Volume 120 — Massachusetts Reports

Tort for personal injuries alleged to have been caused on the night of December 9, 1873, by a defect in a highway in the defendant city. The answer denied that the city was bound to keep the way in repair.

<p>Contract against the owners of the schooner Bay State, to recover pilotage fees. At the trial in the Superior Court, Bacon, J., ruled that, upon the facts presented, the plaintiff could not recover, and directed a verdict for the defendants. The plaintiff alleged exceptions, the substance of which appears in the opinion.</p>

Tort for injuries occasioned by the negligence of a person alleged to be the defendant’s servant. The case was referred, by agreement of parties and rule of the Superior Court, to an arbitrator, judgment on whose report was to be final, and execution to issue accordingly.

<p>The provisions of the U. S. St. of 1864, c. 225, §§ 8, 9, and of the treasury regulations of July 29, and September 24, 1864, respecting purchases of the products of the then insurgent states, and commercial intercourse with their inhabitants, did not authorize any such intercourse, excepting by the agents of the United States appointed to make such purchases. Nor did they authorize such agents to contract for such products with citizens of the states not in rebellion, nor for such products not, at the time of the contract, actually owned or controlled by the vendor.</p> <p>Under the U. S. St. of 1864, c. 225, §§ 8, 9, and the treasury regulations of July 29, and September 24, 1864, no officer of the United States government, civil or military, had authority to grant permission to any person to take goods beyond the lines of the military occupation of the United States, for trade or exchange for the products of the insurgent states.</p> <p>A bill in equity cannot be sustained by one of the parties to a contract for illegal trading with inhabitants of states declared in insurrection against the United-States government, against another party to such contract, for an account of resulting profits.</p>

<p>In an action for false representations, it is sufficient if such representations materi ally influenced the conduct of the plaintiff, though they were not the sole or predominant inducement.</p> <p>In an action for false representations as to the pecuniary ability of the maker of a promissory note, whereby the plaintiff was induced to take it, the defendant’s bill of exceptions stated that the plaintiff testified as to the representations made by the defendant in regard to the pecuniary standing of the maker of the note, and its.value, and that he took the note upon the defendant’s representations. The bill of exceptions did not state what those representations were, but no objection was made that they were mere expressions of opinion, or were intended to be so understood. Held, that it was to be presumed that the defendant’s statements were of facts susceptible of knowledge, as distinguished from matters of mere opinion and belief, and were calculated to have material influence upon the plaintiff.</p> <p>At the trial of an action for false representations as to the pecuniary ability of the maker of a promissory note, whereby the plaintiff was induced to take the note in payment for goods sold the defendant, the plaintiff was asked by his counsel, “ Whether you sold the leather to the defendant relying upon his representations ? In consequence of his representations, and in reliance upon those representations, did you sell him the bill of leather and take the note 1 ” Held, that the questions were properly allowed in the absence of any objection to their form.</p> <p>At the trial of an action for false representations as to the pecuniary ability of the maker of a promissory note, an adjudication of the bankruptcy of the maker, seven months after the date of the note, was admitted for the sole purpose of rendering competent evidence the proof of claims by the defendant against the estate of the bankrupt, which claims were held by the defendant at the time the representations were made. Held, that the evidence was properly admitted. Held, also, that the claims were properly admitted.</p> <p>At the trial of an action for false representations, made in July, 1870, as to the pecuniary ability of the maker of a promissory note, whereby the plaintiff was induced to take the note in payment of goods sold the defendant, a witness was asked by the plaintiff, “ Did you have a claim against A. (the maker of the note) in the latter part of July, 1869, or the first of 18701 ” He answered, “ I did.” He was then permitted to testify that the claim was due in January, 1870, and was settled in March, 1870, by a note given for the amount of the claim and of a bill of goods sold A. at that time, and that the note was signed or indorsed by the defendant. Held, that the first question was preliminary, and that the evidence was properly admitted as tending to show a knowledge on the part of the defendant that A. could not at that time pay his debts in the ordinary course of business. Held, also, that a mortgage of personal property by the maker of the note to the defendant, subsisting at the time of the latter’s representations, was properly admitted for the same purpose.</p> <p>No exception lies to the exclusion of evidence, unless the bill of exceptions shows that the evidence was material to the issue.</p>

<p>A mortgagor procured the mortgaged estate to be sold under a power in the mortgage to a third person, who advanced no funds for the purchase, upon a secret trust for the mortgagor, to evade liabilities to his wife from whom he had been separated, and to deprive her of her dower. He died without having procured a conveyance of the property to himself, and his widow was appointed administratrix of his estate. Held, that she could maintain a bill in equity against the trustee for the recovery of the property as administratrix and in her own right. Held, also, that the heirs at law of the intestate were properly joined in the bill as plaintiffs. Upon a bill in equity for the reconveyance of land, it was found, adversely to the defendant’s allegations in his answer, by a single justice of this court, before whom the case was heard, that it had been conveyed to the defendant under a power of sale in a mortgage, by collusion between the mortgagor and the defendant, that the fund for the purchase and for houses subsequently built upon the land had been furnished by the mortgagor, that no funds for either purpose had been furnished by the defendant, and that he held the property in trust for the mortgagor. After the judge had stated that he had arrived at these conclusions, but before any decree, was made, the defendant moved to amend his answer so as to set forth the moneys and loans advanced to the mortgagor which had been employed by him in the purchase of the property and in the erection of the buildings and improvements upon the land, and for a reference to a master to state the account thereof. The presiding judge thereupon directed the defendant to file these accounts, and, upon examination thereof, decided that they embraced no other matters than those that had been passed upon, and refused to refer them to a master. Held, that the presiding judge could not have referred these accounts without reversing the finding that nothing had been paid by the defendant and trying the question anew, which he was not bound to do.</p>

Contract against a warehouseman, for the value of a carriage stored with him, and alleged by him to have been stolen on June 6, 1873.

<p>Contract upon a promissory note, dated Boston, August 1, 1873, payable to the plaintiff three months after date • and •signed: “ U. S. Manfg. Co., Geo. H. Fox, Treas.”</p> <p>At the trial in the Superior Court, before Bacon, J., the defendant offered as a witness George H. Fox, its treasurer, who made the promissory note declared upon, and asked him the following question : “ whether or not he had authority to make this note as treasurer of the defendant company?” referring to the note in issue. The judge, against the plaintiff’s objection that the question called for a conclusion of law and not of fact, allowed the witness to answer. He said “ he had not.”</p> <p>It appeared in evidence that the defendant company after its organization rarely held meetings of its directors or officers, and that said Fox was treasurer, general agent and manager of the defendant company and acted in discharge of his duties in accordance with his own judgment, only occasionally consulting any of the other officers.</p> <p>The defendant contended that the note in issue was made as the note of Fox and one Bacon, copartners, who had been doing ousiness from March, 1872, to November, 1872, under the name of the United States Manufacturing Company, and signing their notes “ U. S. Manfg. Co., George H. Fox, treasurer; ” that on November 1, 1872, the defendant corporation was organized; that the same name was used by Fox and Bacon in closing up their business, and this note was given in so doing. The defendant also contended and offered evidence tending to prove, that the plaintiff had actual and express notice of all these facts, end dealt with Fox and Bacon down to November 1, 1872, and with the defendant after that date, all of which the plaintiff denied, and offered evidence tending to prove such denials. It appeared in evidence that the defendant corporation bought the assets and good will of Fox and Bacon, and continued their business ; and the principal officers and stockholders of the defendant corporation knew that the business had been carried on previously, and up to its organization, in the name of the United States Manufacturing Co. ■</p> <p>The plaintiff asked the judge to rule that the defendant, taking the name under which Fox and Bacon had done business up to the time of its organization, with full knowledge thereof on the part of its organizers, officers and stockholders, was estopped from setting up the existence of Fox & Bacon as a separate company, which the judge refused to do; to this refusal to so rule, and to the admission of the evidence aforesaid the plaintiff excepted.</p> <p>Among other instructions, to which no exceptions were taken, the judge instructed the jury as follows: “ 1. If Fox was the general agent as well as treasurer of the defendant corporation, and the directors did not hold meetings for the purpose of directing the affairs of the corporation, but permitted Fox, as general agent to transact the business under such circumstances, Fox could pay the debt of the company existing at the time of the defendant’s organization by giving the note of the defendant if he considered it for the interest of the defendant to do so, and if he so paid such debt, and upon such payment the plaintiff released its claim upon such company, that would be a sufficient consideration for such note.</p> <p>“ 2. If the defendant assumed the name of a company existing up to the time of its organization, and after such organization took the business of said company, and continued to carry it on under the name of said company, the defendant thereby made itself liable upon notes given in such common name, to parties who, in good faith, and without notice of any change, took such notes in payment of their claims against such company existing at the time of the organization of the defendant corporation, although said notes were given after the organization oí the defendant corporation.”</p> <p>The jury returned a verdict for the defendant; and the plain tiff alleged exceptions.</p>

