Volume 119 — Massachusetts Reports

<p>A gift for the erection of a house for public worship, or for the use of the ministry, may constitute a public charity, if there is no definite body, for whose use the gift was intended, capable of receiving, holding and using it in the manner intended. But when there is a body, or a definite number of persons, ascertained or ascertainable clearly pointed out by the terms of the gift to receive, control and enjoy its benefits, it is not a public charity, however carefully and exclusively the trust may be restricted to religious uses alone.</p> <p>In 1669, land was conveyed to certain persons named “and to such as they shall associate to themselves, their heirs and successors forever, for the erection of a house for their assembling themselves together publicly to worship God, as also the erection of a dwelling-house for such minister or ministers as shall be by them and their successors from time to time orderly and regularly admitted, for the pastor or teacher to the said church or assembly, and for the accommodation of the said dwelling-house for the use of the minister or ministers as shall from time to time be chosen as aforesaid, and for the accommodation of the meeting-house, with convenient passages of ingress, egress and regress for the people, that shall there from time to time assemble as aforesaid, and for no other intent, use or purpose whatsoever.” In 1677, the same grantor, by a deed reciting the preceding conveyance and the building of a meeting-house on the land by the grantees, conveyed an adjoining piece of land to the six survivors of the persons named in the preceding deed, “and to such as they shall have associated unto them in church fellowship, or shall he associated to them and to their heirs and successors forever, for the ends and purposes in the first above mentioned deed is fully and amply declared,” “with the house already erected thereon for the use of their ministers or ministry orderly chosen by the said society, being the Third Chnrch of Christ in Boston, from time to time and at all times forever.” Both of these deeds were for a voluntary consideration. Subsequently, the grantor by her will gave to the “Third Church of Christ in Boston” her dwelling-house which adjoined the land before conveyed, “ for the use of the ministry in the said church successively forever.” The deeds and other writings concerning said house were by Vie will bequeathed to two of the persons named in the preceding deeds, as trustees for the said church, “for the end and use before declared.” In 1845, the proprietors of pews in the church and their successors were made a corporation and authorized to take and hold, to the use of the corporation and its successors and assigns in fee simple, the property held by the church, “for the support of pnblic worship, for parochial and charitable purposes in this Commonwealth, and for paying the debts of said corporation.” Held, that neither the deeds nor the will created a public charity. Held, also, that the declaration of uses in the statute did not define a public charity, and that it was not the intention of the Legislature to so merge the interests of the trustees and the cestuis que trust as to discharge the estate from the trusts. Held, also, that lands so held might be sold by authority of the Legislature or of this court as a court of equity. Held, also, on a hill in equity praying for the sale of the property, and the application of the proceeds to the same trusts in another part of the city, that the vote of a majority of pewholders or members of the society was not of itself a sufficient authority to enable the corporation to make a sale, nor a sufficient reason to justify this court in authorizing it to be made; and that it was incumbent upon those who sought to make the change to satisfy the court that it was reasonably required for the accommodation of the society as a whole, and that the proposed change would not subject the minority to an unreasonable sacrifice of interest or convenience, or in any way work injustice to them.</p>

<p>If land is taken under the St. of 1868, c. 277, which authorizes the city of Boston to take lands in a certain district, for the purpose of abating a nuisance, and provides that “ the title to all lands so taken shall vest in the city,” the liability of a lessee of such land to pay rent to his lessor ceases on such taking, without any eviction by, or attornment to, the city.</p> <p>Land in Boston was leased for a term of years, and, while the lease remained in force, the land was taken by the city to abate a nuisance, under the St. of 1868, c. 277, which provides that “ the title to all lands so taken shall vest in the city; ” the lessee continued in possession, and for some time paid rent to his lessor, both parties acting in' the belief that the lease continued in force. Afterwards, the lessee being told that he was liable to be held to pay rent to the city, refused to pay rent under the lease. Meld, in an action by the lessor on the Gen. Sts. c. 137, § 5, to recover possession of the premises, that the judge, who tried the case on the above facts, was warranted in finding that no new tenancy, between the lessor and lessee, was created, and in rendering judgment for the defendant. Held, also, that the fact that after the action was begun the city reconveyed the land to the lessor did not affect the case.</p>

Tort. Writ dated June 11, 1873. The first count of the declaration alleged that the defendant maliciously and without probable cause… Held: as he claimed in his return, by attachment. There was no claim made that the officer in any way abused his authority under said writ, or was guilty of any misconduct in the service thereof, but only that the defendant knew he had no cause of action, and sued out said writ with such knowledge, and directed the service made thereon.

Contract to recover $90 for services rendered by a branch pilot of Boston, in delivering to the master of the ship Anna Decatur the following letter directed to the captain, dated New York, May 29, 1873, and signed “ Woodruff & Robinson : ” “ Dear Sir, —You will please proceed to Gloucester with your vessel and there report to Messrs.

<p>Bill in equity, filed July 3, 1873, by a partner in the late firm of Converse, Whitcomb & Co. against the other partner^ James C. Converse, Walter Stanton and Edwin R. Blagden, to compel contribution to the losses incurred by the partnership. The articles of partnership were as follows :</p> <p>“ Terms of agreement of copartnership for the transaction of' a dry-goods commission business in New York and Boston between the undersigned, to commence the second of January, 1871, and continue one year, under the firm name of Converse, Whitcomb 6 Co.</p> <p>“ J. C. Converse to contribute twenty-five thousand dollars ; to receive interest on the same at 7 per cent., and devote such time as he may be able to give; to receive 25 per cent, of net profits.</p> <p>“ J. M. Whitcomb to contribute fifty thousand dollars, receive 7 per cent, interest on the same; to give all his time to the business, and receive 25 per cent, of the net profits.</p> <p>“ E. R. Blagden to contribute all his time to the business, and receive 25 per cent, of the net profits.</p> <p>“ Walter Stanton to contribute all his time to the business, and receive 25 per cent, of the net profits.</p> <p>“ J. C. Converse and E. R. Blagden to attend to the business in Boston. J. M. Whitcomb and Walter Stanton to attend to the business in New York. Each partner shall be allowed to draw only $500 per month for personal expenses.”</p> <p>Hearing before Colt, J., who reported the case for the consid eration of the full court in substance as follows:</p> <p>The plaintiff contributed $25,000 of the amount mentioned in the agreement to be contributed by him.</p> <p>The partnership was dissolved by mutual consent on March 9, 1871, and the plaintiff was authorized in the agreement of dissolution to settle up the affairs of the firm. He did so, and there resulted therefrom a loss, as he contended, of $25,000, more or less, being less than the amount of the capital to be put in by the plaintiff ; but whether the loss .in question was a partnership or individual loss, is one of the questions reserved as hereinafter stated. The defendant Blagden, at the time of the dissolution, was, ever since has been, and now is, insolvent and unable to pay any part of said loss, Whitcomb, Converse and Stanton have each paid back to the firm all sums drawn out by them, respectively, for personal expenses, under provision therefor in tho memorandum, and Stanton, when he entered the firm, had the control of the business of certain woollen mills, and brought this into the firm; and he testified, without contradiction, that he brought the bulk of the business to the firm.</p> <p>The defendant Stanton contended, that he was not liable to make good any portion of the capital contributed to the business by the plaintiff, and expended in paying partnership debts, and that, if liable, he was not liable to make good the share which Blagden would have contributed, but for his insolvency, or any part of said share.</p> <p>The cause was reserved upon the foregoing facts and evidence. If the court shall be of opinion that the plaintiff is entitled to any contribution to said loss from either of the defendants, the cause is to be referred to a master to ascertain the amount thereof. If he is not entitled to recover from either of the defendants, the bill is to be dismissed as to such defendant.</p>

<p>The first petition was by George W. Taylor, filed September 29, 1873, alleging that on July 1, 1866, the defendant company insured him against loss by fire on his house and ware-room, in Boston, for the term of seven years ; that on June 18, 1873, the said buildings were partially destroyed by fire; that the amount of the loss was $997, and that proof thereof was duly made.</p> <p>The prayer of the petition was that William Minot, Charles B. Cumings and Lemuel Shaw, who had been appointed receivers of the defendant company, be ordered to appear and show cause why the dividends on the amount due the petitioner under said policy of insurance, on account of said loss, should not be paid to him. Annexed to the petition was a copy of the policy, on which were printed the rules of the defendant company. So far as these are material, they appear in the opinion.</p> <p>The answer of the receivers admitted the facts stated in the petition ; and alleged that on November 27, 1872, on application of the insurance commissioner to this court, the company was restrained by injunction from further proceeding with its business ; that on December 7, 1872, it appearing to the court that the company was insolvent, said receivers were appointed, with authority to take possession of the property and effects of the corporation, and to collect the debts, to pay all debts due from saie' corporation, if the funds in their hands should be sufficient, and, if not, to distribute the said funds ratably among the creditors, and to distribute the residue, after payment of said debts, to and among the persons legally entitled thereto; and the injunction previously issued was made perpetual; that on the sixth day of December, 1872, the directors made an assessment for the payment of losses accruing prior to said date, by vote, as follows: “ Whereas, members of this corporation did, during the month of November last, and on and after the ninth day thereof, sustain damage by fire over and above the existing funds of the corporation by an amount exceeding the whole liabilities of the members subject to assessment, it is therefore voted: First, that an assessment of an amount equal to two dollars for each and every dollar advanced as premium and deposit be made upon each person and company that was a member of this corporation at twelve o’clock at noon on the ninth day of November last, and that is liable for losses occurring during said November and after said twelve o’clock at noon. Second, that the president give notice of the above vote to each member of the corporation, and also publish notice of this assessment in two or more newspapers in Boston, Third, that the president be authorized to collect said assessments without delay, and to cancel outstanding policies on the payment of said assessments.”</p> <p>The answer further alleged that on April 7, 1873, the assessment above mentioned was duly ratified, confirmed and established by this court; that nearly all said policies have been formally cancelled on payment of the assessments due thereon s that notices of the assessment due on his policy were sent to and received by the petitioner on December 6, 1872, and on April 16 and July 1,1873, and said assessment has not been paid, and that his policy has not been cancelled, unless by the acts, omissions and proceedings hereinbefore set forth; that said receivers have been ordered to pay dividends to the amount of one hundred per cent, on all claims heretofore proved and allowed against said company, and that nearly all said dividends have been paid, but no interest has been hitherto allowed or paid on said claims; that the assets in the hands of the receivers will probably be sufficient to pay said claim of said Taylor, after making all payments heretofore ordered by this court, and after paying the expenses of winding up the affairs of the company; but that there are certain other policies, the terms of which have not expired, on which assessments have not been paid, and which are not known to have been forfeited or cancelled unless by the neglect to pay said assessment and by the proceedings hereinbefore set forth.</p> <p>At the hearing before Endicott, J., the facts alleged in the petition and answer were admitted, and the question was reserved for the full court whether on these facts the petitioner was entitled to any, and, if any, what payment on account of the claim set forth in his petition.</p> <p>The second petition was by the receivers of the defendant company filed May 12, 1875, alleging that an assessment was levied by the directors of the company upon the members thereof, and approved by this court, to pay claims for fire losses occurring prior to December 6,1872; that, in levying the assessment, an allowance of fifteen per cent, was made for probable bad debts and expenses of collection; that the receivers have collected upwards of ninety-eight per cent, of the assessment, and believe that still further collections can be made; that they have paid from time to time, in accordance with the decrees of this court, one hundred per cent, on all said claims for fire losses, but have paid no interest on said claims; that there will remain in their hands after the aforesaid payments, and after paying expenses and charges of collection, upwards of eighty thousand dollars , that, by the rules of the company, all claims for fire losses were payable thirty days after notice thereof; that notice of the claims above mentioned was given (or notice thereof waived by the company,) before December 6,1872; that in accordance with the vote of the directors of the company on levying the assessment, and under the authority of this court, the president of the company has cancelled policies outstanding at the date of the assessment, on payment thereof; that by the by-laws of the company it is provided that policies shall cease and determine in case of neglect to pay any assessment on the same; that there are about fifty policies which have not been formally cancelled, and which were issued for a term of years which has not yet elapsed, but on which the assessment remains unpaid.</p> <p>The prayer of the petition was for the direction of the court on the following points :</p> <p>1. Whether interest shall be paid on claims for the fire losses first above mentioned.</p> <p>2. Whether any of said uncancelled policies above mentioned are to be treated as subsisting policies, and whether any moneys shall be reserved for the payment of losses which may hereafter occur thereon.</p> <p>3. Whether any surplus remaining after making such payments and reservations as the court may decree, shall be repaid to persons who shall have paid in full the sums assessed upon them, in proportion to the amount of the assessment so paid, or shall be paid to holders of policies which were in force at the date of said assessment on account of claims for the value of the unexpirod terms of said policies, or for unearned prnniums and deposit money.</p> <p>The case was heard and reserved by Gray, C. J., for the consideration of the full court upon the three questions stated in the prayer of the petition.</p>

<p>Where a person, who has entered into a written contract for the purchase of land, has paid or tendered the consideration, and by the owner’s permission has entered upon the land and made improvements thereon, the land is charged with an implied trust in his favor; and a court of equity may, if the owner has never been a resident of this state, and no service is made upon him here, appoint a trustee, under the Gen. Sts. c. 100, § 15, to convey the same in such manner as it may require.</p>

Habeas corpus. The petitioner, who was arrested November 9, 1874, upon a warrant issued by the Second District Court of Plymouth, upon the complaint Of Mary McQueeney under the bastardy act, was brought before that court and there gave bond with surety for his appearance to answer the complaint in the Superior Court, and abide the order of the court thereon.

Tort. The declaration alleged that the defendant falsely, maliciously, wilfully and wrongfully prosecuted the female plaintiff, and falsely charged her with the crime of larceny of bonds, to the value of six thousand dollars, and of other personal property, the property of the defendant; and wrongfully and maliciously removed her by force from the State of Maine, and caused her to be removed, she being at the time about to be confined in child-bed, and wrongfully imprisoned,…

<p>Tort for personal injuries and for injuries to the plaintiff’s horse and carriage, occasioned by an allegedl'defect in a highway which the defendant was bound to keep in repair. Answer, a general denial.</p> <p>At the trial in the Superior Court, before Rockwell, J., it appeared that the injuries were sustained by the carriage going off of a bridge over a culvert, the bridge not being protected by a railing, while the plaintiff, who was driving, was attempting to pass, on the right hand side of the road, another carriage travel-ling in the same direction.</p> <p>There was no evidence that the plaintiff requested the other carriage to give him room to pass, and its driver being called by the plaintiff testified without contradiction, that the first he knew of the plaintiff’s whereabouts, was that he heard the sound of wheels on the stones; directly saw the plaintiff’s horse abreast of him; thought there was not room for him to pass; turned his own horse to the left, and immediately heard a crash.</p> <p>The defendant called the attention of the court to and read the Gen. Sts. c. 77, §§ 2, 4, and asked the judge to instruct the jury as follows:</p> <p>“ That the plaintiff, to maintain his case, must show that he was in the exercise of due care; that attempting to pass the carriage on the right hand side of the road is evidence tending to show want of due care, and, unless justification thereof is shown, is conclusive evidence of want of such care.</p> <p>" That the plaintiff, to maintain his case, must show that he was in the exercise of due care ; that attempting to pass the carriage on the right hand side of the road is evidence tending to show want of due care, and, unless justification therefor is shown, is conclusive evidence of want of such care; and that the burden of showing such justification is upon the plaintiff.</p> <p>“ That the town is obliged to maintain its road only for persons lawfully travelling thereon; that the plaintiff at the time the accident occurred was not lawfully travelling on the defendant’s road, and the defendant is not responsible for any injuries at such time received by him.”</p> <p>The judge declined so to instruct the jury, and among other instructions not objected to, instructed them as follows: “ That the plaintiff, to maintain this case, must show that he was in the exercise of due care, and must also show that the defendant was guilty of negligence; and that the accident was due to its negli- z gence alone, and that he in no wise contributed to it; that tho jury upon the question of due care on the part of the plaintiff, will consider the evidence in relation to his passing to the right of the preceding carriage, and whether or not the attempt to pass on that side is evidence of the want of due care; but in determining that question for the purposes of this case, the statute alluded to and read is immaterial, and the question is to be determined as if no such statute existed.”</p> <p>The jury found for the plaintiff; and the defendant alleged exceptions.</p>

<p>Contract on an account annexed, to recover $793.23 and interest, money had and received to the plaintiff’s use. At the trial in the Superior Court, before Aldrich, J., the jury returned a verdict for the plaintiff, and the defendant tendered to the judge a bill of exceptions, in substance as follows:</p> <p>The plaintiff had given the defendant notice to produce at the trial the book of deposit numbered 2,890, containing an account if deposits and interest accrued thereon, in the name of the plaintiff, the items being the same contained in the account annexed to the plaintiff’s declaration, together with printed conditions of deposit and payment. The defendant’s counsel stated that they had the book in court, but objected to producing it. The judge ruled that refusal to produce the book would entitle the plaintiff to introduce secondary evidence of its contents. The book was handed to the plaintiff’s counsel, the defendant reserving an objection to its admissibility, and protesting that neither the book nor its contents were admissible as evidence under the declaration. The judge overruled the objection, and admitted the book, to which the defendant thereupon excepted. The book was then used throughout the trial, and went to the jury.</p> <p>The defendant produced an order signed by the plaintiff, addressed to the treasurer of the defendant corporation, as follows; 66 September 16, 1874. For value received pay to James Brown or order $793.22, on my deposit with said bank; and he is hereby authorized to receipt for the same in my name.” There was evidence in the case tending to show that the plaintiff, when a minor, had signed said order in blank, and delivered it to his father, James Brown, who then had possession of the said deposit book, and given said James Brown authority to fill up said order; that said Brown went to the defendant bank and procured a loan, depositing said book as security therefor with the bank, and about seven months after the plaintiff became of age, said loan to said bank being then over due, the plaintiff delivered to said bank a notice, dated July 17,1874, forbidding the bank to pay over the money on deposit in his name to any other person, and revoking any order previously given, and also a few days afterwards sent to James Brown a notice, dated July 23, 1874, revoking any order made during minority, and demanding any bank book or other evidence of debt in the possession of James Brown. James Brown (about two months after said notice was delivered to the bank) filled up said blank order with the amount, and dated the same, and the next day presented said order to the bank, and the amount of said deposits was thereupon paid to James Brown, and by him applied to the payment of notes to said bank, for which said book had been held as collateral, and said payment was entered in said deposit book. The treasurer of said bank testified that at the time of said payment upon said order, he supposed said order was executed upon the day of its date, and paid the same in good faith in the ordinary course of business.</p> <p>Before proceeding to address the jury, the defendant’s counsel asked the judge to rule, “ that if the defendant paid the deposits in good faith upon the order produced, and entered such payment in the deposit book, any legal defect in the order, not brought to the notice of defendant at the time of such payment, will not avail the plaintiff as against such payment.” The judge declined so to rule, but ruled, “ that if the order upon which the payment was made was a forgery, the bank would not be protected, though the payment was made in good faith, without notice of the defect, and such payment entered in said deposit book.” To which the defendant thereupon excepted.</p> <p>The judge wrote and signed the following certificate on this bill of exceptions: “ The first of the foregoing exceptions is allowed. The second exception is disallowed, on the ground that it was not saved or taken at the trial, until after the verdict had been returned.”</p>

<p>Trustee process begun in the Police Court of Fall River, where the principal defendant and the trustee were defaulted, and James Featherstone appeared as claimant of the funds in the hands of the trustee, and was adjudged to be entitled to the funds, and the plaintiff appealed. In the Superior Court, Wilkinson, J., ordered that the trustee be charged on his default in the court below, and found for the claimant in the sum of $55.01. No judgment was entered against the defendant. The plaintiff alleged exceptions to this order, which need not be stated.</p>

Toet for breaking and entering the plaintiff’s close. The answer of the defendant admitted the plaintiff’s title to the close, but alleged that the same was subject to the right of the defendant to enter the close, and to pass to and from the well thereon for the purpose of obtaining water, and that in the proper exercise of that right he entered the close, and not otherwise.

Tort for assault and battery and false imprisonment. Trial in the Superior Court, before Aldrich, J., who allowed a bill of exceptions in substance as follows: The plaintiff was assessed by the assessors of the defendant town, there being no want of integrity and fidelity on their part, for a poll tax for the year 1873. The assessors duly committed their tax list with their, warrant to the collector of the defendant town.

Contract upon a promissory note for $1000 dated Attleborough, July 1,1869, payable on demand to the plaintiff and signed by the defendant. Writ dated December 18, 1873. The declaration alleged the following particulars : On or about July 1, 1869, the defendant made and delivered to Eliza A. Tucker a promissory note for the sum of $1000,- payable on demand to her order, which she soon after lost, and the same has never been found or paid.

Contract on an account annexed, for services in the defendant’s mill during fifteen days in the month of May, 1873. Trial in the Superior Court, before Wilkinson, J., who allowed a bill of exceptions in substance as follows: No question was made at the trial as to the amount due, if the plaintiff was entitled to recover.

<p>The provision of the Gen. Sts. c. 156, § 27, that in the taxation of costs “the plaintiff shall be allowed only one term fee if the defendant is defaulted without having appeared,” does not apply when the defendant is defaulted on the main issue, and avails himself of the right reserved to him by the Gen. Sts. c. 133, §§ 2, 3, of being heard upon the assessment of damages, and of moving that such assessment be made by a jury.</p>

Actions of tort to recover for injuries occasioned by a defect in a highway, which the defendant was bound to keep in repair.

Petition to set aside a decree of divorce nisi from the bond of matrimony, rendered by a justice of this court at November term 1873, upon the default of this petitioner, after notice to her, on b libel filed against her by the respondent on May 17, 1873, for the cause of utter desertion on August 15, 1872, and continued to the date of that libel.

Tort for injuries caused by the act of a conductor of the defendant corporation in expelling the plaintiff from one of its cars, in which he was a passenger.

Petition to the county commissioners for a jury to assess damages for the taking of land by the respondent to widen Pleasant Street, in Fall River. At the trial before a sheriff’s jury the respondent called one Franklin L. Almy as an expert, to testify to the value of the land taken by the city, and he was permitted to testify thereto without objection, having known of sales of land at or about the time of, the taking.

<p>Petition under the Gen. Sts. c. 43, for a jury to assess the damages occasioned by the widening of Columbia Street, in Fall River, over land of the petitioner. The case was submitted to the Superior Court, and to this court on appeal, on an agreed statement of facts, in substance as follows :</p> <p>The land was taken on August 19, 1873, by the mayor and aldermen of Fall River, who awarded the petitioner $2000 as damages. The petitioner being dissatisfied with the award applied for a sheriff’s jury to assess the damages. On June 11, 1875, the case was tried before a sheriff’s jury, who rendered a verdict: that “ they estimate and assess the amount of damages sustained by the said petitioner at the sum of two thousand one hundred and sixty-six dollars and seventy-five cents.”</p> <p>The jury were instructed by the sheriff, first to consider the value of the land taken ; second, to consider the damage to the remaining property by the taking of the land ; then, to consider the benefits, if any, to the petitioner, direct or special, not shared in common with others abutting on said street, and if any such benefits are found, deduct the same from the amount of damages agreed upon, and to the remaining amount add interest at six per cent, per annum, from August 19,1873, to June 11,1875, putting the amount of damage and interest in one sum.</p> <p>The verdict was duly returned to June term 1875, of the Superior Court. At the next term the petitioner moved that the verdict be accepted and recorded, and judgment be entered thereon; and that the petitioner be allowed the charges and costs arising or the annlication. which were taxed at $177.(17,</p> <p>The respondent objected to the allowance of the charges and costs ; the clerk disallowed them; his taxation was affirmed by the court; and the petitioner appealed.</p>

<p>Contract. The declaration alleged that the plaintiff made a verbal agreement with the defendant to dig and wall his cellar, furnish the materials for the mason work, and to do the labor in putting up and putting on said materials in mason work for a six tenement block, belonging to the defendant, in Fall River, for the sum of $1425; that in pursuance of said verbal agreement he furnished the materials, dug and walled the cellar, and put up and put on the materials in mason work to the said six tenement block for the defendant for the said sum ; that the defendant, in consideration thereof, paid him on or about August 13, 1873, the sum of $725 towards the same, and that the defendant owes the plaintiff the balance of $700, and interest on the same from October 15, 1873, according to an account annexed.</p> <p>The answer of defendant contained a general denial, alleged payment and denied any agreement to pay interest.</p> <p>At the trial in the Superior Court without a jury, Pitman, J., ordered judgment for the defendant, subject to the plaintiff’s exceptions upon the following findings and rulings :</p> <p>“ I find that the plaintiff has not established by a preponderance of proof the contract or agreement set forth in his declaration. There is also evidence tending to show that after an original undertaking had been entered into between the plaintiff and one Francis Hye to furnish on his account the work and materials for which this suit is now brought, that said plaintiff declined or refused to furnish the same, and that the defendant thereupon promised to see him paid. The defendant offered evidence to the contrary.</p> <p>“ As upon my view of the whole evidence there does not appear to me, if this were proved, to have been a novation or an extinguishment of the original liability of Hye, I have not deemed it material to determine whether or not there was such a collateral undertaking, because if proved it would not be the contract declared on. Upon the pleadings I therefore find for the defendant.”</p>

Complaint under the mill act, Gen. Sts. c. 149. Trial before a-sheriff’s jury, who returned a verdict for the petitioner, which verdict was certified to the Superior Court.

