Volume 118 — Massachusetts Reports

<p>An indictment for murder by shooting with a pistol need not allege that the pistol was held in the hand of the defendant.</p> <p>On the trial of an indictment for murder on May 13, it appeared that the defendant on May 8 brought a heavy valise to a certain stable and left it there until the evening of May 13, when he hired a horse and buggy at the stable, saying that he was going to Weymouth Landing (about eleven miles distant) and drove away taking the valise with him, and returned about one o’clock in the morning of the next day. The body of the murdered person was afterwards found at the bottom ox the channel near Weymouth Landing, with the head wrapped in a carriage robe tied tightly with a rope around the neck, and a tailor’s goose weighing twenty-four pounds, and inclosed in a gunny bag, attached to her neck by another rope. The government contended that the valise contained the articles thus attached to the body, and a valise was exhibited to the jury which the stablemen testified resembled in appearance and weight the valise left at the stable. The constable who had sole charge of the valise during the trial was permitted to testify that the valise shown him was the one shown the other witnesses, that it contained the articles in question, and that when the other witnesses examined it in court they were ignorant of its contents. The defendant objected to this evidence on the ground that it showed that it was a trick to give credibility to the judgment of the other witnesses. Held, that the evidence was properly admitted.</p> <p>Upon the issue whether a murder was committed in the county of N. as alleged in the indictment, there was evidence that the defendant, in the night time, left B., in the county of S., with a horse and buggy, saying he was going to W., in the county of N. The body of the murdered person was afterwards found near W. The distance from B. to the place where the body was found was about eleven miles, and from B. to the line of the county of if. was about six miles. Held, that evidence that the country between B. and the county line of N. was very thickly settled, and beyond that lino was partly very open and partly wooded was competent, and might be considered by the jury in connection with the other evidence in the case.</p> <p>The judge presiding at a criminal trial read to the jury the instructions request e.i by the/ defendant, stating how far they were given, refused or modified, and requested his attention called at the close of the charge to any variation in the charge from what he then said. This was not done. Held, that, although the bill of exceptions referred to the charge as a part thereof, the stateu ents of law therein contained upon the points embraced in the prayers for rulings were not subject to revision in this court.</p> <p>A bill of exceptions should not set forth the whole charge to the jury, but only the points of law raised at the trial and the rulings thereon.</p> <p>“ Moral certainty ” and “ proof beyond a reasonable doubt ” are synonymous terms, signifying such proof as precludes every reasonable hypothesis except that in support of which the evidence is offered; and no exception lies in a capital case to a refusal to use the term “ moral certainty,” if an equivalent expression is used.</p> <p>Where several forms of expression are equally accurate, it is within the discretion of the judge presiding at the trial to choose, in charging the jury, that form which he deems best adapted to make the rule of law intelligible to them.</p> <p>Under the Gen. Sts. c. 171, §§ 17, 18, a conviction may be had in one county, upor an indictment for murder, if the pistol causing the death was fired in an adjoin ing county more than one hundred rods from the dividing line between the two counties and the death ensued in the county alleged in the indictment, within one hundred rods of that line.</p> <p>The finding of a human body, with marks upon it of injuries sufficient to cause death, in a river in the heart of a county, in such a situation and condition as to show that it must have been thrown there by the hand of man and not borne there by the force of the stream or current, is sufficient to warrant the jury in finding that the homicide was committed in that county.</p> <p>On the trial of an indictment for murder, by shooting with a pistol, the defendant requested instructions to the jury that the government must prove that the proximate cause of the death was a wound from a pistol and not from any other cause; that, although the deceased may have received a mortal wound from a pistol, yet if before death, though the deceased remained insensible, any other cause of death intervened so as to hasten death in any degree, then the pistol wound was not the cause of the death, and if the jury were in doubt whether such additional cause of death did intervene, the prisoner could not be found guilty on the indictment. The court declined to give this instruction; and ruled that the government must prove that the pistol wound, if given by the prisoner, was the cause of the death; that if other circumstances came in to prevent any recovery that might otherwise have taken place or to aggravate the effect of the wound, yet if the wound was the cause of which the deceased died, such other circumstances did not prevent the wound from being the cause of the death; but if, while alive, another cause came in which, independently of the pistol wound, caused the death, then the defendant was not guilty on the indictment. Held, that the defendant had no ground of exception.</p> <p>On the trial of an indictment for murder, there was evidence tending to show that the homicide was committed in the county alleged. The defendant requested the court to instruct the jury, that the fact, if they should find it, that there was no evidence tending to show that the homicide was committed in either of two counties adjoining, was not to be-considered by the jury as evidence as to whether the homicide was committed in the county alleged. The court declined to give this instruction, and ruled that the point was to be considered by the jury upon all the circumstances of the case, and that if they thought that, if it had been committed elsewhere, the defendant would have the means of showing it by other witnesses, they might consider the absence of evidence that it was committed in another county. Held, that the defendant had no ground of exception.</p> <p>On the trial of the indictment of a man for the murder of a woman, the judge submitted to the consideration of the jury all the evidence of the relations and intercourse between the prisoner and the deceased for six months before the homicide ; refused to rule, as requested by the defendant, that there was no evidence of any engagement of marriage between them; and ruled that the jury should consider all the facts as showing the relations and explaining the conduct of the parties. Held, that the defendant had no ground of exception.</p> <p>On the trial of an indictment for murder, the defendant requested the judge to instruct the jury that he was not bound to show by evidence where he was from six o’clock in the afternoon of the alleged day of the murder, to two o’clock the next morning, and that the jury should draw no inference from any failure so to do. The judge declined to give this instruction, but ruled that the question was entirely for the jury; that if a prisoner was shown to be in any connection with the transaction which seemed to them to put into his possession facts which, if innocent, he would use, which he could use without going upon the stand himself, the withholding of those means to explain the circumstances might be considered by the jury, in connection with the other testimony, in determining how far he was responsible for the occurrence. Held, that the defendant had no ground of exception.</p> <p>Upon a trial for murder by shooting with a pistol, the defendant requested the court to instruct the jury that they must consider separately every material allegation in the indictment, including time, place and means, and that the fact that they might find any one allegation proved must not be taken to aid in, or be connected with, the determination of any other allegation. The court instructed the jury that every material fact essential to establish the offence must be found separately, in the sense that it must be found and established in their minds; but that it was not necessary for them to separate the facts in finding, nor to detach one fact from another; that if they found clearly that the defendant shot the pistol, that fact might be used in connection with the other evidence in finding the other facts involved in the indictment, such as malice; that it of course must aid, will aid in connection with the evidence of his whereabouts; and might aid in fixing the time, the place, the means. Held, that the defendant had no ground of exception.</p> <p>62 this Commonwealth it is not the right of a party, even in a capital case, to have the jury polled.</p> <p>Under the St. of 1869, c. 433, § 2, a person indicted for murder may be arraigned before one judge of this court in vacation, at a time appointed pursuant to that statute.</p> <p>The record of the trial of a person indicted for murder set forth the certificate of a judge of this court, made in vacation, reciting that the indictment had been transmitted by the Superior Court to this court and entere! therein and notice thereof sent to the chief justice and to the attorney general, with a copy of said indict, ment, and appointing a day and hour at the court house in D., in said county, foi the arraignment of the accused; and that in obedience to said order on the day named, at the court house in D., in said county, the prisoner was brought in by the sheriff of said county before one of the justices of this court. Held, that the record was regular, and showed a compliance with the order, although it did not state that the arraignment was at the hour appointed.</p> <p>Under the Constitution and statutes of this Commonwealth, a sentence of death may leave the time of execution to be fixed by the Governor and Council.</p>

<p>The provision of the Gen. Sts. c. 160, § 1, that " murder committed in the commission of, or attempt to commit, any crime punishable with death or imprisonment for life is murder in the first degree,” includes all offences that may be so punished.</p> <p>On the trial of an indictment for murder, there was evidence that the defendant killed the person mentioned in the indictment, and at the same time, by force and violence, but not being armed with a dangerous weapon, took from said person some articles of personal property. The defendant requested the court to instruct the jury that malice aforethought must be proved; that, if the circumstances were such as to remove the first impression that there was malice aforethought, then it would be murder in the second degree; that the jury would have the right to consider the whole act to see whether there was malice aforethought, and if the circumstances showed a desire to avoid killing, it would be murder in the second degree. The jury were instructed that in order to find the defendant guilty of murder in the first degree it must be proved, not only that the murder was committed, but that it was malicious ; and that if the murder was committed in the commission of a robbery, or in an attempt to rob, any further proof of previous premeditation was unnecessary. Held; that the defendant had no ground of exception.</p>

<p>Where goods are sent to a person who is to take and use such parts thereof as he needs for his own purposes, and sell the remainder, an action for goods sold and delivered lies against him after he had taken and used all the goods for his own purposes.</p> <p>Where goods are consigned to a factor for sale, the consignor may ratify or repudiate at his election a sale of the goods by the factor to himself, and may maintain an action for goods sold and delivered against him as purchaser.</p> <p>In an action for goods sold and delivered, brought by a consignor against the factor, to whom the goods were sent for sale, and who has purchased them himself, disbursements by the factor for wharfage and storage prior to the sale are to b« pleaded in set-off, and cannot be deducted from the price under a general denial</p>

Contract for breach of a covenant in a lease. Trial in the Superior Court, without a jury, before Bacon, J., who allowed a bill of exceptions in substance as follows: On April 20,1870, Charles S. Brown and the defendant entered into an agreement, by the terms of which the defendant agreed to take a lease of a part of a certain building in Boston for five years from the first day of July following, and Brown agreed “ to put in proper apparatus for heating the building by…

Tort for obstructing a right to use a well upon the female defendant’s land.

<p>Motion to vacate a judgment in favor of the plaintiff. Hearing before Putnam, J., who allowed a bill of exceptions, in substance as follows:</p> <p>This action was entered at July term 1873 ; and on February 11, 1874, a trial by jury was had and a verdict rendered for the plaintiff, for $559.79. On February 12, the defendant made a motion for a new trial, which was heard and overruled on March 20. On March 25, the plaintiff moved for judgment. On March 27, judgment was entered upon the verdict, under the general order, and the court adjourned without day. On March 28, the plaintiff applied to the clerk for execution. On March 30, the defendant filed a motion representing that on February 11 last past he brought an action against the plaintiff, Nicholas Mason, returnable to the next April term of the Superior Court, and that service of the same was duly made upon the defendant; that he is advised and believes that he has a good cause of action against said Mason, and that he intends to enter said action at said term, and to prosecute the same; that the sole cause of his not having previously brought said action was that he believed that any judgment that might be rendered against said Mason would be worthless; and that he believes now that said Mason has no property that can be reached to satisfy a judgment against him; and moving that unless said Mason shall give satisfactory security to pay any judgment that may be rendered against him in said cross-action, the judgment in the present action may be stricken off, having been entered by mistake, and this action continued for judgment to await the determination of the cross-action aforesaid; or if, in the opinion of the court, said judgment should not be stricken off, then that execution thereon may be stayed to await the final judgment in said cross-action and the issuing of execution thereon, that said cross-executions may be set off against each other.</p> <p>A hearing was had on this motion, and an order issued thereon, April 4, it being still in vacation, “ that execution be stayed until judgment in the cross-action, unless the court shall otherwise order, upon notice to the plaintiff in the cross-action.”</p> <p>At April term, to wit, May 7, the defendant filed a motion, that the judgment entered at January term be vacated, the same having been entered by mistake, and that the action be brought forward upon the docket and continued to await the judgment in the cross-action now pending in the Superior Court.</p> <p>On' May 9, the order passed April 4, after a hearing, was vacated by the court. On May 12, the plaintiff filed objections to granting the defendant’s motion. On May 14, the court passed an order bringing forward the action, vacating the judgment, and continuing the action to await the judgment in the cross-action.</p> <p>On February 11, 1874, after verdict in this action, the defendant brought an action against the plaintiff, returnable to April term 1874, which is now pending. The cause of said action existed at the date of the plaintiff’s writ in this action, which the plaintiff claims, by its nature, was a subject matter of set-off in the original suit. The plaintiff, in this action, denies that the defendant has any right of action against him.</p> <p>At the hearing on the motion to bring forward this action and to vacate the judgment, it was not contended that there was any clerical or other error in entering up the judgment, but it appeared that the same was regularly entered up and in due course of law, and that all parties concerned in this suit were properly before the court; that the plaintiff was prevented from taking out his execution by reason of the order of court staying the same; that the defendant failed to move for a continuance before the entry of the judgment and the adjournment of court; that the defendant intended to have moved for a continuance of this action to await the result of the cross-suit; that the defendant had no notice that his motion for a new trial had been overruled; that if the defendant had moved for the continuance of this action before the adjournment it would have been granted. The plaintiff contended that upon these facts the court had no power to grant the oriat and excepted to the same.</p>

Contract on two promissory notes. The action was entered at July term 1866 of the Superior Court. The defendant filed an answer and a declaration in set-off. At October term 1866, the parties agreed to refer the action by a written agreement filed in the case, and a rule was taken out in common form, and delivered to the referee.

<p>If a city notifies the owner of land of a defect in the cover of a coal hole in a sidewalk and the owner replaces it with a new one which is defective in a different particular and this causes an accident to a traveller on the highway, the city is not liable unless the defect in the new cover existed for twenty-four hours before the accident, or the city had reasonable notice of the defect, although the city was notified of the defect in the old cover more than twenty-four hours before the accident.</p>

<p>Tort. The first count of the declaration alleged that the plaintiff was a married woman carrying on the business of a boardinghouse keeper on her separate account; that the defendant unlawfully and forcibly entered the said house and seized and took possession of certain articles of furniture which she there had, a portion of which he removed, and kept and detained for the space of ten days, and then returned greatly injured through the defendant’s negligence in removing the same; that by reason of such seizure and removal she was injured in her business; and that the defendant, at or about the time of such removal, made a violent assault upon her, greatly injuring her. The defendant’s answer contained a general denial, and justified the taking and removal of the goods by virtue of an attachment issued from the Municipal Court of the city of Boston, in favor of William Sheafe against the plaintiff and her husband, John D. Paine, which the defendant served as a constable of the city of Boston. At the trial in the Superior Court, before Brigham, C. J., the jury found for the plaintiff, and the defendant alleged exceptions, the substance of which appears in the opinion.</p>

<p>Two ACTIONS OE CONTBACT to recover for services rendered to the defendant society, a religious community, commonly known as Shakers, of which the plaintiffs were members, from May 6,1819, to August 1, 1869, when “ the said society through their duly constituted officers under the rules of said society, expelled ” the plaintiffs therefrom, and for damages sustained by the failure of the society to support the plaintiffs since their expulsion. The declaration also contained a count in tort. The answers alleged that the plaintiffs did not keep the covenants contained in the constitution of the society, a copy of which was annexed, and the material parts of which are in the margin.*</p> <p>The cases were tried together in this court, before Bndicott, J., who reported them to the full court in substance as follows: It appeared in evidence that in May 1819 the two plaintiffs, being then of eight and six years of age, respectively, went with their father, mother and two brothers to live with the society ; that on June 11, 1834, both being then over twenty-one years of age, they signed the said covenant or constitution, and thereby became covenant members of the society so called, entitled to the rights and subject to the obligations therein set forth; that from that time to July 26, 1865, they were members, living with the soeiety, and performing all the labor required of them and customary in the organization. At the last mentioned date they were expelled. It appeared that a short time before said date the ministers and elders charged them with entertaining opinions and promulgating doctrines within the society, at variance with the established belief and subversive of the organization, and a hearing was had before the ministers and elders on that subject, and they were asked to state their views ; there was much conversation on points of doctrine, and the discussion was confined to the question whether the plaintiffs were in conformity with the religious faith and doctrine of the society, the plaintiffs insisting that they were; the plaintiffs adhered to their views, and were told if they persisted they would have to leave; the next day they were again before the ministers and elders, and still adhering, they were told they must go to the office with their things, which was equivalent to an expulsion. They did so, and the next day left the community. No formal charges or charges in writing were made against them, and it was admitted by the defendant that there was no record of the proceedings. All the ministers and elders were present on the occasions mentioned. It was admitted at the trial by the plaintiffs that they were expelled for alleged nonconformity to the belief and doctrines of the society, though they denied that they were in fact not in conformity.</p> <p>One of the plaintiffs had stated generally, the defendant objecting, that the opinions and doctrines advocated by her were not inconsistent with the established belief ; and the counsel for the plaintiffs offered to show by this and other witnesses, what their opinions and doctrines were, and that they were in fact in strict conformity to the established faith, and claimed the right f o go to the jury on that question, and that their expulsion was wrongful. But the judge refused to admit the evidence and submit that question to the jury.</p> <p>The plaintiffs also contended that under the covenant and agreement they were entitled to a maintenance and support during life from the common property of the society; that they could not be deprived thereof by reason of nonconformity to the faith of the organization ; and that they were entitled to prove and recover for the value of their services for such length of time as the law allowed prior to their expulsion.</p> <p>But the judge ruled on motion of the defendant that this action could not be maintained upon the facts proved and tendered in proof. No further evidence being offered, verdicts were taken for the defendant.</p> <p>1. The primary administrator of authority in the defendant society is in the established ministry at New Lebanon. Covenant, art. 1, sect. 2. The ministerial authority in every family emanates from the central authority at New Lebanon. Art. 1, sec. 4. The ministry appointed as aforesaid have authority to make rules necessary for the government of the society. Art. 1, sec. 5. The object of the society is the mutual protection, support, comfort and happiness of the members, spiritually and temporally. Art. 2, sec. 1. The qualifications and disqualifications are enumerated in sections 2 and 3 of art. 2. Art. 2, sec. 4, provides that a member signing the covenant shall thenceforth be entitled to all the benefits and privileges of the society. Art. 3, sec. 2, and art. 5, show that this society recognizes the distinction between the society itself and the church, which is part of the society; the temporal affairs of the family being managed by the trustees, deacons and deaconesses; while the control of the spiritual affairs of the church, by art. 4, is conferred upon the elders. Art. 6, sections 1 and 2, refer to members of the family, or society, who are in church relation. The article is so headed; and sec. 1 provides that every member standing in Gospel union shall enjoy equal rights and privileges in all things pertaining to the church ; and section 2 provides that the benefits, etc., secured to members of the church, shall not extend to those who disobey the rules of the association, or who refuse to submit to the constituted authority of the church, “ of which refusal or non-compliance the leading authority acknowledged in the first article of this covenant,” (that is, the ministry at New Lebanon,) “ shall be the proper and constitutional judges.” Sec. 5 provides for the removal of a member from one family to another, when such person is in union with the authority, and apparently, also, when he is in contempt of the authority. Art. 7 provides that no member shall, contrary to the provisions of the covenant, make any claim for debt, damages, etc., against either trustees, church or society; but provides no stipulation that the members may not claim for a breach of the covenant, or for their support; to which they are entitled.</p> <p>2. The defendants are a religious society within the meaning of the statutes of this Commonwealth. The members are a corporate body of proprietors of the property of the society. Lawrence v. Fletcher, 8 Met. 153. Cogswell v. Bullock, 13 Allen, 90. Gen. Sts. c. 30. The relations between religious societies and the church of such societies, is, that the religious society is a corpora tian capable of holding and managing property, etc., while the church is a voluntary association, consisting of some or all the members of such society, united by covenant or agreement mainly for purposes of celebrating the ordinance of the Lord’s Supper. It is merely incident to the corporation. Parker v. May, 5 Cush. 336, 345.</p> <p>3. Whatever power is given the leading authority mentioned in art. 1 of the covenant, over the ecclesiastical rights of members of the church, such power does not extend to the right of expulsion from the society itself, and a consequent deprivation of the enjoyment of the temporal rights of a member. But if the plaintiffs have been legally expelled and the action of the defendant is conclusive of that fact, such expulsion does not necessarily affect the civil rights of the plaintiffs as connected with the defendant, and they are entitled to recover for a breach of contract or upon a quantum meruit for their services, or upon their count in tort. The authority which undertook to act in expelling the plaintiffs, was not the leading authority contemplated in art. 6, namely, the New Lebanon ministry • and the action of the society, through its officers, was a breach of its contract with the plaintiffs. There being no formal charges against the plaintiffs, and no record of the proceedings, there has been no legal expulsion of the plaintiffs, if the society or the officers had power to expel them for any cause, and as the action of the society was such as to deprive them of a peaceable enjoyment of their rights as members, — namely, a support in sickness and in health, — the defendant has committed a breach of its covenant with the plaintiffs, for which the plaintiffs are entitled to damages. If. the court shall construe sec. 6 of the covenant to mean that the defendant may take young children and keep them until old age comes on, having the benefit of their services and all their contributions to the society, through the useful period of their lives, and then turn them out, as they have the plaintiffs, without form of impeachment or trial, into a world which, by the Shaker faith and practice, would be depopulated, but which, in its present state, would be forced to support such members as objects of charity, then it is submitted that that part of the covenant is contrary to public policy, and void. An expulsion from the temporal rights of the society is not anticipated by articles 6 and 7, and there is no provision in the covenant for such expulsion. It does not appear that the ministry have ever made any rules, as doubtless they might have done under art. 1, sec. 5. If art. 6 contemplates any punishment for nonconformity to the doctrines of the church, strictly considered, such punishment is only a suspension of the right of communion with the church. A private corporation cannot disfranchise a member unless the power to do so is expressly granted. Evans v. Philadelphia Club, 50 Penn. St. 107. A member of any church may be expelled from the church proper, but if he has bought a pew in the building where the society worships, and paid for it, the society cannot lawfully deprive him of the use of it without making him suitable restitution; and the courts of law will interfere to protect the rights of such member. In the case at bar all the civil rights of the plaintiffs are involved, and they are entitled to relief. Forbes v. Eden, 4 Court of Session Cases, 3d Series, 143. Chase v. Cheney, 58 Ill. 509, 537. Ferraria v. Vasconcellos, 31 Ill. 25. Baptist Church v. Witherell, 3 Paige, 296, 301. Gable v. Miller, 10 Paige, 627; S. C. 2 Denio, 492. Walker v. Wainwright, 16 Barb. 486. Evans v. Philadelphia Club, 50 Penn. St 107. Hale v. Everett, 53 N. H. 9. Crocker v. Old South Society 106 Mass. 489. Gen. Sts. c. 30, § 6.</p> <p>4. The court has authority to inquire whether members expelled or those remaining are true conformists to the organized faith and established doctrines of the church and society, though only one is expelled and a thousand remain. Miller v. Gable, 2 Denio, 525. In Waite v. Merrill, 4 Greenl. 102, which is regarded by all Shakers as the great" bulwark protecting them from all liability to ex-members, the plaintiff without any provocation left the society and brought a suit for his wages, not contending that the society had violated its covenant. In Gregg v. Massachusetts Medical Society, 111 Mass. 185, 193, the defendant had special power to expel members, and this court merely decided that it had no equity jurisdiction of the case as it was brought. In Goesele v. Bimeler, 14 How. 589, the plaintiffs sought to recover property which their ancestor had contributed as a member of the society of Separatists, whose covenant was similar to that of the Shakers. The court refused the relief upon the ground that the ancestor had recovered compensation for his labor and his property by the covenant of the society to support him in sickness and in health, which had been done ; and great stress is laid upon this obligation of the society.</p> <p>5. It is admitted that there were no formal charges made against the plaintiffs, and none at all in writing.' “ No man can be deprived of his office, which is a valuable property, without having the offence with which he is charged fully and plainly, substantially and formally described to him.” Murdoch's Case, 7 Pick. 303, 330. This is so essential to justice and fairness it ought never to be dispensed with.</p> <p>6. Where members have vested interests, the court will determine the validity of the by-laws of the society. Commonwealth v. Worcester, 3 Pick. 462. Andover Free Schools v. Flint, 13 Met. 539. Evans v. Philadelphia Club, 50 Penn. St. 107. The plain tiffs do not contend that the covenant is contrary to public policy and void; but that the construction we have mentioned would render that part of it so; while without any judicial strain it may be so construed as to give it validity, and at the same time afford relief to the plaintiffs against the society, and not cast them penniless upon a world which the society is at enmity with.</p> <p>1. The plaintiffs, having duly signed and sealed the “ covenant or constitution,” became bound by all the provisions of that instrument. They thus subjected themselves to the discipline, and to all the orders, rules and regulations of the church, and to the counsels and directions of its elders. Covenant, art. 1, sec. 5 ; art. 6, sec. 3.</p> <p>2. The plaintiffs were expelled from the defendant society by its duly constituted officers under the rules of said society, for an alleged promulgation of doctrines, within the society, at variance with its established belief and subversive of its organization. Of the justice of the expulsion, the duly constituted officers were the exclusive judges, and their decision is not open to revision by any other tribunal. Farnsworth v. Storrs, 5 Cush. 412. Covenant, art. 6, secs. 2, 3.</p> <p>3. By the covenant the plaintiffs bound themselves, in the most explicit language, not to make any claim against the society, its officers, members or property, under any circumstances whatever, on account of any property or service given or rendered by them to the society. Covenant, art. 7, sec. 2. This contract is obligatory upon the plaintiffs, and is open to no legal or moral objection. Waite v. Merrill, 4 Greenl. 102. Gasely v. Separatists’ Society of Zoar, 13 Ohio St. 144. Goesele v. Bimeler, 5 McLean, 223; S. C. 14 How. 589. Schriber v. Rapp, 5 Watts, 351.</p>

<p>Land was conveyed to trustees in fee, in trust to hold the premises during the life of A., collect and receive the rents and to pay the net income to A., and on his death to convey the property in fee to third persons. A. died, and the trustees, in ignorance of his death, made a lease of the land for a term of years. Held, in an action on an agreement whereby the defen ant for a valuable consideration agreed to purchase the unexpired term of the lease of the plaintiff, there being no stipulation as to title, and both parties being ignorant of A.'s decease, that the lease was voidable only and not void, and that, there being evidence that the lease had not been avoided, the plaintiff was entitled to maintain his action.</p> <p>A condition in a lease, that the lessee or his legal representatives shall not alien without the consent in writing of the lessor, is determined by an alienation with such consent, and no subsequent alienation is a breach of the condition.</p>

Contract upon two promissory notes, dated April 22, 1871, made by the defendants to the plaintiff, one for §5000 payable in twelve months, and the other for $10,000 payable in eighteen months.

