency of the decree for this purpose, and contended that the plaintiff must show by other evidence that the property was insufficient to pay said bonds. The defendant also relied on the averments contained in the answer, of other property received by Prichard in part payment of said bonds or notes, not contained in said mort gages, and not applied, &c.; and also the averments in said answer as to collusion or fraud in the litigation in Vermont. Ho testimony was offered at the hearing in support of these averments ; but if, in the opinion of the whole court, the decree in Vermont is conclusive; and if the defendant cannot be allowed to introduce evidence in support of said averments, then judgment is to be rendered for the plaintiff accordingly for the amount claimed. Otherwise, the case is to be sent to an assessor, with such directions as to the mode of making up the account and as to the effect, if any, to be given to the Vermont decree, as the court may deem proper. If the question of collusion or of the purchase of said property by the plaintiff are open and competent to affect the result, the facts relating thereto are to be heard and found by said assessor.” The record of the proceedings in Vermont were made part of the report.</p>

<p>Contract by a vendee of real estate against the vendor to recover damages for non-performance of a contract of sale. The case was submitted to the Superior Court and on appeal to this court on an agreed statement of facts in substance as follows :</p> <p>The defendant, the assignee of a mortgage on an estate, No. 23 Bine Street, Boston, on December 31, 1870, sold the estate at auction, for an alleged breach of condition, to the plaintiff, by his agents, G. F. Hunting and C. D. Leavitt, auctioneers, as stated in the following agreements in writing: “ December 31,1870. We hereby acknowledge that Lawrence J. Riley has been this day declared the highest bidder and purchaser of house 23 Pine Street, for the sum of $3850, and that he has paid into our hands the sum of $300, as a deposit, and in part payment of the purchase money; and we hereby agree that the vendor shall in all respects fulfil the conditions of sale. Vendor’s name, Geo. B. Farnsworth, Mortgagee. G. F. Hunting & Leavitt, Auctioneers.” “December 31, 1870. I hereby acknowledge that I have purchased by public auction the above described property, 23 Pine Street, for the sum of $3850, and have paid into the hands of G. F. Hunting & Leavitt, Auctioneers, the sum of $300 as a deposit, and in part payment of the purchase money, and I hereby agree to pay the remaining sum of $3850 into the vendor, on or before the 15th day of January, and in all respects, on my part, to fulfil the conditions of sale. Witness my hand this 31st day of December, 1870. Lawrence J. Riley.”</p> <p>The plaintiff and the defendant were both at the sale, and the plaintiff made a payment of $300 at the time he received the contract ; he attended the sale at the request of the auctioneer, and did not see the advertisement until some time after the sale. The terms of sale were that the purchaser should pay three hundred dollars at the time of the sale, and the balance on or before January 15, 1871, when the deed was to be given.</p> <p>The owners of the equity in the estate, Francis Eoche and Daniel A. Finnegan, brought a bill in equity against the defendant and the plaintiff, on January 2,1871, in the Supreme Judicial Court, to redeem said estate from the mortgage thereon held by the defendant, and to restrain the defendant from conveying and the plaintiff from receiving a conveyance of the same in pursuance of said sale; and an injunction was granted as prayed for, which was served on these parties on January 3, before any conveyance was made, and while the plaintiff Eiley was having the title examined. The plaintiff and the defendant made answers to said bill, and were heard on the trial of the case, and the court finally decreed therein as follows : “ That plaintiffs may redeem on payment of sum due on the mortgage ; plaintiffs to pay costs to time of appeal to both defendants, and to recover costs against Farnsworth since that time.” The rescript, in its brief statement of the grounds and reasons of the decision, contained the following language, viz.: “ The advertisement of the sale was insufficient.” The opinion of the court as reported in 106 Mass. 509, 513, may be referred to at the hearing on these facts.</p> <p>The Supreme Court, on the application of the plaintiff, so modified the injunction as to allow the plaintiff to make tender to the defendant of the balance of the purchase money for said estate, and to demand a conveyance thereof; and on January 14 he made a tender of said balance, and demanded a deed of said estate in pursuance of said sale and said contract; but the tender was declined and a conveyance refused, bic conveyance was ever made by the defendant to the plaintiff. On September 23, 1871, after this action was commenced, the defendant tendered to the attorney of the plaintiff $305.50 in settlement of the suit for debt and costs, and the attorney refused to receive it in full; and on September 26, the defendant made a further tender of $12.75, which sums were received by said attorney without prejudice to the rights of the plaintiff to recover more in the suit at law. These sums were for the $300 paid by the plaintiff at the time of purchase, together with interest thereon and costs to time of tender.</p> <p>The plaintiff never saw the mortgage till long after the auction. A default had been made in the performance of the condition. The proceedings or records of the Supreme Judicial Court in the case of Roche v. Farnsworth, and the advertisement, given in 106 Mass. 511, may be referred to.</p> <p>“ If, on these facts, the plaintiff is entitled to recover damages of the defendant for breach of said contract of sale, the case is to stand for assessment of damages before the Superior Court, trial by jury being waived; otherwise judgment is to be entered for the defendant.”</p> <p>On the above facts the Superior Court ordered judgment for the plaintiff, and the defendant appealed.</p>

<p>Bill in equity, filed June 18, 1878, against Isaac H. Pickering and his wife, Sarah A., to compel the reconveyance of a parcel of land on Summer Street, Boston, and also the repayment of a sum of money obtained by the defendants from the city of Boston for land taken to widen Summer Street. The bill alleged fraud on the part of the defendant Isaac, and also that if there was no fraud the prayer of the bill should be granted on the ground of mutual mistake.</p> <p>The case was heard on oral evidence before Endicott, J., who ordered a decree for the plaintiff, and the defendants appealed. The case came before this court on the pleadings and a report of the evidence. There appeared to be no controversy in regard to the following facts:</p> <p>On January 2,1873, the plaintiff owned on Summer Street, Boston, a lot of land with the remains of a building thereon which had been destroyed by the great fire of the preceding November; and on that day the city passed an order taking 424 feet of the land to widen the street, and awarded her as damages at the rate of $20 a square foot for the land, and $500 for the buildings taken, amounting in all to $8980. There was then remaining 127 square feet. In February, 1873, the plaintiff agreed to sell the land to Isaac, and at his request, on the 12th of the month, executed a bond to the defendant Sarah for the conveyance to her, within two months, of the entire lot on Summer Street, for $13 a square foot, “ subject to any change in the streets the city may make.” On the next day the parties executed a supplementary agreement by which it was provided “ that in the event of the city taking any part of said land for the purpose of widening or changing streets, within the period named in said bond for a deed, and'before the deed be given,” Sarah should receive the damages therefor from the city. On February 25,1873, the plaintiff gave to Isaac the following order, signed by her, on the city treasurer: “Please pay to Isaac H. Pickering $8980, the same being the amount awarded to me by the city for land taken to widen Summer Street by resolve of the board of street commissioners passed January 2,1873; ” and on the next day executed a deed to the city of the land taken and a release of all claim to damages, the consideration stated in the deed being $8980. The order and the deed were delivered to the city by Isaac, and on March 4, 1873, he was paid by the city the sum of $8980. After this and before April 15, following, Isaac caused a deed from the plaintiff to the defendant Sarah of the remaining land to be drawn, and called upon the plaintiff to execute it, tendering her at the same time the amount due for the entire lot at $13 a foot. The plaintiff at first refused to execute this deed, but subsequently notified the defendants that she was ready to do so, and on April 15,1873, executed and delivered the deed to the defendant Sarah, and received the price agreed upon $7008. On the same day she brought an action of tort against the defendants for the same cause of action set forth in the bill in this case; but subsequently discontinued the action. At the time the bond and agreement, dated February 12,1873, were made, the plaintiff was ignorant that the city had then taken the land. When the deed of April 15,1873, was executed, she knew the facts and had taken legal advice as to her rights and obligations.</p> <p>The principal questions of fact in controversy were whether the plaintiff, at the time she signed the order and deed to the city, knew that the city had taken the land before the bond and agreement were given; and whether the defendant Isaac knew that the city had taken the land when the bond and the agreement were given. The defendant Isaac contended that at the time the agreement of sale was made, and when the bond was executed, it was supposed by him and the plaintiff that the city would take the land, but that it was not known what would be paid, and that he bought it on speculation; and that the plaintiff was desirous of selling at the price agreed on in order to be sure of getting so much for the land.</p>

<p>Bill in equity for the specific performance of a written agreement by which the defendant agreed to purchase a farm in Leicester, and the plaintiff agreed to sell and convey it to him “ by a good and sufficient warranty deed, conveying a good and clear title to the same in fee simple, free from all incumbrances.” The only defence set up in the answer was that the defendant was not satisfied that the plaintiff took an estate in fee by the will of her husband, which was the only source of her title, and the whole of which, after a direction to pay debts and funeral charges, was as follows :</p> <p>“ I give and bequeath all the remainder of my estate, both real and personal, to my beloved wife, Cynthia Lyon, to her sole and separate use and benefit forever; and at her decease, if there should be any part thereof left, it is my wish and desire that it should be disposed of as follows, namely:</p> <p>“ First. I give and bequeath to my son, Frederick A. Lyon, five hundred dollars.</p> <p>“ Second. The remainder, if there should be anything left after paying the above legacy, I direct that it shall be equally divided between my three children, namely, Frederick A. Lyon, Hannah S. Thurston, wife of Lyman D. Thurston, and Elizabeth E. Marsh, wife of Charles C. Marsh, or their heirs forever.</p> <p>“ And I hereby appoint my wife, Cynthia Lyon, and my son, Frederick A. Lyon, of said Leicester, to be the executors of this my last will and testament, authorizing them to sell and dispose of and convey all of my estate in such a manner as in their opinion they shall deem expedient and proper.”</p> <p>The cause was heard on bill and answer by Gray, G. J., who entered a'decree for the plaintiff, and the defendant appealed to the full court.</p>

<p>Tort for obstructing a right of way by a fence. The case was submitted to the Superior Court, and, on appeal, to this court, on a statement of facts in substance as follows:</p> <p>In 1852, the plaintiff was the owner of a lot of land in Bridge water, in the rear of a lot of land owned by the Trinitarian Congregational Church. On the church lot a church was built in 1836, the front line of which was fifty-nine and a half feet from the highway, and there was a space between the southerly line of the church and the adjoining lot owned by Daniel Mitchell, where the persons attending church had been accustomed to hitch their horses, and over which the plaintiff and his tenants passed and repassed. The horse sheds on the church lot in 1852 were in the rear of the church, and extended to the westerly line of the lot, and from the north side to within the length of an ordinary pair of bars of the southerly line of said lot.</p> <p>On October 30, 1852, the plaintiff and the church society executed an agreement under seal, the material portions of which are as follows:</p> <p>“ The said Nahum Washburn hereby grants and conveys to said Trinitarian Congregational Church, their successors and assigns, the right and privilege of occupying and improving, by placing and keeping horse sheds thereon, and allowing horses and carriages to stand upon the same, a piece of land adjoining the land now owned by said corporation, fifty-two feet in length, and eighteen feet in width at the northerly end, and seventeen feet in width at the southerly end, the southerly end of said piece of land being on a line ranging with the southerly side of the meetinghouse of said corporation, and extending northerly fifty-two feet in the line of their land. And said Washburn hereby agrees that said corporation may erect and keep posts within two feet of the southerly line of their land adjoining the land of Daniel Mitchell, and allow horses, with or without carriages attached, to be hitched thereto at all times. Provided that there shall always be a sufficient unobstructed passage way from his land to the highway on the southerly side of their meeting-house.”</p> <p>“ And the said Trinitarian Congregational Church in Bridge-water, in their corporate capacity, in consideration aforesaid, do hereby covenant and agree with said Washburn that they will remove so much of the horse sheds, now standing on their land the back side of their meeting-house, as are southerly of a line ranging with the southerly side of said meeting-house, and will keep the land which lies southerly of said meeting-house and a line ranging with the southerly side of said house from the highway to said Washburn’s land, and owned by said corporation, free from all obstructions, excepting the right of erecting posts and permitting horses and carriages to stand thereon as aforesaid, and reserving the right to eight feet in width on the southerly side of said meeting-house for the purpose of enlarging the same or of building a new one.”</p> <p>Shortly after the agreement was made, the horse sheds were moved on to the plaintiff’s land, as agreed. In 1861 a new church was built, occupying in part the ground on which the old church had stood, and the southerly line of the building was five feet and six inches nearer Mitchell’s land than the southerly line of the old church, and extended about eight feet further westerly. This was done with the knowledge of the plaintiff and without his objecting thereto. In 1873, the defendant, acting in behalf of the church, built the fence complained of, from the southeasterly corner of the new church to the highway, in continuation of the southerly line of the church.</p> <p>“ There remains between the fence and the southerly line of the church lot and between the southerly line of the present church and said southerly line of the church lot, the space of twenty-five feet and four inches, which is a sufficient passage way. If judgment is entered for the plaintiff it shall be for nominal damages.”</p> <p>On these facts the Superior Court ordered judgmént for the defendant, and the plaintiff appealed.</p>