Petition to the county commissioners for a jury to assess damages for the taking of land by the respondent to lay out a highway in the city of Taunton..

Bill in equity by the executors of the will and codicil of Thomas Sullivan, against the legatees named in the will, to obtain the instructions of the court.

<p>At the trial of a complaint under the Gen. Sts. c. 87, §§ 6, 7, for keeping and maintaining, on May 1, 1875, and on divers other days between that day and September 27, 1875, a tenement for the illegal sale of intoxicating liquors, a witness for the government testified that a few days before the trial,, which was at October term 1875, the defendant told him that a card which the witness produced and upon which were printed the defendant’s name and address, and the words, “ Dealer in imported wines and liquors,” “ Porter ” and “ Lager Beer,” was her card, and that she had the card printed about a year before. Held, that the witness was rightly permitted to read the card for the purpose of showing that the defendant was keeper of the tenement on May 1,1875.</p>

Complaint to the Police Court of Gloucester for an unlawful sale of intoxicating liquors at Gloucester, “ to a man whose name is unknown ter the complaisant,” on July % 1875.

<p>On the trial of an indictment for larceny of railroad tickets, the property of a railroad corporation, the government introduced evidence that five packages of tickets, containing one hundred each, belonging to the railroad corporation, and numbered in regular succession from 1 to 500, were placed in the hands of its ticket-agent; that soon after one of these packages, containing tickets numbered from 200 to 300, was found to be missing, and that two tickets identical in appearance and general description with those contained in the missing package, and numbered as they should have been if contained in tbat package, were found in the possession of the defendant. There was also evidence that the defendant said that he bought those tickets of the ticket-agent, who denied this. Held, that on this evidence the jury were warranted in returning a verdict of guilty.</p>

<p>Under the St. of 1875, c. 99, § 12, authorizing the mayor and aldermen of a city, by whom a license to sell intoxicating liquors has been issued, to declare a license forfeited upon proof satisfactory to them of a violation of its conditions, after notice to the licensee and reasonable opportunity for him to be heard by them, a licensee cannot be convicted of selling intoxicating liquors in violation of law upon the production of the record of the board of aldermen, showing only that before the sale the board declared his license “ revoked,” and paroi evidence that the licensee was heard upon a charge of having sold intoxicating liquor on the Lord’s day, and upon the question of revocation.</p>

Writ oe entry, dated December 8, 1868, to recover land in Danvers. Plea, nul disseisin.

<p>Upon the assessment of damages sustained by the taking of land for a railroad, it appeared that the estate out of which the land was taken was a farm, and that the land taken was on the bank of a river. The bill of exceptions stated that a farmer who had lived many years in the vicinity of the land, and had known of sales of land in the neighborhood, and was allowed without objection to testify as to the value of the land taken, and of the inconveniences resulting to a farmer from being deprived of access to the river, was asked what in his opinion was the damage to the remainder of the farm of the loss of the river bank, which was excluded; that the petitioner also claimed damages by reason of being excluded from the river bank for purposes of fishing and from a fishing ground, but that it did not appear that the witness had any special or superior knowledge on the subject of fishing or of fishing grounds; and that other witnesses for the petitioner testified to the value of the river hank as affording facilities for fishing. Held, that the bill of exceptions disclosed no error in the exclusion of the farmer’s testimony.</p>

<p>Petition'to establish the truth of exceptions. The material facts, appearing by the records referred to in the petition were as follows:</p> <p>An action of contract, brought by Amos P. Tapley against Lucretia W. Martin, was tried at November term 1870 of this court in Ef&ex, and a verdict returned for the plaintiff, and exceptions taken by the defendant at the trial were allowed by the presiding judge, and entered upon the law docket in that county at November term 1871. On February 26,1872, the defendant pleaded a certificate of discharge in bankruptcy, obtained January 20, 1872, in the District Court of the United States for the District of Maryland. On June 15,1874, Ambrose A. Ranney, Esquire, the attorney for the defendant, suggested of record that her death occurred June 12, 1874. On October 22, 1874, the plaintiff filed a motion that the plea of discharge in bankruptcy be taken off the record of this court, upon the ground that it would appear from an inspection of the whole record and final decree of the United States Court (copies of which were produced) that the certificate of discharge had not been granted, but had been refused. In November, 1874, the exceptions taken at the trial were argued by Mr. Ranney, as amicus curiae, and by the counsel for the plaintiff, and overruled. See Tapley v. Martin, 116 Mass. 275.</p> <p>At a subsequent hearing before Wells, J., on motions of the plaintiff that the plea of discharge in bankruptcy be ordered to be taken off the record, and that judgment be entered for the plaintiff nune pro tune as of November term 1871, James D. Martin, the son and heir of the deceased defendant, and Andrew C. Mudge and Penfield B. Goodsell, the sureties upon the bond given by the defendant to dissolve the attachment upon the writ, were “ allowed to appear for the purpose of being heard upon the pending motions to strike off the plea of bankruptcy and to enter judgment nunc pro tune, but not as parties to the suit; ” Mr. Ranney, counsel for the defendant in her lifetime, was heard as amicus curice, and also as counsel for the heir and the sureties and it was ordered “ that said motions be granted, and that said plea of discharge in bankruptcy be taken off the record of this court — it appearing that the alleged discharge, a copy of which was filed in support of said plea, was vacated by the court by which it purported to have been granted, before the filing of said plea, and at the term at which the alleged^ discharge was granted, and upon a final hearing and adjudication thereon a discharge was refused in the defendant’s lifetime ” — and that judgment be entered for the plaintiff in this action nunc pro tune as of November term 1871.</p> <p>Mr. Ranney, as counsel for the defendant during her lifetime, and as amicus curios, and as attorney of the heir and the sureties, tendered a bill of exceptions to this order and to various rulings at the hearing upon the motions; and the bill of exceptions was disallowed by the judge.</p> <p>The heir, the sureties, and Mr. Ranney, as counsel for the deceased defendant and as amicus curice, thereupon filed, this petition to establish the truth of the exceptions so tendered; alleging the facts above stated, and also that the defendant died leaving no estate of any kind in this Commonwealth, and there had never since been any property, effects or credits here to be administered upon, and therefore no letters of admininistration, either original or ancillary, had been or could be granted here; and that the exceptions alleged were true, and were disallowed by the judge solely because neither of the petitioners was so far a party to the suit or so far related to it as to be entitled' to be allowed or to prosecute a bill of exceptions.</p> <p>The petitioners moved that the petition be referred to a commissioner to hear the parties and report the facts to the court. The original plaintiff moved to dismiss the petition, because the petitioners were not entitled to allege exceptions.</p>

<p>Contract upon a policy of insurance against fire, issued by the defendant to the plaintiffs. At the trial in the Superior Court, before Brigham, C. J., the defendant declined to argue the case to the jury under the instruction of the presiding judge, submitted to a verdict for the plaintiffs, and alleged exceptions to the rulings of the judge and to his refusal to rule as requested, the substance of which appears in the opinion.</p>

Bill in equity by the Swamscott Machine Company, a corporation established under the laws of the State of New Hampshire, against John R. Perry and Cornelia B. Perry, his wife, alleging the following facts: On August 1, 1871, John R. Perry was seised in fee of a tract of land in the city of Lawrence in this Commonwealth ; and on that day executed and delivered to George S. Armstrong a promissory note payable to Armstrong or order, for the sum of $6200, and at the same time…

<p>Two petitions to the Superior Court under the St. of 1871, c. 382, § 7, for a jury to assess damages for the taking by the respondent of the land on which the Boston Post building stood, on the corner of Water Street and Devonshire Street, in Boston, to widen Water Street, the petitioners having a leasehold estate therein. Trial in the Superior Court, before Putnam,, J., who allowed a bill of exceptions in substance as follows:</p> <p>The land and building belonged to James H. Beals and others. The petitioner Lawrence held a lease from them of a store on the first story on Water Street, which would terminate November 4, 1878. The petitioner Fowle held a lease from one Apthórp of a room on the second story on Devonshire Street, which would terminate May 1, 1875. Apthorp held a lease from the owners of the same and other premises which would terminate at the same time.</p> <p>The city determined, April 18,1873, to widen Water Street by taking a portion of the estate. On March 31, 1873, the owners notified the city that they objected to the proposed widening, and elected to surrender the entire estate to the city. On November 15, 1873, the city determined to take the entire estate for the purpose of the widening. Subsequently the owners settled with the city for the value of the estate, and in consideration of $325,000 paid to them, and of the use of the building till September 1, 1874, and the remission of taxes for that year, the owners conveyed the estate to the city, on April 15, 1874, and in their deed covenanted to indemnify the city against all claims for damages on account of the granted premises or the taking thereof. The owners notified the tenants that they must remove on September first.</p> <p>It was conceded that in pursuance of this agreement the present suit was defended in fact by the owners of the estate.</p> <p>At the trial James H. Beals was called as a witness for the petitioners, and testified that he appeared in behalf of himself and other owners before the city authorities during the negotiations which resulted in the settlement with the city. The petitioners then offered to show by this witness that he made representations to the committee that the owners would have to pay large damages to these tenants, and that these rooms could be let for more than the rent reserved in the existing leases, also as tithe amount at which the office occupied by Beals, Green & Co. in the building, which office adjoined Lawrence’s store, could then be let. The counsel offered this evidence, not as in any way controlling Beals’s statements at this trial. He was not asked his opinion as to the value of the leases, but counsel stated that they offered this evidence as admissions heretofore made by che said Beals. The judge excluded the testimony, and the petitioners alleged exceptions.</p> <p>The respondent called Charles W. Freeland to testify as to his opinion of the rental value of premises occupied by the petitioners. The witness testified that he was lessee under a long lease of a building known as the City Exchange, on Devonshire Street, about one hundred and fifty feet from the corner of Water Street and Devonshire Street, which building he underlet, and that he made in a part of his business to underlet this building, and that he attended to letting tenements not exceeding twenty in that building; that his knowledge of the value of leases outside of his own building was not very extensive ; that he was not in the habit of making any inquiries as to what other people were doing; that he had general knowledge of what certain things would .rent for per square foot; that for the purpose of letting this building he had informed himself generally of the rents of buildings; that knowledge came to him by the way of people coming to make inquiries, and when he talked about the rent of his building they would tell him what they could hire in such a building for such a price ; that he had not sought the knowledge, but it came to him in that way; that he had been consulted a great many times by owners of buildings as to rents, but he could not state any particular territories as to which he was thus consulted, and that he had hired a building for his business on Winthrop Square. It did not appear that the witness had examined the Boston Post building. The petitioners thereupon objected that the witness was not qualified to testify as to his opinion of the value of the petitioners’ premises. But the judge permitted him to testify thereto, and the petitioners excepted.</p> <p>The judge instructed the jury as follows : “ The value of the leases is their market value ; 6 market value’ means the fair value of the property, as between one who wants to purchase and one who wants to sell any article, not what could be obtained for it under peculiar circumstances, when a greater than its fair price could be obtained; not its speculative value; not a value obtained from the necessities of another. Nor, on the other hand, is it to be limited to that price which the property would bring when forced off at auction, under the hammer. It is what it would bring at a fair public sale, when one party wanted to sell and the other to buy. The fact, therefore, that one of these lessees, Lawrence, as had been argued by his counsel, did not want to move, wanted to stay there, would have paid a very large sum to stay there, is not a test of market value, because it is not a case of one who wants to sell and one who wants to buy. If Lawrence had wanted to go out, the question is, what would his lease have brought ? Not what it would have been worth to him if he had wanted to stay there, because it may have been of greater value or of less value to him than its value upon the market. That simply determines its value to him, not its market value. The question for you to consider is, if Lawrence wanted to sell this lease, what could he have obtained for it upon the market, from parties who wanted to buy and would give its fair value?” No specific objection was taken to this charge, but the counsel for the petitioners then asked the judge to give this instruction : “ In determining the value of the leasehold estate, the jury are to consider among other things the amounts which persons desiring to take the leases would be willing to pay for the same, not excluding from such consideration the amounts which the petitioners themselves would give.” The judge stated that he had no objections to giving this instruction, with this modification, “ if the petitioners are in the market for the lease j but if they, rather than be turned out, would give more than anybody else, that is not the market value of the lease,” and did bo give it. The counsel contended that it should be given without the modification ; and excepted to the refusal of the judge so to do.</p> <p>No evidence was offered of any other than the market value of the leases upon either side, or that the petitioners would have been glad to stay if they could do so, or what they would be willing to pay for the leases if they could stay; but the petitioners testified as to the conveniences of the tenements for their purposes, and it was conceded for this trial by the respondent, and the judge so instructed the jury, that in estimating the rental value for the remainder of the term, they might assume that the lease could be renewed at a fair rental.</p> <p>The petitioners’ counsel then asked the judge to give this instruction : “ The statute entitles all persons, whose property has been taken for public uses, to receive damages for the value thereof; the term ‘ market value ’ is not used in the statute, and t may be that property has value other than a ‘market value,’ and for that the tenant is entitled to compensation.” The judge declined to give this further qualification of his rulings; and the petitioners alleged exceptions.</p>

<p>A lease of rooms in a building, which provided that in case of the destruction of the premises by fire the rent should be suspended or abated, was surrendered to and accepted by the lessor in consideration of three notes made by the lessee payable to the lessor at different dates. The first two notes were duly paid, and before the last note was due, the premises were destroyed by fire. Held, that the lessee wa* liable for the amount of the last note when due.</p>

Contract against Manuel Silva and Benjamin B. Newhall. The first count alleged that Silva made a promissory note, a copy of which was annexed, payable to Newhall or order, and that Newhall, “ waiving demand and notice, indorsed the same to the plaintiff,” and that Newhall owed the plaintiff the amount of the note and interest thereon. The copy of the note was as follows: “$2268.00. Boston, February 1st, 1872.

CONTRACT on an account annexed to recover $34 for work done and materials furnished by the plaintiffs to the defendant. Answer, payment.

<p>Under the Gen. Sts. c. 142, § 5, providing that trustee processes shall be served on the defendant and each of the trustees in the manner prescribed for the service of an original summons without an attachment, and c. 123, § 22, providing that in any action brought against a city or town the writ shall he served thirty days at least before the return day, a city cannot be summoned as trustee less than thirty days before the return day.</p> <p>Where an action is begun by trustee process and the writ is not legally served upon the trustee, the plaintiff may, under the Gen. Sts. c. 142, § 7, proceed with the suit against the principal defendant, if he has been legally served.</p>

Contract by Charles H. Stuart, John H. Snow and Ether S, Foss, partners under the firm name of Stuart, Snow & Foss, to recover $1000 for work done and materials furnished by the plaintiffs for the defendant. The declaration also contained a count for the same amount, as money had and received by the defendant to the plaintiffs’ use, and a count setting forth substantially the facts which appear in the evidence introduced by the plaintiffs.

<p>Scire facias against the defendant as surety upon the following bond:</p> <p>“ Know all men by these presents : That we, Samuel Snow, of Bath, State of Maine, as principal, and--as sureties, are holden, and stand firmly bound and obliged unto W. H. Warren, Jr., one of the Constables of the city of Boston, in the sum of three hundred dollars, to be paid unto said W. H. Warren, Jr., his executors, administrators or assigns ; to which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents.</p> <p>“ Witness our hands and seals. Dated the third day of February, in the year of our Lord one thousand eight hundred and seventy-four.</p> <p>“ The condition of this obligation is such, that whereas the body of the above bounden Samuel Snow is taken by force of a writ or process, bearing date February third, A. D. 1874, wherein Alfred Danker, plaintiff, and said Samuel Snow is defendant, returnable before our Justices of the Municipal Court of the city of Boston, next to be holden at said Boston, within and for said county, for civil business, on Saturday, the fourteenth day of February, A. D. 1874, at nine of the clock in the forenoon, to answer unto said plaintiff in an action of tort, commenced by said plaintiff to be heard and tried at said court, as by the return of said writ or process will appear.</p> <p>“ Now therefore, if the above bounden Samuel Snow shall appear before said justices of said court, to be holden as aforesaid, to answer unto said plaintiff in said action or process, and shah abide the final judgment thereon, and shall not avoid, then the above written obligation shall be null and void, otherwise it shall be and remain in full force and virtue.</p> <p>“ Samuel Snow. (Seal.)</p> <p>“James S. Atwood. (Seal.)” The case was submitted to the Superior Court, and after judg ment for the plaintiff for $198.15, to this court on appeal, upon agreed facts in substance as follows:</p> <p>On February 3, 1874, the plaintiff sued out a writ from the Municipal Court of the city of Boston, said writ being returnable to said court February 14, 1874, and the defendant in said writ was described as “Mr. Snow, chief mate of ship Emma.” By virtue of said writ the said Snow was arrested on mesne process, and signed and affixed his seal as principal to the said bail bond, which bond so signed was, by the officer, at the request of Snow, and upon his representations that the defendant Atwood would become surety for him thereon, sent to the store of Atwood, and was returned soon after with the signature of the defendant upon it, and thereupon the officer released Snow from arrest. The obligee in the bond is the officer who made the arrest, and no alteration was made in the bond after the. defendant signed it. The plaintiff recovered judgment March 2, 1874, against “ Mr. Snow, chief mate of ship Emma,” for $150 damages, and $34.04 costs of suit, and on this judgment execution issued from said court March 13,1874, against “-Snow, chief mate of ship Emma.” The execution was returned to the court by the officer, in due season, wholly unsatisfied, and with a proper return thereon. On July 14, 1874, the plaintiff brought the present action against Atwood, in said Municipal Court. The writ recited the judgment obtained against-Snow on March 2, 1874, and that “ James S, Atwood of said Boston, at Boston aforesaid on the third day of February, A. D. 1874, became bail and surety for the said ——- Snow,” and proceeded in the usual form of a scire facias.</p>

<p>A. delivered to B. a certificate of stock in a corporation as collateral security for a debt. B. thereupon surrendered the certificate to the corporation, and took ont a new certificate in his own name as trustee. A. paid the debt, and B. delivered the certificate to A. and gave him a power of attorney, irrevocable in its terms, but not naming any attorney, to transfer the stock. After this, and before the stock was transferred on the books of the corporation, B. was summoned as trustee of A. in a process of foreign attachment. Held, that he could not be charged.</p>

<p>In an action to recover the price of goods sold and delivered, the only issue was whether the delivery of the goods, which was made to a third party, was upon the defendant’s order and credit. The plaintiff offered to show by entries in his books of account that the articles were charged to the defendant, and credit given alone to him. The judge excluded the evidence for that purpose, and ruled that “the entry in the book might be regarded as a memorandum made by the plaintiff at the time, and, as such, entitled to some weight in confirmation of the recollection and evidence of the plaintiff,” upon the issue. Held, that the first ruling exclud ing the evidence was correct, and that the second ruling was erroneous.</p>

CoNTBAOT upon a promissory note, dated February 2, 1874, signed by one Travers, and payable three months after date to the order of the defendant, who indorsed the same to the plaintiffs. Writ dated June 10, 1874.

Petition in equity, filed May 2, 1874, alleging that the plaintiff is a corporation established under the laws of Connecticut, and doing business in that state; that J. A. & E. S. De Golyer, copartners, doing business under the name of the Union Publishing Company in Chicago, in the State of Illinois, are indebted to the plaintiff in the sum of $215, for goods sold and delivered ¿o them by the plaintiff; that the Hide & Leather Insurance Company is insolvent, and that James…

<p>Appeal from, a decree of the Probate Court for the county of Suffolk, allowing a certain instrument as the last will and testament of Sarah S. Ireland, deceased. The decree of the Probate Court was entered December 16, 1874; and within thirty days thereafter the appellant, who was one of the heirs at law of the testatrix, filed her claim and reasons of appeal in the probate office, and duly entered in this court attested copies of the papers on file in the probate office. The only service of the reasons of appeal upon the adverse party was by a copy thereof, attested by the attorney of record of the appellant, in the Probate Court, delivered more than fourteen days before the entry of the appeal in this court to the attorney in fact, and of record in the Probate Court, of the appellee. The receipt of the copies on the day of service was admitted by the counsel for the appellee.</p> <p>On motion of the appellee, upon these facts, Devens, J., ruled that the service of the reasons of appeal upon the adverse party was insufficient in law, and dismissed the appeal. The appellant alleged exceptions.</p>

<p>The St. of 1875, c. 68, providing that “whenever any defendant in a civil action die-selves an attachment made in said suit, by giving bond as provided by the statutes of this Commonwealth, and has already been or afterwards is adjudged a bankrupt,” the court may enter a special judgment, applies only to cases where bonds to dissolve attachments are given after the statute went into operation.</p>

Bill in equity filed June 16, 1875, against Abraham Jackson, William M. Byrnes, and Ella S. Cahoon, alleging the following facts: On March 27,1873, the plaintiff was seised in fee simple of a certain parcel of land, with the dwelling-house thereon, situated on Ashland Street, in Boston.

Appeal by the defendants from the taxation of costs by the slerk of the Superior Court, in an action of contract. The case was submitted to the Superior Court, and to this court, on appeal, upon an agreed statement of facts, in substance as follows : The writ was dated October 19,1874, was served ike same day by attachment of personal property, and a keeper put ,n charge; the writ was returnable to, and entered at, January term 1875.

Contract against J. W. Pierce and J. E. Lochman, on a promissory note dated May 20, 1878, payable four months after date, signed by Greenlaw & Gillis, and payable to the order of David Gillis, and indorsed by him and by each of the defendants. Writ dated January 20, 1874. The action was defended by Pierce alone.

<p>Complaint under the bastardy act, Gen. Sts. c. 72, to the justice of the Third District Court of Bristol, alleging that the complainant was then pregnant with child, which, if born alive, would be a bastard, accusing the respondent with being the father of the child, and charging that the child was begotten on February 15, 1874, in Dartmouth. The jurat on the complaint was as follows: “ Bristol ss. Received and sworn to on the fourteenth day of August, in the year of our Lord eighteen hundred and seventy-four, before said court. Alanson Borden,</p> <p>“ Justice of the Third District Court of Bristol.”</p> <p>The warrant issued on the complaint recited that the complaint had been made “ on oath to'the justice of the Third District Court of Bristol,” and was signed by the judge with his official description.</p> <p>In the District Court, the respondent moved to dismiss the complaint “ because it appears to have been made to, and taken and issued by, Alanson Borden, justice of the Third District Court of Bristol, as such, and not by said court, nor a justice of the peace; and therefore he moves that the same be dismissed and quashed, as issued by a person having no legal authority to issue the same in the capacity in which it was done.” This motion was overruled; the respondent was adjudged guilty and required to give bond for his appearance before the Superior Court.</p> <p>In that court a supplementary complaint was filed but not sworn to, setting forth the previous proceedings, and alleging the birth of the child on November 10,1874. The respondent moved to dismiss the supplementary complaint because it was not sworn to, and also moved to dismiss the original complaint for the rea son before assigned. These motions were overruled by Pit man, J. The respondent was then tried.</p> <p>The deposition of William P. Reed, taken on June 7,187f, was offered in evidence in behalf of the respondent. This witness testified that he had criminal intercourse with the complainant four times. In answer to the 9th interrogatory he fixed the time as in January and February, 1873. In answer to the 10th interrogatory he said it was “ fourteen months from the past winter ; ” and in answer to the 12th interrogatory that it was “ a year ago last January or February.”</p> <p>Under the head of “ Re-direct,” the deposition contained interrogatories to and answers by the witness, to the effect that he had seen other men have criminal intercourse with the complainant “ about a year ago last October.” Then followed the signatee of the witness and immediately after it was a memorandum of the magistrate, who took the deposition, to the effect that after the witness had signed, and after the counsel for the complainant had left, the witness asked to have the date in the answer to the 9th interrogatory changed from 1873 to 1874; that the counsel for the complainant was recalled and objected, and the change was not made.</p> <p>“ The counsel for the complainant objected to that part of said deposition headed ‘ Re-direct,’ and the court excluded that portion of the deposition from being read to or going to the jury.” The jury returned a verdict of guilty; and the respondent alleged exceptions.</p>

Petition for partition, filed December 18, 1874, by the heirs of Ebenezer Crossman, of a parcel of land in Taunton, alleging that they were tenants in common with the respondents, Edward H. Field and Henry Field, Jr. Trial in the Superior Court, before Wilkinson, J., who, after verdict, reported the case for the determination of this court in substance as follows: It was admitted that the title to the land was in Mercy Cross-man at the time of her death in 1834.