Contract upon two promissory notes made by the defendant to the plaintiff, one dated July 11 and the other July 14, 1873, each for $1300 payable in four months.

<p>An agreement in writing by which the defendant, in consideration of the assignment to him of one quarter part of a patent, agrees to pay the plaintiff a sum named from the first profits of the said one quarter, provided that it shall produce that amount over and above all expenses made in bringing it before the market for practical use and sale, and that any further payment shall be left optional with the defendant, to be made according to right and justice as he shall determine from the profits of the patents, cannot be varied or controlled by evidence of an oral agreement made at the execution thereof, by which the defendant, upon the same consideration, was to pay the same sum if he ever realized so much over and above the expenses of perfecting the invention and of bringing it into market, from the invention or from the principles involved therein, or for any mechanism of the same character that might grow out of the invention.</p>

Contbaot against Joseph H. Sandford, George Lovejoy and Robert P. Gould, copartners, doing business under the firm name of O. A. Bingham & Co., to recover the price of twenty-four bags of wool sold by the plaintiff to the defendants.

<p>Bill in equity against Joseph R. Churchill, trustee, Reuben A. Richards, John E. White, and George E. Richards, copartners under the firm name of Richards 5c Co., and Charles A. White, praying that a certain mortgage of land and a promissory note executed by the plaintiff and her husband, William T. Thacher, jointly, be declared void, the mortgage cancelled, and the mortgaged estate reconveyed to her by the first named defendant.</p> <p>Hearing before Colt, J., who reserved the case for the consideration of the full court upon a report, the substance of which appears in the opinion.</p>

Parker and James V. Parker, praying for the appointment of a trustee under the St. of 1874, e. 388, § 2.

<p>In an action against a city to recover for personal injuries sustained by the plaintiff from the falling in, through the negligence of servants of the city, of the sides of a sewer which the city was constructing, and in which the plaintiff was at the time engaged in drilling a rock, the plaintiff offered to prove that he was in the employ of a man who employed a large number of men, and who, in his business of drilling and blasting rock for all persons who employed him, sent his workmen from place to place to do the work ; that the plaintiff with other servants of his employer was sent to drill and blast rock in the bottom of the sewer under the superintendence of a fellow workman who received the same pay as the others; that the workmen were to drill and blast the rock in the sewer in the places pointed out by the foreman of the sewer department of the city in charge of the whole work; that all the work except the drilling and blasting was done by servants of the city; that the whole work, including the drilling and blasting, was under the general supervision of the superintendent of sewers of the city, and under the direct charge of a foreman of the sewer department; that the city paid the plaintiff’s employer a certain sum per day for each of his men for the time they were actually employed, and the employer paid his men a less sum each per day, and directed them where to go and what to do, retaining control of them so far that he could change them from one place of work to another and dismiss them. Held, that the plaintiff was a fellow servant with the servants of the city whose negligence caused the injury, and that the action could not be maintained.</p>

<p>A breach, of condition in a lease which provides that, in case the lessee neglects to perforin his covenants, the lessor may, while such neglect continues, enter upon the premises and expel the lessee, and that upon such entry the term shall cease, does not work a forfeiture of the lease, without entry.</p> <p>A lease of an entire building in Boston, which was destroyed by the fire of 1872, is not terminated at the election of the lessor by the passage, after the fire and before the erection of a new building, of the St. of 1872, c. 371, requiring the new building to be constructed of different materials and in a more expensive manner.</p> <p>A lease of an entire building, which provides that the lessee shall pay all taxes assessed upon the premises, and that, if the premises are destroyed or damaged by fire, the rent shall be suspended or abated until the premises are put in proper condition for use by the lessor, is not terminated by the destruction of the build* ing by fire during the lessee’s occupation; and a new building voluntarily erected by the lessor upon the land becomes a part of the realty and enures to the benefit of the lessee during his term.</p>

<p>Petition to the Superior Court for a jury to .assess damages for the taking of land by the respondent to widen Congress Street in Boston, the petitioner claiming to have a leasehold estate therein. Other petitions were subsequently filed by George D. Howe and others, trustees under the will of George Howe, the owners of the land in fee, and by William F. Lawrence claiming to have a leasehold estate therein.</p> <p>Trial before Pitman, J., who, by consent of the parties, before verdict, reported the case for the consideration of this court, in substance as follows:</p> <p>On December 20, 1869, George Howe, being the owner of a parcel of land with a building thereon on Congress Street between Hawes Street and Water Street, leased to the Shawmut National Bank, for fifteen years from January 1, 1870, the lower floor and cellars of the building. [The material provisions of the lease, a copy of which was annexed to the report, are stated in the opinion.]</p> <p>On July 2, 1869, Howe leased to William F. Lawrence, for ten years from January 1,1870, three rooms on the second floor of the building by an indenture containing the following among other provisions: “ Provided, however, that in case the 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 by the said lessor, or those having his estate in the premises, in proper condition for use and habitation; and provided, also, that in case the demised premises are so far injured by fire, or other unavoidable casualty, as to become unfit for use and occupation, then the lessor may elect, whether to rebuild or repair the same, or to terminate this lease; and in case this lease is terminated, for this cause, or for breach of any of the agreements herein contained, between the days whereon the rent herein reserved becomes due, then the lessee agrees to pay proportionate rent for the period of his actual occupation.”</p> <p>On January 1, 1870, the bank leased to Lawrence a room in the first story of the building, being part of the premises demised to it by Howe, for ten years from said date, by an indenture containing the following among other provisions: “ If, during the term, the buildings on the premises shall be destroyed or injured by fire, a deduction shall be made from the rent in proportion to the amount of damage; or if the buildings shall be entirely destroyed, then no rent shall be paid after the fire, till the buildings are repaired or rebuilt.”</p> <p>George Howe continued to be the owner of the land until his death in 1871, and since then it has been owned by the trustees under his will, and they and the above named lessees are the only parties interested in the land or building.</p> <p>On November 9, 1872, the building was wholly destroyed by fire; the pier safes of the bank remained, but a few days after the fire the bank removed its books and papers, and did not afterwards enter upon or occupy the premises.</p> <p>After the fire, the bank verbally requested the trustees to extend the time allowed the bank for election to repair and restore as provided in the lease, which they verbally agreed to do for a week; within the week the bank verbally notified the trustees that it did so elect to repair and restore the premises demised to it, and thereafter paid the rent reserved by said lease until the taking by the city, in the same manner as it had paid be' fore the fire, which rent was received by the trustees and receipts therefor given as before the fire. Nothing more was ever done by the bank to repair or restore the premises, except to notify its readiness to the trustees as aforesaid, because of the passage of an order by the city council on November 15, 1872, requesting" the inspector of buildings to refuse permits for the erecting of permanent buildings in the burnt district until action should be taken by the city authorities in respect to the laying out, altering and widening of streets in that territory; and of another order on December 17, 1872, authorizing the said inspector to issue permits for the erection of buildings on those parts of the burnt district not located on any street where any widening or extension was contemplated.</p> <p>On May 5, 1873, the street commissioners took and laid out as a public street, for the purpose of widening Congress Street, a portion of the land of Howe’s trustees, being a strip measuring 14^% feet on Hawes Street and on Water Street, and this taking was concurred in by the city council.</p> <p>The lessees contended that the building could not, after the taking, be restored according to certain plans mentioned in the lease to the bank.</p> <p>The case was reported for the determination of the rights of the respective parties in matters of law, and for such directions as this court should give.</p>

<p>The plaintiff, the owner of a vessel employed in bnilding a sea wall, was given by the owner of the wall the exelnsive right to use the wall as a place of safety for his vessel in case of a storm. The defendant, the master of another vessel, without permission, placed his vessel behind the wall, and refused to move it when requested. Held, that an action for such tortious act would lie.</p> <p>One who commits a tortious act is liable for any injury which is the natural and probable consequence of his misconduct; and he is not exonerated from liability by the fact that intervening events contribute to the injury.</p> <p>The owner of a sea wall gave the plaintiff, the owner of several vessels employed in building the wall, the right to lay his vessels at the wall as a place of safety, in case of a storm. The defendant, the master of another vessel, without permission placed his vessel behind the wall and refused to move it when requested, the plaint iH desiring to place two of his vessels there as a place of safety against a storm. The two vessels were sunk by the storm. The judge, before whom the case was tried without a jury, found that the storm was such as is not uncommon in this climate, and that the injury would not have occurred but for the wrongful act of the defendant. Held, that the findings of the judge on questions of fact were final • and that the plaintiff was entitled to recover.</p>

Conteact on a recognizance entered into under the Gen. Sts. e. 124, § 10, by Thomas O’Leary as principal, and the defendant as surety, and conditioned that O’Leary, who had been arrested on an execution in favor of the plaintiff, should within thirty days from the day of his arrest deliver himself up for examination before some magistrate authorized to act, and appear at the time and place fixed for Ms examination, and from time to time until the same was concluded, and not…

<p>CONTBAOT on an agreement to pay the freight of a cargo of goods carried by the plaintiffs under bills of lading by which the goods were deliverable to the defendants or assigns. The defendants indorsed the bills of lading over to William F. Parrott, to whom the plaintiffs delivered the goods. Trial in this court, before Morton, J., who, after a verdict for the plaintiffs, allowed a bill of exceptions, the substance of which appears in the opinion.</p>

<p>Petition to the Superior Court for a jury to assess damages for the taking of land by the respondent to lay out a highway from Winthrop Street to Pleasant Street in the town of Winthrop. The respondent denied the laying out of the way. Trial before Bacon, J., who allowed a bill of exceptions in substance as follows:</p> <p>A town meeting was held in Winthrop on June 10, 1872, in pursuance of a warrant dated May 31, 1872, containing the following articles: “Article 2, To see if the town will accept a street as laid out by the road commissioners, from Winthrop Street to Pleasant Street, or any part of said street. Article 3. To see if the town will build the street laid out by the road commissioners, or any part thereof, and raise money to pay for the same.” The town voted “ that the town accept the plan for a street as laid out by the road commissioners, from Winthrop to Pleasant Street; ” and “ that the road commissioners be instructed to build the street as laid out by them, from Winthrop Street to Pleasant Street as accepted by the town.”</p> <p>It appeared that a plan entitled “ Plan of a proposed street in Winthrop,” which showed the boundaries and admeasurements of various estates included within the ■ proposed way, including the petitioner’s, and bearing the following indorsement, signed by the town clerk: “ Town of Winthrop; filed in the office of the town clerk this the first day of June, 1872," was filed by the road commissioners, but not signed by them, in the office of the town clerk, on June 1, 1872; and that on June 3,1872, a paper, of which the following is a copy, was filed, signed by Albert Richardson and David Floyd: “Amount of land taken from James Blaisdell, 10,104 feet, at .06 per foot, $606.24.”</p> <p>The plaintiff called th§ town clerk as a witness, who testified that Richardson and Floyd were the road commissioners for the town of Winthrop, and that the plan was produced in the town meeting aforesaid, and verbally explained by them to the inhabitants as they were about to act on the aforesaid ai tides. The road was in fact constructed.</p> <p>. The judge ruled that the plan and paper, filed as aforesaid, were not a sufficient compliance with the requirement of the statute; and ordered a verdict for the respondent. The petitioner alleged exceptions.</p>

Contract upon an alleged guaranty contained in the following letter delivered to the plaintiffs, dated Gloucester, May 5, 1870, and signed by the defendant: “ Messrs.

<p>The defendant went to the plaintiff’s store to purchase skins, went into the loft where many skins were lying in bales, examined thirty or forty skins, and entered into a verbal agreement for six hundred and thirty-nine skins at a price named per pound, which he directed the plaintiff to count out, weigh and set apart for him, but did not himself afterwards see. The sale was on time, the defendant was to send for the skins and take them away. The plaintiff in the defendant’s absence counted out, weighed and set apart the required number of skins, corresponding in quality and value to those seen by the defendant; and according to a usage of the trade selected one in twenty as “ trials,” the weight of which before and after exposure to the air determined the percentage of shrinkage to be deducted from the gross weight, and thus fixed the number of pounds to be paid for by the defendant. The defendant afterwards called at the plaintiff’s store and asked if the skins he had bought were ready, to which the plaintiff replied, “Yes, all except weighing the trials,” and the defendant said he would send for them immediately. The plaintiff weighed the trials and placed all the skins in the doorway of his store ready to be taken away by the defendant, who returned later in the day for a bill of the skins, which was given him, and was told that the skins were all ready for him. The plaintiff did all that was required of him by the contract. The skins were not sent for, and were destroyed the following night by fire. Held, that there was not an acceptance and receipt, within the statute of frauds; and that the judge who tried the case without a jury was not warranted in finding that the plaintiff held the skins in store for the defendant as bailee.</p>

<p>A state bank paid to its president money which he falsely represented that he had paid to an agent to whom the bank was indebted. After this the state bank was duly changed into a national bank, and the new association was sued by the agent and judgment recovered against it. Held, that it could maintain an action in its own name against the president for money had and received under the St. of 1870, c. 217, the fact of sale by the state bank and purchase of the chose in action by the plaintiff being set forth in the writ.</p> <p>A bank in 1863 paid to its president money which he falsely represented that he had paid to an agent to whom the bank was indebted. In 1869, the agent brought an action against the bank and recovered the amount due him. Prior to that action, none of the other officers of the bank knew of the claim of the agent. Held, in an action for money had and received brought by the bank against the president in 1871, that the judge, before whom the case was tried without a jury, was warranted in finding that the defendant fraudulently concealed the cause of action from the bank, and that the action was not barred by the statute of limitations.</p> <p>[f the defendant, in an action for money had and received, has fraudulently obtained the plaintiff’s money, he is chargeable with interest from the time of his so obtaining it, and not only from the time of a demand.</p>

<p>To constitute a delivery of an assignment of a mortgage to the assignee, it is not enough that the assignment passed into his hands; it must he shown that the assignor delivered it to him with the intention of passing the property in the debt and mortgage to him.</p> <p>A. executed an assignment of a mortgage, did not deliver it to the assignee, but requested him to have it recorded as soon as A. should die. Held, that the assignment was inconsistent with the statute of wills, and therefore a nullity.</p>

Contract upon the covenant against incumbrances contained in a deed from the defendants to the plaintiff dated May 24, 1866. After the former decision, reported 108 Mass. 175, the case was tried in the Superior Court, before Bacon, J., who allowed a bill of exceptions in substance as follows : The land in question is situated in New Bedford, and came to the defendants under the will of the late Timothy G. Coffin, and was a portion of his farm.

<p>A religious society purchased a lot of land in a city for the purpose of building a house of worship. The lot was the only one so held, was not moie than sufficient for its reasonable requirements in this respect, and was devoted by the society in good faith to the erection of a church edifice. The work was begun by driving piles for the foundation of the building, and, although reasonable diligence had been used, no further progress had been made, when a tax was assessed by the city on the land. Held, that the land was exempt from taxation under the Gen. Sts. c. 11, § 5, cl. 7. Wells, J., dissenting.</p>

<p>Petition on the St. of 1867, e. 106, § 4,* for a jury, the petitioner alleging that she had been aggrieved by the doings of the mayor and aldermen of the city of Worcester in the assessment upon her of a sewer tax, which the respondent justified as laid under that statute. Trial in the Superior Court, before Brigham,, C. J., who allowed a bill of exceptions in substance as follows:</p> <p>The voters of the city voted to accept the St. of 1867, a. 106, on April 16, 1867. On January 19, 1872, the board of mayor and aldermen passed the following order: “ That the sum of four hundred and fifty thousand dollars be assessed upon the persons and estates benefited, together with such sums as the mayor and aldermen may determine as entrance fees.” On May 30,1872, the petitioner’s estate was assessed the sum of $437.75, as the proportionate part of the expenditure incurred by the city in constructing sewers under the St. of 1867, the petitioner’s estate being adjudged by the mayor and aldermen to be benefited thereby.</p> <p>The valuation of the estates assessed for this tax amounted on the general valuation lists, made by the city assessor in 1871, to $9,000,000. The estates for the purpose of this sewer assessment were divided into sixteen classes, and the sum of $450,001 was the whole amount of this tax assessed on the sixteen classes ; the whol amount of the expenditure for sewers up to the time this tax was laid, was between $1,100,000 and $1,200,000. Mill Brook Sewer had been built at a cost of about $468,000; and the sixteen different classes were assessed at varying percentages on their several valuations, the percentage of tax in the petitioner’s class being 4¿ per cent. The petitioner was served with notice of this assessment on May 31, 1872.</p> <p>A sewer was made on Front Street in 1851, one on Main Street .n 1855, and one on Elm Street in 1860.</p> <p>The petitioner’s house was on Elm Street, and no new sewer had been built on Elm Street, nor on any street adjoining the petitioner’s land, or on her land, under the act of 1867; the petitioner could not drain from her land into any of the new sewers, except as the further facts in the case show. Since the laying of the Ehn Street sewer in 1860, there was no alteration or change in the construction or manner of using the three old sewers in Front, Main, and Elm streets before 1867, and after that date only as the facts hereafter recited show connections to have been made with those in Main and Front streets, no change having been made in the Elm Street sewer up to the time of the trial. The Elm, Main, and Front Street old sewers formed a continuous and connecting line of sewers, from the times of their construction, and, since they were built' as above, there have been no ordinances, votes, orders or decrees whatsoever passed by the city government or either branch thereof in relation to either of these three old sewers individually, or as a continuous line of sewers. The Front Street sewer emptied into Mill Brook, and had done so from the time of its construction, and it emptied at the time of the assessment at the same point into the new channel of Mill Brook. The petitioner entered her particular drain into the Elm Street Sewer, in 1864-65 or 1866, obtaining permission of the then mayor to do so ; and she offered to pay for the same, but was told by the mayor, “No matter— let that go for the present.”</p> <p>The new Mill Brook sewer was built under decrees of the city council after the passage of the St. of 1867, and the vote of the city April 16, 1867, and prior to this assessment and after adjudication that its construction was necessary for purposes of sewerage, drainage and the public health. In this construction Mill Brook has been straightened, altered, deepened, paved and walled for over two miles, and for a considerable distance both above and below Front Street, has been arched over and covered in; and, at the point where the Front Street sewer has always entered Mill Brook, the bottom of the new Mill Brook sewer is some five feet lower than the bed of the old brook.</p> <p>The respondent called the former city engineer, who had had charge of most of the work on the new sewers, and he testified that in very high water the water of Mill Brook used sometimes to back up into the Front Street sewer; that in storms he had known Main Street and Front Street cellars to be flooded to some extent by the sewers aforesaid in those streets, both before and after the construction of any of the new sewers under the St. oí 1867, on account of being too small to carry off storm water; that he never knew any such flooding in Elm Street; that from the corner of Main and Elm streets to the petitioner’s house was five hundred and thirty-four feet, and the elevation at the point where the petitioner’s drain enters the Elm Street sewer was thirty-five to forty feet; that since 1867 new sewers have been built in Mechanic Street and in Foster Street, from Main Street to Mill Brook new sewer, that in Mechanic Street being connected in Main Street with the old Main Street sewer, and both tending to relieve the old Main Street and Front Street sewers from the former difficulty from storm water, and that since the construction of the said Mechanic Street and Foster Street sewers he never had known of complaint from flooding; that in the construction of sewers since 1867, several of the new sewers had been turned into the Main and Front Street old sewers, some of them before the Mechanic and Foster Street sewers were built, but they were all south of Elm Street, and made their junction with the old line of sewers lower down than the junction of Elm and Main streets. This testimony was not controverted by the petitioner.</p> <p>The petitioner’s counsel asked the judge to rule that on this evidence the petitioner was not benefited by the city’s construction of sewers, and that her estate did not come into any class upon which the sewer assessment was authorized by the statute, and to direct a verdict accordingly. This request the judge refused.</p> <p>The petitioner then introduced the testimony of several witnesses to the effect that her estate had received no actual and special benefit not common to all estates having access indirectly to Mill Brook, by the construction of sewers under the St. of 1867; but it was agreed by and between the parties that the petitioner’s estate did not receive any actual and special benefit by the construction of the Mill Brook sewer and other sewers constructed under the St. of 1867, e. 106, which was not common to all estates having an access and right, by means of drains, to enter sewers communicating more or less directly with Mill Brook spwer.</p> <p>The petitioner then asked the judge to rule as follows:</p> <p>“ 1. That the St. of 1867, e. 106, was never legally accepted by the city of Worcester, and that this assessment was consequently void. 2. That under the vote of the mayor and aider-men to assess $450,000, if the said vote is legal, the assessment of a greater sum rendered the whole assessment void. 3. That upon the whole evidence, the petitioner’s estate was not benefited by the construction of sewers under the St. of 1867, in any manner or in any such manner as to bring it within any class of estates liable to taxation under that statute.” The judge refused so to rule, and ruled that the assessment was valid, and that the petitioner’s estate received a legal benefit by the sewer built under the St. of 1867, which rendered her liable to the assessment complained of. Whereupon the petitioner’s counsel claimed the right to go to the jury on the question of abatement, and to have the jury consider in assessing the tax what benefit the petitioner’s estate had received ; at the same time admitting that the petitioner’s estate had been fairly and justly valued by the assessors, relatively to other estates assessed, that the j;ax assessed upon her estate was proportionate when considered as an assessment on the-value of her real estate, in comparison with other estates assessed, and that in that view the tax was not inequitable or disproportionate.</p> <p>The judge did not allow the petitioner to go to the jury on this proposition, in view of the foregoing admissions considered in connection with the request, and there being no other objections made to the assessment, directed a verdict for the respondent with damages for the full amount of the tax claimed, with interest at seven per cent, from the date when the tax was by the order made payable. The petitioner alleged exceptions.</p> <p>1. The St. of 1867, c. 106, was never legally accepted by the city. There is no special provision in the act as to the time when it, or any part of it, shall take effect, and it therefore went into operation' on the thirtieth day next after the day on which it was approved by the governor. Gen. Sts. c. 3, § 6. See Opinion of Justices, 3 Gray, 607; Kennedy v. Palmer, 6 Gray, 316.</p> <p>The act in question was approved March 29, 1867, and the vote of the city was taken April 16, 1867; so that the city could at that time only vote to accept what did not exist. The meetings at which the vote of the city was to be taken were unauthor ized, except by the act. No persons were authorized to call the ward meetings, except under that act. The act could not authorize anything, for it had no life itself. The provision for a vote of acceptance by the city within one year from the passage of the act was a provision for such vote of acceptance after the expiration of thirty days, and within one year, that is, during the last eleven months of the year.</p> <p>2. The assessment of more than $450,000 renders the whole assessment void, and the doctrine de minimis non curat lex does not apply. Chenery v. Stevens, 97 Mass. 77. Pickett v. Breakenridge, 22 Pick. 297.</p> <p>3. The petitioner’s third request should have been granted. Her estate is not benefited by the sewers constructed under the St. of 1867, c. 106, within the meaning of § 4. The act provides for assessing two classes of estates. First: Estates upon streets in which drains or sewers are laid, and upon the line of the sewers. Second : Estates which can be drained into the sewers, and thereby derive benefit. Downer v. Boston, 7 Cush. 277. Wright v. Boston, 9 Cush. 233. Springfield v. Gay, 12 Allen, 612. The benefit referred to in the St. of 1867 is the same benefit referred to in Gen. Sts. c. 48, § 4, construed in the first two cases above cited. It is part of the same system of legislation, and applies to the same subject matter. It is not to be supposed that the Legislature intended to leave the question whether an estate is liable to assessment to be determined by consideration of remote and conjectural benefits resting in the opinions of witnesses, or to make the board of aldermen the sole judges of the fact of benefit. The Legislature intended to designate distinct classes of estates, to be determined by simple rules, so that both the city and the citizens could readily see what estates were liable to be assessed. The rule contended for by the city would lead to great uncertainty and injustice.</p> <p>4. If the position taken above is incorrect, and the court was right in refusing to rule that the petitioner’s estate was not within a class defined by the statute, then the benefit, on account of which her estate was to be assessed, must be a benefit peculiar to her estate, and not one enjoyed in common by all estates in an increase of value, arising from the fact that the city was newly drained by a thorough system of sewerage. The question whether the petitioner’s estate was one of those peculiarly benefited to any extent, and therefore liable to assessment, was a question for the jury. In the case of the Springfield sewers, built • under the St. of 1863, a. 10.7, peculiar provisions were made, the machinery being more complicated than in the Worcester sewer act; but in both acts, whether an estate not on a street or line of sewers was benefited by being drained was open, and in both cases it was to be submitted to a jury. In the Worcester act, the question of the proportionate assessment is submitted to the same jury. In the Springfield act, that question was reserved for the county commissioners. The opinion in the case of Springfield v. Gay, 12 Allen, 612, in saying that in the assessment of a sewer tax the commissioners cannot go into the benefits conferred on the estate, is based on the very fact that that subject has been open before to the decision by a jury. In the Worcester act, one single jury, to review the “ doings ” of the city, absorbed the functions of the commissioners. The jury then should have been allowed to find the fact whether there had been any actual benefit to the petitioner’s estate, as before defined herein. The facts show that the petitioner could not drain into any new sewer, and that the land was not drained by any new sewer. The judge ruled, in substance, that although the sewage of the petitioner’s estate found its way into a sewer built and maintained by the city, which had in no manner, however slight, been altered for five or six years before 1867, and thence through two still older sewers, built and maintained by the city, and emptied at the same place into a stream of water, inasmuch as that stream had been straightened, deepened and covered in, as matter of law, there was some peculiar benefit to the petitioner’s estate, and that of such character as to make it assessable. If this position be law, and if a benefit so remote makes an estate liable to assessment, it must be the right of the landowner to have the extent of the benefit taken into consideration in the assessment upon him. It is not an answer to say, in the language of Chief Justice Bigelow, in Springfield v. Gay, supra, “ It would be difficult, if not impracticable, to make an assessment which would operate fairly and equally, based on an estimate of the benefits which each estate might derive from the construction of the sewer. These benefits would naturally be conjectural, and difficult of estimation. If a judge is able to pronounce as matter of law that such remote and conjectural benefit renders an estate liable, the estimation of that benefit cannot be so difficult as to deprive the landowner of finding it out by the verdict of a jury. The law will not inflict the citizen with a burden for a cause so conjectural and uncertain that its extent defies estimation. The petitioner, then, after the other rulings, had a right to go to the jury on the question whether her estate had been proportionately assessed, and in that inquiry to have had the benefit, which the court ruled she had received, taken into consideration by the jury. It appears on the facts that the Front Street sewer was never connected with the Mill Brook new sewer by any order or decree of the city government.</p>

<p>If a bill of exceptions states the evidence and rulings with substantial accuracy, and the certificate of the presiding judge, stating his reasons for disallowing the exceptions, and the evidence taken by a commissioner upon a petition to prove the truth of the exceptions, show that the only variations are merely verbal and quite unimportant, the truth of the exceptions will be taken to be established.</p> <p>On the issue whether a policy of insurance, for which a written application had been made by a husband for the benefit of his wife, had been delivered to the wife by the agent of an insurance company with the intention of vesting the property in her, there was evidence that, the husband being ill at home, the agent came to the house, bringing the policy with him, and passed it to the husband, saying that he had brought him his policy; that the husband said he was glad of it, he had been expecting it; that he took the policy and read it over, and handed it to his wife, saying, “ There is your policy; ” that she took it, glanced it over and laid it upon the table; that the husband told the agent “ that he was not well enough to go out and get the money to pay for the policy; that he had made an arrangement with B. at the shop ” (where he worked) " to get the money for the policy; ” that, when the agent started to go out, the wife took the policy from the table and passed it to him, saying, “If you are going to B. for the money you may need the policy, and may as well take it and leave it with him,” and the agent took the policy; that her object in giving the policy to the agent was that she supposed he was going to B. to get the money, and the latter would want to see the amount; that upon learning the next morning that the policy had not been delivered to B. by the agent, the money was immediately tendered and a demand made for the policy, which was refused ; and that when she took the policy she understood it was delivered to her to keep. Held, that this evidence would not warrant a finding of such a delivery of the policy as to constitute a binding contract. Held, also, that the evidence showed that the only form of contract contemplated by the parties was by a policy issued upon a written application, and that there was no evidence of an intention to make a contract in any other form.</p>

Tort for injuries sustained by the plaintiff while a passenger in one of the defendant’s cars. At the trial in the Superior Court, before Lord, J., the plaintiff testified that he resided in Lynn, and that on Sunday, November 10, 1872, he went to Boston in a car of the defendant corporation, and that on his return, in another car of the defendant, he received the injuries complained of.