Contract for breach of the following agreement dated Boston, October 1, 1871, and signed by the defendant: “ This agreement witnesseth that I, F. W. Cole, for and in consideration of the sum of twenty-five hundred dollars, to me paid by D. E. Page, Jr., the receipt whereof is hereby acknowledged, do bargain, sell and convey to said Page a certain milk route, situated in the southerly part of Boston, with all the rights, privileges thereunto belonging, together with the…

<p>The provision of the St. of 1869, c. 415, § 28, that “ druggists may sell for medicinal purposes only, pure alcohol to other druggists, apothecaries and physicians, known to be such," does not apply to a sale of alcohol by a commission merchant, dealing principally in alcohol, to wholesale druggists.</p> <p>It is not sufficient evidence of a sale of alcohol “for medicinal purposes only," within the St. of 1869, c. 415, § 28, that the buyers were wholesale druggists.</p>

<p>Contract upon an account annexed for railroad materials alleged to have been sold by the plaintiffs to'the defendant corporation, and used in the construction of the defendant’s railroad. Trial in the Superior Court, before Allen, J., who allowed a bill of exceptions in substance as follows:</p> <p>It appeared that the plaintiffs were agents of the Bay State Iron Company, and in that capacity, on September 4, 1872, concluded with George C. Winchester, as president of the defendant corporation, the negotiations for a sale of two hundred and forty tons of railroad iron to the defendant corporation amounting to about $20,000.</p> <p>Winchester was one of the original corporators of the defendant corporation, then recently created by the St. of 1871, c. 251. The existence of the corporation and the connection of Winchester as president were admitted; and the weights, quantities and prices of the plaintiffs’ bill were not in dispute.</p> <p>It also appeared that one Lynch had undertaken to build the road by contract made with the corporation by Winchester, and was then engaged in building the road; and that by his contract he was to furnish the iron and the materials named in the plaintiffs’ bill in this suit. The plaintiffs, acting for the Bay State Iron Company, had refused to sell to Lynch, his credit being insufficient ; and on the back of a broker’s note of sale of the two hundred and forty tons of railroad iron, in which Lynch’s name appeared to have been interlined, the following indorsement was made and signed by Winchester:</p> <p>“ Boston, Sept. 4,1872. I, George C. Winchester, president of the Ashburnham Railroad Company, hereby guarantee payment of the within named iron as follows, viz., one half cash on delivery of the iron, and one half the Ashburnham Railroad Company’s note, at four months from date of delivery, with interest added at 7 % per cent, per annum.” The iron was delivered, and the note mentioned was given and paid.</p> <p>Immediately after the completion of the negotiation above named and on the same day, one of the plaintiffs testified that he called the attention of Winchester to a memorandum which he told Winchester was a memorandum of the quantities and sizes of articles wanted for the road (being the same now sued for), which had been left by one Appleton in behalf of Lynch; and also told Winchester that his firm would not sell the contractor, but would sell the railroad company, if ordered by it. To which Winchester replied, “ Go ahead, send them along,” or used similar language. Following this conversation, the witness testified that he procured the articles from several sources and caused the same to be forwarded, and entered the same upon the sales book of the plaintiffs to the Ashburnham Railroad Company, in the usual form of charges on book account. The original entries were exhibited and offered in evidence.</p> <p>. After the articles had all been forwarded, the plaintiffs wrote and mailed the following letter to Winchester, dated Boston, October 28, 1872, and signed by the plaintiffs : “Dear Sir, We inclose herewith our bill for spikes, splices and bolts furnished your road, indorsed with order for payment by your contractor, Mr. John Lynch. By sending us check in payment of same by return mail you will very much oblige, as we are sadly in want of money.”</p> <p>The witness testified in cross-examination that he had no copy of the indorsement of Lynch, but from his best recollection ii Vi as simply an acknowledgment of the receipt of the articles for* warded as a voucher. A copy of the bill was produced in form; “ Ashburnham R. R. Co. Bought of John H. Reed & Co.”</p> <p>The plaintiffs offered a letter from Winchester, dated Ashburnham, November 12, 1872. So much of it as referred to this subject was read in evidence and was as follows: “ Regarding the bills sent by you against the Ashburnham R. R. Co., having been brought to notice of treasurer, he will present them to directors of said Co. for their consideration at the next meeting.”</p> <p>The plaintiffs afterwards, under date of Nov. 25, 1872, wrote and mailed the following letter to Winchester, signed by them; “Dear Sir, We take the liberty of calling your attention to our bill against your road for spikes, splices, &c. Will you be kind enough to instruct your treasurer to send us a check for the amount of same. We have some amounts to pay, and are short of funds. By giving this your early attention you will very much oblige.”</p> <p>In reply to the foregoing, the plaintiffs testified to the receipt of the following letter, which was read as evidence, dated Ashburnham, Dec. 4,1872, addressed to the plaintiffs, and signed by Winchester: “ Yours of 30th ult. is rec’d. The Directors of the Asb. R. R. have not yet authorized the Treasr. to pay your bill. I will see you on Friday in regard to it.”</p> <p>The following correspondence was also read, having been sent and received in due course of mail. The following letter, dated Boston, Dec. 18, 1872, from the plaintiffs to Winchester; “ Sir, Your acct. still remains unsettled. You will please settle it at once.”</p> <p>The following letter, dated Ashburnham, Dec. 19,1872, from • Winchester to the plaintiffs in reply: “ Dear Sir, Yours of 18th inst. is recti- Your account is fully settled on my books for all that I know that I have had of you. If there is anything that. I have omitted to cr. I should be pleased to know what it is.”</p> <p>The following letter, dated Boston, Dec. 20,1872, from the plaintiffs to Winchester: “ Sir, Your letter of the 19th is before us. In September last you bought of us for the Ashburnham R. R. splices — bolts & spikes as per inclosed statement — you saying to us at the time that you had to furnish the money and would see that the account was paid. We supposing you to be a person whose word was to be relied on, took your word and delivered the goods. We will thank you to see that the account is settled.”</p> <p>One of the plaintiffs testified that during the period of this correspondence he had several interviews with Winchester, in Boston; that on these occasions this bill was spoken of, and that Winchester said on each occasion that money was short, that he had not been able to get his directors together, or spoke in similar language. Some time after the correspondence had ceased, and shortly before the date of the writ, he met Winchester in the street in Boston, who then said for the first time that the articles were not purchased by the railroad, and charged the plaintiff with having sold them to the contractor.</p> <p>Edward Appleton, a witness called for the plaintiffs, testified that he was a civil engineer, and sometimes took contracts for building railroads; that he went with Lynch to Ashburnham to join in negotiations for the contract to build this road; that Winchester made the negotiations concerning the contract with Lynch on the part of the railroad company ; that while the work was going on during a period of about a year, disputes arose chiefly as to the monthly estimates of the work done under the contract, and that he, Appleton, acted for Lynch in adjusting these controversies; that Winchester always acted for the railroad company on its part, and that on several occasions when he spoke to other directors on the subject, they always referred him to Winchester, but took no part themselves.</p> <p>The plaintiffs rested their case upon the foregoing testimony, and the defendant declined to offer any evidence, but requested the judge to rule that the plaintiffs could not maintain this action upon this evidence, and that no sufficient evidence of any contract on the part of the defendant had been introduced; and the judge ruled as requested. The jury found for the defendant under this ruling ; and the plaintiffs alleged exceptions.</p>