<p>Appeal by the son and sole heir at law of Thomas J. Hunt, late of Abington, from the allowance by the judge of probate of two instruments, one as his last will, and the other as a codicil thereto, the execution of which the appellant contended was procured by undue influence, and while the testator was not of sound and disposing mind.</p> <p>At the trial, before Ames, J., of issues framed on each allegation, the jury found in favor of the will and codicil, and a bill of exceptions, in substance as follows, was allowed:</p> <p>The will of the testator, dated December 31, 1872, after providing for the payment of his debts and certain legacies, contained the following provisions:</p> <p>“ All the residue and remainder of my property and estate in possession or action, remainder or reversion, and wherever situate, real, personal or mixed, I devise and bequeath to Erastus M. Nash and Gilman Osgood, both of said Abington, and Peter Semonin, of Evansville, Indiana, and to the survivor of them, and to the heirs of such survivor. In trust, however, and for the uses and purposes following, namely, 1st. To permit my wife Sarah, and my son Henry, to occupy and improve and take the rent and profits of all my real estate, keeping the same in repair, and paying all taxes and insurance during the lifetime of my said wife and son and the survivor of them, and to collect and receive all my personal estate, and the same to convert into money, (except such portions as may be required for the use of my said wife and son,) and said moneys according to their best judgment safely to invest, and the same from time to time to reinvest, and the net income thereof, and so much of the principal as may be necessary to apply to the liberal support, maintenance and comfort of my said wife so long as she may live, all to be in lieu of her dower; and after said provision for my said wife, the residue of said income to pay over to my said son so long as he may live; and upon the decease of the survivor of my said wife and son, to pay over and convey all the real and personal of said trust estate to the heirs at law of my said son, according to the statutes of descent and distribution of this Commonwealth.</p> <p>“ And my will is that said trustees have power, upon the request in writing of my said son, if said trustees deem it for the best interest of my estate, from time to time to sell and convey any portion of my real estate, and the proceeds thereof to invest, and hold with the other personal estate, using the income as above set forth.</p> <p>“ And my will further is that said trustees have power, if they deem it for the best interest of my said son, at any time during the lifetime of his said mother, to furnish my son with money to invest in his business, not exceeding ten thousand dollars. And after tine decease of his said mother, with a further sum not exceeding ten thousand dollars.</p> <p>“ And my will further is that said trustees expend a sum not exceeding five thousand dollars for the improvement of the burial lot belonging to myself and my deceased brother Joseph, in the Mount Vernon Cemetery in said Abington.</p> <p>“ And whereas I am a member of the firms of Hunt, Semonin & Co., and Semonin, Dixon & Co., and have an equal third part of the profits of each firm, and have full confidence in the integrity and ability of my said copartners; therefore my will is that my said trustees have full power after providing for the foregoing payments out of my personal estate and out of funds due me from said copartnership, to allow the residue of the amount due my estate out of said firms to remain in the hands of said Semonin & Dixon on their note on interest, not to exceed seven per cent, per annum for such time, and I recommend to said trustees so to do, as to my said trustees may seem safe and judicious, leaving it to said Semonin & Dixon to pay to my said son such share of the !net profits of their business as to said Semonin & Dixon may seem to be fair and just, and according to our verbal understanding.</p> <p>“ And I do hereby nominate said Erastus M. Nash, Gilman Osgood and Peter Semonin, to be executors of this my will, and I request that they shall be exempt from giving a surety or sureties on their official bonds both as executors and as trustees.”</p> <p>The codicil dated December 31, 1872, contained the following provision: “If the executors and trustees named in my said will, after collecting from the firms of Hunt, Semonin & Co., Semonin, Dixon & Co., the sums first named in my will, amounting to thirty-four thousand dollars, shall decide to collect from said firms the balance due my estate as soon as may be, then my will is that said Semonin & Dixon, my surviving partners, shall not be compelled to pay such balance faster than in the following proportions: $15,000 in four and one half years, $15,000 in five years, and $20,000 in five and one half years, all after said first named collection, and such further reasonable time as with reasonable diligence may be necessary for the collection of outstanding copartnership claims; said payments of $15,000 and $20,000 being increased or diminished in proportion to the amount found due my estate from said copartnership assets.”</p> <p>The appellees presented the written instrument purporting to be the last will of the deceased, with the codicil. The three attesting witnesses were called, and were asked the usual questions concerning the execution of the will and codicil, and the condition and sanity of mind of the testator at the time.</p> <p>Perez Simmons, a counsellor at law, was one of these witnesses. He testified that he was frequently consulted by the testator professionally ; that he received a note from the testator, in consequence of which he went to see him, and was instructed as to the will; and that a rough draft of the proposed will was made, containing various erasures and interlineations. He was fully examined and cross-examined as to all the circumstances attending this draft and as to the erasures, &c., and also as to the execution of the will and the codicil. And upon intimation from the judge that the appellees might give further evidence upon the question of sanity, in reply to such as should be given on the part of the appellant, they rested their case.</p> <p>The appellant testified without objection, that he had an interest as a partner in the firm of Varney & Harvey of the value of from $33,000 to $34,000; that the firm consisted of A. B. Harvey, William H. Varney, John Lane, the testator, and himself; and also stated that the partnership affairs were adjusted by a suit in equity in this court, brought by one of the partners for that purpose, and were finally settled by the several partners in accordance with the report of a master in chancery to whom the account had been referred for a statement by the court, who found the appellant’s interest as above stated.</p> <p>The appellant then offered a duly certified copy of the record of that case, with the report of the master in chancery, but upon objection the judge excluded the evidence.</p> <p>The appellant also testified that while said suit was in progress, his father requested him to go to the office of Hutchins & Wheeler, who were the attorneyb of the testator in said suit; that he went accordingly in company with his father; that he there had an interview with Hutchins alone, while his father was in another room; that then the three had an interview together, in which Hutchins urged him to assign his interest in the concern of Varney & Harvey to his father, in order to enable the father to negotiate a settlement; that Hutchins further urged the appellant to do this, and said in substance that he would have all his father’s property at his death, and it would make no difference to him if the father should hold his property; that soon after this interview, the appellant had an interview with his father at Abington upon this subject, in which he stated to his father that he did not like to make such an assignment, but that under the circumstances he should do so, and that he did execute an assignment under seal, which, after his father’s death, was found among his papers. The assignment was produced, and bore date October 24, 1867, and is as follows: “ Know all men by these presents, that I, Henry Hunt, of Abington, in the county of Plymouth, in consideration of one dollar to me paid by Thomas J. Hunt, my father, of said Abington, receipt of which is hereby acknowledged, hereby sell, assign and transfer and set over to the said Thomas J. all my right, title, claim and interest as a partner in the co-partnership of Varney & Harvey, or claim upon John Lane, arising out of any partnership with him under the style of Varney & Harvey, or claim upon said Varney & Harvey, or the said Thomas J. Hunt arising out of said copartnership. To have and to hold to him, the said Thomas J. Hunt, his executors, administrators and assigns, with power to demand and secure the same, using my name if necessary in any and all process.”</p> <p>The appellees in rebuttal called Henry C. Hutchins, who testified that he was of counsel for the defendants in the suit of Harvey v. Hunt and Lane & others; that the above assignment was in his handwriting, but that he did not recollect where it was executed nor the circumstances under which it was made, nor did he recollect that Henry Hunt had any conversation with him in regard to its execution. The witness then produced the following instrument, signed and sealed by the appellant, and dated February 19, 1870 : “Whereas a suit in equity for the settlement of the partnership .affairs of Varney & Harvey is now pending in the Supreme Judicial Court for the county of Suffolk, wherein A. B. Harvey is complainant, and Thomas J. Hunt and John Lane, and William H. Varney and Henry Hunt, are defendants, which said suit has been referred to Henry W. Paine, Esq., as master, to state the accounts of the parties therein. Now know all men by these presents, that I, the said Henry Hunt, in consideration of one dollar to me paid by the said Thomas J. Hunt, the receipt of which is hereby acknowledged, do hereby sell, assign and transfer to the said Thomas J. Hunt all claim which I now or may hereafter have by virtue of said suit, or any judgment or decree therein, upon the said Thomas J. Hunt, or John Lane, or either of them, or any of the parties to said suit, and I do hereby authorize the said Thomas J. Hunt to prosecute said suit to final judgment for his own benefit, and the proceeds to enjoy to his own use. And I do further sell, assign and transfer to the said Thomas J. Hunt all claims which I have upon the said John Lane, or the said Thomas J. Hunt, or any of the parties to said suit as a member of the firm of Varney & Harvey.” Hutchins also testified that there never was any conversation in his presence in which, as an inducement to Henry to sign that or any other release, anything was said about his having the father’s estate after the decease of the latter. The witness was then asked what were the circumstances attending the execution of the paper dated February 19, 1870, and why it was executed. This question was objected to by the appellant, but the judge ruled that, as the -witness was counsel in litigation in which the deceased and the appellant were more or less concerned, and as the paper was drawn up at the witness’s office and under his direction, the question might be put. To this ruling the appellant excepted. The witness then testified that the purpose with which that paper was prepared and its execution obtained was to put the father’s interest where it belonged; treating and assuming Henry’s interest in it as nominal; “ to restore the estate to the father. A portion of it had been put in the son, and the paper was made to restore it to the father. This was well understood. I considered the son’s interest in it as merely nominal. I know that I was directed to prepare these papers, and I knew what the object was. They were prepared and here they are, and that is all I know about it.” He did not testify that Henry said it was nominal or anything to that effect, or that he, Henry, was present or was consulted about the preparation of that paper. He also testified that this took place before any attempt had been made to compromise the suit, but that there was a series of papers, of which this was one, for the purpose of making an adjustment; there was an arrangement with Harvey, and, as part of that arrangement, there was a subsequent one with Hunt and Lane. “ I arranged it for them and got all settled, and this was one of the papers of adjustment that was necessary to be executed.” The paper was admitted in evidence, and to its admission the appellant excepted. The witness was also asked whether, at the time that the paper of February 19, 1870, was executed at his office, anything was said in regard to the consideration, in connection with the final disposition of the father’s estate. On objection the question was allowed, to which ruling the appellant excepted. The answer was in the negative.</p> <p>The appellees called Gridley Beal in rebuttal, who had been long and well acquainted with the testator, and inquired of him as to certain conversations with the testator, one of which he said took place in the spring of 1872, concerning the views of the testator as to the length of time it would require to settle the testator’s business in the West. Under the objection of the appellant, the conversation was admitted, and the witness testified that the testator said it would require four or five years to withdraw his capital from the West so as not to injure Ms partners there. The judge admitted this testimony, the appellant’s counsel having stated in his opening that the provisions contained in the will on that subject, and the fact that no security was required of his partners by its terms, were so unreasonable as to be evidence tending to prove unsoundness of mind or undue influence. The witness, under objection from the appellant, was also permitted to give an account of a conversation on December 12, 1872, in which the testator spoke of retiring from business, but said he could not do so, if living, in less than five or six years, without injury to his partners j and that he had opportunity to know them, and they were fair and honorable men. He also testified that the testator named all Ms sisters, spoke about the circumstances of one of them, and said that she and her husband were growing old and could not pay for their place ; and on being told by the witness, in answer to a question, that the incumbrance on their place was about one thousand dollars, expressed a purpose to provide for discharging it. The appellant had offered evidence which he claimed showed insanity of the testator in November 1872, and afterwards till the execution of the will and codicil. The witness also said, under objection, that during this interview he observed no incoherence of thought in the testator, nor anything unusual or singular in respect to his mental condition.</p> <p>No evidence had been offered by the appellant respecting either of these conversations, or that the testator had ever said anything inconsistent with what had been attributed to him by the witness Beal on these occasions.</p> <p>It was admitted that the testator died of Bright’s disease of the kidneys. The appellant had called experts in insanity, who had testified that in their opinion a person dying of this disease, whose kidneys, heart, arteries and other internal organs were diseased in the manner in which the testator’s were found to be by the autopsy, must in their judgment have been of unsound mind, as long prior to his death as December 21, the date of the execution of the will; that they were familiar with Bright’s disease of the kidneys, and that in a large proportion of cases it impaired the mental faculties; that sometimes this was the case where a common observer would not detect the fact; that a patient suffering from this disease might secretly cherish feelings of hostility to his friends, wholly at variance with those which he entertained when in a normal condition.</p> <p>In rebuttal, the appellees called a physician admitted to be an expert in the treatment of insane patients and in mental diseases, and asked this witness if he knew the effect of Bright’s disease of the kidneys upon the mind. He answered that he did not. He was then asked by appellees if Bright’s disease necessarily produced insanity, to which he answered that he did not know enough about Bright’s disease to say whether or not it necessarily produced insanity. He was then asked by the appellees this question: “ Suppose a person dying on the 9th day of January, of Bright’s disease of the kidneys, who had been ill since the last of the November next previous, and had during that period been visited daily by his family physician, who, till within two or three days of the patient’s death, discovered no indication of mental unsoundness, had had several protracted conversations with his legal adviser concerning the disposition of a large estate, and had dictated the terms of a will wherein he made bequests to numerous members of his family, designated his trustees and executors, provided for the settlement of his partnership affairs, had several conversations with his partner in relation to the partnership business, conversed with several of his friends in regard to business matters, gave his pocket-book with its valuable contents to his executor, and told him to take charge of it, and throughout all, till within two or three days of his death, evinced no lack of comprehension or intelligence, what would be your inference of the patient’s mental condition at the time of these several transactions ? ” The question was objected to by the appellant, but was permitted to be put by the judge, and the witness answered that he should consider him of sound mind.</p> <p>The appellees called in rebuttal the person who wrote the will and codicil and who had been called as one of the subscribing witnesses to them, and had testified fully as to the circumstances under which they were written and executed, and that in his opinion the testator was of sound mind when both were executed; also that he had been the legal adviser of the testator for many years, and had been consulted fully by him on many important matters. The counsel for the appellant objected to the witness giving any testimony in rebuttal bearing upon the question of the testator’s sanity, apart from the question of undue influence, but he was permitted without restriction to give in detail an account of interviews with the testator on December 16, 21 and 31, 1872; and he was also allowed, under objection, to state that in none of these interviews did he perceive anything in the testator indicating want of comprehension, lack of intelligence or understanding. The witness was also asked whether he had said to the appellant-as the latter had testified, “ Do you think your father was sane when he made his will ? ” and he answered, “ I never did, because ” — Objection was made to his giving a reason in that form, but he was allowed to do so, and continued, “ because I never thought of such a thing as his not being sane.” The witness was also allowed to state under objection, in contradiction of testimony given by the appellant, that he did not tell the latter “ your father after he had made his will seemed to lose all comprehension of what he had been doing, and said, ‘Where has Henry been all this time ; what have I done for Henry ? ’ ” be cause it was not true.</p> <p>The appellees offered evidence tending to show that the testator, at, about and just before the time of the execution of the codicil, made frequent efforts with Dixon, a member of the firm of Semonin, Dixon & Company, to prevail upon him to admit Henry Hunt into the employment of that firm, with the understanding that he should remain in Massachusetts, and take care of his mother, but to do what he could to aid the firm in their purchases here. It did not appear that anything definite was assented to by Dixon on this subject, or that he went any further than to say that perhaps they could give Henry a compensation of $600 a year, “ work or play,” to be increased if his services should prove more valuable. This answer was reported to the testator, who then said “ Well, we will leave it as it is.” There was no evidence, other than the will itself, of the existence of any verbal understanding on that subject. This attempt at negotiation was carried on through a third person, at the time of the execution of the codicil. There was also evidence to show that Dixon was frequently at the house of the testator, and had several interviews with him just previous to the making of the will.</p> <p>The appellant testified that some months after the testator’s death he had a conversation with Semonin in the presence of Dixon, in which Semonin expressly denied that the appellant was entitled to any interest in their business, and upon being told by the appellant that the will gave him an interest in the business, said, “ I don’t know anything about your will.”</p> <p>Neither Semonin nor Dixon had ever in any way recognized any right of the appellant to an interest in their business or to any share of the profits of the same, though at the trial more than sixteen months liad elapsed since the death of the testator.</p> <p>The appellant requested the judge to instruct the jury that if the will was made upon an understanding with Semonin and Dixon, or either of them, and to which they or either of them were parties, that a “ share of the net profits ” of their business should be paid to Henry Hunt; and if Semonin and Dixon denied any interest of the son under the will, the jury would be authorized to find that the will was made under undue influence.</p> <p>The judge declined so to instruct the jury, there being nothing in the oral evidence which required this instruction. The evidence tended to show that the business of the firm of Semonin, Dixon & Company could not be wound up without serious loss in less than three or four years; and that the Western partners were solvent, and were men of considerable property over and above all their debts.</p> <p>To all of which rulings, and to the refusal of the judge to rule and instruct the jury as requested, the appellant alleged exceptions.</p>

Bill in equity in the name of the city of Taunton, and signed by Daniel L. Mitchell as mayor thereof, filed August 20,1872, and containing the following allegations: That by an ordinance of said city it is provided that “two members of the board of mayor and aldermen, and three members of the common council, are hereby constituted a board of health of the city of Taunton, with all the powers vested in boards of health by the general laws of the Commonwealth: ” and that two…

Complaint under the bastardy act, Gen. Sts. c. 72. Trial in the Superior Court, before Dewey, J., on the supplementary complaint, which was as follows: “ Sarah E. Burt, singlewoman, alleges that heretofore, to wit, on the 22d day of July, A. D. 1873, before the justice of the police court, within and for the city of Salem, in said county of Essex, she made complaint that she was pregnant with a child, and that said child if born alive might be a bastard, and accused James D.…

<p>Contract on a recognizance entered into by Nicholas B. Dresser as principal, and Robert P. Sargent as surety.</p> <p>The case was submitted to the Superior Court, and, after judgment for the defendants, to this court on appeal, on an agreed statement of facts, the nature of which appears in the opinion. It also appeared that the due bill given by Dresser to the plaintiff was not paid, and that this action was brought after it became due.</p>

<p>Tort to recover damages for a personal injury received by the plaintiff at the central depot in Lynn, on April 11, 1873.</p> <p>At the trial in the Superior Court, before Dewey, J., the plaintiff introduced evidence tending to show that at the time of the injury he came to the depot to take the train for Boston, and as he stepped from the platform of the depot upon a step of one of the cars, and while the train was standing still, holding in his left hand a small carpet-bag, and taking hold of the iron railing of the platform of the car with his right hand, and using due care, the train started with a sudden jerk, threw his head and body back and out from the car, his feet still remaining upon the step and his right hand holding the railing, and his head was carried against a box which surrounded a water tank used for the supply of the engines of the defendant, which stood within 18 inches of the edge of the platform and track of the road, and that he was thereby injured.</p> <p>The defendant introduced testimony tending to prove that the plaintiff, at the time of the alleged injury, attempted to get upon the train after it had started from the depot, and while it was in motion.</p> <p>The plaintiff requested the judge to instruct the jury, that if they found that the plaintiff at the time of the injury was in the exercise of due care and was injured by the negligent acts of the defendant, the plaintiff might recover for the injury. The judge gave this instruction, and also instructed the jury, as a matter of law, that if the plaintiff attempted to get upon the train after it had started and while in motion, he was not in the exercise of due care in so doing, and if he received an injury from such an attempt, he could not recover.</p> <p>The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

<p>Tort for the conversion of a stationary steam-engine and boiler. At the trial in the Superior Court, before Bacon, J., there was evidence tending to prove that Morse & Whyte sold the engine and boiler by a conditional sale to Wilson & Co., who had a lease of certain premises of one Blaney. They assigned their lease to the defendant. The plaintiff bought the engine and boiler of Morse & Whyte, after a breach of condition of the sale to Wilson & Co. At the time of the sale to the plaintiff, the engine and boiler were attached to the premises of Blaney in the following manner:</p> <p>They were placed upon said premises by Wilson & Co., while tenants under said lease, and were upon stone foundations in a small frame building which was built over them after they were placed there. This building was adjacent to and connected by shafting and steam-pipes with a manufactory of woollen fabrics near by. The engine was affixed by large iron bolts running through the base of said engine into solid masonry beneath and secured by melted brimstone. The engine was attached to the boiler by the ordinary connections of this kind of machinery, and was attached to the mill and the machinery in it by the ordinary pipes, bolts, shafting and gearing. The boiler was a large iron boiler, tubular in form, was set upon brick masonry which was solid except the fire holes in the same, and was surrounded most of the way upwards by solid brick masonry, but was not affixed thereto except by its own weight. It could not be removed without tearing down the brick work and removing some portion of the permanent part of the building; and the body of the engine could not have been removed from said building without tearing away some part of the same.</p> <p>There was also evidence tending to prove that after the defendant took the assignment of said lease, and after the plaintiff became purchaser from Morse & Whyte, the plaintiff made a demand upon the defendant for said engine and boiler with which the defendant refused to comply.</p> <p>The plaintiff asked the judge to rule, that if the engine stood upon stone foundations, to which it was attached only by its weight and bolts, and could be removed without disturbing the foundations by simply removing the nuts from the bolts, it was personal property. The judge instructed the jury upon this point, that if the engine and boiler were located and attached as hereinbefore described, then this action would not lie upon a refusal to deliver them on demand.</p> <p>The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

<p>Contract on the Gen. Sts. c. 85, § 2, against the defendant, as owner, tenant and occupant of a house, for the recovery of money lost therein by the plaintiff in gaming. Trial in the Superior Court, before Lord, J., who reported the case, after verdict, for the consideration of this court, in substance as follows:</p> <p>The plaintiff upon the trial offered in evidence the report of an auditor, which found that the plaintiff had, at various times within a year before the date of the writ, lost at gaming in a certain house various sums of money; and also evidence tending to prove that the defendant was the tenant and occupant of the house named.</p> <p>The defendant requested the judge to instruct the jury that the plaintiff could in this action recover only the amount or amounts sued for within three months after the loss, but the judge declined so to instruct the jury, and admitted the evidence, but instructed the jury if they found for the plaintiff, to assess damages for the whole amount lost within one year, and also to find the amount lost by the plaintiff within three months before the date of his writ, to wit, the amount lost after January 13, 1872, the date of the writ being April 13,1872. The jury found for the plaintiff, and assessed damages for the whole amount lost within one year as above in the sum of $4750.19 ; and found the sum lost after January 13, 1872, as above, to be $750.03.</p> <p>If the court shall be of opinion that the plaintiff can recover for losses made within one year preceding the commencement of the action, judgment is to be entered for the plaintiff for $4750.19, with interest from date of the verdict; but if the court shall be of opinion that the plaintiff can recover only the amount lost within three months before the same was sued for, then judgment is to be entered for the plaintiff in the sum of $750.03, with interest as aforesaid; and the case is reported to the Supreme Judicial Court for its determination, for which of said sums judgment shall be entered.</p>

<p>If, after a verdict for the plaintiff, the defendant dies, the court has power to pass upon the exceptions alleged by him, and if justice requires, to enter judgment nunepro tune as of the term when the verdict was rendered, although no administrator has been appointed in this state.</p> <p>If, at the time a suit is brought, both parties to it are citizens of this state, one party by becoming a citizen of- another state is not entitled to have the suit removed to the United States Circuit Court, under the U. S. St. of 1867, c. 196.</p> <p>Under the U. S. St. of 1864, c. 106, § 6, a copy of the certificate of organization of an United States National Bank, which is certified by the comptroller of the currency and authenticated by his seal of office, is competent evidence in a state court.</p> <p>A surety on the bond of the cashier of a bank is not discharged by the fact that the cashier had, before the bond was given, committed frauds upon the bank, if such frauds were unknown to the officers of the bank, although they were guilty of gross negligence in not discovering them.</p> <p>In an action by a surety on the bond of an officer of a bank to recover an amount paid on the bond without suit, against one who had agreed to save him harmless from all loss which he might suffer as surety, the court instructed the jury that if the plaintiff made the payment without the assent of the defendant, he must show that he was legally liable, but if he procured the assent in good faith he could recover. Held, that the defendant had no ground of exception.</p>

Writ oe entry, dated November 4, 1867, to recover a parcel of land on Humphrey Street in Swampscott. Plea, nul disseisin. At the trial in the Superior Court, before Wilkinson, J., the following facts appeared: The demanded premises were a parcel of land thirty feet by thirty-three feet, lying immediately west of the dwelling-house of Mary Stone hereafter referred to, and between certain boathouses and Humphrey Street, in Swampscott.

<p>Contract on an account annexed, the first item of which was, “ To amount paid on land, $407."</p> <p>At the trial in the Superior Court, before Wilkinson, J., the plaintiff put in the report of an auditor, from which the following facts appeared: In August, 1864, the defendant, who is the son of the plaintiff, purchased one half of a house, with the land under and adjoining the same, on Broad Street in Salem, for $400, (the plaintiff owning and occupying the other half,) and took a deed thereof in his own name. The plaintiff paid $30 of the purchase money, and $7 for stamps and recording the deed, and the defendant paid the rest. The defendant, at that time, was employed in another state, and it was agreed between the parties that the plaintiff should take charge and have the use of the house, make the necessary repairs,-pay the necessary expenses, and take the rents, until the defendant should wish to occupy it. Under the agreement the plaintiff took charge, made certain repairs, paid the taxes, let the house and received the rents. About the time of his taking charge, he took out a policy of insurance in the name of the defendant for $500, and paid the premium. The house was destroyed by fire in 1865, and the plaintiff received on the policy, as the defendant’s agent, the sum of $500.</p> <p>The auditor found that there was due the plaintiff, on the first item, the sum of $37, and that the plaintiff owed the defendant the sum of $500, less the premium, and that there was a certain sum due the defendant on his declaration in set-off.</p> <p>The auditor also reported that it was contended by the plaintiff, and he offered evidence tending to prove, that there was a settlement between the parties in the spring of 1865, whereby it was agreed by them that the defendant owed the plaintiff $277 on the house and land purchased in 1864; and that he found that there was no settlement as claimed, and that the defendant did not agree that the sum of $277 was due on the house from him to the plaintiff. At the request of the plaintiff’s counsel, the auditor stated the account, as it would stand if such settlement had been made; the first item of which was, “ To amount paid on land, $277.”</p> <p>The plaintiff at the trial moved for leave to amend his declaration by adding a count for $277, as for a balance found due to the plaintiff, upon accounting together; but the judge refused to allow the amendment. The plaintiff then offered himself as a witness to testify to the facts set forth in the amendment, and offered this evidence under the first item in his bill of particulars; but the judge refused to allow him so to testify, in the absence of such amendment.</p> <p>Other facts and the rulings of the judge appear in the opimon. The jury returned a verdict for the defendant on his declaration in set-off, and the plaintiff alleged exceptions.</p>

Contract on a promissory note. At the trial in the Superior Court, before Lord, J., the defendant admitted the plaintiff’s case, and the issue was on a declaration in set-off, the first two items of which were, “ 1. November 6, 1869. To one montü a labor of Frank Tarr, $40.” “ 2. To one month’s labor at $50 a month, $50.” The defendant testified that he and the plaintiff formed a co-partnership in the fall of 1869, which continued until March 1, 1871, when it was dissolved.