<p>Bill in equity by Francis Cox and Ellen A. Cox, his wife, alleging the following facts:</p> <p>Henry Barr, the father of the female plaintiff, by deed dated October 25, 1832, and duly recorded, conveyed to John Russell all the real estate owned by him, described in the deed as the same formerly owned by his father, and inherited by him as an heir at law, upon the uses and trusts set forth and declared in a certain indenture of even date, executed by him and Russell. By the indenture, which was not recorded until March 3, 1874, Barr conveyed to Russell all his real and personal estate inherited from his late father, and then in the hands of Russell as administrator of his father, “ together with the real estate conveyed by said Henry to said Russell by deed poll of even date with these presents,” upon the following uses and trusts : “ that he the said Russell, his administrators or executors, shall during the lifetime of said Henry retain and hold the same property; and that a/ soon as said Russell deems expedient, he will for the most he car get sell and convey said real estate, and as to the proceeds thereof, and all the said personal estate he shall place out at interest, an¿ keep the same invested in safe stocks or securities, and from time to time as he may think judicious will change such investments • and in all such certificates of stock or securities will cause it t<? be expressed that he holds the same as trustee, and further that said Russell shall keep a. true and exact account of this trust, and shall annually or oftener render to said Henry a minute and full account of all said trust moneys, income and expenses, stating the manner and places in which the same is invested, and turthei that he, the sa.d Russell, shall from time to time, according to the necessities and reasonable occasions of said Henry, either pay to said Henry any part, or all the income arising from said trust moneys, and if necessary any part of the principal thereof, in such manner as he, the said Russell, may judge will most conduce to and promote the comfort, subsistence and happiness of said Henry and his daughter; and after the decease of said Henry, will transfer, convey and pay to his legal representatives all the estate then remaining in the hands of said Russell; the said Russell during all said time of said trust to receive a reasonable compensation for his services and to be responsible for no losses, unless caused by misfeasance or malfeasance.”</p> <p>John Barr, the father of Henry, died on April 3, 1832, and administration was granted to Russell, on his estate, September 11,1832.</p> <p>On June 16, 1836, Henry Barr died, and by his will dated June 9, 1836, duly proved and allowed by the Probate Court on August 16,1836, he gave all the residue of his estate to said Russell in trust, to invest and keep the same at interest during the lifetime of his daughter, Ellen Augusta, and to pay her from time to time the interest and income thereof for her own use, and, if necessary for her comfort and support, any part of the principal, and after her decease to pay the same to her lawful issue; but if she should die leaving no issue, then to the Salem Marine Society, to be by them in trust applied towards the building, erecting and supporting a Bethel church in Salem, for the accommodation of seamen, to have the gospel preached to them.</p> <p>Russell on August 16,1836, was duly appointed executor, and in April, 1837, was also appointed trustee under the will.</p> <p>Between the day of the date of the deed and indenture and the day of his death, Henry Barr acquired no other estate, real or personal. The indenture was in the possession of Russell and his administrator, until about January 1, 1874, and the plaintiffs were ignorant of its existence until about that date.</p> <p>After the death of Henry Barr, Russell, holding the estate in trust under said indenture, returned an inventory of the same estate to the Probate Court as executor under said will, and after-wards an inventory thereof as trustee under said will. Russell afterwards died, and successive trustees under the will were appointed, the defendant, Curwen, being appointed on December 12, 1871, and he now holds that office.</p> <p>At the decease of Henry Barr, Ellen Augusta was a minor under the age of eleven years, her mother having died before the date of said indenture; she was the only child and sole heir at law of Henry; the plaintiffs were married on July 2, 1846, and there is no issue of Ellen Augusta living.</p> <p>The bill alleged that, by the terms of the indenture, at the death of Henry Barr, Ellen Augusta became entitled to all the estate in the hands of John Russell, which estate is now in the hands of Curwen, as her own property. The prayer of the bill was that Curwen be ordered to convey and pay over to the female plaintiff all the estate held by him as trustee, discharged of all trusts, and for further relief.</p> <p>The defendants demurred to the bill, and the case was reserved by Colt, J., on the bill and demurrer, for the consideration of the full court.</p>

<p>A railroad corporation ceases to be a common earner and becomes a warehouseman, as matter of law, when it has completed the duty of transportation and assumed the position of warehouseman, as matter of fact and according to the usages and necessities of the business in which it is engaged.</p> <p>Goods delivered to a railroad corporation, as a common carrier, foi transportation, reached the point of destination at half past three in the afternoon of Saturday, in one of the rear cars of a long freight train, which on account of its length was divided into sections, and these were moved up separately to the freight station, and their contents discharged. The consignee’s teamster, who was sent for the goods, reached the station at a quarter past four of the same afternoon, and remained until five, at which time the car containing the goods had not been moved up to the station or discharged. He was told by the agents of the carrier that the goods would not be ready for delivery that day, but that when reached they would be placed in the freight station near the door, where he could get them on the following Monday. The goods were discharged and placed in the freight station on Saturday, but too late for delivery, and the building and its contents were destroyed by fire That night, without any negligence on the part of the railroad corporation. Held, the. 5 the liability of the railroad corporation as a carrier was ended before the loss of the goods.</p>

<p>Contract upon a policy of marine insurance issued by the defendant to Robert Soper & Son, for whom it concerns, loss, if any, payable to the plaintiff, “ for $300 on one sixteenth of the schooner Thriver, and $300 on one sixteenth of outfits on board said schooner for a whaling voyage at and from Boston, commencing the risk on November 21, 1870, at noon, and terminating when she arrives at her port of discharge in the United States and is discharged; ” “ Schooner valued at $5000 ; outfits, $5000 ; ” and containing the following clauses :</p> <p>“ Touching the adventures and perils which the said insurance company are contented to bear, and take upon them in this voyage, they are, of the seas, fire, enemies, pirates, assailing thieves, restraints and detainments of all kings, princes or people, of what nation or quality soever, barratry of the master (unless the insured be owner of the vessel) and of the mariners, and all other losses and misfortunes which have or shall come to the damage of the said schooner and outfit or any part thereof, to which insurers are liable by the rules and customs of insurance in Boston.” “ And in case of any loss or misfortune, it shall be lawful for the insured, his factors, servants and assigns, to sue, labor and travel for, in and about the defence, safeguard and recovery of the said schooner and outfits or any part thereof, without prejudice to this insurance ,• to the charges whereof, the said insurance company will contribute, in proportion as the sum insured is to the whole sum at risk. And so the president and directors aforesaid are contented, and do hereby bind the capital stock and other common property of the said insurance company to the insured, his srecutors, administrators and assigns, for the true performance of the premises, confessing themselves paid the consideration due unto them, for this insurance, by the insured, at and after the rate of \ per cent, per month guarantee 3 per cent. To add 1 per sent, if to or from ports in Texas or Mexico, in the time; and 1 per cent, if to or from ports in the West Indies, between July 15th and October 15th; and r per cent, if in Bay St. Lawrence in September, and § per cent, if there in October.” “ And that the acts of the insured or insurers, in recovering, saving and preserving the property insured, in case of disaster, shall not be considered a waiver or acceptance of an abandonment.”</p> <p>The parties submitted the case to the judgment of the Superior Court upon the following facts : “ The vessel sailed from Boston, on the voyage described in the policy, on or about November 21, 1870, and while in the course of said voyage sustained two partial losses by the perils of the sea insured against, one in October, 1871, the other in September, 1872 ; and in consequence of those losses was each time compelled to put into Bermuda, where she was repaired at a cost in each°case exceeding seven per cent, of the amount insured, exclusive of all charges and expenses incurred for the purpose of ascertaining and proving the loss. Afterwards, on February 2, 1873, the vessel, being still in the prosecution of said voyage, was totally lost, with all her outfits, by a peril of the sea. The defendant had due notice of said losses and the adjustment of the same more than sixty days prior to the date of the plaintiff’s writ.</p> <p>“ The amount of the two partial losses was $174.73. There is due to the defendant, on account of the policy for premiums, savings, &c., the sum of $97.20. It is agreed that the plaintiff is entitled to recover the sum of $600 as for a total loss, less said sum of $97.20, with interest thereon from the date of the writ. It is further agreed, if evidence of the same would be competent, that a practice exists among the underwriters of Boston, in cases like the present, to pay for partial losses in addition to the total loss, even though the amount so paid exceeds the amount of the policy.</p> <p>The Superior Court gave judgment for the plaintiff for the sum of $502.80, being the amount of the total loss, and also for the sum of $174.73, being the amount of the two partial losses, with interest on both sums from the date of the writ. The defendant appealed to this court.</p>

<p>Bill in equity by Theodosia Scott, suing by her next friend, against' Edward S. Rand, Jr., and Charles Scott, to enforce a trust. After the decision overruling the defendants’ demurrers to the bill, 115 Mass. 104, answers were filed and the case reserved by Colt, J., for the consideration of the full court, upon an agreed statement of facts, the nature of which appears in the opinion.</p>

<p>A life insurance policy, issued to a husband for the sole use of his wife, provided that no assignment thereof should be made except for the benefit of the wife and children of the assured, if there should be any such, and that any assignment made except as therein permitted should be void. The assured assigned the policy, while his wife and children were living, to his sister, with the assent of the presi • dent of the company, to secure in part his past debts to her and their mother, and in part to secure the future support of himself and his children. After the assignment the sister paid several premiums to keep the policy alive, and on the death of the assured was appointed administratrix of his estate. Sdd, upon a bill of interpleader by the insurer after the death of the wife, who survived her husband, to determine to whom it should pay the proceeds of the policy, that the assignment of the policy was void under the Gen. Sts. c. 58, § 62, and the provision in the policy; that the sister was entitled to be repaid the premiums paid by her, and that the residue should be paid to the executrix of the wife.</p>

<p>Bill in EQUITY against the president and directors of the State Mutual Fire Insurance Company, and against the said company, to recover the amount unpaid upon a policy of insurance against fire, upon which a judgment had been recovered and execution issued, and alleging that the defendants, having the funds of the company in their hands sufficient to pay this claim, neglected and refused to pay it, and applied the funds to other purposes by distributing them among themselves and the other stockholders, and conducted the affairs of the company with gross negligence and in fraud of the rights of the plaintiff. The case was referred to a master to hear the parties and report the facts to the court, and, upon the coming in of the master’s report, was reserved by Devens, J., for the consideration of the full court, upon that report, the nature of which appears in the opinion.</p>

<p>Contract upon an account annexed. The declaration also contained a count alleging an agreement of submission to arbitration, dated March 18, 1873, whereby the parties agreed to submit all matters of difference between them, and under which an award was made, dated March 29,1873, by the referee named therein, in favor of the plaintiff in this action, for a sum stated. The answer contained a general denial, and set up the following agreement of reference made subsequently to the one mentioned in the declaration, signed by the plaintiff, the defendant and by C. E. Folsom & Co.: “We, the subscribers, hereby agree to submit all matter of differences between us to the determination of James Smith, William H. Hart and Joseph C. Storey, all of Boston, whose award or the award of a majority of whom shall be final; the said referees shall decide who shall pay the costs of this reference; and we mutually agree with each other to stand to and abide by the award of the referees aforesaid. Each of the parties hereto is to deposit, in the hands of the referees the sum of five hundred dollars each before a hearing on the matters in dispute, and said referees are to hold said sums for the benefit of the party in whose favor the award shall be made. Witness our hands this sixteenth day of April, A. D. 1873.” Also the following award made in pursuance of this agreement, signed by the referees named therein, and dated Boston, April 19,-1873: “We the undersigned, referees in the case of Rollins v. Townsend, after a careful hearing and due deliberation, render our award as follows: That Rollins be allowed to remove his miL from Townsend’s factory, and in consideration of taking such mill shall consider himself paid in full for any and all claims he may have against said Townsend, said Rollins to have six days in which to remove said machine after due notice of this decision ; and we allow Rollins to remove said mill, and release him from any and all claims of damage arising from the use of said mill, and Townsend shall afford Rollins or his agents any proper assistance he may require in the removal of the mill.”</p> <p>At the trial in the Superior Court, before Bacon, J., there was evidence tending to show that both the plaintiff and the defendant were dissatisfied with the result of the first reference and award, and afterwards agreed to and did enter into the second agreement of reference; that the plaintiff drew up this agreement and signed it himself, and afterwards sent for the defendant to come and sign it, which the defendant did ; that after the first award the plaintiff assigned his claim against the defendant to C. E. Folsom & Co., and that they joined in the second agreement ; that a hearing was had by all the parties concerned before the referees named in that agreement, who made their award as set forth in the answer; that at the hearing before the referees the defendant presented a statement of certain claims he had against the plaintiff, one item being for $36 which the defendant contended he had lent the plaintiff, and the plaintiff contended was paid him by the defendant on account and in part payment for the mill in question; and that the referees declined to pass upon or determine the question on said item. All the referees testified that they did not pass upon or determine that matter so submitted, and that it was not covered by their award. It also appeared that immediately after the award was made known to the parties, the defendant brought an action against the plaintiff to recover the said sum of $36, and attached prop erty which he contended belonged to the plaintiff, but did not enter the writ.</p> <p>There was also evidence to show that the same and no other items or claims were put in by the parties, before the last referees, than were submitted to the first referee; that the subject matter was the same at each reference, and that there was no new matter before the last referees. The plaintiff testified that he used the same bill of items before the first that he did before the last, and that it was the bill he then held in his hand; that that embraced his whole claim against the defendant.</p> <p>The plaintiff‘asked the judge to rule that the award of the last referees was not binding or valid as between the parties, and that the same was in law void. The judge so ruled, the defendant objecting. The defendant then requested the judge to rule that the first award was waived when the parties entered into the agreement for the second reference, and that the same was not binding upon either party. The judge refused so to rule, but ruled that the first award was not waived by the parties in entering into the second agreement, and their subsequent acts in relation thereto, although it might have been, had the reference proceeded so far as to have made a valid award, and instructed the jury to return a verdict for the plaintiff for the amount of the first award with interest. The defendant alleged exceptions.</p>

<p>If a passenger on a horse railroad car is so intoxicated as to be offensive to the other passengers, the conductor has the right to remove him from the car; and whether it is due care and a proper exercise of this right for the conductor to attempt to remove him, while the car is in motion, is a question of fact for the jury and not of law for the court.</p>

Contract for goods sold and delivered. Answer : 1. A general denial; 2. The statute of frauds. At the trial in the Superior Court, before Pitman, J., the defendants asked the judge to rule that the evidence did not show a contract of sale, or an acceptance and receipt of the goods. The judge refused so to rule, and submitted the case to the jury under instructions not otherwise excepted to.

Two ACTIONS OE TORT for personal injuries sustained by the plaintiff at a concert given by the city to the Grand Duke Alexis on December 9, 1871.

<p>The property of a firm consisted of patent rights for valuable improvements in weapons of war, with the machinery, tools and stock required for their manufacture, and of unfinished government contracts for the supply of such weapons. One of the partners died, and the surviving partner, with the assent of the administrator ef the deceased partner, employed extra labor to finish existing contracts and en tered upon new contracts, employing the machinery, patents and property of the firm therein. Held, on a bill in equity by the administrator against the surviving partner for a settlement of the partnership accounts, that the surviving partner was only bound to serve gratuitously in at once winding up the partnership and accounting to the representative of the deceased partner, and that, for all further personal services rendered in carrying on the business, he was entitled to compensation.</p>

<p>Tort for fraudulent oral representations and conspiracy. The declaration contained three counts, the substance of which appears in the opinion. The defendant demurred, on the ground that the declaration did not state a legal cause of action. The Superior Court sustained the demurrer, and ordered judgment for the defendant, and the plaintiff appealed.</p>

<p>Contract on an account annexed to recover the difference between the contract price of a lot of Cawnpore buffalo hides and the net proceeds of a sale of them by public auction. Trial in the Superior Court, before Bacon, J., who allowed a bill of exceptions in substance as follows:</p> <p>The plaintiffs put in evidence tending to show the following facts: On February 1, 1873, they sold the hides in question to the defendants through Southwick & Sands, merchandise brokers, and the following memorandum signed by the brokers, and accepted in writing by the defendants on February 4, 1873, was made : “ Sold, for account of Messrs. Whitney, Cushing & Co., to Messrs. B. G. Boardman & Co., 37 bales Cawnpore buffalo hides, expected to arrive at Boston per Peruvian Congress from Calcutta. Price, 15 cents gold per pound. Cash in thirty days from delivery. Hides to be taken ‘all faults’ except for sea damage only, if any, for which a fair allowance is to be made. Hides to be taken from the wharf as landed. Tare, seven pounds per bale. No arrival, no sale.”</p> <p>The hides in question arrived in Boston on board the Peruvian Congress, on March 23, 1873, and were duly landed on the wharf, and the plaintiffs gave the defendants due notice thereof, and offered to deliver the hides to them ; and, after examination of the hides, the defendants refused to accept them. The bill for the hides was due on May 5, 1873, and the plaintiffs on the same day presented it for payment, and again offered to deliver the hides, but the defendants refused either to receive the hides or pay the bill. The plaintiffs then caused the hides to be sold by public auction on account of the defendants, giving them due notice of the time and place of sale; the proceeds of the sale were much less than the contract price.</p> <p>The plaintiffs offered evidence tending to show that the words “all faults,” in the memorandum of sale, were in common use and had a well established meaning in the trade, in contracts like the present one. The defendants objected to the admission of this evidence ■ but the judge admitted it, and the defendants excepted.</p> <p>The defendants justified their refusal to take the hides, on the ground that they were not such as were known in this market as Cawnpore buffalo hides. Upon this point, evidence was introduced on both sides. The defendants also put in evidence tending to show that if the hides had been properly cured and packed and shipped in good order and condition, they should have arrived in like condition, sea damage excepted, and that these hides when they arrived were not in good order and condition, independently of sea damage. The plaintiffs introduced evidence tending to show that the hides were properly cured and packed and shipped in good order and condition, and that they arrived in good order and condition.</p> <p>The defendants asked the judge to instruct the jury that the rule of damages was the difference between what the hides actually brought in the market, that is, the sale price, and the contract price ; but the judge refused so to rule, and instructed the jury to deduct only the net proceeds of the sale by auction, first deducting from the contract price whatever amount of sea damage, if any, the jury should find.</p> <p>The defendants also asked the judge to give the following instructions to the jury:</p> <p>“1. Under the written contract between the parties to this suit, there being no opportunity to examine the hides at the time the contract was made, the defendants were entitled to receive thirty-seven bales of the kind and quality usually sold in the market and known by dealers in hides as Cawnpore hides, cured as such hides are usually cured, packed as they are usually packed, and of merchantable quality.</p> <p>“ 2. The term 6 all faults,’ used in the contract, means that the defendants were to take the risk of such usual and ordinary defects as might naturally occur if the hides when shipped were properly cured and packed and were of merchantable quality.</p> <p>“ 3. The plaintiffs, therefore, to entitle them to recover under this contract, must satisfy the jury that the hides were, when shipped, such hides as are usually known and sold as Cawnpore hides, properly cured as such hides should be cured, properly packed and of merchantable quality.”</p> <p>The judge refused so to instruct the jury, and gave instructions winch, so far as they related to said requests, were as follows:</p> <p>66 The plaintiffs must prove that the hides were Cawnpore buffalo hides, known as such in the market of Boston, and that the hides must have been such. The burden of proof is on the plaintiffs to show they are such.</p> <p>“ The plaintiffs must also prove that these hides, they having been sold to arrive, were of the same kind when shipped from Calcutta. They must be Cawnpore buffalo hides at the point of shipment, and known as such. In other words, the plaintiffs cannot ask the defendants to fulfil a contract which they have not fulfilled.</p> <p>“ Nor can any defects in the hides, which may properly be included under the term ‘ all faults,’ be a ground for the rejection of the hides by the defendants. If they were Cawnpore buffalo hides, the defendants bought those hides subject to ‘ all faults,’ and, therefore, the fact that defects, such as might properly be described by those words, were found in the hides, would not furnish any grounds for the defendants to reject the hides. The defendants were bound to take the hides subject to ‘ sea damage ’ in the first place, being subject therefor to allowance in the contract price, and subject also to ‘ all faults ’ without any allowance therefor, for such was the defendants’ contract. They made a contract to take these hides subject to ‘ all faults.’ As to the meaning of this term 1 all faults,’ the evidence of witnesses has been introduced and admitted for the purpose of showing what those words mean by the general usage of trade in Boston ; and the jury is to give to those words the meaning which the words may have been proved to have by a general or universal custom or usage of trade in this market. In other words, by a general and universal custom, particular words may assume and have a particular and definite signification different from the ordinary meaning of those words; and wherever those words have, by a general and universal custom of trade, such a signification definite and fixed, that becomes the meaning of the parties acting in the trade. It is for you, in the first place, to say whether any specific meaning, by a general and universal custom of the trade in Boston, has been attached to these words ; and if so, then these parties must be presumed by the jury to have used these words with reference to that meaning. And you will determine and limit the meaning of the words ‘ all faults ’ by any such established and well known and universal usage of the words in the trade. You have the evidence before you on that matter, and I shall leave it in the first place for you to say whether there was a meaning in the trade attached to those words different from the ordinary meaning of the words. But if those words do not have a fixed and definite meaning by the general and well known custom of the trade, then they must have the ordinary and natural meaning attached to such words in such a connection, or in regard to the subject matter of the contract.</p> <p>“ Unless, therefore, the words have a meaning determined by the general usage of the trade, they must mean all defects arising in any way, either from defects in the cure or in the packing or in the shipping or transporting of the hides, not however included under the term 6 sea damage.’ But the hides, subject to. such defects, must be known where they are shipped, and also in the Boston market, as the article named in the contract, namely, 6 Cawnpore buffalo hides ; ’ and if the defendants got the article contracted for, then they are bound to take the article with 6 all faults,’ or with all such defects as I have named, unless it appears that the plaintiffs used some fraud or deception in order to conceal such faults. Then if you find that the defendants, without justifiable cause, rejected these hides under the contract as it stands in writing, having regard to the words, ‘ all faults,’ to be explained by you by the custom, if such a custom has been proven to you, to be explained by the ordinary and natural meaning of the words ; if no such custom is proven; if the defendants, without justifiable cause, rejected these hides; if the plaintiffs kept their part of the contract, and furnished the defendants with Cawnpore buffalo hides, although with ‘ all faults,’ and although with sea damage, and the defendants have refused to receive them, then the defendants have broken the contract, and are liable to the plaintiffs for the amount of the damage.” These instructions were not excepted to.</p> <p>The jury returned a verdict for the plaintiffs; and the defendants alleged exceptions.</p>