<p>Bill iít equity, filed June 8, 1875, to restrain the defendant from obstructing the plaintiffs in the work of raising, improving and grading a private way called Regent Court, leading out of Regent Street in Boston. Hearing before Wells, J., who reported the case for the consideration of the full court in substance as follows:</p> <p>The plaintiffs are severally owners of houses and lots abutting on said court, with common rights of way through and over the same. The defendant is owner of a lot at the corner of the court and Regent Street, by deed from Nourse, one of the plaintiffs, describing the lot as follows : “ bounded southeast by Regent Street, sixty feet; southwest by land recently conveyed by me to Hugh Nann, sixty-five feet; northwest by my own land sixty feet, and northeast by land of mine, to be left open twenty feet wide, for a passageway from Regent Street, sixty-five feet.” The deed conveyed the land with all privileges and appurtenances. At the time this deed was given Nourse was the owner of all the land through which the court was laid out, and still is the owner, except so far as his deed to Kelley conveyed title or rights to him, and except so far as his deeds to others bounding on said way have conveyed title or rights now held by the other plaintiffs.</p> <p>The defendant has erected upon his lot a double house fronting on Regent Street, which is considerably above the level of his land and of Regent Court. The side wall of his house is about two feet from the line of the court, and has basement windows opening towards the court, and cellar windows below those. His entrance to the basement from the court is by a door on the rear of the house. He has a stable and shed upon the rear part of his lot, the approach to which is also from Regent Court. After the defendant took his deed, and before he built his house, Nourse caused the court to be filled in against the defendant’s land so as to improve the approach to Regent Street. After he built his house the court was again raised by parties interested in it, so as to be as high as or a little above the level of the sill of the basement door of the defendant’s house, and so as to darken his cellar windows. About a year since. Regent Street was graded and raised by the city.</p> <p>The plaintiffs having commenced to fill and raise the grade of Regent Court still further, the defendant interfered and removed some of the material laid therein opposite to his land, and obstructed the work, and by threats and otherwise prevented its further prosecution.</p> <p>At the hearing it appeared that, by raising the surface of the court, to the grade contemplated by the plaintiffs, the cellar windows of the defendant would be stiff further darkened, and the embankment or wall would extend to such height as to obstruct the air, light and vision to and from the basement windows, thereby to some extent, and, as the defendant contended, seriously to injure and impair the value of his house. It also appeared that the court would thus be raised two or two and a half feet above the level of the defendant’s present roadway to his stable and sheds, and of the landing at the basement door of his house, so as to require stairs or steps by which to descend from the court to his said door. The defendant contended that this would cause an injury to his premises and his rights of way, not remedied by the provisions contained in the decree hereafter stated. He also contended that the attempt of the plaintiffs to raise the grade of the court against his land was unlawful and in violation not only of his rights of way, but of his other rights as owner of that house and land abutting thereon, and that they ought not to be permitted by this court to proceed therein.</p> <p>The judge ruled that the defendant’s deed of his land gave him no title in any part of the land included in the limits of the court, and no right or interest therein, except the right to use it as a way for the purpose of passing and repassing thereon, and that the raising of the grade of said way was not in violation of any rights of the defendant, except so far as it might obstruct his use of said court for said purpose as a way; that the plaintiffs, or some of them, being owners of the land included in said court, and of rights of way in common over and through the same, they might lawfully raise the grade of said court against the defendant’s land, provided the defendant’s use of said way and access thereto were not obstructed or rendered difficult or inconvenient. The judge found on the evidence that the proposed change of grade was a reasonable one to be made for the Eon venient use thereof by all the persons interested therein, and that the provisions made in the decree hereafter stated, if complied with, would make the defendant’s access and means of approach to said way, and to his land and buildings from said way, reasonably convenient for the use of his said land and buildings.</p> <p>The judge then made the following decree:</p> <p>“ This cause came on to be heard at this term, and was argued by counsel; and thereupon, upon consideration thereof, it is ordered, adjudged and decreed as follows:</p> <p>“ First. That the plaintiffs are entitled to improve, raise and grade the way called Regent Court, and to establish the grade thereof in such manner as will best subserve the convenience, in the use thereof as a way, of all the several persons owning lands abutting on said court, and entitled to use the same, provided •the access, or means of access, of the defendant to said court for the purpose of using the same as a way for the convenient occupation of his land abutting on said court, and the buildings thereon, be not obstructed oí made difficult, or otherwise unrear sonably affected, except so far as necessary during the progress of the work herein provided for.</p> <p>“ Second. That the plaintiffs may proceed to improve and grade said court, and put the same in suitable condition for use as a way, for the convenience of all said owners abutting thereon, having regard also to the convenience of the defendant in respect to his access, or means of access, to said court from his said land and buildings for all purposes for which he may have occasion to use said court as a way.</p> <p>“Third. In doing said work of improving said court, the plaintiffs shall (if the defendant will permit them, or such persons as may be employed to do the same, to enter upon his land for that purpose) construct such steps, stairs, causeways, roadways, walls or structures, do such filling and grading, and make such other changes in and upon said land, as shall be reasonably necessary to secure to him for his said land and buildings convenient approaches and access to said court for all purposes of use thereof as a way for the convenience of his said land and buildings. But if the defendant snail decline to permit sue! entry upon his land, then the plaintiffs shall pay to the defend ent such reasonable sum as will enable him to construct and pro» vide for himself such approaches and means of access from his said- land and buildings to said court, the amount thereof to be estimated by the engineer hereinafter named, subject to revision by this court, and paid to the defendant, or into court for his use, before raising said way against his said land.</p> <p>“ Fourth. Profiles or plans and measurements for the grading and improvement of said court, and also for such structures and changes as may be required or proposed to be made upon the land of the defendant, for securing his means of access to said way, shall be prepared and laid before said engineer for his approval, before proceeding with said work, and the same shall be modified in such manner as he may require and direct, and the work when done shall conform thereto, and shall in all respects be done to the satisfaction and approval of said engineer.</p> <p>“ Fifth. Thomas W. Davis is appointed to supervise said work, approve the plans, and direct their modification, if he shall see cause so to do, estimate the amount' to be paid to the defendant as hereinbefore provided, if called upon so to do, and examine and approve or disapprove the work when completed.</p> <p>“ Sixth. The defendant is enjoined from obstructing, hindering or interfering with the plaintiffs, their agents or servants, in the work of grading and improving said court, if and so long as they comply with the requirements of this decree.</p> <p>“ Seventh. The case is to stand for further directions in respect to the execution of this decree, or such final order as may b® necessary.”</p> <p>The defendant appealed from this decree; and the plaintiffs appealed from so much of said decree as required them to make expenditures outside of the limits of Regent Court.</p>