<p>Replevin. Writ dated July 11, 1873. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, on a case stated, in substance as follows:</p> <p>On March 29, 1873, the plaintiff, and James W. Keegan his brother, were partners in the retail provision business in Lawrence ; and owned and used in their business the goods replevied in this action. On that day they, with the knowledge and advice of their parents, executed and delivered to the defendant a personal mortgage of the goods replevied, conditioned to pay to the defendant three notes of even date, for $100 each in six months, from March 29, 1873, which notes were signed by both partners.</p> <p>The consideration for these notes and the mortgage was an outstanding account of $130 in favor of the defendant, for meat sold and delivered to the firm; and also the payment for meat thereafter to be delivered by the defendant to the firm at the current market prices to the extent of $170 in value. Within a month thereafter, and in pursuance of the agreement, the defendant at different times delivered meat to the firm to the amount of $168.59 in value. The defendant was ready and willing to deliver the remaining value of $1.41 according to agreement, but the business of the partners was interrupted by attaching creditors, and they were not ready to receive it. All of the meat so delivered by the defendant, before and after the date of said mortgage, was resold by the firm to its customers.</p> <p>Most of the meat sold and delivered after the date of the mortgage, was sold and delivered after James W. Keegan became of age. On May 23,1873, the firm paid the defendant $50, in part payment of the mortgage notes.</p> <p>On March 29,1873, the day the mortgage was delivered, both of the partners were minors, and were living with their parents. The plaintiff was then nineteen years old, and his brother James became of age April 10, 1873. At the time said notes and mortgage were being executed, the father of the partners, in their presence and upon inquire made by the defendant, told the defendant that James W. Keegan was twenty-one years of age in April, 1872. Neither of said partners made any denial of this statement.</p> <p>On July 9, 1873, the defendant took possession, for breach of the conditions, under the provisions of said mortgage, of the goods mortgaged and now replevied. No tender of performance of the conditions of the mortgage was ever made by the mortgagors, or either of them, or by any one in their behalf, and the only payment or offer of payment was the $50, above stated.</p> <p>On July 1, 1873, the partnership was dissolved by agreement, and James W. Keegan then sold all his interest in the goods replevied to the plaintiff.</p> <p>If upon these facts the plaintiff is entitled to recover the goods replevied, judgment is to be entered for the plaintiff for nominal damages. Otherwise judgment for the defendant for a return with nominal damages.</p>

Contract to recover the value of a trunk and its contents belonging to the plaintiff, and destroyed in April, 1873, while in the possession of the defendant company, in the course of transportation from Newark, New Jersey, to Boston.

Contract to recover for services rendered to the defendant by the plaintiff, as a book-keeper, from September, 1871, to February, 1872. There was a count upon a special contract, and one upon a quantum meruit. At the trial in the Superior Court, before Rockwell, J., it appeared that the defendant was a wholesale and retail trader in flour, grain and groceries, in East Cambridge.

<p>Contract on an oral agreement.</p> <p>At the trial in the Superior Court, before Brigham, C. J., the plaintiff offered in evidence the report of an auditor, who found that there was an implied agreement on the part of the defendant to abide by and perform the contract set forth in the declaration. The plaintiff’s counsel stated to the presiding judge, before resting his case on the report alone, that the plaintiff had other evidence of the contract relied on, which he might wish to put in after the defendant’s case was closed; to which the judge replied that a plaintiff, having an auditor’s report in his favor, had his election to put in his whole case, or to stand on the report alone in the first instance, and run the risk of being able to control the defendant’s case in rebuttal; that such a course had its advantages and its disadvantages, and the counsel must elect which course to pursue, as it was within the discretion of the judge how far in such a case the plaintiff should be allowed to put in evidence to sustain the auditor’s report not strictly in rebuttal of the defendant’s testimony, and which would be competent for the plaintiff in the beginning. The plaintiff then rested his case.</p> <p>The defendant testified that she never made, consented to, or had any knowledge of, the alleged contract. After her evidence was all in, the plaintiff offered to put in evidence as to what was said and done between the parties at the time of making the alleged contract; but the judge refused to admit it, stating to the counsel for the plaintiff that this evidence made a part of his original proof which it was competent for him to put in in the first instance; and that, not having elected to put it in then, it was afterwards within the discretion of the judge to permit him to put it in or not; that under the circumstances of the case he should decline to admit any testimony not strictly in rebuttal, and as the testimony offered was not of that class he should reject it.</p> <p>The jury found for the defendant; and the plaintiff alleged exceptions.</p>

Scire eacias on a judgment against one Chamberlin and the defendant as trustee. At the trial in the Superior Court, before Dewey, J., the defendant contended upon his answers that he was not liable aa trustee. The judge ordered a verdict for the defendant, and reported the questions of law for the determination of this court.

Beplevin of a black walnut desk, commenced in the Municipal Court of the city of Boston. At the trial in the Superior Court on appeal, the defendant moved to dismiss the action, because the writ did not allege the value of the property, and therefore it did not appear that it was of the value of more than $20 and less than $300. Dewey, J., refused the motion. On the trial it appeared that the desk was of the value of $30.

<p>Where the plaintiff introduces an auditor’s report in evidence, to the admission of which the defendant objects, it is within the discretion of the presiding judge to allow the plaintiff afterwards to withdraw the report from the consideration of the jury.</p> <p>Where evidence is put in under an objection, and the judge permits the party put ting in the evidence to withdraw it, a refusal to give instructions which are onlj appropriate on the theory that the evidence is in the case is not a ground of éx ception.</p> <p>Where a bill of goods sold is presented to a purchaser, his conduct may be such aa to warrant the jury in drawing the inference of an admission that the bill is accurate and actually due, although he says nothing to that effect.</p>

<p>If the party seeking to establish the truth of his exceptions neglects without excuse for sixteen months to apply to the commissioner, appointed by the court, to have a day fixed for a hearing, this is good ground for dismissing the petition to prov« the exceptions.</p>

<p>Where the seller of goods is induced by the fraud of the buyer to receive in payment thereof the note of a third party, he cannot, without proving that the note is absolutely worthless, maintain an action on the original contract until he has returned or offered to return the note to the buyer.</p>

Bill in equity by tbe trustees, who were also administrators with the will annexed, of Samuel Gregg, against the widow and heirs at law of the testator, to obtain the instructions of the court The will of the testator, which was dated October 27, 1871, after declaring that his lawful debts should be paid, provided as follows : “ Second.

Contract against Isaac L. Platt and Edward A. Boyd, described in the writ as doing business in New York under the name and style of Platt & Boyd. John B. Sowle and Joseph Ward were summoned as trustees.

<p>Tort for the conversion of certain packages of fish.</p> <p>At the trial in the Superior Court, before Dewey, J., the. evidence tended to show that on December 10,1872, the plaintiffs, doing business in Boston under the firm name of Knowles Freeman and Co., sold to one Hall, of Lowell, a trader, a large number of packages of fish, of which the lot in question was a part, and that the same were sold for cash; that part of the goods were delivered the same day, and the rest in four or five days after-wards, at the store of Hall, in Lowell; that Hall, a few days after, sold a portion of the fish, and subsequently the plaintiffs called for payment, but no payment was made; and that on January 1, 1873, Hall sold and delivered the fish, mentioned is the plaintiffs’ writ, to the defendants, who paid for the same, knowing nothing of the terms of the trade between Hall and the plaintiffs.</p> <p>The defendants asked the judge to rule that although the sale was for cash, yet, the fish having been delivered to Hall at his place of business, the plaintiffs could not recover for the value of the same in the hands of the defendants. The judge declined so to rule, but instructed the jury that in a sale of goods for cash the title did not pass to the purchaser, notwithstanding the goods had been delivered, until the money was paid for the same, or there was a waiver of the cash payment.</p> <p>The jury returned a verdict for the plaintiffs, and the defendants alleged exceptions.</p>

<p>Where a negotiable promissory note, made in this Commonwealth and payable here, is indorsed in another state, the liability of the maker to the indorsee is determined by the law of this Commonwealth.</p> <p>It is no defence to an action by an indorsee against the maker of a negotiable promissory note made in this state and payable here, that the indorsee received the note from the payee in satisfaction of a preexisting debt, and that the note was delivered by the maker to the payee without consideration, and under an agreeaent that he should only use it to raise money by pledging it as collateral security to his own debt.</p>

<p>One who, by representing himself to he a partner, induces another to give credit to the supposed partnership, is liable to him as a partner, whether actually a partner or not.</p>

<p>It is within the discretion of the judge to whom a petition for a review is presented, if he is of opinion that the petitioner has a substantial defence to the action upon the merits, which by accident or mistake, and without fault on his part, he has had no opportunity of making, to grant a review without passing in advance upon the questions of law or fact which may be involved in the trial of the case; and to the exercise of his discretion in this respect no exception lies.</p>

<p>The St. of 1874, c. 397, § 1, providing that “ all divorces nisi heretofore decreed under and by authority of” the St. of 1870, c. 404, “shall be deemed and taken to be, and have the force and eifect of, absolute divorces from the bonds of matrimony,” and that the justices of this court, upon petition and notice, may authorize the party, against whom such divorce has been granted, to marry again, is unconstitutional and void.</p>

<p>Contract on a policy of insurance for $20,000, dated February 12, 1870, upon the life of Thomas E. Chickering, payable to the plaintiff, his wife. By the terms of the policy the sum of 1329.60 was to be paid on or before the 9th days of February, May, August and November, in every year during the continuance of the policy. Among the conditions forming a part of the policy were the following:</p> <p>“ 3d. If the said premiums shall not be paid on or before the days mentioned for the payment thereof, at the office of the company, in the city of New York, (unless otherwise expressly agreed in writing,) or to agents when they produce receipts signed by the president, vice-president or secretary, then, in every such case, the said company shall not be liable for the sum assured, or any part thereof, and this policy shall cease and determine.”</p> <p>“ 9th. Agents of the company are not authorized to make, alter or discharge contracts, or waive forfeitures.”</p> <p>Trial before Wells, J., who reserved the case for the consideration of the full court upon a report in substance as follows:</p> <p>Thomas E. Chickering died on February 14, 1871. The answer set up in defence the non-payment of the premium which became due on the 9th of that month. It was admitted that the premium was not paid, unless in the manner shown in the following evidence:</p> <p>The plaintiff put in the deposition of Edward H. Osborne, a copy of which was made part of the report. He testified, in substance, as follows: “I was agent of the defendant company from February 1,1870, to December 81,1872, and had the sole management of the business in Boston. I had previously been the agent of Chickering & Sons, and after I became an agent of the defendants I bought pianos from time to time for my friends, from Chickering & Sons, and rendered accounts to the firm of such purchases. I stated to Thomas E. Chickering that I should take care of his premium, and I did so, the payment prior to his death. I saw him on several occasions prior to the premium becoming due, and subsequently, and told him that his premium was cared for. I made such a statement to him before the premium of February 9, 1871, became due. I should say the same week. At that time I had received the signed receipt for the premium from the company; but it was not good until countersigned by myself. I communicated the fact to Thomas E. Chickering that I had received the receipt from the company in the usual form of a notice. I had several conversations with him about it. He remarked to me that his premium was due. I said, ' Yes, sir, but your premium is taken care of.’ This was the substance of subsequent conversations. It was a matter of conversation from time to time. I had charge of his life policies, and I had been his adviser from time to time, and told him that he could depend upon me to take care of his premiums. Before February 9, 1871, he said to me, 6 My premium is due on the 9th.’ I said, ‘ Yes; but you need give yourself no uneasiness about it, as I’ll take care of it for you.’ At that time I was indebted to the firm of which he was a member, on my running account. I do not remember to what extent the balance was against me; it was for more than the amount of the premium. I had a conversation with Thomas E. Chickering as to this balance due, in connection with the payment of the premium; and I said to him that I would come in at my leisure, and we would have a settlement of our affairs. I saw him the week he died, on several occasions. I saw him on Saturday night prior to the Tuesday morning on which he died. He died at one o’clock A. m. This was the last time I saw him, He then spoke of his premium, and asked me if it was all right. I said, ‘ You know that I have always told you that I would take care of your premium.’ I took supper with him and his family that evening at the Tremont House.</p> <p>“ On February 15, 1871, being in Hew York, I made and signed the following statement, in writing, at the request of the company: 6 Hew York, February 15, 1871. To the officers of the Globe Mutual Life Insurance Company. I have to report to you the death of Colonel Chickering, insured under policy Ho. 18788. The premium became due on the 9th instant; but finding it more convenient for him to pay the premium .the first of the coming week, I told him I would take care of it for him, though I did not deliver the receipt to him. The premium would have been included in my report of this date (15th) as I deemed the premium paid and myself entirely responsible therefor. Colonel Chickering died Monday night, of supposed apoplexy.’</p> <p>“ While in Hew York, I saw the second vice-president, John A. Hardenbergh, and the president of the company, Pliny Freeman. I saw them on February 15. I had a conversation in regard to Colonel Chickering’s death with John A. Hardenbergh ; hi is embodied in a letter to the company. This letter was written on the spot, and handed to the company. The officers desired me to embody my statement in writing, and I did so. There was other conversation with Hardenbergh. He said there was one question he would like to ask me: Had you seen, instead of the notice of the death of Colonel Chickering, that he had surreptitiously left the country, would you deem yourself responsible for the premium ? I told him that I should. He asked me why. I told him because I had promised him I should pay it. I told him I hoped he understood the matter fully, and that I should insist upon sending the premium to the company. He remarked to me that he could see no objection to my doing so. I then said to him, that ‘ By virtue of my contract with the company my report should have been sent to them that day, but of course being in New York it would have to be delayed one day.’ He said that was all right. The president was in the room, in and out of the room. Mr. Hardenbergh’s and Mr. Freeman’s desks were in the same room. Whether he was cognizant of conversation, I don’t know. John A. Hardenbergh was then the active manager, and was the one who dealt chiefly with me. The company was supposed to be managed by a board of trustees. I did not give up the receipt to Thomas E. Chickering, because that was my voucher in settlement with his estate, that I had paid so much on his account. I made a return to the company on February 16 or 17, 1871, and it included this premium. On February 22, I received a demand from the company for the receipt, and I sent it to the company, and received from it a check for the amount of the premium.”</p> <p>Cross-examined. “ I did not say, in my statement to the company of February 15, that Chickering said he found it more convenient to pay the premium on the first of the coming month. I said, ‘ I finding it,’ not Colonel Chickering finding it. I found it out, because my connection with the Chickering company had been such that I knew that at the last of the week they had a great deal of money to pay. I told him not only at that time, but on several occasions, that I would take care of it, without any request of his. It was understood that I would. I did not countersign the renewal receipt, or credit Colonel Chickering with any payment for February of 1871, or before February, or do anything respecting the payment due at that date, except to say to him that I would take care of it. It was not my habit to countersign any receipt* until they were delivered. I had no agreement with Colonel Chickering to pay this premium and charge it in my account with Chickering & Sons. It was the general understanding between us. It was not any more than what was embodied in different conversations we had had together at different times. There never was any conversation in which it was agreed that it should be charged in the account with Chickering & Sons. My understanding was, that any charge I had against Colonel Chickering should be set off against any charge Chickering & Sons should have against me, and I presumed that this was Colonel Chickering’s understanding. I have not settled the account between me and Chickering & Sons then due, because I’ve had no occasion to settle the suit. I have a receipt for moneys I paid for the Colonel previously, and no demand has been made on me, nor have I demanded a settlement from the Chickerings. I do not know how the account stands.”</p> <p>By the contract of this witness with the defendant, appointing him its agent, he agreed to devote his exclusive time in the work of soliciting applications, collecting premiums, and delivering policies; The contract contained the following clauses: “ That he will make a correct statement on the first and fifteenth of each and every month, of all the moneys received by him or his agents, and after deducting his commissions as above mentioned, he will accompany said statement with a remittance in certified check or draft upon New York for all balances due to said company, and will as agent comply with all the rules and regulations of said company, a violation of any of which this agreement shall be null and void, at the option of the company." “ The authority f said agent shall extend no further than is above stated. He hall not make, alter nor discharge any contract, nor waive forfeitures, nor receive any moneys due or to become due to said company, except on receipt signed by some officer of the company, or other written authority from some officer of the company ; and shall receive no further remuneration for any service than is above stated.”</p> <p>The plaintiff also introduced the testimony of Charles F. Chickering, who testified that he was a brother of the deceased, and that they had been members of the firm of Chickering & Sons; that none of the partners of the firm kept private bank accounts; that their private bills were paid by the cashier of the firm by «hecks signed by the firm; that debts due the firm were offset against private debts due from the partners. He also testified that he found the policy declared on immediately after his brother’s decease; that he went to see Osborn early the week following, and demanded a blank for proof of loss; that Osborn said he would send on and have one the next morning; that he did not receive one from Osborn, and at his request called on the president of the company in New York; that the president told him that this was a peculiar case, and must go before the board, and that he must make his application to Osborn; that this call on the president was about four weeks after his brother’s death; that he should have made a demand sooner, if Osborn had not promised to furnish blank form for proof. He also testified that ’ he asked Osborn why he did not give his brother the receipt for the payment of the premium, and he replied that he held it as a voucher against his brother.</p> <p>Joseph E. Clapp testified in behalf of the plaintiff that he had been for fifteen years a book-keeper of Chickering & Sons; that he had paid the previous premiums on this policy with the checks of Chickering & Sons; that he was accustomed to pay private debts of partners by checks of firm. He also testified that he knew Osborn; that Osborn came into the office sometime previous to February 9, 1871, and said he had some money for the firm, thirty dollars over and above the amount of said Chickering’s life insurance premium. At the time of the death of Thomas E. Chickering, Osborn owed the firm about seven hundred and fifty dollars. The witness also produced the account of Osborn on the books of the firm, from which it appeared that Osborn paid five hundred dollars November 23, 1870, and one hundred and fifty dollars February 6, 1871.</p> <p>Dr. John H. Wilcox testified that he met Osborn at a supper at Thomas E. Chickering’s on the Saturday night before he died; that he overheard Osborn say to Chickering that the matter of the life insurance was all right, all correct; that this was said in answer to a question by Chickering.</p> <p>The defendant and the plaintiff, by agreement, reserved the right to object to the competency of any of the evidence. After the plaintiff’s evidence was all in, the defendant asked Cie judge to instruct the jury as follows:</p> <p>“ 1. That the evidence offered and produced by plaintiff, so far as legally admissible, in relation to the conversations and transactions between the witness Osborn and Thomas E. Chickering, does not in law, if taken to be true, establish a payment to the defendant of the premium due on the policy February 9, 1871, pursuant to the terms and conditions thereof.</p> <p>“ 2. That the evidence of the plaintiff, so far as legally admissible, does not in law show or establish a waiver by the defendant of the non-performance in regard to the payment of said premium at the time and in the manner required by the policy, nor a waiver of the forfeiture which resulted from such non-performance.</p> <p>“ 3. That the plaintiff’s evidence, so far as legally admissible, does not by law prove or establish a ratification by the defendant of the alleged arrangement or agreement by which the witness Osborn agreed with Thomas E. Chickering to take care of or pay said premium.</p> <p>“ 4. That upon all the evidence offered by the plaintiff she is not in law entitled to recover in this action.”</p> <p>The judge decided that the second and third prayers for instructions were correct and should be given to the jury; and thereupon, by agreement and consent of parties, the case was taken from the jury and reserved for the consideration of the full court, with the agreement, that if upon so much of the evidence introduced as is competent and admissible, the jury would be warranted in finding a verdict for the plaintiff, judgment is to be entered for the plaintiff for the amount of the policy and interest from May 15, 1871; otherwise judgment is to be entered for the defendant. If, however, the court shall determine that the ruling of the presiding judge as to the second and third prayers was erroneous, the case is to be submitted on these points to a jury.</p> <p>The case was argued in March, 1874, by B. W. Paine R. D. Smith, for the plaintiff, and S. Bartlett W. A. Munroe, for the defendants; and judgment afterwards ordered for the plaintiff. The defendants thereupon moved for a rehearing, and this motion was argued in November, 1874.</p>

Ireland to probate. At the trial before Morton, J., one of the questions in issue was, whether the testatrix executed the will; the attesting witnesses and two other persons testifying for the proponent that they were present and saw her sign the whole of her name to the instrument. The appellants put in evidence a prior will and codicil of the said Ireland, which were admitted in evidence. The proposed will was also put in evidence.