<p>On the trial of a petition against a city to recover damages to the petitioner’s estate occasioned by raising the grade of a street under an order of the mayor and aider-men of the city, whereby access to the rear of the estate was destroyed and the basement of the bnilding rendered uninhabitable, it appeared that the street, which had previously been a private court owned by the abutters thereon, had been, with other land then taken, laid out as a public street by a previous order of the mayor and aldermen, and that the passage-way of the petitioner had ascended into this court by three steps extending into the sidewalk of the court as it then existed. Held, that the judge who presided at the trial rightly ruled that the legal right to maintain the steps so far as they extended into the sidewalk ceased when the first order was passed, and the fact that the parts of them so extending had been closed up in raising the grade under the subsequent order did not constitute an element of damage under this petition.</p> <p>Irregularities in laying out a street under an order of the Board of mayor and aider-men of a city, do not affect the claim under a petition for damages occasioned by raising the grade of the street in accordance with a subsequent order of the game board.</p> <p>1 a a petition to the Superior Court for a jury to assess the damages to the petitioner’s estate by raising the grade of a street in Boston, under an order of the mayor and aldermen, it appeared that no adjudication had ever been made of the benefits to the petitioner’s estate. The judge ruled that the benefit to the estate might be set off against the damages sustained by him. Held, that if the proceeding was under the Gen. Sts. c. 44, and not under the betterment acts, the ruling was correct, and that it was to be presumed that the judge had found as a fact that the proceeding was under the Gen. Sts. c. 44.</p>

<p>Tort against the owners of the steam-tug Argus for personal injuries sustained by the plaintiff, through the alleged negligence of those in charge of the tug in causing her to strike violently against the fender of Warren Bridge, a bridge between Boston and Charlestown. Trial in the Superior Court, before Bacon, J., who allowed the following bill of exceptions :</p> <p>The plaintiff’s evidence tended to show that the plaintiff, with other shipwrights and bridge builders, were, on December 12, 1872, employed by those in charge of Warren Bridge to repair its fender; that this fender was on the upper side of it about eighteen feet from the main structure, and extended from the draw to the wharf on the Charlestown side; that this fender, when perfect and in good order, consisted of large oak piles about fifteen inches in diameter at the top and about twelve feet apart, driven perpendicularly into the bed of the river, and two driven at a slight incline therefrom, trending down the river, ai.d fastened to the lower part of the upright piles, and one trending up the river, whose top was fitted to, or intended to fit, the top of the upright pile, and to be fastened to it and to the cap thereon by spikes, the two piles trending down the river being of less length and diameter than the others; that this cap, consisting of yellow pine timber fifteen inches square, extended along the whole row of piles, resting upon the tops of the same; that on said day a foreman, with six Workmen, including the plaintiff, were employed in repairing the fender; that they worked in three parties, each party standing on planks sustained by spikes driven into the upper spurshores or-inclined piles of the fender, and about nine or ten feet above the water of the river, that it was then half tide, the river deep, and the ebb-tide setting down at the rate of three to four miles per hour; that the men were standing on the planks, and working in pairs fitting the heads of the upper inclined pile or spurshore to the cap and to the tops of the upright piles; that two of these men were towards the Charlestown side from the plaintiff, and were working at a pile about thirty feet east from the spurshore where several of the defendants’ witnesses testified that the tug struck; that the plaintiff was at work, standing alone on a plank about sixty feet east from said spurshore, his companion having left him a short time previously ; that, in order to fit his spurshore to the pile and cap, he had put in a brace about twelve inches long and three inches in diameter, to keep the spurshore and pile apart while he was at work; that two more workmen were fitting a spurshore about sixty feet east of the plaintiff, and the foreman of the work was on the bridge; that a portion of the spurshores were not completed and fastened to the caps ; that a few minutes before the tug struck against the spurshore, she had come down to the entrance of the draw from some point above the bridge. The defendants’ evidence showed that their vessel was about sixty-five feet in length; that while at the draw the master of the tug was requested to tow down a raft lying near the Fitchburg Railroad. Bridge, and, finding it difficult or impossible to turn around, he backed his tug towards the Charlestown shore, but was not able to reach the raft, as the tide swept him down towards the fender of the Warren Bridge; that, as he backed over, he passed near the fender, and was seen by the workmen thereon r ho were visible from his deck.</p> <p>The plaintiff’s evidence further tended to show that when the master of the tug was nearly across the river, but could not reach the raft", and had drifted within a short distance of the fender, he started the tug with a view to return to the draw, and after running towards Boston, about her length, at the rate of three to four miles an hour, struck one of the upper spurshores of the fender at the point above described; that the blow jarred the fender for the distance of ninety feet; that the workmen, on the planks hung over the river, as soon as they heard the tug and saw it coming, sprung from their planks to reach the top of the fender, and all reached the cap except the plaintiff, who testified that, as he was at work, the first he knew he heard a puffing noise coming along, and he turned his head and looked, and saw the boat coming, and just as he threw his hands over his head to grab at the pile, so as to jump upon the cap, and just as he grabbed the top of the pile, she struck about three piles from where he was, and the moment she struck there was a jar that jarred the whole thing, and knocked his brace out, and the piles came right together as quick as a flash, and caught his fingers between the pile and the cap, and his knee ran in between the two piles below the cap, and there he was fast; that he never heard or saw the boat until he heard the puffing noise, and looked round and saw her coming; that after she first struck she came passing along, striking one pile and the other; that she went right along and struck the pile he was fast in, and she ran her whole length right up hard against it, and passed right on until she got one or two piles by him; that he was thus seriously injured.</p> <p>Some of the plaintiff’s witnesses testified that when they saw the tug returning towards Boston she was twenty feet from the fender, and coming at an angle towards the fender, and that she struck, when thus coming, one of the piles, which jarred the fender and occasioned the injury. Evidence was also put in that the rail of the steam-tug was about three feet above the water, and that she struck the spúrshore with the rail on her counter. On cross-examination of the defendants, it appeared that the tug had a steam-whistle, which was not blown when she started back, nra at any other time; that the air was clear, the water smooth, and that the men aboard gave no warning of their approach.</p> <p>For the defendants, evidence was offered tending to show that when the tug backed over to Charlestown she was caught by the tide, and was unable to return without running along the fender; also, that no notice was given them that it was out of repair, or any warning whatever that the fender was not in a proper condition for use; that the tug was drifted against the fender near the Charlestown side, and several hundred feet from the plaintiff; that, after waiting a few minutes, the master started towards the Boston side, running along the fender, and being pressed by the tide against the piles, and being unable to get away from them, did not see the plaintiff at or before the time of the accident, and that the tug had worked slowly along by and against a number of the piles before rubbing against the pile referred to above as the point of collision in the plaintiff’s testimony ; and some of the plaintiff’s witnesses, who were at work on the bridge, testified that they saw the tug at the fender, near the Charles-town side, and coming towards them. Some of the defendants’ witnesses admitted that they saw from the deck of the tug, when at or near the Charlestown side, men at work on the fender, and some going ashore. Several masters of - steam-tugs also testified that they had been thus caught by the tide, and got out of the bay by rubbing against the piles of the fender; and there was some evidence on the part of the defendants tending to show that this was the usual and only way to take a tug out under the circumstances, and said masters testified that they could not have taken the tug out by spring lines or warping.</p> <p>The plaintiff then offered evidence that the tug could have been taken across to the draw by spring lines or warps, or could have waited until the turn of the tide, and should have waited; also that the fender was designed to protect the bridge, and lives and property thereon, and not for steam-tugs to run by.</p> <p>The defendants requested the judge to rule as follows: “ 1. The master of the tug had a right to sail wherever in the harbor his business called him, and it is immaterial how or for what reason his tug was placed against the fender near the Charlestown shore. 2. If it was usual for tugs, placed in the position in which this tug was before it began to move along the piles, to move along by the fender, and the master of the tug took the usual course, and had no notice that he could not move along in this way, the plaintiff cannot, upon the evidence, recover. 3. If the fender was not in proper condition for use, and it was not apparent, from inspection, that it was not in such condition, it was the duty of those in charge of the fender to give notice; and if they did not give such notice, and the defendants had no such notice, the plaintiff cannot recover. 4. The plaintiff is chargeable with any neglect of those by whom he was employed, in failing to give notice that the fender was not in proper condition for use. 5. There is no evidence sufficient to warrant the finding of a verdict for the plaintiff. 6. If the defendants’ agent had no" notice, and no reason to suppose that the fender could not be used in the usual and proper way, there was no negligence in his making such use of it. 7. If the defendants’ agent, as a prudent man, had no reason to suppose that moving along the fender would be attended with any injury to the plaintiff, they are not responsible for such injury. 8. If the defendants’ agents, as prudent and reasonable men, had no reason to suppose that the moving of the boat along the fender would cause any danger to the workmen, then there was no negligence on their part in using the fender.”</p> <p>The judge refused to give the instructions as prayed for, but gave the following instructions: “ The law gives no remedy to a man who suffers an injury by pure accident; and there are many injuries which we are called upon to suffer for which we have no remedy. But when others, by their negligence, injure a person, either in his estate or in his person, the law gives a remedy. The questions in this case are, ‘ Did the plaintiff suffer an injury ? ’ and ‘ Was that injury caused by the negligence, the want of ordinary care of the defendants ? ’ The want of ordinary care of the defendants is also the want of ordinary care of their servants or agents, so that the defendants are responsible for the negligence of those persons into whose charge they put the boat. They have a right to navigate the waters of the harbor and of the river; they had a right to go to the places where they did go, provided they did not by negligence, by the want of ordinary care, injure any one. This boat had a right to go to Charles-town, if she could, to get this raft of logs ; but in doing that she must so act as not by negligence to injure others. If the boat was in a position where she could not go forward and accomplish the purpose for which she undertook to go, her captain undoubtedly had a right to return, but he must so return as not to injure another by a want of ordinary care on his part. In order for the plaintiff to recover in this case, the cause of the injury to the plaintiff must, therefore, be found by the jury to be the negligence or the want of ordinary care of those in charge of the boat.</p> <p>“ A man may suffer from the negligence of other people, and yet not have a remedy, if he himself, by his own want of ordinary care; contributes to the injury. We cannot separate the two causes, and say whether it was the defendants’ negligence or the plaintiff’s negligence that caused the injury.</p> <p>“ It is necessary to consider carefully what is meant by negligence or want of ordinary care. Ordinary care has been defined to be. that care which a person of ordinary prudence and capacity would take under like circumstances, — it is reasonable care. The plaintiff must show that he, at the time when he suffered the injury, was in the use of ordinary care; that he did not, by his neglect to use ordinary care, contribute to the injury that he suffered. But what is ordinary care is measured, not only by the acts themselves, but by all the circumstances under which they are performed, — by the exigency which the party is under, when he is called upon to use ordinary care ,• it is what a prudent person, situated just as the plaintiff was, would do. And we cannot ask of a man who is in extreme peril and danger, whose life is at stake, that he shall stop and reflect as to exactly every step that he shall take. In considering whether the plaintiff was guilty of negligence, therefore, you will have to consider exactly how he was situated, exactly what he was doing, and the situation of the tug coming towards the fender near which he was standing on this platform, suspended above this stream, and you will say whether a person of ordinary prudence and ordinary capacity, and in the exercise of those qualities, would, under those-circumstances, be guilty' of negligence by doing exactly what the plaintiff did.</p> <p>“ Then you must find further that the defendants were guilty of negligence, and that this negligence was the cause of the injury here. You must consider all the circumstances of the case, — the nature of the structure called the fender or cap, and the way it was constructed, the uses and the purposes of it, so far as they appear in this case. Was it built as a protection to the bridge, or was it built to allow tugs and boats to run against it, and to get out of this bay, lying over towards Charlestown, by running against it ? Then again, as to the exact condition of the structure at the time, that should be considered. Was it in a complete state ? It is admitted that it was not. Did the agents of the defendants know that it was not in a complete state ? There you have the evidence that they passed up in sight, and these men were at work, and some of the parties in the boat saw them get up and go away. You will take into consideration all the facts and circumstances here, and say whether the defendants were in the use of such care as a person of ordinary prudence would use under exactly the same circumstances.</p> <p>“ It must appear, if you find for the plaintiff, that there was negligence on the part of the defendants in the way in which the boat was run along against these piles, with these men at work upon them, and in their sight, and in the daytime, with the tide running as it was, and under all the circumstances. If that appears, then you will find for the plaintiff. If they could not get out of the place where they were caught, with ordinary prudence, with ordinary care, without injuring others, then they ought to have stayed there and waited until they could. But if you find that they were in the exercise of ordinary care and prudence in attempting to get the boat out, then you will find for the defendants, because what happened would be an accident.</p> <p>“ The accident must be caused by the negligent act of the defendants ; but it is not necessary that the consequences of the negligent act of the defendants should be foreseen by the defendants. It is not necessary that either the plaintiff or the defendants should be able to foresee the consequences of the negligence of the defendants in order to make the defendants liable. It may be a negligent act of mine in leaving something in the highway. It may cause a man to fall and break his leg or arm, and I may not be able to foresee one or the other. Still, it is negligence for me to put this obstruction in the highway, and that may be the natural and necessary cause. In this case, it is for the jury to say whether this injury, which the plaintiff suffered, was a natural and necessary consequence of the negligence of the defendants, if they were negligent.”</p> <p>The jury found for the plaintiff; and the defendants alleged exceptions to the foregoing refusals to rule.</p>

<p>Contract by the assignee in bankruptcy of the estate of Nahum S. Wyeth, to recover a certain sum alleged to be due the bankrupt at the commencement of the bankruptcy proceedings. Trial in the Superior Court, before Pitman, J., without a jury, who allowed a bill of exceptions in substance as follows:</p> <p>Wyeth commenced bankruptcy proceedings December 8, 1873, and the plaintiff was appointed assignee January 15,1874. There was sufficient evidence that Wyeth was insolvent on and prior to December 3, 1873. The plaintiff, who was the only witness in the case, testified that some time in March, 1874, he called at the banking rooms of the defendant corporation to ascertain whether Wyeth had any credit account with the bank, to which the plaintiff, as assignee, would be entitled ; that the officers of the bank, the president being present, examined their books, and in answer to his inquiry stated to the plaintiff that prior to December 3 1873, there was due to Wyeth from the bank the sum of $800 but that on that day Wyeth assigned or transferred his account to one Parker; that the plaintiff thereupon notified the officers that he claimed the amount of said credit account as assignee of the estate of Wyeth, and forbade their paying the same to any other person.</p> <p>Upon this evidence, the defendant offering none, the judge ruled, as matter of law, that the plaintiff had failed to make out a case that entitled him to recover, and ordered judgment for the defendant. The plaintiff alleged exceptions.</p>

<p>In this Commonwealth, the vendor of real estate by an absolute deed has no lien thereon for the unpaid purchase money, in the absence of a written agreement of the parties to that effect.</p> <p>A bill in equity alleged that the defendant agreed to cause a vessel, then building for him by a third person, to be finished and delivered to the plaintiff at a future time, in consideration of the immediate conveyance by the plaintiff to the defendant of a parcel of laud, which conveyance the plaintiff made by an absolute deed ; that the defendant afterwards stated his inability to cause the vessel to be finished and delivered to the plaintiff, and notified the plaintiff that he would, if requested, reconvey the land to him; that the defendant, although often requested, refused to make the conveyance; that the defendant had caused fraudulent attachments to be made upon the land, and had fraudulently conveyed the land to a third person. Annexed to the bill were specific interrogatories relating to the matters alleged. Held, that, as a bill for specific performance of an agreement to reconvey the land, it appeared that the agreement was within the statute of frauds, that this fact could be taken advantage of by demurrer, and that the bill could not be maintained. Held, also, that the bill could not be maintained on the ground of fraud, or for discovery</p>

<p>Bill in equity, filed October 29, 1874, against the officers of the Massachusetts and Oil Creek Petroleum Company, a mining corporation organized in 1865 under the Gen. Sts, e. 61. The substance of the bill appears in the opinion. The defendants demurred for want of equity; and the case was reserved by Ames, J., for the consideration of the full court.</p>

<p>Bill IN equity, filed September 17,1874, under the Gen. Sts. a. 113, § 2, against Bret Harte, of Morristown, in the State of New Jersey, and the members of the firm of J. B. Osgood & Company, of Boston, alleging that in 1874 the plaintiff recovered judgment against Harte for 11153.76, in an action brought by them in the Superior Court of the city of New York; that the judgment was wholly unsatisfied at the filing of this bill; that Harte was an author of some reputation, and had written works in prose and poetry, which had been collected and published in several volumes, and had a large and extended sale in the United States and elsewhere; that said works have been pubished and sold, and are now being published and offered for sale, in many different editions, by the defendants Osgood & Co.; that the plaintiffs are informed and believe, and on such information and belief aver, that the sole right to publish and sell said works belongs to the said Osgood & Oo.; that the copyrights thereof were taken in their name or assigned to them, by or with the consent of the said Harte, in consideration of certain contracts between them, which contracts are now in existence and are substantially as follows, to wit: that in consideration of their becoming the owners of copyrights, the said Osgood & Co. shall publish and sell copies of the works, as may be advantageous, during the continuance of said copyrights, and out of such sales shall pay to Harte the sum of ten per centum upon the retail price of each book, by way of royalty or compensation, for the authorship thereof; that in said, contract it is provided that an account shall be stated between said Osgood & Co. and Harte twice each year, to wit, in the months of May and November, and upon these statements the amounts found to be due Harte are then payable to him under the contracts; that since the existence of the contracts Harte has received under them each year, as royalty upon the sale of his works, a large sum of money, to wit, more than the amount of his debt to the plaintiffs ; that the sale of said works continues to be large, and that the interest of the said Harte therein is likely to be valuable in the future, but that the same cannot be come at to be attached or taken on execution in a suit at law against Harte ; that the amount of money due upon a proper accounting (if anything) from Osgood & Co. to Harte at the time of filing the bill, or which shall have become due at the first accounting after the service of the bill, will not be sufficient to pay the indebtedness of said Harte to the plaintiffs.</p> <p>The prayer of the bill was for discovery, and that Osgood & Co. be ordered to account with the plaintiffs for such sums of money as may now be due or hereafter fall due to Harte under the contracts, until his debt to the plaintiffs, with the interest thereon and the costs of this proceeding, shall be fully paid and discharged; or that Osgood & Co. be ordered to pay the same into court, subject to the order of the court; and for further relief.</p> <p>To this bill the defendants Osgood & Co. demurred, on the ground that the plaintiffs had a plain, adequate and complete remedy at law.</p> <p>Upon hearing of the demurrer, Devens, J., was of opinion that the demurrer should be sustained; -and, at the request of the plaintiffs, reserved the question for the consideration of the full court.</p>

Contract, for the value of a watch, against the owners of a steamship as common carriers, with counts in tort for negligence, and also counts charging them as innkeepers.

Tort to recover for personal injuries sustained by reason of falling through a trap-door in the defendant’s shop. At the trial in the Superior Court before Pitman, J., the jury found for the plaintiff and the defendant alleged exceptions, the substance of which appears in the opinion.

Bill ie equity filed January 9, 1872, by John P. Somerby and Jeremiah Prescott, alleging the following facts: The defendant in the year 1865, and the early part of the year ;1866, invented a new and useful improvement in seats for railroad passenger cars, and, being desirous to obtain letters patent therefor from the government of the United States, or otherwise to so use or dispose of his invention as to realize money therefrom, but not having the pecuniary means to pay.…

Contract against William R. Clark and Harrison E. Woodward to recover a proportion of the amount received by them in satisfaction of the judgment in the case of Olarh v. Wilson, 103 Mass. 219. At the trial in this court before Bndieott, J., the case was withdrawn from the jury and reserved for the determination of the full court on a report the substance of which appears m the opinion.

<p>Where the Legislature has reserved the power to alter, amend and repeal the charter of a street railway corporation, it may lawfully authorize another corporation to use its tracks, or to lay similar tracks through the same streets, making compensation for the use of the tracks of the first corporation, without making any compensation for the diminution of its profits or the value of its franchise.</p> <p>It is within the discretion of the railroad commissioners, authorized by the St. of 1871, c. 381, §§ 38, 39, to determine the rate of compensation to be paid by one street railway corporation for the use of the tracks of another corporation, to establish rules regulating the modes of apportioning expenses and estimating compensation between the corporations, and to the exercise of that discretion, if no ques* tian of law is involved, no exception lies.</p>

<p>Bill in equity, filed September 2, 1872, for contribution. Hearing before Rndicott, J., who made a report of the case to the full court in substance as follows;</p> <p>The plaintiff was director and president of a manufacturing corporation, organized under the Gen. Sts. o. 61, and the defendants were directors of the corporation. In 1870 a creditor recovered judgment against the corporation for a debt contracted in 1869, while the plaintiff and defendants were president and directors as aforesaid; and, an execution issued on said judgment being returned unsatisfied, afterwards filed his bill in equity against the corporation, and against the plaintiff and defendants as officers thereof, on the St. of 1862, c. 218, to recover payment from said officers of the debt due him from the corporation, upon the ground that they had neglected to file the annual certificates required by the St. of 1862, c. 210 ; and upon final hearing, obtained a decree against the plaintiff and defendants in this suit, jointly and severally, for the amount of the debt due him from the corporation, because of their neglect to file said annual certificates. It was agreed in this case that reference might be had to the record of that case remaining in this court, and to the decision of the full court, reported under the name of Thayer v. New England Lithographic Steam Printing Co. 108 Mass. 523. Execution issued upon the decree in favor of the creditor against the plaintiff and the defendants in this suit, jointly and severally, which was levied upon and satisfied out of the property of the plaintiff in this suit, July 26, 1872, who thereupon filed this bill.</p> <p>Upon the foregoing facts the judge ruled that the plaintiff could maintain this bill for contribution, and was entitled to a decree against the defendant Houghton for $436, that being the sum agreed upon if anything was due, with interest from the date of the filing of the bill; and against the defendant Burgess for the same amount, with interest from the same date, and, at the request of the defendants’ counsel, reserved the case upon this ruling for the consideration of the full court.</p> <p>was first called upon. The liability of the plaintiff and defendants, for which the plaintiff is seeking contribution, arose from their neglect to perform a duty imposed upon them by the St. of 1862,- c. 210. The signature and oath of the president is an essential part of the certificate required by this statute, and therefore, whatever might be said in the case of any individual director, because only a majority of the directors is required to sign and swear, the duty imposed by the statute is one to the discharge of which the cooperation of the president is necessary. The neglect, therefore, out of which the liability of the parties arose, was a voluntary breach on the part of the plaintiff of a legal duty. The mode provided by law for the enforcement of such liability is immaterial. It is a liability arising ex delicto, St. 1863, c. 246, § 2, and the plaintiff stands in pari delicto with the defendants. Persons so circumstanced, unless relieved by some statute, are not entitled to contribution. Merryweather v. Nixan, 8 T. R. 186. 1 Hilliard on Torts, (3d ed.) 176, note. Chit. Con. (11th Am. ed.) 748, 897.</p> <p>There is no statute giving contribution in such a case, although, upon examining the St. of 1862, c. 218, upon which the liability was enforced against the plaintiff, it appears that the Legislature, having contribution in mind, and giving it, by § 2, among stockholders, abstains from providing for it among officers, the obvious reason for the distinction being that stockholders are made liable for acts and neglects in which they do not participate, while it is otherwise as to officers. The same distinction again occurs in the St. of 1870, c. 224, §§ 38, 39. If the statute had given contribution among officers, it might have been claimed among those who had signed a certificate required by law knowing it to be false. The rule that there is no contribution among wrongdoers recognizes no distinction between misfeasance and nonfeasance. Oakes v. Spaulding, 40 Vt. 347. Spalding v. Oakes, 42 Vt. 343.</p>

