Volume 117 — Massachusetts Reports

<p>The provisions of the Gen. Sts; c. 124, § 5, forbidding the arrest of a judgment debtor, unless execution is issued amounting to twenty dollars, exclusive of all costs making part of said judgment, do not prevent his arrest upon an execution issued in an action upon his bond given to dissolve an attachment in a former action for a debt under twenty dollars, but which is made by the costs of that action to exceed such amount.</p> <p>A debtor who has entered into a recognizance under the Gen. Sts. c. 124, § 10, to deliver himself up for examination within thirty days, commits a breach thereof, if after an adjournment of the examination to a date named which falls on Sunday he neglects, by reason of the absence of the magistrate at the time and place appointed, to obtain an adjournment of the examination or to have further proceedings taken.</p>

Contract in the name of the city treasurer, for the benefit of Francis W. Mitchell, against the principal and sureties on the official bond of Benjamin F. Roberts, a constable of the city of Boston.

<p>Where executory contracts are made on different days for the sale of goods, the price of which is to be payable on delivery, and the deliveries under the second rontract are by its terms to commence when the full quantity required by the first has been shipped, the purchaser cannot, after refusing to pay for goods delivered under the first contract unless the seller will give security for the entire fulfilment of the contracts, maintain an action for non-delivery under the second contract.</p>

<p>CONTRACT upon the following agreement, signed by .the defendants : “ Boston, October 22, 1872. Received of John E. Drake one Morris & Ireland fire proof safe, which Ve promise to deliver the same to said Drake, or its equivalent in money, on payment of a certain note signed by said Drake, dated October 22,1872, payable in four months from date, for the sum of $276.68.” Trial in the Superior Court, before Putnam, J., who allowed a bill of exceptions in substance as follows :</p> <p>The plaintiff purchased leather of the defendants, giving them his note for the price thereof, and, to secure the payment of the note, deposited with them the safe in question, giving them a bill of sale of the safe, upon the back of which was written the agreement upon which this action is brought.</p> <p>The plaintiff testified that he authorized the defendants to find a customer for the safe, which he desired to sell, and authorized the defendants to sell it for $400, but that any customer for a less price was to be referred to him. The defendants testified that they were authorized to sell it for $300, but that, if any less, sum was offered for the safe, they were to inform the plaintiff, who was to decide about accepting the offer. No customer was found for the safe.</p> <p>The plaintiff paid his note at maturity, and made a demand for the safe, before bringing this action. The safe was destroyed by the fire of November 9, 1872, and there was no evidence of negligence or want of due care upon the part of the defendants.</p> <p>The judge instructed the jury, that by the terms of the agreement the defendants were bound to account to the plaintiff for the value of the safe as it was when deposited with them. The jury returned a verdict for the plaintiff; and the defendants alleged exceptions.</p>

Contract upon a promissory note made by the defendants and payable to the plaintiffs.

Contract on a promissory note. Trial in the Superior Court before Pitman, J., who ordered'a verdict for the defendant, and reported the case for the determination of this court. The nature of the case appears in the opinion.

Contract to recover the price of two cases of leather alleged to have been sold by the plaintiff to the defendant. Trial in the Superior Court, before Bacon, J., who allowed a bill of exceptions in substance as follows: The plaintiff and the defendant are both manufacturers of and dealers in leather, the former at Philadelphia, the latter at Boston.

<p>Tori for the conversion of 200 bedsteads. Trial in the Superior Court, before Putnam, J., who allowed a bill of exceptions in substance as follows :</p> <p>The plaintiff put in evidence tending to show the following facts: One Porter came to the plaintiff’s place of business in Bethel, Maine, and gave him a business card of H. S. Hills & Co., of Boston, and told the plaintiff that he was A. C. Pool, a member of that firm; that they were going to fit up a boardinghouse, and wanted some bedsteads. The plaintiff showed him some bedsteads, and a price was fixed, and the terms of payment, and then Porter told the plaintiff that he was not authorized to make the bargain, but must consult his senior partner in Boston. He also told the plaintiff, if he wanted to communicate with him in regard to the matter, to direct his letters to A. C. Pool, 174 Friend Street, although the place of business of H. S. Hills & Co. was on Fulton Street, stating as a reason therefor, that the prevalence of the small-pox in Boston prevented their getting their mail, if directed to their place of business, as carriers would not deliver there. Porter then went away, and in a day or two the plaintiff received the following letter: “ Boston, March 11, 1873. Mr. Moody, Sir: Pressing business has prevented my writing you before. My partner has gone West for five or six weeks, but my contract with you is satisfactory. If your stock does not come to hand in time for our contract, we can fill from here, and have a market for your goods. Please find out the exact cost of transportation, as I had not time to ascertain. Please fill my order as soon as convenient, and in answer to this you will inform me about how long time you will require. Respectfully yours, A. C. Pool, 174 Friend Street, Bostto, Mass.’</p> <p>The plaintiff then sent 201 bedsteads, by a carrier, directed to H. S. Hills & Co., Fulton Street. When they arrived, notice was sent to H. S. Hills & Co., but they informed the carrier that they had not ordered them, and refused to receive them. The next day, Porter came to H. S. Hills & Co. and said he had the bedsteads to sell, and wanted to sell them, and asked the real A. C. Pool, who was a member of said firm, if he wanted them ; he said he could not take so many, might take a few. Hills gave Porter some names (one of which was the defendant’s) to whom he might be likely to sell them. Porter went to the carrier and told him he had sold the bedsteads to the defendant, and ordered him to take them to Blake’s store, which was done. It appeared that Porter was not a member of H. S. Hills & Co., and was not authorized by them to make any purchases of bedsteads. The terms of payment were a note on thirty days for the first lot of bedsteads. When the bedsteads arrived, a note was sent by letter, signed A. C. Pool, which note was a forgery.</p> <p>Previous to the reception of this note, when the bedsteads were sent, a bill of the same was sent to A. C. Pool on Friend Street, made out to H. S. Hills & Co. The plaintiff also wrote to his brother to inquire the standing of H. S. Hills & Co., before he sent the bedsteads. Within a day or two after he had received the note, he received a letter from his brother, saying there was some misunderstanding about the matter, and he had better come up and see to it. On his arrival, he found that he had been swim died by Porter. He then went to the defendant and demanded the bedsteads, which were refused. There was also evidence that, a few months previous to this transaction, the plaintiff had sent some bedsteads to Boston, and had written to a brother in Lynn to have them sold, and that brother asked another brother in Boston to attend to it, and he employed Porter, who was a brother-in-law, to sell these bedsteads, and Porter had sold them to H. S. Hills & Co., and paid over the money to the brother who employed him. But the plaintiff testified that he did not know of Porter’s connection with that transaction until some time after this suit was begun. This was all the testimony offered by the plaintiff.</p> <p>The defendant contended that there was no evidence to go to the jury, and asked for a verdict; but the judge refused to order a verdict.</p> <p>The defendant then testified that Porter came to him to sell the bedsteads, and referred him to H. S. Hills & Co.; that before he bought, he went to H. S. Hills & Co., and they told him they had bought the same kind of bedsteads before of Porter, and that these had been sent to them, but they did not want so many, and that they understood that Porter had charge of the selling of them, as before. Thereupon he bought them, and paid the same price for them that Hills & Co. had paid for the former lot; that the plaintiff afterwards came and demanded the bed steads, and he refused to give them up.</p> <p>This was all the evidence in the case, except on the question of value, and the defendant contended that there was no evidence for the jury, but the judge ruled that the case should be submitted to the jury.</p> <p>The defendant then asked the judge to rule: “1. That if the goods were sold with the intention to pass the property, although it was brought about by a fraudulent device, then the defendant would not be liable, if he bought them in good faith; 2. That the plaintiff had constituted Porter Ms agent, and so the defendant was not liable; 3. That the plaintiff had constituted H. S. Hills & Co. his agent to a certain extent, sufficient to authorize the defendant to purchase and hold these goods, if it was done with their knowledge and agreement.”</p> <p>The judge refused all these prayers as asked for; but, upon the question embraced in the first request, instructed the jury that if the goods were sold with the intention to pass the property to A. C. Pool individually, and not to the firm of H. S. Hills & Co., the defendant would not be liable, if he bought in good faith. As to the questions involved in the other prayer, the judge left it to the jury to determine whether the plaintiff had made Porter or H. S. Hills & Co. his agents, giving them full instructions upon these and other questions in the case, not excepted to, except so far as the judge declined to give the instructions asked for. The jury found for the plaintiff, and the defendant alleged exceptions.</p>

<p>An intestate left a widow, five children by a former wife, personal estate amounting, after payment of debts, to $9000, and real estate of the value of $13,000 or somewhat more, .in which the widow had dower. The widow remained in his house for ten weeks, and the administrator paid the expenses out of the estate. He also provided her from time to time with all the money she wished, and charged it to her distributive share. The Probate Court, two years after the death of the husband, upon the application of the widow, made her an allowance of $800; and its decree was affirmed, on appeal, by a justice of this court. Upon appeal to the full court, there being no evidence as to the time of the filing of her application or the cause of the delay of the Probate Court thereon, or as to the widow’s age or state of health, or the mode of life to which she had been accustomed: Held, that the decree should be affirmed with costs.</p>

<p>The by-law of a mutual fire insurance company provided that “ when any building insured by this company shall be alienated unconditionally, either by the act of the assured or by operation of law, except in the case of descent to heirs, the policy may be surrendered to the company or be transferred to the alienee of the building, who, with the consent of the president, may be entitled to all the rights of the original holder of the policy, by giving his engagement in writing to assume all the liabilities imposed by the same, and such policy, if not surrendered or transferred as aforesaid, shall become void.” A member of the company alienated unconditionally a building insured, but did not surrender his policy to the company, or transfer it to the alienee of the building. Held, that he was still a member of the company, and liable to an assessment subsequently laid.</p>

<p>Where flats covered fly the sea are granted fly the Commonwealth to one who agree» to fill them within a certain time,' the public right of user for purposes of naviga tian is not extinguished until they are filled; although the grant is by uarrantj deed with a covenant against incumbrances. 2 ne owner of a scow, which is sunk in navigable waters, is liable for injury to a vessel which strikes upon it in the exercise of due care, if the scow was sunk by his negligence and the injury is the result of that negligence, or if he neglects while en gaged in raising it to take proper precaution to warn the public.</p>

<p>A., being indebted to B., gave him a mortgage of land which was then subject to prior mortgages. B., to prevent foreclosure of these mortgages, took an assignment of them, paying less than was due on them. Afterwards, A. conveyed the land to B. by an absolute deed, and B. made a declaration of trust, by which he agreed to pay to A. “ whatever balance shall remain over and above the amount necessary to discharge my original claims against the said A. and the charges • against the said estate, which, by my purchase of the same, have become vested in me; the said payment to be made when all such claims and charges shall have been fully liquidated and discharged; the said claims and charges being contained in certain mortgages made on the said estate, made by the said A. to myself, to ” the other mortgagees, naming them, “ and by them assigned to me.” Held, that B. was entitled to charge A. with the full amount of the assigned mortgages, and not merely with the amounts paid by him.</p> <p>The heir at law of one who held land in trust to sell it and apply the proceeds in payment of a debt due him from the grantor, and to pay the balance to him, sold the land, in ignorance of the trust, and agreed to give warranty deeds. Before the deeds were given, the existence of the trust was discovered, and the purchasers refused to take the deeds without a bond of indemnity against the cestui que trust, which the heir gave. On a bill in equity against the heir by the cestui que trust, which terminated in the latter’s favor, it was held that the heir could not charge a commission of five per cent, on the land sold for giving such bonds.</p> <p>A trustee is entitled to a reasonable compensation for his services, under all the circumstances of the case.</p> <p>In the settlement of a trustee’s account, the trustee can only charge interest at the rate of six per cent, per annum on money expended by him, unless there is an agreement for a higher rate ; and money received by him is to be first applied to extinguish accrued interest.</p> <p>A. conveyed land to B. by an absolute deed, and B. made a declaration of trust by which it appeared that he held the land in trust for A., to sell the same, discharge certain debts, and pay the balance to A. After this B. died, and his heir disputed the validity of the trust. Held, on a bill in equity by A. against the heir, in which the trust was declared valid and an account was taken, that the heir was not entitled to costs or counsel fees.</p> <p>A. being indebted to B. at a time when gold and silver were the only legal tender, conveyed to him land in trust to sell it from time to time, discharge his debt and pay the balance to A. The land was sold when paper money was a legal tender, and the debt was so discharged. Held, that the trustee, in accounting with A., could not charge him with the difference in value between gold and silver and currency.</p>

<p>Bill in equity against James A. Coe and the Cary Improvement Company, to compel the conveyance to the plaintiff of 100 shares in the capital stock of the last named defendant, sold by the plaintiff to said Coe. Relief was sought on the ground that the sale was induced by fraud. Coe having become bankrupt, his assignees were admitted to defend. The case was heard before Fndicott, J., who reported for the consideration of the full court the question whether the bill could be maintained upon the following findings of facts.</p> <p>The plaintiff and the defendant Coe were both brokers, and had previously dealt in stocks with each other, the plaintiff having received Coe’s checks in payment for stock sold, as he did in this case. Coe had been for more than a year borrowing large sums of money, giving to the lenders as collateral security certificates of stock which, originally issued for one or two shares, had been altered by him so as to appear certificates for one or two hundred shares. In May, 1873, at the time of the transaction hereafter described, he was indebted very largely to various persons who held these fraudulent certificates, and was deeply insolvent, though his credit was unimpaired, and until the discovery hereafter referred to, he had no expectation of not meeting his engagements in regular course. On May 12, Comins sold him one hundred shares in the capital stock of the Cary Improvement Company for $1337.50, to be delivered on the 13th. As a matter of convenience among brokers who are making constant transfers of stock, delivery of stock bought is made not by delivering a certificate, but by a simple transfer on the books of the corporation, and having the stock carried to the credit of the purchaser on those books; and in this way the stock was delivered to Coe on the 13th, Coe receiving no certificate. About a quarter before two o’clock on the 13th, the plaintiff went to Coe’s office, and received from him a check for the price of the shares, drawn on the Massachusetts National Bank, telling him that he would at once transfer the stock to him. He left Coe’s office, went to the office of the Cary Improvement Company, and there transferred to Coe the 100 shares on the books of the company, and these shares were thereupon placed to Coe’s credit on those books. He then went to the First National Bank, where he deposited Coe’s check, with other funds, to his own credit. The next day, between ten and eleven, it was returned to him by his bank as not good, and the plaintiff has received no other consideration for the transfer of the stock.</p> <p>On the morning of May 13, at nine o’clock, there was standing to Coe’s credit, on the books of the Massachusetts Bank, the sum of $51,727.26. During bank hours on that day he made deposits amounting to $26,471.60, making the sum of $78,198.86 available to meet his checks on that day. On the same day checks of his were paid by the bank to the amount of $34,829.50. This amount includes one check for $20,000, which was presented to the bank between eleven and twelve o’clock, and was certified by it, the amount being, according to its custom, charged off then, and paid when the check was presented through the clearing-house the next day. About half-past one o’clock on the 18th, the Massachusetts Bank received an intimation that Coe had been using raised certificates. Upon examining those that they held as security for a demand loan which they had made Coe, and which had been standing about a month, and upon inquiry at the offices of the companies, the bank officers discovered that their certificates were fraudulent, and about two o’clock charged off on the books of the bank the amount of this loan, which, with interest, was $37,097.50, leaving a balance to his credit, when the bank closed, of $6262.86. The same afternoon, about three o’clock, the bank’s discount clerk went to Coe’s office and asked him for a check for the amount so charged off, which Coe gave. In the conversation that then occurred, Coe learned for the first time that his forgeries had been discovered, or that the bank wished to call in its loan. The next morning, between nine and ten o’clock, Coe deposited in the Massachusetts Bank a check for $8000, which was paid to the bank. At ten o’clock checks were presented, through the clearing-house, to the Massachusetts Bank for $11,505.25, among which was the check for $1337.50 given to the complainant Comins, and all these checks were returned by the Massachusetts Bank unpaid. The balance to the credit of Coe, on the 14th, when these checks were presented, was $14,005.19.</p> <p>The bank afterwards charged off $62, on account of interest on its loan, which was omitted when the calculation was first made, leaving a balance still to his credit of $13,942.69. The evidence showed that the transaction was one in the ordinary course of business, and that Coe, when he drew the chec^ which he gave to Comins, expected that it would be paid. The Massachusetts Bank declined to pay the checks presented on the 14th, because between nine and ten o’clock on the 14th its officers were informed by Mr. Ransom, the president of the North Bank, that one Nathan Matthews (but whether by authority from said Matthews or not did not appear) would claim to recover of them the value of a certificate for 200 shares in the capital stock of the Boston & Albany Railroad Corporation, which Coe had given the bank as collateral for a loan to him, the certificate being made out to the bank. When the loan was paid, the cashier of the bank, in order to return his stock to Coe, signed the blank transfer on the back of the certificate. This certificate Coe afterwards gave Matthews as collateral for a loan, and Matthews claimed -to hold the bank as indorsers of the certificate, which had been raised from two to two hundred shares, his claim being larger than the balance which still remains to Coe’s credit. In a suit brought by Matthews to enforce this claim, the Circuit Court of the United States decided in favor of the plaintiff, and the case has been carried to the Supreme Court of the United States on appeal, where it is now pending.</p> <p>Upon these facts, which were not disputed, the judge found that Coe, when he purchased the shares of the complainant, had no intent to defraud him, and that when he gave the check for $1337.50, he supposed that it would be paid, having funds enough in the bank to meet it after deducting the loan of the bank secured by fraudulent collateral.</p>

Petition eor review. At the hearing of the petition, before Brigham, C. J., the only matter in issue between the parties was the validity of an award, the legal effect of the facts therein found, and the questions of law. stated by the referee who made the same, and it was agreed, that upon the determination of these questions of law, subject to the exception of either party, this petition should depend.

<p>Contract to recover the liquidated damages named in a building contract for breach of its stipulations. The case was sent to a referee to find the facts, state the accounts, and report his rulings upon the law. The referee found for the plaintiff; the award was accepted, and judgment ordered thereon, in the Superior Court, and the plaintiff, aggrieved at the amount awarded, appealed to this court. The facts of the case, so far as material, appear in the opinion of the court.</p>

<p>Contract against William Somers, J. H. Kling, E. W. Roff, Cyrus J. Anderson and W. C. Huntington, copartners under the style of William Somers & Co., to recover for services rendered in procuring a purchaser for a lot of land in Boston. The declaration contained two counts, the first alleging that the plaintiff was employed by the defendants to sell, or procure a purchaser for the land, and setting forth the services rendered ; and the second upon an account annexed. Trial in the Superior Court, before Pitman, J., who allowed a bill of exceptions in substance as follows :</p> <p>It appeared in evidence at the trial that the lot was originally owned by George W. Tuxbury, who, on January 1, 1871, gave a bond to the firm of Newman & Colby, to convey the land to them at the price of thirty-five cents a square foot. Newman & Colby owed the defendants a large sum of money, and the defend ants, in pursuance of an arrangement made with the firm and their creditors, took all their assets upon payment of a certain sum ; and upon learning of the conditional interest that the firm had in this land, were desirous of obtaining the benefit thereof.</p> <p>The plaintiff testified that the contract he relied on was made in the spring of 1871, and confirmed in the fall thereafter ; and that in January, 1872, he introduced a purchaser to the defendants, one P. G. Maguire; and a deed of the land from Tuxbury to Maguire was put into the case by the plaintiff, the consideration thereof being $1687.50, as therein stated. To obtain this deed the defendants paid nearly $500 to Tuxbury, being the balance due under the bond, and the deed was then made to Maguire at the request and for the benefit of the defendants. The record title stood in Tuxbury all the time from January 1, 1871, to the time of the delivery of this deed to Maguire.</p> <p>In relation to the alleged contract for his services, the plaintiff testified that Kling, one of the defendants, met him near the premises in May, 1871, and told him that he, Kling, wanted to get a deed of the land; and the plaintiff replied that the land was not paid for; that Kling then asked how much was due upon it, and requested the plaintiff to ascertain and let him know; that the plaintiff next saw the defendant Somers, who said he wanted the plaintiff to see Tuxbury and ascertain how much there was due on the land, which the plaintiff agreed to do, and did; that the plaintiff next saw Kling a few days after, and Kling said he would like to have the plaintiff get the land and find a purchaser, and he would pay him for doing so. He testified further as to the conversation as follows: 161 told him I would try to get a purchaser. He said if I could, he would give me all I could get over thirty-five cents a foot, which was the price named ip the bond. He wanted I should see Tuxbury, and how much there was due on the bond. I saw Tuxbury. Kling said they would pay the balance for the land. Wanted me to get a purchaser and they would pay to me all I got over thirty-five cents a foot. I told him I would try and sell it.”</p> <p>The plaintiff further testified that he next saw the defendant Somers on State Street, and he said that whatever Kling had done would be all right; that he was one of the firm. This was in May. The plaintiff testified that he was then taken sick, but in the latter part of the summer and fall he saw several persons about buying the land; that in November he was called upon by Somers, who asked him if he had sold the land, and said to the plaintiff that if he would, he would pay him as agreed.</p> <p>This was substantially all the evidence offered by the plaintiff to prove his contract. The plaintiff then offered further evidence to show that he found and introduced Maguire as a purchaser, and then went with Kling to Tuxbury, where the amount agreed on was paid by Kling to Tuxbury; and the deed then made as above recited to Maguire.</p> <p>The plaintiff further testified that after he had demanded payment in June, 1872, the defendant Kling offered to assign a certain mortgage on this land in settlement of the plaintiff’s claim, upon condition that the plaintiff would pay the difference in amount. The plaintiff offered in evidence the following letter from the defendants to him, signed “ William Somers & Co.” : “ Boston, July 12, 1872. Dear Sir: Referring to our conversation some weeks since, in which we called your attention to the fact that P. G. Maguire, with whom you arranged to build on our lot on Clapp Street, of this city, was not able to use the $1000 in the operation which you named to us he would do, and referring further to our conversation last evening upon the same subject, as also the matter of a certain consideration alleged due you for your agency in the matter, embraced in an incidental conversation about a year ago, in effect that if you sold the land you might have all realized beyond thirty-five cents per square foot, and finding that the said Maguire, in failing to use the $1000 spoken of, is unable to finish the building, and in order to convince you that we mean to be entirely fair in the matter, we offer you the following proposition, viz.: Upon paying us at the rate of thirty-five cents per square foot for the land, together with what cash and material we advanced the said Maguire upon his operations and interest on the same, we will transfer to you a first mortgage which we now hold on the property, of $2500, and also a second mortgage on the same for $600. This latter mortgage is dated May 14, and the time is four months. It will enable you to foreclose in about two months, which will throw the attachment now upon the property, and is entirely clear of all Hens upon the same, having examined the records this day and find a lien for $58 on record, which only dates back to May 28 fourteen days after our mortgage was made and recorded. We should give no one else this proposition, and only to you in order that you may be convinced that our object is to deal fairly with you, provided you still feel as though we should hold ourselves for the conversation of a year ago. Under the circumstances we shall make no further advances either in material or money, and shall consider our proposition open to you for ten days from this date inclusive.” The defendants objected to 'the admission of the letter, on the ground that it was merely an offer of compromise, but the judge ruled that it contained certain statements of fact, and so far was admissible, instructing the jury that as an offer of compromise it was inadmissible, and in that aspect should have no weight.</p> <p>The plaintiff, in reply to a question by the judge, stated that his charge was for finding a purchaser and getting the land deeded to the defendants. At the close of the plaintiff’s' case, the defendants asked the judge to rule that upon this evidence there was a variance between the declaration and the proof; but the judge refused so to rule.</p> <p>The defendants offered to show that when the alleged contract was made the plaintiff was wholly or in part the owner of the land in question, and that he was beneficially interested in the land, and continued so to own it and to he so interested until after the sale to Maguire; and that his interest or ownership was never disclosed to the defendants, and that they never knew of such ownership and interest until after the suit was brought; but the judge excluded the evidence offered, and ruled that the question of such ownership was immaterial in this case. And the defendants further offered in evidence the following written agreement between the plaintiff and Tuxbury, signed by Tux-bury: “ It is understood and agreed that any net profits made by me upon final disposition of the several parcels of land in Ward 16, Boston, conveyed to me by Edmund Durgin and the South Bay Company, after all outlays and expenses are paid me, with eight per cent, interest semi-annually on the cost of the same and my advances, are to be equally shared between me and said Durgin. It being further distinctly understood that all improvements, leases, sales or other disposition of said lands and premise* are to be made according to my judgment as to terms, parties and prices, and that said Durgin shall render all the aid in his power, for which and for all such aid heretofore rendered he is to receive no other compensation except a share of net profits, if any are made by Tuxbury on final closing of the business as above provided.” The judge excluded it, and ruled that it was immaterial in this case. This was after the defendants had testified that they never had agreement or writing with Tuxbury in regard to the land, nor any deed or title thereto, and no evidence was offered by the plaintiff that the defendants had any such writing.</p> <p>The defendant Somers testified that the parties named in the writ were partners with him in 1871, and it appeared that they were lumber dealers, but there was no other evidence as to the partnership or its business, or that the other partners named in the writ knew of the transaction in suit except as above stated. No question was, however, made at the trial as to the separate liability of the several defendants, and the attention of the judge was not called in any way to this question.</p> <p>This was in substance all the evidence offered as to the terms of the contract between the parties. The other evidence in the case related to other questions of fact between the parties; and at the close of the evidence on both sides the defendants asked the judge to take the case from the jury, and to rule that upon the whole evidence the plaintiff was not entitled to recover. The judge refused so to rule, and submitted the case to the jury under instructions which were not otherwise excepted to.</p> <p>The jury found for the plaintiff, and the defendants alleged exceptions.</p>

Contract for the value of repairs put upon a house leased by the defendant to the plaintiff, and from which the plaintiff alleged that he was evicted during the term of the lease in consequence of the defendant’s husband not assenting to the lease.

Tort for personal injuries sustained by reason of a defective highway.

<p>A woman, who worked in a mill in one town and temporarily boarded there, went on Saturday to see her children in an adjoining town. One of them being sick, she remained until Sunday night, when she went to the town where she worked to procure medicine for the sick child, intending to send it home by another person, and on her way was injured by a defect in a highway. Held, that the jury would be warranted in finding that she was travelling from necessity or charity.</p>

Contract, begun by a writ dated February 1,1872, returnable to the Superior Court. At June term, 1872, the case was, by agreement of parties and rule of court, referred to three referees, whose judgment was to be final. An award was made by two of the referees in favor of the plaintiffs, which was filed in court. This was set aside and the case recommitted to the same referees.

Petition to establish the truth of exceptions disallowed by the judge who presided at the trial in the Superior Court. The affidavit annexed to the petition was merely an affidavit of the attorney that “ the foregoing exceptions by him subscribed are true.”

Petition to the Superior Court for a jury to assess the damages alleged to be done by the respondent in the construction o* its water works. No evidence was introduced at the hearing other than as appeared on the face of the papers in the case; but it was admitted that there had been no estimate of the petitioner’s damages made by the county commissioners.

Petition to the Superior Court, filed October 28, 1873, for leave to enter an appeal from an assessment upon the petitioner’s estate made July 21,1873, by the mayor and aldermen of Lowell, of a proportionate part of the expense of the construction of a sewer in South Street in that city; and alleging that on September 23, 1873, the petitioner gave the said mayor and -aldermen one month’s notice in writing of Ms intention to appeal.

Petition for a writ of certiorari to the county commissioners of Middlesex, directing them to certify and bring into this court the records of their proceedings in the issue of a warrant for a jury to determine the damages caused to certain land in Cambridge, held by Henry O. Houghton, William T. Richardson and George S. Hale as trustees under the will of Solomon Sargent, by reason of the taking by the petitioner of a portion thereof for the purpose of laying out a common…

<p>Conte ACT for money had and received. Trial in the Superior Court, before Aldrich, J., who allowed a bill of exceptions in substance as follows:</p> <p>The plaintiff is the widow of Charles H. Clough and administratrix of his estate; he left a minor son, his only heir, and also 6 father, mother and one sister and several brothers, of whom the defendant is one. The defendant admitted at the trial that he had received about $800 from his deceased brother, but as to all except $400, he pleaded payment and offered evidence in support of the plea. As to the remaining $400, the defendant answered that he received that from his brother, the plaintiff’s intestate, as a donatio causa mortis; and offered evidence in support of this part of his answer, that his deceased brother, during his last sickness and a few days before his death, gave and delivered to him the $400 in trust for his minor son, with instructions to invest and hold the same until the son should be twenty-one years of age, and then to pay the same with all its accumulations over to the son; but should the son die before reaching the age of twenty-one, he directed that the $400 with its accumulations should thereupon be paid over in equal parts to the mother and only sister of the intestate; that the defendant accepted the trust and took the money and retained it in his possession until after the death of the donor, and then deposited it in a savings bank, in his own name, as trustee for the minor son of his deceased brother, where the money has ever since remained.</p> <p>.At the close of the evidence and arguments in the case, the plaintiff requested the judge to instruct the jury “ that if they found that the deceased directed the defendant in case he died to keep the money and give it to the child if he lived to be twenty-one years of age, and, if he did not, to divide it between the mother and sister of the deceased, that would not be in law a gift to the child, mother or sister; and that such a disposition could only be made by will.” The judge declined to give the instruction' as prayed for; but, after having instructed the jury upon other parts of the case in a manner not objected to, instructed them, that, to establish a donatio causa mortis, there must be shown a clear and manifest intention on the part of the owner of the property to make the gift, a subject capable of passing by delivery and an actual delivery at the time, in contemplation of impending death; that where there is such a gift and actual delivery, and the expected death of the donor ensues, the gift is complete, and vests the property in the donee presently, without its vesting in or passing through the executor or administrator. In this connection the judge read and adopted as part of the instructions to the jury from the opinion of Walton, J., in the case oi Hatch v. Atkinson, 56 Maine, 324, 327. He then added that personal property may be so given and delivered to one in trust for another for a particular purpose that it will be good as a donatio causa mortis; and that in the present case, if the jury should find, upon the evidence, that the intestate, in contemplation of impending death, did give and deliver to the defendant the |400 in trust to be paid over as contended by the defendant, and that the defendant accepted the trust and at the time received the money and retained it in his possession until the death of his brother a few days after this transaction, and then deposited the money as he has testified, that would constitute a valid donatio causa mortis, and vest the property in the defendant as such trustee; and that if they so found, it would be their duty to return a verdict for the defendant upon this part of the case. The jury found for the defendant, and to the instructions and refusal to instruct the plaintiff alleged exceptions.</p>

Replevin of a stock of goods, furniture and other articles, particularly described, in a shop and house numbered 11 on Merrimack Street, Lowell. At the trial in the Superior Court, before Bacon, J., it appeared that the plaintiff was a married woman, and the defendant, a deputy sheriff, attached and took the property replevied, by virtue of two writs against Daniel W. Mason, the plaintiff’s husband.