<p>Under the St. of 1864, c. Ill, requiring questions of law to be entered in this court “ as soon as may be ” after they are reserved by report or otherwise, an excepting party cannot as matter of right enter his exceptions in this court six months after they are allowed; but the court-may, in its discretion, allow them to be entered, on his petition, supported by proof that the failure to enter them seasonably was owing to accident or mistake.</p> <p>On the issue whether labor and materials were furnished on a contract with the defendant or a third person, the defendant put in evidence a memorandum book of the plaintiff, in which the charges were made from day to day to the third person. The plaintiff was then allowed, under objection, to put in evidence his journal, and ledger, posted from the journal, but neither of them from the memorandum book, ■ in both of which the charge was to the defendant after the work was done. Held, that the journal and ledger were improperly admitted in evidence.</p>

Complaint on the Gen. Sts. c. 87, § 6, charging the defendant with keeping and maintaining a tenement used for the illegal sale and illegal keeping of intoxicating liquors on August 1,1873, and on divers other days until September 17 next following.

Indictment, duly averring that the defendant at Lynn on October 1, 1873, and on divers other days and times between that day and the day of the finding of the indictment, kept and maintained a tenement used for the illegal sale and illegal keeping of intoxicating liquors.

Complaint to the Police Court of Haverhill on the Gen. Sts. c. 165, § 25, alleging “ that Henry McNamara of Haverhill aforesaid, on the ninth day of February, in the year of our Lord eighteen hundred and seventy-four, at Haverhill aforesaid, with force and arms was guilty of the crime of drunkenness, by the voluntary use of intoxicating liquor, against the peace of the said Commonwealth and contrary to the form of the statute in such ease made and provided.” Before plea and…

<p>Upon the issue whether the defendant was at a time alleged in the indictment the keeper of a common nuisance under the Gen. Sts. e. 87, §§ 6, 7, evidence is admissible that the defendant sold liquor in the tenement on a day certain about eight weeks before the first date alleged in the indictment, and had gone in and out of the tenement at various other times between that day and the first date alleged in the indictment.</p>

<p>A complaint under the St. of 1869, c. 415, § 44, averred that intoxicating liquor wan kept “ in a certain tenement on Derby Square, and numbered six on said square, and the rooms over the tenement on the first floor, numbered six on said square, the entrance to said rooms being numbered eight on said square.” The warrant issued on this complaint recited the averment of the complaint, and directed the officer to enter and search “ the tenement herein above described.” Held} that the warrant was void.</p>

Indictment under the Gen. Sts. c. 165, § 9, charging that the defendant, at a time and place certain, “ maliciously and without lawful… Held: by then and there forcing and thrusting the instrument aforesaid into the body and womb of one Georgiana Goff, the said Goff being then and there pregnant with child, with intent thereby, then and there, to cause and procure the miscarriage of the said Goff.” Before the jury were sworn, the defendant filed the following motion to…

Indictment for an assault' with intent to ravish, averring that on November 10, 1873, the defendant, with force and arms, at Mashpee, “ in and upon the body of Susan W. Attaquin feloniously an assault did make, and her the said Susan W. Attaquin did then and there beat, bruise, strike and wound, with intent then and there, her the said Susan W. Attaquin feloniously and violently to ravish and carnally know, by force and against her wiR” In the Superior Court, before the jury…

<p>Under the Gen. Sts. c. 116, § 13, and the St. of 1866, c. 279, § 8, the Municipal Court of Boston has concurrent jurisdiction with the Superior Court of a complaint charging an assault and battery upon a police officer while in the discharge of his duty.</p>

Tort for slander in accusing the plaintiff of fornication. The declaration alleged, in different counts, three separate conversations in which the defendant said in substance, speaking of the plaintiff, that he heard she had a pair of twins. At the trial in the Superior Court, before Lord, J., there was evidence that the defendant as a physician attended the plaintiff from November 18 to December 4, 1872, when he was dismissed.

<p>The admission of immaterial evidence is not ground for a new trial, unless the excepting party shows that he has been prejudiced thereby.</p> <p>The judge presiding at a trial may refuse to give, in the language of counsel, instructions already given in substance; and no exception lies to his remark, in so refusing, that the party was merely asking him to repeat the portion of the charge most favorable to his case.</p> <p>In an action under the Gen. Sts. c. 70, § 16, by a physician against a town, to recover for medical attendance furnished a female pauper who had a legal settlement in another town, the jury were instructed that if the pauper was in need of medical aid, and neither town furnished it, the plaintiff could recover for services rendered after notice to the town sued; that the fact that the town in which the pauper had her settlement had made an arrangement with a person to take care of her, would not prevent the plaintiff from recovering, if neither the agent nor the town sued furnished medical attendance; that if the plaintiff was informed that such an arrangement was made, it was his duty to stop attending the pauper until he could ascertain whether or not she was furnished with other medical attendance; and if he found she was not so attended and was in want, he might then have attended her and recovered his pay of the defendant. Held, that the plaintiff had no ground of exception.</p> <p>In an action under the Gen. Sts. c. 70, § 16, by a physician against a town, to recover for medical attendance furnished a female pauper having her legal settlement in another town, there was evidence that a person acting as the agent of the latter town to take care of the pauper told the plaintiff, after he was called to attend the pauper, that if he cured her he would pay him well, hut if he failed he would pay him nothing. There was no evidence that the plaintiff made any reply, or that he knew that the person was an agent. The judge instructed the jury that, if they believed this evidence, the plaintiff could not maintain the action. Held, that the evidence would warrant the jury in finding that the attendance was furnished by the plaintiff under an agreement to he well paid for it if successful, and that if he failed he was to receive nothing; and that the instruction was correct.</p>

Contract to recover the price of wood sold and delivered in April, 1872. Writ dated October 18,1872.

<p>Contract against the principal and sureties upon a penal bond, dated February 15,1873, payable to the plaintiff, and conditioned that the defendant Conway should appear at the March term 1873 of the Superior Court at Springfield, and answer to a complaint made by the plaintiff on her examination on oath before the Police Court of Chicopee, charging him with being the father of a bastard child of which she had been delivered, and that he should abide the order of the Superior Court thereon.</p> <p>The case was heard in the Superior Court by Aldrich, J., without a jury, who allowed a bill of exceptions in substance as follows :</p> <p>The only question in issue was whether there had been a breach of the bond, it being agreed by the parties that if a breach had occurred, the case should be sent to an assessor to determine the amount recoverable. The execution of the bond was admitted. It appeared by the records of the court that the plaintiff duly entered her complaint in the Superior Court, and that the defendant was then defaulted, and made no answer to the complaint. No judgment was made that Conway was the father of the child, nor other proceeding had on said complaint, but the case was continued.</p> <p>The judge found that after the default there was no adjudication of affiliation nor any other order of the court passed; that there was no evidence offered except the fact of default; that the defendant Conway was not personally present in court at the time of the default; and that there was no evidence that he was not ready or would not have been present and ready to abide the final order of the court, if such order had been passed.</p> <p>The judge ruled upon this evidence that the plaintiff was not entitled to maintain her action, and the plaintiff alleged exceptions.</p>

Contract for commissions on the sale of certain property by the plaintiffs, as real estate brokers, for the defendant.

<p>One who indorses, for the accommodation of a partnership, a promissory note signed by one member of the partnership in his own name as maker, and by the other as indorser, can recover, in an action against the partnership for money paid to its use, the amount which he is obliged to pay as indorser.</p>

Tort brought in the name of the plaintiff by her next friend, under the Gen. Sts. c. 41, § 11, for the unlawful exclusion of the plaintiff from a public school in Lynnfield. At the trial in the Superior Court, before Wilkinson, J., it appeared in evidence that the plaintiff was excluded by the teacher, under the direction of Jacob Hood, one of the school committee, for not conforming to a rule made by Hood for the government of the school.

<p>Replevin of a horse. Trial in the Superior Court, before Dewey, J., who allowed a bill of exceptions in substance as follows:</p> <p>The plaintiff testified that he was the owner of the horse replevied, and that the defendant came to him and wanted to buy the horse, and said he would give him his note with the indorsement of Elias Magoon thereon in payment; that he told the defendant that he knew Magoon, that his indorsement would be satisfactory, and that he would sell him the horse upon those conditions ; that the horse at the time of this conversation was in the possession of one Kimball, and the defendant received possession of it from Kimball; that several days after, the defendant gave the plaintiff his note payable to the order of Elias Magoon, which he said Magoon would indorse; that the plaintiff took the note to Magoon, who refused to indorse it because he said it was on too short time for the defendant to pay; that he took the note back to the defendant and got the time extended by the defendant giving two notes payable to the order of Magoon, which the plaintiff took to Magoon for indorsement, and he refused to indorse them at all.</p> <p>Elias Magoon, a witness for the plaintiff, testified that he was called upon by the defendant Dodge to indorse his notes for the payment of a horse several days before the plaintiff presented the first note for his indorsement, and he told him he would indorse for him.</p> <p>The defendant then testified that he purchased the horse of the plaintiff; that the horse was delivered to him; and that he gave the plaintiff his note in payment therefor; that nothing was said to him about indorsement until after the plaintiff had brought back the first note and had received the other two notes in place of the first; that the agreement at first was, that he would give him his note and nothing was said about an indorser.</p> <p>The judge instructed the jury that if the plaintiff sold the horse to the defendant upon the condition that he should give his note with Elias Magoon as indorser, no property passed until the note was indorsed; but that if the sale was made by the plaintiff to the defendant and nothing was said about an indorser, and he took the defendant’s note in payment without any indorser, and the horse was delivered to the defendant, that vested the title to the horse in the defendant; that the question turned upon the original contract, whether or not there was an agreement, forming a part of the contract of sale, that there should be an indorser. No exceptions were taken to these instructions.</p> <p>The jury retired, and after several hours returned into court for further instructions, and asked the following question: “If the defendant gave the plaintiff the first note in payment for the horse, whether the property passed to the defendant.” The court thereupon instructed the jury, that if the defendant gave that note in payment for the horse, the property passed to the defendant. The plaintiff thereupon asked the court to further instruct them, contending that the last instruction might mislead the jury, “ that if the original agreement was that that note should be indorsed, the property did not pass by giving the note to the plaintiff ; ” but the judge having answered the question asked by the jury,’ declined to give any further instruction. The jury found for the defendant, and the plaintiff alleged exceptions to the instruction in answer to the question of the jury, and to the refusal of the judge to further instruct them as requested.</p>

Replevin. The writ, which was served by a constable, directed the officer to “ replevy the goods and chattels following, viz.: the contents of a grocery store, so called, situate on Lee Street in Marblehead, and numbered 3 on said street, belonging to Charles H. Litchman and William T. Litchman, now taken ami held by Daniel Potter.” There was no allegation in the body of the writ of the value of the property to be replevied; but there was an agreement signed by the parties…

Petition to enforce a lien under the Gen. Sts. e. 150, for labor performed and materials furnished in the construction of a block of five houses in Lawrence. The case was sent to a referee, the nature of whose award appears in the opinion.

Petition on • the Gen. Sts. c. 150, to enforce a lien for labor performed and materials furnished in building a house and stable on the respondent’s land, alleged to have been performed and furnished by the petitioner under a contract with the respondent, which contract was under seal. The answer admitted the making of the contract.

<p>A decree against an infant trustee, even when the trust results by implication of law, is not erroneous for want of allowing him a day to answer after coming of age.</p> <p>A decree made upon the consent of the guardian ad litem of an infant, and upon the representations of counsel and adjudication of the court that it was a decree fit and proper to be made as against an infant, is binding upon him.</p> <p>A decree ordered four heirs at law, two of whom were infants, to convey an estate to the cestui que trust of their ancestor. Before the conveyance the cestui que trust died, having previously conveyed his interest in the estate to the two heirs who were of age. A decree was then made, reciting these facts, and ordering the infant heirs to convey their interest in the estate to the other heirs. Held, on a bill of review brought by the infant heirs against the others, to reverse the decree, that the cestui que trust had an equitable fee simple which he could convey, and that the fact that the conveyance had not been made to the cestui que trust was no ground for reversal.</p>

Contract to recover money deposited by the plaintiff with the defendant in the name of Mary E. Sweeney, the plaintiff’s wife, but alleged to belong to .the plaintiff.

Replevin of certain articles of jewelry. Trial in the Superior Court, before Putnam, J., who allowed a bill of exceptions in substance as follows: The defendant, a deputy sheriff, claimed the property by virtue of an attachment upon a writ of J. N. Kendall against I. M-. Friselle, dated May 2, 1872. Friselle filed a petition in bankruptcy under the laws of the United States, June 6, 1872, and was on the same day adjudicated a bankrupt.

Replevin of a locomotive boiler. Writ dated June 14,1869. The answer set up the ownership of the replevied property in Isaac M. Cate, and the defendant’s right of possession in the same as Cate’s agent and keeper.

Contract for breach of warranty against incumbrances contained in a deed of land from the defendant to the plaintiff, dated July 11, 1870. Writ dated November 4, 1870. At the trial in the Superior Court, before Pitman, J., it appeared that the defendant was adjudicated a bankrupt September 2, 1872, and obtained a discharge on May 5, 1873.

Contract upon the following award in writing and signed by the arbitrators: “ The undersigned, to whom was referred a matter of difference of opinion between Henry B. Blackwell and Abel Goss, in relation to the ownership of a horse, owned at different times by each of the parties, after a full consideration of the facts in the case, made this award: that Goss shall pay to Blackwell the sum of $140 in cash.” At the trial in the Superior Court, before Putnam, J., without a…

Tort for fraudulent representations, whereby the plaintiff claimed to have been fraudulently induced to enter into a copartnership with the defendant for the manufacture of glass at South Boston, under the style of the Phoenix Glass Works.

Contract upon the folio-wing promissory note, signed by the defendant: “ $422.83. Boston, May 31, 1869.

<p>If goods of a tenant of part of a building are injured by water escaping from a waste pipe and from an engine, through the negligence of the landlord, who occupies the rest of the building, and who has charge of the waste pipe and engine, the tenant may maintain an action therefor against the landlord.</p> <p>In an action for injury done to goods by water, the judge instructed the jury on the question of damages, that the evidence must be such that they could decide thereon as to the amount of damage; that guesses of witnesses were not sufficient to found a verdict upon; that the judgment of persons having sufficient knowledge and opportunity of judging as to the amount of goods injured, and as to the extent of the injury, was competent; that exact accuracy in testimony was not required, but that the jury could not give damages to an amount exceeding what they were satisfied of on the evidence. Held, that the defendant had no ground of excep tian.</p> <p>If goods are damaged by two different causes, and the defendant is only responsible for one of them, the burden of proof is on the plaintiff to show the extent of the damage occasioned by the cause for which the defendant is liable.</p> <p>In an action for injury sustained by the goods of a tenant who occupied part of a building, caused by the negligence of the landlord who occupied the rest of the building, in not keeping a waste pipe which was in his charge, in repair, there was evidence that the floor of the plaintiff’s premises was not level, and that the water flowed down the incline to the goods. The defendant asked the judge to instruct the jury that he was not liable if there was any negligence on the part of the plaintiff in not looking after the waste pipe, or if the fact that the floor was not level caused any additional damage. The judge refused to give these instructions,! and instructed the jury that for injuries arising from the plaintiff not taking reasonable precaution to prevent injury, when he had reasonable cause to believe that such precaution was reasonably necessary to avoid damage to his property, the defendant was not liable. Held, that the defendant had no ground of exception. ;</p>

Contract for money had and received, with counts on an agreement to repay money paid by the plaintiff to the defendant on a contract, alleged to have been rescinded.

<p>Tort against the sheriff of the county of Berkshire for the official misconduct of Horace S. Streeter, one of his deputies, in converting to his own use a span of horses, alleged to be the property of the plaintiff by virtue of a mortgage to him from one C. I. Ray. The answer set up a special property in Streeter by virtue of an attachment upon a writ in an action in which Richard Prout was defendant. Trial in the Superior Court, before Allen, J., who allowed a bill of exceptions in substance as follows:</p> <p>The plaintiff testified that he sold the horses to Ray on December 30, 1871, and took his promissory note therefor for |330, payable on demand, with interest, and also a mortgage of the horses to secure the payment of said note; that on the day of the sale, Ray took possession of the horses, and they remained in his possession about five weeks, when the plaintiff demanded payment of the note of Ray, who declined to pay it, and thereupon the plaintiff demanded possession of the horses, and they were immediately surrendered to him by Ray; that the horses remained in his possession some three or four days, when they were attached by Streeter.</p> <p>There was no evidence tending to prove that the plaintiff had ever given the notice of foreclosure as required by statute, or that Ray had ever offered to redeem the horses. The plaintiff put in other evidence tending to corroborate his testimony, and rested his case.</p> <p>The defendant introduced evidence tending to prove that the horses were delivered up to the plaintiff by Ray, in satisfaction of the mortgage, and that the note and mortgage were fictitious, and intended to keep the horses from the reach of the plaintiff’s creditors.</p> <p>The defendant requested the judge to instruct the jury “ that in no view of the case was the plaintiff entitled to recover, and that they must find a verdict for the defendant.” The judge declined to so instruct the jury, but did instruct them, among other things not excepted to, that if the jury were satisfied from the evidence that the horses were delivered up to the plaintiff by Ray on the mortgage for the purpose of foreclosure, they were not liable to attachment upon the writ against the plaintiff while so held, and before foreclosure, and the jury must in that case find a verdict for the plaintiff. The verdict was for the plaintiff, and the defendant alleged exceptions.</p>

<p>Tort for breaking and entering the plaintiff’s close.</p> <p>At the trial in the Superior Court, before Dewey, J., the plaintiff put in the deed under which he claimed title to the premises in dispute, the description in which began as follows : “ Beginning at the northwest corner of the premises hereby conveyed, at a stake and stones, on land formerly owned by Joseph Lyman,” and, having given courses and distances to a certain stake and stones, concluded with “ thence west twenty degrees north seventy-seven rods to the first mentioned bound.” Upon this description, it being conceded that “the northwest corner of the premises ” conveyed by the deed was at the corner of the land mentioned in said deed as “ land formerly owned by Joseph Lyman,” evidence to establish the position of that corner was introduced by both parties. The defendant called Joseph Lyman, who testified that he was a son of the Joseph Lyman named in the deed; that his father, who had been dead many' years, formerly owned the land mentioned in the deed as “land formerly owned by Joseph Lyman; ” that he had a conversation with his father in his lifetime, fifty-two years ago, while he owned said land, and when he was on the same, about the corner mentioned in said deed. The witness was asked what statement his father made, and the judge ruled that the evidence offered was not admissible. Neither of the Lymans had ever owned the land in dispute in the present action. The jury found for the plaintiff; and the defendant alleged exceptions to the exclusion of this evidence.</p>

<p>One who makes a valid conveyance of real estate subject to a verbal agreement that the grantee shall support the grantor and his family, and give back a mortgage or life lease of the property, may, upon the refusal of the grantee after part performance to fulfil his verbal promise, recover the value of the property conveyed, deducting so much as he has received from the previous part performance of the agreement, or the value thereof.</p>

<p>Where A., in consideration of a sum of money lent to him by B., and of a note made to him by B. for the payment of an additional sum in four months, makes and delivers to B. a note for the amount of both sums, payable in six years, together with an assignment, as collateral security for the payment thereof, of a contract relating to certain real estate, the promise of A. to pay his note at maturity, and the delivery of the collateral security, constitute a sufficient consideration for the promise contained in B.’s note to pay the sum therein expressed at an earliet •date.</p>

<p>Tort under the Gen. Sts. c. 44, § 22, for a personal injury sustained by reason of an alleged defect in a highway in the defendant town.</p> <p>At the trial in the Superior Court, before Aldrich, J., there was evidence that the plaintiff was driving on Main Street in Northampton, across a railway track constructed in the wrought and travelled part of said street by the Northampton and Williamsburg Street Bailway Company, when one of the fore wheels of .his wagon was caught by one end of a guard rail in the track of the railway; that the wagon was suddenly stopped, the horses became detached, and the plaintiff was thrown from the wagon to the ground and injured. There was also evidence tending to show that the guard rail had become loosened from its original position and fastening more than twenty-four hours before the accident, and that the part of the rail with which the wheel came in contact projected upwards above the level of the main tracks. On this part of the case there was conflicting evidence.</p> <p>The railway was constructed in conformity with the provisions of the charter of the company, unless the place of the guard rail constituted an exception. As part of such construction, the company placed at a curve -in the railway a guard rail, some seventy feet in length, just inside the north main rail and between the two rails on which the cars ran, the purpose of which was to keep the cars on the track while passing the curve at this point. It was laid on, and fastened to, timbers underlying it in the road bed, in the same manner as were the rails which formed the main track.</p> <p>The following questions of law arising at the trial were, by consent of parties, reported before verdict for the determination of this court:</p> <p>“ 1. If the guard rail was an unnecessary part of the track, or so improperly or insufficiently laid in the construction of the railway as to be a defect or want of repair, through which the plaintiff while travelling on the highway and using due care, received bodily injury, or damage to his property, was it a defect or want of repair in the highway for which the defendant is liable?</p> <p>“ 2. If the guard rail, loosened from its original position and fastenings, and projecting upwards at one end more than twenty-four hours before the accident, was a defect or want of repair through which the plaintiff while travelling on the highway and using due care, received bodily injury, or damage in his property, was it a defect or want of repair in the highway for which the lefendant is liable ?</p> <p>“ If the defendant is liable on either or both grounds stated, the case is to stand for trial; if not liable upon either ground, the plaintiff is to become nonsuit.”</p>