<p>Contract against the defendant as a surety upon the bond of John W. Cartwright, as one of the receivers of the Hide & Leather Insurance Company, appointed December 2, 1871, together with Chester I. Reed and Oliver H. Cole, upon an application of the insurance commissioners, under the Gen. Sts. c. 58, § 6, by the decree which is copied in the margin.*</p> <p>The bond was executed upon the same day, by John W. Cartwright as principal, and Samuel Gould and another as sureties, to the Commonwealth of Massachusetts in the sum of $15,000, with this condition: “ The condition of the above obligation is such, that whereas said John W. Cartwright has been appointed one of the receivers of the Hide & Leather Insurance Company, of Boston, by the Supreme Judicial Court: Now therefore if the said John W. Cartwright shall faithfully conduct himself in said office, shall faithfully perform its duties as required by law and in obedience to the directions of said court, and shall truly and faithfully account for and pay over the moneys of said company which shall come into his hands, then this obligation to be void; otherwise of full force and virtue.”</p> <p>Chester I. Reed having afterwards died, and James C. Davis having been appointed one of the receivers of the company, the attorney general, on November 28, 1873, filed in the cause the following paper signed by him: “ And now the attorney general informs the court that John W. Cartwright, one of the receivers heretofore appointed in said cause, has been guilty of gross negligence and malfeasance in the duties of his said office : wherefore the attorney general moves that said Cartwright be removed from his said office, and for such other decree in relation thereto as the nature of the case may require.” Cartwright thereupon had notice to appear and was fully heard before Devens, J., who on December 13, 1873, passed an order by which, after reciting that it had been made to appear that Cartwright was indebted to the receivers of the company in the sum of $18,565.97, for cash lent to him by the company and cash withdrawn by him for his personal use from the assets in the hands of the receivers, and for interest thereon, in accordance with a statement of account which was annexed to this order, and is copied in the margin,* it was “ordered and decreed, upon motion of the attorney general, the said John W. Cartwright having been fully heard by counsel upon the said motion, that the said Cartwright pay into the hands of James C. Davis, one of the receivers of the said company, to be administered as part of the assets of the said company,” the said sum of $13,565.97, on or before December 17,1873, together with interest at the annual rate of six per cent, on the sum of $12,223.44 from the date of this order to the date of payment.</p> <p>Upon the representation under oath of James C. Davis, filed December 18, 1873, that Cartwright had failed and neglected to comply with this order, and that the aforesaid account was prepared from the books of the receivers and was just and true, and that the withdrawal and appropriation of money had not been at any time directed or authorized by this court, notice was issued to Cartwright to appear and show cause why an attachment should not issue against him for contempt, as well for the disobedience of the order, as for an unlawful appropriation of the assets of the company to his own use. On January 3, 1874, upon hearing and examination, Cartwright was adjudged guilty of the contempt alleged, and to suffer six months’ imprisonment; and this decree was affirmed by the full court on appeal. 114 Mass.</p> <p>The present action upon the bond was brought in this court on March 10, 1874, and was heard without a jury by Morton, J., who made a report thereof to the full court in substance as follows :</p> <p>In proof of the breach of the condition in the bond, the Commonwealth offered in evidence the order of December 13, 1873, directing Cartwright to pay the sum of $13,565.97 into court. The defendant objected to its competency; but the judge admitted it, and reserved the question for the full court.</p> <p>The only question of fact heard and determined was one of payment. The judge found that there was a breach of the bond, and having entered a judgment for the penalty, a hearing was had to determine the amount due. At this hearing the Commonwealth offered in evidence the same order of December 13,1873. The defendant objected to its admission; but the judge admitted it, reserving the question of its competency for the full court.</p> <p>It appeared that Cartwright, before his appointment as receiver, had been the president of the company; that on November 30,1870, he borrowed of the company the sum of $150.00, and gave the company his check therefor ; that on September 28, 1871, he borrowed of the company the sum of $1500.00 and gave the company his promissory note therefor, payable in six months, with twenty-five shares of stock in a corporation, as collateral security, which stock now and ever since the maturity of the note had no market value; and that neither the check nor the note had ever been paid. The Commonwealth contended that the defendant, as surety on the bond of Cartwright, was answerable for the payment of the check and note; and the judge reserved the question for the determination of the full court.</p> <p>It further appeared that Cartwright, on January 13, 1872, drew from the funds of the company in the hands of the receivers the sum of $7,450. In relation to this item the defendant offered to show that Cartwright on that day, in concert with his co-receivers, Reed and Cole, each drew from the funds of the company in their hands as receivers the sum of $7,450.00, on account of and as a part of their compensation as receivers, all believing at the time that it was legal and proper for them so to do. The defendant further offered to show that Cartwright, while acting as such receiver, rendered valuable services, for which he became and was entitled as such receiver to a reasonable compensation. And the defendant claimed the right to have such sum deducted from any sums charged to Cartwright as receiver of the company, and to have the benefit of the same in this action. But the judge declined to admit the evidence, on the ground that the defendant had no right to such allowance or deduction in this action.</p> <p>Execution was to be awarded for such sum as the full court might determine, or the case stand for a new hearing, as the court might order.</p> <p>1. The object of the proceeding against the receiver was not to settle the rights of property as between him and the creditors of the company, or the Commonwealth. It was a summary process for removal from office, and lays no foundation for any other proceeding. It was a mere motion to remove an officer of the court for malfeasance in office. Viewed as a proceeding in equity, no case whatever is stated in it.</p> <p>The order was not a final decree of a single justice in equity, as to rights of property within the provisions of the Gen. Sts. c. 113, § 8; c. 68, § 38. No execution could have been issued upon it, The only mode of enforcing it, if valid, was by punishment for contempt. The order does not assume to settle a final ac count, or any account, between the Commonwealth and the receiver. In effect, it finds only that the receiver has unlawfully withdrawn funds from the assets, and that he is indebted to the company in his private capacity, and orders him to pay over these sums to one of the receivers, to be administered as part of the assets of the company. The decree does not deal with set-offs, legal or equitable. It does not assume to decide the amount for which Cartwright, or the surety on his bond, would be finally liable. The debit side only was regarded. So far as coácerns money withdrawn, the order might have been made, although upon the adjustment of accounts Cartwright had a large balance against the receiver. The order, in any view, was irregular and invalid. Cartwright was ordered not merely to pay over the moneys of the company which had come into his hands, but money which had not come into his hands, money which he owed in his private capacity only. There was nothing in the allegation or motion to lead the court to such inquiry. This order made alio intuitu, being neither final decree nor account, was not, if valid, competent evidence to charge the surety. Yet it was, in fact, the only evidence to prove eighteen items of the account, amounting, to over three thousand dollars. The surety could be charged only with the amount due from Cartwright in equity and good conscience, that is, the balance due after all just and equitable claims of Cartwright, including that for services rendered, had been allowed. Gen. Sts. c. 133, § 10.</p> <p>2. The defendant, as surety, is not answerable for the indebtedness of the principal for money borrowed of the company before his appointment as receiver. The obligation of the surety is merely for the fidelity of the principal in the duties of his office as receiver, and “ to account for and pay over the moneys of the said company, which shall come into his hands,” and he is not bound to pay his indebtedness to the company. The cases where it has been held, that the surety on a bond of an administrator is liable to pay the indebtedness of the administrator to the estate are not applicable, by reason of the difference between the office of a receiver and that of an administrator. An administrator takes in his own right, while a receiver is merely an officer of the court. The reason given by the court, in the cases decided, why an administrator must charge himself with his indebtedness to the estate, is because he has nobody to pay but himself, and because he cannot sue himself. These are admitted to be technical reasons, and lead to hardship, and ought not to be extended, and the court have refused to apply them, unless compelled so to do. These reasons do not apply to the case of a receiver. The court might order a suit brought in the name of the corporation, or the other receivers.</p> <p>3. The defendant, as surety, has a right to the benefit of any credit or allowance to which the principal would have been entitled in a hearing upon this bond, and if this had been an action against the principal, he would have been entitled to the benefit of a proper allowance or deduction, for his services as receiver. The Gen. Sts. c. 133, §§ 9, 10, provide that, in a hearing upon a bond, “ the court shall award an execution for so much of the penal sum as is then due and payable in equity and good conscience, for the breach of the condition or other non-perform-once of the contract.” The defendant is entitled to the same defence in this suit at law, upon the bond, that he would be entitled to in equity. Baker v. Briggs, 8 Pick. 122. There is no principle of law or equity, which forbids reasonable compensation to the receiver, because he has, without the authority of the court, under a mistaken apprehension of his rights and duties, drawn from the funds in his hands a sum to which he thought he was entitled, as compensation. The evidence offered by the defendant was of a character to repel any idea or suggestion of fraud in the conduct of the principal.</p>

Contract on a covenant in a lease to pay taxes. Writ dated December 11, 1873.

<p>Bill in equity by the trustee under the will of Eliphalet Kimball against Joseph B. Tilton and William Tilton, administrators of the estate of Stephen Tilton, and Eliza A. H. Kimball, widow of Edward R. Kimball and executrix of his will, and administratrix of the estate of Henry T. Kimball. The case was reserved, on the bill and answers, by Morton, J., for the consideration of the full court, and was as follows:</p> <p>On January 17, 1850, Eliphalet Kimball made his will, which, after providing for the payment of his debts, funeral expenses and charges of administration, proceeded as follows :</p> <p>“ All the rest, residue and remainder of the property and estate, real as well as personal, of which I may die seised or possessed, bf whatever the same may consist, and wherever it may be, I give, devise and bequeath to Julius A. Palmer, of said Boston, merchant, and Francis O. Watts, of said Boston, esquire, to have and to hold so much and such parts thereof as shall consist of real estate to them, the said Palmer and Watts, the survivor of them, and the heirs and assigns of such survivor, and so much and such parts thereof as shall consist of personal property to them, said Palmer and Watts, the survivor of them, and the executors, administrators and assigns of such survivor; in trust, however, for the following uses and purposes, namely, in trust to hold, manage and improve the same, with authority at all times to sell the same, or any parts or parcels thereof, and the net proceeds to reinvest at their discretion, and so from time to time, and after paying taxes, insurance and all incidental charges, in pay and dispose of the net income of said trust fund, property and estate as follows; namely, one half part thereof to my beloved wife Lydia Kimball, for and during the full term of her natural life, and the other half of said net income to divido among my said wife and my three children Augusta Kimball, James William Kimball, and Edward R. Kimball, or such of them as shall be living, in such proportions as to my said trustees shall from time to time seem proper, for and during the full term of the natural life of my said wife; and after the decease of mj said wife to divide the net income of said trust fund, property and estate among my said three children in such proportions as to my said trustees may from time to time seem proper, during the full term of the natural life of my said daughter, the share, if any, of the income of either of my said sons, in case of his decease before the death of my said daughter, to go to his lawful issue, who are to take by right of representation, and for want of such issue, to his heirs at law. And after the decease of my said wife and my said daughter, it is my will that said trustees divide the whole trust fund, property and estate, with all proceeds thereof, principal as well as any remaining income or interest, into three equal parts, of which I direct said trustees to account for, convey and pay, one to my said son James William, one to my said son Edward R., and one to the lawful issue of my said daughter Augusta, to have and to hold so much thereof as shall consist of real estate to them, respectively, and their respective heirs and assigns, and so much thereof as shall consist of personal property to them, their executors, administrators and assigns, to their use and behoof forever.</p> <p>“ Provided, however, that if either the said James William or Edward R. shall have deceased before the death of my said daughter, leaving lawful issue then living, such issue shall take the parent’s share; and for want of such issue on the part of either of my said sons, the share or one third hereinbefore directed to be given and accounted for to them, respectively, if living at the decease of my said daughter, shall go to their heirs at law, to have and to hold to them, respectively, and their respective heirs, executors, administrators and assigns, to their own use and behoof forever.”</p> <p>Eliphalet Kimball died on April 17, 1855, leaving his widow, Lydia, and three children, Augusta Kimball, James W. Kimball, and Edward R. Kimball. The will was admitted to probate, and the persons named in the will as trustees were duly qualified as such. They afterwards resigned the trust and the plaintiff was appointed trustee in their stead. Lydia Kimball died August 20, 1855. Edward R. Kimball died, testate, November 17,1869, leaving a widow, Eliza A. H. Kimball, and one son, Henry T. Kimball, who died May 5, 1873, about fifteen years of age. Augusta Kimball died November 9, 1873. leaving no issue.</p> <p>On January 21, 1865, Edward R. Kimball borrowed and received of Stephen Tilton the sum of $5000, and to secure payment of the same conveyed to him by an instrument absolute in form, but intended as a mortgage, all his estate and interest under the will of Eliphalet Kimball.</p> <p>After this conveyance was made the plaintiff, as trustee of said estate, advanced certain sums of money to Edward R. Kimball, under agreements, to which Tilton was a party, he surrendering his rights in the estate until the plaintiff should be paid, and Edward R. agreeing that the plaintiff should withhold all the net income that would go by the terms of the will to him or his lawful issue, until said sums were fully paid.</p>

Bill nr equity by the executors of the will of Solomon Piper, against Mary E. Piper, his widow, William T. Piper, his son, Susan E. Taggard and Sarah H. Stratton, his daughters, and their respective children, to obtain the instructions of the court. The will of the testator contained the following clauses : “ Twelfth.

<p>A servant, whose contract of hiring provides that if he intends to leave his master’s employ he will give notice of such intention and work ten full working days thereafter, and, in default thereof, forfeit all money that may he due him, cannot recover from the master wages previously earned, if without sufficient cause he leaves his work without giving the required notice, and remains away so long as to warrant the master in regarding his absence as an abandonment of his work, and procuring another person to supply his place, although his intention is to he absent only temporarily.</p>

Contract to recover §1140 on an account annexed for dualin sold by the plaintiff to the defendant.

Contract to recover the price of thirty-seven bales of wool. The declaration contained two counts : one upon an account annexed, and the other a common count for goods sold, and interest thereon. The answer admitted the defendant’s liability for eighteen of the bales, valued at $3889.08, and, as to the rest, denied the allegations of the declaration and pleaded the statute of frauds. .

<p>Contract upon the following promissory note signed by the defendant: “ Wilton, December 15, 1851. For value received I promise to pay William Rockwood or order two hundred dollars on demand after the first day of May, 1853, with interest from May first, 1852. ” Writ dated April 1, 1873. The answer set up the statute of limitations.</p> <p>The case was submitted to the Superior Court, and to this court on appeal, upon an agreed statement of facts in substance as follows:</p> <p>The plaintiff lived in Temple from the giving of the note until 1852 ; in Amherst from 1852 until 1856, and in Merrimack from 1856 until this .action was begun, all of these towns being in Hillsborough County, New Hampshire.</p> <p>The defendant lived in Wilton, New Hampshire, from the time of giving the note until the fall of 1856, when he commenced business as a milk contractor, and sold out his farm and all his property in Wilton and moved with his family to Boston, where he lived until the summer of 1858, when he moved back to Wilton, where he resided until June 1872, when he moved to Lexington, in this Commonwealth, and has lived there ever since. While the defendant lived in Boston he did not vote or pay taxes anywhere, and went to Wilton every day. From 1856 until the suit was brought, the defendant was engaged in business as a milk contractor, his car running from Wilton to Boston daily over the Boston & Lowell and the Wilton Railroad, arriving at Cambridge or Boston at 8.30 A. M. and returning at about noon each day. With the exception of two years when the defendant’s car came- into Boston, it has always been switched off on a side track at Cambridge, where he sold and delivered» the milk to his customers from the car. A part of the car was fitted up as an office where he kept the accounts of his business, and this was his only business in Massachusetts, and he had no other place of business in Massachusetts.</p> <p>From 1856 to the bringing of the writ he had personally come to Boston or Cambridge with the car nearly every day, usually returning in the car at noon, but sometimes taking a later train ; and during this period the defendant had bought up milk in nearly all parts of Amherst and Merrimack aforesaid, through which towns the Wilton Railroad runs, and had property in this state; most of the time he had real estate, and from 1860 kept his bank account here. The defendant did not know whether his name was ever in the directory of Cambridge or Boston. There was no evidence that the plaintiff ever knew of the defendant coming to Massachusetts except what is stated above. The defendant never saw the plaintiff but once from the time of giving the note while the plaintiff lived in Amherst to the present time.</p> <p>Payment of the note was first demanded in 1868 by a son of the plaintiff on his behalf.</p> <p>BE the court decides that the action can be maintained judgment is to be entered for the plaintiff for the amount of the note and interest; otherwise judgment for the defendant, or such other order as the court may deem necessary.</p> <p>The Superior Court ordered judgment for the plaintiff, ana the defendant appealed.</p> <p>1. The statute of limitations of this Commonwealth began to run in favor of the defendant on his coming into the state to live in the fall of 1856. Gen. Sts. c. 155, § 9. White v. Bailey, 3 Mass. 271. Byrne v. Crowninshield, 1 Pick. 263.</p> <p>2. The facts in this case do not bring it within the exception to the statute, because they do not show that the defendant was absent from and resided out of the state. The language of the statute implies that a person may have a residence out of the state and yet be-present here in such a way as to avail himself of the benefits of the same. The intention of the statute is to give to every person a right during the full period of the limitation, to commence a suit, and this right is fully secured to him in either case, when the party, against whom the cause of action is held, is personally present in the state and has a residence elsewhere, or when he is personally absent and leaves here his residence. Personal presence in the state was held sufficient to allow a party to avail himself of the statute in Turner v. Shearer, 6 Gray, 427. Absence from the state must be held to mean such an absence as to deprive a person of the ability to commence suit and make a valid service. The case shows that for a period of over twenty years the defendant was personally present in this state at a certain and fixed place where he transacted business to a large amount, daily, and during this whole time was subject to the jurisdiction of our courts. Any day during this period, valid service could have been made on him. Barrell v. Benjamin, 15 Mass. 354. Roberts v. Knights, 7 Allen, 449. He had a usual place of business during this time in Boston or Cambridge, within the meaning of the Gen. Sts. c. 123, § 1, fixing the venue of actions.</p>

<p>Bill in equity by Nathan D. Johnson and Minnie D. Johnson, an infant under the age of twenty-one years, by her next friend, alleging the following facts:</p> <p>The plaintiffs are the only heirs at law of Nathan Johnson, Nathan D. being a son and Minnie D. the daughter of another son, Samuel O., deceased. Nathan died February 24,1872. On July 3, 1844, Nathan, being seised in fee of certain real estate in Woburn, executed, together with Joseph H. Dorr and David Whiton of the second part, and Susannah Johnson, his wife, oí the third part, a conveyance in trust of the said real estate, together with all his personal property, to the said Dorr and Whiton, reciting that “ the said Nathan in consideration of love and affection, and for the purpose of securing to his said wife the income and profit of the estates hereafter described, and also securing the same to their children, proposed to convey the same in trust, to be held on the terms and conditions hereafter expressed,” and containing the following provisions: “ To have and to hold the same to the said parties of the second part, their heirs, executors, administrators and assigns forever. But upon the trusts nevertheless and to the uses and purposes following, to wit: The said parties of the second part shall hold said estates and personal property for the sole use and benefit of the said Susannah for and during her natural life ; and shall permit her to use and occupy the same free of all rents, she paying taxes and charges upon said estate, and keeping the buildings in proper repair; or in case she should not choose to occupy said premises, then said parties of the second part shall lease said estate and shall, after paying all the taxes and expenses and keeping said estate in repair, pay over the income thereof to the said Susannah during her natural life, and on her own personal receipt and not that of her said husband.</p> <p>“ And it is further agreed that in case the said Nathan shall survive the said Susannah, and she should die without having made her last will and testament, then said parties of the second part shall hold said real estate and personal property on the further trust as follows, to wit:</p> <p>“ The said parties of the second part shall, after paying all expenses and repairs, pay over to said Nathan two thirds of the net income of said estate during his natural life, and the other one third to the children of said Nathan and Susannah, to be divided equally among them, which said trust shall continue till the death of said Nathan, when the same shall cease.</p> <p>“ And it is further agreed that the said Susannah may, by her last will and testament, duly executed, devise and dispose of all said estate, and in case she does make such devise or disposition of said estate, then the same shall be carried into effect, instead of the trusts here created for the benefit of her said husband and children, and said estate shall be conveyed by the said parties of the second part according to the direction or disposition expressed in said last will.</p> <p>And the said parties of the second part shall from the income of said estate keep the same in proper repair, and they hereby agree so to do, and after paying all their reasonable expenses and charges to pay over the income thereof as above stated; and in case the said Susannah shall leave no last will and testament, and the said trust shall cease, then and after that the said parties of the second part shall convey the same to the person or persons legally entitled.”</p> <p>Susannah died on June 27,1848, leaving no will. The children of Nathan and Susannah were two sons, Nathan D., one of the plaintiffs, and Samuel O.</p> <p>On March 11, 1851, Adin Partridge, Edson E. Plimpton, and Jarvis A. Ames, copartners under the name of A. Partridge & Company, creditors of Samuel 0. Johnson, having on October 25, 1850, attached the interest of Samuel O. in and to any real estate in the county of Middlesex, and recovered judgment, caused an execution to be levied and extended upon the supposed interest of Samuel O. in an undivided half part of said real estate, held in trust, in part satisfaction of the execution; and the said judgment creditors surviving, and the heirs of one of them, Adin Partridge, deceased, still claim title under and by virtue of said levy in one undivided half part of the said real estate so held in trust.</p> <p>Joseph H. Dorr, one of the trustees, died in 1854, or thereabouts, and no successor to him in the trust has been appointed, and" David Whiton is now the sole trustee under said deed. Peter Thacher, of Newton, is the administrator of Nathan Johnson, and to settle the rights of his creditors, if any there be, so far as this real estate is concerned, is made a* party defendant to this bill.</p> <p>The prayer of the bill was for a decree that Minnie D. Johnson should hold an undivided moiety of the trust estate free from any claim or lien by reason of the levy ; that the trustee should convey the property to the plaintiffs; and that the surviving judgment creditors of said Samuel O. Johnson, and the heirs at law of Adin Partridge deceased, the other judgment creditor of Samuel O., and their representatives and assigns, be enjoined from letting up any title to said real estate, by virtue of said levy.</p> <p>Answers were filed by Whiton and Thacher, admitting the allegations of the bill, and submitting their rights to the consideration of the court. Plimpton answered, setting up his rights under the levy of the execution.</p> <p>Hearing before Ames, J., who reserved the case for the consideration of the full court, upon the bill, answers, a general replication, and a report, the substance of which was as follows :</p> <p>The matters and things set forth in the bill and in the answers of Peter Thacher and of David Whiton, in regard to the creation and terms of the alleged trust, the decease of Susannah Johnson, intestate, in the lifetime of her husband Nathan Johnson, are correctly and truly stated.</p> <p>It was also shown that Nathan Johnson, the father of said Samuel 0. and Nathan D., died in February, 1872, and no evidence was produced of the existence of any debts or valid claims against his estate.</p> <p>The firm of A. Partridge & Co. (composed of the persons alleged in the bill to be members of said firm) brought a suit at law against said Samuel O. Johnson, about October 25,1850, in which they caused his interest in one undivided half of the land described in the bill to be attached; and said suit was prosecuted to final judgment against said Samuel O. Johnson, upon which execution issued and was levied upon the property attached. Of the members of said firm Edson E. Plimpton is the only one who appears to answer to this suit, one of them, Adin Partridge, having deceased, and as to the other, Jarvis A. Ames, and the heirs of said Partridge, the bill has been ordered to be taken as confessed.</p> <p>1. The conveyance presents the ordinary case of a grant for life to the parents, with a vested remainder in fee to the children of the life tenants, as tenants in common. Perry on Trusts, § 320. Wight v. Shaw, 5 Cush. 56. Blanchard v. Blanchard, 1 Allen, 223. Darling v. Blanchard, 109 Mass. 176. White v. Curtis, 12 Gray, 54. White v. Wood-berry, 9 Pick. 136, 138. Gen Sts. c. 89, § 12. 2 Cruise Dig tit. 16, c. 1, §§ 7-36.</p> <p>2. No remainder will be construed to be contingent which may consistently be deemed vested. Eldridge v. Eldridge, 9 Cush, 516. Blanchard v. Blanchard, 1 Allen, 223, 225. Pike v, Stephenson, 99 Mass. 188.</p> <p>3. The language of this conveyance does not show an intention to postpone its vesting after the death of Mrs. Johnson. There Is no word or clause in the instrument indicating that the estate should not- become vested in the children of Mrs. Johnson until after the death of both herself and husband, or either of them, and therefore it would vest before their decease. Childs v. Russell, 11 Met. 16. Furness v. Fox, 1 Cush. 134. Eldridge v. Eldridge, 9 Cush. 516.</p> <p>4. It makes no difference that the legal estate, for the life of Mrs Johnson and her husband, was vested in a trustee. There was a vested remainder capable of seizure on execution. Gen. Sts. c. 89, § 12. Parker v. Converse, 5 Gray, 336, 339. Poor v. Considine, 6 Wall. 458. Phipps v. Ackers, 9 Cl. & F. 583. White v. Woodberry, 9 Pick. 136, 138. Gen. Sts. c. 103, § 1.</p>

Information in equity, filed October 25,1872, by the attorney general, at the relation of the harbor commissioners, under the St. of 1866, c. 149, § 5, to prevent the defendant from filling up flats and building a sea wall and driving piles thereon, in Miller’s River, a navigable river, within the tide waters of the Commonwealth.