Contract on two joint and several promissory notes payable to the plaintiff and signed by both the defendants. The defendants answered severally, admitting the signing of the notes, but denying consideration, and the wife also pleaded her coverture.

<p>Trustee process returnable at December term. 1871 of the Superior Court. At the first term, Moses W. Kidder, summoned as trustee, appeared and filed his answer under oath, denying that he was indebted to the defendants, or that he had any goods, effects or credits belonging to them in his hands or possession, and praying to be discharged; and Frank E. Bennett, summoned as trustee, appeared and filed his answer under oath, declaring that he was indebted to the defendants in the sum of $68.18.</p> <p>The plaintiffs, at March term 1874, moved that Kidder be discharged and Bennett charged on their respective answers, and that each be allowed costs only for the first term. At the hearing before Aldrich, J., it appeared, that after the first term no further examination was had or question raised as to the trustees, and that no allegation was ever made against them, and that neither of said trustees was again called upon to answer further, and the litigation proceeded altogether between the principal parties; that one of the principal defendants was defaulted the first term, and that at the same term the other appeared and filed for answer a general denial, and the cause was thereupon continued from term to term to the present March term, when the principal defendant, who had answered, consented in writing that judgment might be -rendered against him.</p> <p>Upon these facts the judge ruled that each trustee was entitled to cpsts at each term including the present, and allowed each of the alleged trustees his costs for travel and attendance at each term of the court, including the present term, and directed that Bennett be charged upon his answer and allowed to retain his costs as above up to and including this term, and that Kidder be discharged upon his answer with costs as above stated. To this íuling the plaintiffs alleged exceptions.</p>

<p>A bill in equity was brought by husband and wife for the specific performance of a contract signed by the husband and the defendant, by which the defendant agreed to convey to the husband, “ my estates located as follows: Three houses in the town of Revere, as shown this day; two are French roof, and valued at $3000 each; the other is a pitch-roof house, and valued at $6,000; together with the land as now fenced; the whole being valued at $12,000. Also three tenement houses on Brewery Street, in Cambridge, as shown this day, and valued at $8000, subject to a $2000 mortgage: all the aforementioned estates having an equity of $18,000.” The bill also prayed for further relief. The defendant demurred, setting up the statute of frauds. Held, that the contract, though not signed by the wife, was a sufficient memorandum within the statute of frauds, and that the demurrer must be overruled.</p>

<p>If one hires a horse to go to a certain place and drives him beyond that place, it is a conversion, and the hirer is liable for any subsequent diminution in the value oí the horse, Although arising from the fault of the horse.</p> <p>A hirer of a horse and carriage for a time and distance not fixed or agreed upon is responsible for any injury to the horse and carriage caused by his want of ordinary care and skill; but is not responsible for an injury to them caused by an insufficiency of the harness or the fault of the horse.</p>

Bill rs equity filed September 17,1874, against Ira M. Chase, William H. Pearson and Amy Libby, to enjoin the defendants from taking possession of a farm conveyed by Amy to Pearson and by him to Chase. The bill also prayed that a portion of the estate or its equivalent in money should be allowed the plaintiff, for betterments put upon the estate and for money and labor expended upon the same by him. The bill charged fraud and conspiracy on the part of the defendants.

<p>If, by the law of a state where a judgment is obtained, an appeal does not stay proceedings on the judgment in that state, the pendency of such an appeal is no bar to an action on the judgment in this Commonwealth.</p>

Tort, under the Gen. Sts. c. 88, § 59, to recover double the amount of the damage sustained from the bite of a dog.

<p>B., being a devisee of A. only, and D., a devisee of C. only, jointly executed a deed beginning, “ I, B., legatee of A., and D., legatee of C.,” and conveying “ all tba real estate left or given us by A.; ” also a certain piece of land, “part of the estate of C.” Held, that the deed included all land which had been devised or conveyed by A. to B.</p>

Indictment on the Gen. Sts. o. 161, § 57, charging that the defendant, on a day named, with force “ did fraudulently obtain from one Charles E. Allen, by means of a game, device, sleight of hand and trick, and by the use of cards and other implements, instruments and means, a more particular description of which said game, device, sleight of hand, trick, cards, implements, instruments and means is to the said jurors unknown certain moneys, to wit, divers promissory notes,…

<p>The ordinance of the city of Boston, passed September 30, 1850, and included in the revision of 1869, prohibiting all projections of bay windows into the street, is not inconsistent with the St. of 1799, c. 31, by which only hay windows projecting more than one foot are prohibited; and is a valid exercise of the powers conferred on all cities in the Commonwealth by the St. of 1848, c. 278, and the Gen. Sts. c. 19, § 13, and upon the city of Boston by the St. of 1854, c. 448, § 35.</p>

Indictment on the St. of 1864, c. 79, alleging “ that Hatfield Crowther of Fall River, in the county of Bristol, on the nineteenth day of July, in the year eighteen hundred and seventy-four, the same being the Lord’s day, at Fall River, in the county of Bristol, was the keeper of a certain house, shop and place of public entertainment and refreshment, and did then and there wilfully suffer certain persons whose names are to the jurors unknown, to the number of twenty, to…

Complaint to the Police Court of Hew Bedford, alleging the keeping and maintaining of a tenement used for the illegal sale and illegal keeping of intoxicating liquors on January 1, 1873, “ and on divers other days and times between that day and the day of the date of receiving this complaint.” The jurat on the complaint was as follows: “ Bristol, ss. Received and sworn to the sixteenth day of May, in the year of our Lord eighteen hundred and seventy-four, before me, Chas.

<p>On the trial of an indictment for the murder of A., there was evidence that two other persons were killed at the same time and by the same weapon. Hdd, that the government might lay before the jury the whole transaction of which the murder of A. was a part; and that a doctor might testify as to the autopsy of the body of one of the other persons.</p> <p>Common observers, having special opportunity for observation, may testify to their opinions as conclusions of fact, although they are not experts, if the subject matter to which the testimony relates cannot be reproduced or described to the jury precisely as it appeared to the witness at the time, and the facts, upon which the witness is called to express his opinion, are such as men in general are capable of comprehending and understanding.</p> <p>(Yhether a witness, not an expert, is qualified to express his opinion as a conclusion of fact, is to be decided by the judge presiding at the trial; and his finding is not open to revision in this court, unless, upon a report of all the evidence, it is shown to be without foundation, or is based on some erroneous application of legal principles.</p> <p>On the trial of an indictment for murder, a witness familiar with blood, who had examined, with a lens, a blood-stain on a coat, when it was fresh, and who testified to its appearance at the time he examined it, and that it was not in the same condition at the trial, was permitted to testify that its appearance when he examined it indicated the direction from which it came, and that it came from below upward, although he had never experimented with blood or other fluid in this respect. Held, that the admission of the testimony afforded no ground of exception.</p> <p>At the trial of an indictment for murder, a witness who, soon after the homicide, had taken a pair of shoes from the defendant’s house, one of which, as the government contended, fitted a track supposed to have been made by the murderer, was permitted to testify that the shoes appeared as if they had recently been washed. Held, that the admission of this testimony afforded no ground of exception.</p> <p>On the trial of an indictment for murder, if the government contends that the mur. dered man had a certain sum of money in his possession, and that the taking a this was the motive of the murder, the defendant may show that no money was missing; but information obtained by the administrator of the deceased, upon inquiry by him, as to what moneys the deceased had received, and what he had paid out prior to his death, is hearsay evidence and inadmissible.</p> <p>A prisoner, when arrested, was told by the officer that he was not obliged to answer any questions put to him; a few days later he was questioned by the officer, anc. made statements prejudicial to himself. No inducement or influence on the part of the officer was shown. Held, that the statements were admissible in evidence, although the prisoner had no counsel at the time he made them.</p> <p>A man arrested on a charge of murder had about $335 in his possession, which he attempted to conceal from the officer making the arrest. The government contended that this money was stolen from the murdered man. The defendant offered to show that some months before the murder the sum of $200 was stolen from a person who charged the prisoner with the larceny, and that he did not deny the charge. Held, that the evidence was inadmissible.</p> <p>On the trial of an indictment for murder, there was evidence that scrip of a particular issue, not then in circulation, was found the day after the murder in the house of the murdered man, and that the prisoner the same day passed similar scrip. The witness who found the scrip was asked to describe it. This was objected to on the ground that the scrip should be produced. T"ie government stated that the scrip would be produced. Held, that the witness was right1/ allowed to describe it for the purpose of identifying the scrip when produced.</p> <p>Books on medical jurisprudence cannot be read by a witness to the jury, although the witness is an expert and concurs in the views therein expressed.</p> <p>An exception to the admission of evidence, on the trial of an indictment for murder, stated only that the government offered to show by a witness, who had chopped in the woods with the defendant, that he used an axe with the right hand forward; and that the testimony was admitted, subject to the defendant’s exception. Held, that as it did not appear how this evidence applied to the case, or that the defendant was injured by its admission, it afforded him no ground of exception.</p>

<p>Indictment under the Gen. Sts. c. 87, §§ 6, 7, for keeping and maintaining a common nuisance, to wit, a tenement, in Wake-field, used for the illegal sale and illegal keeping of intoxicating liquors.</p> <p>At the trial in the Superior Court, before Wilkinson, J., it appeared in evidence that ale had been sold in the tenement alleged to have been kept and maintained as a common nuisance by the defendant; that about five rods from the tenement, there was a house occupied by David Cronin, Jr., as a dwelling-house for himself and family, with whom the defendant boarded; but there was no evidence that the defendant exercised any control over the same. The government introduced evidence tending to show that ale had been carried from the said house of David Cronin, Jr., to the tenement in question, during the time mentioned in the indictment, but it did not appear by whom it had been so carried. The government offered to prove by an officer that a seizure of ale had been made by him at the dwelling-house of David Cronin, Jr., during the time covered by the indictment, to which the defendant objected; but the judge ruled that the evidence was admissible, and admitted the same under the defendant’s objections. The jury returned a verdict of guilty, and the defendant alleged exceptions.</p>

Complaint on the Gen. Sts. c. 161, § 43, charging the defendant with receiving a pair of eye-glasses, knowing them to have been stolen.

Indictment on the Gen. Sts. c. 84, § 1, for keeping open a shop on the Lord’s day. At the trial in the Superior Court, before Lord, J., the evidence tended to prove that the defendant kept his shop open for traffic on November 15, 1874, being the Lord’s day; and that it was a liquor shop and bar room.

<p>Indictment for murder. Trial before Gray, C. J., and Morton, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The defendant, a boy of the age of fourteen years and five months at the time of the offence, was tried on an indictment for the murder of Horace R. Millen, a child four years old, committed at Boston on April 22, 1874. The prisoner was arrested on the evening of the same day. On the next day he was taken by the officers to view the body of his victim, and admitted having killed the deceased ; and on the afternoon of that day one of the trustees of the State Reform School talked with him privately at the station-house. On April 24 he was taken before the coroner’s jury, where he testified, and denied that he killed the child ; and afterwards, on the same day, he had an interview with two lawyers, one of whom was of counsel for him at his trial. He was committed to the jail on May 1, where he remained until the time of his trial. The defence set up was the insanity of the prisoner.</p> <p>The defendant called George B. Munroe, an officer of the jail, and also offered to call other officers at the jail, for the purpose of showing the acts, conduct and habits of the prisoner on and after May 1, as bearing upon the question of his sanity at the time of the homicide. The court, in its discretion, excluded the testimony, as relating to a time too long after the homicide and arrest to be material. The defendant seasonably alleged exceptions to this ruling.</p> <p>A medical expert, called as a witness for the Commonwealth, who had examined the prisoner in jail at the request of the attorney general, and had heard the testimony at the trial, testified that in his opinion he was of sound mind at the time of the homicide. Upon cross-examination, he testified that he had given to the attorney general a statement in writing of the opinion which he formed upon his examination of the defendant. The defendant’s counsel proposed to read that opinion and to put it in evidence, the same having been previously handed to him by the attorney general, upon request. The attorney general objected, and contended that it was- under his own exclusive control, but offered to allow the defendant’s counsel to use it for the purpose of framing questions in cross-examination, but not to read it to the jury or the witness.</p> <p>The court ruled that, being a paper addressed to the attorney general by an expert employed by him to assist in preparing the case for the Commonwealth, the court should not compel its production or allow it to be used, except so far as the attorney general permitted. The defendant’s counsel took no exception to the ruling at the time, and used the opinion in accordance with the permission of the attorney general, in conducting the cross-examination of the witness. At the close of the examination of this witness, neither party desiring to offer any further evidence, the court adjourned to the next morning, when the counsel for the defendant stated that he wished to reserve an exception to this ruling, and his exception was reserved, subject to the question whether the right so to except had not been waived.</p> <p>The jury returned a verdict of guilty of murder in the first degree, and the defendant alleged exceptions, which were allowed “ if and so far as they contain any matter as to which the defendant has the right of exception.”</p>

Complaint to the District Court of East Norfolk, on the Gen. Sts. e. 87, §§ 6, 7, for keeping and maintaining a tenement used for the illegal sale and illegal keeping of intoxicating liquors.

Contract upon an account annexed to recover for the use and occupation by the defendant, from February 7,1871, to March 15, 1873, of certain premises conveyed to the plaintiff by the de* fendant December 10, 1870. At the trial in the Superior Court, before Brigham, C. J., the jury found for the plaintiff, and the defendant alleged exceptions. The nature of the case appears in the opinion.

Action on the Gen. Sts. c. 137, to recover possession of a house and land in Westfield, alleged to be held by the defendant unlawfully and against the right of the plaintiff.

<p>Tort for slander. The declaration contained two counts, the first of which alleged that the defendant publicly, falsely and maliciously accused the plaintiff of the crimes of larceny and burglary, and set forth the words spoken. The second count alleged that the plaintiff was a police officer of the city of Boston, and at the time of the slander had applied to the police commissioners to be appointed one of the constables of the Commonwealth ; that the defendant, contriving and intending to injure the plaintiff and to prevent him from obtaining the said appointment of constable, accused the plaintiff of burglary, whereby the plaintiff suffered great injury in his character and occupation as a police officer, and was prevented from obtaining the said appointment of constable. The answer contained a general denial, and also alleged “ that, if the defendant said anything of or concerning the plaintiff, the same was true, and was said without any malice on the part of the defendant, and was a privileged communication.”</p> <p>Trial in the Superior Court, before Putnam, J., who allowed a bill of exceptions, the material parts of which were in substance as follows:</p> <p>The plaintiff, in opening, read the second count in his declaration, but in his remarks to the jury made no allusion to .the matters alleged therein. No evidence was offered by the plaintiff in support of the second count, unless the court is of the opinion that any of the plaintiff’s evidence herein reported is evidence under that count. The plaintiff called John Newell as a witness, who testified as follows : “ I had been trying to get the plaintiff appointed as one of the constables, and had some intimation from Mr. Bates that he would be appointed. Presently I heard that he would not be, and I saw Bates, and Bates told me he should not appoint him. Then I went to see the defendant. When he came in I told him my name, and said I had come down to know what he knew about the plaintiff; that I was a personal friend of the plaintiff, and wanted to know what he knew derogatory to his character. The plaintiff did not know, before I went there, that I was going,- and never asked me to go. I had been to the chief of police before, and I intended by this examination wholly to satisfy myself whether I had recommended a rascal or not. I told the defendant I wanted to know what he knew derogatory to the plaintiff’s character, and the defendant went on and related the circumstances of breaking open his store in Pearl Street some years ago, and he said there were some number of hundreds dollars’ worth of goods taken out of the store that night, but they didn’t make much ado about it, or didn’t go into the press, or make any noise in any way about it, but in a few days Perry came in and said that he knew, or that he knew a man that knew, where the goods were, and for one hundred and seventy-five dollars the goods would be forthcoming ; and he made some arrangement with Perry to have the man there, and then went down to the police station, and the captain told him there was evidently collusion, if that was the case, between the officers and thieves, and if possible to ferret it out; and he made an arrangement, when the man came down, to have their bookkeeper in the closet, and commenced a conversation with him, but he said he was very shrewd, and turned round and saw the door a little ajar, and got up and opened the door, and that let the cat out of the bag, or words to that amount; that everything was at an end. And he went on to say that he believed Perry knew all about it, that he was in collusion with the thief, that he was a thief, and that he could have brought the other man forward if he had been a mind to; that he looked upon Perry as a thief and liar, and that he had had his eye upon him ever since, and followed him sharp, and that Perry was the man. He also said, ‘ If I had known as much about the matter as I know now, he "would probably have been serving a term in the state prison instead of being a candidate for any office.’ I told him that I should tell Perry, as near as I could, this conversation, and he said he didn’t care anything about that, he was able to back his statements; and, furthermore, when I was going out, he added, there was one thing which made him more positive. Said he, ‘ He said (you will observe the lan« guage) that he had never sent anybody down there, but if he had known this man was going to ask anything, he would not have sent him down there at all. I laughed at that contradiction.’ Breed said that both Perry and the man he sent down asked one hundred and seventy-five dollars apiece, and that was more than the robbery — more than he valued the silk at. They were going to charge so much, he thought he 'might as well let one set of thieves have it as another. This interview and conversation between Breed and myself was in the early part of February, 1873.”</p> <p>On his examination in chief, Newell testified that the plaintiff did not know that he, Newell, was going to call on the defendant before he did go, and on cross-examination swore positively that the plaintiff did not ask him to go, and had no knowledge whatever of his intention to go before he went. On cross-examinatian, the witness testified that he had been somewhat active before the police commissioners, in trying to get Perry appointed as constable; that he called on General Bates, the chairman of the commissioners, three or four times about it, once with Perry, to advocate his petition ; that, learning that the commissioners had determined to reject Perry, and, from Perry and others, that Breed had made statements about Perry to Bates, and some account of what those statements were, he went to see Bates, and then learned from him that Breed had said something derogatory to Perry, but not what it was Breed said. He also stated that when he called on Breed, and before Breed made his statement, he told him that he had recommended Perry for a place on the state constabulary, and had heard that he, Breed, had said things derogatory to his, Perry’s, character, and he wanted to know what he, Breed, knew. He also added that he told Breed enough to show him' that he had been active in getting his, Perry’s appointment, and for that reason wanted to know what he had said derogatory to his character. He also stated to him that up to a certain time Bates had given him to understand that he thought very well of Perry, and witness had inferred that Perry would be appointed, and Bates afterward changed his mind, and gave him the inference that he was led to change his mind in consequence of a story that Breed had told him, and that thereupon he went to see Breed.</p> <p>The plaintiff was called as a witness and testified, among other things, that he did not ask Newell to go and see the defendant, and had no knowledge whatever, before Newell went, that Newell intended to go or thought of going, and heard nothing about it until after Newell had been.</p> <p>The plaintiff testified that he had heard from several parties that the defendant had told a story about him, and that he went to his store to see what it meant; and went on as follows, subject to the objection of the defendant: “I told Breed I had heard that he had said that I was a thief; that I broke into his store in Pearl Street, and that I went up there and told him that I would bring back the goods for one hundred and seventy-five dollars ; and that I was the thief ; and that he had followed me and was bound to break me if it cost him $1000 ; and that if he had known as much about me then as he did now, he would have me in state prison, where I belonged. I asked him if he said so, and he said he did. I asked him if there was n’t some mistake ; he said, 6 After I went home last night, I was thinking it over, and I don’t know but I have said a little too much. I did tell General Bates that you were the man who broke into my store, but I don’t say so now.’ I said, 1 Will you go up and tell the General that ? ’ and Breed said he would.” On cross-examination, he testified that before this interview with Breed he had been an applicant for a place on the state constabulary, and that on the day after his application was rejected, and the day of this interview, Bates told him that Breed had told a story about him, and repeated it to him as he afterwards repeated it to Breed in the interview to which he testified. The conversation with Bates he gave as follows : “ I said, 11 hear there is a story started about me since I saw you yesterday.’ 1 Yes,’ said he, ‘ and a very bad one. That man you saw in my office yesterday says you broke into his store.’ Bates told me that he did think very favorably of me till that story was told, but added, 6 It won’t do for me to recommend a man of that character.’ He gave me Breed’s name, and I went right down there, and there told him, word for word as near as possible, what had been said in Bates’s office.” The plaintiff also testified that he urged Bates to consider the matter further ; but that Bates had refused, saying that his mind was made up, and that Breed was a man who couldn’t be mistaken; and that Bates told him the whole story as Breed had told it to him, substantially as the witness Newell gave it, and that he repeated it to Breed. It appeared that this interview between Perry and Breed took place before the interview between Newell and Breed.</p> <p>The plaintiff called other witnesses who testified to hearing statements made by the defendant similar to the statement testified to by Newell both before and after Newell had his interview with the defendant, among them one Washburn, who testified that he was present at an interview between the plaintiff’s attorney and the defendant, at which the defendant repeated some of the statements that he said he had made to Bates, and in some respects corrected them.</p> <p>The defendant called as a witness James D. Bates, chairman of the board of police commissioners, and this witness was asked to relate what took place at an interview between himself and the defendant at which the plaintiff was not present. It appeared that this conversation took place about a week before the interview between Newell and the defendant which Newell testified to. It was admitted, however, solely as affecting the question of the defendant’s motive in stating what he did state to Newell, and as bearing on the defence, that what the defendant did say was a “ privileged communication,” and the judge, in charging the jury, confined it entirely to that question. The counsel for the defendant, however, contended that it was admissible upon other grounds. The counsel for the plaintiff then disclaimed any right to recover upon the second count of his declaration, and stated that he claimed no damages by reason of any failure to obtain an appointment as constable of the Commonwealth, and excepted to the admission of the evidence.</p> <p>The conversation testified to by Bates under the plaintiff’s objection and exception was as follows : “ I stood at my counter transacting business with Breed. Perry came in and spoke to me something in relation to matters at police headquarters, and went out of the office. Breed said to me, ‘ Who is that man ? What does he want ? ’ I answered, ‘ His name is Perry, and his uniform tells you that he belongs to the city police. He is an applicant for a position on the state police. Do you know him ? ’ Said he, ‘ I have something to say about that man. Some years ago my store in Pearl Street was robbed, and some time after this man came to my office and said to me, “ You have had your store robbed.” I said “ Yes.” He says, “ I know something about the matter, and can put you in the way, I think, of getting your goods.” He says, “ I don’t know so much about it as another fellow, but we should want out of it about one hundred and seventy-five dollars.” ’ Breed said that the man left, saying that he knew but little about it, the other man was the man who knew the most about it, and he would send him up there, and wanted him to talk with him ; that, subsequently, the other man came, and he concealed his bookkeeper in the closet, in order that he might hear the conversation; but the man was too sharp for him, and opened the door and discovered the bookkeeper in the closet, and refused to talk as long as there was any one else about, but opened the conversation and told him that he knew where the goods were; they were under a counter in some street. I don’t remember the street; they were under a counter in a store on some street in Boston. Those, he says, are the facts, and this man was the first man that came to me.” He also testified that the plaintiff came to him the next day, and that he, at the plaintiff’s request, repeated Breed’s story to him, and gave him Breed’s name.</p> <p>The judge then, against the plaintiff’s objection and exception, allowed the defendant to put in the testimony of Bates and of John W. Kimball, one of the police commissioners, to the effect that this statement did not, to their knowledge, defeat Perry’s appointment.</p> <p>This testimony was admitted by the judge, principally on the ground that from what the witness Newell had said both upon his direct and cross-examination, the jury might be left fairly to infer that Perry had lost his appointment by reason of what the defendant had said to Bates, and though counsel, by abandoning the second count, had disclaimed that as a special subject of damages, yet the jury might be prejudiced by it, unless it was explained or controlled. The judge distinctly charged the jury that they were not to regard it as a special matter of damages whether he lost his place or not for that reason.</p> <p>The defendant testified himself, and was permitted by the presiding judge, against the plaintiff’s objection and exception, to state what took place and what was said according to his recollection, in the interview between himself and the witness Bates when the plaintiff was not present, to which Bates testified, and also testified that the statements made by him as testified to by Bates were true in fact. He also testified in reference to the interview between himself and the plaintiff, as to which the plaintiff testified, stating that the plaintiff opened the conversation by saying, “Did you tell General Bates a story about me? ” and that the conversation which followed was different from the plaintiff’s account of it. He also testified in reference to the interview with the witness Newell, stating that the latter began the conversation by saying, “ Mr. Breed, Perry informs me that you have told a story to General Bates which will prevent his appointment on the state constabulary, and I have come to see you about it; ” and that, upon being pressed by him, he repeated the story as he told it to Bates.</p> <p>The defendant having, on cross-examination, identified Ira J. Patch, who was in court, as the bookkeeper whom the defendant testified he put into the closet at his store in Pearl Street, to listen to the conversation between the defendant and the man who came to see him, as the defendant alleged by the procurement of the plaintiff, in relation to the robbery, the plaintiff, in rebuttal, called Patch as a witness, who denied that he ever went into any closet to listen to any conversation, as testified to by the defendant, and denied that any such transaction ever took place.</p> <p>The plaintiff, in rebuttal, called J. 0. Batchelder, who was the defendant’s partner at the time of the robbery in question, and for some years afterwards, and offered to show by him that he and the defendant had talked over the affair of the robbery at various times after it took place, while they were in partnership ; and that the witness and defendant had often talked together on the question of who could have been concerned in the robbery, and that the defendant had expressed to the witness his suspicions in regard to the same, but had never said anything to the witness about any policeman’s having called to see him, the defendant, in relation to the matter, or about any persons having called upon him, the defendant, in relation to it, and had never said anything to the witness about his having put the bookkeeper in the closet. to listen to any conversation. The judge excluded this evidence as not in rebuttal, and the plaintiff excepted.</p> <p>There was no evidence other than is herein stated tending to chow whether the visit of the witness Newell to the defendant was made by the request or procurement of the plaintiff, or that the witness Newell, when he called on the defendant, had any duty to perform concerning the plaintiff or any interest in the plaintiff, or any interest of his own to protect or duty to discharge, or that the defendant had any interest of his own to protect or duty to discharge.</p> <p>The defendant’s counsel asked the judge to instruct the jury that if they found that the words uttered by the defendant to the witness Newell were true, they must find for the defendant. This instruction the plaintiff objected to, because it was not properly pleaded, but the judge gave it and the plaintiff excepted. The bill of exceptions also contained the charge of the judge upon the question of Whether or not this was a privileged communication, and the applicability thereto of the evidence, to the admission of which the plaintiff had previously objected; but to this no exception was taken by the plaintiff, before the jury were sent out; and it is now omitted as immaterial.</p> <p>The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p> <p>After the entry of the exceptions in this court, the judge who presided at the trial signed and transmitted to this court the following certificate:</p> <p>“ The witness Newell also testified that on his way home after leaving the defendant, he met the plaintiff with another officer on the street by the Revere House, and told him what the defendant had said, and afterwards told him to write it down. He said also that it was an accidental meeting.</p> <p>“ The defendant, on cross-examination, stated that the man who was sent down by the plaintiff to see him about the goods was George M. Felch. The plaintiff, in rebuttal, called Felch, who denied that he ever went to see the defendant.</p> <p>“ The question whether the statement which the defendant testified that he made to Bates and repeated to Newell, was true, was argued to the jury by both counsel.</p> <p>“ The counsel for the defendant, desiring that the foregoing may be added to and made part of the exceptions, and deeming the statements conformable to the truth, I hereby allow them."</p>