<p>Petition to establish the truth of exceptions alleged by Amos Sawyer and Theodore Clapp in an action brought against them by the Yale Iron Works, and disallowed by Wilkinson, J., who presided at the trial in the Superior Court.</p> <p>The petition was referred by this court to a commissioner, to hear the parties and report his findings.</p> <p>The bill of exceptions, as tendered by the petitioners, was as follows; the words printed in italics and not in brackets being those which the commissioner reported should be stricken out; the words printed in brackets being those which the commissioner reported should be inserted, except the letters and figures prefixed to the instructions, which are here added for convenience of reference to the commissioner’s report as stated below; and the words printed in italics and inclosed in brackets being those found by the commissioner to have been in the requests as presented to the judge at the trial, as to which the commissioner reported that no exceptions ought to be allowed:</p> <p>“ Action of trover to recover the value of a steam boiler. The boiler was bought by Jonathan E. Janes, and was set in brick previously to April 18, 1871, in a building built by him on land of Lowell E. Janes, his father. It was set in such manner that it could not be removed without taking down the brick, and was so placed to be used as a part of a steam saw-mill in said building.</p> <p>“ Jonathan E. Janes testified that there was no agreement between him and his father in regard to putting either said building or boiler on his father’s land; that he was an only child, living separate from his father, but in the same house, and then expected eventually to own the land. [He further testified to circumstances and acts which the plaintiffs claimed tended to show that the building and boiler were so placed on the land of the father with the father’s permission and consent, and under an understanding that the same continued the property of Jonathan E. Janes, and was subject to removal.]</p> <p>“ On April 17, 1871, Lowell E. Janes executed a mortgage of this real estate, on which said mill and boiler then was, to the Haydenville Savings Bank, without special mention of anything on the land, but with a covenant that the premises were free of incumbrances. Jonathan E. testified that he procured the loan from the savings bank, was present when said mortgage was executed, and that his father gave said mortgage at his request and to raise money for putting in said mill and machinery.</p> <p>“ There was evidence tending to show that in May, 1871, Jonathan E. set a steam-engine in said mill, on brick, and bolted down, which engine he bought of the plaintiff.</p> <p>“ On September 14, 1871, he mortgaged said engine and boiler to the plaintiff as personal property, by a mortgage not under seal, to secure the price of the engine. This mortgage was recorded in the town clerk’s office, and notice of foreclosure given on December 18, 1871. The plaintiff claimed title to the boiler by virtue of said mortgage and foreclosure.</p> <p>“ On December 20, 1871, Jonathan E. Janes went into bankruptcy. On February 10, 1872, Lowell E. Janes also went into bankruptcy. The defendant Clapp was duly appointed assignee of both estates. On March 17, 1872, Lowell E. Janes died. In June, 1872, the assignee sold said boiler to Sawyer, the other defendant, by whom the same was disannexed and removed.</p> <p>“ The treasurer of the savings bank testified that the sale of the boiler was without the consent of the bank; that the bank [had not made any claim and] did not relinquish any rights, but should maintain its rights under the mortgage; that the bank had no knowledge of any understanding between the father and son about the boiler or mill [and engine].</p> <p>“ The plaintiff offered evidence that Jonathan JE. had mortgaged other machinery in the mill to other parties, as personal property. The defendants objecting, the court admitted the evidence for the purpose of showing that Jonathan JE. had treated the machinery by him put in the 'mill as his personal property. [The plaintiff offered in evidence other mortgages of other machinery in said mill, given by Jonathan E. Janes to other parties, as personal property; and, upon the defendants objecting, they were excluded. Jonathan E. Janes having sworn that there was no agreement with his father about putting this property upon the real estate, he was recalled, and asked if he had not made written declarations to other parties that this property was personal property and contradictory to his statement, and he said he had not. The plaintiff then offered the mortgages, and they were admitted for the purpose of contradicting Jonathan E. Janes.]</p> <p>v The defendants contended that the savings bank had the right to the possession of said boiler, and asked the court to instruct the jury as follows :</p> <p>[A. 9.] “ If the boiler was so annexed to the real estate in the first instance as to be the personal property of Jonathan E., yet if he agreed that the father might mortgage it to the savings bank, or if he was present, acting with or for his father in giving said mortgage of the land upon which was the mill and boiler, the boiler would pass with the land, and the defendants may avail themselves in this action of the savings bank title.</p> <p>[B. 1.] “ [If the savings bank had a mortgage due and unpaid of the real estate on which the boiler was set in bricks to operate a mill there, the boiler would pass with the real estate, and the bank would have the right to the possession thereof.]</p> <p>[B. 2.] “ Where an only child set a boiler in bride on the land of his father, without any understanding between father and son other than such as arose from their relations, there is no implication that the boiler was the personal property of the son; the implication, if any, is that it becomes real estate.</p> <p>[A. 1.] "Aside from any agreement to the contrary, the boiler was so attached to the land [of the father] as to become part of the realty. [In other words, if the boiler had been placed and affixed in the manner it was by Lowell JE. Janes himself, and for himself, or if it had been so placed and affixed by him or for his benefit, it would be part of the realty, and pass by his deed to the savings bank, whether that deed was executed and delivered before or after the boiler was so annexed.]</p> <p>[A. 2.] “ To show that it remained personal property of [that might be mortgaged by] the son, the jury must be satisfied that there was an agreement, express or implied, between father and son, that when the boiler was annexed to the realty [of the father], it should [not become part of it, but still] remain the property of the son.</p> <p>[A. 3.] “ Such agreement [between father and son] must be made before or at the time the boiler was so annexed.</p> <p>[A. 4.] “ The giving of a mortgage [or mortgages] by the son is no evidence of such [assent and] agreement on the part of the father, unless the father had notice or knowledge of such mortgage. [And the mere record of the mortgage or mortgages is not evidence of such knowledge o? notice.]</p> <p>[A. 5.] “ The sale and removal of the boiler by the [defendant Clapp as] assignee is not evidence of an understanding [or agreement5] between the father and son [at the time the boiler was annexed or before] that it should remain personal property.</p> <p>[A. 6.] “ If there was such understanding [and agreement] between the father and son, nevertheless the boiler was so annexed to the land as to pass by the mortgage to the savings bank, unless the bank has had notice or knowledge of such [understanding or] agreement [before or] when it took said mortgage. [And there is not only no evidence that it had such knowledge or notice, but evidence that it had not.]</p> <p>[A. 7.] “ The*plaintiff must recover upon the strength of its own title. [And it has shown that the savings bank has a better title.]</p> <p>[A. 8.] It being in evidence that the savings bank [relinquishes no right acquired under the mortgage, but] intends to maintain [insist upon] all its rights under the mortgage, the defendants are liable [if at all] to the savings bank, and not to the plaintiff.</p> <p>“ The judge declined thus to instruct the jury; and instructed them that the sole question was whether there was an understanding between the father and son that the boiler, when annexed to the realty, should remain the property of the son; and if there was such understanding, the mortgage to the savings bank would be no defence, and the plaintiff could recover the value of the boiler in this action; [and, after instructing the jury as to the conditions and circumstances under which this property would be real estate or personal property, in a manner not excepted to, ruled that the question whether it was real estate or personal property. must be determined by what took place before or at the time it was put upon the land, and that nothing had transpired since which could be considered by the jury as affecting this question; that the fact that the property was afterwards mortgaged to the savings bank, without anything being said as to this boiler and engine not being real estate, would hot be a bar to the plaintiff’s recovery, but that the plaintiff might now come forward and show that when the mortgage was made it was personal property and not real estate; that the defendants could not interpose the bank title as a bar to the plaintiff’s claim.]</p> <p>[“ The defendants asked the court to rule that when an only child, upon land of his father, sets a boiler in brick to operate machinery there, without any understanding between the father and son other than such as arises from their relations, there is no implication that the boiler remained the personal property of the son; but the implication, if any, is that it becomes realty. But the court declined so to rule ; and ruled that the fact that Jonathan E. Janes was an only son of Lowell E. Janes, and lived in the same house with his father, did not authorize the implication that this property in question was personal property when put upon the land, nor did it authorize the implication that it was to be real estate.]</p> <p>“ The jury returned a verdict for the plaintiff. To which rulings the defendants except, and pray that their exceptions may be allowed.”</p> <p>The commissioner’s report, after specifying the alterations to be made in the statement of the evidence in the bill of exceptions, proceeded as follows :</p> <p>“ I further find that the defendants’ counsel handed the judge who presided at the trial, as he arose to charge the jury, certain written requests for instructions, being those marked A. 1, 2, 3, 4, 5, 6, 7, 8 and 9. The judge stated, in substance, that he could not stop then to read them, but that he would consider them as handed in, and would charge the jury, and if there were any matters not covered by the charge, his attention could be called to them. The counsel for the defendants then called his attention generally to their requests by reading to him portions of them. The counsel for the defendants did not understand, as the matter was then left, that they were to call the attention of the judge again to their requests, in order to save their clients’ rights in reference to the matters contained in the requests, in case the judge should not instruct the jury as requested.</p> <p>“ The judge instructed the jury as to the conditions and circumstances under which this property in question would be real estate or personal property. He ruled that, prima fade, it would go with the land ; but if it was put on the land by the son, with' the knowledge and consent of the father, under an agreement, express or implied, that the same should remain the personal property of Jonathan E. Janes, and that Jonathan E. Janes might remove the same at Ms pleasure, then it would not go with the real estate, but would remain the property of Jonathan B. Janes; that the question whether it was real estate or personal property must be determined by what took place before or at the time it was put upon the land, and that nothing had transpired since which could be considered by the jury as affecting this question; that the fact that the property was afterwards mortgaged to the savings bank without anything being said as to the boiler and engine not being real estate, would not be a bar to the plaintiff’s recovery, but that the plaintiff might now come forward and show that when the mortgage was made it was personal property, and not real estate; that the defendants could not interpose the bank title as a bar to the plaintiff’s claim.</p> <p>“ The judge explained to the jury the effect of the admission of the subsequent mortgages by Jonathan E. Janes of other property in said mill as personal property, and the ground upon which they were admitted under the statute. He charged the jury that they were not evidence of the fact that it was personal property, but were only admitted to contradict the witness Jonathan E. Janes.</p> <p>“ After the judge had finished his instructions, the counsel for the defendants handed him two other requests, marked B. 1 and 2. To the request marked 1, the judge said that Ms charge covered it; and as to the one marked 2, he instructed the jury that the fact that Jonathan E. Janes was an only son of Lowell E. Janes, and lived in the same house with Ms father, did not authorize the implication that tMs property in question was personal nroperty when put upon the land, nor did it authorize the impliation that it was to be real estate.</p> <p>“ No exceptions were taken by the counsel for the defendants ic the instructions given, except such as may be considered as taken by the facts above stated.</p> <p>“ I find that the jury were not instructed as requested in the requests marked B. 1 and 2, and that the exceptions to the instructions given on these points were properly saved and ought to be allowed.</p> <p>“ I find that, although the requests marked A. 1, 2, 3, 4, 5 and 7 are not stated in the bill of exceptions precisely as handed to the judge, the jury were instructed substantially as requested therein, and that no exceptions ought to be allowed on these points.</p> <p>“ I find that the jury were not instructed as requested in the requests marked A. 6, 8 and 9. I find that if the attention of the judge was not sufficiently called to these points by the requests handed to him before his charge, and by reading portions of them to him, it was called to the points therein after his charge by handing him the request marked B. 1; and therefore that the exceptions to the instructions given on these points were properly saved. I find that the requests 6, 8 and 9 were not stated in the bill of exceptions precisely as handed to the judge, but substantially the same. I therefore find that the exceptions to the instructions given on the points embodied in these requests ought to be allowed.</p> <p>“ I find that the bill of exceptions presented to the judge for allowance, and annexed to the petition, was not correct and ought not to have been allowed; that a true bill of exceptions requires the changes above stated, so that the bill will read as follows," namely, as above printed, excluding all the words printed in italics, and the letters and figures prefixed to the requests for instructions, and including the other words printed in brackets.</p> <p>The judge who presided at the trial made, upon the bill of exceptions tendered to him, and ordered to be filed, the following certificate:</p> <p>“ The exceptions are disallowed. The evidence is incorrectly stated. On the part of the plaintiff, the evidence tended to show that the boiler was put into the building of the father with his consent, for the sole benefit of the son; that it was designedly so fixed, and the building so fitted, that it might be removed at the will of the son without injury to the freehold, and that all this was done with the consent of the father. There was no evidence that the savings bank had made any claim to the boiler. I do not remember any exception as to the admission of. other mortgages of the boiler by the son.</p> <p>“ As to the written prayers for instruction, I stated to the counsel that if, after my charge to the jury, they should think there were any of their prayers not sufficiently covered by instructions, to call my attention to them. This was done in several instances, and further instructions were given and no exceptions were taken.</p> <p>“ The clerk may enter the exceptions disallowed, unless the parties make some other agreement, and file this paper.”</p>

<p>Contract on a promissory note for $1324.15, made by the Hampden Manufacturing Company, and indorsed by Jabez Stanton, deceased, who, by his will, made his widow, Rachel W. Stanton, executrix and residuary legatee.</p> <p>In December, 1872, the Probate Court admitted the will to probate, and appointed Mrs. Stanton executrix, and approved a bond filed by her, with sureties, in the sum of $3000, to pay debts and legacies.</p> <p>The plaintiff made a demand on her for payment of the note, and, the same not being paid, on May 12, 1873, brought this action, returnable at June term of the Superior Court, against her as executrix of Jabez Stanton. The writ commanded the officer to attach the goods and estate of the testator in her hands; and the declaration alleged the making and indorsement of the note, demand of payment on the maker, its neglect to pay, and due notice to the testator of nonpayment, the probate of the will, the defendant’s acceptance of the trust of executrix and giving bond to pay debts and legacies, that the note was a just debt against the testator, and that the defendant owed the plaintiff the amount thereof and interest.</p> <p>The Probate Court in June, 1873, upon the petition of another creditor, ordered that she should give a new bond with sureties in the sum of $20,000, and, after notice to her to show cause against it, and she not appearing nor filing such a bond, on August 5, 1873, passed an order removing her from her trust as executrix, and appointed Enos Parsons administrator de bonis non, with the will annexed, who gave bond in the usual form, with sureties to the satisfaction of the judge of probate, for the performance of his trust.</p> <p>At October term, 1873, of the Superior Court, Mrs. Stanton filed an answer, alleging her removal and the grant of administration to Parsons, and therefore that she ought not to be held to answer to this action.</p> <p>At the same term, Parsons applied for leave to come in and take upon himself the defence of the action; and at February-term 1874, (having meanwhile represented the estate insolvent, and commissioners having been appointed by the Probate Court to receive proof of debts against it,) was permitted to appear and file an answer, setting up, 1st. That the action was prematurely brought, namely, within one year from the approval and filing of the bond given by the executrix. 2d. The representation of insolvency and appointment of commissioners, and that the plaintiff’s claim was provable before the commissioners and not in this action. 3d. His ignorance of the facts alleged in the declaration, so that he could neither admit nor deny, but left the plaintiff to prove the same.</p> <p>Ho question was made by Mrs. Stanton as to her liability upon the note in suit, except by reason of the order removing her from the trust of executrix. There are not known to be any assets of the estate, except real estate valued at about $3000, and Mrs. Stanton’s bond, so far as that can be deemed assets.</p> <p>By consent of parties, and before verdict, the case was reported by Aldrich, J., for the consideration of this court. If, upon the facts above stated, the action could be maintained against Mrs. Stanton, either as executrix or as residuary legatee, judgment to be rendered for the plaintiff for the amount of its claim in such form as this court might determine; if it could not be maintained against her, but might against the administrator de bonis non, the case to stand for trial; otherwise, the plaintiff to become non-s rit.</p>

<p>Contract by the United States marshal against the sureties on a bail bond, reciting that a warrant had issued out of the District Court of the United States for the district of Massachusetts, for the arrest of Washington Graves. The condition was that Graves should “ appear before said court, at such times as shall by said court be required, until the decision of said court upon the petition in bankruptcy filed against said Graves, in said court, and until the further order of the court.” The declaration alleged as a breach that Graves did not, when ordered by said court, appear before I. F. Conkey, a register in bankruptcy.</p> <p>The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, on an agreed statement of facts, in substance as follows:</p> <p>The bail bond was signed by the defendants on December 28, 1872. On September 10, 1872, a petition was filed in the United States District Court by a creditor of Graves, asking that said Graves be adjudged a bankrupt, for causes set forth therein. Upon the filing of this petition, the court directed the entry of an order requiring the bankrupt to appear and show cause according to the provisions of § 40 of the U. S. St. of 1867, c. 176, and issued a warrant to the United States marshal, commanding him “ to arrest the alleged bankrupt and him safely keep, unless he shall give bail to the satisfaction of the court for his appearance from time to time, as required by the court, until the decision of the court upon the petition, and until the further order of the court.”</p> <p>On September 23, 1872, Graves was adjudged a bankrupt upon the above petition, No arrest or service of the warrant was made until after said adjudication, and after a meeting of creditors had been held and an assignee appointed. On December 28, 1872, the marshal arrested Graves upon said warrant, and he gave the bail bond with sureties now declared on. Some weeks after the bond was executed, the assignee procured an order of the court, directing Graves to appear for examination before I. F. Conkey, a register in bankruptcy, and this order was served according to the precept thereof, but Graves failed to appear. The sureties were also notified to produce Graves for examination under the order, but failed to do so.</p> <p>“ If upon the foregoing facts the plaintiff is entitled to recover, judgment is to be entered for the plaintiff, and damages are to be determined according to principles of law applicable to such cases ; otherwise, judgment for the defendants.”</p>

<p>The St. of 1871, c. 177, declares the bridge over the Connecticut River, between the towns of Northampton and Hadley, to be a public highway upon the acceptance by this court of the award of commissioners to be appointed under the act. It then provides that the commissioners shall determine the amount of the damages to the proprietors of the bridge, and what proportions of the damages shall be paid by the towns benefited and by the county of Hampshire; that the decree of the commissioners shall he made to this court for said county, and also to the bridge proprietors, to each of said towns, and to the county commissioners of said county; that the decree shall be binding upon all the parties interested, reserving a right of appeal to a jury; and that “ if neither party shall so appeal to a jury within sixty days after receiving the award and decree of said commissioners, as aforesaid, then the same shall be absolutely binding upon all the parties interested therein.” The commissioners made their award to this court, and it was filed in the clerk’s office, but not during a term of the court; it was also made on the same day to the parties interested. The award stated the rulings of the commissioners on various questions of law which they therein reserved for the consideration of this court. At the next term of this court in said county, but more than sixty days after the award was made and filed, some of the parties interested claimed an appeal to a jury. Held, that in the absence of an appeal to a jury, the award of the commissioners was final, and that they could not reserve questions of law for the consideration of this court. Held, also, that the appeal to a jury was taken too late, and that the award must be accepted.</p>

Contract upon an account annexed for sawing lumber for Harvey Strong and Chester Strong. Writ dated October 12, 1872. Answer: 1. A general denial; 2. The general statute of limitations; 3. The special statute of limitations of actions against executors and administrators.