Bill in equity, filed November 27, 1872, by the grantee of the mill property of the United Society of Shirley by a deed dated October 1, 1866, against Samuel Hazen, the owner of mill property higher up the same stream, and Benjamin S. Binney, lessee of one of said Hazen’s mills, to obtain the construction of a contract made April 17, 1865, between the trustees of the said United Society and the defendant Hazen, and praying that the defendants might be enjoined from violating…

<p>Under the statutes of the Commonwealth land is not “ dedicated for ” a cemetery cs for the burial of the dead, so as to be exempt from taxation, or “ used or appropriated ” to the purpose of a burial ground so as to entitle the owner to use it for that purpose for the future without municipal permission, until it has been devoted or set apart, and some active measures taken toward preparing the ground for that purpose.</p> <p>tn 1850, a parcel of land was conveyed to a cemetery corporation organized under the St. of 1841, c. 114, and the corporation voted to appropriate it to the purposes of a cemetery or burial place of the dead. In 1858, the vendor foreclosed a mortgage given by the corporation and took possession of the land. In 1868, another cemetery corporation voted to purchase the land for the purposes of its cemetery, and applied to the town, in which the land lay, for permission to use the land for burial purposes; the town refused to grant permission. The corporation then bought the land, and gave notice to the town that it was dedicated to the uses and purposes of a cemetery, and passed a vote that it was so dedicated. A house on the land was used by the gardener of the corporation, a hot-house for propagating plants for the cemetery was built thereon, and the land was used to pile manure, grave-markers, stone posts, wood and lumber for the cemetery, and for cutting sods for lots therein; but no part of the land was ever used for burials, or laid out into lots oi permanent avenues, and no attempt was made to sell any part of it for burial pur poses. Held, in an action to recover back a public tax levied on the land in 1870, ■that tie land had not been so “ dedicated for the burial of the dead,” within the Gen. Sts. c. 11, § 5, cl. 8, as tobe exempt from taxation.</p> <p>The provisions of the St. of 1855, c. 257, §§ 2, 3, and of the Gen. Sts. c. 28, § 5, that no land, except that already so used and appropriated, shall be used for- burial purposes other than private tombs, unless by permission of the town, or of the mayor and aldermen of the city in which the same is situated, are constitutional, and, under the Rev. Sts. c. 2, § 6, cl. 13, and the Gen. Sts. c. 3, § 7, cl. 13, extend to corporations for burial purposes, whose charters do not exempt them from the control of the Legislature in the exercise of its police power for the security of the public health and comfort.</p> <p>Under an article in a warrant for a town meeting “ to see what action the town will take relative to collecting the taxon” certain land, “and pass any votes on the subject that may be deemed proper,” the town voted to refer the subject matter of the article to the selectmen with full powers. Held, that the selectmen had no authority, in consideration of the tax being paid, to grant the owner of the land permission to use the land for burial purposes.</p>

<p>Writ of entry dated December 5, 1872, to foreclose a mortgage of land in Wrentham. Plea, nul disseisin, with a specification of defence that the tenant previously to the execution of the mortgage had leased the land to the demandants at a certain rent, and that by the provisio'ns of the mortgage the rent was to be applied to the debt secured by the mortgage, and that said debt had been fully paid by the rent. Trial in the Superior Court, before Wilkinson, J., who allowed a bill of exceptions in substance as follows:</p> <p>On April 4,1866, the tenant mortgaged the demanded premises, with the buildings thereon, and known as the Eagle Mills, to the demandants. The condition of the mortgage was that the grantor should pay to the grantees the sums of money for which the grantor was then indebted to the grantees, and all sums of money which should become due from the grantor to the grantees, by instalments with interest, two hundred dollars on October 1, 1866, and two hundred dollars at the expiration of each three months thereafter, until said debt should be paid in full. The mortgage also contained this clause: “It being agreed that said grantees shall receive said quarterly payments' in rent to the extent that rent shall become due from grantees, from the day of the date hereof, by the terms of a lease given by grantor to grantees of said granted premises bearing date February 7, 1866.”</p> <p>By this lease the tenant in this action leased to the demandants the same property afterwards mortgaged, for the term of five years from the completion of the mill on the premises, the lessees agreeing to furnish the lessor the money to complete it, and to pay twelve hundred dollars a year as rent, reserving to themselves the sum of two hundred dollars of each quarter’s rent in liquidation of any debt for money so advanced. The lease contained the following provision: “ In case the 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 proportionate 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 said lessor.”</p> <p>On the lease were the three following indorsements :</p> <p>“ Feb. 8, 1866. The lessor further agrees, as an additional part of this contract, that at the expiration of this lease, if the money loaned to him by said Garys for the completion of this mill, or other purposes, shall not be paid by the rents reserved in this lease, or otherwise, said Garys shall retain possession of the property leased until the balance due is fully paid, at the same rate per annum for rent, and that the money to be advanced by said Garys may not exceed four thousand dollars in any event, reserving to myself the privilege of protecting my water rights at Fisher mills, by keeping the waste way constantly open to the bottom; also to defend any encroachments by other parties of said right. J. M. Whiting.”</p> <p>“ April 4, 1866. The lessor within named hereby covenants and agrees with lessees, for the consideration within named, to let them continue to occupy the within property for the further term of six months after the expiration of the term for five years, upon the condition that they shall fulfil the conditions of this lease, and keep the same insured in the sum of six thousand dollars, for the benefit of lessor, without rent. J. M. Whiting, W. H. Cary, W. H. Cary, Jr.”</p> <p>“ Oct. 17, 1866. I do this day give the within named lessees full possession of the premises within leased, but no rent to commence until the completion of all the buildings, alterations and additions provided for in this lease. And I do hereby authorize the said lessees to make themselves (if they see fit) any and all the improvements in said premises, which I have herein agreed to make at my expense, and that said Garys may occupy said factory and building for the storage of machinery, and putting up shafting, &c., free of expense. J. M. Whiting.”</p> <p>It was admitted, that the demandants had been in uninter rupted possession of the leased premises since October 17, 1866 The tenant contended that by the true construction of the mortgage, with the lease and the indorsements thereon, the demand-ants were bound to receive whatever sums might be due to them under the mortgage, with interest, out of the rents reserved in the lease, and that, if sufficient rents had not accumulated to cancel said debt during the five years named in the body of the lease, they were authorized and required to hold the premises at the same rental, for such further period as might be necessary to cancel the whole mortgage debt; and that, the plaintiff still holding the premises under the lease, there was and could be no breach of the condition of the mortgage, even though the amount of rents, at the end of the five years, did not equal the sum due upon the mortgage. The judge declined so to rule, but instructed the jury that the demandants were entitled to a verdict if the evidence satisfied them that any sum was due upon the mortgage at the date of the writ.</p> <p>On February 25, 1868, the boarding-house used for the mill operatives upon the leased premises was destroyed by fire, and was never rebuilt, and the fair rental value of the same was two hundred dollars per annum. The tenant contended and asked the judge to instruct the jury that, under the clause in the lease which provided for an abatement of the rent in case of fire, the true measure of abatement was the fair rental value of the building so destroyed, and that the fact, that the loss of the building deprived the lessees of the only place within a convenient distance where their operatives could live, was not an element which could be considered by the jury for the purposes of allowing a farther abatement beyond the fair rental value of the building so destroyed. The judge declined so to instruct the jury, but did instruct them that the abatement to be made by them on account of the fire, was not limited by the rental value of the building destroyed, but should include any depreciation in the rental value of the remainder of the premises, if such depreciation was occasioned by the destruction of the boarding-house.</p> <p>The tenant contended that under the agreement indorsed upon the lease, dated April 4,1866, the demandants were not entitled to the six months’ occupation of the premises free of rent, until the full term of the lease itself was completed; that by a fair construction of the body of the lease, taken in connection with the indorsement of February 8, 1866, the lease was not to expire until the full amount due upon the mortgage was paid out of the rent reserved, or otherwise; and that no deduction of rent could be made by the jury under the agreement of April 4, 1866, in determining whether anything was- due upon the mortgage. But the judge instructed the jury that, in ascertaining whether there was any sum due upon the mortgage, they should not charge the plaintiffs with rent for the six months next following the expiration of the five years mentioned in the body of the lease.</p> <p>The jury found for the demandants; and the tenant alleged exceptions to the rulings, instructions and refusals to rule as requested.</p>

<p>Writ op entry by George W. Russ, Caroline E. Newcomb and Susannah S. Young, the heirs at law of Caroline Newcomb, deceased, intestate, to recover a lot of land in Quincy. Plea, nul disseisin. The case was submitted to the judgment of the Superior Court, and of this court on appeal, upon the following facts: In 1845, Jonathan Baxter, being seised and possessed of the demanded premises, together with other lands in Quincy, died intestate, leaving as his heirs at law five children, among them a daughter Caroline, (under whom the demandants claimed,) then married to James Newcomb. A division of his estate was effected by agreement among his heirs, and the demanded premises were included in the portion allotted to and accepted as her share by the daughter Caroline ; and the other four heirs executed a quitclaim deed to James Newcomb, her husband, of all their right, title, interest and estate in the demanded premises, describing them, dated April 23,1846, and duly acknowledged and recorded, for a nominal consideration of $690.50 ; but in fact James New-comb paid no consideration whatever for that release, and the real consideration for the same was the execution by said Caroline of several releases, to the other four heirs, of all her right, title, interest and estate in the other lands of which her father had died seised and possessed as aforesaid, which, by the said agreement among his heirs, had been severally allotted to and accepted by them for their shares of his estate.</p> <p>On August 10, 1857, James Newcomb conveyed the demanded premises by deed of warranty to George Newcomb, who conveyed the same by quitclaim deed of the same date to Caroline, wife of James Newcomb. Each of these deeds was duly acknowledged, and recorded on September 3, 1857, and was expressed to be for pecuniary consideration; but in fact no consideration was received by James Newcomb for this conveyance of the demanded premises to his wife through George Newcomb.</p> <p>On January 8, 1858, Caroline Newcomb died, never having made any conveyance of the demanded premises, or of any interest therein, and leaving her husband surviving her, and the demandants, her children and only heirs at law. The demand-ants, Caroline E. Newcomb and Susannah S. Young, are children of Caroline Newcomb by her said husband, James Newcomb, and the demandant Russ is a child of Caroline Newcomb by a former husband.</p> <p>On January 20, 1858, James Newcomb, being in possession of the demanded premises as tenant by the curtesy, executed a mortgage, which was duly acknowledged and recorded, (under a foreclosure of which and various mesne conveyances, none of which are in controversy, the tenant claims title,) of other lands by metes and bounds: “ And also all the right, title, interest or estate in and to a certain piece or parcel of land lying in Quincy, and bounded,” as therein described, (being the demanded premises,) “ the same being a part of the homestead estate of Jonathan Baxter, late of Quincy, deceased, as divided and set off by Lemuel Humphrey, Esq., of Weymouth, on Monday, the 20th day of April, 1846, containing four acres, be the same more or less, with all the privileges and appurtenances thereto belonging, intending hereby to convey all the title or estate in the said premises which was conveyed or passed to me, the grantor, by the deed of Jonathan Baxter and others, recorded with Norfolk deeds, lib. 163, fol. 307,” (being the quitclaim deed to him from the heirs of Jonathan Baxter above mentioned,) with full covenants of warranty.</p> <p>On February 15,1870, James Newcomb, having in the mean time married again, died, leaving a widow surviving him, and as his heirs at law the said Caroline E. Newcomb and Susannah S. Young, daughters by said Caroline Newcomb, and two other ehil ■ dren by other wives, and leaving assets of equal value at that time with the demanded premises, which descended to his said hems, subject to the widow’s dower.</p> <p>The case was argued in January, 1875, and reargued in March, 1875.</p>

<p>A contract, signed by three persons, recited that one of them had lent to a corporation a certain sum of money, payable at a fixed time, and continuo!, “ we, for value received, hereby jointly and severally guarantee the repayment of said loan and interest, at the time the same shall be payable.” Held, in an action by the lender against the other parties to the contract, that the legal effect of the instrument was that each of the parties should assume the liability of one third of the sum lent.</p> <p>If several contracts of different defendants are created by one written instrument, they may, by the Gen. Sts. c. 129, § 4, be joined in one action ; but if these contracts are distinct, they should be stated in different counts.</p> <p>If the cause assigned in the demurrer to a declaration is that it does not state a legal cause of action in accordance with the rules prescribed in the Gen. Sts. c. 129, and the particulars in which the alleged defect consists, are not set forth as required by § 12; yet, after the case has been submitted to the judgment of the Cfrnirt, the plaintiff cannot object that the demurrer is informal.</p>

Writ of ENTRY, dated February 9,1874, by the administrator with the will annexed of George Millard, to foreclose two mortgages of land in North Adams. Plea, nul disseisin, with a specification of defence that the tenant was in possession under claim of right and by force of the last will of George Millard.

<p>Petition for a writ of certiorari. The case was reserved by Colt, J., for the consideration of the full court upon the petition and answer, and was as follows:</p> <p>In 1874, the Adams and Cheshire Reservoir Company, the owner of a reservoir of water, with the land under the same and Sams connected therewith, used to maintain a uniform supply oi water for mill power, and liable to taxation therefor in the town of Cheshire, was assessed a tax of nine hundred dollars upon a valuation of sixty thousand dollars. In determining this valuation the asssessors made what was in their judgment a fair cash valuation of the property, and did not assess the tax as required by the St. of 1872, c. 306. The reservoir company then applied to the county commissioners for an abatement of the tax, who decided that the assessors should have valued the property as provided in said statute and abated the tax accordingly. •</p> <p>1. The St. of 1872, c. 306, is one of classification, not of exemption. The error of the petitioner is in assuming that the whole taxable value of a reservoir lies in the land and dam. On the contrary, it lies mostly in the use, in the water power which is created by its application elsewhere. Boston Manufacturing Co. v. Newton, 22 Pick. 22. Lowell v. County Commissioners, 6 Allen, 131. The statute does not meddle with that taxable value, but prescribes only what of the entire taxable value shall be taxed as land.</p> <p>2. If, however, the effect of this statute should be found to be to exempt from taxation some portion of the taxable value of such a reservoir, still it would not follow that it is unconstitutional. The Constitution, c. 5, § 2, enjoins upon the Legislature as a duty to encourage rewards and immunities for the promotion of manufactures. The concurrent and uninterrupted construction of the Constitution has authorized such exemptions. Such construction, repeated through a long series of years, ought to have great weight, and not to be overruled unless manifestly erroneous. Kendall v. Kingston, 5 Mass. 524, 534. Barnes v. First Parish in Falmouth, 6 Mass. 401, 417. Portland Bank v. Apthorp, 12 Mass. 252, 257.</p> <p>Machinery in cotton and woollen manufactories was exempted from taxation in 1818. 2 Mass. Laws (ed. 1823) 581 note. And it, together with sheep, continued to be exempted until the St. of 1828, c. 143. By the St. of 1821, c. 107, § 3, unimproved land was taxed at two per cent, on its value, all other property at six per cent, on its value. By the St. of 1872, c. 327, any city or town might for ten years exempt from taxation property used exclusively in the manufacture of beet sugar. See also Rev. Sts. c. 7, § 5 ; Gen. Sts. c. 11, § 5.</p>

<p>In an action upon a promissory note, the consideration of which was intoxicating liquors sold by the plaintiffs to the defendant, when the St. of 1869, c. 415, was in force, the answer alleged that the sale was in violation of law. At the trial the plaintiffs’ counsel was a witness in their behalf, and on cross-examination testified that the plaintiffs were grocers and had their place of business in Boston, and he believed that they were dealers in intoxicating liquors to some extent. The bill of parcels of the liquors sold, sent by the plaintiffs to the defendant, and put in evidence, described the plaintiffs as wholesale grocers and dealers in ship stores and salt provisions. The presiding judge instructed the jury that there was no sufficient evidence of the illegality of the sale competent for the consideration of the jury, there being no evidence tending to show that the plaintiffs were not manufacturers, or that the liquors were net in the original packages and imported by them. Held, that there was competent evidence on this issue, and that it should have been submitted to the jury.</p>

<p>Bill in equity by the lessees of the Stockbridge and Pittsfield Railroad Company, alleging encroachments upon the location of its road by the defendant corporation at various points in the towns of Lee, Stockbridge and West Stockbridge, and praying for a. njunction. The case was reserved by Colt, J., for the considt ation of the full court upon the pleadings and the report of a master, and appears in the opinion.</p>

<p>Contract on a policy of insurance, dated December 5, 1872, by which the defendant insured the plaintiffs “ against loss or damage by fire to the amount of one thousand dollars on their frame dwelling house, occupied by tenants, situate on the south aide of Clough Street, in Pittsfield, Mass., other insurance permitted ; ” and promised and agreed to make good to them all such immediate loss or damage, not exceeding the amount hereby insured, as shall happen by fire to the property as above specified, from December 1, 1872, to December 1, 1877; “ the amount of loss or damage to be estimated according to the actual cost value of the property at the time of the loss, and to be paid in sixty days after due notice and proofs of the same, made by the assured and received at this office, in accordance with the terms and provisions of this policy, unless the property be replaced, or the company have given notice of their intention to rebuild or repair the damaged premises, or if merchandise, or personal property, of restoring the same as before the fire.” “ Gunpowder is expressly prohibited from being deposited, stored or kept in any building insured, or containing any goods or merchandise insured by this policy, unless by special consent in writing on this policy; provided, that, if the premises above mentioned shall, at any time when such fire shall happen, be, in whole or in part, occupied for any purpose considered, rated or classifled as more hazardous, in the printed conditions hereunto annexed, than that described in the application, unless liberty so to occupy them be expressly stipulated for herein, or indorsed hereon by the president or secretary, then this policy, and every clause, article and thing herein contained shall be void and of no effect.” And it was further set forth on the face of the policy that “ this policy is made and accepted in reference to the written or printed application whereon it is issued, and also to the conditions hereto annexed, which are hereby made a part of this policy, and to be used and resorted to in order to explain the rights and obligations of the parties hereto, in all cases not herein otherwise specially provided for.”</p> <p>On the same sheet of paper, but after the signatures of the officers of the defendant company, and on a different page, were printed nineteen “ conditions of insurance,” of which the following only are material:</p> <p>“ 1. Applications for insurance on property must be in writing, and must specify the construction and materials of the building to be insured, or containing the property to be insured; by whom occupied; whether as a private dwelling or otherwise ; its situation with respect to contiguous buildings, and their construction and materials; and whether any manufacturing is carried on within or about it; and in relation to the insurance of goods and merchandise, the application must state whether or not they are of the description denominated hazardous, extra hazardous or specially hazardous; and such survey and description shall be taken and deemed to be a part and portion of the policy issued thereon, and a warranty on the part of the insured. Any alteration or repairs, made in or about the premises, must be made at the risk of the insured, unless allowed by this company.</p> <p>“ 2. If the property to be insured be held in trust, or on commission, or the building containing such property, or land upon which such building or property rests, be a leasehold, or other interest not absolute in the person applying for insurance, it must be so represented to the company, and expressed in the policy in writing, or otherwise the policy shall be void; and in case of loss, the names of the respective owners shall be set forth in the preliminary proofs of such loss, with their respective interests therein. Goods held on storage must be separately and specifically insured</p> <p>“ 3. Whenever gunpowder, phosphorus, saltpetre, coal oil oi any article subject to legal restriction, shall be kept cr used on said premises in quantities greater than the law allows, or in a manner different from that prescribed by law, this policy shall be null and void.</p> <p>“ 4. Books of accounts, written securities, evidences of debt, titles to property, ready money and profits, cannot be insured. Jewels, jewelry, plate, clocks, watches, medals, curiosities, paintings, engravings, sculpture, statuary and musical instruments, looking glasses, plate-glass, wall-paper, and bordering over fifty cents per piece, decorative painting, stucco work and fancy flooring, are not included in this policy, unless specified.</p> <p>“ 10. Persons sustaining loss or damage by fire shall forthwith give notice thereof in writing to the company, at their office, and as soon after as possible they shall deliver a true and particular account of their loss and damage, rendering to this company a schedule or list of articles destroyed or damaged, stating item by item and article by article. And they shall accompany the same with their oath or affirmation, declaring the said account to be true and just; showing also the ownership of the property insured ; what other insurance, if any, existed on the same property, and giving a copy of the written portion of the policy of each company; what was the whole cash value of the subject insured; what was their interest therein; in what general manner (as to trade, manufactory, merchandise or otherwise) the building insured, or containing the subject insured, and the several parts thereof, were occupied at the time of the loss, and who were the occupants of such building; and when and how the fire originated, so far as they know or believe. They shall also proluce a certificate, under the hand and seal of a magistrate, notary public or commissioner of deeds, most contiguous to the place of the fire, and not concerned in the loss, as a creditor or otherwise, or related to the insured or sufferers, stating that he has examined the circumstances attending the fire, loss or damage alleged; and that he is acquainted with the character and circumstances of the insured or claimant; and that he verily believes that he, she or they have, by misfortune, and without fraud or evil practice, sustained loss and damage on the subject insured to the amount which such magistrate, notary pi blic ot commissioner of deeds shall certify. When merchandise or other personal property is partially damaged, the insured shall forthwith cause it to be put in as good order as the nature of the case will admit, assorting and arranging the various articles according to their kinds, separating the damaged from the undamaged; and shall cause a list or inventory to be made and furnished to the company of the whole, naming the quantity and cost of each. The amount of sound value and of damage may then be ascertained by the examination and appraisal of each article, by disinterested appraisers, mutually agreed upon, one half of the appraisers’ fees to be paid by the insurers ; and the insured shall, if required, submit to an examination under oath, by the agent or attorney of the company, and answer all questions touching his, her or their knowledge of anything relating to such loss or damage, or to their claim thereupon, and subscribe such examination, the same being reduced to writing; and whenever required in writing, the insured, or person claiming, shall produce and exhibit his books of account and other vouchers to the insurers or their agent, at the office of this company, in support of his claim, and permit extracts and copies thereof to be made; and shall also produce certified copies of any bills or invoices of property destroyed or damaged, the originals of which may have been lost, mislaid or destroyed; and shall also exhibit to any persons named by the company, and shall permit it to be examined by them, any property damaged, on which any loss is claimed, or any property saved which was insured by this policy; and until such proofs, declarations and certificates are produced, and such appraisals and examinations of property permitted by the claimant, the loss shall not be payable. All fraud or attempt at fraud, by false swearing or otherwise, shall cause a forfeiture of all claim on this company under this policy.</p> <p>“ 13. Any concealment of facts in the application for this policy, such as other and more hazardous occupation, or an attempt to set the property on fire, or threats of the same, or anything which would add materially to the risk, such concealment will void the policy ; and when insured premises have been on fire, or an attempt made to fire the same, the assured must give immediate notice thereof to this office, otherwise this policy will be void.</p> <p>“ 14. In case of any other insurance upon the property hereby insured, whether prior or subsequent to the date of this policy the assured shall be entitled to recover of this company no greater proportion of the loss sustained than the sum hereby insured bears to the whole amount insured thereon, whether such other insurance be by specific or by general or floating policies.</p> <p>“ 16. Any building insured by this company, becoming vacant or tenantless for a period of thirty days, notice thereof must be immediately given to the secretary and his consent thereto obtained in writing, otherwise this policy shall be void.”</p> <p>Trial in the Superior Court, before Rockwell, J., who allowed a bill of exceptions in substance as follows :</p> <p>The building insured was owned by the plaintiffs subject to the right of dower of their mother. That right had been assigned and set off to her, and she had conveyed it to one Crosby, who had effected an insurance thereon in another company at the time the policy in suit was taken out, and Crosby, after the fire, was paid the amount insured by his policy. The building was destroyed by fire on August 19, 1873. On that day and for more than thirty days before, the portion of the building assigned in dower was occupied by the tenants of Crosby, and the plaintiffs’ part was unoccupied. .</p> <p>On October 7, 1873, the plaintiffs furnished the defendant with the preliminary proofs of the loss. The certificate required by the tenth condition of the policy to be made by the “ magistrate most contiguous to the place of the fire,” was made by George Gay, who lived in Pittsfield more than half a mile further from the building burned than two other magistrates.</p> <p>The defendant requested the judge to give the jury certain instructions, of which the following only are now material:</p> <p>“ 7th. The policy covered premises declared insured as occupied premises.</p> <p>“ 8th. The certificate by Gay is the procuring of the plaintiff. This should be truthful, and is intended for the protection of the insurance company against wrong being done them.</p> <p>“ 9th. The terms of this certificate refer to a magistrate nearest or most contiguous to the place where the fire was, viz.: the spot where the building burnt stood, one who would be apt to know and could easily know of what had existed and occurred.</p> <p>“ 10th. The plaintiffs are to make out that they have in all things complied with the requirements of the conditions 2, 10, 13, 14 and 16, of this policy.</p> <p>“ 12th. The calculation of the present value of a dower right has nothing to do with the right of the widow to the use and control of the land when set out to her.”</p> <p>The judge gave, instead of the seventh instruction requested, the following : “ The policy covered premises declared insured as occupied premises, but the mere fact that the premises were unoccupied at the time of the fire will not make the policy void, unless the jury are satisfied that the want of occupation increased the risk in this case; ” and refused the other requests above stated.</p> <p>The judge also instructed the jury, that, as it appeared that the magistrate Gay resided in Pittsfield, though at a distance of half a mile or more from the burnt premises, it would not vitiate the certificate made by him, to prove that the other magistrates lived in dwelling-houses nearer to the premises, and upon the next street; that the premises set off to the widow were hers to occupy during her life, and that she could legally convey her rights, and her grantee legally claim the premises so conveyed. The judge declined giving the twelfth instruction requested, being unable to perceive its bearing upon the case.</p> <p>The jury returned a verdict for the plaintiffs; and to the foregoing rulings and refusals to rule as requested the defendant alleged exceptions.</p>

Contract on two promissory notes, signed by the female defendant as principal, and Joseph N. Fuller, her husband, as surety. Trial in the Superior Court, without a jury, before Ba con, J., who allowed a bill of exceptions in substance as follows: The defendant Joseph hi. Fuller was defaulted. There was evidence tending to show that the goods sold, for which these notes were given, were sold on the sole credit of Lydia A. Fuller, wife of Joseph N. Fuller.

Tort for libel. The declaration alleged that the defendants printed and published of the plaintiff a certain article or item in their newspaper containing amongst other matter the following: “ It appears that Elbridge G. Woodard, whose wife (meaning the plaintiff) is employed in the kitchen of the Mansion House, had heard from intercepted letters, that one Bailey, a blacksmith of Shelburne Falls, had planned an elopement with Mrs. W. (meaning the plaintiff.)” The answer…

Trustee process by Peck Brothers & Company, a corporation under the laws of Connecticut, against H. R. Stratton and James Graves, late partners under the name of Stratton & Graves.

Bill of interpleader by the executor of the will of Brigham Carter.