<p>Petition to enforce a lien under the Gen. Sts. c. 150, for labor performed in the construction of a block of six buildings on five lots of land on Shawmut Avenue, in the city of Boston.</p> <p>The petitioner’s statement of account was filed in the clerk’s office of said city on April 25, 1872, and contained the following items:</p> <p>B. F. Greenlaw to Thomas Corbett, Dr.</p> <p>April 12. For laying 423,150 bricks at $6.50 per M $2750.48 “ 10,000 bats at $7.50 per M . 75.00</p> <p>For one half surveyor’s fee . . 10.00</p> <p>$2835.48</p> <p>Credit by cash .... 1070.00</p> <p>$1,765.48</p> <p>The case was referred by the Superior Court to an auditor, under a rule directing him “ to hear the parties, examine their vouchers and evidence, and to state the accounts, and make a report thereof to the court.” The auditor found that the work was done under a contract with the defendant Greenlaw as hereinafter stated; that the number of bricks laid and the prices charged were correct; that it was admitted that the item of $10 was not a lien upon the land, but the defendant did not rely upon this as an objection; that the certificate was seasonably filed; that the books of the petitioner were very imperfectly kept, and were very unsatisfactory; that the petitioner was doing work for Greenlaw at Mount Pleasant, at the same time this work was going on, and that certain payments which had been made were credited to that work instead of to this as they should have been ; that the true amount of credits was $1392.54, leaving a balance due the petitioner of $1532.94 ; and that the petitioner’s statement though in fact untrue was not corruptly so, and that the misstatement did not deprive the petitioner of his lien.</p> <p>Trial in the Superior Court before Bacon, J., who allowed a bill of exceptions in substance as follows :</p> <p>Upon the coming in of the auditor’s report, and before the same was read to the jury, the respondents filed a motion in writing to recommit the report, or to strike out and not permit to go to the jury so much thereof as related to questions and matters not pertaining to the accounts, which motion the judge overruled.</p> <p>• The petitioner testified that the labor was performed and furnished under and in pursuance of a verbal contract which he made with Benjamin F. Greenlaw, one of the respondents, on November 6,1871, by which contract he was to lay the bricks for the houses described in his petition, at $6.50 per thousand, two thirds of which was to be paid as the work progressed, and the remaining third in two months after the work was finished ; that the work was commenced on November 28, 1871, and performed, under the contract, all of which was conceded.</p> <p>It also appeared that Stephen M. Allen was the owner of the said five lots of land up to November 9,1871, on which day Allen conveyed the five lots to Greenlaw by warranty deed, and on the same day Greenlaw mortgaged the same premises back to Allen, to secure the purchase money and sums of money in addition, to be by him advanced to Greenlaw for building purposes for the same, by six mortgage deeds, all dated November 9, 1871, which mortgages were recorded November 20, 1871. On November 9, Greenlaw also gave to the defendant, Floyd, six mortgages covering the said five lots subject to the Allen mortgages, which mortgages were recorded December 18, 1871, and nothing has been paid upon either of the mortgages. The petitioner did not claim to hold his lien against the Allen mortgages, but did against the Floyd mortgages. It appeared that the Floyd mortgages had been foreclosed, and the premises sold under them.</p> <p>The petitioner offered in evidence the auditor’s report, the respondents objected to the portions of the report relating to the time of the petitioner’s ceasing to labor or furnish labor, an4 that portion which relates to petitioner’s failure to give all just credits, being done wilfully, and knowingly and corruptly, and his finding that the misstatement does not deprive the petitioner of his lien, and all other portions of the report not relating to the account between the parties, or in explanation thereof; but the judge overruled the objection, and permitted the whole report to be read to the jury.</p> <p>The respondents put in evidence tending to prove that Allen had made a contract with Greenlaw to advance the money to pay for the labor in constructing the houses, and was so advancing, which fact was known to the petitioner, and that at one time the petitioner came to him and complained that Greenlaw did not pay him, and wanted to know of him, Allen, about his advancing nny more money; that he told the petitioner that he had made arrangements to advance $250 towards paying the labor the next Saturday night, and that he would withhold that, and pay it to the petitioner ; that the petitioner replied, “ No, pay it to Green-law,” and that he did pay it to Greenlaw on that Saturday night. The petitioner testified that Greenlaw did not pay it to him, and he did not allow it as a credit.</p> <p>The respondents also put in evidence tending to show that the petitioner ceased to labor or furnish labor on the buildings more than thirty days before the filing of his certificate in the city clerk’s office, and also that he had been paid large sums cf money for which he had given no credit in his statement of account, so filed in the clerk’s office, and there was not due him the sum that he claimed.</p> <p>The respondents requested the judge to instruct the jury as follows:</p> <p>“ 1. That the auditor’s report was not primd facie evidence as to the time when the petitioner ceased to labor or furnish labor upon said buildings, nor as to whether his failure to give all just credits in the statement of the account filed with the city clerk was done wilfully and knowingly, or corruptly, and as to the finding that the misstatement does not deprive the petitioner of his lien and as to all other matters therein contained, not relating to the statement of the account between the parties or in explanation thereof. 2. That if they find that the work was performed by virtue of a contract made with Greenlaw, before he received a deed of the land, the petitioner is not entitled to maintain this petition; that he had no lien upon the premises for the labor so performed or furnished. 3. That if the petitioner knowingly omitted from the credits given in his statement of accounts, filed in the city clerk’s office, moneys which he had received from Greenlaw on account of this work, they will be justified in finding that he wilfully and knowingly claimed more than was his due. 4. That if the jury find that Allen paid the $250 to Greenlaw, under the circumstances and in the manner testified to by Allen, it should be allowed by Corbett as a credit for the work, and deducted from the claim.”</p> <p>The judge declined to instruct the jury as requested, and submitted to them the three following questions, to be by them specially answered, viz.:</p> <p>“ 1. Did the petitioner perform or furnish any labor under his alleged contract, within thirty days previous to and including April 25,1872 ? ” The jury answered, “ Yes.”</p> <p>“ 2. What is the amount which should be credited by the petitioner, as paid or received by him under his said contract ? ” The jury answered, “ $1342.54.”</p> <p>“ 3. Did the petitioner wilfully and knowingly claim more than was his due in his certificate ? ” The jury answered, “ No.”</p> <p>The judge ruled that all the other questions raised were questions of law to be determined by the court, after the verdict of the jury answering these questions ; and instructed the jury that the auditor’s report was primd facie evidence upon all the questions upon which he had passed, as well as those relating to the time of ceasing the labor, and whether the credits were knowingly and wilfully omitted, and other matters not relating to the statement of the accounts, as upon the finding and statement of the account between the parties, and upon the third request ruled and instructed the jury, that if the petitioner knowingly omitted, from the credits given in his statement of accounts filed in the city clerk’s office, moneys which he had received from Greenlaw on account of this work, the jury would be authorized to consider this fact as bearing upon the question whether he wilfully claimed more than was his due: and also that if the $250 was due from Allen to the petitioner and the petitioner told him to pay it to Greenlaw, it should be allowed; but if Allen owed it to Greenlaw and could not pay it to Corbett, without Greenlaw’s order, then it should not be charged to Corbett, and the jury should disallow the same.-</p> <p>To the admission of the said testimony against the respon dents’ objection, and the refusals of the judge to rule and instruct the jury as requested, and to the rulings given, the respondents alleged exceptions.</p> <p>After the return of the verdict of the jury, the petitioner moved for a judgment and order of sale of the premises, and the respondents contended that under the said facts the petitioner had no hen upon the premises, but the judge ruled that the petitioner uad a hen upon the premises as against Greenlaw and the Floyd mortgages, for the amount found due him by the jury in their answer to the second question. To this ruhng the respondents alleged exceptions.</p>

Petition under the Gen. Sts. c. 150, to enforce a lien for labor performed and materials furnished, in the construction of two houses.

Petition under the Gen. Sts. c. 150, to enforce a lien for labor performed and materials furnished in the construction of two houses. Trial in the Superior Court before Bacon, J., who allowed a bill of exceptions in substance as follows : The plaintiffs offered evidence tending to show that a contract was made with D. D. Adams, to paint the inside woodwork of certain houses in Boston, for a sum stated, Adams to find all the materials.

Contract on a covenant against incumbrances in a deed from the defendant to the plaintiff of land in Boston. The case was submitted to the Superior Court, and to this court on appeal, upon the following agreed facts : The defendant on January 24, 1870, conveyed to the plaintiff' a parcel of real estate situated on the westerly side of Hanover Street, in Boston, by a warranty deed, containing the covenant that the land was free from all incumbrances.

The first CASE was a bill in equity to enforce specific performance by the defendant of an agreement in writing for the purchase of a house and lot of land in Boston, extending from Chestnut Street to Mount Vernon Street. The answer set up that the title was incumbered by a condition or restriction which prevented the erection of any building of a greater height than thirteen feet, upon that part of the land abutting on Mount Vernon Street.

Contract on a recognizance entered into, under the Gen. Sts. The plaintiff sought to avoid the legal effect of the proceedings before the magistrate Edwards, by evidence that he had acted in relation to the judgment, execution and arrest as the adviser, counsellor and attorney of Learned, and contended that he was thereby disqualified from acting as a magistrate in the matter.

Tort for deceit in the sale of a horse. The declaration alleged that the defendant sold the plaintiff a horse, for which the plaintiff paid the defendant $325; that, to induce the plaintiff to buy said horse, the defendant falsely represented to the plaintiff that said horse was all right and sound every way; that the plaintiff, believing that said representation was true was thereby induced to buy, and did buy, said horse; but in truth said horse was not all right and sound…

Contract for the amount of a premium note and assessments thereon. Trial in the Superior Court, before Lord, J., who allowed a bill of exceptions in substance as follows : On December 1, 1868, the plaintiff issued to the defendant a policy of insurance for $2000 for the term of five years, and the defendant paid a cash premium of $60, and gave a premium note of $180.

<p>Bill in equity for the specific performance of a written agree•ment by which the defendant agreed to purchase a parcel of land in Watertown, and the plaintiff agreed to sell and convey it to him “ by deed of warranty and free from all incumbrances.”</p> <p>The answer set up in defence that the lot in question was formerly owned by the wife of the plaintiff who died seised of the same, and that the plaintiff derived his title from the will of his wife, which was as follows :</p> <p>“ I give, devise and bequeath all the property and estate of every kind and description, real and personal, of which I shall die seised, possessed and in any way entitled and wheresoever situated, to my husband, Caleb Ladd. To have and to hold the same to him and his heirs and assigns, and all the grandchildren severally equal shares with the heirs.”</p> <p>The cause was heard on bill and answer by JDevens, J., who reserved the case for the consideration of the full court.</p>

<p>A libel for a divorce f*om the bond of matrimony, under the St. of 1870, c. 404, § 2, charged the gross, wanton and cruel neglect of a husband to provide suitable maintenance for his wife. The evidence was that he left her without cause and remained away for ten months without providing for her; that they afterwards lived together until a year prior to the filing of the libel, when the wife, shortly before her confinement, went at his request to the house of her aunt, and he left her again without means of support, and had not since provided for her. There was evidence of the husband’s ability to support his wife, and there was no evidence whether she was or was not able to earn her own support. The justice of this court, before whom the case was heard, dismissed the libel. Held, upon exceptions to his decision, that it did not appear that the divorce was improperly re fused.</p>

Tort to recover for personal injuries alleged to have been caused by a defect in a highway in the defendant town. At the trial in the Superior Court, before Bacon, J., it was admitted that the defendant was bound to keep the highway in repair.

<p>Tort for the diversion of the water of a pond in Barnstable from the plaintiffs’ cranberry bog.</p> <p>At the trial in the Superior Court, at April term 1874, before Putnam, J., there was evidence tending to show that the pond covered an area of seven acres, and had its natural outlet by a herring brook running at a right angle with the pond westerly into Chequocquet River. The plaintiffs’ land lay southerly of the pond, and it was in controversy whether his land extended to the north bank of the brook. The evidence on this point is omitted as immaterial under the decision of the court.</p> <p>About thirteen years ago the plaintiffs’ grantor caused a ditch to be dug from the southerly end of the pond straight to the sea, and thus diverted the water from the herring brook, without the consent of the defendant or his grantors. This ditch the plaintiffs have kept open and maintained ever since to flow their cranberry bog. “ The flume at which the plaintiffs controlled and raised the water above its ordinary height at their end of the pond, for the purpose of flowing their cranberry bog, was put in a little more than thirty years ago ” by the plaintiffs’ grantor.</p> <p>The defendant put in evidence of his title to a tract of land on the west side of the pond which extended eastward to the middle of the pond, and on the south to the herring brook above named, and included the land through which is the drain, of which the plaintiffs complain, and the defendant’s cranberry bog.</p> <p>The acts of the defendant complained of, consisted in making a drain or passage of water, in 1861,, from the north end of the pond by digging through his upland to the depth of ten or twelve feet, and putting in a trough through which water was taken from the pond to a cranberry bog of the defendant about seventy rods distant from the pond, for the purpose of flowing that bog. No water would flow through this drain unless the water in the pond was raised to more than its ordinary height.</p> <p>The case was, before verdict, by consent of the parties, reported for the consideration of this court, and was to stand for trial, if upon these facts the plaintiffs could maintain their action ; otherwise, judgment to be entered for the defendant.</p>

<p>Neither the provision of the Gen. Sts. c. 149, § 2, that no mill-dam shall be erected to the injury of any mill lawfully existing on the same stream, nor the fact of any right acquired for an ancient mill by prescription, prevents the erection, above an existing mill, of a dam, under the St. of 1866, c. 206, for the purpose of flowing land appropriated to the cultivation of the cranberry, reasonably adapted to the character of the stream, although its effect may be to modify or disturb somewhat the regularity of the flow of the current.</p> <p>Under the St. of 1866, c. 206, authorizing the maintaining a dam upon an unnavigable stream for the purpose of flowing a cranberry meadow, a person who withdraws, for such purpose and for a reasonable time, the water of a stream by means of a dam, is not, if his meadow is not too large to be flowed by the stream, liable to the owner of a similar meadow below upon the same stream who is thereby deprived of sufficient water to flow it for several days during the time when it is equally necessary for each.</p>

Contract for money had and received. The declaration alleged that the defendant bad received $500, from the sale by him of mortgaged real estate, of which the plaintiff had the equity of redemption, and that the defendant was bound to account to the plaintiff therefor.

Writ of review of a judgment rendered by the Superior Court upon a writ of entry brought by the present defendant to recover possession of a parcel of land in Lynn, and in which the present plaintiff was defaulted.

<p>Contract on a bond given by the first named defendant as principal, and the others as sureties, conditioned that the said Hodge, who had been appointed administratrix of Nehemiah Hodge, should administer the estate of the intestate according to law, and render an account. Writ dated August 22, 1872.</p> <p>The declaration alleged the appointment of the administratrix and the giving the bond in suit; that an inventory was taken and filed, and the administratrix received the amount therein named, $21,286.72; that an account was rendered by her showing a balance in her hands of $10,605.05; that on December 5,1870, the plaintiff recovered judgment in an action at law against the goods and effects of the intestate in the hands of the adminis* fcratrix for $2042.12; that execution issued on said judgment, and was returned unsatisfied; that a demand was made on the administratrix, and notice in writing given to the sureties; and that the said Amelia S. had not administered the estate according to law. The sureties alone answered, setting up the statute of limitations. Trial in this court, without a jury, before Morton, J., who reported the case for the consideration of the full court in substance as follows :</p> <p>The action upon which the plaintiff recovered judgment, as alleged in the declaration, was begun on June 24, 1869. The defendant in said action appeared and put in an answer, in which she set up that she was appointed administratrix of the estate of Nehemiah before January 11,1865, on which day she filed her bond, which was approved; that she gave notice of her appointment according to law; and that the action could not be maintained, because not brought within two years. The case was continued from term to term, and the plaintiff finally obtained judgment upon a default.</p> <p>One item of the inventory filed by the administratrix was as follows : “ Nehemiah Hodge’s double acting car brake, $20,000.” Another item was, “Atmospheric car brake, $50.”</p> <p>The first account rendered. showed a balance of $225 in favor of the administratrix, filed November 13, 1866. The second account showed a balance in the hands of the administratrix of $10,605.05. This account was presented for allowance January 7, 1868, and allowed June 1,1869. On one side were “ receipts from various railroads ” from April to September during the year 1867, amounting to $11,700.00. On the other side were credits to the amount of $1094.95, showing a balance of $10,605.05.</p> <p>The plaintiff also put in the execution referred to in the declaration, and the returns thereon, which were in conformity with the allegations. No question arose but that the suit was properly authorized by the Court of Probate.</p> <p>■ The defendants showed that the administratrix gave bond on January 11, 1865, and that the bond was filed and approved,</p> <p>I found as a fact that notice was duly given by the administratrix in proper time, and in full compliance with the order of notice of the Probate Court. I also found that the items of $20,000 and of $50 in the inventory were patents owned by the intestate, and that the items named in the second account of the administratrix were royalties received from parties using said patents ; that if the items of said account constituted new assets, the plaintiff did not have actual notice of their existence, until June 9, 1869, and no notice of the same until then, unless the presentation of said account is to be construed as such.</p>

Petition for a writ of mandamus to compel the respondent to admit the petitioner to act as one of its directors, to which office the petitioner alleged he had been duly elected. The answer averred that the petitioner was not a stockholder in or a member of the corporation, and was therefore not eligible to the office of director thereof.

Tort by the assignees in bankruptcy of Asa J. Smith, for the conversion of certain goods alleged to have been delivered by the bankrupt to workmen of the defendant on the credit of the defendant, as a fraudulent preference under the provisions of the United States bankrupt act, U. S. St. of 1867, c. 176.

Tort for breaking and entering the plaintiff’s close in Fitch-burg. Writ dated August 4, 1873.

<p>The owner of land gave a tenant permission to put a building on the land, for the purpose of carrying on his trade, on condition that the tenant should pay a certain rent, reserved the right to terminate the occupancy by giving six months’ notice in writing, and gave the tenant the right to remove the building after six months’ notice in writing and the payment of all rent due. The tenant put a building on the land, standing by its own weight on posts set in the ground, and mortgaged the building as personal property. After this, the landlord, without making a demand for the rent on the day when it became due, entered' upon the premises and into the building for breach of the condition to pay rent, fastened the building and retained the key. The mortgagee then gave notice to foreclose the mortgage, and removed the building by a writ of replevin. Held, that the entry by the landlord did not work a forfeiture of the tenant’s rights under the lease at common law. Held, also, that the building was personal property, and might lawfully be mortgaged. Held, also, that an action of trespass, for breaking and entering the plaintiff’s close, would not lie by the landlord against the mortgagee, for removing the building under the writ of replevin, if no unnecessary, wanton or unreasonable injury was done to the freehold, although the landlord had a lien on the building for rent, and the removal of the building was subject to conditions which the tenant had not fulfilled.</p>

<p>Trustee process. Writ dated April 10, 1873. The Hamilton Woollen Company, summoned as trustee, answered, denying that, at the time of service on it, it had in its hands and possession any goods, credits and effects of the principal defendant, liable to he taken in said process ; and alleging that when service was made the defendant was at work for the trustee, in common with the other workmen in its employ, under a special contract in writing under seal, dated June 1,1872, and signed by the company and Cain, a copy whereof is in the margin; * that the contract was delivered to the trustee, and is still in its possession, that the contract was entered into in good faith, in pursuance of the rules and regulations of the company in employing its help and managing its business, and for the purpose of preventing serious interruptions in its business by reason of persons leaving its employ without giving any notice thereof, and thereby leaving vacant places which cannot be filled without delay, the forfeiture therein provided aiding to prevent such leaving; that the principal defendant was satisfied with such contract; was at work under it, not having given any notice of an intention to leave its employ; that the company has no fixed days of paying its help, but usually pays its help some time each month a part of their wages, retaining the balance under the contract, and that all wages earned by said defendant are claimed to be held by the trustee by virtue of and under the same, and that nothing was due the defendant absolutely when such service was made, but that all of the sums, at the election of the trustee aforesaid, may be held and may be forfeited; that the wages earned since the last payment amount to $19.46 ; and that the company had not discharged the defendant or given him notice of an intention to terminate the same.</p> <p>The trustee was charged in the Superior Court on its answer for $19.46, and appealed to this court.</p>

<p>Bill in equity, filed July 5, 1878, against the Boston, Clinton and Fitchburg Railroad Company and George A. Torrey, to compel them to account for certain shares of the stock and bonds of the corporation and to transfer the same to the plaintiff. The case was reserved by Gray, C. J., for the consideration of the full court, upon a report in substance as follows :</p> <p>In October, 1867, the plaintiff was the owner of eight shares of the preferred stock and three shares of the unpreferred stock of the Fitchburg and Worcester Railroad Company, the same being her sole and separate property, and desiring to assist her son, Rufus D. Wilder, and to enable him to raise money, wrote her name upon the back of her certificates of the shares, and handed him the certificates so indorsed, to be used by him foi that purpose, and the stock was so used with her knowledge. On November 6, 1867, transfers of the stock to E. M. Simmonds were written, by Rufus, upon the back of said certificates, above the plaintiff’s signature, in the usual form, and were taken to the office of the company and duly recorded, and new certificates for the same number of shares were issued to Simmonds, upon the surrender of the old certificates.</p> <p>On April 10, 1868, Simmonds transferred the shares to John W. Carpenter. On April 28, 1868, Carpenter transferred them to Martha F. Marshall; and on March 2, 1869, Marshall transferred the shares to the defendant Torrey. Simmonds, Carpenter, Marshall and Torrey each received their respective transfers in good faith, and each paid a valuable and adequate consideration therefor, and neither of them had any knowledge of any defect in, the title thereof, and in each case the transfers were in due form, were duly recorded on the books of the company, and new certificates were issued upon the surrender of the old certificates.</p> <p>On June 18, 1869, the Fitchburg and Worcester Railroad Company, and the Boston, Clinton and Fitchburg Railroad Company, under authority conferred by the legislature, mutually executed and entered into by their proper officers, duly authorized, a written contract for the consolidation of the two companies, and thereupon the said companies were consolidated, as provided in the contract, and became the present Boston, Clinton and Fitch-burg Railroad Company.</p> <p>Shortly after the consolidation of the two companies, and in pursuance of the contract, the new corporation issued to the defendant Torrey, as the holder of said eleven shares, certificates of eleven shares of the stock of the new company, and bonds of the new company to the amount of $800, and the said Torrey has since been the holder of the certificates and has received interest on the bonds ; but no dividends have ever been made upon the stock. During all the above transactions, the plaintiff was and has ever since been a married woman, living with her husband, Charles H Mérriam, in Leominster in said county, who never assented is writing, or otherwise, to her conveyance of the first named shares, or joined with her in the conveyance thereof, nor was the consent of any judge of the Supreme Judicial Court, Superior Court, or Probate Court ever obtained or granted to her to make such conveyance.</p> <p>At the time the plaintiff signed her name on the back of the certificates, as above stated, she did not know that the consent of her husband, or of a judge of one of said courts, was necessary to authorize her to make a conveyance of said shares, and she was first informed that such consent was necessary in January, 1872, by H. F. Coggshall, who, during the above transactions, until January, 1871, was the clerk and treasurer of the present corporation, who then requested her either to buy the stock back, or to obtain her husband’s consent to the original transfers. Her husband, at this time, refused to give his consent.*</p> <p>The certificates were indorsed by the plaintiff and given to the son without the husband’s knowledge. The son received the consideration from Simmonds, and he has never repaid the same to the plaintiff. The plaintiff made demand on the defendants a short time before filing this bill.</p> <p>The stock was transferred by the company in good faith, the treasurer being ignorant of the laws applicable to the transfer of stock by married women, and no other officer of the company being aware of the transaction. The plaintiff has made no attempt to act as stockholder in the company since the transfer to Simmonds, nor ever informed the company, or Torrey, that she considered the transfer invalid, or that she desired to recall the same, until December, 1872. She has resided at a distance of five miles from the office of the company where stockholders’ meetings have been held. The defendant corporation owns no bonds, the whole amount authorized by the contract having been issued, and. Torrey, before any notice of the plaintiff’s claim, sold and disposed of all of the bonds except one bond for the sum of $100. The value of the stock and bonds is now considerably greater than the value of the stock at the time of the transfer to Simmonds.</p> <p>The case is reserved, at the request of the parties, for the consideration and determination of the full court, who are to render such a decree as justice and equity may require.</p>

<p>The parties to a writ of entry submitted the case to the determination of this court on an auditor’s report, which it was agreed should be taken as a statement of facts. The report stated that the demandant’s title was derived from a deed from A. to B., signed, sealed and attested by two witnesses. The attestation clause of the deed was in the usual printed form, with the words “ and delivered ” erased by a stroke of the pen, but when this was done did not appear. The deed, in the granting clause, named B. as the grantee, and described him as a resident of a lunatic asylum; and after a description of the premises, declared that it was understood that the premises were to remain under the control of the grantor and his heirs, so long as he or they should pay for the support of the grantee, and that the property was to enure to the benefit and use of the grantor’s father and mother during their lives, “ afterwards to the said B. in his sole right, to be disposed of, if necessary, for his support and maintenance; and if not necessary for his maintenance, the same property shall fall in,equal portions to each of my sisters.” The habendum was “ to him and them and their heirs and assigns," to his and their use forever. The covenants were with B., the father and mother, “ &c.,” and the first was, “ that until delivery hereof, I am the lawful owner of the said premises.” The deed was recorded, and indorsed on the deed, in the handwriting of the grantor, under date of ten years after the date of record, was a statement that, as the grantor had paid more than the value of the property for the support of B., “ the property enures to me and my heirs, after its use shall not be wanted for him.” The demandant’s title was derived by deed from the sisters. The auditor found that the deed remained in A.’s possession until his decease, and ruled that the deed conferred no title upon any of the persons named therein. Held, that a delivery of the deed might be inferred from the facts reported by the auditor; but as the auditor had not found a delivery, the demandant’s title failed. Held, also, that, if there was a delivery, the deed conveyed an estate to B. for life, and that the sisters had no estate in remainder.</p> <p>A demandant in a writ of entry, brought in 1872, put in evidence that his grantor from 1819 to 1834 had been a tenant of an adjoining estate, and that during this period he had enlarged the house thereon, and had extended it over a part of ths land in controversy, and had cultivated the rest of the land as a garden, claiming' it as his own. Held, that on this evidence the action could not be maintained.</p>

<p>Bill in equity, brought by Oliver N. Newhall, Maria A. Newhall, his wife, and Joseph B. Skinner, against William H. Jones, Sally Slocomb, Bales H. Newhall, the Missionary Society of the Methodist Episcopal Church, and Thomas Carlton, ito treasurer, alleging the following facts</p> <p>John M. Twomey, of Lynn, died April 12, 1872, intestate, leaving personal estate to the amount of over $10,000, and the defendant Jones became his administrator. Twomey’s only next of kin and heir at law was his mother Hannah Twomey, who died September 9, 1872, leaving a will, by which she appointed the plaintiff Skinner her executor, and bequeathed to her sisters Sally Slocomb and Maria A. Newhall her wearing apparel and household furniture, one half of the rest of her personal property to the defendant Missionary Society, and the other half to her said sisters, “ to be paid to them as they may need in the judgment of my executor, to be equally shared between them; if at their decease any of the above named legacy should remain unexpended, my will is that it be paid as soon as may be into the treasurer of the above named Missionary Society, for the support of American Domestic Missions.”</p> <p>This will was duly proved and allowed November 19, 1872 and the plaintiff Skinner was duly appointed executor.</p> <p>Hannah at her death had little property except that to which she was entitled as next of kin and heir at law of her said son, and all of that was then in the hands of his administrator, who held the same in trust after paying the debts of John to pay the same to the said Hannah, as next of kin, and after her death to pay the same to the said Skinner, her executor, to be distributed by him according to her said will.</p> <p>Shortly after Hannah’s death and before probate of her will, Jones expressed great dissatisfaction with the same and its provisions and endeavored unsuccessfully to- obtain possession of it in order to destroy it, and the defendants conspired to defraud the plaintiff Maria, and to distribute the property among such persons as they should think fit, and contrary to the provisions of the will, and with that intent and before the will was presented for probate and while the plaintiffs were ignorant of its provisions and construction, and while he held all the property in his hands as aforesaid, Jones went to the plaintiff Maria and informed her that she could have no benefit from its provisions unless she became reduced to such poverty as should require her to apply for support as a pauper, that Skinner would never give her anything, and that she would never get a dollar; that he the said Jones would do the very best he could for her if she would sign two certain papers which he had, and asked her to put perfect confidence in him and not to communicate in any way to Skinner what conversation he had had with her, nor what he wished her to do. She trusting in Jones’s statements and being wholly ignorant of her rights, signed the papers at his request without reading the same, and without knowing their contents. These papers were an assignment'to Jones by all the parties named as legatees in the will, of all their rights, interests and claims under the said will, the consideration being nominal on the part of Maria A. and Sally, and a written request by Sally and Maria A. to ‘the executor of the will to pay to Jones their legacy under the will.</p> <p>Immediately after the probate of the will Jones presented to Skinner the said two papers, and claimed the right to hold in his hands under the same all the property which he then held as administrator of the said John M. Twomey. Skinner, believing in the validity of these instruments, acknowledged the receipt from Jones of all the property which he as executor of Hannah was entitled to receive from Jones as administrator of John, and at the same time took from Jones, as assignee of all the legatees, a receipt for the same amount, but no property ever actually passed between them. Jones, after he had obtained Skinner’s receipt for the property, distributed a part to the other defendants and to other persons unknown, and retained a part in his own hands, but did not pay or deliver any part thereof to the plaintiffs, and refused so to do, or to account for any part of it, and told the plaintiff Maria that she should never have a cent, that the whole thing was outside of the law and she could not help herself.</p> <p>The bill prayed that the assignments should be declared void and should be delivered up to be cancelled, as Well as the receipts given by Skinner to Jones, and that each of the defendants should be required to render an account of any of said property received by them or now in their hands, and should be compelled to pay •the same to Skinner to be applied by him according to the will of said Hannah.</p> <p>The answer of Jones admitted the deaths of John M. and Hannah Twomey, the will • of Hannah, the appointments of himself and Skinner as administrator and executor respectively, and the condition and amount of their property, all as alleged in the bill. It admitted also his expressions of dissatisfaction with said will, but denied any attempt to obtain possession of it or to destroy it, and denied all fraud or conspiracy.</p> <p>The answer further alleged that, after the death of her son, Hannah Twómey intended to make a new will, but was unable to do so, and that after her death Jones conferred with the legatees and proposed to them, for the purpose of carrying out the intention of Hannah, that they should transfer all their interests to him, and that $4000 should be paid to the Missionary Society, and the rest to such persons as a committee of the society ajid he should direct; that the legatees with full knowledge of all the facts, assented to this, a meeting was had. at which the legatees were present and made such statements as they desired, and the committee awarded $1500 to Sally Slocomb, and $1000 to Maria A. Newhall, and other smaller sums to other persons; and that he had paid, set over and assigned said sums to the persons named.</p> <p>The answers of the other defendants made substantially the same admissions and allegations as the foregoing answer, denied all fraud and conspiracy, and claimed that the assignments were signed* by Maria, understanding^ and with a full knowledge of all the facts, all the parties intending to carry out the alleged intention of the testatrix to make a new will before her death.</p> <p>At the hearing before Colt, J., upon the bill, answers, and a report of the evidence taken by a commissioner, the plaintiffs contended :</p> <p>1. That owing to the fiduciary relation in which Jones stood to the other parties with whom he made the contracts in the case, such contracts were voidable at the election of any one of them, and their sale to him of their distributive shares could be rescinded.</p> <p>2. That the burden was on Jones to show that the contract was advantageous to the plaintiff Maria, and made by her understandingly and without persuasion on his part, and that there was no concealment or misrepresentation by him of any fact or opinion, and that in case of doubt on any of these points the contract should be declared void.</p> <p>3. That, the rights of the plaintiff Maria, under the will, depending on the exercise of a discretionary power by Skinner, the -statement made to her that she could not get a dollar under the will unless she were a pauper, without further explanation of her rights, was such a misrepresentation as to prevent her from acting understahdingly in assigning her rights.</p> <p>4. If the burden is on Mrs. Newhall. to establish any misconduct on the part of Jones or misunderstanding on her own part, that burden is amply sustained by the evidence.</p> <p>5. The plaintiffs did not claim that Jones wilfully and purposely misled Mrs. Newhall with a corrupt and fraudulent design of benefiting himself, but that in his anxiety to carry out his own schemes in relation to the property he used such contrivance, representations and persuasions to induce Mrs. Newhall to act, as amounted to a breach of trust, and she is entitled to have all such acts set aside, and the property restored, so far as he is concerned, to the original trusts.</p> <p>The judge found the following facts upon the evidence :</p> <p>“ 1. Mrs. Newhall did not understand -from the language of Jones that she could not have a dollar unless she was a pauper in the technical sense of that word, but she did understand that the amount she would have depended upon her future necessities.</p> <p>“ 2. Jones advised her to conceal all the negotiations and transactions of the alleged settlement from Skinner, the executor, and she acted on his advice.</p> <p>“ 3. The evidence does not satisfy my mind that Mrs. Newhall did not understand the papers and their legal effect at the time of their execution, nor does the evidence satisfy me that she was misled at the time of their execution by the statements of Jones as to their effect; she did understand that® she was to receive such sum as should be awarded in full for her interest under the will.</p> <p>“ 4. I find that there was no fraud or deception practised upon Mrs. Newhall by Jones with a corrupt and fraudulent intent to benefit himself, but I find that he was very persevering, persuasive and anxious in his efforts to effect a settlement upon the scheme and plan which he afterward carried into effect in relation to this property, and that his conduct had some effect in inducing her to confide in him and to assign the property to him to be dealt with, as the case discloses.</p> <p>“ 5. Upon all the evidence and upon the undisputed facts I find that the plaintiffs are not entitled to the relief prayed for.”</p> <p>The case was reported for the consideration of the full court, the plaintiffs to have the same advantage from the reported evidence as if the bill had been dismissed, and they had appealed from the findings on the questions of fact.</p>