<p>Scere facias upon a judgment recovered against the defendant in a trustee process in which it was summoned as trustee of Matthew Burke. In the Superior Court, interrogatories were filed to the defendant, and on its answers thereto it was discharged, and judgment ordered for the plaintiff for his costs only; and the plaintiff appealed to this court. The facts of the case appear in the opinion.</p>

<p>Under the St. of 1871, c. 218, authorizing the city of Lynn, for the purpose of supplying the city with pure water, to take, hold and convey into the city the waters of Breed’s Pond and all water rights connected therewith, and to take and hold, by purchase or otherwise, such land on or around the margin of said pond, not exceeding five rods in width, as may be necessary for the preservation and parity of said waters; and requiring the mayor to file in the registry of deeds “ a description thereof sufficiently accurate for identification,” and the city to pay the damages caused by such taking; the city took certain land, and filed in the registry of deeds a certificate, which described the land as “a lot commencing at the southwest corner of land owned by Charles H. Trask on Walnut Street,” and running by four courses and distances, 1896 feet in all, by the northerly line of that street; thence by four successive courses and distances, each except the last terminating at a cedar post, amounting in all to 1703 feet, “to a point on the Downing road (westerly line) at its intersection with Elm Street; ” thence by three courses and distances on "westerly line of road,” 2496 feet in all; thence by nineteen courses and distances, each except the last terminating at a cedar peat, and amounting to 8985 feet in all, “ to starting point.” The names of the owners of the land taken were not mentioned, nor th¿ town or city in which the land was situated, and no plan was referred to in the description or filed with it. At the trial of an action of trespass, brought by the owner of land so taken, against the city, no monuments were proved except along about two thirds of one side of the tract of land intended to be taken; it appeared that a very small portion of it was within the city of Lynn; a plan was introduced, subject to the plaintiff’s objection, of the entire tract of land taken, and a surveyor testified that the lot could be traced and its limits made certain by the plan; but there was no evidence that the land could be identified by the description filed without the aid of the plan or of a surveyor ; and it did not appear that all of the cedar posts, called for by the description, or which, or how many of them, had been set up. Held, that the certificate was insufficient, and that the defendant was a trespasser.</p>

<p>Petitions to enforce liens under the St. of 1855, e. 231, on the ship Orpheus, for materials furnished for and used in her construction in 1855 and 1856. The cases were tried together in the Superior Court, before Brigham, C. J., without a jury. The facts found by him, so far as it is material to state them, were as follows :</p> <p>In August, 1855, Mitchell & Rice, ship-builders, having their place of business in Chelsea, made an express contract with William F. Weld & Co. of Boston, to build for them a ship of about twelve hundred tons for a specified price. The petitioners in each case, under an oral contract with Mitchell & Rice, delivered to them, at various dates from September, 1855, to February, 1856, at a price agreed, several cargoes of lumber, all of which was furnished for and in relation to the construction of said ship, and was actually used in such construction, except a few thousand feet, in each of the first two cases, of which a small part, but how much did not appear, was used in launching the ship at Chelsea, and the rest amounting in value to $411.68, in the first case, and 122.50 in the second, was subsequently sold by the assignees in insolvency of the estate of Mitchell & Rice, and its proceeds appropriated to the use of that estate.</p> <p>By the contract with the petitioners in the first case, Mitchell & Rice were to have a credit of sixty to ninety days on the price of the lumber, and the lumber was not furnished by the petitioners upon the credit of the ship exclusively, but principally upon the credit of Mitchell & Rice, in view, however, of an ulterior liability of the ship and its owners for the lumber, upon the failure of Mitchell & Rice to pay for the same, which they had promised to do. In the second case, the lumber was furnished by the petitioner upon the credit of the ship. In the third case, the lumber was ordered by Mitchell & Rice, stating that they wanted it for the ship, and it was furnished primarily upon their credit.</p> <p>At the time when the contract with each of the petitioners was made and the lumber furnished under it, the ship was in the course of construction at Chelsea. She was launched unfinished at Chelsea on February 29, 1856, and on the same day was taken to Lewis’s Wharf, in Boston, where her construction was continued and completed, in hull, spars, rigging and sails, and a small portion of the lumber furnished as aforesaid by the petitioners was there used for making chocks for boats and other similar purposes.</p> <p>On March 22, 1856, the ship, with a cargo on board, sailed from Boston for San Francisco, and did not return to Boston or to any port in Massachusetts until July, 1871, when she was detained by process in these cases. In the intervening time she was frequently in other ports of the United States, and her arrival there was announced in the usual mode in the newspapers, but there was no evidence that the petitioners had actual notice thereof.</p> <p>On March 15, 1856, the ship was seized by the marshal upon process issued by the District Court of the United States for the District of Massachusetts, upon libels of these petitioners to enforce the same liens and debts. Upon stipulations of the respondents, the ship was delivered to them, and the libels were dismissed by the District Court, and by the Circuit Court of the United States upon appeal, because the courts of the United States had no jurisdiction in admiralty to enforce liens against the ship for labor and materials furnished before she was launched. The Orpheus, 3 Ware, 143 ; S. C. 2 Cliff. 29.</p> <p>The petitioners in the first and second cases filed in the office of the town clerk of Chelsea, on February 28, and March 19, 1856, and in the office of the city clerk of Boston, on March 25, 1856, and the petitioner in the third case filed in the office of the town clerk of Chelsea, on March 19, 1856, and in the office of the city clerk of Boston, on March 25, 1856, a certificate containing a statement, subscribed and sworn to by the petitioner, giving a just and true account of the demand claimed to be due to him. for furnishing said lumber for and in relation to the construction of the ship, with all just credits; except in the first case, as the account might be affected by the credit of sixty to ninety days as before mentioned; and in the second case that the footing of the account was erroneously stated at §462.83, when it should have been stated at $362.83, as appeared upon the face of the account by examining the items added up. Each certificate also stated the names of the persons with whom the contract under which the lumber was furnished was made, the names of the owners of the ship, and the name and description of the ship sufficient for identification; but in the first and second cases did not contain a statement containing a just and true account with all just credits of the quantity and value of the lumber furnished as aforesaid, which was actually used in the construction of the ship, but included all the lumber delivered as aforesaid under the contract.</p> <p>The petitioners have not been paid any part of the amounts claimed in their respective petitions.</p> <p>William F. Weld & Co., before these petitions were filed, either by payments in cash or by the discharge of liens claimed upon said ship, have paid to Mitchell & Rice the full price agreed for the construction of said ship, but none of such payments or discharges of liens have been for the benefit of the petitioners, or have operated to discharge the liens or pay any part of the sums of money claimed in these petitions.</p> <p>.Some years before the return of the ship to Boston, the firm of William. F. Weld & Co. was dissolved, William. F. Weld and William. G. Weld retiring therefrom, and Richard Baker, Jr., previously a partner of said firm, forming a new firm, under the style of William. F. Weld & Co., consisting of Richard Baker, Jr., and George W. Weld, of Boston, and Frederick Baker, of New York, of which dissolution and formation public notice was given in the newspapers, and thereupon the ship became the property of the new firm, which defends these suits.</p> <p>Chelsea, in 1855 and 1856, had piers or wharves for the loading and unloading of vessels, houses and stores, and a municipal organization wholly independent of Boston, and by the U. S. St. of 1850, c. 79, an inspector of customs, and was within the revenue district for the purposes of customs of the port of Boston.</p> <p>Upon the foregoing facts and their effect, the judge ruled “ that the ship, within the meaning and scope of the St. of 1855, o. 231, was partly constructed in the port of Chelsea, and partly constructed in the port of Boston; that within the meaning and scope of that statute, the port of Chelsea was no part of the port of Boston, but another and different port therefrom, and that the removal of the ship from Chelsea to Boston, on the day of her launching, on February 29, 1856, was a departure of the ship from the port of Chelsea; that the certificates filed in the office of the clerk of the town of Chelsea on February 28, and March 19, 1856, were not so filed within four days ‘from,’ that is to say ‘ after,’ the departure of the ship from the port of Chelsea, where she was when Mitchell & Rice contracted with the several petitioners the debts for which liens are sought to be enforced in these cases; and that the filing of the certificates on March 25, 1856, in the office of the clerk of the city of Boston, were within four days ‘ from,’ that is to say ‘ after,’ the departure of the ship from the port of Boston, on March 22,1856, but were of no legal effect, she not having been in the port of Boston when the debts to which said certificates relate were contracted.”</p> <p>The judge also ruled, “ that, irrespectively of the failure to file said certificates seasonably, and if the petitioners’ exceptions to the rulings of the court thereon are sustained, the petitioners, upon the legal effect of the facts found by the court, cannot maintain their several petitions, especially for interest upon their claims from, or in any relation to, the time of their libels in the United States District Court.”</p> <p>Upon the foregoing rulings the judge found for the respondents ; and the petitioners excepted to his rulings and findings.</p>

<p>Under an answer, to a declaration for rent due under a written lease, containing a general denial and alleging in avoidance that the plaintiff knowingly let the premises to he used for the illegal keeping and sale of intoxicating liquors, the defendant is not entitled to an instruction that if the plaintiff, after the letting, knowingly pern itted the premises to be used for the purpose of illegally selling intoxicating liquors, or if after notice of that Each he permitted the defendant to use them for that purpose, he cannot recover.</p>

Contract upon two counts: the first for moneys expended at the defendant’s request upon premises leased to him by the plaintiff ; and the second for use and occupation. Answer, to the first count, a general denial, and to the second count, payment of a part of the claim and tender of the rest.

<p>Contract upon a draft indorsed in blank by the payees, of which the following is a copy:</p> <p>“No 176. 15000.</p> <p>“ New England Agency of the Pennsylvania Fire Insurance Company, Philadelphia.</p> <p>“ Boston, August 18, 1873.</p> <p>“ Pay to the order of Haley, Morse & Company five thousand dollars, b.eing in full of all claims and demands against said company for loss and damage by fire on the 30th day of May 1873, to property insured under policy No. 824 of Boston, Mass., agency. Foster & Cole.</p> <p>“ To the Pennsylvania Fire Insurance Company, Philadelphia.”</p> <p>There were also counts on two other drafts of the same tenor, differing only in the number of the policy, and which were indorsed in like manner.</p> <p>At the trial in this court, Ames, J., withdrew the case from the jury, and reported it for tins consideration of the full court, in substance as follows:</p> <p>Foster & Cole, General Agents for the</p> <p>New England Slates,</p> <p>15 Devonshire Street, Boston.</p> <p>The defendants were the general agents for the New England States for the Pennsylvania Insurance Company of Philadelphia.</p> <p>Haley, Morse & Company held three policies of insurance issued by said insurance company in August and October, 1872, for one year, from its agency in Boston, upon their stock of furniture contained in their store.</p> <p>A fire occurred on May 30,1873, during the continuance of the policies, by which the furniture insured was destroyed. Haley, Morse & Co. made claim on the insurance company for the loss, through the defendants, and made' and delivered to them three formal proofs of loss on June 18,1873. On or about August 18, 1873, Haley, Morse & Co. called on the defendants, who then delivered to them the three drafts sued upon. These drafts were indorsed by Haley, Morse & Co., and deposited by them in.a bank for collection, on August 18, 1873, and the amount thereof was passed to the credit of Haley, Morse & Co., and by the bank forwarded to Philadelphia for collection. The insurance company on presentment declined to pay the amount of the drafts, or any portion thereof, and they were protested and returned at once to the bank with protests attached, and the bank promptly notified Haley, Morse & Co. of the fact. • The plaintiff, at the request and for the accommodation of Haley, Morse & Co., paid the money to the bank and received the instruments declared on from the bank, with the protests annexed.</p> <p>The defendants contended that the action could not be maintained on the ground that the instruments were executed by them as agents merely, and that there was not any personal liability on their part, whether in the hands of a bond fide holder or not.</p> <p>If the plaintiff was not entitled to recover upon these facts, judgment was to be for the defendants; otherwise judgment for the plaintiff.</p>

<p>Under the Gen. Sts. c. 124, § 13, one who is arrested on an execution in favor of a creditor, who does not reside or have a place of business in the county where the arrest is made, and who has no agent or attorney therein, may give notice of his intention to take the poor debtor’s oath to the officer malting the arrest; and the time for travel is to be determined by the distance between the place of service on the officer and the place of examination; and not by the distance at which the creditor or his attorney resides or does business therefrom.</p>

Bill in equity, filed March 6, 1875, against the city of Boston and Michael Norton, to restrain a sale of certain land of the plaintiffs in Brighton, for nonpayment of a betterment tax assessed thereon for the widening of Market Street in Brighton before the annexation of that town to the city of Boston.

Complaint to the First District Court of Bristol, alleging that the defendant, at Mansfield, on August 14, 1875, “ unlawfully did sell to one William Tilson, also to one William G. Tufts, also to one Curtis M. Bro.wn, also to one Charles James, also to one Alden Fuller, also to one Willard A. White, also to one Enos L. Williams, also to one Harvey H. Barrows, intoxicating liquor, he the said John Holmes not having then and there any license, authority or appointment…

<p>Complaint under the St. of 1875, e. 99, to the Municipal Court of the Charlestown District, by J. B. Cotton, charging William Fredericks with unlawfully selling intoxicating liquors in said district, on August 10, 1875, “ to a person whose name is to your complainant unknown, he, the said Fredericks, not being then and there authorized to sell the same in said Commonwealth for any purpose under the provisions of chapter ninety-nine of the acts of the year eighteen hundred and seventy-five of this Commonwealth, or by any legal authority whatever; against the peace of said Commonwealth, and the form of the statute in such case made and provided.”</p> <p>In the Municipal Court the defendant moved to dismiss the complaint on the following grounds:</p> <p>“ 1. The complaint is insufficient, and does not set forth any offence known to the law.</p> <p>“ 2. It does not appear by any allegation that the defendant is not of the class of persons excepted under the provisions of the St. of 1875, o. 99, or that the intoxicating liquors that he is charged with selling are not of the kind permitted to be kept and sold without a license.</p> <p>“ 3. The statute under which the complaint is brought is unconstitutional and void.</p> <p>“4. The complaint charges William Fredericks with selling intoxicating liquors in violation of law; whereas the defendant’s name is William A. Fredericks.” This motion was overruled.</p> <p>The defendant was tried, adjudged guilty and sentenced to pay a fine of $100 and costs, and appealed to the Superior Court. The record of the judgment of the Municipal Court, transmitted to the Superior Court, recited that the defendant was brought before the court on the complaint of J. B. Cotton, setting forth that “he the said Fredericks, on the tenth day of August eighteen hundred and seventy-five, at Boston aforesaid, and in said Charles-town District, was guilty of the crime of unlawfully selling infcoxicating liquors, (as is more fully set forth in said complaint,) ” and the record then proceeded in the usual manner. Annexed to the record was a copy of the complaint, signed “ Daniel Williams, Clerk.” The copy of the record was signed 66 Stephen P. Kelley, Clerk, pro tern.; ” and both papers were certified to be true copies by “ Daniel Williams, Clerk.”</p> <p>In the Superior Court, before Bacon, J., the defendant moved to dismiss the proceedings on the following grounds:</p> <p>“ 1. There is no description, in the papers transmitted to this court, of any offence known to the law of the land.</p> <p>“ 2. There is no copy of any conviction of the defendant upon any offence at law, or in proper judgment of the court appealed from, on any issue transmitted to this court, by the justice of the Municipal Court for the Charlestown District, or by the clerk thereof.</p> <p>66 3. The papers transmitted to this court are insufficient, and no judgment can be rendered upon them in this court.</p> <p>“ 4. The proceedings of- the court appealed from, and the record of its proceedings in this case as transmitted, are irregular, informal and defective, as appears of record in this court.”</p> <p>This motion was overruled; and the judge ruled that the copy of the complaint referred to in the judgment was a part of the record, and that upon the offence stated therein and in the judgment the defendant was to be tried.</p> <p>The defendant then, and before the jury were empanelled, renewed his motion, made in the Municipal Court, to dismiss the complaint. This motion was also overruled, and the defendant was then tried.</p> <p>The evidence introduced tended to show the sale, as alleged in the complaint, of a pint of whiskey, by the defendant, to a man whose name was unknown. No other testimony was offered.</p> <p>The defendant asked the judge to rule as follows: “ 1. That, upon the proceedings transmitted to this court, there was no of-fence, stated in proper legal terms, upon which the jury could find a verdict, or the court record a judgment. 2. That, under this complaint and judgment, there was no evidence to go to the jury to warrant a conviction.” The judge declined so to rule as requested, and did rule that the offence was sufficiently alleged \ that the proceedings transmitted were sufficient, and the evidence introduced by the government, if the jury believed it, would warrant a verdict of guilty. The jury returned a verdict of guilty.</p> <p>The defendant filed a motion in arrest of judgment on the following grounds:</p> <p>“ 1. There is no description in the complaint, judgment, or any of the papers transmitted to this court, of any offence known to the law of the land.</p> <p>“ 2. There is no copy of any conviction of the defendant upon any offence at law, or any proper judgment of the court appealed from, or any issue raised there, transmitted to this court by the justice of the Municipal Court of the Charlestown District, or by the clerk thereof.</p> <p>“ 3. The proceedings of the court appealed from, and the record of its proceedings in this case transmitted to this court, as appears of record, are irregular, informal and defective; so that no judgment ought to be rendered thereon.</p> <p>“ 4. The law, for the violation of which the defendant has been , convicted, is unconstitutional and void.” This motion was overruled, and the defendant alleged exceptions.</p>

<p>Complaint under the St. of 1875, c. 99, to the Municipal Court of the city of Boston, averring that Thomas Curran, on July 3, 1875, “ at Boston aforesaid, and within the judicial district of said court, unlawfully did expose and keep for sale intoxicating liquors, with intent unlawfully to sell the same in this Commonwealth, the said Curran not having then and there any license, authority or appointment, according to law, then and there to expose, keep for sale,, or sell said liquors, against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided.”</p> <p>In the Superior Court, before Bacon, J., on appeal, before the jury were empanelled, the defendant filed a motion to quash the complaint on several grounds, the only one of which not covered by the case of Commonwealth v. Fredericks, ante, 199, was that “ it is void for duplicity, charging two offences in one count; and the complaint does not contain any sufficient allegation or description of any offence at law, and is defective both in form and substance.” This motion was overruled, and the defendant was then tried.</p> <p>The government introduced evidence tending to show that the defendant kept a place of business, in which ale and other liquors were exposed and kept for sale. The defendant requested the Judge, to give the following instructions:</p> <p>“ 1. That the government has failed to prove any offence under the St. of 1875, e. 99.</p> <p>“ 2. That the defendant was not of the class of persons permitted to expose, keep and sell intoxicating liquors without a license.</p> <p>“ 3. The government must show that the liquors exposed and kept for sale were not liquors the defendant was required to sell under any provisions of law requiring him to sell personal property, and were not cider or native wine in his possession as the maker thereof, to be sold not to be drunk on the premises. If the government has failed to prove these facts, the jury must acquit.</p> <p>“4. The burden of proof is on the government, to prove that the liquors exposed and kept for sale were intoxicating, and the jury must acquit if the evidence leaves them in doubt as to this fact.</p> <p>“ 5. Under the present law and under this complaint it is necessary for the government to prove that the defendant did not have any authority under this law to expose, keep for sale or sell the intoxicating liquors alleged and proved to have been exposed and kept for sale. .</p> <p>“ 6. The jury must not convict upon the mere opinion of any witness, that the liquors exposed and kept for sale were ale, whiskey or other intoxicating liquors.</p> <p>“7. The government must show in this case one of two things: either that the mayor and aldermen of the city of Boston voted to grant licenses under this law, or refused to do so; or that the powers and duties given to and imposed upon them were exercised by a board of license commissioners, appointed by the mayor and confirmed by the city council thereof, after the city council had so determined to delegate the power to such a board.</p> <p>“ 8, The statute under which this complaint is made is con- ' trary to the provisions of the Constitution.”</p> <p>The judge instructed the jury in accordance with the sixth request, and gave the fourth with this modification, “ that if the liquors exposed were ale or distilled spirits, called whiskey, they must convict, if the same were kept for sale, and declined to give the other instructions requested.”</p> <p>The jury returned a verdict of guilty; and the defendant filed a motion in arrest of judgment, alleging substantially the grounds stated "in the motion to dismiss. This motion was overruled, and the defendant alleged exceptions.</p>

Indictment for subornation of perjury. At the trial in the Superior Court, before Bacon, J., at July term 1875, the de fendant was found guilty, and alleged exceptions to the rulings at the trial.

<p>On the trial of a complaint for keeping a disorderly house, the evidence tended to show that the defendant kept a dance hall, which was resorted to by men and women of bad repute, and the government was permitted, against the defendant’s objection, to introduce evidence that women of bad repute, resorting to the hall, htxl frequently while there solicited men to leave the building and go away with them for the purposes of prostitution; that the men went away with them, and that the defendant was then present in the hall. Held, it not appearing by the bill of exceptions that this was all the evidence offered at the trial, that the evidence was rightly admitted.</p>

Indictment for keeping and maintaining a tenement used for the illegal sale and keeping of intoxicating liquors on August 1, 1874, and divers other days between that day and September 17, 1874.

<p>On the trial of an indictment, charging the defendant in the first count with the of a bond to dissolve an attachment, and in the second count with knowingly uttering the forged bond, the government proceeded upon the ground that the defendant fraudulently presented to a master in chancery a bond to dissolve an attachment purporting to be signed by S. and J. as sureties; that at the same time he produced before the master two accomplices, who falsely represented themselves to be S. and J., and testified to their sufficiency as sureties; and that the names of S. and J. were fictitious names signed or procured to be signed by the defendant. The government also offered evidence that no such persons as S. and J. could be found. The defendant offered to show, in explanation of the absence of S. and J. as witnesses in his behalf, that the prosecuting officer had openly threatened to prosécute them for pequry, and that they thereupon fled the Commonwealth and had not returned, and that he had made efforts to procure their attendance as witnesses. Held, that the exclusion of this evidence gave the defendant good ground of exception.</p>

Three actions op contract. Writs dated October 28, 1878. The first action was by Roxie M. Blodgett and Susan A. Martin against James B. Weed, Frederick M. Weed, John Hill, D. B. Geary and D. W. Fuller, late copartners, doing business under the name of James B. Weed and Company, on the following promissory note, signed “ James B. Weed & Co.”: “ $2600. Binghamton, 1ST. Y., April 11, 1873.