Contract for money had and received. The declaration also contained a count alleging that the plaintiff took a mortgage from Ashur P. Freeman of a lot of tobacco to secure a promissory note signed by Freeman for the sum of $200; that, at the time the plaintiff took the mortgage, the defendant had also a mortgage of the same tobacco and of a wagon to secure the sum of $100 or thereabouts, the amount of the purchase money which Freeman had agreed to pay to the defendant for…

<p>A judgment for the plaintiff in an action for obstructing the flow of water in a natural stream and causing it to flow back upon the plaintiff’s land, in which the defendant’s answer contains a general denial and sets up a license from the plaintiff’s grantor, is not conclusive, in a subsequent action between the same parties fcr the removal of a dam, upon the question whether the defendant in the former attics and the plaintiff in this had the right to maintain the dam, if the record of the former action does not show that such right was then in issue, and the jury find that it was not, although it appears that the dam was the obstruction complained of in the first action.</p>

<p>Contract upon a bond executed by the defendant to Roswell Rice, the plaintiff’s intestate, and conditioned among other things for the support of the intestate and Amy Rice, his wife, during their lives and the life of the survivor of them. The cause was referred .to referees by an agreement of parties and rule of court whereby the judgment on the award was to be final.</p> <p>The referees made an award, that the condition of the bond had been broken, and that the damages caused by the breach amounted to the sum of $800.</p> <p>The award was ordered to be accepted by the Superior Court, judgment to be entered for the penal sum of the bond, .and execution to issue for the amount found by the referees. The defendant appealed.</p>

<p>Writ of error to reverse a judgment rendered by the Superior Court, at August term 1874, affirming a judgment of a justice of the peace, in favor of the defendant in error, in an action of contract. Plea, in nullo est erratum.</p> <p>The record showed that, in the original action, on the return day of the writ, the plaintiff appeared and entered the action, and the defendant appeared by David Mowry, one of the selectmen of the defendant town, and the action was continued to a day named, when the plaintiff appeared, and the defendant also appeared “ by said David Mowry, selectman as aforesaid, but not duly empowered by any vote of said town to defend said action,” whereupon upon motion of the plaintiff the defendant was defaulted, and judgment entered for the plaintiff against said defendant in the sum of $8.80 damage, and $7.52, costs; “ from which judgment the inhabitants of Leyden appealed ” to the next term of the Superior Court; that at said term of the Superior Court the defendant failed to enter its appeal, and the judgment of the justice of the peace was affirmed on complaint.</p> <p>The errors assigned were: First, that the Superior Court improperly took jurisdiction of said action in so far as to affirm the former action, because no valid or legal appeal had been taken by the inhabitants of Leyden, or by any one duly acting in their behalf ; Second, that the default was improperly entered by the justice of the peace, because said inhabitants were present, and were, duly represented by one of their selectmen, sufficiently authorized thereto in virtue of his official capacity ; and because, if said inhabitants were not so represented, it was the duty of the justice to have continued the action to enable said inhabitants to properly defend the same.</p> <p>1. The record should have stated through whom the inhabitants of Leyden claimed the alleged appeal, as it did through whom it claimed to defend. Sayles v. Briggs, 4 Met. 421. Wells v. Stevens, 2 Gray, 115. The implication, however, clearly is that the town was represented throughout by the same person, namely, Mowry.</p> <p>2. It has never been decided in this Commonwealth that selectmen have not, by virtue of their general authority, power to defend an action of this kind. Bursley v. Barnstable, 14 Gray, 106. Walpole v. Gray, 11 Allen, 149. Butler v. Charlestown, 7 Gray, 12. Lexington v. Mulliken, 7 Gray, 280. Clark v. Russell, 116 Mass. 455.</p> <p>3. The objection not having been taken on the return day of the writ, and Mowry having then been allowed to appear, it was too late to make it afterwards. The objection being made and entertained, and the town, being denied the right to defend through the person who appeared for it, could not then claim or be deemed to have taken an appeal through the same person, he having by the decision of the justice no standing in court for that purpose. This writ therefore can be maintained. Skipwith v. Hill, 2 Mass. 35. Putnam v. Churchill, 4 Mass. 516.</p>

Tort for injuries occasioned by an alleged defect in a highway which the defendant was bound to keep in repair. Writ dated September 8, 1874.

Contract on an account annexed to recover $100 for services in taking depositions to be used in an action pending in California, and $25 for the services of counsel. At the trial in the Superior Court, before Brigham, C. J., the plaintiff testified as' follows: “ The defendant came to me in 1869, to have me take the depositions of himself and wife. I was employed to look after this matter by the defendant.

Contract on an account annexed to recover the price of intoxicating liquors sold by the plaintiffs to the defendant, at different times in 1871. The defendant filed an answer alleging that the sales were in violation of law, and also a declaration in set-off to recover back the sum. of $215, paid by the defendant to the plaintiff for intoxicating liquors.

Tort for the conversion of a quantity of tobacco. Trial in the Superior Court, before Allen, J., without a jury, who allowed a bill of exceptions in substance as follows : The tobacco was grown by James H. Saxton in 1872, and on November 24, 1873, he conveyed it by a mortgage, recorded the same day, together with other articles, the produce of his farm in 1873, to John H. Stebbins, to secure his note of $2000 dated September 21, 1872, payable to Stebbins or order, on demand.

Tort for an injury occasioned to Joseph Craig, the plaintiff's testator, by a train of the defendant coming into collision with a wagon, in which he was driving, at a crossing of the railroad and a highway in Springfield.

<p>An instrument, purporting to be signed by J. S., which is made payable to the order of J. S., is not a promissory note until indorsed, and an indictment for forgery which charges in separate counts the making and uttering of such a promissory note, without setting out an indorsement by J. S., cannot be sustained, it appearing in evidence at the trial that there was but one J. S.</p> <p>An indictment charged that the defendant did falsely make, alter, forge and counterfeit a certain indorsement upon a certain false, forged and counterfeited promissory note for the payment of money, and set forth the note and indorsement, by which it appeared that the note was payable to the order of J. S., and purported to be signed and indorsed by J. S. Held, that the allegation that the defendant forged the indorsement upon a promissory note might be sustained, although the writing became a promissory note only by means of such indorsement.</p>

<p>Guilty knowledge is not one of the ingredients in the offence created by the St. of 1869, c. 152, § 4, imposing a penalty npon any person who shall sell, or keep, or offer for sale, naphtha under any assumed name.</p> <p>Upon a complaint on the St. of 1869, c. 152, § 4, charging the defendant with keeping naphtha and offering it for sale, the defendant admitted that he kept for sale an article which was once naphtha, but contended that it had been combined with chemical agents so as to counteract its explosive qualities as naphtha. The presiding judge instructed the jnry that they were “ to decide whether the article alleged and admitted to be kept and offered for sale was substantially naphtha or not.” Held, that the use of the word “ substantially” in the charge afforded the defendant no ground of exception.</p>

<p>The provision of the Gen. Sts. c. 161, § 42, that, in prosecutions for embezzlement, “it shall be sufficient to allege generally in the indictment an embezzlement” “of money to a certain amount, without specifying any particulars of such embezzlement,” is not in conflict with article 12 of the Declaration of Rights.</p> <p>An indictment under the Gen. Sts. c. 161, § 42, which charges a defendant with the embezzlement at a time and place stated of “ certain money to the amount and value of twenty-five thousand dollars,” sufficiently describes the property embezzled.</p> <p>An indictment for embezzlement, which charges that the defendant did receive and take “ certain money of A.,” sufficiently alleges that the money was the property of A.</p> <p>On the trial of an indictment on the Gen. Sts. e. 161, § 42, charging the defendant, as “ clerk, servant or agent,” with embezzling the money of his employer on September 1, the government, for the purpose of proving the embezzlement, put in evidence the books of the employer containing entries by the defendant from October 1 of the same year to February 6 of the next year, and offered in evidence a transaction under dates of October 1, 2, 3, showing errors in addition, and that the apparent receipts were less than the actual receipts, and also evidence of other similar transactions, with similar errors, during October, and false charges on February 2 and 6 following. The government contended that these separate trans actions after October 3, could be put in evidence and the defendant convicted of embezzling the whole amount. The defendant objected to the admission of any transaction after October 3. The judge ruled that under the indictment, the defendant could he convicted of only one act of embezzlement, but that evidence of his other acts was competent on the question of intent. The government then pul in evidence of admissions by the defendant, in regard to the false entries of February 2 and 6, to the effect that he took $75 on February 2 and $300 on February S, but there was no evidence that he took money on any of the previous dates, except what appeared upon the books as introduced. The judge ruled, as requested by the defendant, that the evidence presented by the books would not in itself amount to an embezzlement or alone warrant a conviction. The government was then allowed to elect and rely upon the transaction of February 6 as the principal embezzlement, and that of February 2 as evidence of the intent with which that act was done. Held, it not appearing that the government had made any previous election, that it was within the discretion of the presiding judge to allow the government to make this election, that his ruling thereon was not subject to exception, and that his previous rulings were correct.</p> <p>On the trial of an indictment on the Gen. Sts. c. 161, § 42, charging the defendant, as “ clerk, servant or agent,” with embezzling money from a partnership, one of the firm testified that the defendant had been in the employment of the firm for many years, that about five years prior to the embezzlement an agreement was made with the defendant and a third person by which the defendant was after-wards to receive for his services a certain salary per year and also five per cent, of the profits computed semi sanually and that he had so continued until after the embezzlement, receiving the salary and profits when there were any; that for the past one or two years there had been no profits; that the defendant had, since the agreement, received certain profits; that there was an agreement that the defendant should not share losses; that the witness and his partner had, since the agreement, spoken to each other of having the name of the defendant printed with theirs on the cards and bill-heads of the firm, intended to do so, but were prevented by the fact that they had a supply of the old ones on hand, and that the defendant was only a bookkeeper. Held, that the defendant was not a partner, and that a ruling by the presiding judge that he could not be convicted, if he supposed when ha took the money that he was a partner, was sufiiciently favorable to him, and afforded no ground of exception.</p> <p>On the trial of an indictment on the Gen. Sts. c. 161, § 42, charging the defendant, as “clerk, servant or agent,” with embezzling money from his employer, and fraudulently converting it to his own use, there was evidence that the defendant was a bookkeeper, and that he admitted taking money on a certain day; that then was a money-drawer in the office in which all moneys paid in should go. It die not appear that he had any authority, or that it was any part of his duty to receive any money, and there was no evidence to show whether the money taken was taker from the drawer or otherwise. The judge instructed the jury that if the rncmej was in the possession of the defendant by virtue of his employment, and he took il under these circumstances, and fraudulently converted it to his own use, he woulc be liable to conviction under the indictment; but that if the money, before thi taking, had passed into the possession of the firm, and was placed in the money drawer, and was not thus under his control, o.r in his possession, the defendani could not be convicted under the indictment. Held, that there was evidence t< warrant a verdict of guilty, and that the defendant had no ground of exception ti the instruction given.</p>

<p>Complaint to the District Court of Central Berkshire, under the Gen. Sts. c. 87, § 6, alleging that the defendant at Hinsdale, “ on the first day of May, in the year of our Lord one thousand eight hundred and seventy-five, with force and arms, at Hinsdale aforesaid, in the county aforesaid, and on divers other days and times between that day and the twenty-first day of June, in the year of our Lord one thousand eight hundred and seventy-five, knowingly, willingly and unlawfully did keep and maintain a certain common nuisance, to wit: a tenement in said Hinsdale, there situate, then and on said other days and times there used for the illegal keeping and illegal sale of intoxicating liquors, against the peace of the Commonwealth, and contrary to the form of the statutes in such cases made and provided.”</p> <p>At the trial in the Superior Court, before Rockwell, J., on appeal, the defendant moved to dismiss the complaint and all proceedings, for the following reasons:</p> <p>“ 1. The complaint does not set forth any offence for which' the defendant can be held.</p> <p>“ 2. All the allegations in said complaint may be proved, and yet the defendant not -be liable under the same. “ 3. The complaint does not set forth any offence with that degree of certainty and precision required under the law.</p> <p>“4. It is no offence to keep intoxicating liquors. Only the sale, keeping or exposing for sale is made an offence under the law of 1875. The complaint must be for illegal sales, not for keeping a nuisance. No action can be maintained for keeping a lommon nuisance.”</p> <p>The judge overruled the defendant’s motion. The jury returned a verdict of guilty; and the defendant alleged exceptions.</p> <p>1. The complaint is drawn under the Gen. Sts. c. 87, § 6. This section makes any building used for the sale of intoxicating liquors, legally or illegally, a nuisance. The St. of 1875, c. 99, authorizes the granting of licenses, when sales may be made legally. By § 22, all inconsistent acts or parts of acts are repealed. Section 6 of the Gen, Sts. c. 87, being inconsistent therewith, is repealed.</p> <p>2. The St. of 1875, c. 99, regulates the sale of intoxicating liquor. By § 1, it is provided that nothing in said chapter contained shall apply to “ sales of cider and of native wines by the makers thereof,” not to be drunk on the premises. There is no law requiring a person to have a license or any authority whatever for the purpose of selling cider or native wines, not to be drunk on the premises.. The defendant, relying on no license, appointment or authority for his justification in the trial of said action, the burden of proof changes to the Commonwealth, and the St. of 1864, c. 121, does not apply. The Commonwealth must therefore set forth in the complaint and prove that the defendant had no license or authority, and that the liquors were sold to be drunk on the premises. “ It is an elementary principle of the criminal law, that a want of averment cannot be helped by evidence, and that a jury cannot convict a person of any crime, however clearly it may be proved, unless it is duly and technically set forth in the indictment.” Bigelow, C. J., in Green v. Commonwealth, 12 Allen, 155, 171. Commonwealth v. Phillips, 16 Pick. 211.</p> <p>The complaint should aver that the intoxicating liquors kept by the defendant were intoxicating liquors other than cider and native wine by the makers thereof, and not to be drunk on the premises.</p>

Indictment found and returned at March term 1875, of the Superior Court, averring that Cornelius Bulman, of Greenfield, in the county of Franklin, on October 1,1874, “ at Montague in the county aforesaid, and on divers other days and times between said last mentioned day and the day of finding this indictment, at said Montague, did keep and maintain a certain common, ill-governed and disorderly house there situate, and in the said house, for his own lucre and gain, certain…

Complaint, on the St. of 1869, c. 344, § 1, to the First District Court of Eastern Worcester, averring, in the first count, that E. W. Whitman of Westboro, in the county of Worcester, on August 12, 1874, “at said Westboro, having the charge or custody of a certain animal, to wit, a cow, did then and there cruelly torture and mutilate said cow, by then and there beating, bruising, cutting and wounding said cow, and did then and there unnecessarily fail to provide proper food…

Indictment for forgery, charging the defendant in the first count with making, and in the second with uttering, a promissory note of the tenor following: “ $876. Worcester, Mass., July 9th, 1874. Four months after date, I promise to pay to the order of G. R. Henry, eight hundred and seventy-six dollars, at Central National Bank, Worcester. Value received.

<p>In an action to recover for injuries to the plaintiff’s horses, occasioned by an alleged defect in a highway arising from the want of a sufficient railing by the aide of a bridge, from which the horses fell, there was evidence that a well defined portion of the road within its located limits, at a place where the road approached and crossed the bridge, had been raised up, crowned in the centre, and in that way prepared for public travel; that on the side of this elevated portion of the way an other lower, well-trodden way had been made by sleighs passing along it to get better sleighing; that as the lower track approached the bridge it turned up into the higher track, and, after crossing the bridge, turned again into the lower track; that no provision had been made for travellers to go down from the wrought to the side track, or to return therefrom. The evidence was conflicting upon the question whether the side track had been purposely constructed for winter travel. At the time of the accident the plaintiff had been driving in his sjeigh along the lower track until he came to the bridge, and was turning up toward the crowned centre of the road, which at that point was worn smooth towards the sides by sleighs, when his horses slipped and fell over the side of the bridge. The jury were instructed, upon the question of the plaintiff’s care, that if the accident was in any respect attributable to the plaintiff’s being out of the proper or wrought track of the road, and would not have occurred if he had travelled in the wrought track, and he left the wrought road intentionally and for no reason except to get better sleighing, he would not be entitled to recover. Held, that this ruling was erroneous, and that the question whether the plaintiff was in the exercise of due care was for the jury.</p>

<p>Contract on a policy of insurance by which the defendant insured Justin R. Smith, the plaintiff’s intestate, for the term of five years from August 13,1873, “ against loss or damage by fire, under the conditions and limitations hereinafter expressed, in the sum of $1300, as follows : $1000 on his two story frame dwelling-house and wood-shed connected ; $100 on his household furniture therein; $100 on his barn and shed connected; $100 on bis hay therein; situate in West Whately, Massachusetts, and occupied by himself for a dwelling and private barn. $2200 insurance on said house, $300 on the barn, $250 on said furniture, and $100 on said hay, elsewhere.”</p> <p>The policy contained the following provisions: “ This company shall in no event be liable till the actual payment of the premium, nor beyond the sum insured, nor beyond three fourths the actual value of the property insured at the time of the loss or damage.” “ And the insured hereby covenants and engages that the representation given in the application for this insurance contains a just, full and true exposition of all the facts and circumstances in regard to the condition, situation, value and risk of the property insured, so far as the same are known to him, and if any material fact or circumstance shall not have been fully represented, or if the insured shall make any attempt to defraud the said company, then, and in any such case, this policy shall be null and void, unless confirmed by a new agreement thereon written after a full knowledge of such facts and circumstances.”</p> <p>“ In case of loss, the insured shall forthwith render to saiv company a particular statement in writing, signed and sworn to by him, of the value of the property insured, the amount of the loss or damage thereon, his interest therein, all other insurance thereon ; the purpose for which,, and by whom, the building insured, or containing the property insured, was occupied; the cause or origin of the fire, so far as known; and, if required, submit his books of account and other proper vouchers to the examination of the company.” “ In case of other insurance upon the property hereby insured, whether prior or subsequent to the date of this policy, whether the same shall be binding as a contract of insurance on the parties thereto or not, the insured shall not, in case of loss, receive any greater portion of the loss or damage sustained than the amount hereby insured shall bear to the whole amount insured on said property as herein stated.”</p> <p>At the trial in the Superior Court, before JBaoon, J., the evidence was conflicting as to the value of the house and shed destroyed. It was admitted that the Whately Mutual Fire Insurance Company had insured, for the sum of $2200, the house and shed described in this policy, and that that company had adjusted the loss by the payment of a sum greater than three fourths of the value of the house and shed as found by the jury. The plaintiff asked the judge to instruct the jury that the defendant company would be liable, in the absence of fraud, for £§ of the actual loss, provided said portion of the loss did not exceed $1000; but the judge declined so to rule, and instructed the jury that the plaintiff could in no event recover from both insurance companies more than three fourths of the actual loss, and that if the Whately Company had already paid the plaintiff an amount equal to or greater than three fourths of the actual loss, they should return a verdict for the defendant.</p> <p>The plaintiff offered evidence tending to show that he had made, under oath, due proof of his loss by such a statement as is required by the terms of the policy, and it appeared by that statement that the insured made oath that the cash value of the dwelling-house and shed, at the time of loss, was $4300.</p> <p>The defendant also offered evidence tending to show that the insured fraudulently obtained the insurance for which the policy in suit was given, falsely and fraudulently representing that the house and shed- insured were worth not less than $4000, namely, from $4300 to $4500.</p> <p>The jury returned a verdict for the defendant; and found specially that the actual value of the house and shed at the time of insurance, and at the time of the loss, was $2213; that Smith represented the value of the property to be $4500, for the purpose of procuring the insurance obtained from the defendant; and to the question whether Smith knew or had reason to believe, at the time of the insurance and at the time of the loss, or at either time, that the actual value was $2213, reported that they were unable to agree. The plaintiff alleged exceptions to the rulings and refusals to rule.</p>

<p>Contract on a bond executed by Abner Woodward as principal, and Samuel J. Lyons as surety, on a petition for review of a judgment of the Superior Court, recovered by the present plaintiff at March term 1870, in an action against him by Woodward. The case was submitted to the Superior Court, and, after judgment for the defendants, to this court, on appeal, on an agreed statement of facts, the substance of which appears in the opinion.</p>

Contract against Justin Thayer, George Sergeant, Luke Lyman arid Samuel F. Warner, copartners doing business under the firm name of Thayer, Sergeant & Company, on the following promissory note, signed “ S. F. Warner,” and indorsed “ Thayer, Sergeant & Co.” : “ Northampton, Mass., Nov. 1st, 1872. One year from date, I promise to pay to the order of Thayer, Sergeant & Co., one thousand dollars, at ten per cent, interest, value received.” Warner was defaulted.

<p>In an action against a mutual fire insurance company upon a policy of insurance against fire, it appeared that a by-law of the company provided that: “ If the insured shall neglect for the space of ten days, when personally called on, or after notice in writing has been left at his last and usual place of abode or business, to pay any assessments, the risk of the company shall be suspended until the same is paid; and if the assured shall refuse to pay any assessment, or if for any other cause the risk is considered unequal or injurious to the company, the directors may terminate the same by giving notice thereof in writing, signed by the secretary, either personally or by mail to the insured.” The company levied an assessment and sent notice to thi plaintiff of the amount due on his policy, and that a failure to respond for thirty days would render the policy void. • The notice was signed by the treasurer and accompanied by a statement of the condition of the company, and a copy of the vote of the directors, signed by the secretary. The vote recited that the policies of all holders who paid the assessment according to law should continue in force, and the policies of all holders who should not pay the same within thirty days after the time when the same was collectible should be cancelled. The assessment was not paid, and nothing further was done by the company in regard to the policy before the property insured was destroyed by fire, more than thirty days after the notice was received. Held, that a failure to pay the assessment within ten days after notice suspended the risk under the first clause of the by-law; that the vote of the directors had reference merely to the second clause of the by-law; and that the plaintiff could not maintain the action.</p> <p>A by-law of a mutual fire insurance company provided that: “ If the insured shall neglect for the space of ten days, when personally called on, or after notice in writing has been left at his last and usual place of abode or business, to pay any assessment, the risk of the company on the policy shall be suspended until the same is paid.” A policy holder was not personally called on for an assessment, and a notice in writing was not left at his last and usual place of abode or business, but he received a notice by mail, and had some correspondence with the company about the assessment, which he did not pay, but made no objection to the way in which the notice reached him, until after the building insured was destroyed by fire, some months after the notice was received. Held, in an action on the policy, that any objection, to the manner of receiving the notice, must be deemed to have been waived.</p> <p>If the by-law of a mutual fire insurance company provides that any risk insured shall be suspended, unless an assessment is paid within a certain time, it is not a valid excuse on the part of a member, for a neglect to pay the assessment, that the company owes him a less sum, if he does not offer to pay the balance.</p>

<p>In an action to recover an ascertained debt, it appeared that after the money was dne the defendant’s counsel informed the plaintiff that the defendant was insolvent, that there was a valid mortgage on all his property, and that one of the mortgagees would advance and pay twenty-five per cent, to settle the defendant’s debt. The plaintiff declined this offer, and brought suit upon his claim. The mortgagees afterwards consented to a conveyance of the defendant’s property for the distribution of the proceeds proportionately among the creditors, all of whom, including the plaintiff, were notified of the conveyance, but not of its terms and conditions. The property was fairly disposed of, and notes in payment were taken to the order of the defendant’s counsel, who distributed the proceeds in good faith, and sent the plaintiff, who was not informed of these proceedings, a check for a less sum than his claim “in settlement of” his “account.” Held, that the plaintiff, by accepting such part payment, was not precluded from recovering the rest of his claim.</p>

Trustee process. Writ dated August 81, 1874. Clark W. Fuller, summoned as trustee, answered, denying that, at the time of the service of the writ upon him, he had in his hands and possession any goods, effects and credits of the principal defendant, liable to be taken in said process; and alleging that he had a mortgage, a copy of which was annexed to his answer, given by the principal defendant, of certain goods, which had been specifically attached in this action, that he…

<p>The treasurer of a town, who has held the office for many consecutive years, and has accounted with the town by annual settlements, carrying forward the balance of each year’s account into the new account, is barred by the statute of limitations from showing errors and omissions in an account rendered by him more than six years before the date of the writ.</p>

Contract to recover $200 and damages for breach of the following agreement signed by the plaintiff and the defendant: “ These articles of agreement made this twentieth day of September, A. D. 1870, by and between- George E. Frothingham, M. D., of the first part, and Christopher Seymour, of the second part, witnesseth, In primis, That the said parties mutually covenant and agree that they will practise and pursue together the' profession and occupation of physician and…

<p>In an action to recover the price of goods sold to a firm, one member of which wai an infant at the time of the sale, it appeared that the action was brought before the infant became of age, and that a portion of the goods sold were attached upon the writ among other goods; that the attached goods were sold at auction by consent of all parties, and were bid off by the grandfather and guardian of the infant; that the int&nt after'becoming of age purchased the goods from his grandfather, and afterwards used and sold them for his sole benefit. Held, that upon these facts the jury wouiu not be warranted in finding that the infant after he be came of age intended to ratify the original contract.</p> <p>The St. of 1863, c. 165, enacting that the provisions of the Gen. Sts. c. 108, § 3, “ authorizing a married woman to carry on any trade or business on her sole and separate account, shall be so construed as not to allow her to enter into copartnership in business with any person,” in legal effect declares that no married woman shall enter into a partnership in the future; and is constitutional.</p>

Writ op entry, dated February 27, 1871, by the administratrix of Amasa Davis,, to foreclose a mortgage of land in Palmer.

Contract to recover the value of a horse delivered by the plaintiff to the defendant, with a count for money had and received.