<p>A plea, in an action for use and occupation, of a tender with a profert in court is a conclusive admission of the plaintiff's cause of action.</p> <p>In an action on the Gen. Sts. c. 137, to recover possession of land, the defendant replied to the plaintiff's interrogatories that he claimed as tenant at will of the plaintiff by a contract with his agent at a certain rent, that he took possession and had received rent. The plaintiff’s agent testified that neither he nor the plaintiff had let the premises to the defendant; that negotiations entered into had failed; that both knew that the defendant was assuming to let the premises to others and to take rent therefor. The defendant did not occupy the premises, or make any use of them except to let them to others. Held, that the judge who tried the case without a jury was warranted, upon this evidence, in finding that the defendant held the premises as tenant at will of the plaintiff, and in ruling that the action could not he maintained.</p>

Contract for rent. Trial in the Superior Court before Lord, J., who allowed a bill of exceptions in substance as follows : The plaintiff offered evidence tending to show that on February 6, 1868, he leased orally to the defendant three rooms, in a certain building in Lawrence, consisting of a front room, bedroom, and kitchen, for $10 per month; that the defendant went into the occupancy of the rooms, and paid the rent in full each month as it accrued up to May 6, 1868; that…

Contract on a covenant in a lease to pay taxes. The case came before this court on an appeal by the plaintiff from a judgment of the Superior Court for the defendants, upon an agreed statement of facts in substance as follows : By an indenture made between the plaintiff, of the first part, and the defendants and Thomas E. Chickering, since deceased, of the second part, the plaintiff leased to the defendants and the said deceased a certain building at the corner' of…

<p>Contract on a covenant in a lease to pay taxes. Writ dated May 19, 1873. The case was submitted to the Superior Court, and to this court, on appeal, on an agreed statement of facts in substance as follows:</p> <p>On February 1, 1865, the plaintiffs leased an estate on Washington Street, Boston, for the term of ten years, the lessees agreeing to pay a certain.rent quarterly and all taxes “ which may be payable for or in respect of the said premises or any part thereof during the said term,” “ the tax to be paid on the first day of November in each year.” It also provided that in case the premises or any part thereof should be destroyed by fire, so that the same should be thereby rendered unfit for use and habitation, the lease might be determined and ended at the election of the lessors, if the damages exceeded fifteen thousand dollars.</p> <p>On August 1, 1865, the lessees, with the assent of the lessors, assigned to the defendants their interest in the lease, they agreeing to perform the “ conditions, covenants and stipulations of the lease.”</p> <p>The defendants entered into occupation of the premises mentioned in the lease, under the assignment, and continued to occupy the same until November 9, 1872, on which day all the buildings on the premises were totally destroyed by fire. These buildings exceeded in value $15,000, and covered, substantially, all the lot of land demised, and were, by the fire, rendered absolutely unfit for use and occupation; whereupon the lease was determined and ended by the lessors pursuant to the clause in the proviso to the lease, notice to that effect having been subsequently given to the defendants by the lessors.</p> <p>A tax of $2012.40 was assessed on the premises, to the plaintiffs, on May 1, 1872, by the city of Boston, which, together with $60.36 interest thereon, and $24.52 costs, in all amounting to $2097.28, was paid by the plaintiffs to the city on May 19, 1873, which sum the plaintiffs on said day demanded of the defendants, who declined to pay the same.</p> <p>Upon these facts the court is to render such judgment as shall seem agreeable to law. The Superior Court ordered judgment for the plaintiffs, and the defendants appealed to this'court.</p>

<p>Contract for a breach of the covenant for quiet enjoyment in a lease, with a count for money had and received. Trial in this court, without a jury, before Morton, J., who allowed a bill of exceptions in substance as follows :</p> <p>On March 15, 1866, the defendant leased to the plaintiff, by a written instrument under seal and duly recorded, an estate on Summer Street, Boston, for the term of ten years from July 1, 1866, at a certain rent payable quarterly, “ and at that rate for any fraction of a quarter not completed at the legal termination of said term, and for such further time” as the lessee should hold. Then follows this clause : “ The first payment thereof to be made on the first day of October next, provided, however, that in case said lessee shall not receive possession of the whole of the demised premises on the said first day of July, said lessee shall make a just proportionate deduction from the first quarter’s rent and taxes.”</p> <p>The lessee also covenanted to pay the rent reserved “ except only in case of fire or other casualty, as hereinafter mentioned,” and “ also all taxes and assessments whatsoever, whether in the nature of taxes now in being or not, payable for or in respect of said premises, or any part thereof, during said term or during such further time as the said lessee shall hold the same or any part thereof.” Then, after other immaterial clauses, follows this provision: “ But said lessee shall pay only five sixths of the taxes to be assessed in May next, and such pro rata proportion of the taxes assessed in or after the month of May, A. D. 1876, as shall correspond to the portion of time after the first day of said month of May for and during which he shall occupy said premises, or they shall be occupied by any person claiming under him.”</p> <p>Near the end of the lease were these clauses :</p> <p>“ And provided also, that in case the said premises, or any part thereof, shall during said term be destroyed or damaged by fire or other unavoidable casualty, so that the same shall be thereby rendered unfit for use and habitation, then and in such case the rent hereinbefore reserved, or a just and proportional part thereof, according to the nature and .extent of the injury sustained, shall be suspended or abated until the said premises shall have been put in proper condition for use and habitation by the said lessor, or these presents shall be thereby determined, at the election of the said lessor or his heirs, representatives or assigns.</p> <p>“ And the said lessor covenants and agrees with the said lessee and his representatives, that he and they, paying the rent afore- . said and performing the covenants herein contained on his and their part to be paid and performed, shall peaceably hold and enjoy the said demised premises without hindrance or interruption by the said lessor or any other person or persons whomsoever.”</p> <p>The store on the demised premises was totally destroyed in the great fire of November 9,1872. The defendant, the lessor, subsequently rebuilt the store, and on its completion, about August 7,1873, refused, upon the plaintiff’s demand, to permit the plaintiff to occupy the same, but let the premises to other tenants without the plaintiff’s consent.</p> <p>The defendant in his answer alleged that in pursuance of the provisions of the lease, to the effect that in case of such a destruction of the store by fire, the lease should be thereby determined at the defendant’s election, the defendant elected that the lease should be thereby determined, and notified the plaintiff of such election, and that the plaintiff acquiesced therein; but the defendant contended that by the proper construction of the lease, the plaintiff must show an election by the defendant that it should continue.</p> <p>The judge found the following facts :</p> <p>“ 1. Hersey never elected to continue the lease, and did not do anything to lead Carnes to believe that he had elected to continue it. 2. No formal written notice by Hersey of his election to determine the lease was given to Carnes until April 25, 1873.</p> <p>3. Both parties understood soon after the fire that the lease was terminated, and that any future occupancy of the premises must be under a new lease, to be agreed upon between the parties.</p> <p>4. Hersey therefore elected to terminate the lease immediately after the fire, and Carnes so understood it. 5. Under the circumstances of this case, if a written notice was necessary, the notice of April 25, 1873, was within a reasonable time."</p> <p>There was also evidence tending to show that on November 8, 1872, before the fire, the plaintiff voluntarily paid to the city treasurer of Boston the annual taxes of that year, which had been assessed on the demised premises in the last preceding month of May, and were due and payable on or before October, 1872 ; that on April 19, 1873, the plaintiff settled with the defendant for the rent reserved in the lease, up to the date of the fire; that prior to such settlement the plaintiff and defendant differed as to the plaintiff’s right to have allowed to him such a proportion of the taxes so paid by the plaintiff as corresponded to the period between the date of the fire and May 1, 1873; that the plaintiff claimed that he was entitled to such allowance under the clause in the lease that provided for a suspension or abatement of rent in case of the destruction of the store by fire, and the defendant thought the plaintiff was not so entitled • and that the defendant finally, on April 19, refused to make such allowance, or to pay oi allow the plaintiff in any form for any part of the taxes so paid by the plaintiff as aforesaid.</p> <p>The plaintiff contended that even if the facts subsequently found by the judge and hereinbefore stated were proved, they were not sufficient to effect a determination of the lease, unless the written notice of April 25 had the effect to determine it; and requested the court so to find as matter of law.</p> <p>The plaintiff also requested the judge to rule : 111. That upon a just construction of the lease and the intent of the lease considered, the taxes payable by the lessee were to be apportioned to correspond to the duration of the term; and that whenever the term may end (without default of the lessee,) his liability in respect to taxes assessed in the preceding month of May is limited to the payment of such proportion of said taxes as corresponds to the duration of the term beyond May 1, even if the provision for a suspension or abatement of rent in case of fire is not applicable to taxes. 2. That if, after the fire, the defendant refused to make the allowance in respect to the taxes of 1872, claimed by the plaintiff as aforesaid, he thereby accepted from the plaintiff a part of the consideration for the demise for and in respect to the period subsequent to the fire, up to May 1, 1873, and in so doing affirmed the continuance of the tenancy, and concluded himself from thereafter electing to determine. 3. That if the defendant should prevail upon the question of the determination of the lease, at least the plaintiff was entitled to recover from the defendant such proportion of the tax of 1872 as corresponds to the period between the date of the. fire and May 1,1873, under his money count.”</p> <p>The judge refused to find or rule as above requested, and ruled adversely to the plaintiff on all the points embraced in his requests ; and ordered judgment for the defendant; and the plaintiff alleged exceptions.</p>

<p>Contract for the use and occupation of a building on School Street, in Boston. At the trial in the Superior Court, before Brigham, C. J., the jury found for the defendant, and the plaintiff alleged exceptions. The facts of the case appear in the opinion.</p>

<p>Writ of entry, dated February 24, 1873, brought by Lucy R. Woods, Andrew C. Walker and Mary W. Walker, his wife, to recover possession of one undivided third part of a certain estate situated on Green Street, in Worcester. Plea, nul'disseisin. The case was submitted to the judgment of the court, on an agreed statement of facts in substance as follows :</p> <p>Jonathan Loring died intestate in 1833 or 1834, seised in fee of the entire estate on Green Street, leaving, as his only heirs three children, David S. Loring, Ann McGregor Loring and Margaret D. Loring, who inherited the said estate, taking each one undivided third part. In January, 1839, Margaret D. Loring, who remained seised in fee simple of her interest in said estate, married George A. Woods, and an ante-nuptial settlement, dated January 21,1839, was executed by her, the said George A. Woods, her intended husband, and George C. Briggs, the husband of Margaret’s sister Ann, delivered to said Briggs and duly recorded the same day. By it, Margaret conveyed “ all her real estate of every description, and all her right, title and interest therein, and to the rents, issues and profits of the same; to have and to hold the same to him the said George C. Briggs, his heirs, executors and administrators, during the coverture aforesaid, but nevertheless in trust to and for the sole and separate use and benefit of the said Margaret D. Loring; ” Briggs covenanted to pay her the income during her coverture ; and the indenture contained the further agreement “ that in case said marriage shall be dissolved by death or otherwise, then the real estate aforesaid, and the rents, issues and profits of the same, from and after said dissolution, shall be and remain the property and estate, and the same is hereby conveyed to the person or persons who would have' by law a right or title thereto in case this instrument had never been made and executed.” '</p> <p>On March 21,1839, David S. Loring, George C. Briggs and his wife Ann, George A. Woods and his wife Margaret, and Briggs in his capacity as trustee under the settlement, executed and delivered to Caleb Eddy a warranty deed of the whole estate, which deed was duly recorded on April 5, 1839. Eddy then entered and took possession of the estate thereby conveyed, and he and those claiming under him have ever since retained possession.</p> <p>On July 1, 1867, the trustees under the will of Eddy conveyed the estate to the tenant, who was a purchaser in good faith, for a valuable consideration, and without personal notice of the said marriage contract.</p> <p>Margaret D. Woods had by her said husband two daughters the demandant Mary W. Woods, born October 27, 1841, and who married Andrew C. Walker, September 15, 1864, and the demandant Lucy It. Woods, born December 25, 1846.</p> <p>Margaret D. Woods died AprL 26, 1849, in the lifetime of her husband; he died October 20,1856.</p>

Writ of error to reverse a judgment rendered by the Superior Court, at October term 1871, affirming a judgment of the municipal Court of the city of Boston in favor of the defendant in error, in an action of contract. The record showed that Sherburne recovered judgment in the original action April 19, 1871, that Noyes appealed therefrom but failed to prosecute his appeal, and that Sherburne entered his complaint for affirmation of the judgment at said October term.

<p>Bail, against whom a judgment has been rendered on scire facias by mistake and without their fault, may petition for a writ of review; and, if they obtain it, are entitled at the hearing upon the review, on payment of costs, to surrender their principal, pursuant to the Gen. Sts. c. 125, § 12, and have judgment entered, reversing the former judgment and discharging them.</p> <p>Exceptions to a ruling or order of the Superior Court cannot be entered in this court before the final disposition of the case in the court below.</p> <p>Exceptions to the rulings of two judges at different stages of the same case should be stated in distinct bills of exceptions allowed by each, and not in, one bill allowed by both.</p>

Contract against one of the sureties on a bond to dissolve an attachment made on mesne process in an action against one Shea.

Writ oe review to reverse a judgment recovered by the defendants in review against the present plaintiffs on a promissory note signed by them. Trial in the Superior Court, before Dewey, J., who allowed a bill of exceptions in substance as follows : The original action was commenced by an actual attachment of the defendants’ property, on December 18, 1871, on a writ returnable to the Superior Court for the county of Suffolk, at January term 1872.

<p>A commission merchant wrote to a manufacturer of goods, requesting a consignment of his goods invoiced at the lowest rates, stating what the charges would he, promising to pay the return freight if satisfactory prices could not be obtained, and to be responsible for any neglect by him to deal with the goods according to the manufacturer’s orders. ' The manufacturer replied, in a letter accompanying the shipment of goods, that he had invoiced the goods at the lowest selling prices, and that “the small shipment” then made “will be duplicated if prices obtained warrant.” The invoice contained no direction to sell the goods at the invoiced prices. The consignees sold for a less price. The consignor wrote him that the price obtained was not satisfactory, but made no claim that any order had been violated, and afterwards brought an action to recover the difference between the invoice price and that for which the goods were sold, in which the declaration contained no averment that the consignee had acted unfaithfully or injudiciously. Held, tnat the action could not be maintained.</p>

Tort for personal injuries sustained by the plaintiff from the falling of a bale of goods upon him from a wagon, in charge of the defendants’ servant, in a public street in the city of Boston. Trial in this court before Morton, J., who allowed a bill of exceptions in substance as follows : The defendants were truckmen and teamsters. The plaintiff was foreman of Elder & Co., other truckmen and teamsters, engaged in their behalf at the store of one Wright cn Devonshire Street.

Two PETITIONS filed April 16, 1873, under the St. of 1873, o. 189, § 2, by the agent employed by the United States under said statute, for the valuation of the respondents’ lands, which had been appropriated to the use of the United States for the enlargement of the post-office in Boston. Each respondent filed an answer, admitting all the material allegations of the petition, and requesting to have the assessment made as provided by the statute.

<p>Under the St. of 1873, c. 189, authorizing the taking of land in Boston for a post-office, the only issue to be submitted to the jury is the valuation of the land taken, and the question whether a case has arisen to which the statute applies is for the court.'</p> <p>Under the St. of 1873, c. 189, authorizing the taking of land for a post-office in Boston, and providing that, if the parties cannot agree upon the price to be paid for the land, the valuation may be determined by a jury, the filing of a petition for a jury shows the petitioner’s election not to agree, and no previous attempt at an agreement is necessary.</p>

<p>Two ACTIONS OF CONTRACT by the receivers of the Massachusetts Mutual Fire Insurance Company to recover assessments imposed upon the defendant as a member of said company. Trial in the Superior Court, before Pitman, J., who, after verdict, reported the case for the determination of this court in substance, as follows:</p> <p>The cases were tried together; and the only question made at the trial was whether the defendant was liable to be assessed as a member of the company.</p> <p>The plaintiffs introduced evidence that Jeremiah Williams represented to the company that he was the owner of the premises covered by the policies, and applied to them for insurance, and the policies, which were not under seal, were issued accordingly to “ Jeremiah Williams, guardian.” There was no record evidence produced that Williams was guardian; but Jacob Fotler testified, without objection, that Williams was guardian of his, Fotler’s, children. It appeared that the youngest of the children became of age before June, 1872, and thereafterwards, in said month, all the children conveyed the premises to Fotler, who, in a few days after, conveyed the same to the defendant.</p> <p>The plaintiffs then introduced evidence to show that Williams gave verbal authority to Arthur W. Austin, attorney at law, to transfer and assign the policies to the defendant for a valuable consideration, in Williams’s name; and that thereupon, in the absence of Williams, Austin made on the back of the record of the policies, kept by the company, the following entry; “ Boston, June 19,1872. For value received I hereby transfer to Jonas B. Hildreth, of Boston, all my right, title and interest in this policy. Jeremiah Williams, Guardian. By Arthur W. Austin, his Attorney.” Underneath the same was written by the president of the company as follows: “ Approved by me. • Chas. B. Cumings, Pres’t.” This transfer and approval were then copied on the policies. Austin further testified that Hildreth agreed to take and pay for these policies a value to be ascertained, and also agreed, for security of a mortgage given back by Hildreth to Fotler of the premises, (which was put into the case, and contained a clause that the buildings should be kept insured for the benefit of the mortgagee,) to transfer the policies back to Fotler “ to go with the mortgages; ” and that the defendant accordingly, the same 19th of June, indorsed on the policies the following: “ Having mortgaged the within premises to Jacob Fotler, I hereby assign this policy to him. Jonas B. Hildreth. June 19, 1872.” This was stamped, and recorded on the books of the company. The plaintiffs then introduced evidence showing that the defendant received the policies from the company after the indorsements and record; and this was all the material evidence introduced relating to the property insured and the policies and assignments "thereof.</p> <p>The defendant requested the judge to rule that the policies were wager policies, and were void, and that the plaintiffs were not entitled to recover on this evidence ; but the judge refused so to rule, and ruled that the jury would be authorized to return a verdict for the plaintiffs in each case, which was accordingly done. If the evidence would not in law authorize such verdict, then it is to be set aside; otherwise, judgment to be rendered thereon.</p>

Contract on a promissory note made by the defendant payable to the order of George F. Shepard and by him indorsed to the plaintiff. Writ dated July 31,1873, and returnable to October term of the Superior Court for the county of Suffolk. The defendant filed an answer in abatement that another suit was pending against him on the same note in the same court, in which Edward B. Wildes was the plaintiff, when the present action was brought. The plaintiff demurred to the answer.

Tort for personal injuries sustained by the fall of a derrick, which the declaration alleged “ the defendants negligently and carelessly raised, and made no proper arrangements to prevent its falling on the men engaged in raising.” Trial in this court before Endicott, J., who allowed a bill of exceptions in substance as follows: The defendants were erecting a large building in Taunton. The plaintiff was a carpenter in their employ.

Tort for personal injuries. The declaration alleged that the plaintiff was employed by the defendants in their sugar refinery, and, while in the performance of the duties of his employment and using due care, he was standing on an elevator in said refinery, which, and the apparatus and ropes of which, the defendants allowed to be in an unsafe, dangerous and unsuitable condition, of which the plaintiff had received from the defendants no caution, notice or instruction,…

<p>Replevin of a mare. Trial in the Superior Court, before Pitman, J., who, after verdict, reported the case for the determination of this court in substance as follows :</p> <p>Bernard McKinney, one of the plaintiffs, testified that he sold the mare in suit to John McDonald, and at the same time took the following memorandum signed by the latter : “ Brighton, July 7, 1873. John McDonald bought of D. McKinney & Son, one roan mare for $300. Paid $50. The mare is to be paid for August 1; if not, to be returned to D. McKinney & Son.” He also testified that the mare was delivered up on this condition, and upon no other terms. It appeared that the mare was not paid for or returned; and when inquiry was made by the plaintiffs, it was found the mare was in the possession of -the defendant, who claimed to have bought her of McDonald, and he refused to deliver her to the plaintiffs.</p> <p>The only other evidence was that of Patrick Edwards, who testified that some two weeks after the sale by the plaintiffs to McDonald, the defendant came to his house late one night, and asked him if he knew whether it was a mortgage or a promissory note that McDonald gave to McKinney, and whether, if summoned to court, he could say it was a promissory note, to which the witness said he knew nothing about it.</p> <p>The plaintiffs here rested and contended that the sale to McDonald was a conditional sale, and so passed no title till payment, and that, even if this were not so, he had a right to go to the jury upon the question whether the alleged sale to Bradlee was bond fide. But the judge, being of opinion that, as a matter of law, the sale to McDonald was an absolute and not a conditional one, on motion of the defendant, directed a pro forma verdict for the defendánt.</p>

Bill in equity, filed March 18, 1874, against Mary P. Spilman and the Provident Life & Trust Company, to compel the first named defendant, the plaintiff’s sister, to assign to him, or to give her written assent for the transfer of, a policy of life insurance under seal, whereby the defendant company insured the life of the plaintiff in the sum of $3000, and agreed with the insured, his executors, administrators and assigns, to pay the sum insured to the defendant Spilman,…

<p>Tort for the conversion of a soda fountain. The case was submitted to the Superior Court and to this court, on appeal, on an agreed statement of facts, in substance as follows:</p> <p>On June 13, 1873, G. D. Dows & Co. delivered the property, which is the subject of this action, to W. S. Proctor, under an agreement of lease by which Proctor was to pay a certain sum in instalments, and on receipt of the entire sum Dows & Co. agreed to give Proctor a bill of sale of the property; “ but until such time the ownership shall remain vested in the said G. D. Dows & Co., with the right of removal without process of law, in case any of the payments are not made as per agreement.”</p> <p>Proctor retained possession of it till he sold and delivered it to plaintiff as hereinafter set forth, complied with all the terms of the agreement and paid the last instalment therein named on October 15, 1873, at which time Dows & Co. gave to Proctor an absolute bill of sale of the property. More than a month prior to this last date, Proctor sold and delivered the property to the plaintiff, who took possession thereof and retained possession with the continuous consent and knowledge of Proctor. On October 15, immediately after the delivery of the bill from Dows & Co. to Proctor, and before any other conveyance had been made from Proctor to the plaintiff, the property was attached on mesne process, by the defendant, under the authority of a writ sued out of the Municipal Court of Boston, by Dows & Co., against Proctor. At the request of Currier the property was left on his premises by the officer under the care of an agent of Currier’s, which agent was duly appointed keeper thereof. The writ was duly returned, judgment entered, and execution issued, and thereafter on November 29, 1873, a levy was duly made thereon as the goods of Proctor, and sold by the defendant; the plaintiff demanded the property of the defendant, who declined to give it up, and thereupon brought this suit.</p> <p>The Superior Court ordered judgment for the plaintiff for $148, and the defendant appealed to this court.</p>

<p>Petition in equity by the Episcopal City Mission, a religious society incorporated by the St. of 1844, e. 92, against William Appleton, Charles H. Appleton, Sarah E. Lawrence, and Hetty S. Coolidge, the heirs at law of William Appleton, and residuary devisees under his will, and the Attorney General, as representing the poor of the city of Boston, praying leave to sell certain real estate on Purchase Street in Boston, and to reinvest the proceeds under the direction of the court. After the filing of the petition Charles H. Appleton died, leaving a will, by which he subjected his estate to certain trusts, and F. Gordon Dexter and John A. Burnham, the trustees under his will, appeared and filed an answer. The other respondents either did not appear, or appeared and filed no answer.</p> <p>Hearing before Bndioott, J., who reported the case for the consideration of the full court, in substance as follows :</p> <p>On January 8, 1847, William Appleton, since deceased, conveyed to the petitioner, its successors and assigns, the estate which it now prays leave to sell. The conveyance was for the purpose of promoting the religious welfare of the poor of Boston, and although in form expressed to be “ in. consideration of one dollar, and other valuable considerations,” was without payment of any valuable consideration, but solely upon consideration of charity. At the time of the making of the conveyance the chapel therein mentioned was, and always afterwards while it existed continued to be, used and occupied as a missionary chapel, having its sittings free to the poor of the city of Boston.</p> <p>The deed, after the description of the property, contained the following clause:</p> <p>“ The premises above described are conveyed by me upon and subject to the condition that the said corporation of the Episcopal City Mission are to continue to hold, occupy and improve the land and chapel for the purpose for which-they are now used and occupied; namely, for the support of the worship of Almighty God in conformity to the doctrine, discipline and worship of the Protestant Episcopal Church in the United States of America ; and also upon the further condition that no building or superstructure of whatever kind is to be erected on the portion of the land above conveyed which lies on the northeasterly side of the chapel as now built, and between said chapel and the strip of seven feet in width of land this day conveyed to Charles H. Brown, until after such time as said Brown or his representatives or assigns shall build upon the said strip of seven feet in width, or shall cease to keep said strip of land open and free from any building or superstructure, or until after such time as said chapel shall cease to be used as a chapel for the worship of Almighty God in conformity to the doctrine, discipline and worship, as above described.”</p> <p>At the time of the execution of the deed Charles H. Brown was the owner and occupant of a dwelling-house lying northeasterly of the said chapel and fronting towards the same, and upon a passageway extending between said dwelling-house and said chapel, of which passageway he was also the owner, and had purchased from the said Appleton a strip of land seven feet wide bordering upon said passageway, thus increasing the width of the said passageway seven feet, which is the said Brown’s seven foot strip mentioned in the deed.</p> <p>The chapel named in the said deed was destroyed by fire on November 10,1872, and insurance thereon was afterwards paid to the petitioner. Owing to the growth of the'city of Boston since the year 1847, and the change in the character as to population of that part of the city in which the said estate is situated, (it having come to be occupied almost exclusively by business stores and warehouses,) and also to the reduction of the depth of said estate by the city taking part of the land for the purpose of widening the street, the locality has become entirely unfit for the purposes for which the estate was conveyed; and the’objects of the charity for which the original conveyance was made will be better promoted by the sale of the estate conveyed, and the reinvestment of the proceeds (including the money received for insurance and for the land taken for widening the street) in the purchase of land in another part of the city, and the purchase or erection of a chapel thereon, and in proper provision for the maintenance thereof.</p> <p>Upon these facts the case was reported to the full court for its judgment whether such sale and reinvestment could be, under the terms of the said deed, and ought to be, upon the facts stated, directed by the court, and for such order and decree as the court might see fit to make in the premises.</p>