<p>In an action to recover for the conversion of a part of the furniture in a hotel, it appeared that the defendant was the owner of the hotel, and that the plaintiff had succeeded to the title to the furniture, which C., who carried on business in the hotel, had. One witness testified that he bought all the property in the hotel; that he used it, and told C. that he could take away a certain portion of the furniture, but nothing else. It appeared that no obstacle was put by the defendant in the way of ths removal of all the furniture in suit. Held, that in the absence of evidence that the witness acted as the agent of the defendant, or bought the property of him, the defendant was not liable.</p>

Contract against W. A. Washburn and Frederick E. Abbott, upon an instrument under seal, dated October 15, 1871, and signed by the plaintiff and the defendants, reciting that the de-. fendants were the owners of certain land in the city of Worcester, with a cottage standing thereon, which the defendants desired to remove to another part of the land, and providing as follows: “ Now, therefore, said Cunningham, being a practical carpenter and building mover, in consideration of…

Contract against Charles Howe as principal, and Andrew Riley and Patrick B. Wallace as sureties, upon a bond, dated December 5, 1873, payable to the plaintiff, and conditioned that the defendant Howe should appear at the next December term of the Superior Court at New Bedford, and answer to a complaint made by the plaintiff on her examination on oath before the Municipal Court of Taunton, charging him with being the father of a bastard child of which she was pregnant, and…

<p>The mortgagee of a vessel, who is in possession, and to whom supplies for the use of the vessel have been furnished, under such circumstances that he is liable for them, is properly described as owner in the declaration in an action to recover for the supplies.</p>

Tort for breaking and entering the plaintiff’s close, being a passage way about four feet wide, bounded northerly on Elm Street in Boston, and lying between other land of the plaintiff on the west and land of the defendant on the east.

Tort to recover for personal injuries alleged to have been caused by a defect in a highway in the defendant town.

<p>Where a building is insured against fire by a policy which provides that “if the assured shall vacate the property in whole or in part, this policy shall be void; this company will not insure unoccupied property,” and an indorsement is made upon the policy by which it is to be payable in case of loss or damage to mortgagees of the insured property “ as their mortgage claim may appear,” and the property is afterwards destroyed by fire, when unoccupied, the policy is void both as to the original assured and the mortgagees.</p>

<p>Tobacco stored in barns, hanging on poles in process of curing and in such condition that it cannot be moved without great damage to it, is subject to attachment.</p> <p>Under the Gen. Sts. c. 123, § 57, providing that in the attachment of articles of personal estate, which “ by reason of their bulk or other cause cannot be immediately removed,” a certified copy of the writ and the return may be filed within three days in the ofiice of the city or town clerk, it is sufficient if the property cannot be removed without great damage to it.</p> <p>Tobacco in the process of curing, and in such condition that it could not be removed without great damage to it, was attached under the Gen. Sts. c. 123, § 57, and afterwards, at the time when it required to he stripped and packed, was stripped and packed by the defendant in boxes so that it could be transported without injury. No arrangement was made between the defendant and the attaching officer in regard to the stripping and packing, and the officer did not see the tobacco until after it was packed, when he locked up the boxes containing it in a building upon the defendant’s premises. The defendant afterwards mortgaged it to a person who had no knowledge of the attachment. The key to the building was kept by the officer for several months, and then given to the defendant's assignee in bankruptcy to enable him to examine the property, and by him lent to the defen taut for a special purpose, without the knowledge of the officer. The mortgagee after-wards took possession and placed a keeper in charge of the property, from whom and against whose protest it was taken by the officer. Held, that there was no such misconduct or neglect shown on the part of the plaintiff or the officer as would dissolve the attachment.</p>

<p>In an action by an assignee in bankruptcy to recover the value of personal property npon the ground that it was transferred to the defendant in fraud of the bankrupt act, it appeared that, more than four months before the filing of the petition in bankruptcy, two of the'creditors of the bankrupt brought suits against him and attached the property in question, which was placed by the officer in the charge of the defendant, who receipted therefor in the usual form. The bankrupt afterwards executed a bill of sale of the attached property to the defendant, who sold a part of it and applied the proceeds to the satisfaction of the executions in the suits of the attaching creditors. The jury were instructed that if the arrangement between the defendant and the bankrupt was to the effect that the property shoul 1 be sold and the proceeds applied towards the payment of the debts of the attaching creditors, without regard to attachments, and without a demand perfected in execution, that would be a preference, and in that case the defendant could claim no protection under the attachments; but if the understanding and intent was that the proceeds of the property should be held by the defendant as security against his liability on his receipts and applied on the debts only upon demand duly made on execution, and the sales were in good faith and the proceeds in fact applied on the executions, the defendant could claim protection under the attachments, unless it appeared that the parties intended a preference, or a fraud to prevent the property from distribution under the bankrupt act. Held, that the instruction was sufficiently favorable to the plaintiff, and that he had no ground of exception,</p> <p>in an action by an assignee in bankruptcy to recover the value of personal property upon the ground of a fraudulent preference, the plaintiff requested the court to instruct the jury “ that the transfer in any case by a debtor of a large portion of his property, while he is insolvent, to one creditor, without making provision for an equal distribution of its proceeds to all his creditors, necessarily operates as a preference to him, and must be taken as conclusive evidence that a preference was intended, unless the debtor can show that he was at the time ignorant of his insol vency, and that his affairs were such that he could reasonably expect to pay all his debts. The burden of proof is upon him, in such a case, and not on the assignee.” This instruction was not given, and the jury were instructed that the burden of proof throughout was on the plaintiff, but that the intent of the parties might be inferred from their acts, and that, if the conveyance to the defendant was out of the usual and ordinary course of business, the statute made it prima facie evidence of the fraudulent intent of the parties. Held, that the instruction given was correct; and that the plaintiff had no ground of exception.</p>

<p>A. entered into a written contract with B., hy which B. agreed to build a house and barn for A., and do all the carpenter’s work, and furnish all the material for a gross sum. B. afterwards ordered of C. in his own name, the windows and doora necessary for the house and barn, and, after some of them were delivered and placed in the buildings, A. called at C.’s shop to get the rest of the windows, and was told by C. that he had doubts of B.’s solvency, and had concluded not to trust him for the goods, and for that reason had withheld the remaining windows, and A. thereupon directed the plaintiff to send the goods to B. and charge them to A., and promised to pay for them. 0. afterwards gave no credit to B., but wholly to A., but did not inform B. of the conversation, and afterwards delivered the goods to B. as he called for them. Held, in an action by C. against A. that the jury were warranted in finding that the promise sued on was a promise to pay the defendant’s own debt, and not a promise to answer for the debt of another within the statute of frauds.</p>

Contract against the members of the firm of Kendall & Jennison. The first count was on a promissory note signed by the defendants, dated September 11, 1869, and payable on demand. The other counts were on notes and accounts of a later date. Writ dated July 24, 1873.

<p>Contract to recover one half the value of a party wall, which it was alleged the defendant had used, and which had been built by the plaintiff under an indenture under seal executed by him and by the defendant on January 17,1873, the material parts of which are as follows :</p> <p>“ This indenture witnesseth, that the said Shaw and the said Hitchcock, in consideration of one dollar, and in consideration of the benefits to be derived from the mutual agreements and covenants of each hereinafter contained, do hereby covenant and agree each with the other, that either party or their legal representatives may build a partition wall on the line between their respective properties on Main Street, in said Springfield, as follows, to wit: Said wall shall be built one half on each side of said line, the whole to be a solid wall with the exception of flues.” [Then followed a description of the manner in which the wall should be built.] “ Said wail shall extend in height above the main floor in front on Main Street at least forty-five feet, and for a distance back from Main Street-at least forty feet, at least the same height, and to be thoroughly capped with stone or metal, and the adjoining party or his legal representatives may at any time use as much of the within described wall, as he or they may choose for the erection of any building, but before he or they may use any or all of said wall, he or they shall first pay the other party or his legal representatives an appraised value of so much of said wall as he or they shall then use.” [Then followed a provision in regard to appointing appraisers.]</p> <p>At the trial in the Superior Court, before Rockwell, J., the plaintiff read the contract to the jury, and stated that he should prove that the plaintiff built the wall described in the contract, substantially as therein required, one half upon the land of the plaintiff, and one half upon the land of the defendant, four stories high above Main Street; that the plaintiff and the defendant were adjoining owners of lands upon Main Street, the plaintiff owning the piece of land formerly owned by the North Church; that the defendant had upon his lot a store at the time the contract was made, which was constructed of brick on three sides, with suitable stone foundations, but upon the side adjoining the plaintiff it was framed of wood, and rested upon the land of the plaintiff, the defendant having leased the right of the church, before the purchase of the land by the plaintiff, to construct said side upon the land of the church; that being thus situated it was impossible for the plaintiff to build said partition wall and locate it as provided in the contract, without destroying so much of the defendant’s building as rested upon the land of the plaintiff and upon the width of one half the location of the partition wall upon land of the defendant; that said side and so much of the building as was necessary to locate the partition wall according to the contract was taken down by the defendant, and the rest of his building was propped and sustained by him during the erection of the partition wall; that as the wall was erected, spaces were left for the defendant to adjust his building into the partition wall, and the defendant did so adjust his building and entered said wall with his timbers, and so fitted his building as to make and use the partition wall the south side of his building; that the defendant was present during the building of said wall, and made suggestions as to how the same should be built, which were complied with ; that the plaintiff asked the defendant to pay him for one half the partition wall as named in said contract,'used by the defendant as aforesaid, and the defendant refused to pay the same, or to submit to or have any appraisal; that the building of the defendant was one story high above Main Street at the time the contract was entered into, and the defendant has not made any additions to or alterations in said building except as hereinbefore related.</p> <p>Upon this statement of the plaintiff’s case the defendant asked the judge to rule that the plaintiff could not maintain his action, and the judge so ruled; but by consent of both parties reported the case, before verdict, for the determination of this court. If the ruling of the judge was correct, judgment was to be entered for the defendant; otherwise the case to stand for trial.</p>

<p>If a promissory note, signed by one member of a partnership in the 'firm name, is given in payment of debts, some of which were contracted before another member came into the firm and the rest thereafter, and an action thereon by the payee of the note is defended by such other member alone, the plaintiff, in the absence of evidence of actual fraud on his part, or of knowledge when the party defending entered the partnership, is entitled to recover for such debts covered by the note aa were contracted after he became a member.</p>

<p>Actions of CONTRACT upon three policies of insurance on the same building. The cases were tried together in the Superior Court before Colburn, J. The jury returned a verdict for the plaintiff in each case; and the defendants alleged exceptions, so much of which as'is material to the point decided appears m the opinion.</p>

<p>A judgment of a court of general jurisdiction in another state may be proved by a duly certified copy of the “ transcript of judgment,” which simply contains a copy of the summons to the defendant to answer in a plea of trespass on the case in assumpsit; a return of the officer thereon, showing personal service on the defendant ; a copy of the plaintiff’s- declaration and statement of his claim ; a copy of the “ continued docket entry,” showing, under the names of the parties, the issuing of the summons, filing of the plaintiff’s declaration and statement, and entry of judgment; and a copy of the “judgment docket entry,” showing, under the names of the parties, the date of the judgment, the amount of the debt, and the amount of the costs.</p> <p>In an action on a judgment obtained in another state, in which the record shows that the defendant was dirty summoned to appear, evidence that the defendant did not owe the plaintiff anything is not competent on the issue whether service was made on the defendant, nor on the issue whether the claim in the other state was fraudulent; and the evidence is not made admissible by the fact that the officer, who appeared by the record to have made the service, testified that when he made the service the defendant said the claim was a just one.</p>

<p>The owner of a large tract of land fronting on a road, through which land an open space of irregular width, varying from forty-eight to fifty-three feet, bounded on the sides by trees, fences and buildings, extended from the road back to other lands of the grantor, and was used for access to these lands, conveyed one of them by a deed containing the following clause following the description in the deed : “ I hereby covenant, for myself, my heirs and assigns, that a carriage way a.t least twenty-five feet wide shall forever hereafter be kept open and unobstructed from said lot easterly to ” the said road. In an action of tort by the grantee of the lot for the obstruction of the way, the defendant did not deny that the plaintiff was entitled, under this clause, to an unobstructed way at least twenty-five feet wide, but contended that no location of the way had ever been made under it, and asked the judge to rule that if a way twenty-five feet wide had since his occupation been always left open, he was entitled to a verdict. The judge declined so to instruct the jury, and instructed them that if, when the deed was given, a carriage way defined by visible objects had been previously located by the grantor, they might find that such way was intended to be secured to the grantee, although it was forty-five feet wide. Held, that this instruction gave the defendant good ground of exception.</p>

CONTBAOT upon a promissory note, of which the following is a copy: “ $400. Fall River, Dec. 29th, 1873. For value received, I promise to pay Abel R. Davis or order four hundred dollars, with interest, six months after date.

<p>On the trial of a writ of entry, the demandant claimed title to the land in question as part of a lot conveyed by A. to B., and by B. conveyed to him. At the time of each of these conveyances, the land demanded was separated from the rest of the land conveyed by a substantial fence extending across the rear of the lot. The tenant’s dwelling-house stood upon it, and there was no fence between it and tbe tenant’s adjoining lot in the rear, but the whole was used as one house lot in the exclusive and actual possession of the tenant, which was adverse, under a claim of title, open and notorious. The title which A. had in the premises was acquired by quitclaim deed from the tenant and by the foreclosure of a mortgage while in his hands, which had been assigned to him. At the time of the quitclaim deed, A. gave possession of the premises to the tenant under an agreement of purchase,, which was soon given up, and possession was taken by A. of all except the strip of land in dispute. The mortgage was foreclosed before A.’s deed to B. Held, assuming that the deeds included in their descriptions the land in question, that the grantors in those deeds were disseised, and that nothing passed by them.</p>

<p>Tobt for personal injuries occasioned, by an alleged defect in a highway in the defendant city.</p> <p>At the trial in the Superior Court, before Brigham, C. J., it appeared that a sidewalk caved in in the night-time, and that about an hour and a half afterwards the plaintiff, while in the exercise of due care, fell into the hole. The plaintiff claimed to recover on the ground that the sidewalk had been undermined for twenty-four hours, and also on the ground that the city had notice of the defect. The evidence on the last point appears in the opinion. The jury found specially that the defect had existed for twenty-four hours, and returned a verdict for the plaintiff. The judge set aside the special finding, but refused to set aside the verdict. The defendant alleged exceptions to the refusal of the judge to rule that the evidence of notice was not sufficient to entitle the plaintiff to a verdict, if the defect had not existed for twenty-four hours; and the plaintiff alleged exceptions to the order setting aside the special finding.</p>

Tort for personal injuries occasioned by an alleged defect in a public street in Lawrence, called Essex Street, which the defendant was bound to keep in repair.

<p>In an action by the payee against the maker upon a promissory note, there was evidence that, before the making of the note, the plaintiff agreed to take thirty-five per cent, of his debt and sign a composition deed, and that he afterwards deposited his claim with an attorney, to whom the defendant, induced by fear of an attachment of his properly, paid a part of the whole claim in cash, and the rest by the note in suit; that the plaintiff afterwards signed a composition deed, by which the creditors agreed to take thirty-five per cent, of their claims, which was signed by “ substantially all” the creditors, and was to be void unless the compromise was paid within seven days after the date of the deed. The plaintiff’s signature to the deed was affixed after the expiration of the seven days, and his signature preceded those of a majority of the creditors who signed. The presiding judge instructed the jury that if, after the plaintiff agreed to sign with other creditors of the defendant the deed of composition, the plaintiff’s attorney, by threats of an attachment, collected of the defendant in cash a sum equal to or larger than the sum agreed in the deed to be taken in discharge, and obtained the note declared on and delivered it to the plaintiff, who in consideration that he had thus received the full amount of his debt, affixed his signature to the deed, the jury would be warranted in finding that the note was without consideration; that if there was no relation between the plaintiff’s signing the deed and the giving the note, and if this was an independent contract for the payment of the defendant’s debt to the plaintiff, irrespective of any promise to sign the same and of the act of signing, the note was for a good consideration. Held, that the evidence justified the jury in finding that the note was signed upon the understanding that the deed should be signed. Held, also, that the instruction was correct. Held, also, that the validity of the consideration was • to be tested by the object with which the contract was entered into, and not by the number of persons actually deceived by the plaintiff’s signature.</p>

<p>The provision of the Gen. Stá. c. 49, § 131, that cities “may from time to time establish such ordinances as they deem expedient, with suitable penalties, respecting the appointment of surveyors of lumber therein,” is not compulsory upon a city whose charter provides that it may establish such ordinances; and if such city fails to posa such ordinances, it still has the duty, under the Gen. Sts. c. 18, § 31, and c. 19, § 2, of appointing surveyors; and if, such ordinances not being passed, surveyors of lumber are yet appointed, and lumber is sold without being surveyed, numbered and marked, as required by the Gen. Sts. c. 49, § 143, the sale is void.</p> <p>The St. of 1875, c. 153, applies only to sales of goods, wares and merchandise, by weights and measures, and not to sales of lumber.</p>

Contract upon an instrument undér seal, dated October 24, 1872, and signed by the parties, whereby the plaintiff agreed to sell and the defendant to purchase five lots of. land, for a price named, the land to be conveyed “ on or before December 1, 1872, by a good and sufficient warranty deed, conveying a good and clear title to the- same, free of all incumbrances, except a mortgage of three and three fourth cents per square foot on each of said lots, No. 27, 28 and 29,” and…

<p>On the trial of a libel by a wife for divorce from her husband on the ground ot cruelty, the husband was permitted, without objection, to show in explanation of his conduct that he had received an anonymous letter, but was not permitted to ■put the contents of the letter in evidence. Held, that he had no ground of exception.</p> <p>On the trial of a libel by a wife for divorce from her husband on the ground of adultery, the libellant contended that the husband had committed adultery with A., and put in evidence tending to show that he and A. were found together in the same room at a hotel in the night-time, under circumstances which justified the inference of adulterous intercourse. The husband contended and put in evidence, tending to show that he was at the hotel in his professional capacity as a dentist, and that thé libellant, A. and a private detective, had formed a criminal conspiracy to entice him to the hotel and place him in an equivocal position with A. so as to furnish false evidence of adultery. The husband called A. and asked her if she was the woman spoken of as being in the hotel with him. She declined to answer on the ground that it would tend to criminate herself, and the judge instructed her that she was not obliged to do so. He then asked her a number of questions which she answered without objection, and which, so far as relevant, would furnish links in a chain of evidence tending to convict her either of adultery or criminal conspiracy. She then declined to answer further. The judge then instructed her as to her rights more fully than at first, and inquired of her if she had fully understood them. She replied that she had not. Held, that it was within the discretion of the presiding judge to allow the witness then to claim her privilege, and to order her evidence already given to be struck out of the case.</p> <p>if the testimony of a witness is struck out of the case, on the ground of her misapprehension of her privilege as a witness, the party calling her cannot put in her declarations or admissions to contradict her, under the St. of 1869, c. 425.</p> <p>On the trial of a libel by a wife for divorce from her husband on the ground of adultery, the woman with whom the husband was charged with having had adulterous intercourse was called by the libellee as a witness, testified, and her testimony was afterwards stricken out on the ground of her misapprehension of her privilege as a witness. She was then asked by the libellee, “ Whom she had met and with whom she had been in conversation since the adjournment of the court ” several days before. The judge ruled that the libellee might show any conver eations with the libellant or any agent of hers, but beyond this the question waa Immaterial. Held, there being no testimony of the witness in the case to be contradicted by fmch conversations, that the ruling was correct.</p> <p>On the trial of a libel by a wife for divorce from her husband on the ground of adultery, the woman with whom the husband was charged with having had adulterous intercourse was called by the libellee as a witness, testified, and her testimony was afterwards stricken out because of her misapprehension of her privilege as a witness. The libellee argued to the jury, without any adverse ruling being made, that he had done all he could to get the woman as a witness and to make . her testily as to the facts. The judge in his charge stated that the case must be considered as if the woman had never been put upon the stand. Held, that this expression in the charge gave the libellee no ground of exception.</p>

<p>Under the Gen. Sts. c. 48, § 5, providing that assessments for sewers and drains shall constitute a lien on the real estate assessed “ for one year after they are laid," an assessment by the mayor and aldermen of a city of the expenses of laying a sewer in a street of the city upon land abutting thereon and benefited thereby, is an incumbrance thereon from the time of the order for its construction, and is a breach of the covenant against incumbrances in a deed of the premises delivered after such order, but before the assessment was laid.</p> <p>At the time of negotiations for the purchase of land, a sewer was in process of construction in the street on which the land abutted; the party proposing to purchase called the owner’s attention to the sewer, and asked him who was to pay for the sewer, to which the owner replied that he would, and that the other party should not be called upon to pay a cent for it. A deed of the land was subsequently given, with the usual warranty against incumbrances, but no mention was made in it of the sewer. The purchaser afterwards paid an assessment upon the land for the construction of the sewer. Held, in an action by him against his grantor upon a special promise to pay any assessment which should be laid on account of the sewer, in which the consideration was averred to be the purchase of the land, that evidence of the conversation and of the existing circumstances was sufficient to prove the promise. Held, also, that the evidence was competent, and was not open to the objection that it varied or enlarged the written instrument; and that the promise proved was not within the statute of frauds.</p>

<p>An indictment on the Gen. Sts. c. 163, § 12, alleging the arrest for drunkenness of A., at a time and place mentioned, by B., a constable of the town, and that the defendant “ did then and there unlawfully aid and assist the said A. in then and there unlawfully escaping from the said lawful custody of the said B.,” is insufficient, although it follows the words of the statute.</p>

<p>A complaint under the St. of 1869, c. 384, § 19, which charges the defendant with fishing in a certain pond, “ in which fishes are lawfully artificially cultivated 01 maintained, without the permission of B., the proprietor of the pond,” is sufficient without f irther designating the nature of B.’s interest.</p> <p>Under the St. of 1869, c. 384, § 9, authorizing the commissioners^ of inland fisheries to lease, in the name of the Commonwealth, any great pond, exceeding twenty acres in area, for the purpose of cultivating useful fishes, the commissioners have authority to lease a pond which exceeds twenty acres in extent in its natural condition, although it has been increased beyond that extent by a dam.</p> <p>The provision of the St. of 1869, c. 384, § 7, that the proprietors of any pond or parts of a pond, created by artificial flowage, shall have exclusive control of the fisheries therein existing, does not deprive the commissioners of their authority, under § 9 of the statute, to lease any pond exceeding twenty acres in area in its natural con dition, although the pond has been increased in extent by artificial flowage.</p>