Contract. The first and third counts of the declaration alleged that the plaintiff sold to the defendant a certain piece of' land on Joy Street in Somerville, and ten shares of the capital stock of the American Steam Safe Co., and received in payment therefor from the defendant four hundred shares of the capital stock of the Haverhill Lime Co., of which the par value was $5 per share; that the defendant at the time, and in consideration of tins sale, agreed to buy the four…

<p>Petition by James F. Smith and John H. Le Cain to enforce a mechanic’s lien under the Gen. Sts. c. 150, for work done upon a block of five houses on Dennis Street in Boston.</p> <p>The certificate, filed by the petitioners in the office of the city clerk on March 7, 1873, set forth that the petitioners had a claim against William Eadie and Theodore G. Brown, late co-partners under the firm name of Eadie & Brown, amounting to $400, according to an account annexed and made part of the certificate. The first item of this account, under, date of February 6, 1873, was : “ For 247§ days’ labor on five houses on Dennis Street, in Boston, $1050.” The other items were various credits, made in 1872, amounting to $650, leaving a balance of $400. The certificate then set forth that the claim was made for and on account of labor performed and furnished in the erection of five brick houses on land owned by Benjamin P. Norris, and situate on Dennis Street in Boston, and described their situation on the street; that the houses constituted one block; that the labor was performed and furnished in and upon said houses by virtue of a contract entered into on September 24, 1872, between the petitioners of the one part and Eadie & Brown of the other part, a copy of the contract being annexed and made part of the certificate; * that the petitioners had performed and furnished labor under the contract upon said houses to the value of $1050, and had received the sum of $650, leaving a balance due of $400; that the completion of the work was stopped without any fault on the petitioners’ part; and that they ceased laboring upon said houses on February 6, 1873. The petition also set forth a claim for extra work done on said houses in accordance, with directions given from time to time by Eadie & Brown, amounting to $65, after deducting all just credits; and claimed a lien upon said houses and the land under them.</p> <p>The case was sent to an auditor, who found that the respondent was the owner of the land described in the petition; that on August 20, 1872, he and Eadie & Brown «made and signed the following contract under seal:</p> <p>“ Agreement of sale made and concluded this twentieth day of August, A. D. 1872, by and between Benjamin P. Morris, of Boston, in the county of Suffolk, of the first part, and William Eadie and Theodore G. Brown, both of said Boston, of the seoond part, witnesseth, that the said Morris agrees to sell and convey, and said Eadie & Brown agree to purchase, a certain parcel of land situated on the northwesterly side of Dennis Street in said Boston.” Then followed a description of the land. “ Said Eadie & Brown agree to pay for said land at the rate of one dol lar per square foot, being sixty-eight hundred and four dollars in all, and interest as hereinafter stated. Said Eadie & Brown are to commence immediately to erect on said land five two-story and French roof brick dwelling houses, each measuring at least seventeen feet front by thirty-seven feet deep, with two-story bay windows, and each house containing ten rooms and cellar, and being fitted for two families, with separate gas-pipes for each family, to be finished in good style, and each house to cost not less than thirty-five hundred dollars above the land. And said Morris is to advance to an amount not exceeding two thousand dollars in money and materials for the building of each of the said houses, at such times and in such amounts as he shall deem safe and expedient, reference being had to the progress of the said buildings. Deed or deeds of said premises free from all incumbrances, shall be given within seven months from this date by said Morris, provided always said Eadie Sc Brown shall, within said period, pay to said Morris all of said purchase money, together with taxes and interest thereon from this date at the rate of seven and T3T per centum per annum; and all moneys advanced by said Morris, together with interest thereon, at the rate of eighteen per centum per annum, from the respective times when such advances are made, and the value in money of all materials furnished by said Morris or procured by his order or indorsement, together with such interest or expenses on the same as the said Morris may be obliged to pay. But if said payments are not made within said period of seven months, thei this agreement is to be null and void.”</p> <p>Indorsed upon this contract was an assignment by the assignee in bankruptcy of Eadie & Brown, dated February 18, 1873, of all their rights in the contract to Isaac G. Caswell; and an agreement, dated February 21, 1873, signed by Norris, whereby he agreed to be bound, by all the covenants contained in the contract, to Caswell and one Weeks, as fully and completely as though the contract had been originally executed by them, and extending the contract to June 20, 1873.</p> <p>The auditor further found that on September 24,1872, Eadie & Brown, with the knowledge of the respondent, entered into the contract with the petitioners, as alleged in their petition; that the petitioners, with the knowledge and consent of the respondent, proceeded to build the houses as required by the contract ; that most of the carpenter’s work necessary to be done, before the houses were plastered, was done before December 12, 1872, on which day Eadie & Brown filed a petition in bankruptcy; that the petitioners were prevented from completing their contract with Eadie & Brown, by the failure of the latter to furnish the materials, as required by the contract; that some work was done by the petitioners after December 12, 1872, on one only of the houses, which work Avas done in good faith, with the expectation that they were to go forAvard and finish the work under the contract; that the labor on the houses ceased on February 6, 1873 ; that five eighths of the entire work called for by the contract was performed by the petitioners at the time the labor ceased; that one or the other of the petitioners either had knowledge of the bankruptcy of Eadie & Brown prior to February 6, 1873, or had knowledge of such facts as should have put them on inquiry; that the value of this work was §937.50; and that the petitioners were entitled to receive therefor the sum of §287.50, being the amount remaining after deducting §650, the amount of money received. The auditor also found that the petitioners had done extra work, with the knowledge and consent of the respondent, to the amount of §65, for which they vere entitled to a lien; and that they were entitled to recover as compensation for the work done under the contract and for extra work the sum of §352.50.</p> <p>The Superior Court ordered judgment for the petitioners fof $357.79; and the respondent appealed to this court.</p>