<p>Contract on two promissory notes, each for $990, against the defendant, Crosby, as maker, and the defendant, N. B. Bryant, as indorser. Answer, failure of consideration. The defendant Bryant filed a declaration in set-off, to recover back the sum of $990 and interest. The answer to the declaration in set-off was that the $990 were paid by the defendants to the plaintiff, in part payment of the price of a lithographic steam machine. Trial in the Superior Court, before Dewey, J., who, by consent of the parties, before verdict, reported the case for the consideration of this court, in substance as follows :</p> <p>The making and indorsing of both notes were admitted, and protest and notice to Bryant, as to the first note, was proved. It was also proved, or admitted, that the plaintiff was an importer and dealer in Hughes & Kimber’s Lithographic Steam Machines ; that on October 31,1872, he had on hand only one of these machines of the size No. 3, which was in the United States warehouse, in New York, in bond ; that on that day the defendant Crosby, doing business under the name of Charles H. Crosby & Co., signed the following order or contract, addressed to the plaintiff: “ Please furnish us as soon as possible with one of Hughes & Kimber’s No. 3 Lithographic Steam Machines, for which we agree to pay you the sum of $2970, as follows: One third, cash before shipment of machine from New York, balance to be paid in two notes of equal amounts @ two and four months, from date of invoice, said balance to be in two notes duly secured by mortgage in your favor, on machine. Said machine to be fully insured against loss by fire, in one or more good and approved companies; loss, if any, payable to you as mortgagee, and the policy to be held by you as such mortgagee. The note, mortgage and policy of insurance to be made out, executed and delivered to you or to your lawful agent, on or before the arrival of the machine at our establishment, and until said notes, mortgage and policy of insurance shall be so delivered, the title to said machine is not to be deemed vested in us, but is to be and remain your property. It is understood that your engineer shall erect the machine and leave it in perfect working order to our satisfaction, we paying freight from New York to Boston, Mass.” This contract was signed in New York, and had reference to the No. 3 machine then in bond. On the return of McClellan, the defendants’ agent, to Boston, after an interview with the defendant Bryant, who furnished most of the capital with which Crosby did business, the defendant Crosby wrote the following letter to the plaintiff, dated November 1, 1872: “Inclosed please find Hon. N. B. Bryant’s [check] on Security National Bank, Boston, for $990 ; and two notes, one at two and the other at four months, each for $990, signed by Chas. H. Crosby & Co., and indorsed •by Mr. Bryant, in payment for No. 3 Lithographic Machine, ordered yesterday. Please bill the press to Mr. Bryant direct, as he prefers to give his indorsement rather than a mortgage. Please ship the press as soon as possible by Stonington Line, and insure it for $3000. Shipping directions, Chas. H. Crosby & Co., 46 Water Street, Boston, Mass., via Stonington Line.’" On the receipt of this letter, the plaintiff, on November 2, wrote the following reply, addressed to Chas. H. Crosby & Co.: “ I beg to acknowledge receipt of your favor of the 1st inst., covering check $990.00, and two notes indorsed by N. B. Bryant @ two and four months @ $990.00 each, for $2970, my account against you in full for a No. 3 Lithographic Printing Machine, contracted for on the 31st. Duties paying to-day. Hope to send you B. L. and invoice on Monday next. Your instructions regards shipping, insurance, &c., shall have careful attention.”</p> <p>On November 4 the machine was shipped as directed in the letter of November 1. It was insured for the voyage by the plaintiff in his own name, “ on account of whom it may concern.” On the same day the plaintiff advised the defendant Crosby of the shipment, and inclosed the bill of lading, in which Crosby was named as the consignee. No bill of the machine was sent to Bryant, but a bill was sent directed to C. H. Crosby & Co., but not receipted, and this bill Bryant directed to be returned to New York, before the fire, with directions to send a bill made out to him. The machine arrived in Boston on November 5, and the freight from New York was paid by the defendants, and Crosby at once, by letter, requested the plaintiff’s engineer, who was then in Boston, to erect the machine. On November 6 the eleven cases supposed to contain the machine were deposited by Crosby in his printing-office or establishment, and the plaintiff’s engineer was again requested, by letter, to erect it there. On November 9 the engineer, with the assistance of Crosby’s men, began to take it from the boxes, and during the day several of the boxes were opened, and their contents taken out. The machine consisted of more than two hundred pieces, of which one piece was broken. The boxes had never before been opened since their arrival from England, whence the machine was imported by the plaintiff. It was destroyed by fire during the night of November 9, 1872.</p> <p>The plaintiff offered in evidence his letter-book containing letter-press copies of the letters dated November 2 and 4, and testified that he had no personal knowledge of the sending of the original letters, but that it was his usual practice to have the letters which were thus copied sent pre-paid to the post-office by one of the clerks, or the postman called for them, and he further testified that he gave directions, at the time the letter of Crosby was received, to answer it. The defendants had been notified tc produce the original letters ; the judge admitted the letter-press copies thereof, to which the defendants excepted.</p> <p>After the introduction of the foregoing evidence, the case was taken from the jury. If the letter-press copies were properly admitted and upon the evidence reported the plaintiff is entitled to recover, judgment is to be entered against Crosby for the amount of both notes and interest from maturity, and protest fees thereon, and against Bryant for the amount of the note which first matured, with interest from maturity and protest fees thereon, he not being liable on the second note for want of notice; if the letter-press copies were improperly admitted, but the plaintiff can maintain his action upon the other evidence independently of said letters of November 2 and 4, then the above judgment is to be entered. If the letter-press copies were wrongfully admitted and the plaintiff would be entitled to recover upon the other evidence and the original letters, but not without proof of them, then the case is to be sent back for trial. If the plaintiff cannot, upon the evidence reported and admitted by the court, recover, judgment is to be entered for the defendants ; and if the defendant Bryant is entitled to recover on his declaration in set-off, judgment is to be entered in his favor for $990, and interest from the date of the writ.</p>

<p>Contract on a promissory note. Writ returnable to January term 1875, of the Superior Court for this county.</p> <p>On February 5,1875, F. H. Rogers, one of the plaintiffs, made and' filed the following affidavit under the St. of 1874, e. 248, § 3 : * “ And now comes F. H. Rogers, one of the plaintiffs in the above entitled action, and says, that said action is brought upon a note signed by the defendants, Ladd and Warren, by the firm name of George O. Ladd & Co., and was indorsed for value due the plaintiff by the other defendant. And he further says, that on the delivery of said note, the said Ladd and Warren received a full and sufficient consideration, in lumber delivered to them. And he further says, that the said note is justly due, and that he believes the defendants have no defence whatever thereto, but appear in court therein merely to obtain delay. And he further says, that the said Ladd has repeatedly promised to pay the said note to the plaintiff, and has offered to pay it in instalments, and has promised to pay it since the commencement of this action, as soon as he could, and that at the giving of the bond to dissolve the attachment in this action, that said Ladd said that the money was in the bank in readiness to pay the said note when it became due, and it would have been paid if the said Warren, in the said Ladd’s absence, had not mislaid and misapplied the said money. And the plaintiffs pray that the said action may be advanced for speedy trial.”</p> <p>The following order was thereupon passed: “ Superior Court, Suffolk, ss. January term 1875, viz., February 5, 1875. F. H. Rogers vs. George O. Ladd et al. And now in the above action the plaintiff, on the fifth day of February, 1875, having filed an affidavit verifying the cause of action, and swearing in his belief there is no defence, it is ordered that the defendant forthwith appear at said court and show cause why judgment should not be given for the plaintiff. By the Court, Joseph A. Willard, Clerk.”</p> <p>On February 10,1875, the following affidavit of the plaintiffs’ attorney was filed: “ I, James D. Thomson, the plaintiff’s attorney in the above entitled action, on oath, depose and say that I served the within by giving to Sanford H. Dudley, Esq., the defendant’s attorney, in hand, a true copy of the within order on Saturday, February 6, at eleven o’clock in the forenoon.”</p> <p>Thereupon the action was advanced for a speedy trial, and defendants, though called, did not appear, but made default.</p> <p>On February 19, 1875, the defendants moved that the default be taken off, and assigned the following reasons therefor: “ 1. That no service of notice upon the defendants has ever been made, according to the requirements of the St. of 1874, c. 248, as appears of record. 2. That said default was entered without notice to the defendants real' or constructive, and they have not had an opportunity for trial.” On February 24, the plaintiffs moved for judgment.</p> <p>The court overruled the motion to take off the default, and ordered judgment for the plaintiffs for a stated sum; and the defendants appealed to this court.</p>

Petition in equity brought by John S. Welch, as administrator of Augustus P. Welch, praying that Henry P. Kidder and James 0. Davis, who had been appointed receivers of the defendant corporation by a decree of this court, might be ordered to pay to the petitioner one half the amount of a policy of insurance issued by the defendant corporation to the intestate.

Contract upon the following instrument signed by the defendant : “ Boston, April 7, 1871. $100.

Contract for breach, of warranty against incumbrances in a deed of land from the defendant to the plaintiff. Writ dated November 4,1870. After the decision reported 116 Mass. 392, the case was submitted to the Superior Court and to this court, on appeal, on an agreed statement of facts, in substance as follows : On November 4, 1870, the plaintiff attached' the defendant’s real estate, and entered the writ at January term 1871.

Wbit oe entby to recover a strip of land, in Boston, contain- ing about forty-seven and a half square feet, bounded “ northerly on Warrenton Place two and a half feet, easterly on land late of Mary Y. Randall, deceased, now of Mary E. Jones and Lydia E. Hutchings nineteen feet, southerly on land formerly of E. R. Griffiths two and one half feet, and westerly on the demandant’s other said land by the brick building of the demandant thereon nineteen feet.” The land was…

<p>Cobtbact to recover rent reserved in a lease under seal from the plaintiff to the defendant and signed by John L. Roberts and the defendant. Trial in the Superior Court, before Bacon, J., who allowed a bill of exceptions in substance as follows :</p> <p>The plaintiff proved the lease whereby it appeared that the ent was payable monthly in advance, on the sixth day of every month, and this action was brought to recover the instalments due on October 6 and November 6, 1872, the lease having at the latter date two years more to run. John L. Roberts, who signed the lease, was at the time the general agent of the plaintiff in the management of his buildings, but had no written authority to execute the lease.</p> <p>The defence relied on was a surrender of the lease and an acceptance of the same by Roberts. The defendant offered in evidence the record of an action under the Gen. Sts. e. 137, brought by the plaintiff against Michael G. Minon, to recover possession of the premises described in the lease. The writ in that action was dated November 9, 1872. The judge ruled, against the plaintiff’s objection, that the bringing of that action was a bar to the recovery from this defendant of rent for the month from November 6 to December 6, it appearing that that action was not for forcible entry or detainer by Minon.</p> <p>The defendant further offered evidence tending to show that in May, 1872, he had sublet the premises to Minon; that Minon for that month and for every month after paid rent directly to Roberts, and no demand for it was made on the defendant, and that for May, when both Minon and the_ defendant paid rent, Roberts repaid to the defendant the amount paid by him; that the defendant told Roberts that if he received rent from Minon, he must release him from liability under his lease; that Roberts thereupon told the defendant that he should continue to receive rent from Minon, and that he might give up his lease ; and that afterwards the defendant took his lease to Roberts’s office and delivered it to Francis R. Roberts, who gave him a receipt therefor. Francis R. Roberts was the brother of John L. Roberts, but there was no evidence that he had any authority to act for him or for the plaintiff in the matter of giving or annulling leases. John L. Roberts knew that the lease had been left at his office, and he never returned it to the defendant. There was no evidence of any authority in John L. Roberts to accept a surrender of a lease on behalf of the plaintiff other than the general verbal authority already mentioned. .</p> <p>The plaintiff requested the judge to rule that Roberts could not, without written authority, accept a surrender, and that the above facts, if proved, did not constitute a surrender by operation of law ; but the judge refused so to rule, and instructed the jury, that if they found the facts which were testified to by the defendant’s witnesses, as above stated, to be true, those facts would constitute a surrender, and that their verdict must be for the defendant. The jury found for the defendant, and the plaintiff alleged exceptions.</p>

<p>On the trial of the issue whether a loan, made by a person deceased and for which a note since lost was given, was to the defendant or a third person, entries in the diary of the deceased in his handwriting, which purport to have been made upon the day of the loan and on subsequent days, and which show an agreement with the defendant to take the latter’s note and receive various collateral securities, are inadmissible in evidence, if the only circumstance connecting the defendant therewith is the assignment by him of a mortgage to the deceased on the day of the loan.</p> <p>On the trial of the issue whether a loan, made by a person deceased and for which a note since lost was given, was to the defendant or a third person, who testifies that the loan was made to him, a memorandum signed by the deceased, reciting the receipt of a note from the defendant on which a certain sum is stated to he due the defendant on the happening of a certain event, and on which the third person afterwards wrote a receipt for a part of the sum named therein, is inadmissible in evidence for the purpose of proving that the defendant gave the note recited, but the whole paper is admissible as affecting the credibility of the third person.</p> <p>On the trial of the issue whether a loan by a person deceased was made on April 14, 1871, to the defendant or a third person, the plaintiff offered in evidence a check upon a bank dated April 14, 1863, for a sum less than that loaned, payable tc the defendant, or hearer. There was evidence of a payment by the bank of a check of the deceased of the same amount on the day of the loan, and that no other check of that amount drawn by the deceased had been paid at the bank. There was no evidence that the defendant knew of the check. It was admitted in evidence, and the jury were instructed that before the defendant could be affected by it, they must he satisfied that he had knowledge of it; that as a mere statement on the part of the deceased, it would not bind the defendant; that it went to them, under the circumstances of the case, as tending to show payment of such a check at the hank on the day of the loan, though dated earlier. Held, that the instruction was sufficiently favorable to the plaintiff, and that he had no ground of exception.</p> <p>The judge presiding at a trial, at the conclusion of his charge to the jury, stated to them that if they found for the plaintiff, he should ask them to say upon which count of the declaration they found, but if for the defendant, that they need say nothing more. The jury found for the defendant, and the judge asked them upon what ground they so found. Held, that it was in the discretion of the judge to ask the question, and that it afforded the plaintiff no ground of exception.</p>

<p>Contract by the receivers of the Union Mutual Fire Insurance Company to recover the amount due on the following deposit note signed by the defendant, and an assessment thereon: “ Boston, September 12, 1866. In consideration of policy No. 18,539, of even date herewith issued by the Union Mutual Fire Insurance Company, I promise to pay to said company, or the treasurer thereof, the sum of seventy-four and dollars, or any part thereof, when required, with interest from the first instant, till paid in full, this note being part of the absolute funds of said company.” Writ dated November 6, 1878. Answer, the statute of limitations.</p> <p>At the trial in the Superior Court, before Pitman, J., without a jury, it appeared that the company sustained losses by the fire of November 9, 1872, on account of which the assessment was laid on November 14 ; that no official statement of the amount of loss had been made; and that the assessment had been ratified and confirmed by a decree of the Supreme Judicial Court. The judge ruled that the statute of limitations was not a legal bar to the plaintiffs’ claim or any part thereof, and rendered judgment accordingly. The defendant alleged exceptions.</p>

Writ of entry, dated May 1,1873, to recover a certain tract of land, with the buildings thereon, in Somerville. Plea, nul disseisin.

<p>The assessment by a city, under the Gen. Sts. c. 48, § 4, of the benefit to an estate from which land is taken for the construction of a common sewer, includes such benefit only as is derived in common with the other estates drained thereby, and the peculiar benefit which is derived by the release of the owner’s land from the maintenance of an ancient sewer for the convenience of the adjoining estates may be set off by the cify in the assessment of the owner’s damages for the taking of his land.</p>

BnLL IB EQUITY, filed March 3,1871, to redeem a mortgage of an estate in Watertown. The case was reserved by Colt, J., for the consideration of the full court upon a report in substance as follows: At the hearing the following facts were admitted by the parties: On December 20, 1850, Samuel L. Learned, then the owner in fee simple of the estate, mortgaged it to Thomas Learned, to secure payment of $5000 in one year, with interest semiannually until paid.

<p>Tort for obstructing a right of way in Auburndale. Trial in the Superior Court, before Lord, J., who allowed a bill of exceptions in substance as follows:</p> <p>On October 11,1858, the defendant conveyed to Ai Blood a parcel of land bounded and described as follows: “ Beginning at the northwesterly corner of said lot, at the easterly side of Waltham Street, at the centre of a ditch, and from thence running southerly, bounded by the easterly side of said Waltham Street, and extending 350 feet, and from thence running southerly, southeasterly, easterly and northeasterly on a curve line as the fence now stands, bounded by land dedicated to the public and extending 80 feet; thence running northerly, being bounded on the east by a private road or way, and extending in a straight line 136 feet on said way, and continuing in the same course, bounded by said Washburn’s land 193 feet to the centre of a ditch; then turning and running westerly, bounded by the centre of said ditch, 254 feet, ten inches, to the place of beginning.” The deed also conveyed to Blood, his heirs and assigns, “ a right of way to be used in common over and upon the land of the said Washburn, on the easterly side of the land hereby conveyed, not less than 33 feet wide, and extending 244 feet from the southerly end of the aforesaid lot.”</p> <p>On March 22, 1871, Blood conveyed the southerly part of said lot to the plaintiff, describing it as follows: “ Beginning at the. southwesterly corner of said lot, at a stake and stones at the easterly side of Lexington Street, formerly called Waltham Street, and from thence running northerly, bounded by said Lexington Street, and extending 134-¡- feet to a stake; then turning and running southeasterly 129J feet to a post standing at the northeasterly side of a proprietor’s way, and from thence running southwesterly, bounded by said proprietor’s way, and extending 106 feet to a stake and stones, and from thence running on a curve line to the place of beginning, making a segment of a circle of twenty-nine feet radius, the chord of said segment being a line extending from the last mentioned stake and stones to the one first mentioned.” The habendum contained the clause, “ with all the privileges and appurtenances to the same belonging.” The deed made no further reference to the way.</p> <p>On June 21, 1871, Blood, by a deed of quitclaim, conveyed to the plaintiff “ a certain right of way to be used in common with others having rights thereto,” and described the way as the easterly boundary of the land conveyed by him to the plaintiff by the previous deed, and referred to the deed from Washburn for a more particular description thereof, adding that “ all the right to said way which was conveyed to me by said Washburn was intended to be conveyed by me to said Miller; and this deed is made to supply the accidental omission.”</p> <p>The defendant formerly owned the land on both sides of the way, and in 1847 built a fence around the land subsequently conveyed by him to Blood, and laid out the way, with an entrance from it into that part of the land afterwards conveyed by Blood to the plaintiff. At the time of the conveyance to Blood, the defendant had maintained the way, and the fence with the opening in it as it then was, for eleven years ; and when the last deed to the plaintiff was made, the way and the fence were in the same position they had been in since 1847. The plaintiff, after receiving his last deed, took the fence down along the whole of his line bounding on the way, and built a barn, with its doors opening close upon the way. The defendant rebuilt the fence when it was taken down by the plaintiff, leaving a wide entrance into the barn from the way opposite the wide door of the barn; and for this rebuilding of the fence this action is brought.</p> <p>The defendant contended that, by the proper construction of the deed from him to Blood, and of the first deed to the plaintiff, no right in the way passed to the plaintiff ; but the judge ruled otherwise.</p> <p>The defendant also contended that no right of way passed by the last deed to the plaintiff, and objected to its admission in evidence ; but the judge allowed it to be read.</p> <p>The defendant then offered evidence tending to show that the right in the way, intended to be granted by him to Blood, was a right to pass through and over the way, to reach the lower part of the land conveyed to Blood, and not the upper part, conveyed to the plaintiff; this offer of evidence the judge rejected.</p> <p>The defendant then offered paroi evidence to show that the Emits of the way and its uses were fixed and known to Blood and himself at the time of the deed to Blood; that the fence with the opening was then standing there, and that the intent was to grant a right in the way as it then was, which included the right of maintaining the fence substantially as claimed by the defendant ; but the judge ruled that no paroi evidence was competent which should give to the defendant the right to build a fence in such manner as to obstruct the free use by the plaintiff of any part of the way to any part of his land; whereupon a verdict was taken for the plaintiff, with nominal damages ; and the defendant alleged exceptions.</p>

Bill in equity, filed April 24, 1873, alleging the following facts: In 1822, the plaintiff became the owner in fee of a lot of land in Auburndale; and in 1847, laid out a private way over a portian of it and built a fence on the line of the way. In 1858, the plaintiff sold a portion of the land bounding it on the way, and conveyed to Ai Blood a right to use the way by a deed which is set forth in the preceding case, ante, 371.

<p>Contract on a bond executed by the defendant, and con ditioned for the payment by him of one half of two joint and several promissory notes, made by the plaintiffs and the defendant. All the plaintiffs, except Richardson, disclaimed any interest in the suit. Trial in the Superior Court, before Rockwell, J., who ruled that the defendant was not liable at law upon his agreement, and ordered a verdict tor the defendant. The plaintiffs alleged exceptions. The nature of the case appears in the opinion.</p>

Contract upon a promissory note payable to the plaintiff or bearer, signed by the first named defendant and indorsed by William K. Richie, the other defendant. Writ dated April 19, 1873. Trial in the Superior Court, without a jury, before Bacon, J., who allowed a bill of exceptions in substance as follows : The two defendants at the time the note was made were husband and wife living together, and William K. Richie did not appear and defend the suit.

Writ of entry to recover a parcel of land in West Acton. Plea, mil disseisin, with a specification of defence that the land was taken for a school-house in accordance with law. Trial in the Superior Court, without a jury, before Bacon, J., who allowed a bill of exceptions in substance as follows: The demandant’s original title and seisin, and the disseisin by the tenants were admitted.

<p>Writ of entry to recover a parcel of land in Chelmsford. Plea, nul disseisin, with a specification of defence that the lot was taken for a school-house in accordance with law. Trial in this court, before Devens, J., who reported the case for the consideration of the full court. The material facts appear in the opinion.</p>

<p>Two BILLS IN equity, filed in January, 1874, praying that the defendant might be restrained by injunction from permitting any sewage, or water polluted with sewage, from passing into Broad Canal through certain sewers established and maintained by the defendant; that the defendant might be ordered to forthwith remove all deposits arid accumulations caused by the emptying of said sewers into said canal, and to abate the nuisance caused thereby, and for further relief. The answer in each case admitted that the sewers emptied into said canal, and averred that they rightfully and legally emptied therein; that the defendant was not liable for the continuance of the sewers or for their original construction; and that the plaintiffs had a complete and adequate remedy at law.</p> <p>Hearing before Ames, J., who reserved the cases for the consideration of the full court upon the bills and answers and an agreed statement of facts in substance as follows:</p> <p>By a deed of indenture, dated July 8,1806, the owners of adjoining parcels of land in Cambridge devoted certain portions of the land not covered by tide waters to canals, then or thereafter to be dug, for the use of the proprietors and future owners of lands abutting thereon. Among these canals' was one called Broad Canal, which they located four thousand feet long, eighty feet wide and nine feet deep from Portland Street to low-water mark on Charles River, a navigable arm of' the sea. They granted to each of themselves, as owners of land abutting on the several canals, and to all persons holding under them, the right of free and unimpeded navigation over and through the canals, or any of the same, or parts thereof, with vessels, boats, rafts and other things. • Broad Canal among others was dug out, as located, before 1810, and has ever since been used for the -purpose described in the indenture. The- Boston Rolling Mills, under conveyances by parties to the indenture, is the owner and occupant of land abutting on two of these canals, namely, Broad and North Canals, and there prosecutes the business of iron rolling, and also is owner in fee of nine sixteenths of that part of the bed and soil of Broad Canal, whereon the outlet to the Hampshire Street sewer now lies and empties its contents, and also of a portion of the bed and soil of North Canal. The plaintiff, Kinsley, is, under conveyances by parties to the said indenture, the owner and occupant of land abutting on Broad Canal, and there maintains a foundry.</p> <p>The navigation of Broad Canal has been impeded by the accumulations of deposits, chiefly of foreign matter therein. By reason thereof the canal has become less than nine feet deep, and by reason of the deposits and the exhalations therefrom the atmosphere in and about the premises of the respective plaintiffs is rendered unhealthy, so as to cause them, their servants and agents, direct, peculiar and material annoyance and inconvenience. These deposits are largely caused by the discharge from three public sewers, built and maintained, under the orders hereinafter stated, at the expense of the city of Cambridge, called the Hampshire Street, the Sixth Street and the Ninth Street sewers.</p> <p>The Hampshire Street sewer was constructed in 1851, by vote of the city council of Cambridge, under claim of authority conferred by its charter, and at the expense of the city, which has ever since maintained the same. It receives the sewage of a large section of the city. Its outlet enters and discharges into Broad Canal, at the head thereof, upon soil whereof the Boston Rolling Mills owns nine sixteenths.</p> <p>The Ninth Street sewer was constructed in the autumn of 1872, under orders of the city council, passed in that year, as follows : “ Resolved, that the public convenience and necessity require that a strip of land, twenty feet in width, on Ninth Street, from Cambridge Street to Potter Street, and thence in a direct line to Broad Canal, the same being private property, be taken for public use, to wit: for the purpose of laying, making and maintaining common sewers therein. Therefore, Ordered, that the above mentioned strip of land be taken for public use, to wit, for the purpose above mentioned; that no damages be awarded to the owners of the land so taken as aforesaid ; ” that a sewer be constructed in accordance with plans and profiles prepared by the city engineer, as follows: “ In Cambridge Street, from near Boston & Albany Railroad to Ninth Street, thence through Ninth Street to Potter Street, and in a direct line to Broad Canal. The expense thereof to be charged to the appropriation for sewers and drains, and assessed according to law.” This sewer has ever since been maintained at the expense of the city. Its outlet enters and discharges into Broad Canal, on the northerly boundary thereof. It also drains a section of the city.</p> <p>The Sixth Street sewer was constructed in the spring of 1873, under an order of the city council, passed in 1872, by which it was directed to be built from Broad Canal, through certain streets in Cambridge. This sewer has ever since been maintained at the expense of the city. Its outlet enters and discharges into Broad Canal, at the southerly boundary thereof, within the lines of Sixth Street. It also drains a large section of the city.</p> <p>The quantity of discharge from the Hampshire Street sewer has increased continuously with the growth of that part of Cambridge drained by it; but not until within about five years have the deposits in Broad Canal, from whatever source, impaired, to any great extent, the navigation thereof, nor, to any great extent, caused the inconvenience or annoyances complained of. The Sixth and Ninth Street sewers have, to some extent, caused an increase of the deposits and bad odors. Many of the abutters on Broad Canal, holding under the parties to the indenture, have their private drains and privies discharging into the canal. The plaintiffs each have a privy upon their premises, used by their workmen, the contents of which empty into Broad Canal, near the outlet to the Hampshire Street sewer. The amount of the discharges from the above private drains and privies is comparatively insignificant.</p> <p>Sixth Street was laid out in the autumn of 1872, between the plaintiffs’ land and Charles River, crossing Broad Canal, by a draw-bridge built upon piles and with a draw for the passage of vessels therein.</p> <p>The Grand Junction Railroad & Depot Company’s tracks, now the property of the Boston & Albany Railroad Company, cross Broad Canal, between the plaintiffs’ land and Ninth Street, by a bridge built upon piles and having a draw for the passage of vessels therein. The charter and ordinances of the city of Cambridge, and all statutes of the Commonwealth, may "be referred to.</p>

Petition to the county commissioners for a jury to assess damages for the taking of land by the respondent for the purpose of laying out, straightening and altering Alford Street in Charles-town. At the trial before a sheriff’s jury it appeared that a part of the land taken consisted of flats on Mystic River, below high-water mark and within a hundred rods of the shore.

Bill in equity against Hubert Daly, Frances J. Smith, Judson Murdock, Benjamin F. Brown, Charles H. Lewis and Almira H. Lewis, alleging the appointment by the Probate Court of the plaintiff as executor of the estate of John Lewis; that the said executor was authorized by decree of the Probate Court to sell the testator’s real estate for the payment of debts ; that the testator, during the last year of his life, was enfeebled in body and mind, and was thereby rendered…

<p>In an action by a workman against his employer, for personal injuries caused by the fall of a staging upon which the plaintiff was at work repairing a building, the evidence tended to show that the plaintiff went <JP to the staging by the defendant’s direction; that the staging was insecure in consequence of being constructed of unsuitable materials, or by neglect to fasten it together sufficiently; that the staging was built before the plaintiff began work, by persons who were afterwards his fellow workmen; and that the defendant directed what lumber was to be used therefor. It was not contended that the staging was built under the direct personal supervision of the defendant^ but there was evidence that he superintended the work generally. Held, that a jury would be warranted in finding a verdict for the plaintiff.</p>

Contract for the non-delivery of certain stock sold by the defendants to the plaintiff.