<p>Indictment for burning the dwelling house of Giles F. Allen, at Dartmouth, on June 28, 1874. At the trial in the Superior Court, before Pitman, J., there was evidence tending to show the following facts:</p> <p>On the night of June 28,1874, said Allen and his wife went to bed at about nine o’clock. The rest of the family, consisting of a young son of twelve, his sister-in-law, and two small children, and also his hired man, Head, and the defendant, a colored servant girl, between fourteen and fifteen years of age, employed for her food and clothing, had all previously retired to bed between eight and nine o’clock. Mr. and Mrs. Allen slept on the first floor of the house in a bedroom leading from the dining room, and the rest above. At about quarter past ten o’clock, Mrs. Allen wars awakened by the smell of smoke. She aroused her husband who was asleep, went, to the cellar door, opened it, and discovered a blaze in the basement. Her husband hurried down, and found that some shingles, which had been placed in a partitioned room adjoining a washroom, were on fire; he extinguished the fire with a few buckets of water standing near, which had been drawn by himself and hired man the night before. Mrs. Allen aroused the family, and when Head got down there the fire was extinguished, only some portions of the door and casements of the building being slightly burned. The outside cellar door that led out doors from the washroom could be unbarred from the outside, by a person acquainted, by the removal of a stone between the mason work and the door frame. It' had been fastened that night, but was then unbarred, so that it could be opened, the bar being dropped down on the floor at the bottom. It could not be opened and closed without a creaking noise by rubbing on the threshold. The sister-in-law and the children slept in the second story over the first floor, and Head and the defendant slept in the second story of the ell, her room being beyond his, and she usually passed through his room on going to or from her room. Upon the alarm being given she passed through his room in her night clothes before he had got out of bed, and at the request of Mrs. Allen, lighted some lamps, and then went with Mr. Allen’s son to call in.some neighbors. The family soon after retired.</p> <p>The next morning, Mrs. Allen discovered a half-pint bottle about half full of kerosene, standing at the end of a wood box in the kitchen. She testified that it was not there the night before and she had never seen the bottle before, and that, though she had used a half-pint bottle to pour kerosene on her hens frequently, this was not the one she used. She showed it to her sister and husband, and to the defendant that morning, and inquired if they knew how it came there, and they all answered in the negative. They kept kerosene in a two gallon can, and another smaller can kept on a shelf under the sink in the kitchen. They used kerosene for light. That morning Mr. Allen discovered a considerable amount of kerosene on the shingles beneath where the fire occurred, which had not burned. He showed these shingles and the bottle of kerosene to officers Dayton and Dunham, of New Bedford, who came there on July 7, following. Mr. Allen had previously offered a reward of $200 for the detection of the incendiary. Dayton and Dunham caused the kerosene found in the bottle and also that kept in the cans in the house to be tested by an inspector or assayer who pronounced them the same in quality.</p> <p>On July 10, the defendant, at about four o’clock in the morning, before the family was up, left Mr. Allen’s, without his knowledge, and walked to New Bedford, a distance of about eleven miles, and to the house of G. W. Offley, a friend of her parents, and whom she had before frequently visited. Mr. Allen called, there for her during the forenoon, and had some conversation about her return and her clothing that she had left, she telling him that she did not wish to return. She afterwards testified that the reason of her leaving as she did was that she was afraid they would not let her go, and that she wanted to live in the city and wanted wages.</p> <p>In the forenoon of July 14, she remaining at Offley’s, Dayton, a police officer of New Bedford, and Dunham, a state constable, called at Offley’s house, not having a warrant, and found the defendant shelling peas. Dayton said to her, “ Ellen, I want you.” She got up, went up stairs followed by Dayton, got her bonnet, and came down. Mrs. Offley was then there and inquired what was up. Dayton replied, “We want her to go down town.” Mrs. Offley then said, “ Tell the whole truth.” They went with her in a carriage to the police station of New Bedford, a distance of about a mile and a half, and as she was going into a cell under the charge of Dunham, and had just got inside when Dayton said to Dunham, “ Hold up, let us talk here.” They then sat down near the cell door, and Dayton asked her why she left Allen’s, and she said she was tired and wanted to live in the city. Dayton then said, “ Ellen, I suspect you of setting the fire,” and asked her if she did. The defendant objected to evidence of what she said at that time in the nature of a confession, on the ground that what she said was under intimidation in the nature of threats or promises, .though there was no evidence of verbal threats or promises. The judge overruled the objection, and the evidence was admitted. Dayton and Dunham then testified, substantially, that in answer to their questions while sitting there, and no other person present, she said that on Sunday afternoon, (the day of the fire,) when filling the lamps, she went down cellar where there were bottles, took a bottle from there, filled it with kerosene from the can, and set it on the shelf in the kitchen, and at night, when she thought they were all asleep, she came out through Head’s room, down stairs, took the bottle, and went through the dining room into the front entry and down the cellar stairs leading from there, and she poured some of the kerosene on the shingles, put a match to them, then took the bar from the "outside cellar door, and laid it so it would look as if some one from outside had unfastened it; that she did not open the door, as it would creak on the bottom; that she then came up stairs, and as she passed through the kitchen she set the bottle, being about half full, at the end of the wood box, where Mrs. Allen found it the next morning, and then passed up stairs to her own room, and had just got. into bed when she heard Mrs. Allen give the alarm, and she came down, as has been stated. She was then shown the bottle by Dunham, and said she knew that it was the bottle by the dirt that was in the bottom. She was asked if she knew them (Dayton and Dunham) when they were at Allen’s on July 7, She replied that she did, and if they had then asked her she would have told them the same; that she was sorry as soon as she did it.</p> <p>She was then put into the cell, and shortly afterwards, within a few minutes, one Hammond, an officer, saw her in the cell crying, and asked her what she was in there for, and she replied, .“ For setting a fire.”</p> <p>Mrs. Allen testified that her bedroom adjoined the dining room, that her door that led into it was open, but the doors that led into the kitchen and front entry through which Ellen passed were both closed when she arose, and the cellar door leading from the front entry which was also fastened.</p> <p>The defendant testified that the officers promised her that, if she would say she set the fire, they would clear her, and she would not be prosecuted, and that thereupon she told them she did set it on fire, but that she told none of the particulars in regard to the kerosene and manner of doing it, as detailed by them ; that her confession was untrue ; that she had nothing to do with setting the building 'on fire ; that she told the story to effect her release from jail; that she pleaded not guilty to the complaint the next morning, and had been persistent in her denial of the charge ever since.</p> <p>Both officers being recalled denied using the language attributed to them by the defendant, or any threats or promises. This was all the material evidence in the case. The defendant then asked that the evidence of the confession be excluded as improperly obtained. This was refused. The defendant then requested the judge to instruct the jury as follows:</p> <p>661. That if they were satisfied that the confession was made under fear or under menace, though not of words, they should reject it.</p> <p>“ 2. That a naked confession uncorroborated by circumstances is not sufficient to justify a conviction; that proof that the arson was committed by some one is not in itself standing alone a corroboration of the confession.</p> <p>“ 3. That the whole evidence as it stood would not justify a conviction.”</p> <p>The judge declined to give these instructions, and upon these points instructed the jury as follows ;</p> <p>“1. If upon the whole evidence in the case it appears to you that the alleged confessions were not induced by any threats or promises, they may be considered by you and allowed such weight as yon consider them entitled to; but if these statements appear to you to have been induced by threats or promises, the statements should not be allowed any weight or effect against the defendant.</p> <p>“ 2. Threats and inducements may be by acts or conduct as well as by words. But mere fear on the part of the prisoner, unless induced by some improper conduct on the part of the offi* cers, would not render the confession- incompetent. So the fact that the confession was made while the party was under arrest, or in a cell, or after the prisoner had been placed therein and then taken out, would not of itself render the confession inadmissible.</p> <p>“ 3. A free and voluntary confession by a person accused of an offence, whether made before or after the arrest, if satisfactorily proved, and there is independent evidence that the crime has been committed by some one, is sufficient according to the common law to warrant the jury in convicting if it leads their minds to that result, without any other corroboration.”</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions to the several rulings and refusals to rule.</p>

<p>Indictment charging Lawrence Tolliver and Cornelius Randall with the robbery, on September 1, 1875, from the person of Catherine Byron, of “ three bank bills, each of the denomination of five dollars and each of the value of five dollars ; three bank bills each of the denomination of two dollars, and each of the value of two dollars, and one bank bill of the denomination of ten dollars, and of the value of ten dollars, of the goods and moneys of said Catherine Byron.”</p> <p>At the trial in the Superior Court, before Wilkinson, J., the evidence of the government tended to show that Catherine Byron, the person named in the indictment, went to ride with the defendant Randall, at his invitation, on the evening of September 1, 1875; that while so riding with him in the suburbs of the city, she was attacked by two persons, beaten and bruised, and robbed of a sum of money; and it was claimed by the government, and there was some evidence tending to show, that one of the attacking party was the defendant, Tolliver, and that Randall was consenting to the same in consequence of some previous understanding. Tolliver was not arrested until the end of the third day after the robbery, and the evidence was conflicting as to whether he had been concealing himself and avoiding the whole or any part of that time ; and to show that he had so concealed himself, the district attorney called as a witness one of the policemen of New Bedford, who' assisted in his arrest, and asked him, “ How soon after the robbery did you commence looking for Tolliver ? ” The defendant, Tolliver, objected to the inquiry as inadmissible for the purpose for which it was put; but the judge allowed the question to be put to the witness.</p> <p>Samuel Brown was called by the government to testify to certain statements in the nature of confessions, and also implicating Tolliver, made to him, Brown, by Randall, while lying in jail awaiting trial; but upon examination it was found as a fact by the judge that whatever was said by Randall upon that occasion was said by him while unduly and improperly influenced by promises or threats made to him by officers and others, and upon that finding excluded the testimony proposed to be offered. Randall afterwards took the stand and testified in his own behalf ; and upon cross-examination was inquired of by the district attorney in relation to the statements made by him to Brown, and was asked by the district attorney what statements he had made to Brown in the interview in the jail before referred to. The defendants objected to the inquiry proposed, but the judge ruled that having made himself a witness, the inquiry could be made whether he had made statements inconsistent with his testimony on the stand as affecting his credit.</p> <p>Evidence was offered by the government in chief, tending to show that during a portion of the time between the robbery and his arrest, Tolliver was in concealment to avoid arrest. Tolliver then testified in his own behalf, and stated with particularity his whereabouts during the whole of said time; and particularly (in answer to questions by the district attorney) for a short time before his arrest. The district attorney then called a witness in rebuttal, who testified without objection to his whereabouts just previous to his arrest, contradicting to a certain extent the testimony of Tolliver upon the same point. The district attorney then offered to show by this same witness that while walking about the streets for an hour or two before his arrest, Tolliver had assumed a disguised gait and manner. No evidence had been given by the defence upon this point, and Tolliver objected to the same, on the ground that it was not admissible at that stage of the case, not being in rebuttal; but the judge ruled that such testimony could be- properly given although no testimony had been given by him or question asked of him in relation to any disguise adopted by him, and admitted the evidence.</p> <p>Catherine Byron testified that in the struggle with the robbers she bit the finger of one of them so as to cause a wound; and when Tolliver was arrested there was a wound upon the corresponding finger of his hand. She also testified that she was robbed of a ten dollar bill, a five dollar bill, and three two dollar bills; but whether they were bank bills or not she was wholly unable to say. When Tolliver was arrested three days after-wards, he was found to have in his possession, two five dallai bank bills, and two two dollar bills, one of which was a bank bill and the other not. There was a stain on one of the two dollar bills which the district attorney claimed was a stain of hlcod, but there was no evidence that it was such except what appeared on inspection, and there was no evidence of the identity of the money other than this ; and Catherine Byron could not identify the money found upon Tolliver as hers, or any of it, and there was no other evidence as to what she was robbed of. Upon this evidence the defendants asked the judge to rule that there was no evidence of the robbery of any bank bills, as charged in the indictment; but the judge ruled that the evidence upon this point was sufficient to go to a jury.</p> <p>The jury found each defendant guilty; and the defendants alleged exceptions to the rulings and refusals to rule.</p>

<p>Indictment for perjury'in two counts. The first count alleged that on March 25,1875, at Boston, in the county of Suffolk and Commonwealth of Massachusetts, “ one Lovell K. Currier was brought before the Municipal Court of the city of Boston, holden at said Boston for the transaction of criminal business upon a complaint in due form of law, charging him, said Currier, with the crime of perjury, committed at said Boston; that the further consideration of said complaint was continued until the sixth day of April then next ensuing; and that on said sixth day of April, said Currier being lawfully before said Municipal Court upon said complaint, it was lawfully ordered by said Municipal Court that the further consideration of said complaint be continued until the fourteenth day of said April, and that said Currier recognize with sufficient sureties in the sum of twelve hundred dollars for the personal appearance of him, said Currier, before the said Municipal Court, on the said fourteenth day of April, then and there to answer further to said complaint, and to do and receive that which should then be enjoined upon him, said Currier, by said Municipal Court, and not depart without license; and that said Currier should stand committed to the jail, at Boston, in said county, until he should recognize as aforesaid; and that upon said sixth day of April said Currier failed to recognize as aforesaid, and was committed to said jail in pursuance of said order; and that thereafter, to wit, on the ninth day of said April, and while said Currier was committed and held in jail as aforesaid, at Boston aforesaid, before one Edward J. Jones, Esquire, a commissioner within and for said county of Suffolk, legally authorized, and duly appointed and qualified to take bail in criminal cases in said county, John Butland, of said Boston, offered himself as bail and surety in such recognizance for said Currier; that said Butland was then and there lawfully required by said commissioner — pursuant to the course and practice of taking and approving bail —to make a written statement under oath of his, said Butland’s, circumstances and property, the same being material to aid said commissioner in determining whether ae would and should take and approve said Butland as such bail and surety; that said Butland, being then and there duly sworn to the requirement aforesaid, did then and there, in pursuance of said requirement, make said statement, and did then and there, being so sworn as aforesaid, falsely, wilfully, knowingly and corruptly say, depose and swear (in and by said written statement) as follows, that is to say: Commonwealth of Massachusetts. Suffolk, ss. Before Edward J. Jones, Esquire, a commissioner duly authorized to take bail in criminal cases in said county, I (mean* ing said Butland) offering myself as surety in the matter of said Commonwealth vs. Lovell K. Currier, on oath certify and declare.”</p> <p>The first count then set forth the written statement at length, negatived the declarations thereof, and concluded as follows :</p> <p>“ And so the jurors aforesaid, on their oath aforesaid, do present and say, that said John Butland, on said ninth day of April, before said Edward J. Jones, Esquire, then and there having such power and authority as aforesaid, in manner and form aforesaid, did knowingly and wilfully commit wicked and wilful perjury, against the peace of said Commonwealth, and the form of the statute in such case made and provided.”</p> <p>The second count was for perjury on the examination of the defendant as bail for one John White, who, as the indictment alleged, was lawfully brought before the Municipal Court of the South Boston District, for the transaction of criminal business, upon a complaint charging him with the crime of assault and battery upon a police officer, and was ordered to recognize with sureties for his appearance before the Superior Court, “ to answer to said complaint for the crime aforesaid; ” and for. the failure so to do was committed to jail; and while so committed made application to a commissioner to be admitted to bail. The indictment then alleged that the defendant offered himself as bail, and on his examination before the commissioner, swore to a written statement, which was set forth at length in the indictment, and the allegations thereof negatived, and concluded in the usual manner.</p> <p>At the trial in the Superior Court, before the jury were empanelled, the defendant filed a motion to quash the indictment, assigning reasons therefor. This motion was overruled. The defendant was then tried and found guilty, and alleged exceptions, the substance of which, together with so much of the material parts of the indictment as are not already stated, and of the motion to quash, appears in the opinion.</p>

Writ oe error to reverse a judgment rendered for the Commonwealth, upon an indictment for burglary, at February term 1875 of the Superior Court for the county of Suffolk, for the transaction of criminal business. The assignment of errors was as follows: “ First.

<p>The Municipal Court of the city of Boston has jurisdiction to forfeit and order to be sold the furniture, fixtures, or personal property seized in a gaming-house on a search warrant issued from and returned to that court, under the Gen. Sts. c. 170, §§ 1-5, and the St. of 1869, c. 364, at a time when persons were there found playing an unlawful game.</p> <p>A. complaint on the Gen. Sts. c. 170, § 2, as amended by the St. of 1869, c. 364, § 2, alleged belief that “ gaming apparatus and implements are used, kept and provided to be used in unlawful gaming in certain rooms resorted to for the purpose of unlawful gaming, in a certain building situated and numbered thirteen and one half in Hayward Place, in Boston, that is to say, in the rooms in the second, third and fourth stories of said building, and also that furniture, fixtures and personal property are contained therein, and may be found therein at a time when persons may there be found playing at some unlawful game, which said rooms are occupied by some person whose name is to your complainant unknown.” The warrant issued on this complaint directed the officer to enter the rooms mentioned in the com plaint and search for and seize said gaming apparatus and implements, and also to search for and seize all the furniture, fixtures and personal property found in the rooms described in the complaint, at the time when any persons are there found playing at any unlawful game. Held, that the premises tc be searched were sufficiently described.</p> <p>Under the St. of 1869, c. 364, § 2, authorizing the search for and seizure “ of all tb.3 furniture, fixtures and personal property found in” a gaming-house, the officer is not limited in his right to seize, under a warrant following the words of the statute, merely the personal property liable to condemnation.</p> <p>An information, filed after the return of a warrant issued on a complaint under the Gen. Sts. c. 170, § 2, as amended by the St. of 1869, c. 364, § 2, after reciting the complaint and the warrant, averred that “ by virtue of said warrant ” the inform ant, on a day named, entered the rooms described, and then and there seized certain gaming apparatus and implements, (describing them,) “and your informant did also then and there seize certain furniture, fixtures and personal property, used as the furniture, fixtures and personal property of said rooms.” Held, that the information showed that the furniture, fixtures and personal property were seized by virtue of the warrant.</p> <p>Upon the filing of an information after the return of a warrant issued on a complaint under the Gen. Sts. c. 170, § 2, as amended by the St. of 1869, c. 364, § S, • praying for the condemnation of certain gaming apparatus and implements, the clerk issued an order “in accordance with the order of the court,” directing a service by copy of the information and order upon the persons in whose possession the articles were found, and by posting up a copy of the order and information on the building, where the seizure was made, fourteen days before the hearing. The return of the officer showed that after diligent search he could not find the parties named, and that their usual places of abode were unknown to him, and that the notice was served by posting a copy, as directed,, on the building. Held, that publication of notice in the public papers was not required, and that the notice given was sufficient.</p>

<p>Where a person accused of a criminal offence introduces evidence tending to show that his general reputation is good, it is not competent for the government in reply to put in evidence of particular facts.</p> <p>On the trial of am indictment for an assault with a knife, the government called a witness who testified that on the evening of the assault a man came to his shop and bought a knife of the same make and style as the knife, which the government contended was in the hands of the defendant when the assault was committed; that he was not sure that the defendant was the man who bought the knife. He was then permitted against the defendant’s objection to state a conversation which he had at the time of the sale with the man who bought the knife. Held, on a bill of exceptions, which did not state what the conversation was, that the defendant had no ground of exception to the admission of this conversation.</p> <p>On the trial of an indictment for an assault with a dangerous weapon, to wit, with a knife, there was evidence that the assault was with a jack-knife. The judge ruled that a jack-knife, like that exhibited to the jury, was a dangerous weapon. Held, on a bill of exceptions, which did not more particularly describe the knife, that the court could not say as matter of law that the instruction was erroneous.</p>

Complaint by Benjamin H. Hunt, police officer, to the Municipal Court, of the South Boston district in the city of Boston, alleging that the defendant on August 23, 1875, at Boston, “ and within the judicial district of said court, with force and arms, did forcibly rescue and take out of the lawful custody of said complainant, the body of one Curren, he the said Curren being then and there a prisoner arrested by and held in the lawful custody of said complainant, upon the…

<p>Two indictments : one for an assault and battery by Benjamin F. Collberg upon Charles E. Phenix; and the other for an assault and battery by Phenix upon Collberg. Both indictments were founded upon and supported by the same evidence.</p> <p>At the trial of the two indictments in the Superior Court, before Lord, J., there was evidence for the Commonwealth tending to show that about six o’clock on the evening of Sunday, August 22, 1875, Collberg and Phenix met near the station of the Boston and Maine Railroad in Malden, and had a slight altercation, , as a result of which Collberg bantered Phenix to fight him ; that Phenix declined on the ground that he did not want to fight with his best clothes on, but said that if Collberg would wait until he could go home and change his clothes, they would go to some place outside of the town and settle it; that thereupon Phenix did go home and change his clothes, and he and Collberg met at a retired place, remote from habitations and thoroughfares, and fought with each other in the presence of some fifty or seventy-five persons who had gathered there, and that the fight continued until Collberg said that he had enough, when it ceased and the parties went home; that the next day Collberg and Phenix were a good deal bruised, and looked as if they had been fighting.</p> <p>The defendants testified that they had been acquainted with each other for a period of five or six years, during which time they had always been on the most friendly terms, and were so at the time of the act complained of, and subsequently ; that during the period of their acquaintance they had engaged at various times in wrestling matches with each other, all of which had been carried on in a friendly spirit and without engendering any ill feeling between them ; that on the day mentioned in the indictment they met towards evening near the station of the Boston and Maine Railroad in Malden, where they had some talk about a recent wrestling match that had t^Jien place in New York, and, growing out of this, as to previous contests of this character which had taken place between them; that, after some talk about their matches, they agreed to go then to some place where they should not disturb any one, and have another trial of their agility and strength in this direction ; that they shortly afterwards went to such a place and engaged in a “ run and catch ” wrestle with each other, without any anger or malice, or any intention to do each other bodily harm; that any injuries which they inflicted upon each other were inflicted accidentally and by mutual consent while voluntarily continuing in such contest.</p> <p>There was no evidence of any uproar or outcries when the contest took place, or that any one was disturbed thereby, except that the parties were fighting in presence of a crowd of from fifty to one hundred persons who had collected together. After the evidence was all in, the defendants asked the ]uage to instruct the jury as follows :</p> <p>“ If the jury are satisfied that whatever acts and things the defendants did to each other they did by mutual consent, and that the struggle between them was an amicable contest voluntarily continued on both sides without anger or malice, and simply for the purpose of testing their relative agility and strength, then there is no assault and battery, and the defendants must be acquitted.”</p> <p>The judge declined to give this instruction, but instructed the ■ jury upon this branch of the case in substance as follows : “ That if the defendants were simply engaged in a wrestling match, that being a lawful sport, they could not be convicted of an assault and battery ; but if by mutual agreement between themselves, previously made, they went to a retired spot for the purpose of fighting with each other, and for the purpose of doing each other physical injury by fighting, with a view to ascertain by a trial of their skill in fighting which was the best man, and there engaged in a fight, each endeavoring to and actually doing all the physical injury in his power to the other, and if, in such contest, each did strike the other with his fist for the purpose of injuring him, each may properly be convicted of assault and battery upon the other, although the whole was done by mutual arrangement, agreement and consent, and without anger on the part of either against the other.” 0</p> <p>To this instruction, and to the refusal of the judge to give the instruction prayed for, the defendants alleged exceptions.</p>

<p>On an indictment for the malicious burning of a building on September 10, 1875, it is competent for the government to show, on the question of the intent with which the defendant burned the building on that day, that on August 24 and on September 6, 1875, the defendant set fire to a shed ten feet distant from the building, and connected therewith by a flight of steps.</p> <p>In a criminal case the admission by the defendant that the act was done with a malicious intent does not preclude the government from proving such intent.</p> <p>On the trial of an indictment for the malicious burning of a building, the government contended that the motive of the defendant in setting the fire was to destroy his stock of goods, which was insured for more than its value, which was about $500 on the day of the fire; that on that date the defendant had insurance on the stock to the amount of $2000. To meet this evidence the defendant put in office copies of two mortgages on the goods, dated about six months before the fire; one to secure payment of a note of $1000, and the other a note of $700, both signed by the defendant. No other evidence was introduced respecting the mortgages. Held, that the mortgages were immaterial, and that the correctness of instructions in regard to them need not be considered.</p>

<p>Petition under the St. of 1873, c. 144, for a sheriff’s jury to assess the damages caused to the petitioner by the doings of the county commissioners in permitting the respondent to raise a dam owned by it so as to injure certain roads which the petitioner was bound to keep in repair. The jury, under the instructions of the presiding officer, returned a verdict for the petitioner. The verdict was certified to and accepted by the Superior Court; and the respondent appealed. The facts of the case appear in the opinion.</p>

Contract against Joel Hayden and seven others. Writ dated in May, 1869. The declaration contained two counts.

<p>The defendant owned a tract of land and conveyed it by a deed embracing in its description the whole width of a road, called a town road, running along the east side of the premises, its east side being made the east side of the land conveyed. The deed contained a covenant that the premises described were free from all incumbrances, except the aforesaid road, so far as the same was not discontinued. The town had previously voted, while the defendant owned the land, to discontinue a portion of the road bounding on the land conveyed. Held, in an action for breach of the covenants of warranty and against incumbrances, contained in the deed, that the deed conveyed the fee of the town road subject to the public easement. Held,, also, that whatever private right of way certain persons had in the portion of the land, subject to the public easement, was merged in the public way, and that, as such right did not appear to have been acquired before the way was laid out, it could not be revived on its abandonment.</p>

<p>A., by an instrument in writing and duly recorded, assigned to B. on December 13, 1873, “ all claims and demands which I now have, and all which at any time between the date hereof and the first day of February, 1875, 1 may and shall have against C., for all sums of money due, and for all sums of money and demand, which at any time between the date hereof and the said first day of February, 1874, may and shall become due to me as laborer." Held, on a trustee process served after February, 1874, and before February, 1875, that the assignment was not void on its face, but applied to all wages until February 1, 1875.</p> <p>A. being indebted to B. and other creditors, assigned to B., by an instrument duly recorded, his wages due and to become due from C., until a certain date, B. having at the time knowledge of the other debts. B. received the wages monthly, and applied part of them to his debt and part, at A.’s request, for necessaries for A.’s support, he having no other means of subsistence. At the time of a trustee process, brought by one who was a creditor of A. when the assignment was made, against A., in which C. was summoned as trustee, and B. appeared as claimant, it appeared that money was still due from A. to B., although B. had received money enough, had he so applied it, to pay his own debt. It was found as matter of fact that the assignment and the subsequent arrangements between A. and B. were not made with any intent on their part to defraud the creditors of A. Held, on a bill of exceptions setting forth the above facts, that the court could not say as matter of law that the assignment was fraudulent. Held, also, the appropriations made by the parties being valid, that the law of appropriation of payments, applicable when no appropriations are made by the parties, did not apply.</p>

Petition to the Superior Court, for a jury to assess damages alleged to have been caused to the petitioner’s land by the laying out of a highway in Worcester.