<p>The extent of an invention claimed in letters patent is to be determined by the specification, which is to be construed by the court; and testimony of experts that, at the time the letters were issued, the invention, as described and claimed therein, was not novel, is inadmissible to control or limit the construction to be given to the specification.</p> <p>The description of an invention claimed in letters patent was “ a seat, moving upon a cross shaft or hinge in such manner as that the seat or front sitting portion thereof can be turned up or elevated to afford room in passing into or out of the seat or past it, and said seat forming a lever that, when down or adjusted to a sitting level, strikes and is supported by a stop, which may be located in rear of the seat fulcrum, and serves to sustain the seat and person occupying the same, the seat being extended backwards in rear of its fulcrum and coming up under said stop.” The specific claim was for “ a swinging or lever seat, set and moving upon a cross shaft or hinges, and sustained when in use by a stop or stops so disposed as that the rear portion of the seat comes in contact with said stop or stops when the seat is turned down, substantially as herein set forth ; and whether combined or not with weights or springs whereby the said seat may assume and retain a vertical or raised position automatically, as herein specified.” Held, that this patent was for a tilting seat, suspended upon a pivot back of the centre, and sustained as a lever under the weight of the sitter by a stop or stops bearing downwards at the back of the seat or in rear of the pivot, thus dispensing with supports in front of the fulcrum; that it was not limited to the particular form and position of the several parts by which this was effected as shown in the specification ; but that if in another chair the like results were accomplished in substantially the same manner, the latter was an infringement, notwithstanding differences in the form, appearance and arrangement of th# ports.</p> <p>An invention embracing as an essential part of its device one for which a former patent has been issued, is not less an infringement thereof by reason of its containing something additional, itself patentable as an improvement.</p> <p>Whether a patented invention is or is not an infringement of a prior patent is a question of fact for the jury.</p> <p>A patentee of a chair granted the exclusive right to make and sell the chair within the United States, and covenanted not to grant a license to any other person to make or sell chairs of the kind. He subsequently made an agreement under seal with a third person, the later patentee of another chair, reciting that a suit which had been brought by a former licensee under the first patent against the Jater patentee, for an infringement of the former patent, had terminated in favor of the later patentee and had been dismissed because it was held that the chair made by him was not deemed an infringement of the earlier patent, and agreeing for a money consideration to abide the decision in the said cause and to make no claim against the later patentee on account of any chair made or to be made under his patent. The suit referred to had in fact been dismissed by an arrangement of the parties thereto. Held, that if the chair of the later patentee was in fact an infringement of the earlier patent, the agreement with him was in substance a license, and constituted a breach of the covenant in the earlier agreement; and that after the execution of the contract with the later patentee neither the earlier patentee nor his first licensee could maintain any proceedings against the later patentee for making the chair patented by him on the ground of infringement of the earlier patent.</p> <p>A patentee, reciting the issue of his letters patent, but not describing himself as the inventor of the improvement, granted an exclusive license to make and sell the same “ as patented under and by said letters patent,” and covenanted not to grant licenses to any other person to make and sell articles of the same character, and also to institute or cause to be instituted legal proceedings against all parties who might infringe said letters patent, and to exercise due diligence in such proceedings so as to restrain such parties as promptly as possible, in order that the licensee might enjoy the exclusive privilege of making and selling the articles in question without competition. Held, that this agreement did not amount to a warranty that the licensee should enjoy the privilege against persons not claiming rights under the licensor; nor estop the licensor to show that his patent was invalid, byway of affecting the damages in an action against him by the licensee for breach of the covenants to sue infringers and not to grant other licenses.</p>

Contract. Writ dated March 1, 1870. On the same day, the real estate of the defendant in the county of Suffolk was attached. The declaration contained four counts. The first three counts were for breach of alleged contracts between the plaintiff and the defendants for services and materials in building the defendant’s railroad and filling its flats.

Trustee process. The case was submitted to Ames, J., and by him reported to the full court, upon an agreed statement of facts, signed by the counsel of the plaintiff and of the claimant only, in which it was agreed that the trustees should be charged or discharged upon their answer, according to the opinion of the court upon the following facts: Samuel B. Rindge and Hales W. Suter, summoned as trustees, were parties of the second part to an indenture executed March 3,1873,…

Tort for slander by the female defendant. The answer of the husband set up that he was improperly joined in the action. At the trial in the Superior Court, before Putnam, J., the de fendants requested the judge to rule that the plaintiff could not recover against the husband, he being improperly joined. This ruling was refused. The jury returned a verdict for the plaintiff ; and the defendants alleged exceptions.

Contract upon a policy of insurance on a house issued May 24, 1872, by the defendant to the plaintiff, containing the following provision: “ And the assured hereby covenant and engage that if the assured shall have made or shall hereafter make any other insurance upon the said property without the knowledge and consent of the said' company, or if the said property should be removed without necessity to any other place, or if the situation or circumstances affecting the risk…

Contract upon a bill of exchange, dated September 9, 1873, drawn by Henry Clews & Co., upon Clews, Habicht & Co. of London, payable thirty days after sight to “ F. A. Hawley & Co., Agents,” indorsed by “ F. A. Hawley & Co., Agents,” to the order of W. A. Chase, who indorsed it in blank.

Trustee process. The case was submitted to the Superior Court, and, after judgment discharging the trustees, to this court, on appeal, on an agreed statement of facts in substance as follows : F. L. Toppan & Co. were sub-lessees of the defendant of a store in Boston, No. 778 Washington Street, and were summoned as trustees in this action September 24 and October 1,1874.

<p>Under the Gen. Sts. c. 26, § 39, the owner of a vessel under quarantine regulations is not liable for the expenses of a seaman at a hospital, to which he had been transferred by order of the board of health of a town, and which was under their care.</p>

<p>The affidavit of no defence, authorized by the St. of 1874, c. 248, § 3, need not set forth that the action is brought for a debt or liquidated demand in money, payable by the defendant.</p> <p>The Superior Court has authority, independently of the St. of 1874, c. 248, to advance a case for speedy trial.</p> <p>A banking corporation organized under the U. S. St. of 1864, c. 106, brought an action, describing itself as the Merchants’ National Bank of Bangor, “ a corporate body organized under the laws of the United States of America, and having an established place of business at Bangor in the State of Maine; ” and, to prove its corporate existence, introduced a certificate of the comptroller of the currency that it had been duly organized, and the testimony of the bookkeeper of a bank in Boston that the Merchants’ National Bank of Bangor did a banking business under that name, that he had been in their banking-house in Bangor, was well acquainted with the cashier, and that his own bank was in the habit of receiving remittances from the Merchants’ National Bank of Bangor. Held, that the evidence was competent to show that the plaintiff was de facto a banking corporation and transacting business as such.</p>

<p>The owner of land is not liable for not preventing surface water from accumulating thereon and flowing thence npon the adjoining land of another, to his injury.</p>

Bill ut equity, filed October 5, 1875, by the administrator with the will annexed of Lucy Ann Sargent, to obtain the instructions of the court, and alleging the following facts: The will of the testratrix, dated January 25, 1867, and duly admitted to probate, was, so far as is material to this case, as follows: “ Third.

<p>Upon a petition for the abatement of an assessment laid by a city for the construction of a sewer, it appeared that culverts had been previously laid in the street and were used by certain unnamed abuttors on the street for the purpose of drainage. Held, that, in the absence of evidence that the culverts were laid out as sewers or that the petitioner drained or had any right to drain from his estate into them, the existence of the culverts could not affect the question whether his estate was benefited by the new sewer.</p> <p>An overestimate of the number of square feet in the estate of a person benefited by the construction of a sewer does not make an assessment by the city thereon invalid, if the estate was assessed no more than its just proportion of the expense of constructing the sewer.</p> <p>At the trial before a jury of a petition for the abatement of a sewer tax, the petitioner offered evidence tending to prove the relative benefit received by the various estates on the line of the sewer. The judge ruled that if the petitioner’s estate was benefited at all, it was to be assessed according to the value of the land, independently of the buildings, and that the relative benefit, which each estate on the line of the sewer might receive, was of no consequence in determining the amount of the assessment to be laid on the estate, and rejected the evidence. The jury, under this instruction, found that the petitioner’s estate was benefited by the sewer, and that the amount assessed upon it was a just proportion of the whole expense of the construction of the sewer. Held, that the jury, upon the appeal of the petitioner, had no authority to consider the relative benefit to other estates, and that the instruction was sufficiently favorable to the petitioner.</p>

<p>On a bill in equity to reform a policy of insurance by inserting a clause which it ia alleged the parties agreed to insert, the plaintiff cannot have issues framed for a jury as a matter of right; and the court will not in its discretion frame such issues, without evidence that the plaintiff’s suggestion of mistake in the contract has any foundation, or circumstances indicating that the matter can be more satisfactorily tried by a jury than by the court.</p>

Habeas corpus, issued March 13,1876, upon the petition of Ephraim D. Whitcomb, representing that he was unlawfully imprisoned and restrained of his liberty in the common jail in Boston, by John M. Clark, sheriff of the county of Suffolk; that the pretence of said imprisonment and restraint was a warrant or order purporting to have been issued by the common council of the city of Boston, a copy of which was annexed to the petition ; that the warrant or order had heen issued…

Contract against the maker and indorsers upon a negotiable promissory note, made by the defendant Taylor, payable to the other defendants., and by them indorsed to the plaintiff. On June 15, 1874, at a calling of the docket, in the Superior Court, the court ordered the action to be placed on the short list for trial, on June 22, 1874; and on that day the defendants were all defaulted.