<p>Petition for a writ of certiorari, filed November 18,1874, the material allegations of which were as follows :</p> <p>On October 23, 1874, the following petition, signed by five citizens of Hyde Park, and also by George E. Sherman, Rinaldo Williams, and J. Ellery Piper, describing themselves as selectmen of Hyde Park, was presented to the respondents : “ To the honorable county commissioners of the county of Norfolk. The undersigned, selectmen, and others, citizens of Hyde Park, respectfully represent, that the location of River Street in said town is uncertain in several places, and generally needs revision. We therefore pray you to view said street, and relocate the same, as in your judgment the public necessity and convenience may require.” River Street was at this time a public highway, and had been laid out and used as such for one hundred years. The easterly terminus of the street was in the city of Boston, about two miles from the easterly boundary of Hyde Park, through which town it ran for three and a quarter miles, and ended in the town of Dedham, about a mile from the southwesterly boundary of Hyde Park. It was known as River Street throughout its entir« length.</p> <p>On May 15, 1872, the commissioners, after notice, view and hearing, adjudged, by an order reciting the petition, “that the public convenience and necessity require that said petition be granted.” ISTotice was duly given that the commissioners would, on June 20,1872, at ten o’clock in the forenoon, meet at Hyde Park and “proceed to view and relocate said River Street, and estimate damages, if any, take such order in relation to said adjudication as by law they may be authorized to do.”</p> <p>On June 20, 1872, the commissioners proceeded to lay out and locate River Street by courses and distances, and metes and bounds, and in the order of location provided that “ no entry shall be made, or possession taken under these proceedings, upon lands included in this location, between the terminus at the Boston city line and the southwesterly corner of the school-house property upon said River Street, except upon a further and supplementary order and return of the county commissioners, and after giving due notice to the parties interested.” The order further provided that “ the inhabitants of the town of Hyde Park, in which said way is located, do, within three years from the date of this return, complete said way as follows : between Hyde Park Avenue and Arlington Street, within one year ; between Arlington Street and Boston line, two years ; and between Hyde Park Avenue and Dedham line, three years; ” and assessed the expense of the widening upon the town of Hyde Park.</p> <p>The petition further alleged that the commissioners did not relocate the lines of River Street, as prayed for in the petition; but ir jaicl location widened said street, and in many places along said street, for the distance of one mile, took land upon each side of the street, from ten feet to twelve feet outside the old location of said street as existing when said petition was filed, said land having never before been included within the location of said highway ; so that the land damages awarded by the commissioners to the proprietors of said land amount to about §7000; that the commissioners had ordered a change of grade in said street, and at some points had so materially changed the said street and deviated from the original location as in effect to locate a new street and discontinue the old one at such points.</p> <p>The petition further alleged that on November 7, 1874, at a meeting of the inhabitants of Hyde Park, duly called, and in pursuance of an article in the warrant, a committee was appointed with full powers and instructions to avail themselves of all proper means, legal or otherwise, to protect the town against the decree ordering a relocation of River Street; that the committee appeared before the commissioners and admitted that no steps had been taken to do the work ordered to be done, and presented their objections to the proceedings, whereupon the commissioners ordered, on November 12, 1874, that the section of River Street between Hyde Park Avenue and Arlington Street be completed by the commissioners.</p> <p>The reasons assigned in the petition for a writ of certiorari to quash these proceedings were as follows :</p> <p>“ 1. Because the petition upon which said location was made was defective, in that the termini of the street spoken of were not stated or described therein ; and the persons and corporations interested in having notice, could not tell by the petition within three miles where the new location was intended to be.</p> <p>“ 2. Because the defect alleged in the petition was an uncertainty in the old location, and a need of revision, and the prayer was for a relocation, and upon that petition the county commissioners had no authority to widen said street as aforesaid, and take land of abuttors thereon, which land had never been included within the location of said street.</p> <p>“ 3. Because upon said petition the county commissioners had no authority to construct at any point a new road, or materially change the course of the existing highway, or to order any change of grade.</p> <p>“4. Because the county commissioners exceeded the prayer and intention expressed in said petition in ordering the widening of said street and the said change of grade and direction.</p> <p>“ 5. Because no legal and sufficient notice has been given to the persons and corporations interested and entitled to notice, so that they might be present and be heard upon any question of the common convenience and necessity, requiring a widening or other alteration of said street, except to relocate or revise the Imes thereof.</p> <p>“ 6. Because no sufficient notice was ever given the persons and corporations interested of the time, place and subject matter of the further view of the premises, (said by the return of said commissioners to have taken place June 20th, A, D. 1872.) lío abstract of any petition was contained in said notice. And the commissioners had no authority to change the location or widen the street, as aforesaid, upon such notice.</p> <p>“ 7. Because the order of the commissioners, published with said second notice, was that they would proceed to further view the premises, and take such action in relation to said adjudication, as by law they might be authorized to do, but did not designate what of the many things the law allows them to do they intended to do, or upon which parties interested were to be heard.</p> <p>“ 8. Because said original petition purports to be by the selectmen of Hyde Park, and in fact the signers thereof describing themselves as selectmen, viz., Geo. E. Sherman, Rinaldo Williams and J. Ellery Piper, were the whole of the selectmen of said Hyde Park at that time; but said selectmen had no authority whatever to make and present said petition .in behalf of said town; and they soon afterwards, when it became known to the citizens of Hyde Park that such action had been taken by them, persistently refused to call a meeting of the voters of said town to take action against said proceedings by them, although a proper petition was presented to them, calling for such meeting, and when a meeting was duly called, the said selectmen refused to insert an article in the warrant to take action against said petition. And your petitioners say that said Piper, Sherman and Williams admit that as selectmen they had no authority in the premises, and your petitioners aver that by describing themselves as selectmen, (although the requisite number of signers appear upon said petition,) they tended to mislead parties interested, and such petition and unauthorized use of their title tends to great injustice, and the petition is void for uncertainty as to who is the petitioner.</p> <p>“ 9. Because at three several places on said street, the said commissioners, in awarding damages to proprietors of land, have included in their estimation of damages lands which were within the old lines of the street, and for which such adjoining proprietors had no title or claim for damages.</p> <p>“ 10. Because in the location by the commissioners, they describe a new location of said street, from the southwesterly corner of the school-house property, so called, in Hyde Park, to the Boston city line. And they order that no entry be made or pas session be taken under these proceedings of so much of said line, ‘ except upon a supplementary order and return of the commissioners ; ’ but nevertheless, your petitioners were ordered by said commissioners in said original return, and by no supplementary order, to build and complete said way between said points within two years from the date of said return, and the two years have nearly elapsed, and no supplementary order has been issued by the commissioners in regard to said action, and the proceedings by the commissioners were unauthorized and contrary to law; and the commissioners have given no further notice to parties interested of a further view of said sections of the street, and have given no further notice of any hearing to be had thereon.</p> <p>“ 11. Because the said county commissioners do not designate or describe in said notices, orders or decrees, the termini of the road which they proposed to view and widen, or alter the location of, so that interested parties have not been able to tell with certainty by such notices, orders, decrees, &c., what part of said road was included.</p> <p>“ 12. Because it does not appear from the said original petition whether it is a petition for a relocation of the lines of the street-in Hyde Park alone, or of the whole county road called River Street.</p> <p>“ 13. Because the county commissioners have illegally assessed the expense of said widening, &c., upon your petitioners.”</p> <p>The answer of the respondents averred that all their proceedings were in all respects formal, regular and conformable to law; and that the same ought not to be quashed; and that the peti tioners had not filed the petition within a reasonable time.</p> <p>Hearing before Devens, J., who reserved the case for the consideration of the full court on the petition and answer.</p>

<p>Writ of review of a judgment recovered by the defendant in review against the plaintiff in review on the following contract in writing, dated January 22, 1870, and signed by the plaintiff in review and James T. Frary:</p> <p>“ It is agreed between H. A. Lathrop of Sharon, and James T. Frary and Charles W. Russell of New York, that for services heretofore rendered by said Lathrop to said Frary and Russell, they shall procure from the Lamson & Goodnow Manufacturing Company for him a license to manufacture at his said Lathrop’s works, in Sharon, aforesaid, and not elsewhere, and sell three thousand dozens of cutlery, under the patent granted to Joseph W. Gardner in 1859, and assigned to the said company during the unexpired term of said patent; which license the said Lathrop has applied to and requested the said Frary and Russell to procure for him from said company; and further, that they will pay the royalty charged for said license by said company; and they also agree to pay said Lathrop three thousand dollars when and as soon as said company shall have obtained a decree or judgment establishing the validity of said patent; and said Lathrop agrees that he will use his best endeavors to aid in establishing the validity of said patent whenever he shall be called upon to do so by said Frary and Russell, or said company.”</p> <p>Trial in the Superior Court, before Wilkinson, J., who ordered a verdict for the defendant in review; and the plaintiff in review alleged exceptions. The facts are stated in the opinion.</p>

<p>A complaint under the St. of 1869, c. 415, § 44, averred that intoxicating liquors were kept in a certain building in Boston, “ situate on Washington Street, and numbered one hundred and ninety-five and one half on said street in said Boston, and the basement of said building.” The warrant, issued on this complaint, recited the averment of the complaint, and directed the officer to enter the building in the basement herein above described, and make search thereof. Held, that the complaint and the warrant described the place to be searched with sufficient par ticularity to identify it. Held, also, that proof that the basement was under a shop numbered 197 Washington Street did not create a variance.</p> <p>If a complaint and warrant under the St. of 1869, c. 415, § 44, describe the place to be searched as a basement, and liquors are seized in a room under the sidewalk opening into the basement by a door, it is for the jury to say whether the room is a part of the basement.</p> <p>The allegation of the place where liquors are alleged to be kept, in a complaint under the St. of 1869, c. 415, § 44, is a material traversable allegation, and the claimant has a right to require proof of it, and to have the issue submitted to the jury.</p>

<p>A man, when arrested at his house, for an assault upon a young girl, on the day after the offence, was asked by the officer whether the girl had been there, and answered, ‘ No.” The officer then said, “ The more lies told in such cases, the deeper one gets into the mud.” The prisoner then admitted that the girl had been there and that he had given her three cents. Held, that the admission was competent evr dence against the prisoner.</p>

<p>Contract on an agreement, whereby the defendants agreed to secure the right of way for the plaintiffs for their railroad, free of expense to the plaintiffs, from the westerly side of the town farm in Northampton to the western terminus of the road in Williamsburg.</p> <p>After the former decision reported 107 Mass. 525, the parties agreed that judgment should be rendered for the plaintiffs for three fifths of such sum ’as an assessor should find “ the plaintiffs have paid or are hound to pay for their right of way described in the contract,” and that the assessor should report any question of law arising at the hearing, if requested by either party. The assessor made his report to the Superior Court, and the case was tried without a jury, before Aldrich, J., and upon the assessor’s report, which was the only evidence in the case, the judge found that the plaintiffs were entitled to recover the sum of $45,484.29 and interest, and ordered judgment for the plaintiffs for three fifths of said sum; and the defendants alleged exceptions, the nature of which appears in the opinion of the court.</p>

<p>A. made a note, payable to B. in instalments, secured by a mortgage of land. Upon the failure of A. to pay three instalments, B. brought an action at law against him on the note, and attached other property, and afterwards, the fourth instalment not being paid when due, sold the land under a power contained in the mortgage, which authorized him to sell, and out of the proceeds to retain and pay the principal and interest then unpaid on said sums. The proceeds of the sale were insufficient to pay the note in full. B. then brought a bill in equity against A., alleging that A. was insolvent and contended that the proceeds of the sale should be first applied to the payment of the instalments for which the action at law was brought. The bill prayed that B. might be permitted to take judgment in the suit at law for the difference between the whole amount of the note and the amount realized from the sale. Held, that the plaintiff was not obliged to apply the proceeds of the sale to the instalments first due, and that the bill disclosed no ground of relief in equity.</p>

Contract, with counts in tort. The count in contract was as follows: “ And the plaintiffs say that the plaintiffs and the defendants mutually executed and entered into an indenture, a copy of which is hereto annexed ; and were the respective owners of two adjoining parcels of land on the west side of Main Street, Worcester, as in said indenture set forth; that the defendants erected the party wall therein mentioned, but erected the same negligently, improperly and without…

<p>Contract for supplies furnished Christina M. Russell, from March 2,1871, to May 12, 1873. Trial in the Superior Court, without a jury, before Bacon, J., who allowed a bill of exceptions in substance as follows. . ■</p> <p>It was admitted, for the purposes of this trial, that the legal settlement of Russell, at the time the supplies were furnished, was in the town of Hingham; that proper notice was given by the overseers of the city of New Bedford to the overseers of Hingham as required by statute, and that no reply was made by the defendant town within two months from the date of said notice.</p> <p>Upon this state of facts, the plaintiff contended that the only question to be determined was whether or not the supplies were furnished as alleged, and asked the judge to rule that the overseers of the town of Hingham having neglected to reply to said notice, and having made no objection within two months to the request of the plaintiff, by such neglect bound their town to pay for the supplies furnished as alleged in the declaration, if it should be proved that they were so furnished, and that it was not competent for the defendant to prove the ability of the alleged pauper to maintain herself, but that the defendant town had its remedy against Russell.</p> <p>The judge declined so to rule; and, against the plaintiff’s objection, allowed evidence to be given as to the ability of Russell to maintain herself, and whether or not at the time said supplies were furnished she stood in need of relief, and as to the extent of her property and means during the period of relief, and that she held unincumbered real estate in New Bedford to the value of fifteen hundred dollars, besides having other available means. Both parties offered evidence bearing on these points.</p> <p>The judge found, as a matter of fact, that the said Russell was not in need of the relief furnished, and o'rdered judgment for the defendant; and the plaintiff alleged exceptions.</p> <p>The case was argued in October, 1874, and submitted on briefs to the whole court in January, 1875.</p>

Contract to recover $30 deposited by the plaintiff with the defendant. Trial in the Superior Court before Brigham, C. J., who allowed a bill of exceptions in substance as follows : It appeared that the said sum had been deposited with the defendant.

Contract on an account annexed, the first item of which was, “ 1871. July 17. 1 carryall, consigned, $500.00.” The last item was, “ 1871. September 12. 1 carryall, consigned, $500.” The other items were of intermediate dates, and similar in description. The writ described the plaintiff as a corporation duly established by law, and doing business in New Haven, in the State of Connecticut.

Contract on the' following agreement dated January 23, 1872, and signed by the defendant for $5000, and by others : “We, the undersigned subscribers, hereby agree, each with the other, that we will contribute towards any deficiency (should there be any) that may arise towards defraying the expenses of the World’s Peace Jubilee and International Musical Festival, to be held in Boston, commencing on the 17th June and closing on the 4th of July next, in such proportions as the…

Tort for the conversion of certain goods. The case was submitted to the Superior Court, and to this court on appeal, on an agreed statement of facts, in substance as follows: In May, 1872, the defendants brought a suit in the Municipal Court of Boston, against J. F. L. Whitmarsh and Francis T. Irish, auctioneers and commission dealers.

<p>An agreement between A. and B. contained the following terms: A. was to furnish B., a mill-owner, with materials for making goods and with money to pay the men. The goods when manufactured were to be consigned to such person as A. should direct, and the goods in all stages of manufacture, and the proceeds thereof when sold, were to belong to A. The materials furnished and advances made were to be entered on the books of A. against B. At the termination of the agreement A. was to account to B. for all sums expended and received by A., and to pay over to B. in full for his services any balance found over and above the cost and expense of the stock and material, cash advanced, interest, commissions, and certain other charges. B., if requested, was to furnish A. with his notes for his use to an amount not exceeding the value of the stock and materials furnished by A., which notes might be discounted by A. and were to be paid by him when due. It was also agreed that no partnership or agency was to be created, but only an agreement to furnish materials to be manufactured, and an agreement- to manufacture. After this, A. assigned all his property, including the contract with B., to trustees, in trust to convert the same into money and to divide the proceeds, after deducting costa and charges, among A.’s creditors. At the time of this assignment large quantities of stock and materials had been furnished B. and advances made to him, and he had given notes which were then outstanding. There were also goods in the hands of the consignees for sale, and goods in process of manufacture by B. The trustees made advances to have the latter completed, and afterwards received the proceeds of these goods and of those in the hands of the consignees. Held, on a bill in equity brought by the trustees against the creditors, that the holders of B.’s notes were not entitled to be first paid out of the proceeds of the goods manufactured by him.</p>

<p>On the issue whether the conveyance of a parcel of land was void, as being in fraud of creditors, evidence that the grantor made a mortgage of personal property some months after the conveyance, and that it covered all the property of the grantor then subject to be taken on execution, is competent to show the amount of the grantor's property at that time, and has some tendency to show his condition as to solvency at the time of making the conveyance in question.</p> <p>On a writ of entry to determine the issue whether the conveyance of a parcel of land was void, as being in fraud of creditors, a bill of exceptions stated that the demandant put in evidence, subject to the tenant’s exception, the declarations of the grantor in relation to his title made after the date of the deed. Meld, that the bill disclosed no ground of exception.</p> <p>On the issue whether the conveyance of a parcel of land was void, as being in fraud of creditors, evidence of the general reputation, as to credit and pecuniary responsibility, of all the parties to the transaction, is admissible.</p>

<p>Contract to recover the amount of a tax paid under protest. The nature of the case appears in the opinion.</p>

Bill m equity to redeem land from a mortgage. The case was referred to a master, whose report, so far as material to the questions presented to this court, was as follows : On June 11, 1868, Bradford Stetson made a mortgage of the real estate, described in the plaintiff’s bill, to the defendant, his father. The wife did not join in the mortgage in release of her right of dower and homestead.

Writ oe entry to recover land in Mansfield. Plea, nui disseisin. Trial in the Superior Court, before Putnam, J., who allowed a bill of exceptions in substance as follows : It was admitted that the tenant was the owner of one undivided half of the premises. The other half formerly belonged to Mary Skinner, who was the mother of the parties, and through whom they claimed.

<p>Contract upon a promissory note for $1300, signed by “ The Salem and New York Express Steamship Corporation by J. H. Webb, Trs.,” payable to the order of the corporation three months after date, and indorsed to the plaintiff. The case was heard in this court upon the following agreed facts:</p> <p>On May 31, 1871, John Daland, Walworth S. Crane, Willard P. Phillips, Charles H. Price and others, associated themselves together, by an agreement in writing, with the intention of organizing a corporation under the St. of 1870, e. 224, to be established at Salem, for the purpose of doing business as a common carrier between the cities of Salem in this Commonwealth, and New York, by the name of “ The Salem and New York Express Steamship Corporation,” with a capital of $35,000, to be divided into three hundred and fifty shares of the par value of $100 each.</p> <p>A meeting for the purpose of organizing such corporation, and the transaction of any other business connected therewith, was held upon May 8, 1871, at which a board of seven directors, a clerk and treasurer, were duly chosen, and by-laws were adopted. On July 17, 1871, a certificate was made, signed and sworn to by the president, treasurer and a majority of the directors, setting forth a true copy of the agreement of association, and the names of the subscribers thereto, the date of the first meeting and the adjournment thereof. This certificate, together with the records of the corporation up to that time, was submitted to the commissioner of corporations, and the same were duly approved by him, and on July 19, 1871, the Secretary of the Commonwealth issued to the corporation a certificate of its organization and establishment.</p> <p>The full amount of $35,000, or three hundred and fifty shares named and fixed in the said agreement of the company, was never subscribed, but only the sum of $25,700, or two hundred fifty-seven shares, and of the amount subscribed only $25,600 was ever paid in. The corporation commenced business before the full amount of the capital stock was subscribed, and before the full amount had been paid in, no certificate according to the St, of 1870, e. 224, § 32, having then or since been filed.</p> <p>Certificates were duly made and filed in 1872 and 1873, in accordance with the provisions of § 33, of the said act. Upon June 22, and before the capital stock had been fully paid in, the corporation commenced a negotiation for the purchase of a steamship, and paid certain moneys on account thereof. All the defendants named in the plaintiff’s writ subscribed for stock in the corporation.</p> <p>The consideration for the note declared on was the furnishing of provisions to the corporation for use upon its steamships in the prosecution of the business thus commenced; and the note was duly indorsed to the plaintiff by the payee. 0</p> <p>The plaintiff contends that the defendants were prohibited by statute from doing business as a corporation at the time that the indebtedness, for which this note was given, was incurred; and that the defendants are liable to the plaintiff as partners. The defendants object to the introduction of any of said facts in evidence, and deny that they are liable in any way to the plaintiff.</p> <p>If upon these facts, or such of them as may be competent, the plaintiff can maintain its action, judgment is to be rendered for it against such of the defendants as have signed this statement: if not., then judgment for the defendants.</p>

<p>Contract on a policy of fire insurance. Trial in the Superior Court before Dewey, J., who, after verdict, reported the case for the consideration of this court. The nature of the case appears in the opinion.</p>

Three bills nsr equity, to redeem three parcels of land in that part of Boston formerly Roxbury, from mortgages made by Alonzo Dexter to Otis Shepard. Hearing before Wells, J., who made a report in substance as follows : The mortgage in the first and second case was to secure the sum of $2500, and, in the third case, the sum of $900.

<p>Tout for conversion of the plaintiff’s goods.</p> <p>At the trial in the Superior Court, before Putnam, J., the defendant admitted that the articles named in the plaintiff’s writ were the property of the plaintiff, and that he took them from her house; but alleged in defence that he took them, with other furniture, as the property of one Jenkins, by virtue of a writ in favor of Teller against the said Jenkins. He testified that he went to the house, with a keeper, for the purpose of making the attachment; that the plaintiff at first refused him admittance "but that he finally gained it, as he alleged, in a peaceable mantw After entering he told her that he was an officer, showed her the writ, and said he had come to attach the furniture of Jenkins, which was there. The plaintiff replied that she owned all the goods there, and told him not to take them; if he did, he would suffer for it; to which the defendant replied that he had no desire to take her goods, that he did not come there for that purpose, and if she would be kind enough to tell him which were her goods he would not take them. She replied that she should not give him any information as to what were her goods and what were not. The defendant then said that he should use his own judgment, as he was satisfied that there were goods there belonging to Jenkins. He thereupon attached them, and put his keeper in possession. The plaintiff, immediately after his first entry, had locked the door through which he entered, and taken the key, and refused to let him go out, and he left the house through an open window. This was not later than half-past nine in the morning. In the afternoon, between four and five o’clock, he returned to the house with a horse and wagon to take away the goods, but was again refused admittance by the plaintiff, and thereupon he went and procured the services of a locksmith, who picked the lock, and he entered and removed the goods, taking with him the goods in controversy.</p> <p>The goods which the defendant attached as the goods of Jenkins were in the parlor on the first floor of the house, in which were also some of the goods in controversy, all of which were taken away by the defendant. The defendant also attached, as the property of Jenkins, and took away other goods of the plaintiff, which he now concedes to be the property of the plaintiff, which were in a chamber on the second floor, being, substantially, everything in the chamber, the door of which was unlocked by the locksmith whose services had been procured by the defendant Before he removed said goods from the chamber, he asked the plaintiff to tell him which were hers and which were Jenkins’s goods, but she refused to give him any information about it, except that he must proceed at his peril. It was agreed that the nlaintiff hired this house and was the only tenant of it; and that, -it this time, Jenkins with his wife, a sister of 'the plaintiff, were temporarily residing with the plaintiff.</p> <p>The defendant offered no evidence to show that any of the goods which he attached were in fact the property of the said Jenkins, but only that he attached them, under the writ, as his property. The presiding judge ruled that the defendant was not justified in taking this property, which he now conceded belonged to the plaintiff, and for which this suit was brought, and the case was then, by consent of parties, withdrawn from the jury and reported for the determination of this court, upon the correctness of this ruling. If the defendant was so justified, judgment was to be entered for him ; if not so justified, the case to stand for trial.</p>

<p>If a person, to save his property from being sold on legal process, pays a debt which another is legally bound to pay, he may maintain an action against such other person upon an implied assumpsit.</p> <p>A bill of exceptions, in a case tried without a jury, stated that A. made a contract with B. to furnish the labor and materials for building a house on A.’s land; that B. employed C. and neglected to pay him; that C. then brought an action to enforce a lien upon the land for his labor, and obtained a verdict in his favor; that</p> <p>B. knew of the proceedings and testified at the trial; that A. then paid C. the amount of the verdict and costs, and also paid a certain sum for counsel fees; and that the judge, upon the foregoing facts, ruled that A. was entitled to recover the amount of the verdict without costs or counsel fees. Held, that the decision of the judge in matters of fact was conclusive, and that there was nothing in the bill of exceptions to show that he erred in matter of law in holding that the costs and counsel fees should be disallowed.</p> <p>A. made a contract with B. to build a house on A.’s land. B. employed C. to do the plastering and brick work, and C. hired D. as a workman. B. afterwards gave</p> <p>C. an order on A. for $200, “ on account of plastering,” which A. paid, and took a receipt from C. for the money “ on account of work done.” The whole bill for plastering was $224, and the bill for brick work was $518 C. sued B. and credited him with the $200 generally. D. enforced a lien on A.’s land for labor in plastering. A. then brought an action against C. for the $200, on an alleged promise to pay the workmen on the building. The judge before whom the case was tried, without a jury, ruled on the above facts, that the plaintiff could not recover. Held, that the plaintiff had no ground of exception.</p>

<p>Information in equity, filed August 16, 1867, by the attorney general, in behalf of the Commonwealth, to restrain the construction and compel the removal of a projection or structure in front of the defendant’s house on Commonwealth Avenue in Boston.</p> <p>Hearing upon information, answer, replication and proofs before Colt, J., who made a report to the full court, referring to the information and answer as parts thereof, reserving all questions as to the form of the proceeding and the parties thereto, and by which it appeared that the following facts, alleged in the mformation, were admitted by the defendant:</p> <p>The Commonwealth in and before 1856 was seised of certain lands in the Back Bay in Boston, formerly covered by tide water. By the Resolve of 1856, c. 76, the Legislature appointed a committee with full authority, subject to the approbation of the governor and council, either to release, upon such terms and conditions as they should think fit, the right, title and interest of the Commonwealth in and to any and all of the lands in the Back Bay, or “ to devise plans for the improvement of said territory, or any part thereof,” and adjust and compromise all differences, disputes and claims with any parties interested, or claiming any right, title or interest, in any lands in the Back Bay.</p> <p>The committee appointed under that resolve devised a scheme for the improvement of said lands, and 'a plan of the premises was prepared and approved by the committee, and copies thereof filed in the registry of deeds on September 2, 1858, and with this information. One of the contemplated streets laid out on that plan was called Commonwealth Avenue, beginning at the street west of the Public Garden, called Arlington Street, and extending westwardly a mile and a half towards Brookline, two hundred feet in width, with ornamental spaces in the middle thereof one hundred and twelve feet wide, and with spaces twenty feet in width left open for turf and shrubbery upon the front of the lots. And the committee devised, as part of said scheme, that all houses built upon this avenue should be set back twenty feet from the front lines of the lots, and that spaces twenty feet in width should be left open for turf and shrubbery in front of the houses.</p> <p>On December 27, 1856, an indenture between the Commonwealth and the Boston Water Power Company, a corporation largely interested in adjacent lands, was executed and acknowledged by that corporation, and by the legislative committee and the commissioners on the Back Bay in behalf of the Commonwealth, and presently afterwards approved by the governor and council, and such approval certified, by their direction, by the secretary of the Commonwealth upon the indenture, and the same recorded in the registry of deeds. By that indenture, provision was made for filling up the lands in the Back Bay with earth and gravel; it was agreed that Commonwealth Avenue should be laid out of the clear width of two hundred feet, of which not less than forty-four feet on each side should be appropriated and used as a street, part to be roadway and part sidewalk, and to remain forever open and unobstructed; and the centre, one hundred and twelve feet in width, “ be appropriated for a walk, the planting of trees, shrubbery and grass, and otherwise ornamented, so as to exclude carriages, horses, and other vehicles and animals from the same, excepting when intersected by streets or avenues ; ” it was further agreed by the parties to the indenture that buildings “shall never be erected on the lots belonging to either party bounding on said avenue, any part of which buildings shall be within the distance of twenty feet from the front line of such lots; provided, however, that fences may be erected and maintained on the said front line of said lots, and steps and other usual projections from the fronts of said buildings may be made within said distance of twenty feet from said front line ; ” the Commonwealth covenanted to lay out, and did thereby lay out, “ so much of said avenue herein described, of the width of two hundred feet, as passes through the land belonging to said Commonwealth ; that neither said Commonwealth nor its assigns shall ever erect, or cause to be erected, any building on the lots bordering on said avenue, within twenty feet from the lines thereof on either side; and that said avenue shall be kept open and used for the purposes and in the manner hereinbefore mentioned and described, forever;” and the Boston Water Power Company made like covenants with respect to so much of the avenue as passed through its lands.</p> <p>On May 2, 1860, the Commonwealth conveyed a parcel of land, with a front of three hundred and thirty-four and a half feet, on the northerly side of Commonwealth Avenue, between Arlington and Berkeley Streets, and bounded by Berkeley Street on the west, to Samuel Hooper, by warranty deed, referring to said plan, and “ subject to the provisions hereinafter contained: ”</p> <p>“ Said premises to be filled up by the Commonwealth to a level not more than four feet below the level of the mill dam, as fixed by the top surface of the hammered stone at the southeasterly corner of the emptying sluices.</p> <p>“ This conveyance is made upon the following stipulations and agreement: That any building erected on the premises shall be at least three stories high for the main part thereof, (or two stories with a Mansard roof,) and shall not in any event be used for a stable, except a private stable, or for any mechanical, mercantile or manufacturing purposes; that the front wall thereof on Commonwealth Avenue shall be set back twenty feet from said Commonwealth Avenue ; provided that steps, windows, porticos and other usual projections appurtenant thereto are to be allowed in said reserved space of twenty feet. That the streets in said Back Bay, on which said premises bound, shall be filled up and graded, and the curb-stones set, and the gutters thereof paved by the Commonwealth, and that the same shall be forever kept open to be used for all the purposes for which public highways may be lawfully used, except horse railroads ; provided, that the owners of said lands for the time being shall have the right to cultivate trees in the sidewalks, in front thereof, leaving a distance of not less than ten feet between the front lines of the lots and such trees. That no cellar or lower floor of any building shall be placed more than four feet below the level of the mill dam, as fixed by the top surface of the hammered stone at the southeasterly corner of the emptying sluices.</p> <p>“ And said Commonwealth reserves the right to enter upon the premises by its agents, and at the expense of the party at fault, to remove or alter, in conformity with the above stipulations, any building or portion thereof which may be erected on the premises by the said grantees, or their representatives or assigns, in a manner or to a use contrary to the above stipulations.”</p> <p>A part of this parcel, with a front of fifty feet on Commonwealth Avenue, was conveyed by various mesne conveyances to Thomas F. Cushing, who on September 11, 1866, conveyed it to the defendant, subject, by the terms of each of these conveyances, “ to all the stipulations, agreements and restrictions contained in said Commonwealth’s deed to Hooper, reference to which is hereby had.”</p> <p>The Commonwealth also sold a considerable number of lota upon Commonwealth Avenue, between the parcel conveyed to Hooper and Arlington Street, to divers purchasers, by deeds similar in all respects to the deed to Hooper, and the conditions, restrictions and reservations in which are still in force; and the Commonwealth has other lots on said avenue which' it desires tc sell.</p> <p>The defendant objected to the admissibility of the indenture between the Commonwealth and the Boston Water Power Com- . pony to affect the rights acquired by him under his deed ; and it was admitted in evidence, saving his exception thereto.</p> <p>The information alleged that the defendant had commenced the erection of a dwelling-house upon his land, “ and has not left the said reserved space of twenty feet in front thereof upon said lot open and clear, and free from unusual projections and structures ; but has commenced the erection, in said reserved space of twenty feet, of a substantial and unusual brick projection and structure, extending and projecting from said dwelling-house to' the front of said lot upon the line of Commonwealth Avenue, and of the height of several feet, the same not being designed for steps, windows, porticos or other usual projections appurtenant thereto, greatly incumbering and filling said reserved space, destroying the uniformity and diminishing the beauty of said street, and in violation of the terms of said deed of the Commonwealth to Samuel Hooper, causing great complaint on the part of the owners of other lots upon said street, and injuring and reducing the market value of the remaining lots of the Commonwealth thereon ; ” and that on June 27, 1867, the commissioners on public lands, in behalf of the Commonwealth, requested the defendant to remove the said projection and structure, or so to change the same as to conform to the terms of said deed, but he neglected and refused to comply with the request.</p> <p>The defendant in his answer “ admits that he has erected a dwelling-house on his said lot; but denies that he has not left a space of twenty feet in front thereof open and clear (except from the usual projections allowed by the deeds under which he claims) for turf and shrubbery, and free from any unusual projection or structure, inconsistent with, or restricting the use of said space for turf and shrubbery; and he denies that he has commenced the erection of any such unusual projection or structure, as is alleged in said bill, but admits that, in the filling up of his lot, (which, when conveyed to him under the deeds aforesaid, was several feet below the level of the street, and was so left by the Common ■ wealth to be filled up by the purchaser to such grade as might be found convenient for his building,) he filled and raised the said space to a height about three feet above the existing level of said street, and that the said filling and raising was partly with brick, covered with earth, for the accommodation of coal-bins beneath the surface of said space allotted for turf and shrubbery; and he denies that such coal-bins are an unusual projection to buildings for domestic use, or that they incumber or fill up the space reserved as aforesaid for turf and shrubbery, or that such raising of the said space as aforesaid diminishes the beauty of said street, or destroys the uniformity thereof, (except so far as absolute uniformity of building, not prescribed by any deed, law or order, may be lawfully, properly and tastefully departed from,) or causes any just complaint from the owners of other lots, or diminishes the market value of any remaining lots of said Commonwealth; and further he denies that the said raising, of the surface of the ground, and the said filling up below such surface, in the manner and for the purpose aforesaid, violate the terms of said deed to Hooper, or constitute any unusual projection within the meaning of said deed. And he admits that after the filling up as aforesaid with brick, for coal-bins, was entirely completed, and it remained only to cover the same with soil for turf and shrubbery,” he received from the commissioners on public lands a notice informing him that some of the abutters on Commonwealth Avenue had made complaint in regard to certain obstructions on the “ reserved space ” fronting the building being erected by him, and the commissioners believed “that those, obstructions violate the conditions of the deed made by the Commonwealth,” and required him to remove them, or to so change them as to conform to those conditions; “ and that he has not complied with the requirement thereof to remove or change what are therein called obstructions, meaning the filling up and raising aforesaid, which could not then be removed or changed without great expense, nor without great damage to the general appearance of the building, and to the beauty and uniformity of the street.”</p> <p>The residue of the judge’s report was as follows: “ It was also admitted that the said land of the defendant was filled by the Commonwealth to a level six feet below the level of the street. It appeared that in the fall of 1866 the defendant began, and has since completed, the construction of a dwelling-house to be occupied by himself on his said land, in accordance with certain plans prepared by architects; that the front wall of said house is set back at the proper distance from the line of Commonwealth Avenue; that in front of said house, and extending from said front wall to the line of the street, there is what is known in architecture as a terrace, or raised garden for grass and shrubbery, being an embankment three and one half feet high above the general level of the sidewalk, surrounded on the front and easterly side by a solid stone wall eighteen inches in thickness, and rising about ten inches higher than the turf of said terrace, (not, however, forming part of the front wall of said house,) and on the westerly side by the steps of said house ; that below the surface of said terrace, and rising two feet and four inches above the level of the sidewalk, are brick coal-bins, constructed in the usual manner, the space from the top of said bins to the surface of said terrace being filled with earth; that in the surface of said terrace there are three apertures of the size of ordinary coal-holes, communicating with the coal-bins below, the covers of said apertures being Hyatt lights, so called, and also a fourth aperture near the house, two feet square, covered by a Hyatt light, for lighting the larder below said terrace, and that there are also coal-holes communicating with said bins by a channel sloping backward towards the house, in the sidewalk in front of said house.</p> <p>“ The judge found as a fact that such terraces are a common architectural device in building in the country; that they are not usual on level ground in the city; that it was not shown that there is any other instance of such a terrace on the Back Bay; that all the reserved spaces in front of the other houses on said avenue rise to a height of three or four inches from the line of the sidewalk, at the sidewalk, and slope upward towards the houses to a height at the house of nine to twelve inches above the sidewalk, to prevent the water from being thrown towards the building; that it is usual in the vicinity of this house to construct coal-bins and larders like those of the defendant, except as to height, beneath the reserved spaces in front of said other houses, and on the Commonwealth lands on the Back Bay. But the plaintiff objected to the introduction of any evidence relative t<r building beneath said reserved spaces, as immaterial.</p> <p>“ It appeared that steps are universally built in said reserved Epaces, and that it is common to use all the space beneath the steps as cellars or rooms for various purposes; that it is not unusual for two adjoining owners of houses on said avenue to build a common flight of steps, often of the width of eighteen or twenty feet; and that the steps of the house in question rise from the sidewalk to the height of seven feet at their junction with the house.</p> <p>“ It further appeared that it is usual to mark the front line of the lots on said avenue, and also the line of division between the adjoining lots, by fences or walls; and that, in the opinion of experts, neither said fences or walls, nor said terrace, form a part of the front wall of said building, or are projections from the wall or building.</p> <p>“ The case is reserved for the consideration of the full court, for such order or decree as may be required.”</p>

Contract on the following agreement signed by the defendant : “ Boston, June 9, 1873. Agreed to let to T. W. Townsend store No. 14 Nickerson Wharf, and the wooden building adjoining, (which he has occupied for some months past,) for the term of one year from May 10, 1873, with the privilege of two years; rent to be paid quarterly in advance, at the rate of seventy-five dollars for each quarter.