Petition under the St. of 1871, c. 361, § 3, for the appointment of commissioners to assess the damages sustained by the petitioner by the taking, by the city council of the city of Worcesser, of East or Lynde Brook, in the town of Leicester, to supply .die city with pure water. In the Superior Court, before Colburn, J., the petitioner con* Tended that certain facts, put in evidence by the respondent, did ■tot constitute a defence to the granting of the petition.

<p>Contract, by the surviving partner of the firm of Hill '& Chapman, on an account annexed, for money paid to E. C. Cleveland, the defendants’ testator, and for services and expenses incurred in the prosecution of a suit brought by the plaintiff, as such surviving partner, against the Hewburg Woollen Company, at the alleged request of Cleveland, to recover payment for certain machinery which Cleveland manufactured, as the agent of Hill & Chapman, for the Newburg Woollen Company, and delivered to said company. Writ dated October 27, 1873. The account annexed showed a debit of $4353.68, and a credit of $3700.10, leaving a balance due of $653.58. The first twenty-six items of the account related to the expenses and services in the suit against the Newburg Woollen Company, and amounted to $2093.79. The answer denied each and every allegation in the plaintiff’s declaration, except as to the credit side of the account. The defendants also filed a declaration in set-off, showing a debit of $3797.57, and a credit of $2261.82, leaving a balance of $1535.75. The answer to the declaration in set-off admitted debits to the amount of $3026.09, and alleged that credit was given therefor in the plaintiff’s account. It also admitted the credit side of the account and denied the other items.</p> <p>The case was referred to an auditor, who found for the plaintiff for $653.58, and interest.</p> <p>At the trial in the Superior Court, before Dewey, J., the only matter of fact in dispute was as to the liability of the defendants for the services and disbursements in the action against the New-burg Woollen Company. It appeared in evidence that said company refused to pay for the machinery on the ground that it was defective and not delivered on time.</p> <p>The plaintiff put in evidence the auditor’s report, and the deposition of Edwin S. Lawrence of New York, who testified that he was the salaried superintendent of the machinery department of Hill & Chapman, from May, 1870, to November, 1872; that in the latter part of 1870 Cleveland furnished machinery, as agent for Hill & Chapman, to the Newburg Woollen Company; that he, Lawrence, made the contract, as agent for Hill & Chapman, between them and Cleveland; that a greater part of the communications between Cleveland and Hill & Chapman were made by him; that he heard the alleged contract between Hill & Chapman and Cleveland, under which the plaintiff claims they sued the New-burg Woollen Company, and on which this suit was brought, and his testimony was in substance as follows: “ I heard a conversation between Cleveland and Hill & Chapman, concerning the expenses of the suit in New York, in 1870, after the machinery had been shipped to the Newburg Woollen. Company, and set up in their mill; the company had refused to pay the bill, claiming that the machinery was not according to contract and not delivered on time; just before this conversation, Hill, Cleveland and I had been to the office of Orrin Skinner, a lawyer, to consult with him about collecting the claim ; after we left his office, Hill said to Cleveland, ‘ What shall we do about it ? ’ referring to the claim against the company ; Cleveland replied, 6 If you can settle the matter by taking off $400 or $500 do so; if not, fight it, and I will pay the bill.’ ” He also testified that he went to Worcester, on July 26,1871, to assist Mr. Skinner, who had been employed by Hill & Chapman, in taking the deposition of Cleveland, to be used in the Newburg suit; that he attended to the taking of said deposition as agent of Hill & Chapman; that he went to several other places, and at the request of Mr. Skinner, to assist in getting testimony for the plaintiffs in the suit; that he never had any conversations with Cleveland in relation to the suit against the Newburg Woollen Company, except the one before referred to in New York, and one at the time Cleveland’s deposition, t$ be used in the suit against the Newburg Woollen Company, waa taken, in Worcester, about July 26, 1871.</p> <p>The plaintiff also put in evidence the deposition of one Jackson, whose testimony was substantially the same as that of Lawrence as to the agreement of Cleveland to pay for the suit against the company, and as to the direction given by Cleveland to sue the company upon its refusal to pay for the machinery delivered by Cleveland, except that Jackson did not refer to the matter of attempting a settlement as stated by Lawrence.</p> <p>The defendants, against the plaintiff’s objection, were allowed to introduce the testimony of W. W. Rice, one of the defendants, as to a conversation between Cleveland and Lawrence, about July 26,1871, at the time the deposition of Cleveland was taken, to be used in the suit against the Newburg Woollen Company, and after the suit was brought against the company, which testimony was as follows: “ I am one of the executors of Cleveland, and had charge of all his affairs; I had a conversation with Cleveland and Lawrence, at the time said deposition was taken, and before they began to take the same. Cleveland said to Lawrence that he had sent for me because I was to look after his matters ; that he wanted me to understand that he had nothing to do with the Newburg Woollen Company or any suit that was to be or had been brought against the company; that the business was transacted with Hill & Chapman; that he never had any transactions with the Newburg Woollen Company; to which Lawrence made no reply; that Cleveland further said in that conversation to Lawrence and me, that he had not long to live, and he wanted us to know about it.”</p> <p>Neither Hill nor Chapman were present at this conversation; and there was no evidence except as hereinbefore stated that the agency of Lawrence extended to the subject matter of said conversation, or that he had any authority except as hereinbefore stated, to bind the plaintiff by any part he might take in any conversation. There was no evidence that Lawrence heard said statement, except as aforesaid, and the statement of Mr. Rice on cross-examination that the remarks were made to all in the room, including him and Lawrence and the magistrate and the lawyers on both sides of the Newburg Woollen Company suit, and that he and Lawrence got on the right of Cleveland, at the time they were made, and Lawrence heard the same.</p> <p>The plaintiff objected to the admission of this evidence or any evidence tending to disprove the defendants’ liability, on the ground that it was not admissible under the answer, and that he had no notice of such defence, and could have brought sufficient evidence to rebut the same; and also contended that the evidence thus introduced was incompetent in the absence of the plaintiff, and incompetent, as being a statement after suit was brought by his alleged request, to disprove the alleged contract to pay the expenses of said suit, made before said suit was brought.</p> <p>There was no evidence at the trial to support the defendants’ declaration in set-off, except the admissions contained in the answer thereto ; and there was no evidence of any attempt to settle by the plaintiff with the Newburg Woollen Company before suit.</p> <p>The jury were instructed that, if they found for the defendants, they could not find for items in the declaration in set-off which were not admitted upon the pleadings.</p> <p>As to the testimony of Mr. Rice, the judge instructed the jury “ that if the persons in whose presence said statements were made by said testator had no authority from the plaintiff to act in the matter as to which the testator made the statements, then the statements were not competent for the jury, and the jury would not consider as in the case the statements testified to by Mr. Rice.”</p> <p>The judge also instructed the jury that if they believed that the contract between the plaintiff and Cleveland was as testified to by Lawrence, in regard to paying the expenses of the suit against the Newburg Woollen Company, then the plaintiff could not recover these expenses without showing that he attempted to settle with the Newburg Woollen Company, by throwing off $400 or $500 before they brought a suit against them.</p> <p>The jury found for the defendants, and assessed damages in the amount of $1535.75. The verdict was rendered March 23, 1875. The jury were instructed to give interest on the amount they found due from the date of the writ.</p> <p>The plaintiff moved to set aside the verdict, on the ground that it was unwarranted by and contrary to the evidence, and contrary to law and the ruling of the judge as to the amount of the verdict. This motion was overruled by the judge.</p> <p>To these rulings and to the admission of the evidence objected to, the plaintiff alleged exceptions.</p>

Contract upon a promissory note, for $752.30, dated August 10, 1874, made by the defendant, payable to the order of the plaintiff in two months from date. At the trial in the Superior Court, before Pitman, J., the only questions for the jury, under the ruling of the judge were whether any contract was entered into between the parties, and whether there was or not a want or failure of consideration.

<p>A declaration for slander which alleges, in the form prescribed by the Gen. Sts. c. 129, that the defendant charged the plaintiff with a certain crime “bywords spoken of the plaintiff substantially as follows,” is supported by proof that the defendant spoke words substantially, though not precisely like those set out in the declaration.</p> <p>A declaration for slander alleged that the defendant charged the plaintiff with buiU' ing his own mill, with the intent to defraud the insurers thereof, “by words spoke* of the plaintiff substantially as follows: He (meaning the plaintiff) burned it (meaning the said mill) because he was poor and wanted the money.” At the trial there was evidence that the defendant charged the plaintiff with burning his own mill "to get his insurance." Held, that words were proved "substantially ” aa alleged, under the Gen. Sts. c. 129. Held, also, that the objection that the declaration did not show that the defendant charged the plaintiff with a crime, could be taken only by demurrer.</p> <p>A declaration for slander alleged that the defendant accused the plaintiff, by certain words, which were set forth, of burning his own building with intent to defraud the insurers thereof. The defendant’s answer contained a general denial, and alleged that “there are no sufficient allegations in said plaintiffs writ and declaration of any matter or thing to constitute the substance of slander in form and manner.” Held, that, if the answer contained a demurrer, it could not first be treated as such in this court.</p>

<p>Petition to the county commissioners for a jury to assess the ° damages to the petitioner’s estate by lowering the grade of Winthrop Street and High Street, in the city of Taunton.</p> <p>At the trial before a sheriff’s jury, it appeared that the petitioner had for many years been the owner of an estate, on which he lived, on the westerly side of Winthrop Street, and that on November 8, 1873, he purchased an adjoining estate on the corner of AV inthrop Street and High Street.</p> <p>The petition for damages for the change of grade of Winthrop Street was presented to the mayor and aldermen on July 1,1874.</p> <p>The petitioner put in three orders passed by the respondent. The first, dated July 5,1871, was as follows : “ Ordered, that the grades shown on the plan herewith, and by measurements carre spending thereto, be adopted and established as the grade oi Winthrop Street from Harrison Street easterly so far as covered by said plan. The superintendent of streets is hereby directed to grade the same at an expense not to exceed eight hundred dollars, and the finance committee are hereby authorized to negotiate a temporary loan for the payment of the same.”</p> <p>The second order, dated September 3, 1873, for the construction of a sidewalk on Winthrdp Street, was as follows : “ Ordered, that the superintendent of streets be instructed to construct a sidewalk on the westerly side of Winthrop Street, from the post-office to the railroad crossing of the Taunton and New Bedford Railroad, with edge-stones, and cover the same with concrete, at an expense not exceeding twenty-four hundred dollars, to be paid from the appropriation for public improvements; and that he be instructed to make a report, of the expense of the same .to this board, in order that an assessment be made upon the abutters for the construction of said sidewalks.”</p> <p>The third order, dated May 20, 1874, for the construction of a sidewalk on High Street, was as follows: “ Ordered, that the superintendent of streets be instructed to construct sidewalks seven feet in width on both sides of High Street, from Winthrop Street to Cohannet Street, with edge-stones, and cover the same with concrete, at an expense not exceeding twenty-two hundred dollars, to be paid from the appropriation for public improvements ; and that he be instructed to make report of the expense of the same to the committee on sidewalks, in order that an assessment be made upon the abutters for the construction of said sidewalk.”</p> <p>The petitions for the construction of the sidewalks on Winthrop Street and High Street were signed by the petitioner among others.</p> <p>It appeared in evidence that under the order of July 5,1871, the work of grading Winthrop Street, and the sidewalks thereof, was begun in the fall of 1871; that not much was then done except to lower a portion of the street in front of the petitioner’s premises'; that in the summer and fall of 1872, the remainder of the street in front of the petitioner’s premises was cut down to the established grade, and the sidewalks partially brought to the same grade; that in the summer and fall of 1873, the sidewalk in front of the petitioner’s premises was finally reduced, under the direction of the superintendent of streets, to the established grade of Winthrop Street, and the curbing set preparatory to being covered with concrete, and a portion of the street several rods below the petitioner’s premises was filled in to raise the same to the required grade.</p> <p>It also appeared that the work upon High Street was commenced soon after the third order was passed, and the work completed during the summer; that, in doing the work, the grade of the street and sidewalk in front of the petitioner’s premises was considerably lowered, and the injury to said estate, for which damages were claimed, was caused by such lowering.</p> <p>The respondent objected to any evidence of damage sustained by the petitioner by the construction of the sidewalks, because he signed the petitions for making the sidewalks ; but the objection was overruled, and the evidence admitted.</p> <p>As the orders numbered two and three for the construction of the sidewalks do not authorize any change of grade, the respondent objected to any evidence tending to show damage to the petitioner by any change of grade of these streets for the purpose of constructing these sidewalks. The objection was overruled, and evidence admitted of all the acts done by the superintendent of streets, and those in his employ, in the construction of these sidewalks.</p> <p>The petitioner, on his examination in_ chief, stated what expense he had incurred in consequence of the change of grade, and testified at length a^id without objection to the details thereof. Several experts, called by the respondent, testified that the change that had been made had increased the value of the petitioner’s premises from $500 to $1500, but in making this esti mate they included what had been done by the petitioner as well as the city. The petitioner was then recalled, and asked what he had expended beyond what he had already stated. The respondent objected to the question, because it in effect was asking the witness to state what improvements he had made upon this estate. The objection was overruled, and the witness answered $1500 or $1600. On cross-examination, he stated that about $500 of this sum had been expended in repairing the interior of the house, about $500 for painting the exterior of the house, and the remaining $500 or $600 he was unable to account for, further than by saying that he had employed a team a great part of the summer, at $3.50 per day.</p> <p>The respondent asked that the jury be instructed as follows: “ That under this warrant the petitioner cannot recover for the change of grade under the order of July 5, 1871, if the petition of the petitioner was not presented to the mayor and aldermen within one year from the completion of the work under that order.” This instruction was refused; but the jury were instructed that the petitioner was entitled to recover for all the damages done to his estate by the change of grade, he having presented his petition to the mayor and aldermen within one year from the time when the sidewalk in front of his premises was brought to its final grade.</p> <p>The jury returned a verdict for the petitioner. In the Superior Court, the petitioner moved that the verdict be accepted and recorded. Aldrich, J., overruled the motion, and ordered the verdict to be set aside ; and the petitioner appealed.</p>

<p>Two ACTIONS OF CONTRACT. In the Superior Court before Wilkinson, J., judgment was rendered for the plaintiff in each action, and a motion was made by Bates, the defendant in the first action and equitable owner of the judgment in the second action, that the judgment in the second action be set off pro tanto against the judgment in the first. The judge overruled this motion; and Bates alleged exceptions. The facts of the case appear in the opinion.</p>

Contract upon an account annexed to recover for services as a weaver, while in the employ of the defendant corporation, from July 6, to August 1, 1874. The answer contained a general denial, set forth, in substance, the notice which appears below, and alleged that if the plaintiff worked for the defendant he left without giving the notice thereby required, and that the money claimed was thereby forfeited.

<p>Petition by the heirs of Joshua B. Tobey to the county commissioners for a jury to assess damages for the taking of land, on the corner of Main Street and Trescott Street in the City of Taunton, by the respondent, to lay out Trescott Street.</p> <p>At the trial before a sheriff’s jury it appeared that by the laying out of Trescott Street twenty-one arid one quarter feet of the petitioners’ land on Main Street was taken and about twelve feet on the rear line. The land of the petitioners was conveyed to Joshua B. Tobey by Samuel T. Tisdale on November 1,1856.</p> <p>The respondent, for the purpose of showing that the rear portion of the petitioners’ land was incumbered by a right of way, put in a deed from Tisdale to the Central Christian Society, dated May 2, 1848, of “ a certain lot pf land in said Taunton on the westerly side of Trescott Street.” The deed then described the land by courses and distances, one of the bounds being “ thence with the line of said street eighty feet.” Following the description was the following clause: 66 Reserving one pew in the church which is to be erected by said society on the above named lot to be selected by myself and to be mine free from all taxes and rents, while the society shall have an existence, and whenever said society shall disband, the above described land with the improvements thereon, excepting the house above the basement with the furniture and fixtures thereto belonging, shall revert back to the said Tisdale, and his heirs and assigns. Provided said church edifice be completed within one year from the date hereof.”</p> <p>At the time of the above conveyance, Tisdale was the owner of the land which is now Trescott Street, and of the land of the petitioners.</p> <p>The respondent offered evidence tending to show that at that time also, Trescott Street was used as a street, and that its boundaries were marked out and defined by rows of trees and fences, and that such boundaries included a portion of the land after-wards sold to Tobey, namely, the portion in the rear of the building which was then standing on the land and which was the same building that was there when the street was laid out by the city.</p> <p>By a plan of the land made after the conveyance by Tisdale to the Central Christian Society, and before the conveyance to Tobey, it appeared that the society’s land was distant about five hundred feet from that sold to Tobey. The plan also represented Trescott Street as thirty-one feet wide until it reached the land sold to Tobey, which parcel of land, together with that on the other side of the street, projected into it, thereby narrowing the way to seventeen and a quarter feet, at which width it continued for one hundred and one feet until it reached Main Street.</p> <p>The respondent asked for the following instruction, which was given: “ That if Samuel T. Tisdale was the owner of the land which is now Trescott Street, on May 2, 1848, when he made his deed of a tract of land on the west side of this street to the Central Christian Society, and at that time Trescott Street was fully defined and marked out by having fences and trees to indicate its width, and the deed of the Central Christian Society was duly recorded, then neither Samuel T. Tisdale nor any one claiming under him would have a right to obstruct any part of Trescott Street as indicated by the fences and trees as they existed May 2,1848, and the jury can find for such land only such damages as the petitioners would be entitled to for laying out a street over land over which the Central Christian Society, their successors and assigns, had a right of way.”</p> <p>The petitioners asked for the following instruction upon the same subject: “ That the declarations in the deed from Samuel T. Tisdale to the Central Christian Society do not impair the right of the petitioners to full damages for all the land embraced in the deed to their ancestor, Joshua B. Tobey, and included in the way laid out.” This instruction was also given with the addition, “ but it is for the jury to say what that right is.”</p> <p>The jury returned a verdict for the petitioners. In the Superior Court the petitioners moved that the verdict be. accepted and recorded. This motion was denied and the verdict set aside; and the petitioners appealed.</p>

<p>A railroad corporation is not liable to a road master in its employ for an injury sustained by him while riding in .one of its cars, which is thrown down a bank by the breaking of a switch on its road, in the absence of evidence that there was any negligence in procuring a proper switch, or any defect in the switch which could have been discovered upon the most careful inspection, or that the switch was intended, or could reasonably have been expected, to hold the cars upon the tracks, which were driven at unreasonable speed, or of other evidence of negligence for which the corporation would be liable.</p> <p>A railroad corporation is not liable to an employee for an injury sustained by him while riding in one of its cars, which is thrown from the track, on the ground that the cars were imperfect by the want of check-chains, if he was of the opinion that cars without check-chains were dangerous, and knew that some of the defendant’s cars were not provided with check-chains, and did not notice, until after the accident, whether the car in which he was riding had check-chains or not</p>

<p>There is sufficient privity of estate between a testator, a person to whom he has devised land for life and the remainderman under his will, to establish a title by adverse possession, if the possession by the testator and his devisees is continuous for twenty years.</p> <p>The mere payment of rent or admission of title by a tenant, without the knowledge of his landlord, will not operate to interrupt an otherwise continuous adverse po» session by the landlord.</p>

<p>Petition to establish the truth of exceptions alleged by the petitioner in an action brought against him by the respondent, and disallowed by Wilkinson, J., who presided at the trial in the Superior Court.</p> <p>The petition was referred by this court to a commissioner “ to hear the parties and report the facts.” His report was duly returned to this court, and the respondent then moved that the report be recommitted to the commissioner to report the evidence upon which his findings were based.</p>

Tort to recover for personal injuries sustained by the plaintiff’s intestate while employed as a brakeman by the defendant corporation. • At the trial in this court, Ames, J., withdrew the case from the jury, and reported it for the consideration of the full court, in substance as follows : At the opening of the case to the jury, the counsel for the plaintiff stated that on the day of the accident a train of passenger cars, including a smoking and baggage car, was made up at…

<p>A testator by his will provided that the residue of his estate should be divided into equal shares, and that one portion should be paid to each of his surviving children and that the shares to be paid to his married daughters should be paid to them free from the control of their husbands, and that the daughters should alone have the right to use their respective shares. A codicil to the will directed that the share of one of the daughters should “ be held in trust ” by the executors, and provided that “ they are hereby directed to pay over to her, my said daughter, from time to time, a sufficiency for her comfortable support and maintenance during the term of her natural life, excepting only, that in case she shall survive her said husband, all the remaining portion of her share of my estate shall then be paid over to her in full. My object in thus limiting the payment of my said daughter’s share of my estate during the lifetime of her said husband, is to prevent his having any share or benefit of or from my estate.” The daughter died after the testator, and in the lifetime of her husband, leaving a will by which she bequeathed her share of her father’s estate. Held, that she had a vested interest in fee in her father’s estate; that the time of payment to her was only postponed by the codicil; and that her executor was entitled to said share.</p>

<p>Contract against the acceptors of a draft for $2500, made by ihe Waterville Manufacturing Company, payable four months after date, and dated September 3, 1873. Writ dated January 20, 1874, and served on the trustees on the same day. The trustees admitted funds of the defendants in their hands to the amount of $1164, and they were in December, 1874, charged as trustees. The defendants appeared and filed an answer, alleging that they had been on November 7,1875, adjudicated bankrupts, and that sufficient time had not elapsed for them to obtain their discharge, and praying that this suit should be stayed to await the determination of the court in bankruptcy, on the question of their discharge.</p> <p>At the trial in the Superior Court, before Putnam, J., without a jury, it appeared that the defendants had been adjudicated bankrupts, as alleged in their answer; and it was admitted that sufficient time had not elapsed in the proceedings in bankruptcy for them to obtain their discharge, and that there had been no unreasonable delay on their part in endeavoring to obtain it. It was also admitted that the plaintiffs’ debt was under the bankrupt act provable in the proceedings in bankruptcy. The defendants contended that this suit should be stayed to await the determination of the court of bankruptcy on the question of their discharge, as provided in the bankrupt act, and filed a motion to that effectbut the judge refused to stay the same, and ordered judgment for the plaintiffs for the whole amount of the acceptance, “ such judgment only to be enforced against the property attached on the writ in the hands of the trustees, but not to be enforced against the person of the defendants, or either of them, or any other property.” The defendants alleged exceptions.</p>

Tort by the assignee in bankruptcy of William F. Wilson, to recover $2700 alleged to have been paid by the bankrupt to the defendant in fraud of the bankrupt act. There were also counts in contract for the same cause of action. Writ dated March 18, 1872. The defendant moved to dismiss the action for want of jurisdiction.

Contract upon the following written guaranty, signed by the defendant; “ Boston, September 10,1872. For and in consideration of the sum of one dollar herein paid, the receipt of which is hereby acknowledged, I guarantee the sum of five hundred dollars ($500) value in glass shades purchased by my son, C. C. L. Moore, from the Boston and Sandwich Glass Company.