<p>The recognizance required by the provisions of the Gen. Sts. c. 137, upon an appeal from the judgment of a justice of the peace in a civil action, is the assent to the ■words of the magistrate to the effect that the conusors acknowledge themselves to be indebted to the other party in a specified sum to be paid if the party appealing fails to enter and prosecute hi's appeal. A certificate thereof by the magistrate, sent with the copies of the case to the court appealed to, operates as a return of the recognizance to that court.</p> <p>At the bottom of a memorandum of a recognizance by an appellant from the judgment of a justice of the peace in a civil action, to prosecute his appeal, below the signature of the magistrate, was an attestation by him that the paper was “ a true copy." Held, that this attestation might be treated as surplusage.</p> <p>Upon an action by a conusee upon a recognizance to prosecute an appeal from the judgment of a justice of the peace in a civil action, the proper papers having been filed and an affirmation of the judgment obtained by the conusee, upon the failure of the conusor to enter his appeal, no further judgment of forfeiture or order that the recognizance be estreated is necessary to enable the conusee to enforce it.</p> <p>The certificate of a recognizance to prosecute an appeal from the judgment of a justice of the peace, recited that the conusee recovered judgment against the conusors “ for her title and possession in and to a certain piece of land, with the buildings thereon,” describing them, “ in a personal action ” brought by the conusee against the conusors. Held, that this sufficed to show that the case was under the Gen. Sts. c. 137, §§ 5-9, and that the magistrate had authority and jurisdiction to take the recognizance.</p> <p>The condition of a recognizance upon an appeal from the judgment of a justice of the peace in an action of forcible entry and detainer was, by the memorandum returned, that the conusors prosecute their appeal “ and pay all rent- due and to become due, and all intervening damages and costs.” Held, that the expression "rent to become due” must be construed to mean intervening rent, and was in substantial conformity with the Gen. Sts. c. 137, § 9.</p> <p>That a person was induced to become a surety on a recognizance by fraudulent representations does not affect the right of action against him of a conusee not a party to the fraud.</p>

<p>On the issue whether the location of land taken by the selectmen of a town for the purposes of a school-house, under the Gen. Sts. c. 38, § 38, was, as required by the Gen. Sts. c. 43, § 65, “ filed in the office of the town clerk seven days at least ” before the town meeting at which the doings of the selectmen were approved, it appeared that the town clerk prepared this location and left it in the safe belonging to the town at his house, which was his only office as clerk; that two days after this, and more than seven days before the meeting, a majority of the selectmen called at his house, in his absence, procured the paper from his wife and affixed their signatures to it; and that the clerk never saw the paper from the time he deposited it, unsigned, in the safe, until he found it there on the day of the town meeting, though he was informed by his wife that the selectmen had signed it, Held, that the paper was duly filed.</p>

<p>The town of Charlestown in 1640 established a ferry across Mystic River, both landing places being upon the town’s territory, and constructed and afterwards maintained ferry ways upon each side of the river across the flats from high to low water mark for the accommodation of travel across the ferry. Certain lands on each side of the river, together with “ the beach leading from the upland to the ferry ways,” and “ the ferry ways on each side of the river,” were conveyed by the town in 1755 to an individual, and reconveyed by him in 1784 to the town. In 1788, after the building of Malden Bridge across the river, just west of the ferry way, the town conveyed “ the old ferry ways on the flats the southeasterly side of Malden Bridge on both sides of channel.” The ferry ways from high to low water mark were permanent structures of stone and wood. Meld, that this conveyance included the land under and used with the ferry ways between high and low water mark, and that the easterly boundary line ran from the upland, parallel with the general course of the ferry way, to low water mark.</p>

<p>A testator left the residue of his property “ to the children of my brother A. by hia present wife, and the survivors of them, and to the children of my nephew B. and the survivor of them, their heirs and assigns forever.” At the death of the testator, A. had eight children, and B. had two. Held, that the children of A. and of B. took par capita and not per stirpes.</p>

<p>Contract against the executor of John W. Graves. The declaration contained two counts, the first of which was for money had and received to the plaintiff’s use by the said Graves. The second count was for professional services and disbursements. The answer alleged, among other things, that if the testate was ever indebted to the plaintiff, as alleged, he was jointly indebted with one Henry H. Fuller, now living, and that the plaintiff had elected to prosecute his suits, for the indebtedness and identical subject-matter in each count contained, against Fuller to final judgments, which judgments had been against the plaintiff, and in favor of Fuller. The case was submitted to the Superior Court upon an agreed statement of facts in substance as follows :</p> <p>Each count declares on a distinct and separate demand. The indebtedness in the second count, if any, (which the defendant does not admit,) was originally the joint indebtedness of the defendant’s testate, John W. Graves, and Henry H. Fuller. A suit was formerly brought by the plaintiff, for this identical demand against Graves and Fuller, in the lifetime of Graves. Upon the death of Graves during the pendency of the suit in court, the plaintiff discontinued against Graves, and prosecuted his suit to final judgment against Fuller alone as the survivor of the joint debtors. On trial by jury, verdict and judgment were in favor of Fuller, the defendant, who obtained judgment for costs, which have been paid on execution.</p> <p>A suit for the identical demand sought to be recovered in the first count was formerly brought by the plaintiff against John W. Graves in his lifetime. After suit brought and after the death of Graves, the plaintiff by order of court, on motion, summoned Henry H. Fuller into court as a joint debtor, contractor and defendant, with Graves, alleging that he was such in his motion to summon him in. Fuller was thus joined as a joint debtor and defendant with Graves. Graves dying pending the suit in court, the plaintiff discontinued as to Graves and prosecuted his suit to trial, verdict and judgment against Fuller alone as the surviving joint debtor. The ground of procedure against Fuller, through trial and up to final judgment was, that he was a joint contractor and debtor with Graves, and the trial was conducted on that ground. Verdict and judgment were in favor of the defendant, Fuller, who obtained a judgment for costs against the plaintiff, which has been paid on execution.</p> <p>Upon these facts Putnam., J., ruled that the action could not be maintained, and ordered judgment for the defendant. The plaintiff appealed.</p>