<p>Goods of a partnership were attached in an action against one of the members thereof, and were delivered to a receiptor who signed a receipt reciting the value of the goods and that they were free from incumbrance, and agreeing to keep the goods without expense to the attaching officer, to deliver them to him as he should appoint, and to save and keep him harmless from all cost, trouble and expense that should arise to him through default in consequence of his entrusting the goods to the receiptor. At the time of the attachment the partnership had not enough property to pay the partnership debts, and more than four months afterwards the members of the firm went into bankruptcy and received their discharge. A special judgment was obtained against the property attached in the original action and a demand made upon the receiptor. Held, in an action by the attaching officer against the receiptor that the latter was not estopped to set up the bankruptcy proceedings, and that the action could not be maintained.</p>

Contract for keeping the highways and bridges of the defendant town in repair, in 1870.

Bill in equity to abate a nuisance, alleging the following facts : 1. The ownership by the plaintiff, a manufacturing corpora-. tian, of a tract of land in the southerly part of Worcester, in the village of Quinsigamond, lying on both sides of Blackstone River, having thereon a rolling mill, and tenement houses used by the workmen in the mill, and a dam across said river, and a pond of water for supplying water power for working said mill. 2.

<p>Contract for breach of an agreement to sell certain land for the plaintiff and return the proceeds to her. There was also a count for money had and received.</p> <p>At the trial in the Superior Court, before Allen, J., the plaintiff testified that she conveyed the land in question to the defendant, she having a life estate therein, by a deed of quitclaim on February 14, 1871; and that no paper in writing in relation to said land was ever delivered to her, or to any person for her, by the defendant. She was also allowed to testify, against the defendant’s objection, that before and at the time of the delivery of the deed to the defendant, he told her that he would sell the land for her, and return the proceeds to her, to the extent of her interest in it.</p> <p>The defendant put in evidence tending to prove that at the time the deed was delivered, he was the guardian of a minor who owned one undivided half of the fee in the land, and that he executed a bond, whereby he agreed to sell the land and pay the plaintiff and the owner of the fee of the other undivided half their respective proportions; that he and the plaintiff agreed that the bond should be deposited with James E. Pollard as the property of the plaintiff and the grantors in the deed and obligees in the bond, and that it was so deposited soon after in accordance with the agreement.</p> <p>The defendant also offered evidence tending to show that a few weeks after the deed was executed he sold the interest of all the parties in the estate for $1200 ; that after he had made the bargain, but before the deeds had been passed, and before he had obtained leave from the court to sell the interest of his ward, the plaintiff knowing that the bargain had been made for $1200, one half to be paid when the title should be made good and leave to sell the minor’s interest obtained, the remainder to be secured by mortgage payable in one year from that time, consented to its being sold for that price and on those conditions, and expressed herself satisfied therewith, and asked the defendant what he, the defendant, would give for her interest in the property and pay her the money then; that the defendant told her she had better wait till he got the pay for the property as she would get more out of it than he would then give; that she insisted that the defendant should make an offer, which he did ; that the plaintiff then asked him if that was the best he would do, to which he replied he would give $23 more, making in ah his second offer $328; that she then told him she would accept his proposition; that he told her he had not the ready money, but could get it from Benjamin Cowell, who lived a few miles distant, and he would like to have the bond assigned to said Cow-ell as security for the money, and he would get the money that night, if the plaintiff would go with him to said Cowell, who lived a few miles distant; that he, in the presence of the plaintiff, wrote an assignment of the bond to said Cowell, and immediately thereafter she said she would rather take the defendant’s note than go to Cowell’s, and the defendant at once gave his note for the amount, and at the same time the assignment was delivered to the defendant by the plaintiff; that the plaintiff was about fifty years of age and of usual intelligence.</p> <p>The defendant also offered evidence tending to show that at the time this suit was commenced the deed had been given and mortgage taken to which the plaintiff had assented, but that the defendant had received only $600 on account of the sale, the mortgage being then unpaid and not due. There was evidence tending to show that the defendant had received $600 in cash at the time of the sale, and a note dated June 1,1871, for $600, payable in one year; that said note was indorsed by the defendant and the money obtained on it by him from a bank in June, 1871.</p> <p>The defendant asked the judge to instruct the jury as follows ; “ 1. That if the defendant at the time the deed was executed delivered to her, or, for her, to some one else, the bond produced by him; and subsequently the plaintiff, with a full knowledge of all the facts and by a clear and distinct contract sold to the defendant all her interest in the bond for a consideration by an instrument under seal, and it was assigned to Benjamin Cowell at the defendant’s request in trust for him, and at the time of delivery the plaintiff knew it was for the benefit of the defendant, and it waa delivered to the defendant, and no advantage was taken by the defendant of any information he had either as trustee oi otherwise, and no influence was exerted by the plaintiff over the defendant, the plaintiff cannot recover. 2. That if no bond or instrument in writing was executed by the defendant at the time the deed was given, then the plaintiff cannot recover. 3. That if the bond was given at the time the deed was executed and the money had not all been collected at the time suit was commenced, then the plaintiff cannot recover.”</p> <p>The judge refused to give these instructions, but instructed the jury that the contract, by which the defendant claimed to have taken the assignment of the bond to Benjamin Cowell, was one which from his relation to the plaintiff he could not make, and the jury must not consider the evidence on that point; that, after deducting, from the amount the defendant had received before the commencement of this suit, his expenses and services in the matter, the plaintiff would be entitled to her interest in the balance; and that if the defendant got the mortgage note discounted and used the proceeds himself at the bank and indorsed it himself, he would be accountable to the plaintiff for her life estate in the sum he received therefor, although the mortgage note was not collected.</p> <p>The jury returned a verdict for the plaintiff for $383.63, and the defendant alleged exceptions.</p>

<p>Writ of entry, to recover a farm in Lancaster. Trial in the Superior Court, before Pitman, J., who allowed a bill of exceptions in substance as follows :</p> <p>The farm was alleged to be held by the tenants by a title fraudulent as against the creditors of John Cunningham, the tenants’ father. The tenants derived their title by deed from the said John Cunningham, bearing date November 28, 1871</p> <p>The farm was subject to a mortgage, given by John Cunningham, at the time of this conveyance, which mortgage is still outstanding. Some years prior to November, 1871, John Cunningham had been in the habit of indorsing notes for the firm of Cunningham Brothers, which notes Cunningham Brothers were in the habit of getting discounted at banks, or of selling to individuals, and which, as they matured, were paid or retired by new notes of similar amounts and similarly indorsed. The firm of Cunningham Brothers consisted of three nephews of John Cunningham ; and all notes indorsed by John Cunningham bore the prior indorsement of their father, whom John Cunningham testified he believed was a man of substantial property. The amount of these indorsements during all the time in question was about $4000, which amount was at all times outstanding against the partners down to August 4, 1872, when Cunningham Brothers failed, and shortly after instituted proceedings in bankruptcy. At this time the plaintiff was the holder of their note for $2400, indorsed by John Cunningham (some time after this conveyance), which matured September 5, 1872, and upon which he instituted a suit against John Cunningham, attached the farm in question, obtained judgment, levied his execution upon the land, which was sold by the sheriff and bid off by the plaintiff, and this action was brought to recover possession of the premises, claiming title under the sheriff’s deed. At the time of the failure of Cunningham Brothers, the said John Cunningham was indorser on their paper to the amount of $3700.</p> <p>There was evidence tending to show that in November, 1871, the entire property of John Cunningham consisted of the farm in question and the stock upon it, all of which was valued by him at about $5000, a government bond of $500, and about $300 in the Savings Bank at Lancaster; that • on November 28, he made and executed the deed to his two sons, the tenants ; the eldest, Walter, being then about twenty-five years of age, and the other about eighteen years of age; and he also, by a verbal agreement, sold to Waiter all the stock, tools, implements, and personal property of which he was possessed, except the government bond and money in the savings bank, and the demandant contended that the evidence tended to show that the only consideration for these conveyances was that the tenants were to support their father and mother during their lives. The deed of the farm was not recorded until August 21, 1872, and there was evidence tending to show that from the time of that conveyance down to the time of the failure of Cunningham Brothers, John Cunningham continued to exercise acts of ownership and control over all this property conveyed, treating it as his own property, and that during all the time he continued to indorse for Cunningham Brothers, as he had before done, and that the notes he was liable on for them at the time of their failure were indorsed by him within four months prior to August 1,1872. The tenants offered evidence to explain or control the effect of the demandant’s evidence.</p> <p>The demandant contended and argued to the jury that upon this evidence they would be warranted in finding that said property was conveyed to the sons upon a secret trust to support the said John and his wife during their lives, and asked the judge to rule that if it were so conveyed the conveyance would be void. The judge refused so to rule, but instructed the jury that, although this evidence, unexplained, might be strong presumptive evidence of fraud, it would not warrant them in finding that the conveyance was upon a trust, as claimed by the demandant, unless there was something more than a mere promise to support the grantor and his wife in consideration of the conveyance; that a mere personal promise of this kind would not create what is known as a secret trust, but that it must attach itself in some way to the lánd, and carry with it an obligation to hold, manage or dispose of the land or its proceeds, in whole or in part, for the purpose named.</p> <p>The judge gave full instructions “as to the general law in relation to voluntary and fraudulent conveyances; ” and no exception was taken to any of the instructions given, except to the refusal to give the instruction prayed for as to a secret trust.</p> <p>There was also'evidence tending to show that the tenants had knowledge of their father’s indorsement for Cunningham Brothers, as before stated.</p> <p>The tenants called John Cunningham as a witness at the trial, and were permitted to show by him, against the demandant’s objection, that after the failure of Cunningham Brothers he used the government bond and the money in the savings bank to pay, as far as it would go, two notes, amounting to $1300, indorsed by him for Cunningham Brothers, and then held by the Lancaster Bank, where the same had been discounted.</p> <p>The jury returned a verdict for the tenants, and the demandant alleged exceptions.</p>

<p>Contract on the following agreement:</p> <p>“ We, the undersigned, severally promise and agree to and with each other that we will associate ourselves into a corporation, the name whereof shall be determined by the members thereof, and pay to the treasurer of said corporation the amount of the several shares set against our respective names, for the purpose of purchasing the homestead of Washington H. Amsden, in Athol, on Main Street, and erecting a public hall thereon. The amount of the capital stock of said corporation to be not less than twenty thousand dollars. Names. No. of shares. Amount.</p> <p>John Carey, One, $100.”</p> <p>The declaration alleged that the defendant entered into and signed the above contract, (a copy whereof was annexed,) and thereby agreed, in consideration of other parties signing similar agreements, to pay to the treasurer of the Athol Music Hall Company, the sum of $100, for one share in the capital stock of said corporation when it should be organized. It then alleged the organization, the purchase of the homestead of Amsden, the building of a public hall thereon, a demand for the $100, readiness to deliver the stock, and the refusal of the defendant to pay.</p> <p>At the trial in the Central District Court of Worcester, the defendant asked the judge to rule that the action could not be maintained on the pleadings. This request was refused. It ap peared in evidence that the action was commenced August 11, 1873, under the instructions of the treasurer, by George W. Horr. The only authority therefor was the following votes of the board of directors:</p> <p>“ May 15,1873. Voted that the treasurer be authorized and instructed to obtain the assistance of George W. Horr, Esq., in making collections of unpaid subscriptions to the capital stock.”</p> <p>“ June 10, 1872. Voted that the treasurer be authorized and instructed to obtain such legal counsel as he may see fit as to the proper legal manner to be pursued to collect unpaid assessments to the capital stock, and also as to the legal status of the corporation.” The defendant, at the close of the evidence, moved to dismiss on the ground that the suit was not authorized by a vote of the directors of said company, or by any legal authority. This motion was overruled by the judge.</p> <p>There was evidence tending to show that in December, 1870, the defendant signed the agreement declared upon; that the act of incorporation was passed on March 3, 1871; that the corporation was duly organized on March 18, 1871, and that the name of the defendant was entered on the books of the corporation as a stockholder and notices were issued and directed to him of all the meetings.</p> <p>The defendant then asked the judge to instruct the jury that if they were satisfied upon the evidence that the defendant never attended any meeting of the corporation at the time of its organization, or after its organization, the action could not be maintained, although the corporation still retained his name upon its books, and sent him notices of the meetings; that it was not enough for the plaintiff to show .that it retained Carey’s name upon its books, and otherwise considered him as entitled to a share in the capital stock, unless they are also satisfied that Carey did some act after its organization in ratification of his agreement.</p> <p>The judge refused to give these instructions, but instructed the jury that if the plaintiff entered the defendant’s name on the books of the corporation, as a stockholder, issued and directed notices to him of all its meetings, and gave him the same opportunities to attend the meetings and participate in the proceedings thereof aa were given to other stockholders, they were authorized to find that the defendant’s offer was accepted, and that he was received as a member of the corporation. The jury found for the plaintiff, and the defendant alleged exceptions.</p>

Contract against Mahlon M. Daniels and Welcome A. Thayer, on a receipt signed and sealed by them, which, after reciting the attachment by the plaintiff, a deputy sheriff, of three cows, on a writ dated December 22, 1870, in an action by John M. Daniels against the first named defendant, and the value of the cows, proceeded as follows: “ Now in consideration of the premises, and of said E. O. Bacon allowing the above property, so by him attached, to remain in the charge and…

<p>In an action against a surety on a bond, bearing in the appropriate place a signature apparently that of the principal above that of the surety, the answer was a general denial. The surety, at the trial, admitted his signature to the bond, but objected to the admission of the bond in evidence without proof of its execution by the principal. Held, that the bond was rightly admitted in evidence.</p> <p>The production of a bond by the obligee from his own possession is competent evidence that it has been duly delivered to him.</p> <p>In an action against a surety on a bond, conditioned for the payment by the principal of all demands, acceptances or indorsements and obligations for which the obligee should in any way become responsible on account of a firm of which the principal was a member, and for the saving the obligee harmless from any loss on account of any debt or liability of the firm, evidence that the principal obligor purchased goods of a third party; that the obligee accepted a draft purporting to be drawn by the firm; that the principal obligor said that he drew it; that it was indorsed by the third party as collateral security for a debt; is competent to show that the signature of the firm was genuine, and, in the absence of evidence that a draft was drawn against funds in the hands of the acceptor, sufficient to prove that the acceptance was given under the bond.</p> <p>A. gave a bond, with sureties, to B., in a penal sum, conditioned to hold B. harmless from liability for any acceptances made by B. for A. After this, B. accepted a draft drawn by A., and the holder of it sued B. and recovered judgment. B. paid a sum less than the face of the judgment, and the judgment was entered as satisfied. Held, in a suit on the bond against one of the sureties, that B. was entitled to judgment for the penal sum.</p>

<p>Tort for slander. The third count of the declaration was as follows: “ The plaintiff further says that the defendant publicly, falsely and maliciously accused her of the crime of adultery, by words spoken of the plaintiff substantially as follows; ‘ I (meaning the defendant) was speaking to a certain lady about Mrs. York or Mrs. York’s case, (meaning the accusation that Mrs. York, the plaintiff, had a loathsome venereal disease of some kind and had given it to a married man by the name of Charles Walton,) and I said, what should you think of a lady who belongs to the Congregational Church (meaning the Congregational Church in Shrewsbury) if she should give the pox (meaning a loathsome venereal disease of that name) to a married man, and he should give it to his wife. She (meaning the person with whom he was talking) replied that she should not think her fit to belong to the church, and I, (meaning the defendant,) in answer thereto, said that is the case or our case,’ (meaning the above accusation against the plaintiff.”)</p> <p>The defendant demurred on the ground that the allegations in the third and fourth counts did not constitute a charge of an accusation on the part of the defendant that the plaintiff had committed the crime of adultery.</p> <p>The demurrer was overruled, and the defendant filed an answer containing a general denial, and also alleging that whatever words were spoken were true and privileged.</p> <p>At the trial in the Superior Court, before Allen, J., it appeared that the plaintiff and the defendant were members of the same church, that the plaintiff was a singer in the choir and a teacher in the Sunday-school, that the defendant was one of the board of stewards in the church but not a member of the Sunday-school.</p> <p>There was evidence tending to show that the plaintiff, for several months prior to the time of the alleged slander, had by her conduct and deportment shown an intimacy with Charles Walton, who was also a singer in said church, and that there were rumors in the neighborhood of her sustaining relations with him of an improper character ; and that one Foster, a physician, who was also a member of the same church, had told the defendant and others in the church that he was doctoring Walton for a venereal disease, and that he had no doubt he had contracted it from the plaintiff; that he told the defendant that he did not know where Walton did contract the disease, but that he, Walton, had been with the plaintiff. It further appeared that a short time before Christmas, 1872, an effort was made to have a Christmas festival for the Sunday-school of the church, and that at a meeting of those interested a committee was chosen for that purpose; that at that meeting the plaintiff nominated Walton as one member of said committee, and Walton nominated the plaintiff as another; that they together with the defendant, Dr. Foster, Mrs. Sarah J. Newton, another member of the church, and others were chosen on the committee. The defendant declined to serve with them on the committee. A few days after, Mrs. Newton asked the defendant why he declined to serve on the committee, to which he replied that he did not choose to answer. The next day she inquired again his reason, asking if Rev. Mr. Bemis, the pastor, and his wife were not good enough for him to serve with. The defendant, however, did not then give his reasons; and the following day she urged him again to give her a reason for his not serving, saying that she knew that the fact that Walton and the plaintiff were on the committee was the reason, and with a good deal of feeling wanted to know what he knew with reference to them why they were not suitable persons to be on the committee. In answer the defendant said to her, “ Walton has got the clap.” Mrs. Newton asked the defendant where he, Walton, got it, to which the defendant replied, “ My informant said he did not know, but that he, Walton, had been with Mrs. York.”</p> <p>The defendant contended and asked the judge to rule that under the above circumstances the communication to Mrs. Newton was a privileged one, and that if made in good faith, believing it, and in the discharge of a duty which he believed he owed to the members of the committee and to himself, it would not be actionable, without proof of express malice.</p> <p>The judge ruled that the communication to Mrs. Newton was not a privileged one, and instructed the jury that if the words used by the defendant to Mrs. Newton, in answer to her question where Walton got the disorder, to wit, “My informant said he didn’t know, but that he, Walton, had been with Mrs. York,” meant that he had been informed that the plaintiff had had criminal intercourse with Walton, such words would be actionable.</p> <p>The jury returned a verdict for the plaintiff for $1400; and the defendant alleged exceptions.</p>

Contract on a recognizance entered into under the Gen. Sts. c. 124, § 17, by Michael Collins as principal, and the defendant as surety, and conditioned that Collins, who had been arrested on an execution in favor of the plaintiff, should appear on December 7, 1872, at 10 A. M., at the office of the magistrate taking the recognizance in Spencer, being the time and place fixed by the magistrate at the debtor’s request, for his examination as poor debtor, and from time to time…

<p>Tort for the conversion of a United States bond, of the denomination of $500, alleged to belong to the estate of Jonathan Wheeler, the plaintiff’s testator. The answer was a general denial. Trial in the Superior Court, before Rockwell, J., who allowed a bill of exceptions in substance as follows:</p> <p>The defendant contended and introduced evidence tending to show that she was the owner of the bond in question, and that it had been given to her by her husband, the said Jonathan, as a donatio causa mortis.</p> <p>The plaintiff requested the judge to rule that there could be no valid donatio causa mortis from a husband to his wife, and that such a defence could not be sustained. But the judge, for the purposes of the trial, ruled that a valid donatio causa mortis could b.e made by the husband directly to the wife.</p> <p>The plaintiff introduced evidence tending to show that no such gift was ever made by the testator to the defendant. It was in evidence that, at the time of his marriage, Jonathan Wheeler was a man seventy-four years of age, had been twice before married, and had a family of four adult children living, and that the defendant was then a widow with five children, and that an ante-nuptial contract was executed between them, by which Mrs. Wheeler retained her own property, and at the decease of the testator was to receive the use and improvement of one third of his real and personal estate so long as she should live, in lieu of dower and all claim whatsoever upon his estate, and that shortly after the marriage a will was executed by Wheeler, disposing of his property in conformity with the terms of this contract.</p> <p>The plaintiff offered evidence to show that the testator, at different times from the year 1866 to the day of his decease in 1872, had declared his intention to adhere to the disposition of the properfcy made by the will and marriage contract; that not long previous to his death, but before the alleged donatio, he had expressed his fear that his wife had been secreting money obtained from his property, and chad deposited it in the Fitchburg Savings Bank, and that he requested the witness, his son-in-law, to go there to ascertain if such was the fact; and also that on the day preceding his death, and a few days after the alleged gift, he had stated to this witness that he feared his wife and her friends, after his death, would take all there was of his estate, and begged that he would look after his estate and see that his children were not defrauded. He also offered to prove that, only a few hours previous to the time of the alleged gift, Jonathan Wheeler had expressed himself confident that he should recover; also, that on the Sunday succeeding the Friday on which the alleged gift was made, Wheeler, in conversation with the witness, in answer to an inquiry as to his health, stated that he was doing well, and believed he should ultimately recover; and, that from the Thursday preceding the alleged gift, to the Sunday succeeding, there had been no material change in his physical condition.</p> <p>The defendant had previously introduced evidence that, at the time of the alleged gift, Wheeler had stated that he considered it doubtful if he should live long.</p> <p>The judge ruled that all the above evidence was incompetent for any purpose, and rejected the same. The case was submitted to the jury upon full instructions, which were not objected to. The verdict was for the defendant, and the plaintiff alleged exceptions.</p>