<p>A lease of a dwelling house for five years provided that the lessor might terminate the lease by notice, and that, if this was done during the first three years of the term, the lessee should be paid such sum as a compensation for the loss he may “ by such abridgment of the term sustain in consequence of expenditures incurred by the lessee in fitting up the premises, and expenses incurred in removing.” In an action by the lessee to recover for expenses incurred by him in fitting up the premises, the lease having been terminated by notice within the three years, it appeared that, at the time the lease was made, the building was in thorough repair; but the lessee made some changes in it, and furnished it. Held, that the term “ fitting up the premises ” included not only the fitting up of the building and premises to the uses of the lessee, but the fitting of his furniture to the building, such as carpets, window curtains and the like. Held, also, that the measure of the lessee's damages was the loss sustained by reason of his having incurred such expenditures the full benefit of which he had lost by the abridgment of his lease, and not the entire cost of fitting up.</p> <p>In an action to recover compensation for services in effecting a lease, the plaintiff contended that the defendant agreed to pay him regular brokers’ commissions, and put in evidence of what a broker would be entitled to by the custom. The judge ruled, against the defendant’s objection, that the custom was a reasonable one, and instructed the jury that they should find according' to the custom, if they found that the defendant agreed as alleged; but that, if they found that the services were rendered without an agreement as to compensation, they should find the value of the services. The jury returned a verdict for a less sum than that testified to as allowed by the custom. Held, on the defendant’s bill of exceptions, that the question of the reasonableness of the custom need not be considered</p>

<p>Petition under the Gen. Sts. c. 68, § 35, filed December 9, 1874, by a majority in number of the stockholders of the Franklin Telegraph Company, a corporation established by the St. of 1865, c.. 119. An answer containing a demurrer was filed in behalf of the company, and, when the cause came on for hearing, an additional answer was filed by consent, the allegations of which were not disputed. The case was reserved by Morton, J., for the consideration of the full court upon the petition, the issue’raised by the demurrer and the additional answer. If in the opinion of the court the petition could be maintained, the case was to stand for trial; otherwise, the petition to be dismissed. The substance of the pleadings appears in the opinion.</p>

<p>Contract upon a promissory note dated June 20, 1872, made by Melendy, Dexter & Co., payable three months after date to the order of the Odorless Rubber Co., and indorsed in blank by the payee, “ by Robert Snyder, Treas.,” and by Samuel L. Warner, Samuel Hubbard and C. C. Post. At the trial in the Supesior Court, before Aldrich, J., the jury found for the defendants, and the plaintiff alleged exceptions, the substance of which appears in the opinion.</p>

Contract by Isaac Farrington and John G. White, doing business under the firm name of the Eagle Woollen Mills, upon a promissory note for $2236.82 dated November 7, 1872, and made by the defendants payable to their own order and indorsed by them.

Petition to enforce a lien under the Gen. Sts. c. 150, for labor performed and materials furnished, in the construction of a block of three houses in Boston. Trial in the Superior Court, before Putnam, J., without a jury, who allowed a bill of exceptions in substance as follows: The petitioners were dealers in furnaces and ranges. The re-pondent Wentworth was the owner of the land, and the builder of the three houses in a block in Clarendon Street, in Boston.

Contract upon a poor debtor’s recognizance entered into by Abraham B. Shedd, as principal, and the defendant as surety.

Contract to recover the freight due under a charter party, excepting loss by perils of the seas. The other terms of the charter party and the pleadings in the case appear in the opinion.

<p>One who, being upon a highway merely for play, meets with an injury occasioned by a defect therein, cannot maintain an action for damages therefor against the city or town bound to keep the highway in repair for travellers.</p>

Tort for the conversion of certain furniture and store fixtures. Writ dated September 20, 1873. At the trial in the Superior Court, before Pitman, J., without a jury, it was admitted that the alleged conversion was at the same time and by the same act as that of the stock in trade in the same store, for which the plaintiff had recovered judgment against the defendant in a former action, reported 111 Mass. 273.

Contract by the exécutor of Cyrus Hunt for money had and received by the defendant to the use of the testator, with a count alleging the delivery of a bónd of the value of $1000, by the testator to the defendant; a promise on his part to return it; and a demand and refusal. Answer, a general denial. At the trial in the Superior Court, before Pitman, J., without a jury, the plaintiff offered in evidence the following receipt signed by the defendant: “ Brighton, Nov. 15, 1871.

Writ of error to reverse a judgment of the Superior Court in an action of contract brought by Newton against Tufts. The error assigned was that exceptions taken by Tufts at the trial of that action before the jury were disallowed by the presiding judge, because not presented to him within the time required by law, whereas the record showed that they were presented within the time required by law.

<p>In an action under the Gen. Sts. c. 73, § 25, by a town, for expenses paid for the support of a lunatic committed to a state hospital, against the town where he has a settlement, the plaintiff must show that the lunatic was a pauper at the time the relief was furnished.</p>

Tort for breaking and entering the plaintiff’s close, removing the soil, and laying out a highway across it, by the selectmen of the defendant town.

Sts. e. 117, § 5, for the specific performance of the following agreement, signed by Washington F. Somerby, the defendant’s intestate: “ Cambridge, July 20, 1871.

<p>Bill in equity alleging that the plaintiffs held lettérs patent of the United States for a new and useful improvement in 66 feeding mechanisms for cotton-openers,” which the plaintiff Whitehead was the inventor of and had assigned his right in to himself and the other plaintiff jointly; that the plaintiffs proceeded to manufacture this invention and to introduce it into public use, and expended much time and money in so doing; that the defendant, his attorneys, servants and agents, falsely represented to sundry persons who would be likely to buy the plaintiffs’ invention, that the plaintiffs’ patent interfered with a patent owned by the defendant, and that the plaintiffs could not make, vend or use their improved mechanism without infringing the defendant’s patent, and that all persons who should use it would become liable to the defendant as infringers of his patent; and that by these false representations many persons were deterred from purchasing said improved, mechanism. The bill prayed for discovery, injunction and further relief.</p> <p>The defendant demurred for want of equity. Wells, J., sustained the demurrer, and the plaintiff appealed.</p>

<p>Petition for a writ of mandamus. The petition was filed in Barnstable County, and notice issued there returnable in Suffolk, where the case was heard by Ames, J., who reserved for the consideration of the full court the question whether a peremptory mandamus should issue, or the petition be dismissed, upon the following facts :</p> <p>On July 1,1874, Charles Miller applied to the county commissioners to estimate his damages by the location and construction, over his lands in Falmouth, of the railroad of the Cape Cod Railroad Company, of which corporation the Old Colony Railroad Company was the successor, and had the duties and obligations. On December 31,1874, after notice to this corporation and a hearing, the county commissioners estimated his damages at $875.</p> <p>On January 1, 1875, the corporation filed a petition in the clerk’s office of the Superior Court for the county of Barnstable, representing that it was aggrieved by the estimate of the county commissioners, and praying for a jury to assess the damages at the bar of that court; and on the same day filed with the clerk of the county commissioners a statement that it had filed such a petition in the Superior Court. On January 12, the clerk of the Superior Court issued an order of notice thereon, returnable at April term 1875, which was served on January 20, by delivering an attested copy to the attorney of record of Miller, who resided out of the Commonwealth. On May 14, 1875, a further order of notice, returnable at October term 1875, was issued in like manner, and on May 21, served by leaving an attested copy at Miller’s dwelling house in the city of New York.</p> <p>On April 13,1875, Miller filed a petition with the county commissioners, alleging that he was aggrieved by their estimate of his damages, and praying for a warrant for a sheriff’s jury to assess the same; and upon this petition notice was issued by the county commissioners to the railroad corporation, returnable on May 4, and on that day the corporation filed an answer, setting up the filing of its petition in the Superior Court, and the parties appeared and were heard before the commissioners, who dismissed Miller’s petition.</p>

<p>Appeal under the Gen. Sts. c. 147, § 12, from an order of the Superior Court accepting an award made and returned into court in pursuance of a submission under that chapter.</p> <p>The demand submitted was “ the determination and establishment of the true and original division line between the estates of said Torrey and Munroe, situated on Washington Street, in said Quincy, said line having been long in dispute.”</p> <p>The award determined and established the line, describing it, and referring to a plan annexed and made part thereof.</p> <p>The defendant moved to set aside the award for the following reasons: “ 1. That the said arbitrators have no jurisdiction of the subject matter submitted to them, the same involving the title to real estate, and being neither the subject of a personal action at law or suit in equity.</p> <p>“ 2. That the award was such that no judgment can be rendered upon it which can be enforced in this court.”</p>

<p>A child injured, while sitting upon the sidewalk of a public highway, by the falling upon her of a stone left there to be used as a curb-stone, is not a traveller upon the highway.</p> <p>A town which places stones insecurely in a highway is not liable to a person injured by one of the stones falling upon him, the fall being caused by the act of a third person.</p>

<p>A. and B., members of a firm, assigned a patent right to O. and D., and by a contract, made the same day with C. alone, agreed that, if C. should become dissatisfied with the purchase within a certain time, they would repurchase of him the patent right and repay him the amount paid therefor, provided he should give them notice thereof within a certain time. In an action on this contract by C. against the firm, it appeared that C. became dissatisfied and gave the defendants notice thereof, requiring them to repurchase. The plaintiflf testified that, within the time agreed, he asked A. what he would do about the contract, who said he would try to get another member of the firm to help the plaintiff out of it, and that, after the action was brought, the one, with whom the conversation was had, refused to repurchase. The plaintiff also testified that, after the expiration of the time stated in the contract, but before the action was begun, he had a conversation with B., who said he could do nothing about the repurchase, as he was too poor to raise money. The judge ruled that there was not sufficient evidence of a refusal to repurchase on the part of A, to warrant the jury in finding a waiver of a tender of a deed, and that the refusal of B., on the ground of his poverty, did not bind A., directed a verdict for A. and reported the case to this court, a new trial to be ordered if the ruling was incorrect. Held, that there was evidence sufficient to warrant the jury in finding that the defendants had refused to perform the contract; that the ruling was incorrect, and that a new trial must be granted.</p>

<p>Where a person, answerable in contract to two jointly, settles with one of them so that that one has no longer any real interest in the matter in dispute, it is a severance of the cause of action, and the debtor is liable in an action at law to the other alone.</p> <p>Where A., answerable in contract to B. and C. jointly, makes an agreement with B., by which B. agrees to pay, release and discharge all A.’s debts, and to indemnify him against all demands, such agreement puts an end to all real interest of B. in the claim of B. and C., and C. may maintain an action at law alone against A.</p>

<p>An entry upon a mortgaged estate, upon breach of condition, for foreclosure, is, with, out actual ouster, an eviction for which a warrantee can recover upon his covenant.</p> <p>The certificate of an entry upon a mortgaged estate to foreclose the mortgage under the Gen. Sts. c. 140, § 2, duly recorded, is sufficient evidence of eviction to sustain an action for a breach of a covenant of warranty.</p> <p>Upon an action for breach of covenant of warranty upon the eviction of the warrantee by an entry of the mortgagee for foreclosure, the measure of damages is the amount of the mortgage debt and interest, if that is less than the full value of the estate.</p> <p>The acceptance by a grantee of a deed of land containing a danse stating that it is subject to a mortgage “ which the grantee hereby assumes and agrees to pay with the interest now due thereon,” constitutes a contract by the grantee not merely to indemnify the grantor, but to pay the debt, if it be the debt of the grantor.</p> <p>A promise to pay the debt of the promisee, no time being specified, is a promise to pay it when due, or forthwith if it is already due.</p> <p>Upon an action upon a promise to paya debt of the promisee brought after it is due, but before any payment by the promisee, the measure of the damages is the amount of the debt and interest.</p> <p>Upon an action of contract against a grantor for a breach of the covenant of warranty in a deed which contained a release by his wife of her right of dower and homestead, there was evidence that the deed was signed by the wife before the description of the, land or any other writing had been made in the deed, and that she never saw it afterward, and did not redeliver it after the description and the other parts had been written in. Held, that this did not invalidate the deed as against the grantor.</p> <p>Upon an action of contract for a breach of warranty in a deed by the defendant to the plaintiff of land in W. B., and the non-payment of a mortgage debt of the plaintiff as stipulated in a deed of the plaintiff to the defendant, of land in H. P., it appeared that the parties had bargained to exchange the land in H. P., and land in B. belonging to the plaintiff, for the land in W. E. belonging to the defendant. The execution of this exchange was disputed by the defendant. The plaintiff introduced his deed to the defendant of the land in B., and was permitted, against the defendant’s objection, to put in an agreement signed by the defendant, and dated two days after the latter deed, whereby the defendant agreed to convey to the plaintiff the same land in B. Held, that the paper, as evidence that the defendant, after the date when the plaintiff contended that the deeds were delivered, had treated the land in B. as his own, tended to show that the bargain had been carried out.</p>

<p>A testator .left property in trust to pay one third the income to his widow for life, and the other two thirds to his daughters, and in case of the death of either daughter, her share was to he paid to her heirs. The widow waived the provisions of the will, under the St. of 1861, c. 164. Held, on the death of a daughter, that the widow, although an heir of the daughter, could take no beneficial interest, as such heir, under the will.</p> <p>A testator devised all his estate, real and personal, to a trustee in trust to pay of the net income thereof one third to the wife of the testator during her life ; and the remaining two thirds, and, after the death of the wife, the whole of said net income, to his daughters A., B. and C., during their lives, and, after the death of one or more of them, to pay over the proportion of said net income, to which said deceased would have been entitled if living, to the legal heirs of such deceased; and, upon the death of the wife and all the daughters, to convey all the sax. real and personal property in fee to the legal heirs of the daughters, in equal proportions, by right of representation. The testator left a widow, two daughters by a former wife, one of whom was the daughter A. named in the will, and one daughter by his then wife, who was the daughter C. named in the will. After the death of the testator, and in the same year, A. died without issue, and 0. afterwards died without issue. The wife of the testator seasonably waived the provisions of the will in her favor, under the St. of 1861, c. 164. Held, that after the widow had received the personal estate to which she was entitled, and one third of the income of the real estate as dowress, the remaining two thirds of the income of the real estate, and the whole income of the remaining personal estate, were to be divided, upon the death of A., between the surviving sisters equally, and that upon the death of C. the sister still surviving should receive three fourths of the whole income, the remaining one fourth to be added to the income afterwards to oe distributed.</p>

<p>la an action to recover the value of one half of a party wall erected by the plaintifl partly on his estate and partly on that of the defendant, the jury may, in the absence of an express agreement as to payment on the defendant’s part, infer * promise to pa", if the plaintiff undertook and completed the wall with the ex pectation that the defendant would pay him for it, and the defendant had reason to know that the plaintiff was so acting with that expectation, and allowed him so to act without objection.</p>

Petition in equity, under the Gen. Sts. c. 63, §§ 43, 44, to compel the respondent to erect suitable fences between its land and the land of the petitioner. The answer alleged that the land which the petitioner desired to have separated by a fence was owned by the respondent.

<p>The provisions of the St. of 1866, c. 149, requiring all persons filling up flats by authority of the Legislature to submit their plans to the approval of the board of harbor commissioners, and to make compensation for the tide water thus displaced, do not apply to work done by the boards of mayor and aldermen of Cambridge and Somerville in filling up the flats in pursuance of the power conferred upon them by the St. of 1873, c. 304, and according to the plan devised by the harbor commissioners, acting jointly with the state board of health, under the St. of 1872, c. 353.</p>

<p>Writ of dower by the widow of Barney Smith, dated February 4, 1871, against Ellen McCarty, William Smith and Lawrence Smith. Trial in the Superior Court, without a jury, before Brigham, C. J., who found the following facts :</p> <p>The premises in which the demandant claims dower in this action consist of about one half of an acre of land in Framing-ham with a dwelling-house thereon, which was conveyed to Barney Smith by a warranty deed of George Warren on November 30, 1858; mortgaged to Elizabeth Dawson on November 30, 1858, to secure payment of Barney Smith’s note of $100 procured by him of her for the purpose of paying for the said land, and conveyed by Barney Smith by his warranty deed subject to the said mortgage to Alexander R. Esty on January 6, 1860, and reconveyed by Alexander R. Esty by quitclaim deed, to Barney Smith on January 9,1860. On September 26, 1861 the tenant Ellen McCarty paid from the earnings of her labor the sum due upon, the mortgage of Barney Smith to Elizabeth Dawson, for which a receipt was given on the back of the mortgage, and, in consideration of that payment, Walter Adams, administrator of the estate of Elizabeth Dawson, deceased, assigned the mortgage to the tenant Ellen McCarty, on May 10, 1875. Barney Smith, by his warranty deed of February 15,1870, convened the premises to his son, William Smith, (deceased before service of the demandant’s writ) and Lawrence Smith, but the demand-ant did not join in this deed.</p> <p>The demandant on October 1, 1870, demanded in writing of William Smith and Lawrence Smith dower and homestead in the premises;</p> <p>Upon the foregoing facts, the judge ruled that the demandant was entitled to dower in the premises described in the writ, and ordered judgment for her; and the tenants alleged exceptions.</p>

Two BELLS IN EQUITY. The first was brought by Relief W. Crafts, Walter Crafts, J. C. Stanton, Charles F. Tuttle and Patrick Shea, the owners of land, lying on the westerly side of a private way in Newton, against Chester Judson and Christopher Needham, owners of land on the east side of said way, to restrain the defendants from obstructing the way.

Contract for breach of an agreement to purchase a parcel of land in Newton. The answer admitted the agreement, but alleged that the plaintiff was not seised m fee of the land.

<p>A warrant for a town meeting contained an article, “ to see if the town will sell the Herring Brook for three years or more, as the town may deem proper, to the highest bidder.” Under this article, Herring Brook was sold to the defendant for three years, for $170 a year, he being the highest bidder. Held, in an action by the town to recover the price agreed, in which it appeared that the defendant had enjoyed the fishery, that the sale by the town was in the nature of a lease, and that the defendant was estopped to deny the title of the town or its right to sell the fishery, unless he was evicted or interrupted by some one having a paramount title ; and that the questions how far the brook was understood to extend, and whether it was navigable where the defendant took fish, were for the jury.</p> <p>The St. of 1871, c. 281, § 2, providing that “ the proprietor of any unnavigable tidal stream, where the same empties into salt water, and in which fishes are lawfully cultivated or maintained, shall control the fishery of said stream within his own premises, and also beyond and around the mouth of said stream, so far as the tide may ebb: provided, it does not ebb more than eighty rods,” applies only to cases where the waters of a stream are inclosed by the proprietor for the purpose of cultivating fishes.</p> <p>The lessee from a town of the right of fishery in a brook is liable for the stipulated rent, if he has enjoyed the premises, notwithstanding the statute of frauds, although his promise is not in writing.</p>

<p>Writ oe review of a judgment recovered by the defendant in review against the plaintiff in review on the following contract in writing, dated January 22, 1870, and signed by the plaintiff in review and James T. Frary:</p> <p>“ It is agreed between H. A. Lathrop of Sharon, and James T. Frary and Charles W. Russell of New York, that for services heretofore rendered by said Lathrop to said Frary and Russell, they shall procure from the Lamson & Goodnow Manufacturing Company for him a license to manufacture at his said Lathrop’s works, in Sharon aforesaid, and not elsewhere, and sell three thousand dozens of cutlery, under the patent granted to Joseph W. Gardner in 1859, and assigned to the said company during the unexpired term of said patent; which license the said Lathrop has applied to and requested the said Frary and Russell to procure for him from said company; and further, that they will pay the royalty charged for said license by said company; and they also agree to pay said Lathrop three thousand dollars when and as soon as said company shall have obtained a decree or judgment establishing the validity of said patent; and said Lathrop agrees that he will use his best endeavors to aid in establishing the validity of said patent whenever he shall be called upon to do so by said Frary and Russell, or said company.”</p> <p>After the former decision in the case, reported 117 Mass. 424, the case was tried in the Superior Court, before Dewey, J., who reported the case, for the consideration of this court, in substance as follows:</p> <p>The execution and delivery of the agreement, and a demand of payment by Lathrop upon Russell before bringing the present suit, were proved. The plaintiff also introduced in evidence the records of three suits in equity brought by the Lamson & Good-now Manufacturing Company, in the United States courts, in the city of New York, to restrain the use of the invention described in the letters patent referred to in said agreement. The suits were brought against J. Russell & Co., Landers, Frary & Co., and Clement, Hawks & Co., respectively, by bills in equity, each of which was dated April 17, 1867. The several defendants respectively filed answers therein, setting up, among other matters, that the letters patent were invalid ; that the invention was not new. In May, 1870, the defendants in said suits,- respectively, filed their written consent that said bills might be taken pro eonfesso, evidence on both sides had been previously taken, and on June 9,. 1870, an order was entered in each case, that the bills should be taken pro eonfesso ; and no further decree, order or judgment was ever passed or entered in either o>„ them. The records of said suits may be referred to. Upon this evidence, the defendant in review contended that he was entitled to recover. The judge declined so to rule.</p> <p>The defendant in review then offered paroi evidence to prove that the decrees in one or all three of said suits in Hew York, were the decree or decrees contemplated by the parties to this action, understood and intended by them to be the “ decree ” named in the contract upon the making or “ obtaining ” of which the $3000 would become payable. The defendant in review also offered to prove that before and at the time of the making the contract sued on, the said Russell declared to the said Lathrop that the decrees to be made in these three cases, or any one of them, was or were the decrees upon the making of which the requirement of the contract for a decree would be complied with, and said that the court, in which the suits were pending in Hew York, would sit the ensuing spring and pass upon these cases, and the said sum of money would become payable, and paid to said Lathrop; that after the making of said decrees, said Russell paid large sums of money to the complainants, Lamson & Goodnow, on account, and in payment or part payment of the damages claimed in the suit against him and his company; that on January 26, 1870, said Russell wrote to Gardner, who was a member of the Lamson & Goodnow Manufacturing Company, the following letter: “ Hew York, Jan. 26, 1870. Mr. Jos. Gardner: Dear Sir, As our agreement for the use of your patent of 1860 makes our payment contingent upon a court decree being issued 2n our case, we hereby give you notice that we waive that contingency, and pay our agreed price when we confine the use of the patent to the licensed parties. If this should not be satisfactory, we will sign further papers. Truly, J. Russell & Co.” That after said decrees he stated to the plaintiff and to others that the patent was valid, and could not be successfully contested; that he had used and exhausted every means of impeaching it; had fully obtained all the information bearing on the matter, and that the patent could not be resisted, and advised others to pay damages for the infringement, who did so in reliance upon his statements. That after making decrees, the said defendant in review repeatedly called on said Russell, and demanded payment, and claimed that it was due, and that said Russell, on every such occasion, acknowledged that it was due, and said that it ought to be paid to said Lathrop, and assigned as the only reason why he did not pay it, that Lamson & Goodnow had promised to pay the same to him, Russell, but had not done so, and he promised to see them at once and have the payment made; that he said the same to others.</p> <p>That no decree or judgment adverse to the said letters patent had ever been rendered; that the reason why said suits were not further prosecuted to final judgment and decree was the reception of the letter from Russell to Gardner, and the agreement of Russell and the other defendants to pay, and the payment in part or whole of the damages said Lamson & Goodnow had suffered !>y the infringement complained of in said suits. That said Lathrop was not a party, nor had any knowledge of such agreements or payments, except that said Russell told him at the time of contracting with said Lathrop that he had come to the conclusion, or thought that he should come to the conclusion, that he could not successfully resist said patent, and expected he should have to pay some $12,000 or so for damages for past infringement. As to the other suits, or any settlement thereof, the said Lathrop had no knowledge or information, and he was in no way a party to, connected with or concerned in any of said suits, or the settlement thereof, except that he had given his deposition as a witness.</p> <p>The plaintiff in review contended that the above evidence offered was not competent, and if any portion of it was competent for any purpose, it would not authorize the finding of a verdict for the defendant in review, and, by consent of the parties, the case was taken from the jury, and the question whether the defendant in review was entitled to a verdict upon the evidence which was Introduced by him, and the questions as to the admissibility and the effect of the evidence offered by him (but not admitted) were reserved for the consideration of the Supreme Judicial Court.</p> <p>If in the opinion of the court, upon the evidence introduced, and such portion of the evidence offered as the court shall deem admissible, the defendant in review would not be entitled to recover, judgment is to be entered for the plaintiff in review otherwise the case is to stand for trial.</p>