<p>Contract against a common carrier between Boston and Somerville, to recover the value of a hogshead of molasses.</p> <p>At the trial in the Superior Court, before Rockwell, J., it appeared that the plaintiffs employed the defendant to transport a hogshead of molasses from Boston to their grocery store in Soinerville; that' the defendant did transport it in his wagon to Somerville at a point near their store; that the plaintiffs then directed him to unload it to and upon the piazza of the store; that he backed his wagon to within a few feet of the piazza, and skids or wooden supports were then placed from the piazza to the wagon; that then the parties undertook to roll the hogshead from the wagon to the piazza, and, when it was upon the skids between the wagon and piazza, one of the skids broke, which caused the hogshead to fall and its contents to be destroyed. It further appeared that the skids were furnished by the plaintiffs, and that the defendant requested the plaintiffs to furnish them, and that the breaking was attributable to the fact that a piece had been sawed out of the under side of the skid, which broke.</p> <p>The defendant offered evidence tending to prove that it was the universal and well known custom and usage in Somerville and the suburban cities and towns for grocers to keep and furnish skids, whereon to remove heavy articles from common carriers’ wagons to their grocery stores, and for carriers not to furnish skids, and that it was the plaintiffs’ duty in this case to furnish the skids; also that the skids so furnished appeared to him to be suitable, and that the defect, which caused the accident, was not apparent, and in fact was not seen by him, and requested the judge to instruct the jury, “that if they should find that it was the duty of the plaintiffs to furnish proper skids upon which to receive the hogshead, and that they did furnish skids therefor, which appeared suitable to the defendant, he would not be required to make a critical examination of them, and would not be liable for an accident to said hogshead caused by a defect in them, which he did not see, and which was not ordinarily apparent.”</p> <p>The judge declined to instruct the jury in this form, but did rule and instruct them as follows : “ The duty of the defendant was to deliver the hogshead safely on the premises of the plaintiffs, using proper means and instruments. The mere fact (if it is a fact) that the usage is that grocers furnish the skids, does not alter the duty of the defendant to deliver the hogshead on the plaintiffs’ premises. The carrier, by that fact,' and the other fact that the plaintiffs did furnish the skids at the request of the defendant, was not relieved of further duty after the hogshead passed upon the ends of the skids. He was still bound to use proper care in the use of proper skids. He had no right to use insufficient skids, although the skids produced at his request were furnished according to usage by the plaintiffs. He, the defendant, was still bound to use proper skids. The plaintiffs were not warrantors that the sldds were sufficient to carry the hogshead to the sidewalk on the plaintiffs’ premises. If there was a latent defect in the skids, known to the plaintiffs and not known to the defendant, and not observable by ordinary skilful observation before using, the defendant would not be liable. The question as to usage, though of some importance, is not decisive of the case, but the previous considerations must also be regarded. The mere fact that the skids were furnished in compliance with usage by the plaintiffs does not alter the period when the delivery is completed. The period of completed delivery by the carrier is the same, whether the skids are to be furnished by the plaintiffs or by the defendant.”</p> <p>The jury returned a verdict for the plaintiffs; and the defendant alleged exceptions to the rulings and refusals to rule as requested.</p>

<p>The service of a writ of execution, duly commenced by a constable, may be completed by him after the expiration of his term of office.</p> <p>A demand upon trustees of an execution debtor named in the writ of execution, and a search for goods and effects of the debtor, is such a commencement of service oi the execution as will warrant a constable in completing the service, after the expi ration of his term of office, by an arrest of the debtor.</p>

<p>A poor debtor, who has entered into a recognizance under the Gen. Sts. c. 124, § 10, to deliver himself up for examination, commits a breach thereof, if at the time and place appointed he appears, and objects to the commencement of the examination, until the execution upon which he was arrested is produced; and the refusal of the magistrate to order the examination to proceed is immaterial.</p>

Bill in equity by the assignee in bankruptcy of Daniel P. Emerson, to redeem certain lands from a mortgage given by Emerson to John Sawyer, to secure the payment of $4500, and assigned by several conveyances to the defendant. The bill alleged that the debt for which the mortgage was given had been all paid, except the sum of $800 and interest from August, 1873, and that before this suit was begun the plaintiff was ready and offered to pay that sum to the bank.

<p>■ Under the St. of 1869, c, 391, § 5, which provides that “any person” whose land has been filled up for the abatement of the nuisance contemplated by the statute, if “ dissatisfied with the assessment of the expense of raising the grade of his said land, may give notice thereof to said mayor and aldermen, within sixty days after he shall receive notice of said assessment, and the city of Cambridge shall thereupon take said land,” one who owns as tenant in common an undivided part of such a piece of land may surrender to and require the city of Cambridge to taka such interest.</p>

Contract to recover $400 for services rendered the defendant town as chief engineer of the fire department, for the year ending April 30, 1874. Trial in the Superior Court, before Brigham, C. J., who ruled that the plaintiff could not maintain his action, and allowed a bill of exceptions, the substance of which appears in the opinion.

<p>Bill is equity, filed February 12, 1874, against Elizabeth Cole, and the heirs of Andrew Cole, to restrain them from taking down a building owned by the said heirs, which had been injured by fire, and a portion of which had been leased by Elizabeth Cole to the plaintiff.</p> <p>The bill set forth the leases, alterations and improvements of the plaintiff; alleged that the building had been partially destroyed, and that Elizabeth Cole the tenant for life of the estate and some of the other defendants, owners of the reversion, pretended and claimed that by the partial destruction of the building the leases of the plaintiff and his estates thereunder had been determined; that all of the defendants were engaged in tearing down the building to remove the plaintiff’s property therefrom and intended to dispossess the plaintiff, and prayed for an injunction to restrain the defendants from so doing and for general relief.</p> <p>The answer admitted the leases, averred that the building had been substantially destroyed by fire, that the plaintiff’s leases and estates had been thereby determined, and alleged that the defendants had a right to enter, tear down the remains of said building and dispossess the plaintiff.</p> <p>A supplemental bill was filed October 5, 1875, setting forth the tearing down of the building and the erection of a new building on the land, and prayed that portions of the new building might be assigned and set out to the plaintiff, for damages and other relief. The answer admitted the entry upon and taking possession of the premises described and the removal of the ruins and debris of the building, and set forth that the defendants had erected, upon the site of the old one and the yard or passageway, a new brick block, and that in so doing they had removed a structure over said yard or passage erected by the plaintiff without right; and alleging that, whereas the old building was a wooden structure of long standing, of two stories in height, valued at $8000, the new building cost $40,000, was of brick, three stories high above the cellars, and much higher in the walls and in the height of the rooms on each floor than the old building; that it covered much more ground and was very Rifferently divided into separate tenements; and set forth a deicription of the new building and alleged that a considerable portion of it was leased to tenants, and denied that the plaintiff was entitled to any relief.</p> <p>Hearing before Wells, J., who reported the case for the con sideration of the full court. The material facts of the case appear in the opinion.</p>

Bill in equity, filed May 22, 1874, to settle a partnership account between the plaintiff and defendant.

<p>Notice of the dishonor of a promissory note was seasonably sent by mail, addressed to the indorser at Townsend, where was the principal post-office in the town in which he lived. There was evidence that the indorser usually received his letters at the West Townsend post-office, and that the plaintiff knew that he lived and that there was a post-office at West Townsend, and had visited and done business with the indorser there. Held, that the judge, sitting without a jury, was warranted in ruling that the notice was insufficient.</p>