Contract. Writ dated September 13, 1871. The officer’s return was as follows: “ Hampden, ss. October 3, 1871.

<p>Tort for an assault and battery.</p> <p>At the trial in the Superior Court, before Rockwell, J., the plaintiff testified that the defendant assaulted him, and struck him a severe blow with a slung-shot upon the head. The defendant contended, among other things, that the plaintiff was drunk at the time of the alleged assault, and did not know what took .place, so as to be able to testify in relation to the occurrence. He cross-examined the plaintiff in relation thereto, and also asked him if he had not been drunk at other times, and the plaintiff admitted he had once been convicted of drunkenness a few days before the trial.</p> <p>The defendant also contended that no slung-shot was used. The plaintiff, in putting in his case after this cross-examination, called W. G. Ham, who testified that he was chief of police in Holyoke, and had known the plaintiff for many years. The plaintiff asked him what was the general reputation of the plaintiff for sobriety. The defendant objected. The court overruled the objection, and the witness testified, that he never knew of his being out of the way in that respect. Ham also testified that the defendant told him that he did not use a slung-shot, but that he struck the plaintiff with his fist.</p> <p>The plaintiff also called one Pierce, who testified he had seen the plaintiff at different times since he was hurt; that the man did not appear as he formerly had, that he seemed absent-minded and confused when he saw him, and that he had never seen him at these times in the least affected by liquor. To the admission of this evidence concerning the sobriety of the plaintiff the defendant objected, but the judge admitted it.</p> <p>The jury found for the plaintiff; and the defendant alleged exceptions.</p>

Contract by the administrators of the estate of Morris Morton against the executrix of John B. Hall, on a promissory note .indorsed by the defendant’s testator to the plaintiffs’ intestate. Answer, payment.

Bill in equity, filed January 4, 1875, against C. H. Heywood, Francis Cogin, Robert B. Johnson and Jones S. Davis, alleging the following facts: On January 28, 1871, Jones S. Davis, being the owner of certain real estate in Holyoke and Chicopee, mortgaged it to the defendant Heywood to secure payment of $7500 on demand, with interest at seven per cent.

<p>Writ of entry, dated September 25, 1873, under the Gen. Sts. e. 103, § 48, to recover a parcel of land on Union Street, in Spri agfield, which was attached under the Gen. Sts. c. 123, § 55, as land of Munroe C. Heath, standing in the name of Jane A. Heath. Plea, nul disseisin. The case was submitted to the Superior Court upon the following agreed statement of facts :</p> <p>Tkf iemanded premises were conveyed by Munroe C. Heath to his father, William Heath, on December 11, 1871, and by William Heath to Jane A. Heath, on December 14,1871, both conveyances being subject to a mortgage for $800 to the Springfield Institute for Savings, which mortgage was afterwards paid by Jane A. Heath, who on July 1,1872, mortgaged the premises to Adeline Bestor. On December 18, 1872, the demandant brought a suit against Munroe C. Heath upon a promissory note signed by him, dated November 2, 1872, and the officei who served the writ returned a special attachment of the demanded premises as real estate of Munroe C. Heath, standing in the name of Jane A. Heath, but the name of Jane A. Heath was not entered upon the attachment book in the clerk’s office as required by the Gen. Sts. e. 123, § 56. In all other respects the attachment was properly made and a copy of the writ deposited. Judgment was obtained against Munroe C. Heath at March term 1873, of the Superior Court, and execution was levied upon the demanded premises May 1, 1873, within thirty days from the late of judgment, and they were sold under said execution in the following September to the demandant.</p> <p>It is also agreed, if it is competent to be proved against the demandant’s objection, that in the notice of said sale, published in the Springfield Daily Union, the premises were described as on. Avon Street instead of Union Street, which said notice contained, among other things, the. following description: “All the right in equity that Munroe C. Heath,” &c., “ certain mortgaged real estate lying in said Springfield, described as follows: a certain lot of land situate on Avon Street in said Springfield, bounded northerly by said street, east by land of one Pease, south by land of L. S. Taylor, and west by land of one Connor, being the same premises described in deed from William Heath to Jane Heath and recorded in Hampden County Registry of Deeds, book 285, page 487. The legal or recorded title standing in the name of Jane A. Heath, the same being fraudulently conveyed by the said Munroe C. Heath.”</p> <p>The land was in fact situated upon Union Street, and was so described in the officer’s return and the other papers and proceedings relating to the attachment and levy. There was no such street in Springfield as Avon Street, and the description of the property was in other respects correct. There was, however, an avenue opening out of one of the streets called Avon Place, but the other portions of the description were not applicable to said avenue.</p> <p>The tenant claims title to the demanded premises under a deed of warranty from Jane A. Heath, dated July 14, 1873, subject to the mortgage to Adeline Bestor, which she assumed as a part of the consideration. The conveyance was for an adequate consid eration, and was taken in good faith and without any knowledge of the attachment of the demandant, or of the levy of his execution against Munroe C. Heath.</p> <p>The conveyances from Munroe C. Heath to William Heath, and from William Heath to Jane A. Heath, were made and accepted with a view to prevent the conveyed property from being attached by the then existing and future creditors of Munroe 0. Heath.</p> <p>If the dsmandant, upon the above statement of facts, has shown a valid title as against the tenant, then judgment is to be entered for the demandant; otherwise for the tenant.</p> <p>Upon the foregoing facts, Brigham, C. J., ruled that the demandant was entitled to recover, and ordered judgment for him; and the tenant alleged exceptions.</p>

Contract. The second count of the declaration was as follows : “ The plaintiff says he sold certain real estate to the defendant, and the defendant agreed to pay in part therefor by giving him two promissory notes of $100 each, signed by Thomas J. Pomeroy, and which the defendant agreed to guarantee and .nake himself liable therefor; but the defendant did not do as he agreed respecting said notes, but refused so to do, and the plaintiS says the defendant owes him $218.10 as…

Writ of entry, dated February 18, 1874, to recover a parcel of land in Springfield. Plea, nul disseisin.

<p>Motion to the Superior Court for a new trial, on the ground of newly discovered evidence. Annexed to the motion were various affidavits of the defendant and his witnesses, and certain letters of the plaintiff. Hearing before Dewey, J., who allowed a bill of exceptions in substance as follows":</p> <p>The original action was in tort for deceit and conspiracy, in which the defendant and Samuel K. Elliott were charged with conspiracy to defraud the plaintiff by passing to him, as collateral security for Elliott’s note of $800, a forged and fictitious promissory note, purporting to be for the sum of $750. See 116 Mass. 148. After verdict, at December term 1874, and before judg ment, the defendant moved to arrest judgment, set aside the ver diet, and grant a new trial, on the ground that since the verdict the plaintiff had received sufficient property of Elliott to pay or secure him for Elliott’s note. The motion and affidavits annexed thereto were made part of the bill of exceptions.</p> <p>At the hearing, the defendant’s counsel objected to the introduction of any oral evidence, either from the plaintiff or the defendant, to prove or disprove the affidavits, no affidavits having been filed by the plaintiff to oppose the motion, the facts not being of record upon which the motion was based, and the defendant having no notice of what the plaintiff would prove in opposition to the motion. The judge admitted evidence offered by the plaintiff in opposition to the allegations in the motion, and requested the defendant to produce his witnesses in court for examination, instead of hearing and deciding the case on the affidavits filed; to which the defendant excepted.</p> <p>It appeared by the affidavits and evidence in the case that, since the trial of the original suit, the plaintiff had exchanged about 1200 acres of western land, in Wayne County, Missouri, estimated at $18,000, in way of trade, and took in exchange therefor certain property in Chicago, Illinois, which he still holds; that said western land was conveyed to the plaintiff by one Lamb, by Spaulding paying about 75 cents an acre, being what Elliott was bound to pay to redeem the lands. The facts were in dispute as to the terms upon which Spaulding held the property, whether in trust for Elliott, or as security for the aforesaid note, or whether it was held by Spaulding free from any trust or obligation to Elliott.</p> <p>The defendant asked. the judge to rule, as a matter of law, that, if the plaintiff held sufficient property, of any kind, which he received from Elliott, to pay him for the note, that the law itself would apply it, but the judge declined so to rule. The judge found that there was no agreement between the plaintiff and Elliott as to the property conveyed by Lamb to the plaintiff, and did not find that the plaintiff had received any property which he was bound to apply to the payment of the $800 note of Elliott; and overruled the motion for a new trial.</p> <p>To the rulings of the presiding judge, and to the refusals to rule as requested, the defendant alleged exceptions.</p> <p>contended that, under the 21st rule of the Superior Court,* oral evidence was not admissible at the hearing; and that the affidavits and letters showed a clear case for a new trial.</p>

Contract on a promissory note signed by Hiram Hunt, who, at the time of bringing the suit, was under the defendant’s guardianship, as an insane person. The note, which was payable in four months from date, was given to Joshua Wales, on July 1, 1873, as part payment for a conveyance of a parcel of real estate on that day conveyed by Wales to Hunt. Before the note matured, Wales indorsed it to the plaintiff as collator,11 securisy.

<p>Motion bob a new TRIAL. After verdict for the defendant, in the Superior Court, in an action of replevin, the plaintiff moved that the verdict be set aside, for the reason, among others, that one of the jurors who tried the case was a brother of the counsel who tried the case for the defendant, this fact being unknown to the plaintiff or his counsel until after the verdict was returned. The defendant admitted the facts to be as above stated; but Colburn, J., ruled that this was not a sufficient cause for setting aside the verdict, and overruled the motion. The plaintiff alleged exceptions.</p>

Contract on the following promissory note, signed and indorsed “ J. Burrough, treasurer : ” “ North Oxford,- Nov. 25, 1868. Four months after date for value received, the Huguenot Manufacturing Co. promise to pay to the order of J. Burrough, Treas., three thousand dollars.” There was also a second count on another note similar in form. Writ dated March 16, 1875.

Contract to recover $9 on an account annexed for work and labor. The answer of the defendant contained a general denial and alleged payment.

<p>Tort for breaking and entering the plaintiff’s close. The case was submitted to the judgment of the Superior Court, and, after judgment for the defendant, to this court on appeal, upon an agreed statement of facts, the material part of so much of which as is not stated in the opinion was as follows:</p> <p>On April 11,1872, Cyrus Goodrich, by his deed of that date, conveyed to the defendant, a manufacturing corporation doing business in Fitchburg, all the standing growth of wood and timber on two parcels of land in Lunenburg.</p> <p>The assessors of Lunenburg, for the year 1872, assessed the defendant as owner of said standing growth of wood and timber, and as of an interest in real estate, the sum of $19.50. The said tax being demanded and unpaid, the collector proceeded to advertise and sell the land for nonpayment of said tax; and conveyed it by deed to the plaintiff.</p>

<p>CONTBACI upon the following promissory note signed by the defendant and indorsed by John M. Phelon: “ Worcester, January 18,1873. Four months after date, I promise to pay to the order of John M. Phelon four hundred and eighty-four dollars, at Central National Bank, value received.”</p> <p>At the trial in the Superior Court, before Dewey, J., the plaintiffs offered evidence that Jennie M. Phelon was indebted, at the time of the making of the note, to the plaintiffs in the sum of $484 for work and materials furnished to her in erecting a house on her land; that John M. Phelon acted as her agent in procuring said work and materials; that the note was signed by the defendant, and indorsed by John M. Phelon; that it was procured and delivered to the plaintiffs by him, indorsed in blank, while he was acting as the agent of Jennie M. Phelon, in paying for said work and materials; and that this was done for the purpose of paying this bill. It was admitted that John M Phelon was the husband of the defendant.</p> <p>The judge ruled that upon these facts the plaintiffs could not maintain this action, and ordered a verdict for the defendant; and to this ruling the plaintiffs alleged exceptions.</p>

<p>Trustees to whom a mortgage of the franchises, properties and rights of a railroad corporation has been executed for the benefit of the bondholders, with the consent of the Legislature, and who are in possession under it for breach of condition, are liable in damages under the Gen. Sts. c. 63, §§ 101, 115-119, for injuries to land upon the line of the railroad from fire caused by a locomotive engine which belongs to another railroad corporation and is running upon the mortgaged road under an agreement between the trustees and the corporation owning the engine.</p>

Petition for the assessment of land damages sustained by the petitioner by reason of the passage of the respondent’s railroad through his farm.

Contract on an account annexed to recover $227.30 for inspecting petroleum.

<p>Contract for breach of the covenant of seisin contained in a deed from the defendant to the plaintiff. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, upon an agreed statement of facts, the substance of which appears in the opinion.</p>

<p>A mortgagee selling under a power of sale in the mortgage may, if its terms authorize him so to do, he the purchaser at the sale, and make the deed in his own name directly to himself.</p> <p>A mortgagee sold the mortgaged premises under a power of sale in the mortgage, which empowered him, upon breach of condition, to sell the premises and convey the same, in his own name or as the attorney of the mortgagor, by proper deeds to the purchaser absolutely and in fee simple, and provided that the mortgagee, or any person in his behalf, might purchase at the sale. The deed was made by the mortgagee, both in his own name and as attorney of the mortgagor, directly to himself. Held, that the power was properly executed, that the deed conveyed a valid title to the mortgagee, and that the fact of the mortgagor’s bankruptcy prior to the sale did not affect the authority of the mortgagee to execute the deed in his name and as his attorney.</p>

<p>Petition for a writ of certiorari to the board of railroad commissioners. The petition alleged that the petitioner and the Boston, Barre and Gardner Railroad Corporation were railroad corporations having their places of business in this county, and the petitioner had a location extending through the city of Worcester; that by the St. of 1871, e. 343, „§ 10, the Boston, Barre and Gardner Railroad Corporation was authorized to extend its railroad from the terminus north of Garden Street in this city to the Union Passenger Station, and to locate, construct and maintain the same within the location of the railroad of any other corporation, at such places and upon such terms as the parties should agree, and, in case of their disagreement, as the board of railroad commissioners should determine; that for that purpose the Boston, Barre and Gardner Railroad Corporation desired to locate, construct and maintain its road within the location of the petitioner in this city ; that the parties failed to agree upon the terms or the places of such location, construction and maintenance ; that the Boston, Barre and Gardner Railroad Corporation applied to the board of railroad commissioners, and, setting forth these facts, prayed that board to determine the terms and places aforesaid ; that the board of railroad commissioners, after notice to the petitioner of that application, heard the parties, and determined that the Boston, Barre and Gardner Railroad Corporation might locate, construct and maintain its road, for such purpose, at certain places within the petitioner’s location in this city, upon certain terms, and made and promulgated a decree, wherein those places and terms were described and set forth; that at that hearing the petitioner prayed the board to assess and award to the petitioner damages for the injury to its land and easements by such location, construction and maintenance, and to require the Boston, Barre and Gardner Railroad Corporation to secure and pay such damages as part of the terms on which it should be permitted to locate, construct and maintain its road . that the board of railroad commissioners refused so to do, and ruled that it had no jurisdiction or authority to assess such damages, or to make payment thereof or security therefor part of the terms aforesaid; that the board erred in such ruling, and that the petitioner was aggrieved by such refusal, and had sustained much damage by such location, construction and maintenance, for which it was without remedy. The prayer of the petition was that a writ of certiorari might issue, requiring the board of railroad commissioners to certify its proceedings in the premises, and that the same might be quashed.</p> <p>The Boston, Barre and Gardner Railroad Corporation appeared and demurred to the petition, and the case was reserved by Bevens, J., upon the petition and demurrer, both corporations consenting, for the consideration of the full court.</p> <p>When the papers had been read, the Court observed that no notice had been given to the railroad commissioners, or appearance entered or answer filed in their behalf.</p> <p>suggested that as the hearing Was upon the petition, which was addressed to the discretion of the court, it was sufficient, and in accordance with precedents in similar cases, to give notice to the corporation which was the adverse party at the hearing before the tribunal whose proceedings were sought to be quashed.</p>

Complaint under the bastardy act, Gen. Sts. c. 72, to the Central District Court of Worcester, sworn to on April 1, 1874, alleging that the complainant was then pregnant with a child which, if born alive, might be born a bastard, accusing the respondent with being the father of the child, and charging that the respondent did beget the complainant with the child of which she was then pregnant, on or about July 1, 1873, at Auburn.

Tort for the disturbance of an easement. Trial in the Superior Court, before Dewey, J., who, after a verdict for the plaintiffs, reported the case to this court in substance as follows: The defendant owns a lot of land with a block of.buildings thereon in Worcester, on the corner of Main and Pleasant Streets, on the northerly side of Pleasant Street. The plaintiffs own the lot on the northerly side of Pleasant Street, next westerly of the defendant’s lot.

Tort for breaking and entering the plaintiff’s close in Lunenburg.

Contract for use and occupation of a shop and land in Worcester from June 1 to September 1,1874, with a count setting forth that Michael Quinn, prior to Februry 21,1874, made a lease of the shop to the defendant at a certain rent, and that the lease was still in force; that, on said February 21, Quinn mortgaged the estate to R. C. Taylor, who assigned the mortgage to the plaintiff; that on June 1, 1874, the plaintiff took possession of the estate under the mortgage, and…

Contract on a promissory note, signed by the defendant, a married woman. Trial in the Superior Court, before Dewey, J., who, after a verdict for the plaintiff, allowed a bill of exceptions, the substance of which appears in the opinion.

<p>Bill nr equity, filed January 28, 1874, by the owner of a mill privilege on the Sudbury River, praying that the defendant, the owner of another mill privilege lower down the river, might be enjoined from maintaining his dam at such a height as to set back the water of said river upon the wheel of the plaintiff’s mill.</p> <p>The case was reserved by Colt, J., upon the pleadings and the report of a master, for the consideration of the full court, and was as follows:</p> <p>On January 13, 1846, John Adams and Almond Adams were the owners in fee of a certain mill privilege, dam and mill therewith connected, situated on Sudbury River, in the town of West-borough. For a number of years prior thereto said mill had been operated by means of a head of water raised by said dam. The plaintiff became the owner of one undivided half of said mill and mill privilege in the year 1855, and of the other undivided half thereof in the year 1870, and had by himself, and in connection with others, operated said mill since 1855.</p> <p>On January 13, 1846, John and Almond Adams conveyed to the defendant, William B. Wood, a water privilege on Sudbury River, by a deed containing various provisions, of which the following only are now material: “ The said William B. is to have the right to build a dam across said river as high as he shall need, by their being responsible for all damage that may be done by flowing in consequence of said dam, excepting as is hereinafter provided, to wit, the said William B. shall have the right to flow the land of said John and Almond without .paying damage therefor, so far and so high as they can do so without setting the water oack upon the wheel of their grist mill, so as in any manner to obstruct said wheel or injure the privilege of said John and Almond.”</p> <p>“ And also the right, without paying damage, to flow the land of Jonathan Winchester above said dam. And the said John and Almond covenant and agree that said Winchester shall convey to said William B. a piece of land, not exceeding two acres, at twenty-five dollars per acre, for the purpose of digging a canal to turn the water’ from the natural stream for the purpose of erecting mills where it will be most convenient. And said William B. obligates himself to build a dam, not less than six feet high, across said stream, on or before the ninth day of November, 1846, or give up the premises to the said John and Almond, with-. out any consideration therefor.”</p> <p>“ Also one other piece of land, situated in said Hopkinton, on the south side of Sudbury River, containing thirteen and seven tenths rods, more or less, bounded as follows, viz.: beginning at a stake and stones in the centre of Sudbury River, and at the westerly edge of the foundation of an old road; thence S. 41¿° W. six rods and ^ of a rod to a stake and stone by a large rock; then S. 55° 45' 20" E. two rods to a stone on a large rock at the easterly side of said rock; then N. 4l£° E. six rods and seventeen twentieths of a rod, more or less, passing a large rock with a stake and stones by it to the centre of said river, then up said river, in the centre of the same, two rods, to the point of departure.</p> <p>“ Also the said William B. is to have the right of turning the water from the channel, or where it now runs, northerly of said stream.”</p> <p>On January 13,1846, there was an old causeway from ten to twelve feet in width, on the westerly side of said strip of land, two rods wide, running northeasterly the whole length of said parcel (formerly crossing said stream by a bridge) and extending in a straight line over the second parcel above mentioned.</p> <p>On May 9,1845, Jonathan Winchester conveyed to said John and Almond Adams a portion of the real estate and rights described and set forth in said deed from said John and Almond to the defendant, including the above mentioned parcels, and in the deed from Winchester there was a clause setting forth that John and Almond Adams obligated themselves to build a dam across Sudbury River, six feet high, within eighteen months from May 9, 1845, or give up the premises described in said deed without any consideration therefor.</p> <p>The defendant built a dam across said stream upon the westerly side of said strip of land two rods wide, or upon the side thereof furthest' up the stream, by making use of the old causeway, and placing loose stone, earth and trees thereon. The roll-way of said dam was about seventy-two feet in length, and at the northeasterly side of said roll way there was a wasteway sixteen feet in width, in the middle of which were movable planks four feet in length and from ten to twelve inches in width, and beyond this wasteway and northeasterly therefrom there was a canal to conduct the water to the defendant’s mill lower down the stream. Before commencing work upon the dam, Almond Adams pointed out to the defendant where the same should be placed, and the dam was built upon the place so designated. On November 6, 1846, the site of the dam had been selected and the work thereon substantially completed, but the dam was not then at its full height, as at its final completion early the next season, and in other respects was not fully complete ; said Almond Adams gave the defendant a writing under seal, purporting to be the instrument of John and Almond Adams, but signed only by the latter, therein stating that he was satisfied that said dam was built as described in said deed in every respect. Winchester also gave a writing to the defendant of similar purport.</p> <p>The dam, at the time of its completion, was not over six feet in height, has not been raised since, and is not now over six feet high.</p> <p>The top of the defendant’s dam is one -fife feet above the aproning of the plaintiff’s mill, and by reason of the existence of the defendant’s dam the water is set back upon the wheel of the plaintiff, and this setting back does impede and interfere with the operation of the wheel of the plaintiff’s mill, in such manner as injuriously to affect the full working power of the mill.</p> <p>The above mentioned strip of land, two rods wide, and the parcel adjoining the same above referred to, was the place on the stream where the dam should be built; but the defendant, instead of building said dam on the side of the land further up, might have built it thereon further down the stream; and if he had built the same upon said parcel of land further down the stream the water would not have set back on the wheel of the plaintiff’s mill to the extent the same now does, but to what extent, how much, if at all, was not disclosed in the evidence.</p> <p>The canal above mentioned on the northeasterly side of the dam carried the water from the defendant’s pond to a flume near the defendant’s mill; a raceway ran from the flume, and when the flume was full, the distance from the top of the water in the flume to the aproning of said flume was ten feet, and the fall from the top of the dam to the aproning of the flume ia ten feet.</p>

<p>Land was sold by public auction under a power of sale contained in a mortgage The defendant, who had performed labor and furnished materials in building á house on the land, was present at the sale, stated that there was no incumbrance upon the estate, and advised the plaintiff to buy it. The plaintiff, relying on the statement and representation of the defendant, became the purchaser. At thí» time a petition, on behalf of the defendant, to enforce a lien upon the land, was pending in court, and the mortgagor, the only party summoned, had been defaulted. After the sale to the plaintiff the defendant procured an order of court for the sale of the land under his petition. Held, on a bill in equity, to remove a cloud upon . the plaintiff’s title, setting forth the above facts and alleging that the labor performed and materials furnished by the defendant had been fully paid for, that the plaintiff had not a plain, adequate and complete remedy at law, and was entitled to an injunction restraining the defendant from selling the land under the decree obtained by him.</p>

Petition to the Superior Court for a jury to assess the damages to the petitioner’s estate by raising the grade of Main Street and Union Street in Webster, in 1873, and by putting in a new sidewalk with a curb against the said estate.

<p>Complaint under the. bastardy act, Gen. Sts. c. 72, charging the respondent with being the father of a bastard child, alleged to have been begotten on or about July 6,1873, and born March 16,1874.</p> <p>Trial in the Superior Court, before Aldrich, J., who, after a verdict of guilty, allowed a bill of exceptions in substance as follows :</p> <p>The respondent denied the charge against him, and contended that one Waldo Parker and one Albert Matthews had intercourse with the complainant within the period of gestation, before the birth of the child, and introduced evidence that the complainant, during pregnancy, stated in substance, that Parker was the father of the bastard child, and also introduced evidence that Matthews had sexual intercourse with the complainant on July 3, 1873.</p> <p>The complainant, upon her direct examination, in answer to a question asked by her counsel, without objection, testified that she had never had sexual intercourse with any one, or upon any other occasion, than with the defendant on said July 6. Upon cross-examination, the complainant was asked whether she was not more intimate with Waldo Parker than with other men, and was not, in 1872, engaged to be married to him, and remained so engaged till after the child was begotten, and whether Parker did not give her an engagement ring on or previously to July, 1872, all of which the complainant denied. The defendant offered evidence tending to show that the complainant, in July, 1872, said that she was going to marry Parker as soon as he came from the West, and at the same time exhibited a finger ring which she said had been given to her by him as an engagement ring; but upon the complainant’s objection the testimony was excluded.</p> <p>The complainant, upon cross-examination, denied having had intercourse with Matthews, and said that she never liked him and he was always disagreeable to her. The respondent offered evidence tending to show that while the complainant and Matthews were living together as household servants in 1872, they appeared friendly and intimate with each other, and that Matthews was repeatedly in her bedroom with her in the night time; but upon the complainant’s objection the evidence was excluded.</p> <p>To the above rulings, and to the exclusion of the evidence. offered, the defendant alleged exceptions.</p>