<p>A contract, made by a book publisher with A., recited that the publisher was about to publish a book to be sold by subscription, through agents, in the United States and in Canada, and agreed to publish an advertisement of A. in the book, he paying a certain sum “ for each and every copy sold and delivered to agents and others.” A similar contract was made by the publisher with B., except that B. agreed to pay a certain sum “ for every copy sold ” by the publisher. Both contracts contained the clause that the publisher was to furnish, if requested, his certificate under oath as to the number of copies sold and delivered. Payments were to be made every three months from the date of publication, and A. and B. were not to be liable for copies sold after two years. In actions on these contracts by the publisher, he put in evidence that he had between 1500 and 2000 agents selling the work in the United States and in Canada, and that over 60,000 copies had been delivered by him to agents. There were also put in evidence the written requests of the agents for copies of the book, reports from agents of books subscribed for, charges made by the shipping clerk of books consigned to the agents, and carriers’ receipts of books so consigned. There was also evidence that this was the usual way of selling books by subscription. There was no evidence of delivery into the hands of the individual subscribers. Held, that this evidence would warrant a verdict for the plaintiff for every copy sent to the agents; but not for copies sold to editors of newspapers in payment of advertising bills of the publisher.</p> <p>Where a person agrees with a publisher to pay a certain sum for every copy of a book sold, payments to he made at stated intervals, and he makes payments on statements furnished him by the publisher which include copies not properly comprehended among hooks sold, but do not indicate the fact, he may, in an action to recover the balance due, have so much of the money paid as was not properly chargeable to him, applied in payment of said balance.</p>

<p>Tort for slander. The words alleged in the first count were (omitting the innuendoes) : “ Joseph, I accuse Frank of stealing my iron bar, and I can prove it. By God, I can prove it. He has stole my iron bar, cart pin and ox-yoke. By God, it is no secret, I am going to publish it.” The words alleged in the second count were, “ By God, Frank stole my iron bar, and I can prove it. There ain’t no privacy about it, and I am going to spread it.” Answer: 1. A general denial; 2. That the words were true; and 3. That the communications were privileged.</p> <p>At the trial in the Superior Court, before Allen, J., the evidence tended to show that the defendant had, before the speaking of the words, lost his iron bar, ox-yoke and cart-pin, and that he went to the house of the plaintiff’s father, where the plaintiff, who was a minor, resided, and there uttered the words alleged in the first count to the plaintiff’s father. The defendant’s evidence tended to show that he did not use the words alleged, but words substantially different. The evidence tended to show that the words alleged in the second count were uttered to one Vinton, after the occasion above referred to.</p> <p>The defendant offered evidence tending to show that the plaintiff had admitted that he took the defendant’s iron bar, ox-yoke and cart-pin, but did not take them to steal them, but to bother or plague the defendant. The plaintiff controverted this evidence, and denied that he took or admitted the taking the property.</p> <p>The defendant, upon the question of damages, called witnesses who testified that the plaintiff’s reputation for honesty and integrity was bad. The defendant offered to prove by the same witnesses that the plaintiff’s reputation in respect to thieving was bad. This evidence was excluded, and the defendant alleged exceptions.</p> <p>The defendant asked the judge to instruct the jury as follows : “ 1. The words of the defendant are to be taken in connection with the extraneous facts, and the question is whether, in connection with those facts, the words spoken were intended and understood to impute the crime of larceny. 2. If the plaintiff took the defendant’s iron bar, ox-yoke and cart-pin without right, with the intent to deprive the defendant of the use of them, the defendant is not liable for saying he stole them. (Or, if the judge should decline to give the last, then) 3. If the plaintiff took without right the iron bar, ox-yoke and cart-pin of the defendant, with intent to deprive the defendant of their use, the defendant is not liable for saying the plaintiff stole them, unless the defendant knew the plaintiff intended to return the articles taken, or only intended to annoy him, without wholly depriving Mm of the property. 4. Evidence that thé defendant, at the time of the utterance of words otherwise privileged, had ill-feeling or ill-temper against the plaintiff, would not tend to prove express malice, unless such ill-will or ill-temper did not arise from the occasion itself, but was wholly independent of the occasion. 5. The words uttered to Vinton, which are relied on as the substantial slander declared on in the second count, are not to be considered as evidence to show malice in uttermg the words spoken to the father.”</p> <p>The judge declined to give any of the above instructions, but instructed the jury in substance as follows : “ The plaintiff must prove that the defendant used the words alleged, or some of them sufficient to charge the crime of larceny as alleged. The words used are "to be taken m their natural and ordinary meamng, unless there was something in the language or circumstances to indicate that a different meaning was intended. The word ‘steal’ might or might not import a felonious taking, according to the context in which it was used. The jury must find that the defendant Mtended and was understood, by the words used, to charge the plaintiff with larceny. The occasion of speaking the words charged in the first count was privileged, and the plaintiff must prove express malice in the defendant, to recover on that count. If the words were spoken by the defendant in good faith, believing them to be true, and for the protection or vindication of his rights, they would not be malicious. If the defendant be-lieved them to be true, but uttered them from motives of ill-will toward the plaintiff, and for the purpose of injuring him, they would be malicious. To sustain tMs count, it must appear that the charge of larceny was made, not for the protection of the de fendant’s rights, but from motives of ill-will toward the plaintiff and a desire to injure him. Evidence of the speaking of similar words on other occasions is competent on the question of malice. The manner of speaking the words on this occasion, though not of itself sufficient to prove malice, is competent to be considered by the jury in connection with the other evidence, so far as it tends to show the motive of the defendant in uttering the words. To justify by proof of the truth of the words, if the defendant charged a larceny, he must prove a felonious taking; if the plain-. tiff took the articles in joke or to plague the defendant, not intending to deprive him of the property in them, it would not be larceny.”</p> <p>The jury found for the plaintiff, for $11.75. To all the rulings of the judge, excepting the ruling that the occasion of speaking the words to the father was privileged, and the burden on the plaintiff to show malice, and to the refusal to admit the evidence as to the reputation of the plaintiff in respect to thieving, and to the refusal to give the instructions requested, the defendant alleged exceptions.</p>

Bill in equity, alleging that in 1857 certain land of Joha Southwick, deceased, intestate, which had been set off to his widow for her dower, was taken by a railroad corporation for its railroad, and the entire damages for such taking, amounting to the sum of $500, assessed and awarded, without any apportionment thereof, and paid to Dan Hill, a trustee appointed by the widow and heirs, to invest the same, and pay the income thereol to the widow for life, and the remainder to…

Bill in equity, filed February 25, 1873, for the specific performance of a provision in a deed conveying two parcels of land in Millville, executed May 14, 1853, by Dan Hill, of Blackstone, of whom the plaintiff is heir at law, and accepted by the South-bridge & Blackstone Railroad Company, grantee in the said deed.

<p>Contract upon an account annexed for labor performed, services rendered and a horse and tools used by the plaintiff in the service of the defendants. The answer alleged that the labor and services were performed and rendered and the horse and tools used under a special agreement between the plaintiff and the defendants, and that under such agreement nothing was due the plaintiff therefor. The plaintiff filed a replication alleging that Buch contract, if made, was a part of an agreement with reference to the sale and conveyance of certain real estate to the plaintiff by the defendants, and that such agreement, not being in writing, was invalid under the statute of frauds.</p> <p>At the trial in the Superior Court, before Brigham, C. J., the jury found for the defendants, and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

<p>Contract, on the probate bond of the administratrix of Brownell W. Woodman. The breach alleged was failure to account. The answer admitted the execution of the bond and denied any breach, and set up that the action was begun and instituted at the suggestion and for the benefit of Cornelia M, Remington, an adopted daughter of the intestate and the first named defendant; that after the taking out of administration upon the estate of Brownell W. Woodman by Alioe S. Woodman, and the execution and approval of the bond declared on, the said Alice discovered a will of said Brownell W. Woodman, which will was afterwards duly proved, approved and allowed by the Probate Court for the county of Bristol; that by the terms of said will all the personal estate of Brownell W. Woodman was given to the said Alice S., and that Brownell W. Woodman, at the time of his decease, left no real estate; that Cornelia M. Remington was adopted by Brownell W. and Alice S. Woodman after the execution of said will by Brownell W. Woodman ; that Brownell W. died in 1859, not intending to make any provision in his will for Cornelia M. Remington ; and that Cornelia M. has no such interest in and to the estate of Brownell W. Woodman as to entitle her to cause said bond to be put in suit, or to maintain an action thereon.</p> <p>At the trial in this court, before Revens, J., the defendants admitted that no account had been rendered, and offered evidence in support of the allegations in their answer. The judge ruled that the evidence was inadmissible; a verdict was rendered for the plaintiff; and the case was reported for the consideration of the full court.</p>

<p>Contract upon a promissory note for $300 dated October 7, 1871, made by C. M. Fairbanks, payable to the defendant four months after date, and alleged to be indorsed by him to the plaintiff. The answer denied the making and indorsing of the note, and alleged that the plaintiff had agreed with the defendant to submit the case to referees, who decided that the alleged indorsement by the defendant was not genuine, and that the plaintiff was therefore estopped to prove the indorsement genuine.</p> <p>Trial in the Superior Court, before Rockwell, J., who allowed a bill of exceptions in substance as follows :</p> <p>The plaintiff proved demand on the maker, and notice to the defendant, and put in evidence of the genuineness of the defendant’s signature, and rested his case.</p> <p>The defendant testified that the signature was not his, and called D. A. Chapin, cashier of the National Union Bank of Fall River, who testified that the plaintiff and the defendant submitted to himself and C. J. Holmes, cashier of the Second National Bank of Fall River, the question of the genuineness of the indorsement, and they decided it was not the defendant’s indorsement, and he was of the same opinion still; he also pointed out the differences between the signature in question and admitted signatures of the defendant. This was substantially all the testimony introduced by the defendant on this point.</p> <p>After the defendant had rested, the plaintiff was permitted to testify in rebuttal, against the objection of the defendant, that the signature in question was the defendant’s genuine indorsement. The plaintiff also offered in rebuttal the deposition of C. M. Fairbanks, the maker of the note. Among the interrogatories proposed by the plaintiff to Fairbanks was the following: “If in the course of your business transactions with the defendant he indorsed notes for you, state what notes, giving the date and the amount of each note that he so indorsed.” This was objected to at the time of filing and also at the trial; the defendant contending that it was incompetent and also not in rebuttal. The defendant having, upon cross-examination, admitted that he had had business transactions with Fairbanks, and had indorsed Jiotes for him, the judge overruled the objection, and permitted the interrogatory and answer to be read to the jury. The answer was as follows: “ In answer to the previous question, he indorsed several notes for me.” A list of the notes was annexed. Two of them were dated October 7, 1871, one for §300 at four months, the other for §382.01 at four months.</p> <p>The plaintiff was also permitted at the same time to read the following interrogatory and answer thereto to the jury, the defendant having objected to the same at the time of filing and at the trial, contending that the same was not competent in rebuttal or in chief: “ Did you have business transactions with the defendant, at or about the time he resided in Fall River, and if so, state fully what those transactions were, and in detail so far as you can?” “I have had business transactions with John F. Nichols during the entire time of my residence in Fall River after forming his acquaintance in June, 1871. The first transaction consisted in my asking Mr. John F. Nichols to indorse a note for me, which he.did; said note was for §300, dated July 1st, 1871, for four months. He afterwards indorsed several notes for me, for purposes which are fully explained in a set of books kept by me at my place of business, while in Fall River, said books being delivered to John F. Nichols when I left Fall River, and not since seen by witness, and he having no knowledge of their present whereabouts, except supposing them to be still in the possession of John F. Nichols.”</p> <p>The plaintiff was also permitted, against the objection of the defendant, to ask the defendant, whether the books of C. M. Fairbanks had not been and were not in his custody, and whether he had examined them; and was also allowed, against the objection of the defendant, to argue upon the fact that they had been in his possession and were not introduced in evidence, the judge having, upon the objection of the defendant, ruled that the entries in said books were not admissible when attempted to be introduced by the plaintiff, and having also directed the references in the deposition aforesaid to the books to be excluded.</p> <p>The defendant testified that he and the plaintiff agreed to leave the question of the genuineness of the indorsement to Chapin and Holmes ; and if they decided it was his indorsement he was to pay the note, if not, that the plaintiff was to pay the note, and that was to settle the matter; that the plaintiff chose Holmes, and he selected Chapin ; that they went to Chapin, and said to him they had agreed to leave the genuineness of the indorsement to Holmes and himself; that Chapin told them he could not undertake to say absolutely that-it was or was not defendant’s signature, but could give his opinion, and was willing to do that if it would satisfy them; that the plaintiff said to Chapin, he did not want the defendant to pay the note if they came to the conclusion that it was not his signature, and the defendant said if it was thought by them to be his signature he would pay it; that after that they went to Holmes, and stated to him that they had come to leave the question of the indorsement to him and Chapin, and the defendant said to Holmes, in the presence of the plaintiff, that if they decided it was his signature he would pay the note. Chapin was called as a witness, and his testimony as to what took place between the plaintiff, defendant and himself, substantially agreed with the defendant’s testimony as stated above. The plaintiff testified that the agreement was to leave to the referees the question of the genuineness of the indorsement so as to decide who should pay the note at the bank where it had been discounted, leaving to him the right of resort to the defendant, and denied that he said to Chapin that he did not want the defendant to pay the note if they decided it was not his signature; he admitted that Chapin and Holmes were to pass upon the genuineness of the indorsement, but only as aforesaid, and that Holmes was selected by him, and Chapin by the defendant. Holmes testified that the plaintiff and defendant came into his house, and the defendant asked him if he had agreed to sit on this matter, and he answered he had ; that the plaintiff and the defendant then had some talk between themselves to which he paid no attention, and the defendant turned to him, and said that if they decided that the signature was his, he would pay the note ; this was all the conversation. He was also permitted to testify, against the objection of the defendant, that he had no idea the. reference was final; but stated on cross-examination that this was all the conversation he had with the plaintiff and the defendant, or with the defendant.</p> <p>It appeared that the referees admitted in evidence genuine signatures of the defendant,, and after comparing them with the note in suit came to the conclusion that the indorsement in question was not the defendant’s indorsement, and duly notified the parties of their decision.</p> <p>Upon these facts, which were substantially all the testimony on this point, the defendant contended, and requested the judge to instruct the jury, that if they found that the plaintiff and defendant agreed to leave to Chapin and Holmes the question of the genuineness of the indorsement, and that if they decided that it was the defendant’s indorsement, he was to pay the note, and not the plaintiff, and if they decided it was not the defendant’s indorsement, the plaintiff was to pay the note, and not the defendant, and that was to settle the matter of liability ; then, inasmuch as the referees did decide that it was not the defendant’s indorsement, the plaintiff is estopped to make any claim upon the note against the defendant, and is not entitled to recover. The judge declined to give the instruction prayed for; and instructed the jury that if they found that the plaintiff and the defendant submitted the question of the genuineness of the indorsement to Chapin and Holmes, and if they decided the signature was genuine the defendant should pay and take up the note, but if they decided the signature was not genuine, the plaintiff should pay and take up the note, and make no claim on the defendant for the amount; and that Chapin and Holmes understanding the submission as above stated, and both acting under it decided that it was not the genuine signature of the defendant, and communicated their decision as arbitrators to the parties, and that the plaintiff, in pursuance of their decision and award, performed it by paying and taking up the note, relinquishing any claim against the defendant, then they might consider the award as conclusive that the signature was not genuine, and the defendant not liable in this action; but if the jury were not satisfied of this, but were satisfied only that there was a submission to Chapin and Holmes to ascertain their opinion whether the signature was genuine or not, that if they were of opinion it was genuine, the defendant should pay and take up the note, but if they were of opinion that it was not genuine, the plaintiff should pay and take up the note when it came to maturity, but without relinquishing his claim against the defendant as a prior indorser, then the paroi submission ana award, though evidence in the ease, was not conclusive and might be controlled by other evidence in the case.</p> <p>The jury found for the plaintiff, and the defendant alleged exceptions.</p>

Contract upon an account annexed. The case was heard in the Superior Court, before Allen, J., without a jury, upon the following agreed facts: The action was commenced by a writ upon which there was an attachment of merchandise more than four months before the commencement of proceedings in the United States District Court by which the defendants were adjudged bankrupts, and the bankruptcy of the defendants was suggested at March term, 1874, of the Superior Court.

<p>Under the Gen. Sts. c. 155, § 13, an account stated, which is not supported by evidence of some writing signed by the party to he charged, will not prevent the running of the statute of limitations against the previously existing liabilities included therein.</p>

<p>Contract for goods sold and delivered. The declaration also contained a count for conversion of the same goods. Trial in the Superior Court, before Allen, J., who allowed a bill of exceptions in substance as follows:</p> <p>The plaintiff’s counsel stated, in opening, that the original transactions with the defendant, out of which the suit grew, were with one William E. Brockway, of the city, county and State of New York, who had sold the defendant beer, and had sent it in barrels to the defendant, which barrels, to the number of thirty-sight, had not been returned ; that subsequently, on January 17, 1871, Brockway was adjudged a bankrupt in the United States District Court for the Southern District of New Yore; that assignees were appointed and duly confirmed on February 13, 1871; that the assignees sold certain choses in action, forming part of the bankrupt’s estate, at public auction on June 26,1871, which sale was confirmed by the United States District Court aforesaid on May 1, 1872; that Nathan W. Leach, the present plaintiff, was the purchaser of the bankrupt’s choses in action, among which is the present claim for the barrels declared on in the plaintiff’s writ.</p> <p>The plaintiff offered in evidence the certified copy of the assignment in bankruptcy of the estate of Brockway, showing the appointment of John M. Quite an and John Gordon, of the city of New York, as assignees of his estate, real and personal, including all the property of whatever kind of which he was possessed, or in which he was interested, or entitled to have on January 17, 1871, with all his deeds, books and papers relating thereto, and bearing date February 13, 1871; also a certified copy of the bill of sale from the said assignees to the plaintiff, dated June 26, 1871, conveying to the plaintiff, for the consideration therein named, his heirs, administrators and assigns forever, all the books, notes, books of account and choses in action of the said Brock-way, previously conveyed to the said assignees and uncollected by them; also a certified copy of the approval of the United States District Court of New York, in bankruptcy, bearing date May 1, 1872, of the sale at public auction by the assignees, on June 26, 1871, of certain choses in action, forming part of the estate of the said bankrupt. These several papers were admitted by the judge.</p> <p>The plaintiff then called as a witness the said bankrupt, who testified that before his bankruptcy he had sold beer to the defendant, and sent it to him in barrels which were to be returned, and that he had made demand for these barrels of the defendant before his bankruptcy in his own name, and since his bankruptcy and the sale of the choses in action sold by his assignees to the plaintiff, in the name of the plaintiff, before the present suit was brought; that he was authorized by the plaintiff to make this demand; and that the defendant said the state police had seized some of them, and that he would pick them up and send them back, but he never did so. These barrels constituted a part of the assets of the bankrupt’s estate, and appeared in his book of accounts against the defendant. The plaintiff offered to prove, by letters of the defendant to Brockway, the promise to return the barrels before his bankruptcy. The number of barrels claimed as had by the defendant and not returned was thirty-eight, valued at $4.50 each.</p> <p>The judge ruled that the action upon these facts, if proved could not be maintained in the name of the plaintiff, and the plaintiff alleged exceptions.</p>

Tort to recover for personal injuries sustained by the plaintiff and for injury to the plaintiff’s horse, alleged to have been caused by the negligence of the defendant in the management of its train and by its failure to maintain a suitable flagman or signal to give warning of the approach of trains at a point upon a highway in Taunton which is crossed at grade by the road of the defendant.