<p>Tort, by a mortgagee of personal property against an attaching officer, for the conversion of the mortgaged property. Trial in the Superior Court, before Allen, J., who, by consent of the parties before verdict, reported the case for the consideration of his court on the question whether judgment should be entered tor the plaintiff for the sum of $827.46, the amount of the mortgage debt, or for the sum of $775.25, the net proceeds of the sale of the goods by the defendant, who sold them as perishable property under the Gen. Sts. c. 123, §§ 73-77. The facts of the case appear in the opinion.</p>

Contract upon the following agreement under seal, signed by the plaintiff and the defendant and W. B. Wentworth, and dated March 20, 1868 : “ Know all men by these presents, that Ephraim F. Belcher, of Randolph, has this day purchased from W. A. H. Loveland, of Golden City, C. T., forty shares of the stock of the Golden City Mineral and Land Co., upon the following terms and conditions, to wit: The said E. F. Belcher has paid the said Loveland ten hundred and forty dollars,…

<p>A bequest to a town in trust, directing the town to appoint some suitable person or persons to receive and invest the fund, and annually at the annual town meeting to appoint some suitable person or persons to collect the income of the fund, and annually, at such time as the town shall direct, to pay over the same to such of the aged and infirm native-born inhabitants of the town, and maiden ladies who are native-born inhabitants of the town, although they be not aged, as shall be deemed by him or them most needy, and to each one such a sum as he or they shall think most just and equitable, and providing that no part of the said income shall be paid to any person who is receiving support as a pauper, is a valid charitable bequest under the laws of this Commonwealth.</p> <p>A charitable bequest in trust by a resident of this Commonwealth to a town in another state is not void because the town, at the time the bequest is made, is incapable, under the laws of that state, of taking the trust; and the fund may be ordered to be paid over to the town upon its being enabled, by a subsequent act of the Legislature of the other state, to administer the trust according to the will.</p> <p>A testator living in this Commonwealth, and having property here, devised it to a town in New York in trust for charitable uses, directing the town annually to appoint at its annual town meeting some person or persons to administer the trust. The town being then incapable under the laws of New York of taking the trust; an act was passed by the Legislature of that state empowering the town to receive and hold the property in trust, and authorizing the supervisor and justices of the peace of the town to appoint one or more suitable persons to receive the property and administer the trust. Held, that such administration by persons appointed in the manner provided by the act would not be according to the will of the testator; but that, if the Legislature of New York should, within a reasonable time, provide by supplemental statute for the administration of the trust according to the will, the ftmi might be ordered to be paid to the town.</p>

<p>Bill in equity, by the owner of lot A. shown on the plan printed in the margin,* to restrain the defendants, the owners of lots B and 0, from building on lot B.</p> <p>The case was reserved by Oolt, J., upon the pleadings and the report of a master, for the consideration of the full court, and was as follows:</p> <p>Richard Ensign, on February 14, 1848, being the owner of lots A and B, and occupying lot A as a homestead, conveyed lot B, in fee simple, with general covenants of warranty, to Joseph B. Huggins, who was then the owner of lot C. The deed described the land by metes and bounds, and following the description was this clause: “ with this express reservation, that no building is to be erected by the said Joseph B., his heirs or assigns, upon the land herein conveyed.”</p> <p>The defendants purchased lots B and 0 in 1874. Of the deeds in the chain of title from Huggins, which were all duly recorded before the defendants purchased, some mentioned ox referred to the reservation in Ensign’s deed, but the deed to the defendants, which contained full covenants of warranty, made no mention of it or reference to former deeds. The defendants made no examination of the records before their purchase, and had no actual knowledge of the reservation.</p> <p> </p> <p>The plaintiff purchased lot A of Richard Ensign by deed dated April 13, and recorded April 14, 1848. This deed made no mention of privileges or appurtenances, or of the reservation in the deed to Huggins. The defendants purchased their land, paying therefor its full market value, free of incumbrances, for the purpose of building thereon. The plaintiff notified them of the restriction before they commenced building, and forbade •them so to do, and, upon their proceeding to build upon the land, brought this bill.</p> <p>The master found that the greater part of the proposed building would stand upon lot B ; that it would not obstruct the view from the front rooms in the plaintiff’s house, and only partially obstruct the view from the rooms in the rear part of the house; and that its erection would be no appreciable damage or injury to the plaintiff’s premises.</p>

<p>Bill in equity, filed January 8, 1874, by Justin L. Worthy, guardian of Susan A. Luce and Frederick W. Luce, against Collins B. Warner, Sidney A. Luce, personally and as administrator of Pluma A. Luce, Edwin L. Humphrey, Daniel Sprague, Phineas L. Sprague and the Berkshire Life Insurance Company, to redeem a parcel of land in Pittsfield from a mortgage executed on January 9, 1867, by Pluma Ann Luce, the mother the plaintiff’s wards, in which her husband, Sidney A. Luce, joined, to secure the payment of a note for $630 and interest to the defendant Sprague. Hearing before Colt, J., who reported the case, for the consideration of the full court, in substance as follows:</p> <p>On June 10, 1867, Sprague brought his writ, in the Superior Court, to foreclose the mortgage. Pluma Ann Luce died intestate August 23, 1867, pending said suit, and leaving the wards her only heirs at law, and leaving no property other than the equity of redemption in said mortgage. On October 14,1868, Sidney A. Luce was appointed administrator of the estate of Pluma Ann Luce, and guardian of the two minor children; and at February term 1869 of the Superior Court, after notice to the minors and their appearance by their guardian, conditional judgment was rendered in favor of Sprague, against Sidney A. Luce and the minor heirs, for $711.58, and $24.99 costs of suit.</p> <p>On May 6,1869, an execution of habere facias issued upon said judgment, and seisin and possession thereon was delivered to E. M. Wood, attorney for Sprague, June 3, 1869. The return on the execution, and the acknowledgment of the delivery of seisin and possession on the back of said execution, were both dated May 3, 1869. The execution and the proceedings thereon were recorded in the registry of deeds June 10, 1869, as appeared by-the certificate of the register of deeds.</p> <p>The defendants contended that the date of the officer’s return, and of Mr. Wood’s receipt, was a manifest error, and should have been June 3 instead of May 3. The plaintiff objected to the introduction of any evidence to vary, contradict or control the record, and contended that the defendants could not in any way be allowed to show that possession was not had on May 3, 1869, and that all the legal and equitable rights of the parties must be decided and governed by the dates as recorded.</p> <p>On June 7, 1869, Sidney A. Luce, desiring to pay Sprague and to obtain an additional loan of money, gave his negotiable promissory note to the Berkshire Life Insurance Company for one thousand dollars payable in three years from its date, with interest, with the defendants Page and Humphrey as sureties-The insurance company then took an assignment of the judgment from Sprague; and gave Luce a written instrument reciting the assignment to them of the judgment, the further loan to Luce, and the note, and concluding as follows: “ Now then if said Luce shall well and truly pay said note and interest at the time specified, the said Berkshire Life Insurance Company promise and agree to cancel and assign said judgment to the said Luce, but not otherwise.”</p> <p>At the same time, and as part of the same transaction, Luce executed to his sureties, on the same paper with the last named agreement, and of the same date, the following written instrument, under seal:</p> <p>“ In consideration of the above named B. L. Humphrey and P. L. Page signing the above described note as my sureties, in case the said Humphrey and Page pay the said note, I hereby give, grant and assign to them all my right, title and interest in said judgment above described, and I do in case of such payment hereby authorize and request said Berkshire Life Insurance Company to relinquish and transfer all their right, title and interest in and to said judgment unto them, the said Humphrey and Page, their heirs and assigns forever.”</p> <p>On May 25,1872, before its maturity, the note of Luce to the life insurance company was paid by the sureties, who obtained a bank discount of a note with Page as maker and Humphrey as indorser for sixty days, for $1200, and which was paid by a note of the defendant Warner, indorsed by Page and Humphrey, and paid September 28, 1872.</p> <p>The life insurance company, after the lapse of three years from the time possession was taken for foreclosure, executed to the sureties at their request an assignment of said judgment, which was in very guarded form, and referred to the execution and the assignment of Sprague to said company, for description of the lands only. This assignment the defendants at the hearing proved was lost. It was never of record, but was in existence and in the possession of Page and Humphrey on July 27, 1872, and was then examined by the defendant Warner.</p> <p>On June 24, 1872, the life insurance company executed and delivered to Page and Humphrey a quitclaim deed of that date, of all its right, title and interest in the land described in the execution.</p> <p>On July 16, 1872, the resignation of Sidney A. Luce as guardian of the minors was duly accepted in the prohate court, and on the same day L. H. Gamwell was appointed and qualified as their guardian.</p> <p>On July 27, 1872, Page and Humphrey, with the knowledge, consent and cooperation of Gamwell, then guardian of the minors, but without any authority or license from the probato court, and claiming to be sole owners of the land described in the Sprague mortgage, sold to the defendant Warner, who had been one of the bondsmen of Sidney A. Luce as guardian and as administrator, and who had full knowledge and notice, both constructive and actual, at the time of the sale, of the title of the premises, the premises described in said Sprague mortgage, at a public auction, after public notice thereof by handbills and by publication, for the sum of $1700. The actual cash value of the property was a few hundred dollars in excess of this price. Their deed to Warner, which was of quitclaim, was of the same date. On September 26,1872, Sprague conveyed to Warner all his right, title and interest in the premises for a nominal consideration. Gamwell resigned his guardianship on December 2, 1873, and the plaintiff was appointed guardian in his stead. Before bringing the bill, the plaintiff demanded of the defendants an account of the rents and profits and of the amount due on the mortgage; which they did not render, alleging that the mortgage was foreclosed and that the plaintiff had no right to redeem.</p> <p>If the plaintiff was entitled to redeem, such decree was to be made as would enable him to do so; otherwise the bill to be dismissed with costs.</p>

<p>Petition for a writ of certiorari to the hoard of aldermen of the city of Springfield. The petition alleged that on December 5,1871, the city council of Springfield, by an order of that date, laid out and established a street from a point near the foot of Blake’s Hill, in Springfield, to the X road, so called, with a uniform width of one hundred feet, and to be called Fort Pleasant Avenue; that the petitioner is, and at the time of the proceedings hereinafter set forth was, the owner in fee of two tracts of land lying and abutting on said avenue; and that on October 19, 1874, the board of aldermen of Springfield passed an order assessing upon said lands of the petitioner the sum of $3600 for benefits alleged to have been received by his said lands from the laying out and grading of said Fort Pleasant Avenue. The petition then alleged that said proceeding of the board of aldermen was irregular, illegal and void, for the following reasons:</p> <p>“ Because no grade line has been established to which said avenue is to be graded and worked.</p> <p>“ Because the work of laying out and grading said avenue had not been completed at the time when said assessment was made, and is not now completed.</p> <p>“ Because the records of said board of aldermen do not show what was the actual expense of laying out and grading said avenue.</p> <p>“ Because the records of said board of aldermen do not show in a legal and proper form the actual expense of laying out and grading said avenue.</p> <p>“ Because it does not appear that the amount assessed is- a proportional part of the expense of laying out and grading said avenue.</p> <p>“ Because, so far as the records show, the aggregate amount of assessments upon real estate on account of said avenue may greatly exceed the actual expense of laying out and grading the same.</p> <p>“ Because said assessment was made by the board of aider-men, and not by the board of mayor and aldermen.”</p> <p>Annexed to the petition was the report of the board of public works of the city of Springfield, dated October 12, 1874, and the order of the board of aldermen accepting the same, dated October 19, 1874.</p> <p>The report, after reciting the reference to said board, upon the order of the mayor and aldermen, of the matter of assessing betterments under the St. of 1871, c. 382, upon lands specially benefited by reason of the laying out and grading of Fort Pleasant Avenue, notice given to all parties interested, and a hearing had, set forth that the board 44 adjudge and determine that the whole amount of benefit and advantage received by any real estate from said laying out and grading of Fort Pleasant Avenue, beyond the general advantage to all real estate in said city of Springfield, to be $31,050, one half of said adjudged benefit and advantage, viz.: the sum of $15,525, they are of opinion should be assessed upon the lots of land specially benefited, in proportion to the benefit and advantage received by each, as follows.” Then followed a list of the assessments on various parcels of land, including two parcels belonging to the petitioner, upon which were assessed the sums of $3400 and $200 respectively. The report concluded as follows: “And they recommend that assessments be made of special benefits received by said real estate from the laying out and grading of said Fort Pleasant Avenue, upon the several lots of land and in the sew era 1 sums above named, said sums being, in each case, one half of the adjudged special benefit and advantage to each lot of land respectively from said laying out and grading.”</p> <p>The order of the board of aldermen was as follows:</p> <p>“ City of Springfield. In Board of Aldermen, October 19, 1874. Ordered, that the accompanying report of the board of public works relating to the assessment of betterments on Fort Pleasant Avenue be and is hereby accepted and adopted, and that assessments of betterments occasioned by laying out and grading Fort Pleasant Avenue from Mill Street to Sumner Avenue, be made in all respects according to the recommendations of said report, which is hereby referred to and made part of this order, and the tax collector is hereby directed to collect said assessments, with interest at twelve per cent, per annum from October 20, 1874, upon all sums not paid on or before the twentieth day of November next.”</p> <p>The answer, which was signed by attorney, was as follows :</p> <p>“ And now comes the city council of the city of Springfield, and the board of aldermen of said city, and for answer-to the petitioner say that they deny that the work of laying out and grading said avenue had not been completed at the time when the assessment referred to in said petition was made, and denies that the work of grading was then or is now incomplete, and denies that said grading left the petitioner without convenient access to his lands, and avers that if said access were inconvenient it would be no ground for granting the prayer of the petitioner.</p> <p>“ The respondents deny that said avenue is not now and has not been at any time in a safe condition for public travel, and aver that if the fact were as alleged it would be no sufficient ground for granting the prayer of this petitioner.</p> <p>66 And the respondents further aver that it sufficiently, appears by the records of the mayor and aldermen, and of the city of Springfield, that the expense of laying out and grading said Fort Pleasant Avenue was largely in excess of the amount assessed under the order of the mayor and aldermen, annexed to the petition on file, and that the amount so assessed was a proportional part of said expense; and they further allege, apart from such record, that as a fact said expense was largely in excess of said amount assessed, and said amount was a proportional part of said expense.</p> <p>“ And except as hereinbefore admitted, all the allegations of the petitioner as to illegalities and irregularities in the proceedings of said assessment are denied by the respondents. And the "respondents further allege that if any of the alleged irregularities are found to exist, they are mere matters of form not essential to the validity of the proceedings, and that in all important matters said proceedings are correct, and that substantial justice has been done, and that therefore the prayer of the petitioner ought not to be granted.”</p> <p>Hearing before Colt, J., who, by the consent of the parties, reserved the case for the full court upon the petition and answer, and a report, which, after stating that the copies of the records annexed to the petition, were made part of the case, proceeded as follows:</p> <p>The following record was introduced in evidence: “ City of Springfield, in Board of Aldermen, June 8,1874. Ordered, that the matter of assessing betterments under and in accordance with the provisions of chapter 382 of the Acts of 1871, upon lands specially benefited by reason of the laying out and grading of Fort Pleasant Avenue, be referred to the board of public works, and that they be requested to make report thereon.”</p> <p>It appeared in evidence, by the testimony of the city clerk, that no grade line had ever been established by the city council, to which said Fort Pleasant Avenue should be graded and worked. The avenue, as' wrought, varied in width from one hundred feet (the width named in the order of location for the entire street) to forty-five feet. It is constructed across two ravines, rendering embankments necessary; one of them being twelve feet high, and the other twenty-five feet high. Ho railing or other barrier has been erected at these points on the sides of the avenue. Before the commencement of proceedings for the assessment of betterments, the road had been properly completed and graded for public travel, unless the lack of railings t>r other barriers at the points above named, and the failure of the city council to establish a grade, would prevent a finding to that effect. The land of the petitioner abuts on said road fifteen hundred and forty feet in one part, and five hundred feet in another part.</p> <p>The records of the assessment of betterments by the respondents do not show the actual expense of laying out and constructing said avenue, or that the amount assessed upon owners of real estate supposed to be benefited is a proportional part of said expense. If it is competent to be shown in this way, it can be proved by accounts kept upon the books of public record of the respondents by its treasurer, and also by paroi, that the actual expense of laying out and constructing the road is between twenty-one and twenty-two thousand dollars, and the assessment of betterments upon owners of real estate was a proportional part of about two thirds of that sum.</p> <p>It can also be proved by paroi evidence, if competent, that the mayor of said city was present at the meeting of the board of aldermen at which said order of assessment was. made, and acted as presiding officer of the board.</p>

<p>In an action against a town, for personal injuries caused by a defect in a highway, the defendant requested a ruling that the plaintiff could not recover unless she satisfied the jury that the injury was caused by the defect in the way without fault on her part. The instruction given was that “ the plaintiff must satisfy the jury that she was in the exercise of due care at the time of the alleged injury, and if a want of due care on her part contributed in any degree to the injury she cannot recover, though it would not have occurred except for the omission of the town to perform its duty.” Held, that the request did not call the attention of the presiding judge to the rule of law that it must appear that the injury was caused solely by a defect in the way, but only to the question of contributory negligence on the part of the plaintiff, and that the defendant had no ground of exception.</p> <p>Ir an action against a town for personal injuries caused by a defect in a foot-path, by the side and within the location of a highway, instructions were requested that the jury could not find “ merely ” from certain specified circumstances that the town had recognized the path as a part of the highway that they were bound to keep in proper condition for travel. Held, that such instructions were properly refused; and that the recognition and adoption of the path by the town was a question of fact for the jury to determine, in view of all the evidence in the case.</p> <p>A person, knowing the unsafe condition of a part of a foot-path by the side of a highway in a town, fell and was injured in the attempt to pass over it. In an action brought against the town for the injuries caused by the alleged defect, the defendant requested the judge to instruct the jury that the plaintiff’s election, with such knowledge, to travel along the path instead of by the safe portion of the way might be considered by them as such want of due care upon her part as would prevent her recovering. The judge ruled that such knowledge would not be conclusive that the plaintiff did not exercise due care; but that if, with her knowledge, the plaintiff did not exercise due care and prudence, either in entering upon the way or in proceeding thereon after she had entered, she could not recover. Held, that this ruling properly left the jury to determine whether there was any want of due care in going upon the foot-path.</p>

<p>Land was conveyed to a city in trust for the purpose of building a hospital thereon. By the terras of the deed, the city was to make an appropriation of twenty-five thousand dollars for the purpose, and to build a hospital, or part of a hospital, of a certain size, upon the land within three years, or, failing to do so, to pay the grantor, or his legal representative, the sum of two hundred dollars a month; and the land was not to be sold for twenty-five years, and then only upon the opinion of three fourths of the board of trustees that it was unsuitable for a city hospital, and upon the setting apart of a sum of money equal to the value of the land, as then ascertained by three appraisers, as a permanent fund for the city hospital. The city was duly authorized by the Legislature to erect and maintain a city hospital, and accepted the grant of the said land. The grantor by his will, after devising all the residue of his estate to the city in trust, to be by it applied fly the sole use and benefit of the city hospital, provided as follows: “ While I would not wish to give any particular direction to the bequest, nor incur the risk of defeating the purpose I have in view in making it, by imposing any limitations or condition as to the manner of its use, still I should prefer to see it set apart as a separate fund, and the income thereof only applied to the support and maintenance of said hospital, if such course shall commend itself to the wisdom of those having it in charge.” Held, that a bill in equity brought by the city after the death of the grantor and within three years after the grant, seeking to release the city from the obligation of building a hospital upon the land within three years from the date oi the deed, and to enable the city to sell the land immediately for its own benefit, on the ground that the city had made other provisions for a suitable and convenient city hospital elsewhere, that it would be inexpedient and unnecessary to erect a hospital on the land, and that said land, on account of its situation, its northern exposure and nature of its soil, was not a suitable, convenient or wholesome place for the erection of a hospital for the reception and care of sick persons, could not be maintained.</p>

Petition, under the Gen. Sts. c. 148, to the Superior Court, by three proprietors of meadow lands in Marshfield, for the appointment of commissioners to prescribe the measures to be adopted for making certain improvements thereon. The other proprietors, two in number, were made respondents. Hearing before Putnam, J., who granted the petition, and allowed a bill of exceptions, so much of which, as is material to the point decided, appears in the opinion.

<p>Contract for breach of a written agreement, with counts in tort, averred to be for the same cause of action. At the trial in the Superior Court, before Aldrich, J., the jury returned a verdict for the defendant, and the plaintiff alleged exceptions, the substance of which appears in the opinion of the court.</p>

Coste act upon a promissory note for $200, dated Fall River, June 12,1873, made by the defendant, payable to the plaintiff one year from date, with interest at the rate of eight per cent., payable semi-annually, and to recover interest upon five other similar notes, payable respectively in two, three, four, five and six years from the same date. Writ dated November 21, 1874.

<p>The right to recover for a constructive total loss, on abandonment of a vessel to the underwriters, depends upon the state of facts when the abandonment is made; and the abandonment, if justified by those facts, relates back to the time of the loss.</p> <p>If a vessel is once totally lost by a peril insured against, and the master, using due diligence, is unable to regain possession of her in such a condition and under such circumstances as to enable her to pursue the voyage for which she is insured, the right to abandon and to recover for a constructive total loss remains, without regard to the question whether at some future time, over which the master has no control, he might be able to regain possession of her on payment of salvage, and without regard to the proportion between the amount of the salvage and the value of the vessel.</p> <p>In an action on a policy of marine insurance, there waS> evidence that the vessel insured, a whaling vessel, was jammed fast in the ice in the Arctic Ocean, with no open water in sight, and drifting northwards with the current; that her officers and crew, finding it impossible to extricate her with the utmost efforts, and being nearly worn out with fatigue and want of sleep, in order to save their lives, left her in their boats, taking with them their guns and whaling gear, and, by passing through narrow strips of water and hauling the boats over the ice, reached the whaling fleet in safety, fifty miles south of where they left the vessel; that ten days afterwards, the men, boats and guns being scattered in different vessels, and some of them having gone home, the ice loosened, and the abandoned vessel was got out by the master and crew of another vessel, and held for salvage; that the master of the vessel insured was not able, by the exercise of reasonable efforts, to obtain a sufficient crew or whaling craft, or to gain possession of the vessel to pursue the voyage on which she was employed, and for which she was insured ; that the vessel was taken by the salvors to San Francisco, and before her arrival there was abandoned by her owners to the underwriters. Held, that it was competent for the jury to find a verdict against the underwriters for a constructive total loss.</p> <p>Under a declaration on a policy of marine insurance for a total loss, a constructive total loss may be recovered.</p> <p>It is not necessary, in a declaration on a policy of marine insurance, to allege the abandonment of the vessel to the underwriters, or the facts necessary to constitute the total loss relied on.</p>

<p>Contract, with a count in tort, for the loss of certain articles of personal property, delivered to the defendant corporation for transportation from Worcester to Providence, the plaintiff being a passenger at the time.</p> <p>At the trial in the Superior Court, before Pitman, J., it appeared in evidence, on the part of the plaintiff, that, prior to the bringing of this suit, she and her husband lived together as husband and wife; that she and her husband had worked in a mill, and that .he had delivered to her from time to time his earnings, and that she had mingled with them her own earnings ; that the articles mentioned in the declaration, and described therein as clothing suitable for her, were by her purchased and used for her personal apparel, by consent of her husband, with money given her by him from the fund formed by their joint earnings. The defendant asked the judge to direct a verdict for the defendant; the judge refused so to do, and the defendant excepted.</p> <p>The defendant asked the judge to instruct the jury as follows:</p> <p>“ If the plaintiff purchased the goods with her husband’s permission, and with his money, she cannot recover. If the plaintiff was earning money, and mixed it as earned and received with her husband’s earnings, and from their joint earnings she, with his consent, purchased the property, she cannot recover.</p> <p>“ If a married woman, not having filed a certificate under the statutes, mingles her earnings with those of her husband, clothing purchased by her from the joint fund would be property of her husband.”</p> <p>The judge refused so to rule, and instructed the jury as follows: “If the wife purchased the articles with the husband’s money, given her by him, or with her own money, or with money from a fund created by mingling the earnings of wife and husband, she would have such a title to these articles of her personal apparel as would enable her to recover their value in this action.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions to the refusal to rule as requested, and to the rulings given.</p>