Petition under the Gen. Sts. c. 134, § 49, to compel the respondent to bring an áction to try his alleged title to a parcel of land in Boston. The answer denied that the petitioner ever had been in actual possession of the land described in the petition, taking the rents and profits' thereof; and averred that the respondent owned a part of the land in fee, and claimed a right or easement in common with the petitioner over the residue.

Petition, filed April 1,1873, under the Gen. Sts. e. 134, § 49, to compel the respondent to bring an action to try his alleged title to a parcel of land in Boston. The answer disclaimed title as to a part of the described premises; and, as to the residue, denied the seisin and possession of the petitioners, and alleged that the respondent was seised and possessed thereof.

Tort for personal injuries occasioned by a defect in a highway. At the trial in this court, before Undieott, J., the defendant contended that the defect was situated within the limits of an approach to a bridge built by a railroad corporation as part of a highway.

<p>Bill in equity by the administrators of the estate of Cyrus Wakefield, for the specific performance of a written agreement, made at a sale by auction by the plaintiffs under a license from the Probate Court, by which the defendant agreed to purchase a parcel of land in Boston, known as the Studio Building estate.</p> <p>The answer set up that by the terms of the sale the purchaser was to have until a certain date to examine the title, and that “ if it shall appear that any material act or thing is necessary to be done or performed, in order to perfect the title to said premises, which the seller is unable to do or perform within a reasonable time, not exceeding sixty days from date hereof, then the sale shall be void, at the option of either party; ” and alleged the following defects in the title, which had not been remedied by the plaintiffs within the time specified:</p> <p>1. That one undivided third part of said estate was at one time owned by Frances G. Fessenden; and said Frances being about to be married to Clarence Gordon, an antenuptial settlement was made by an indenture dated May 1, 1861, and executed at or about that time, between her as party of the first part, John M. Fessenden, Clarence Gordon and John B. Fessenden of the second part, and said Clarence Gordon of the third part, in which indenture, after a recital of the contemplated marriage, Frances conveyed to the parties of the second part said one undivided third part of said estate, to have and to hold upon certain trusts and to certain uses and with certain powers, provisos and agreements, set forth in said indenture in the following words: “ To have and to hold the said granted premises to them, the said John M. Fessenden, Clarence Gordon and John B. Fessenden and their assigns, and to the survivors and survivor of them, his heirs and assigns, but in trust, nevertheless, for the uses and purposes hereinafter set forth and declared :</p> <p>“ First. Until the solemnization of the said intended mar riage, to the sole use of the said Frances G. Fessenden, her heirs and assigns.</p> <p>“ Second. From and after the solemnization of the said intended marriage, and during the coverture of the said Frances G., to hold the said real estate and personal property, and to manage the same according to their best judgment and discretion, and to receive the rents, profits and income of the same, and after paying all expenses incident to the said property, and to the execution of the said trust, to pay over the residue of said rents, profits and income to the said Frances G., upon her sole and separate receipt, free from the control or interference of her husband.</p> <p>“ Third. Upon the decease of the said Clarence Gordon, during the lifetime of the said Frances G., to convey, transfer and assign all the said trust estate and property, however the same may be invested, to the said Frances G., to hold to her, her heirs and assigns, free and discharged from the trust hereby created.</p> <p>“ Fourth. In case of the decease of the said Frances G. in the lifetime of the said Clarence Gordon, to hold the said trust estate and property to and for the use of such persons as the said Frances G. shall direct and appoint by her last will and testament, or by any instrument in the nature of a last will and testament, (which, notwithstanding her coverture, she is hereby authorized and empowered to make,) and the same to convey to such persons, for such estates, in such manner and subject to such limitations as the said Frances G. shall thus direct and appoint.</p> <p>“ Fifth. But in case of decease of the said Frances G. in the lifetime of the said Clarence Gordon, leaving no such will,, and having made no such testamentary appointment, then to hold the said trust estate and property to and for the use of any child or children of the said Frances G., then living, and of the issue of any deceased child, by right of representation, until the arrival of such child or children at the age of twenty-one years; and upon the arrival of such child or children, (if more than one,) respectively, at the age of twenty-one years, to pay over to him, her or them, respectively, their several shares of the said trust estate and property ; and in case of the decease of any such child or children, leaving no issue, to hold the share of such deceased child in the same manner to and for the use and benefit of the surviving children of the said Frances G., the issue of any deceased child in all cases taking the share of the deceased parent by right of representation.</p> <p>“ Sixth. In case of the decease of the0said Frances G. in the lifetime of the said Clarence Gordon, leaving no will or testamentary appointment, nor any issue living at her decease, or in case of the decease of all the children of the said Frances G. under the age of twenty-one years, leaving no issue living, to hold the said trust estate and property to and for the sole use of the heirs at law of the said Frances G. and their heirs and assigns forever.</p> <p>“ And whereas a sale of said trust estate, or of some part thereof, or a change of investment of the said personal property may become expedient, it is hereby expressly agreed that such sale or change of investment may be made by the said trustees at any time whenever they shall deem it expedient, provided always that such sale of the real estate, if made during the lifetime of the said Frances G., shall be made with her consent, testified by her joining in such conveyance ; and upon such sale the said trustees are authorized to make, execute and deliver good and sufficient deeds to convey the same to the purchaser or purchasers; and such purchaser or purchasers shall not be bound to see to the application of the purchase money. And upon such sale and conveyance the said trustees shall invest the net proceeds in such other real estate or personal property as they shall deem best, and as the said Frances G. shall in writing direct, to be held upon the same trusts and for the same uses and purposes and subject to the same limitations as are herein set forth and declared of and concerning the estate and property hereby conveyed.</p> <p>“ And whereas the said real estate hereby conveyed is subject to certain mortgages, and it may be necessary and expedient, in case payment of the same shall be demanded, to raise money for that purpose by a new mortgage or mortgages of the said land and real estate, or of a part thereof : now, therefore, full power and authority is hereby given to the said trustees to mortgage the said real estate, or to join with the owners of the other undivided portions thereof in any mortgage for the purpose of raising such sum or sums of money as may be necessary to discharge the present existing mortgages, or any of them; and such mortgage so made to secure the note or bond of the said trustees, or of the said Frances G., or of the said Clarence Gor> don, shall constitute a good and valid lien on the said real estate. In case of the decease, resignation or removal of either of the said trustees during the lifetime of the said Frances G., a new trustee shall be appointed by her to fill the vacancy; and in case such vacancy shall occur after the decease of the said Frances Gr., such new trustee shall be appointed by the surviving or remaining trustees, subject to the approval of the judge of probate for the time being of the county of Norfolk; and in either case all such conveyances and transfers shall be made as shall vest the trust estate and property in such new trustee jointly with the surviving and remaining trustees, and thereupon the new trustee shall have and exercise all the powers and perform all the duties belonging to and imposed upon the trustees herein named. No trustee under this indenture shall be liable for any loss, except such as shall be caused by his own wilful default and negligence. It is understood and agreed that the said trustees may, with the consent and approval of the said Frances G., appoint the said Clarence Gordon to be their agent in the management of said property and estate, with the right, however, to revoke such appointment at their pleasure. The said parties of the second part hereby signify their acceptance of the said trust, and the said party of the third part declares his assent to the provisions of this indenture.”</p> <p>o The answer then alleged that afterwards John B. Fessenden died, and John M. Fessenden and Clarence Gordon, surviving trustees under the indenture, together with Frances G. Gordon, in token of her consent to'the conveyance, and with Mary B. Fessenden, claiming to be seised in fee simple of another undivided third .part of said real estate, and Guy M. Fessenden and Charles T. Child, trustees under the will of John B. Fessenden, claiming to be seised in fee simple of another undivided third part of said real estate, by deed dated April 18, 1863, conveyed, or attempted to convey, said estate to Amos B. Merrill and William I. Bowditch, from whom the said1 Cyrus Wakefield derived his title thereto by deeds, none of which contained covenants of warranty, except against the grantors’ own acts; and that said John M. Fessenden and Clarence Gordon, as surviving trustees, had no power or authority under said trust indenture, or otherwise, to convey the undivided third part of said estate conveyed to them and John B. Fessenden by said indenture.</p> <p>2. The second defect alleged was that John B. Fessenden died seised in fee of another undivided third part of said estate, having made his will and a codicil thereto, by which he devised an undivided third part of nearly the whole of said estate to Guy M. Fessenden and Charles T. Child, as trustees, and requested that they “ be exonerated and excused from giving any bonds,” and gave them full power and authority to sell and convey real estate in fee simple, and also appointed them executors of his will, but gave them no power, as such executors, to sell real estate; that said will was duly proved on August 16, 1862, in the Probate Court for the county of Norfolk, and letters of executorship issued to them on said day; that said executors, although they never obtained any license to sell real estate, charged themselves in an account, filed by them in the Probate Court for said county on November 24, 1866, with the proceeds of the sale of said undivided third part, and credited themselves with a portion thereof as applied to the payment of the bills of the deceased and the charges of administration, and with $10,000, as paid to the trustees under said will, leaving a balance in their hands of $7093.09; that on said November 24, a letter of trusteeship under the will of John B. Fessenden issued to Guy M. Fessenden and Charles T. Child, as trustees thereunder, and on April 2,1867, they filed an inventory of the property which came to their hands as such trustees, and that said inventory, being the only inventory filed by them as trustees, contained no real estate, but only personal property, amounting at the estimated value to $17,093.99, being about the amount of said $10,000, and of the above-named balance of $7093.09 added together; that Guy M. Fessenden and Charles T. Child, professing to act as trustees under said will of John B. Fessenden, but previously to their being appointed trustees by said Probate Court, namely, on April 18, 1863, conveyed or attempted to convey said other undivided third part of said estate to said Merrill and Bowditch, by the deed above referred to; and that said Cyrus Wakefield, deceased, derived his title to said last mentioned undivided third part from said Merrill and Bowditch, by divers mesne conveyances, none of which contained any covenants of warranty, except against the grantors’ own acts.</p> <p>The case was heard on bill and answer by Ames, J., who reserved it for the consideration of the full court.</p>

<p>Contbaot upon the following agreement in writing, signed by J. C. Rogers & Co., merchandise brokers :</p> <p>6 Boston, Feb. 9, 1872. Sold to Messrs. Thacher & Co., for account of Messrs. I. G. Whitney & Co., 250 bales gunny bags to arrive at New York or Brooklyn from Calcutta per ship British Monarch, and to average by invoice 440 lbs. gross per bale or no sale, buyer’s option. To be decided on receipt of invoice at llr cents per bag gold in bond cash. To be of merchantable quality and deliverable sound and in good order from ship. It is guaranteed by sellers that duty on above bags shall not exceed two cents per lb. gold under present tariff.” The contract was accepted by the defendants in writing across its face.</p> <p>At the trial in the Superior Court, before Bacon, J., it was admitted that the defendants entered into the contract with the plaintiffs through J. C. Rogers & Co., merchandise brokers, of New York; that the ship British Monarch, with the 250 bales of gunny bags on board, consigned to the plaintiffs, arrived in New York on June 4, 1872 ; that the plaintiffs thereupon entered the merchandise at the custom-house, and procured the usual permit to land the goods, and sent an order on the ship for their delivery to the defendants, and procured the same to be landed and placed in a bonded warehouse, and took out a warehouse receipt in the defendants’ names and delivered the same to the defendants, and that the duty on said merchandise did not exceed the rate named in the contract; that all this was done in accordance with the custom of merchants in the port of New York applicable to sales of this nature, and the whole completed and the warehouse receipt delivered on or before June 7.</p> <p>The bill was presented to the first named defendant, who desired further time, as he was going out of town. The plaintiffs did not assent to this, and in his absence procured from the defendant firm the storage receipt and an order on the warehouse for the goods, which order was sent to the warehouse. At the same time, a note was written to the first named defendant, saying that when he returned he could take up the storage receipt and pay the bill. On the return of the first named defendant, he refused to have anything more to do with the matter.</p> <p>There was evidence tending to show that the average invoice weight of the bales exceeded 440 pounds per bale, and averaged about 450 pounds per bale. The defendants contended that the plaintiffs must show a tender of goods corresponding with those described in the contract, or something which would excuse them from making such tender.</p> <p>Upon the question of damages, the plaintiffs introduced testimony to show that the true market value of the bags in gold in bond at the time of the defendants’ refusal to pay the bill on June 20, and also on June 27, when they refused to comply with the contract, was from 3 to 3J cents gold per bag less than the contract price. And this they claimed as the measure of dam ages. Among the other witnesses to this point the plaintiffs called two witnesses, who both testified that they were, and for seven or eight years last past had been, merchandise brokers in Boston, and members of firms which had houses established in Boston and New York, and that they were conversant with the market value of sales of gunny bags in the New York market during said time from daily price current lists and returns of sales daily furnished them in Boston from their New York houses; whereupon the defendants’ counsel objected to their competency as witnesses to testify to the market value of gunny bags in the New York market at the time aforesaid; but the judge permitted them to testify.</p> <p>These witnesses testified that there were no actual sales of gunny bags in the New York market during the month of June, 1872; but the price for which they were offered was 14 cents per bag in currency, duty paid by the seller, which, taking the then price of gold at 114 currency, would make the value of gunny bags at that time from 8 to 8£ cents per bag gold in bond cash. To this evidence the defendants’ counsel objected, but the judge admitted it.</p> <p>The defendant requested the following among other instructions: 1. The plaintiff must show a tender of goods which correspond in weight with those specified. If these averaged more than 440 pounds per bale, the plaintiffs cannot recover. 2. There is no evidence of the value of similar goods, in bond and for gold, therefore the damages must be nominal. The judge refused to give these instructions.</p> <p>Instructions were also requested on the question whether the contract had been rescinded. The judge instructed the jury that it was a question of fact whether the parties intended to rescind the contract. Exceptions were taken to the refusals to give the instructions requested on this point, which were waived at the hearing in this court.</p> <p>On the other question at issue, the judge instructed the jury as follows : “ The language of the contract is ‘ to average by invoice 440 pounds.’ This means that it was to average 440 pounds, but not that it shall exactly average that amount. I suppose that it might be impossible to fulfil a contract with regard to a large number of bales of goods like these, and make the average exactly 440 pounds. But the contract means that they shall at least average 440 pounds, and without any unreasonable excess of that amount. It would not do to put in bales that weighed 10,000 each, perhaps. But it appears by the invoice that the bales in this case average not quite 450 pounds. I instruct you that that is not such an excess as will avoid the contract. If you . find a breach of the contract, the damages will be the difference between the price named in this contract, which is 11J cents in gold, and the fair market value in gold; and this contract being a contract payable in gold, you will return your verdict in gold, and so specify in your verdict, whatever sum you name.”</p> <p>The jury returned a verdict for the plaintiffs; and the defendants alleged exceptions.</p>

<p>The general agent of an insurance company gave a receipt to A. acknowledging the receipt of a certain sum and agreeing, if the application was approved by the company, to furnish a policy to A. from the company within thirty days’ time, “ or if tne application is declined, to return the above amount to him or his order, on demand and return of this receipt; it being expressly understood and agreed that no liability is assumed by the company, unless the said risk is approved and a policy issued at the home office.” In an action on this receipt by the administrator of A., it appeared that the application was approved by the company and a policy sent to the agent, w'ithin thirty days ; but before delivery A.' died and the agent returned the policy to the company. Held, that the receipt did not operate as a present insurance for thirty days or until a policy should be furnished.</p>

Contbact on a joint and several note signed by the defendants under date of November 15, 1873, and payable to the plaintiff or order in one year from date. Writ dated November 20, 1874. The case was submitted to the judgment of the Superior Court, and to this court on appeal, on an agreed statement of facts in substance as follows: The note was given in settlement of a judgment against the husband only, on which execution issued and an arrest was ordered.

Tobt for injuries to the plaintiff’s reversionary interest and estate in' a house on Columbus Avenue, Boston, caused by an explosion of gas. At the trial in the Superior Court before Baeon, J., the following facts appeared: At the time of the accident, the house was occupied by Isaac Greensfelder as a tenant to the plaintiff, under a written lease.

Tort for libel. The declaration was as follows: “ And the plaintiff says the defendant caused to be published in a newspaper called the Boston Volksblatt, printed in the German language, published in Boston in the County of Suffolk, on September 26,1873, a false and malicious libel concerning the plaintiff, a copy of which is hereto' annexed as follows s ‘ Dem deutschen Publicum zur Nachricht dass der Wirth Valentine Homer, 1863 Washington Str. um einer gerechten Forderung…

<p>A declaration in tort alleged that the defendant was a common carrier of passengers between two places; that the plaintiff’s apprentice was on the defendant’s car on a day stated, for hire paid by the apprentice in the absence of the master; that by the defendant’s negligence in carrying the apprentice, he was injured, and the plaintiff thereby lost his services. Held, on demurrer, that the declaration disclosed a good ground of action. -</p>

Tort for an assault and battery by an agent of the defendant.

Tobt against a common carrier for the loss of a horse. Trial in the Superior Court, before Pitman, J., who allowed a bill of exceptions in substance as follows : The horse was, on July 17, 1873, put on the defendant’s steamer Stamford, (which ran between Boston and Gloucester, carrying freight and passengers,) between five and six o’clock in the morning, the steamer starting about ten o’clock, arriving at Gloucester about noon.

Contract upon the following agreement: “ Boston, 20th. January, 1872.

<p>• Trustee process. Writ dated July 14,1874. Charles E. Morrison, summoned as trustee, answered, denying that at the time of service on . him he had in his hands or possession any goods, effects or credits of the principal defendants, unless he was chargeable upon the following facts: “ The principal defendants were owners of a part of the steamboat George Shat-tuck, of which the trustee also owned a part. The trustee, acting for himself and the other owners of said steamboat, sold the same, and in payment therefor received, on the day of the service of said writ on him, the check of Williams & Hall for the sum of $19,849.75, about eleven o’clock in the forenoon, and the person delivering him said check requested him not to use the same until after half-past twelve o’clock of said day, which the trustee agreed to, and agreed that said check should not be presented before half-past twelve o’clock of said day. The trustee, before the service of the writ upon him, indorsed the check to his firm of C. E. Morrison & Co., as he did all the checks and funds of said steamboat and the business connected therewith, his said firm being the financial agents of said steamboat. His firm, after the service of the writ upon the trustee, deposited said check in a bank, and the proceeds of the same wA'e passed to the credit of the firm. The principal defendants were entitled to $838.63 of the proceeds of said check after it was collected.”</p> <p>The trustee answered certain interrogatories as follows :</p> <p>“ I did not receive said check as cash, but I received it as precisely what it was, a check. I received no specific instructions from the principal defendants as to how I should receive payment for their share of said steamboat.</p> <p>“ I have no recollection of any instructions or authority that the defendants gave, further than that in common with the other owners, they executed the bill of sale which was delivered to me to deliver to the purchaser on completing the sale. I understood that the whole matter was placed in my hands by the owners to act according to my judgment, and that I would do what would be for their interest, which I did.</p> <p>“ There was never any formal appointment of my firm as such financial agents. Erom the time I became the acting manager of the boat my firm acted as the financial agents; that is, they received and paid out all the moneys that passed through my hands. The authority so to act was given by me by having that portion of the business done by them.”</p> <p>In the Superior Court the trustee was discharged; the plaintiff recovered judgment against the principal defendants, and appealed from the order discharging the trustee.</p>

<p>Contract, on an account annexed, for services rendered in superintending and conducting the música.’ performances and rehearsals of “ The World’s Peace Jubilee.” The defendants answer alleged that if the services were rendered, it was under the special agreement contained in the following letters :</p> <p>“ Boston, Feb. 18, 1872. Carl Zerrahn, Esq., Dear Sir: It being your expressed desire to have some security for the payment of services which you propose to render in connection with the forthcoming International Musical Festival, and as the sum of five thousand dollars is the amount you name should be secured to you, I hereby conform to your demand and guarantee that you will receive the sum of five thousand dollars, providing you perform your part in preparing for the festival, and during its occurrence, to the satisfaction of the management, as you always do where you are employed; and further providing that the profits of the festival, including my own benefit, will result in the aforesaid amount being placed to my credit and under my control; but it must be distinctly understood, that neither the Executive Committee nor any person or persons connected with the festival except myself shall be held responsible for the fulfilment of this contract, which is made this day in good faith with an earnest desire that it shall be fulfilled to the letter and to the entire satisfaction of you and I, who are the sole contracting parties. It is further understood that, should the festival result in a loss, you will hold no demand against myself or anybody else connected with it. Very truly yours, P. S. Gilmore.”</p> <p>“ Boston, Feb. 18,1872. Mr. P. S. Gilmore, Dear Sir: I hereby agree to conform to the proposition made to me this day in your letter relative to my services in connection with the forthcoming International Musical Festival. Very truly yours, Carl Zerrahn.”</p> <p>The answer further alleged that the festival resulted in a loss larger in amount than that sued for by the plaintiff.</p> <p>The parties filed the following agreement in the case : “ It is further agreed that if the plaintiff is entitled to recover anything, it shall be the sum of $3400, with interest from October 28, 1872. It is further agreed, for the purposes of the trial, that the plaintiff rendered services at the Jubilee worth $3400, and is entitled to recover that amount of the defendants unless the court shall find the matters relied upon in defence to be a legal bar to such right of recovery.”</p> <p>At the trial in the Superior Court, before Pitman, J., without a jury, the defendants offered in evidence, on cross-examination of the plaintiff, the above letters. The plaintiff objected to the admissibility of these letters as evidence of any contract between the plaintiff and the defendants, or as evidence of any contract whatever, save one between the plaintiff and Gilmore, and contended that the letters did not support the defence relied on, and asked the judge so to rule. The plaintiff also contended that the letters did not constitute any contract for engaging the plaintiff’s services, but only a contingent provision for fixing the rate which the plaintiff should receive as between himself and Gilmore, who entered into this provisional agreement in his own behalf, and not in behalf of the management, of which he was not one, and asked the judge so to rule.</p> <p>The plaintiff also contended, and offered paroi evidence tending to show that the last sentence of the first letter was never assented to by the plaintiff. On this point the plaintiff testified to a conversation with Gilmore at the time when the letter was delivered to him, as follows: “ Gilmore asked me if I would act as conductor for the Jubilee. We went into No. 4, at the Music Hall. G. gave me this paper; I read it, and said, ‘ This is not' according to our talk. I did not mean to run any risk, and I told you so distinctly. Suppose everything fails, what shall I do to get my pay ? ’ He said, ‘ If everything fails I will make the committee pay you.’ He shook hands over it; I said, ‘ Mr. G., there is no time to be lost in selecting music. I will keep this paper, if for nothing else, to show that the limit of my salary is to be $5000.’ He promised me over and over again to make it right with the committee for me if everything failed.” It was admitted that the committee was organized prior to the time of this conversation, viz. on February 12, 1872.</p> <p>The judge rejected the oral evidence as incompetent to control or affect in any way the contents of the first letter.</p> <p>Evidence was offered by the plaintiff and received, and not controlled in any way, to the effect, that at the time these letters were exchanged it was understood and agreed between the plaintiff and said Gilmore that the existence of such letters was to be kept private between them, and not made known to the defendants," the managers of the Jubilee; and there was no evidence offered at the hearing tending to show that said letters were made known to the defendants till after the Jubilee.</p> <p>The plaintiff also contended that if the letters did not contain a contract directly between the plaintiff and the defendants, then the last sentence of the first letter, (if not controlled by paroi evidence,) was still void and invalid for want of consideration, and so should be disregarded, and asked the judge so to rule.</p> <p>The judge found as facts, that P. S. Gilmore acted as general' agent for the defendants, and that this was known to the plaintiff ; also, that the Jubilee enterprise was not pecuniarily successful, but that it resulted in a heavy loss to the defendants, who carried it on; also, that on Saturday, February 17, 1872, Gilmore delivered to the plaintiff the first letter, and that, after some conversation, the plaintiff signed and delivered to Gilmore the second letter, both letters being by mistake dated February 18. Both letters were drawn by Gilmore, and brought by him to the plaintiff, to procure him to exchange the same with Gilmore.</p> <p>The court refused all the plaintiff’s requests for rulings, and ruled that the two letters constituted a written contract between the plaintiff and the defendants through their agent, by which the plaintiff was to receive $5000, on conditions which had not been complied with; and ordered judgment for the defendants; the plaintiff alleged exceptions.</p>

Bill in equity to compel the defendants to transfer a mortgage to the plaintiff. The defendants demurred on the ground that the plaintiff had a plain and adequate remedy at law. The nature of the case appears in the opinion.