Contract upon a promissory note signed by the defendant and payable on demand to the plaintiff. Writ dated March 13, 1872. At the trial in the Superior Court, before Wilkinson, J., the plaintiff put in the note in suit and rested his case.

Contract for breach of warranty in the sale of a horse. Writ dated May 8, 1873. The answer set up the statute of limitations.

<p>The St. of 1861, c. 107, amending the charter of the city of Lynn and giving the mayor and aldermen of that city, with the concurrent vote of the common council, exclusive authority to lay out, alter or discontinue any street or town way, t« establish the grade thereof, and to estimate the damages any individual may sustain thereby, does not apply to a case where damages are sustained by repairing a highway or town way, and any person whose property is injured by such repair may enforce his remedy under the Gen. Sts. c. 44, §§ 19, 20.</p>

<p>Under an answer to a declaration on an account annexed for the price of intoxicating liquors sold to the defendant, alleging ignorance of the claim sued, and that if it shall he made to appear that the plaintiff sold said items to the defendant, it will also appear that the liquors were sold in violation of law, it is not competent for the defendant to prove that they were thus sold.</p>

Contract on a promissory note, dated July 15, 1872, for $280, payable four months after date. Writ dated March 24, 1873.

<p>Where an executor and the surety upon his probate bond are defaulted in an action against them .for a breach of the conditions of the bond, judgment for the amount of the penalty of the bond should be entered before the case is sent to an assessor, but if this is not done, judgment nunc pro tune may subsequently be entered.</p> <p>Under the Gen. Sts. c. 101, § 28, cl. 3, execution is to be awarded upon breach of the conditions of an executor’s bond, for the full value of all the estate of the testator that has come to the hands of the executor, and for all damages occasioned by his neglect or maladministration.</p> <p>A surety upon an executor’s bond is liable for any default on the part of the executor in not accounting for assets received before as well as after the execution of the bond.</p> <p>In an action against an executor and the surety upon his bond, for breach of the conditions of the bond in not duly rendering an account, an inventory and account filed by the executor, and also evidence of the receipt by him of money and property of the estate, prior to the giving of the bond in suit, are admissible for the purpose of showing the amount for which the executor ought to account, and of fixing the amount of the surety’s liability.</p> <p>In an action to enforce an executor’s bond for breach of its conditions in not duly rendering an account, the burden is on the executor and his surety upon the bond to account for whatever property has come to the hands of the executor; but the burden is on the plaintiff to prove the damages sustained by a failure to account or other maladministration.</p> <p>An executor gave a bond with two sureties conditioned that he should administer according to law the estate of the testator, and render an account. One of the sureties was afterwards discharged by order of the Probate Court, and a new bond was given with a new surety. Before the execution of the latter bond, property belonging to the testator’s estate came to the hands of the executor for which he failed to account, and a suit at law was brought upon the second bond for this breach of its conditions. Held, that under the Gen. Sts. c. 101, § 28, cl. 3, 4, the surety upon the second bond was liable for the full value of the estate not accounted for, and that whatever adjustment, if any, should be made between him and the sureties upon the first bond, could be determined only by a suit in equity.</p> <p>Where, before a trustee appointed under a will to hold and manage the residue of the devised estate has entered upon the performance of the trust, the executor collects the rents of the real estate and credits them to the estate in his account to the Probate Court, deducting his expenditures on account of the real estate and the support of the testator’s family, which account is assented to by the parties interested, and allowed by the court, and the executor afterwards continues to collect the rents until the trustees assume charge of the estate, the executor is bound, under the Gen. Sts. c. 98, § 8, to account for the income of the real estate.</p> <p>Upon an adjudication in this court that an executor and his surety are liable upon their probate bond by reason of the executor’s failure duly to render an account. the account should be so stated in this court as to show what is included in it, aa the basis of future adjustments with the executor and his sureties, and to enable the court to determine how far interest should he charged on the account.</p>

<p>A petition under the Gen. Sts. c. 134, § 49, will not lie to compel a person to bring an action to try his alleged title, unless the petitioner has an exclusive and adverse possession which works a disseisin of the respondent.</p> <p>Land held in common was divided among the proprietors and held by them in severalty, but improved as a common pasture in proportion to the land owned by each. The greater part of the proprietors conveyed their lands to A., who gave a deed of the entire estate to B., the deed containing covenants of warranty except as against C., who had the title of the other proprietors. B. entered upon the entire tract of land. Held, that B. had not an adverse possession against 0., and could not by petition, under the Gen. Sts. c. 134, § 49, compel him to bring an action to try his title.</p>

<p>Appeal from a decree of the Probate Court ordering a distribution of funds held in trust under the will of John Henfield. The case was heard upon agreed facts, which, so far as material, appear in the opinion of the court.</p>

Contract. The declaration alleged that David O’Connell was employed by the defendant to erect a building upon the premises of the defendant, according to the terms of a certain contract in writing in the possession of the defendant, and after the execution of the contract, and after O’Connell had commenced to perform his part thereof, on September 9, 1872, O’Connell assigned and made over to the plaintiff, by an instrument in writing, all sums of money then due and to become…

Bill in equity to obtain the instructions of the court as to the disposition of certain funds alleged to have been placed in the plaintiff’s hands by Bernard Reynolds, as a donatio causa mortis.

<p>The husband of a pauper had a derivative settlement in a town from his grandfather, acquired under provisions of law in force prior to February II, 1794. The father of the husband had also resided in the town for ten years together, and paid taxes there for five years, while the husband was a minor. Neither the husband, nor the pauper after his death, had complied with the conditions necessary to acquire a settlement in their own right. Held, that the pauper had a legal settlement in the town.</p> <p>The transfer, authorized by the Gen. Sts. c. 71, § 7, of an inmate of a state lunatic hospital, from that institution to another, is properly made under the authority of the original mittimus.</p> <p>The right of the Commonwealth to recover from the town of a pauper’s settlement money paid out of the treasury for his support at a state lunatic hospital under the Gen. Sts. c. 73, § 24, and the St. of 1862, c. 223, § 11, is not affected by the St. of 1870, c. 105.</p> <p>The right of the Commonwealth to recover from a town money paid for the support of a pauper at a state lunatic hospital is not limited by the fact that the town had no notice that the pauper was chargeable to it, or of his commitment to the hospital.</p> <p>Under the Gen. Sts. c. 155, § 12, the right of the Commonwealth to recover from the town of a pauper’s settlement money paid for his support at a state lunatic hospital is limited to such support as has been furnished within six years previous to the commencement of the action, and is not extended by ignorance of the fact of settlement.</p>

Tort to recover for personal injuries alleged to have been caused by a defect in a highway in the defendant town. Trial in the Superior Court, before Lord, J., who, after verdict for the plaintiff for $987.50, reported the case to this court in substance as follows: At the trial, it was admitted that School Street was a highway which the defendant was bound to keep in repair, and that it had been maintained by the town for many years.

Tort for breaking and entering the plaintiff’s close, ploughing up the soil and taking away and converting certain trees and shrubs of the plaintiff. Trial in the Superior Court, before Wilkinson, J., who allowed a bill of exceptions in substance as follows : The plaintiff introduced in evidence a deed of the premises described in his declaration, from one Proctor to himself.

Petition for a writ of certiorari to quash the proceedings of the county commissioners in the laying out of a town way in Gloucester.

<p>Bill in equity praying for an account, and that the defendant might be restrained from further breach of the following agreement executed August 18, 1865, by the plaintiff, the defendant and one William Bassett, Jr.:</p> <p>“ Whereas the said Buffum has leased for a term of ten years to said Breed and Bassett his mill and wharf property, and other estate, near the West Lynn Station of the Eastern Railroad in said Lynn, and has sold to said Breed and Bassett the lumber on hand, for which said Breed and Bassett have given to said Buffum in part payment their note for $20,000, payable on demand, it being the intention of said Buffum to leave that amount in the said business, until such time as said Breed and Bassett may find it convenient to pay the same, receiving in lieu of profits eight per cent, per annum on the amount due on said note, said Buffum further intending to retain in his own hands the business of manufacturing shoe and packing boxes, with the exceptions hereinafter stated :</p> <p>“ Now, therefore, in accordance with the foregoing intentions, the said Breed and Bassett agree with said Buffum, that they will not use or suffer to be used the said mill and machinery for the manufacture of shoe or packing boxes, excepting for the Grover and Baker Sewing Machine Company, for S. D. and H. W. Smith, for Nehemiah Berry & Sons and for H. B. Newhall, and such other persons and firms, not doing business in Lynn, aa said Buffum does not now manufacture boxes for; nor will (hey except as aforesaid, man ifacture boxes, or furnish lumber to others for the manufacture of boxes j and of the boxes which may be manufactured by them, as aforesaid, they will keep in regular books a full and accurate account, to which said Buffum and his legal representatives shall at all reasonable times have free access, and they will duly account for and pay over to said Buffum semiannually one full half part of all net profits received by them from the manufacture of boxes, as aforesaid.</p> <p>“And the said Breed and Bassett further agree with said Buffum, that they will do no mill work, except such as may be required for their own business and for such business as may be done at the wharf on Summer Street in said Lynn, now or recently occupied by Allen and Edmunds, and at other wharves westerly of ward five in Lynn, nor will they at said mills do any planing at a less price or rate than shall be charged by said Buffum for like work.</p> <p>“And they further agree that while said note remains unpaid, they will pay to said Buffum, in lieu of profits, the rate of two per cent, per annum, on the amount due on said note, the same to be in addition to interest thereon, and payable semi-annually.</p> <p>“And the said Buffum agrees with said Breed and Bassett, that so long as they shall perform their agreements herein contained, and conform to the terms of the lease aforesaid, and shall be in good credit and standing, and keeping good their stock of lumber unincumbered, he will make no demand for the payment of the principal of the said notes, within three years from date, unless it shall be convenient for the said Breed and Bassett to pay the same within that time.”</p> <p>The bill alleged that on and before August 18,1865, the plaintiff was the owner of a certain parcel of land situate on Commercial Street in Lynn, with a certain mill thereon standing, and in the mill machinery for sawing and planing boards, dressing lumber, and manufacturing boxes and doing other business of like character, and at the same time was the owner of certain other land, with a mill standing thereon, on Union Street in Lynn, and was there, also, at that time, and ever since has been, and now is, largely engaged in the business of sawing, planing, and in the dressing and manufacture of lumber, and especially in the manufacture of shoe boxes and packing boxes for various parties in Lynn and its vicinity; that on August 18, 1865, he leased the land on Commercial Street, with the mill and machinery and other property therein, hy written lease of that date to the defendant and one William Bassett, Jr., then copartners under the style of Breed & Bassett, the lease being for the term of ten years from its date, and containing an agreement on the part of the plaintiff that the lessees therein named, or their legal representatives, might purchase the leased property, within three years from August 18, 1865, for the sum of $17,000 ; that in consideration of the lease and the covenants and conditions therein contained, the said Breed & Bassett executed the aforesaid agreement; that on or about July 28, 1868, the firm .of Breed & Bassett was dissolved, and Bassett sold and assigned his interest in the business previously conducted hy the firm and in the aforesaid lease and agreement to the defendant, and that at the same time the plaintiff, in accordance with the covenants of.,the lease and the assignment from Bassett to the defendant, conveyed to the defendant the said land and mill, and the machinery therein and other property described in the lease, and that since the last named date the defendant has been the owner and occupant of the land and mill, and from that time to the date of the filing this bill has been carrying on business at the mill; and that contrary to the aforesaid agreement has been largely engaged in the manufacture of shoe boxes and packing boxes for sundry persons and firms in Lynn and vicinity, not included in the exceptions in said agreement contained, using in the manufacture the mill and machinery ; that he has solicited and obtained in the business the patronage of the customers of the plaintiff, and in all ways has actively and persistently entered into competition with the plaintiff ; and that he has done large amounts of mill work for various parties in violation of the agreement, and has done planing for sundry parties for a less price than that fixed and charged by the plaintiff for like work; and has thereby prevented the plaintiff from receiving large gains and profits from his business, and has Otherwise greatly injured him, and that the defendant has refused (rnd still refuses to the plaintiff access to the books, containing the account of boxes manufactured by him, or to account for and pay over to the plaintiff any portion of the profits derived from the manufacture.</p> <p>The defendant demurred to the bül, assigning the following among other causes of demurrer:</p> <p>1. That the covenants and agreements of the defendant, as set forth in the said agreement, only related and referred to the time included in the term of the lease, and were wholly terminated and concluded upon the conveyance of the estate, as set forth in said bill.</p> <p>2. That it is not alleged in the bill that the defendant has done any of the acts complained of, except at a time subsequent to the termination of said lease.</p> <p>3. That the agreement, by its terms, as well as by legal and necessary conclusion, has no reference to any time after the end of the term.</p> <p>4. That the covenants of the defendant are not perpetual.</p> <p>The case was reserved by Colt, J., upon the bill and demurrer, for the consideration of the full court.</p>

<p>Tort for personal injuries caused by the negligence of William B. Taylor, alleged to be the servant of the defendant, in building fires in front of the premises of the defendant, along the line of the Jerusalem Road, so called, a public highway in the town of Cohasset, whereby the horse which the plaintiff was driving was caused to run away, and the plaintiff thereby severely injured.</p> <p>At the trial in the Superior Court, before Brigham, C. J., it was admitted that the Jerusalem Road was a public highway, and that the premises were the property of the defendant. It appeared in evidence that the defendant’s lands, at some distance back from the road, were first cleared by Taylor, that the bushes and brush thereon were first cut, piled in heaps and burned; that after thus clearing said grounds back from the road, Taylor proceeded to clear up the defendant’s grounds along the road within and without the boundary of the road in front of the defendant’s premises in the same manner; that Taylor cut the brush and bushes along and within the limits of the road and piled them up in heaps within two feet of an old stone wall marking the boundary of the road, in front of the defendant’s premises and on the side next thereto, and set fire to three heaps thus made.</p> <p>Taylor was called as a witness for the defendant, and testified, among other things, that the defendant gave him general orders to mow and burn the bushes on his, the defendant’s, lands, and generally to clear up his lands, that he had no special orders from the defendant; that he had done such business for many years, and that he did the work in the same manner as he always did in clearing lands. He further testified that Luce was there, after he had cleared a part of the grounds back from the road and burned some of the brush, and directed him to go on and clear up the lands.</p> <p>The defendant testified that Taylor came to him for employment to clear up his lands, that he told Taylor to go ahead and clear them up, that he went down after Taylor had cleared up the back part of his premises, saw that the bushes had been burned, and directed him to proceed and clear up his front lands, and that he gave no instructions as to fires one way or the other.</p> <p>Among other things, to which exceptions were taken, the judge instructed the jury, that if the defendant employed Taylor to clear up land without any directions or restrictions as to the mode of clearing the land, he authorized Taylor to do the work in the usual and ordinary mode; and if burning brush was within that usual and ordinary mode, and especially if the defendant knew that Taylor was doing the work by burning brush, and made no objection to it, he authorized the burning of the brush; that if the defendant employed or directed Taylor to clear up land, outside the limits of his estate along its boundaries and within the limits of the highway on which the plaintiff was travelling, the same rule applied to Taylor’s authority; that an employment of Taylor to clear up the defendant’s land only, did not imply an employment to clear up land without the boundaries of the defendant’s land and within the limits of the highway upon which the plaintiff was travelling, although along the boundaries of the land; that the liability of a master for the acts of his servant' might extend beyond his own land, and if the master authorized acts which caused injury to another upon land of another person, the master would be liable for the acts of the servant.</p> <p>The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

<p>Contract for money had and received by the defendants to the plaintiff’s use. In the Superior Court judgment was ordered for the defendants on agreed facts in substance as follows, and the plaintiff appealed to this court.</p> <p>The defendants, as assignees of a bankrupt, sold a parcel of his real estate, subject to certain mortgages, at public auction, and the plaintiff was the purchaser thereof. The sum now sued for was paid by the plaintiff to the defendants’ agent, in compliance with the terms of the sale requiring $600 to be paid down by the purchaser. Notice of the sale was given, but not twenty days before the sale, as required by General Order 21 of the Supreme Court of the United States. The defendants offered to tender the plaintiff a good and sufficient deed of the property within the period of fifteen days, but the plaintiff waived the tender, and stated that he made no objection to the title, but only declined to take the deed and complete the purchase because of his inability to pay certain mortgages due on the property, and subject to which the property was sold. At the time b.e waived a tender of the deed, the plaintiff had had the title examined, but this did not include the doings of the assignees in adver tising and selling the property, and he did not have actual knowledge of the want of twenty days’ notice of sale, and did not discover it for a number of days after the said period of fifteen days, when for the first time the plaintiff claimed to have the money returned to him.</p>

<p>Contract by the treasurer of the Commonwealth to recover the amount paid by the Commonwealth to the state lunatic hospital at Taunton, for the support of Mary Handy, an insane pauper. Triad in the Superior Court, before Brigham, C. J., without a jury, who, after judgment for the plaintiff, allowed a bill of exceptions, the only parts of which, now material, were as follows;</p> <p>Mary Handy was unmarried, and when committed to the asylum neither her father, mother, grandparents, or great-grandparents were living. She was the daughter of John Handy, who was the son of Russell Handy, who was the son of Robert Handy. The plaintiff claimed that Mary Handy’s legal settlement was in Swansea, through the birth of her grandfather, Russell Handy, in that town, in the year 1759. The only evidence of the birthplace of Russell Handy was a record of the town of Swansea, produced by the clerk thereof, in which appeared this entry: “ Russell Handy, son of Robert Handy and Rachel, his wife, was born April ye 1st, 1759.” The only other evidence of Russell Handy’s birth, of the residence of Robert Handy, or of Russell Handy, in that part of Swansea, which, since 1790, when the town of Somerset was incorporated, has constituted the town of Swansea, was afforded by the testimony of William Wood, now of Swansea, seventy-two years of age, and a son of a brother of Russell Handy’s wife, who testified that he knew of a lot of land near the line between the towns of Rehoboth and Swansea, which he was accustomed, in his youth, to see and hear people of the town point out and speak of as the “ Robert Handy lot,” and “ the lot where Robert Handy lived.*</p> <p>The defendant objected that the evidence was not sufficient to fix the settlement of Mary Handy in the present limits of Swansea rather than in Somerset, which was formerly a part of Swansea. The judge declined so to rule, but found that Mary Handy’s legal settlement, for the purposes of this action, through the birth of her grandfather, Russell Handy, in Swansea, in 1759, and his residence, and the residence of his father, Robert Handy, there, as testified of by William Wood, was in Swansea, and the defendant was chargeable for the support of Mary Handy while in the lunatic hospital, as an insane person. The defendant alleged exceptions.</p>

<p>In an action on a promissory note, the plaintiff offered evidence that he had been in partnership with the defendant, and upon its dissolution there was a settlement between himself and the defendant, and a certain sum was found to be due him ; that the note in suit and other property was given in satisfaction thereof. The defendant’s evidence tended to show that the sum mentioned was not the true indebtedness, which was settled by the transfer of the property; that the note in Suit was subsequently obtained without consideration; that if the sum stated was assumed at the time of the settlement to be the true indebtedness, the amount was incorrect; and that the note was obtained by fraud and misrepresentation. The judge, after giving appropriate instructions not excepted to, instructed the jury, at the request of the plaintiff, that if the parties made a settlement which included disputed claims about which there had been a difference or discussion, they were bound by the settlement, unless it was procured by fraud or misrepresentation. Held, that the defendant had no ground of exception.</p>

TORT for the conversion of a moulding machine. Trial in the Superior Court, before Putnam, J., who reported the case to this court in substance as follows : The defendant is assignee of the firm of Richardson & Co., bankrupts, and took this machine as part of the property of the bankrupts. The action was brought after a demand and refusal, and the requisite preliminary notices.