<p>Contract for money had and received. Trial in the Superior Court, before Aldrich, J., who allowed a bill of exceptions in substance as follows:</p> <p>The plaintiff in July, 1872, put $325 into. the hands of the defendant, as stakeholder, upon a bet made with Henry A. Hil dreth, who put into the defendant’s hands a like sum, upon the result of the then pending presidential election. The bet was that if Horace Greeley was elected president, the plaintiff was to have the whole of the money thus deposited with the defendant ; if not elected, H. A. Hildreth was to have the whole. Mr. Greeley died after the election, and after that the plaintiff ordered the defendant not to pay over the money. The defendant’s evidence tended to show that the plaintiff made this order on the ground that, on account of the death of Mr. Greeley, the bet was off, and that he wanted the defendant to wait before paying over the money till the question was decided by certain sporting men as to whether bets on the result of the presidential election were or not off by the death of Mr. Greeley. The plaintiff, upon being asked upon what ground he claimed to recover the money, stated that he claimed to recover it on the ground that by the death of Mr. Greeley the bet was off.</p> <p>The plaintiff testified that he directed the defendant not to pay over his money to Henry A. without his (the plaintiff’s) consent, and the defendant testified that “ the plaintiff always told me not to deliver up the money to Henry A.” ; and that he, the defendant, upon consultation with said Henry A., took the responsibility of paying the money to said Henry A. without the plaintiff’s knowledge, and that he did not inform him, till some two or three weeks afterwards, that he had paid over the money, and that the reason he then gave for paying the money was that the “ Spirit of the Times ” said the money was Henry A.’s, that is, that the death of Greeley did not let off the bets on Greeley’s election. The defendant further testified, “ I expected to be sued by one or the other of the parties, and I preferred to be sued by the plaintiff rather than by Henry A., my nephew.” There was some evidence introduced tending to show that the parties to the bet agreed or proposed at one time to abide by the decision of “ sporting men ” as to whether the said Henry A. was entitled to the money after the death of Mr. Greeley. The defendant paid over the whole money to H. A. Hildreth on March 1, 1873. On May 7, 1873, the plaintiff’s attorney demanded the money of the defendant.. No demand had been made for the money before.</p> <p>Upon this state of facts, the defendant asked the judge to rule as follows: 1. That if the plaintiff ordered or requested the defendant to hold on to or not to pay over the money, this was not a rescission of the bet or a demand of the money. • 2. That if he did this for the purpose of having it determined whether he, the plaintiff, had lost the money, this is not a rescission of the bet. 3. That the plaintiff must demand the money before he can recover. 4. That the defendant had the right to pay over the money unless it had been demanded of him by the plaintiff or there had been a rescission of the bet. 5. That it makes no difference in this case whether the defendant paid over the money rightly or wrongly, so far as the rightful determination of the bet is concerned. 6. If the plaintiff paid over the money before there had been a rescission of the bet or a demand of the money, a demand by the plaintiff’s attorney on May 7 is of no effect.</p> <p>The judge declined to give these instructions, but instructed the jury that a wager upon the result, either of a state or national election, is an illegal contract and utterly void, and that an action upon such a contract cannot be maintained by the winning party against the losing party ; but that if the money has been paid over to the winning party by the consent of the losing party, the latter cannot maintain an action against the former to recover the wager back; that if the money was, as in the present case, deposited with a stakeholder, either party may forbid his paying over his money to the other party, and after proper proofs may maintain an action against the stakeholder to recover the money so deposited with him; and that the action may be maintained against the stakeholder, even after he has paid the money to the winner, if he has paid it over after his authority to do so had been revoked, or after he had been directed by the loser not to pay it over. In this connection the judge read to the jury from the opinion in Ball v. Gilbert, 12 Met. 397, beginning with the last line on page 399, and reading to and including the first two lines on page 402. The judge then said to the jury, “As there is no dispute in this case as to the amount of money deposited, as to the person with whom, or the terms upon which the deposit was made, the only question of fact for the jury to pass upon is as to whether the defendant paid over to Henry A. Hildreth the $325, with or without the consent and permission of the plaintiff; that the fact, if it was a fact, that the parties had agreed to submit to the determination of sporting men the question of Henry A. Hildreth’s right to the money, would not legalize the wager or make it any the less illegal or void; but that the jury should consider this evidence, in connection with the other evidence in the case, as bearing upon the question whether the money was or was not paid over by the defendant to the said Henry A. with the consent and permission of the plaintiff ; that if, upon all the evidence, the jury should find the money was paid with the consent or permission of the plaintiff, it would be their duty to return a verdict for the defendant ; but if they should upon the evidence find that the money was paid over without the consent or permission of the plaintiff, and after the plaintiff had directed him not to pay it over, they should return a verdict for the plaintiff.”</p> <p>As to the necessity of a demand before suit brought, the judge instructed the jury that if they should find the money was paid over to Henry A. Hildreth without the consent or permission of the plaintiff, and the defendant had thus placed it beyond his power to return the plaintiff’s money, if any demand was necessary, the demand, made by the plaintiff’s attorney upon the defendant for the money of the plaintiff, about which there was no dispute, would be a sufficient demand. The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>County commissioners, in answer to a petition for a writ of certiorari, should make a return certifying the facts proved before them and their rulings, so far as is necessary to present the questions of law sought to be revised, and if, instead of such a return, they file an answer raising issues of fact, the court cannot render judgment upon such disputed facts.</p> <p>The return of county commissioners, certifying the facts proved before them, and their rulings, in answer to a petition for a writ of certiorari, is conclusive as to all facts within their jurisdiction passed upon by them, and evidence is not admissible to control their findings thereon.</p>

Petition for a writ of mandamus commanding the respondents to issue a warrant to the sheriff of Norfolk County for a jury to assess the petitioner’s damages, occasioned by taking his land to widen Elm Street, in Braintree.

<p>Bill in equity, by the wardens and vestry of Christ Church in Hyde Park, a duly incorporated religious society, against John W. Birchmore and John E. White, praying that the defendants should show cause why they should not be ordered to convey a parcel of land with a rectory building thereon, in Hyde Park, to the plaintiffs. The bill also prayed for an account, an injunction to restrain the defendants from disposing of the land except to the plaintiffs, and for further relief. The case was reserved by Morton, J., on the bill and answer, and the report of a master, and was as follows :</p> <p>On April 15, 1870, Reuben A. Richards conveyed the land described in the plaintiffs’ bill to the defendants in fee, upon the following uses and trusts: “ For the purpose of having and erecting thereon a house for the use of the rector of Christ Church in Hyde Park, and for the use of the successors of the said rector in said office, so that the rector of said church and his successors in said office may have the use and benefit of said lands and of the buildings which may be constructed on said premises, during such time as said rector or his successors in said office may be respectively incumbents of said office, for their use, occupation and enjoyment ; and it is hereby stipulated and agreed that said trustees first named are authorized and empowered, in their capacity as trustees, to execute a mortgage on said premises in the sum of $3000, to secure a loan for said amount, which loan is to be applied to erect and finish the buildings on the premises, or in aid of such erection ; but in the execution of said mortgage, no personal liability is to be incurred by said Reuben A. Richards, or by said trustees or either of them, for or by reason of the mating or executing such mortgage; but said mortgage will constitute a valid incumbrance upon the estate and premises aforesaid, and said trustees are empowered to secure said loan by deed of mortgage upon said premises. And said premises are holden also upon this special trust, that in case said trustees or their successors shall determine to -sell and dispose of said premises, they are authorized to sell and convey the same, in fee or otherwise, or in mortgage or otherwise, the consent of the rector, for the time being, being thereto in writing first obtained ; but upon sale, the net avails and proceeds of such sale shall be reinvested by said trustees for the time being in a lot and house for a parsonage for said church, and so that the uses and interests and purposes of the trust aforedeclared may be performed and fulfilled. And upon this further trust, that when said lot shall be improved and the buildings aforesaid erected for the uses designated, the said trustees shall make, execute, deliver and acknowledge a deed of conveyance, release and quitclaim of all said property and estate (subject nevertheless to said mortgage, if subsisting, and subject to all incumbrances, liens and mortgages thereon) to the rector, wardens and vestry of Christ Church in Hyde Park, in Massachusetts, for like uses as are hereinbefore designated, to wit, for the use of the rector of Christ Church and his successors in said office as aforesaid, free from the payment of rent therefor, either on the part of the rector or of said church. But in case said rector,, wardens and vestry shall, upon the completion of said buildings, decline to accept the deed of said premises from said trustees, subject to the mortgage existing thereon, then this trust is to remain and continue until such time as the mortgage and incumbrances aforesaid shall be removed and discharged, and the estate shall be free from debt and incumbrance, and upon said premises being relieved and freed from mortgage, debt or incumbrance, upon trust that said trustees shall convey, quitclaim and release said premises, clear from incumbrances as aforesaid, to the rector, wardens and vestry of said Christ Church, for like uses as are hereinbefore designated, to wit, for the use of the rector of Christ Church and his successors in said office as aforesaid, free from the payment of rent, either on the part of the rector or of said church; and in case any vacancy shall occur in the trust, the church aforesaid, by its duly authorized officers or members, is authorized to appoint a trustee or trustees to fill such vacancy. And said trustees covenant that they will execute and perform said trusts, but they are not to be subjected personally to any cost or expense, but all costs and expenses are to be chargeable upon said estate. And upon said premises being vested in the rector, wardens and vestry aforesaid, they are to have full power to control, direct and apply said estate and the proceeds thereof, in such manner as in their judgment shall best promote and effectuate the charitable uses herein-before specified.”</p> <p>. The defendant Birchmore was at the date of the execution of the trust deed, and had been for some time before, the rector of said church, and continued to hold that office until May 15,1872. The trustees named in the trust deed accepted the trust and proceeded at once to improve the lot of land and to build a house thereon in accordance with the requirements of the. deed. Before the execution of the trust deed, it had been the understanding of the parties that the conveyance would not be made by the grantor until Birchmore should raise the sum of $1000 in aid of the building to be erected on the premises. The sum of $1008 was so raised by Birchmore, and was subsequently ex pended by the trustees on the building.</p> <p>In accordance with the provisions contained in the trust deed, a mortgage of the premises was executed by the trustees to the Weymouth and Braintree Institution for Savings, in the sum of $3000, and this sum was received by the trustees and expended by them, in building the rectory and in the improvement of said .ot of land.</p> <p>A second mortgage of the premises was on May 9, 1872, executed by the trustees to Julius W. Tilson, reciting the terms of the trust in the deed from Richards, and further reciting that “ whereas sundry debts are due, and owing to sundry persons, which have been contracted in the erection and construction of the buildings named in said indenture, and in the performance and execution of said trusts so far as said work has progressed.” The habendum was, “To have and to hold said premises to said Tilson, trustee, his heirs and assigns, upon this special trust; that is to say, for the securing to the persons and firms hereinafter named, the sums respectively due and owing them from said White and Birchmore, the said trustees first named.” [Then followed a description of the debt, amounting to $1139.54.] “ Provided, that if the grantors, their heirs, &e., shall pay unto the said grantee, his executors, &c.,the sums of money hereinbefore named for whose use and benefit, and to secure said sums to said persons, said Tilson holds this security on demand from the day of this date hereof, with interest on said sums at the rate of eight per centum per annum,” “ then this deed shall be void.” The grantor Birchmore, as rector of the church, gave his consent to the conveyance. No money was received by the trustees as a consideration, for such conveyance, and such conveyance was made to secure the debts therein named, incurred by the trustees in building the rectory. The entire sum of money received by the said trustees and expended by them in the building of the rectory, and the improvement of the land, was $4011.</p> <p>The defendant Birchmore, being rector of the church, took upon himself the principal charge of the work of building the house. His co-trustee, the defendant White, consulted with Birchmore in relation thereto, examined the accounts, was occasionally upon the grounds as the work went forward, and had full knowledge of all matters connected with the building of the rectory and the improvement of the land. The entire work was done, both as regards the building of the house and the improvement of the grounds, under the supervision of a person named Dalrymple, who was recommended to the trustees as a fit and suitable person by the grantor named in said trust deed and some of the principal donors contributing money in aid of the rectory. The building was erected and the land improved, so that the said Birchmore moved into and occupied the house as a rectory on December 1, 1871, although the work upon the building and grounds was not at that time entirely completed.</p> <p>The amount of debts incurred by the trustees in the execution of the trust and still unpaid is $1137.04.</p> <p>The master reported that it was not seriously disputed on the part of the plaintiffs that the amount of money was expended and debts incurred by the said trustees in the sums set forth in their answer; “ but it was contended, and evidence was offered to prove, that the trustees were guilty of gross negligence in the discharge of their duty, and that the amount expended by them in the execution of the trust was largely in excess of what could reasonably be required for such a purpose ; and from the evidence and an inspection of the building and premises, I am satisfied that a building of the same general class could have been erected for a sum much less than the sum which has been expended by these trustees upon these premises, and I am also satisfied that there were errors in judgment in the supervision of the work, in consequence of which the building has settled, and the embankment wall in the rear of the building has twice fallen down, so that it would require more than $300 to put the premises in their former state of repair; but I find in view of the nature and purposes of the trust, and especially in view of the fact that the entire work was done under the supervision of a person who was recommended to the trustees by the grantor named in the trust deed, and by some of the principal donors contributing money in aid of the building, that the trustees have not been guilty of gross negligence, that they have acted with reasonable prudence, and that the disbursements have been made and the debts incurred in good faith by them, the said trustees.”</p> <p>For some time before the execution of the trust deed, there existed a dissension between the parish of Christ Church and its rector, the defendant Birchmore; and in February, 1872, the wardens and vestry of said church, and a majority of the congregation, made application to the bishop of the diocese for the appointment of a board of reference, under Canon IV., Title II., of the Canons for the government of the Protestant Episcopal Church in the United States, a copy of which is in the margin.* A board of reference was duly constituted under said canon, and the defendant Birchmore was cited to appear before said board. A hearing was had before the board on February 21, 1872, at which both parties appeared, the parish being represented by its senior warden. The question was asked of the representative of the parish, whether the parish would abide by the decision of the board, as required by the said canon, and an affirmative answer was given. It was a matter in dispute at the hearings before the master, whether, in answer to the same question, Birchmore gave his assent to abide by the decision of the board. The records, of the board did not show that Birchmore gave such assent, and upon the evidence the master found that no such assent was given by him. A hearing was thereupon had before said board, and the following award was made:</p> <p>“ The board of reference convened by yourself under title second, canon fourth of the canons of the Protestant Episcopal Church in the United States, to consider the controversy existing between the rector and vestry of Christ Church, Hyde Park, in this diocese, are unanimous in their opinion that there is no hope of a favorable termination of such controversy, and that a dissolution of the connection between said rector and his parish is necessary to restore the peace of the church and promote its prosperity; and we do also hereby recommend to you these following conditions as appearing to us proper and reasonable :</p> <p>“ First, that the Rev. John W. Birchmore be required to resign his office as rector of Christ Church, Hyde Park, on or before the 1st day of May, 1872.</p> <p>“ Second, that the parish be required to pay him in full to the aforementioned date his salary at the rate of $1600 per annum, as stipulated in the original call of November 17, 1869.”</p> <p>This award was delivered to the bishop on February 22. And on February 26, Birchmore made application to the bishop for a rehearing before said board. This application was granted, and the board was again convened, and a second hearing was had on March 19. At this second hearing the matter of the rectory was taken up, and evidence was gone into upon the subject before said board. On March 21 the board of reference returned to the bishop their original award, together with their reasons therefor, one of which was that the rector “ has evinced no desire to convey the rectory to the parish, as bound by the deed of trust.” The bishop thereupon sent to. the parish and'to the said Birchmore the following letter :</p> <p>Boston, March 22, 1872. Rev. and dear sir : The board of reference, who have had under patient consideration the differences between yourself and the parish of Christ Church, Hyde Park, have sent me the decision at which they have arrived. In compliance with their recommendation, I hereby require you to relinquish your connection with the parish on the fifteenth day r»f May next, on condition that the parish pay you in full your salary up to the time when the resignation takes effect, at the rate of $1600 per annum, in accordance with their original agreement. I also require that the title to the rectory, now held by you and your co-trustee, shall be conveyed to the wardens and vestry, you meanwhile having the undisturbed occupancy of said rectory free of rent until your resignation shall take effect.</p> <p>“ Mantón Eastburn, Bishop of the Diocese.”</p> <p>At the hearings before the master there was evidence to prove, and he found that a rectory, according to the usages of the Episcopal Church, is regarded as church property, and like all other church property is subject to the control of the church. The master also found that the defendant White had knowledge of the proceedings which took place before the board oí reference, of the decision of said board, and the action of the bishop in relation thereto.</p> <p>At a meeting of the parish of Christ Church, held immediately after the order of the bishop was received, resolutions were passed to pay the defendant Birchmore his salary, and the salary was paid in full up to May 15, 1872, as required by the order of the bishop, and the parish in all respects fulfilled the requirements of the bishop as contained in said order. Birchmore resigned the office of .rector of said church, but did not convey the rectory to the parish as required by the said order.</p> <p>Immediately after the order of the bishop was received, the senior warden of Christ Church, as a representative of the parish, caused a deed to be prepared, sufficient to convey the rectory to the rector, wardens and vestry of Christ Church, and delivered the same to the bishop, with the request that he would present it to the said Birchmore for execution; and the bishop presented the deed to Birchmore for execution; but Birchmore, after consulting with his co-trustee, declined to sign or execute the deed, giving as the reason therefor that the bishop had no jurisdiction over him in such matters. After the death of the bishop a like request was made of Birchmore by the standing committee of the diocese, which was refused for the same reason.</p> <p>On May 16,1872, the wardens and vestry addressed a lettei to the said Birchmore, requesting him to quit and deliver up the rectory, and notifying him that if he remained he would be charged with rent; and on June 6, following, Birchmore, with the knowledge and consent of his co-trustee, replied by letter, stating that they would deliver up the estate when they were relieved of the liabilities incurred in carrying on the trust. The trustees gave no notice prior to the date of said letter that they should claim a lien upon the premises, or should hold the premises as security for the debts incurred; and the trustees had not at any time prior to the time of the hearings before the master, other than by said letter, offered to convey the rectory to the parish, nor did the parish at any time offer to pay or to assume the debts incurred by the trustees in the execution of the trust.</p> <p>Birchmore continued to occupy the rectory after the order of the bishop, dated May 15, 1872, was received, until on or about February 15, 1873, when, the trustees giving no notice to the parish, Birchmore left the premises, and since that time the premises have remained and still remain unoccupied, though the possession has been retained by the said trustees.</p> <p>In September, 1872, a new rector was settled over the parish of Christ Church, and the parish desired to occupy the premises by their rector, and during the pendency of the hearings before the master a request was made by the parish of the trustees that the premises might be occupied by their rector; but the trustees refused to deliver up the premises to be so occupied except upon payment or security of the debts incurred by them in the execution of the trust.</p> <p>The master found that the trustees did not at any time make any effort to rent the premises; that the parish might have rented them or occupied them by their rector, the successor of the said Birchmore ; that $500 per annum would be a fair rental value of the same from May 15, 1872, and that the rental value of the premises would be reasonable damages to the parish for a refusal on the part of the trustees to convey the premises as required by the order of the bishop.</p> <p>The master’s report concluded as follows : “ If upon the facts herein reported the trustees, or either of them, are to be charged with the rent of the premises from May 15, 1872, or with damages for the refusal or failure to convey the premises to the rector, wardens and vestry on May 15,1872,1 find the amount due the plaintiffs, on account of rent or damages up to the date of this report, August 5,1874, to be $1111.10. If upon the facts herein reported the trustees, or either of them, are to be charged with rent or damages during the occupancy of the premises by said Birchmore from May 15,1872, to February 15,1873, I find the amount due the plaintiffs, on account of rent or damages, to be $375.”</p>

<p>Contract for money paid to the defendant’s use and at his request. At the trial in the Superior Court, before Allen, J., the defendant’s counsel, at the close of the plaintiff’s evidence, asked the judge to rule that there was no evidence to warrant the jury in finding a verdict for the plaintiff for the fourth and fifth items of his bill of particulars. The judge declined to give this instruction, and submitted the case on all the items of the account to the jury, with appropriate instructions, to which no exceptions were taken. The jury returned a verdict for the plaintiff for the full amount claimed, and the defendant alleged exceptions. The nature of the case appears in the opinion.</p>

<p>Tort to recover for injuries sustained by reason of an alleged defect in a highway in the defendant town. Trial in the Superior Court, before Allen, J., who allowed a bill of exception in substance as follows:</p> <p>The plaintiff was driving in the evening of December 13,1871, from Milford to Hendon, when his carriage struck a mound of earth and was upset, and the injury declared for sustained. Prior to June 6, 1870, a highway had existed from a point in Hendon to the line of Milford which the defendant town was before that time bound to keep in repair. On June 6, 1870, a petition was filed with the county commissioners setting forth that said highway, from said point in Hendon to a point in Milford, was in many places steep, difficult and inconvenient, and that the grade might be materially improved by a relocation and by the alteration of the location of said highway, and that public convenience and necessity required that said highway should be laid out anew, and altered so as to avoid the steepness of said grades. The petition prayed for such alterations, locations and specific repairs as public convenience and necessity require, and for discontinuance of such parts of the old road as said board may deem expedient. After due notice and hearing, the commissioners, on July 17, 1871, adjudicated “that public convenience and necessity require that the highway aforedescribed be located anew, with alteratians; ” and after due notice, on August 24, 1871, the commissioners “ proceeded forthwith to locate anew with alterations.” The description of the location was by metes, bounds and courses, and “ said road throughout its whole extent is laid and located fifty feet in width on the easterly side of the metes and bounds aforesaid, and adjoining thereto,” with certain additional widths for materials. The description further states that “ said highway is relocated substantially over the old location as indicated by the fences and old walls. In some places it extends beyond the fences a few feet.” The commissioners fixed the grade of said road, and that part of it which was in Mendon was graded either higher or lower than the grade of the old road at every point. The commissioners further ordered as follows: “And it is further ordered, that all roads crossing, intersecting or connecting with'the road aforesaid be so graded by raising or lowering the same at their points of crossings, intersections and connections therewith as to render them safe and convenient for travellers passing thereon.” After ordering that sixty days be allowed to owners of land over which the road is located, to remove wood, timber and fences, the order concludes as follows: “ And it is further ordered, that the said road be worked and made hard and safe and convenient for travellers to pass over with their cattle, horses, teams, carts and carriages, and that it be made and completed by the said towns of Mendon and Milford, on or before July.l, 1872, to the acceptance of the county commissioners.”</p> <p>The defendant town let to contractors its part of the road to construct to the acceptance of the county commissioners, and said contractors sublet the entire job. Work was commenced on it on or about November 27, 1871. On the day work was commenced, or the following day, the original contractor placed across the road, at or near each end of the part of the road in Mendon, barriers as follows: At the west end, a bar post on the south side, and about ten feet north of it another bar post with two bars, which could be removed, extending between them, and from the north bar post two poles nailed into the post, and extending to the north side of the road. At the east end, a bar post was set at the north side of the road, and about ten feet south of it another bar post, with two removable bars extending between them, and from the south post two poles, nailed into the bar post, ex* tended to the .south side of the road. These fences and bars extended across the entire road. He also put up a sign at the west end, in plain sight of travellers, with the words conspicuously painted on it, “No passing over this road;” and about a half-mile east of the east end of that part of the road which was in Mendon, at the intersection of another road, in order that travellers might turn off, a sign exactly similar to the one above described, and both signs remained till after the accident.</p> <p>The accident happened on that part of the road lying in Men-don, within the location of the road as located anew, and within the location of the old road as shown by the fences. The mound which the carriage struck was a heap of earth placed there by the sub-contractor, with a stake set in it for a grade stake. The mound was in the wrought part, and in or near the wheel rut of the travelled part of the old road. At that point the grade was to be raised between three and four feet, and the lines of the location lay a few feet south of the lines of the old location, as shown by the fences, but the whole wrought part of the old road was within the new location. The filling had not been begun at that point, but the work of making the road was going on at other points nearer Mendon. The town of Milford had not begun to construct their part of said road. The evidence tended to show that when the accident happened the plaintiff was driving from Milford to Mendon about ten o’clock in the evening over said road; that he passed the fence at the east end (the bars being down) ; that he did not see the fence or bars or posts or sign, and was not aware of any barriers; that he had been over the same road before, but not since it was located anew, and he knew nothing of the work going on upon it. The plaintiff was a resident of New Hampshire, and only acquainted with the neighborhood and road where the accident happened by occasional visits. The evidence further tended to show that the sub-contractor employed a man who lived near the east end of the road in Mendon to put up the bars at that end at night, and that he did put them up on the night of the accident about eight o’clock in the evening. The plaintiff denied that this was true. The evidence also tended to show that before the accident, and after the work commenced on said road, people frequently passed over said road, taking down the bars and putting them up again, and that frequently the bars were found left down; that the fence and bars had been taken down several times at each end of the road by unauthorized persons. There was another highway leading from Milford to Mendon, about a mile or mile and a half longer than the route over this road. It did not appear that the plaintiff knew of it. The evidence tended to show that the day before the accident, the sub-contractor finding the bars down at the east end, put them up and nailed them into the post. The foregoing was ah the evidence material to the questions raised in this bill.</p> <p>At the close of the evidence, the defendant asked the judge to rule that there was no evidence that there was a highway at the point of the accident which the defendant was then bound to keep in repair, and to direct a verdict for the defendant on that ground. This request was refused, and the defendant then asked the judge to rule as follows: “ If the defendant placed a fence or barrier across the way sufficient to notify a person of ordinary prudence that the way was not for travel, and that was there at the close of the day of the accident, the defendant would not be liable, and it would make no difference that the same or a similar fence or barrier had been before frequently removed by unauthorized persons.” The judge gave the first part of this instruction, and declined to give that part of it following the word “ liable.”</p> <p>The judge instructed the jury upon the points raised as follows : “ The way in question was on the evidence a highway which the defendant was bound to keep in repair, and was liable to the plaintiff if he was injured by a defect in it while he was travel-ling over it and using due care. The defendant had a right to repair the road and to put the mound of earth where it was for that purpose, but would be bound to fence or guard it in some manner so as to prevent travellers from injury by means of it. The defendant could protect travellers from injury and the town from liability in either of two ways: first, by placing and keeping a sufficient guard or barrier at the place where the mound was, so as to keep travellers away from it; second, by placing and keeping a suitable and sufficient fence or barrier across the highway at the end of the part that was being constructed, so as to notify travellers that the way was not for use and to prevent the using of it. If the defendant placed a proper and sufficient fence or barrier across the way at the east end, the direction from which the plaintiff came, sufficient and suitable to notify a pejson ol ordinary prudence that the way was not for use, and such fence or barrier was there in place at the close of the day of the accident, the defendant would not be liable. It is for .the jury to say whether the fence which was placed across the way at the east end was suitable and sufficient. If the town attempted to close the whole road by barriers, and knew or had reason to know that those barriers had been constantly and repeatedly taken down or left down, that knowledge is to be considered by the jury in determining whether the defendant’s precautions were such as were reasonable.” The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Under the St. of 1869, c. 415, § 30, reenacting the Gen. Sts. c. 86, § 28, intoxicating liquors are not liable to attachment.</p> <p>An officer, who attaches goods exempt by law from attachment, is a trespasser.</p> <p>If goods exempt from attachment are taken from a carrier by an officer, who attaches them as the property of the owner, it is no defence, to an action against the carrier by the owner for failure to deliver the goods, that they were taken from him against his will and without fraud or collusion on his part, or that he was ignorant of the nature of the goods, and supposed the attachment to be valid.</p>

<p>Petition filed August 19, 1869, under the St. of 1864, e. 306, by Stephen N. Breed, Henry J. Thing, William D. Rowe, Jr., Joseph Blaney, Peter M. Neal and Nehemiah Lee, alleging that the petitioners were seised in fee of certain parcels of land (described by metes and bounds) abutting on Lynn Harbor, with the buildings, wharves and other structures thereon, and of the flats adjacent and belonging thereto; that Lynn Harbor was deep and circular in form, and the flats thereof covered by high water; that the other owners of the land abutting on the harbor, and the flats adjacent and belonging thereto, so far as they were known to the petitioners, were Henry Breed and others named ; that the petitioners could not possess, occupy and improve their flats while their ownership respectively in the same, and the boundaries thereof, were not settled and determined; and praying for notice to the persons named and all other parties interested, and that the ownership in said flats respectively, and the boundaries thereof, might bel settled and determined according to law. ,</p> <p>George L. Babb, having acquired the title of Thing and Rowe was afterwards admitted as a petitioner in their place. The persons named in the petition, having been served with notice, appeared and filed answers, not disputing the title of the petitioners to the upland as set forth, but denying their title in parts of the flats, and setting up title in themselves.</p> <p>At November term 1870, to wit, December 7, 1870, Wells, J., passed an order, appointing three commissioners “ to settle and determine the lines and boundaries of the petitioners’ flats, to which they are entitled as adjacent to the upland owned by them respectively, according to the provisions of the colony ordinance of 1641 or 1647 respecting the ownership of flats adjacent to upland, irrespective of any ownership or title acquired in any other way,” and providing that “ the finding of the commissioners is not to affect any title otherwise acquired,” and that “ all questions and claims by any of said parties, that are now made or that may arise in the case, as to titles or rights otherwise held or acquired, are to be determined in such manner as the court shall order after the return and acceptance of the report of the commissioners.”</p> <p>At April term 1872, to wit, May 6, 1872, the commissioners filed their report, with a plan referred to therein, in which they determined and settled the boundaries of the flats which the petitioners owned as adjacent to the uplands as described in the petition, without considering any question of ownership in the flats independently of ownership in the uplands to which the flats were adjacent.</p> <p>At the hearing at November term 1874, before Wells, J., after notice to all parties interested, upon the question of the acceptance of the report of the commissioners and the modification of the lines fixed therein, it appeared that no party objected to the report, or to the lines defined therein as the boundary lines of the flats adjacent to the upland of the petitioners as described in their petition ; that the estate owned by the respondent Henry Breed adjoined on its northwesterly side the estate of the petitioner Babb; and that the northeasterly boundary of the flats of which Henry Breed by his answer claimed the ownership, and to which he claimed title by deed and prescription, was in a southeasterly direction from Broad Street; while, as determined by the report of the commissioners, the boundary lines of the flats adjacent to Babb’s land ran in a southerly direction from that street across the southeasterly boundary line of Henry Breed, and showed that a large portion of the flats which Henry Breed by his answer denied that Babb owned, and alleged himself to be seised of in fee simple, and claimed title to by deed and prescription, and had a wharf upon, were adjacent and appurtenant to Babb’s upland.</p> <p>Henry Breed asked to have the issue tried by a jury, between himself and Babb, as to the title to the flats thus in controversy; and contended that the proceedings must be in accordance with the St. of 1864, c. 306 ; and that the court could not enter a final decree under the St. of 1871, e. 338, accepting the report of the commissioners fixing the boundaries of the flats adjacent and appurtenant to the upland of the petitioners under the colonial ordinance of 1647, and leaving undetermined the titles of parties to the suit according to the modification of those lines by deed or prescription.</p> <p>But the judge ruled otherwise, and, on motion of the petitioners, ordered that the report of the commissioners be accepted and approved, “ provided that this acceptance and approval shall have no other or greater force and effect than a report filed in a like case under the St. of 1871, e. 838 ; and the boundary lines drawn on said plan and referred to in said report shall bind and conclude the parties only as lines of division of their flats, according to their ownership thereof as proprietors of adjacent upland under the colony ordinance of 1647, but shall not be taken or deemed to estop the parties or any of them from showing, in any form of action or issue, a modification or change of those lines of ownership by grant or prescription in any particular case.”</p> <p>From this order Henry Breed appealed, and the judge reported the case to the full court. If the order could be entered under the St. of 1871, c. 338, it was to be affirmed ; otherwise, the- case to stand for further proceedings under the St. of 1864, c. 306.*</p>