<p>CONTBAOT against Abram Bachelder and Joseph C. Bachelder to recover $300 for work done by the plaintiff in advertising their business. At the trial in the Superior Court, before Brigham, C. J., without a jury, the following facts were found:</p> <p>The plaintiff, in January, 1873, was the proprietor and pub« lisher of a monthly magazine published in the city of New York, and one Nelson was his authorized agent to make contracts for advertisements in the magazine, and as such agent on January 24, 1873, made the following contract in writing, signed “ A. Bachelder & Co.,” with the defendant Joseph C. Bachelder, acting on behalf of both the defendants, for an advertisement of “ bay windows ” manufactured by the defendants:</p> <p>“Insert an advertisement in Manufacturer & Publisher for one year, commencing Feb. No. 1873, to occupy 40 lines spaces. Payable as convenient, $300. This is to include illustration of cuts and sufficient editorial matter to describe satisfactorily, all to be submitted before inserted.”</p> <p>This contract was complied with by the plaintiff, as to time of advertisement, space of advertisement, in the magazine, illustration of cuts, editorial matter, &c., to the satisfaction of the defendants.</p> <p>The defendants, between January 24, 1873, and this action, June 19,1874, were in a financial condition which enabled them conveniently to pay the $300 agreed upon as the price of the advertisement, and never refused to pay the same on the ground that it was inconvenient to them to do so, and the judge found that, after repeated demands by the plaintiff that the defendants should pay this sum within a reasonable time after the year’s advertisement aforesaid, this action was not brought until a reasonable time- had elapsed after said advertisement was published for a year in the plaintiff’s magazine.</p> <p>Both parties, without objection by either, offered evidence at the trial as to the significance of the words “ payable as convenient ” in the defendants’ order for the publication of the advertisement, and the plaintiff’s acceptance of the order, and publication in conformity with it. The plaintiff’s evidence on this matter tended to prove that “ payable as convenient ” had this meaning: that the plaintiff’s usual terms of quarterly payments for yearly advertisements would not be insisted upon, but to enable the defendants to remunerate themselves by the profits of bay windows, expected to be ordered by reason of said advertisement, for the cost of the advertisement, the $800 might be paid by them at any time during the year of its publication. On the other hand, the defendants’ evidence tended to prove, and the preponderance of the whole evidence on that subject was to that effect, that if it was made to appear that bay windows sold by them on orders, which could be reasonably attributed to said advertisement, yielded profits equal to $300, that sum should be paid as the price of said publication, but not otherwise, the correspondence of the defendants to be exposed to the plaintiff’s inspection for the purpose of ascertaining how many of such orders were due to such advertisement. The judge found as a fact that the defendants received no considerable number of orders and made no considerable sales of bay windows, proved to be the direct result of said advertisement.</p> <p>Upon these facts the judge ruled that the plaintiff’s action could not be maintained, and ordered judgment for the defend ants. The plaintiff alleged exceptions.</p>

Appeal by David L. Marks from the decree of the Probate Court accepting the report of the commissioners appointed to make partition of the real estate of Moses B. Sewall, deceased, and confirming and establishing the partition.

<p>A written communication is EbeEous which tends to expose a person to reproach and disgrace.</p> <p>In an action for libel it appeared that the defendant was employed by the father of the plaintiff’s wife to accompany her home on a visit to her parents, and that the defendant was directed to make inquiries concerning the general standing of the plaintiff. On the return of the defendant, he reported the result of his inquiries to the father, and wrote the letter, aEeged to contain the libel, and to the same effect, to the mother of the plaintiff’s wife. Held, that the trust which the defendant had assumed, and the relation in which he stood to the parents of the plaintiff's wife, created an occasion which made the communication privileged, if fairly made. Held, also, that it was for the jury to decide, on the question of express malice, whether the defendant had made an honest report justified by the relations in which he was placed, or whether it was made with a purpose wrongfully to defame the plaintiff.</p>

<p>Complaint on the Gen. Sts. e. 50, § 24, to a trial justice, charging the defendant with exposing for sale shawls, cloths and other merchandise without posting his name, residence or number of his license in a conspicuous manner upon his parcels or vehicle.</p> <p>At the trial in the Superior Court, on appeal, before Brigham, C. J., it appeared that the defendant was a hawker and pedler, and had a special state license as such; that he went about offering goods for sale without having his name, residence and the number of his license posted upon his parcels, and used no vehicle. The defendant asked that he might be discharged, because the foregoing facts constituted no offence to which a penalty was by law affixed. But the judge ruled that the above constituted an offence for which the statute provided a penalty.</p> <p>The defendant then offered to prove that all the goods, wares and merchandise which he, as a hawker or pedler, carried about exposing for sale, were carried by him in the pockets of his coat, with the exception of two pieces of dress goods, which he carried open and uncovered upon his shoulder; and asked the judge to rule that the statute did not require the respondent’s nam,e, residence and the number of his license to be posted upon any such goods, wares or merchandise so carried. But the judge ruled that the statute required the defendant’s name, residence and the number of his license to be posted upon the goods, wares and merchandise so carried. The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Indictment for the murder of Mabel H. Young, at Boston in the county of Suffolk, on May 23, 1875. Trial and conviction before Colt and Lord, JJ., who allowed a bill of exceptions, the substance of which appears in the opinion.</p>

<p>Indictment charging the defendant in the first count with an assault with a gun on Henry B. Woodman, with intent to kill; and in the second count, with a simple assault and battery.</p> <p>At the trial in the Superior Court, before Brigham, C. J., it appeared in evidence on the part of the government, that on the morning of April 21, 1875, Woodman, who was then a constable of the town of Medway, made a complaint before one Deans, a trial justice, against one McKenna for drunkenness, and that Woodman went directly from the office of the magistrate to the house of the defendant, stopping on the way to take one Drake with him, not visiting the residence of McKenna, or looking elsewhere than at the defendant’s house for him. Woodman at the trial testified that, on the morning of said April 21, the wife of McKenna requested him, Woodman, to make a complaint on the charge of drunkenness against McKenna, and informed him that McKenna was then at the house of Reynolds, the defendant. This was the only evidence upon which Woodman appears to have acted in going to the defendant’s to arrest McKenna; and the government put in evidence tending to prove that, before breaking open the door of the defendant’s house, Woodman first rapped on the front door of the defendant’s house, but received no response; that he then went around to the back door of the house .and also rapped there, whereupon the defendant appeared at the window; that Woodman informed the defendant that he held a warrant to arrest a man in his house, but that he did not want him, the defendant, and he did not state to the defendant, nor did the defendant inquire of him, who that person was against whom he held the warrant; neither did he name the party he wanted to arrest. The government also introduced evi dence to the effect that the defendant stated three times tc Woodman that he should leave the premises, or he, the defend* ant, would kill said Woodman; that thereupon Woodman pro* ceeded forcibly to enter the back door of the defendant’s house, when the defendant shot at and hit Woodman.</p> <p>There was no evidence introduced by the government tending to show that McKenna was in the house at .this time, and the only evidence on this point came from the defendant and his witnesses, and was to the effect that McKenna was not in there at the time and had not been there on that day. And from all the evidence it appeared that he was not arrested there, but was arrested elsewhere on that day.</p> <p>The defendant denied that Woodman gave him any information as to his business there, and he and his witnesses testified that they did not hear Woodman inform the defendant that he held a warrant, or that he wanted to arrest any person, but they all testified that Reynolds ordered Woodman to leave his prem* ises, and did not fire until after so ordering Woodman, and until Woodman had broken open the door and was proceeding forcibly to enter the premises; the defendant also testified that he sighted his gun and aimed at the door and shot thereat, and that he had no intention to shoot or kill the defendant, but his purpose was only to intimidate Woodman; and the evidence introduced by the defendant was also to the effect that he had stated to his brother in law, who was in the room with him, that he had no intention of hitting Woodman. He also testified that he was accustomed to the use of the gun, and that the scattering of the shot was attributable to the firing through the window, as it did not usually scatter much at short distances.</p> <p>During the trial, and before the judge instructed the jury, the defendant requested him to give the following instructions :</p> <p>“ 1. Under this indictment the defendant cannot be convicted, if he could not be convicted had the assault been committed on a person not an officer, or on a person who had no legal right to forcibly enter the door.</p> <p>“ 2. The officer could not forcibly enter the outer door of the defendant at all, for the purpose of arresting a stranger on a charge of drunkenness.</p> <p>“ 3. If the >fficer could, under any circumstances, forcibly enter the outer door of the defendant to arrest a stranger on a charge of drunkenness, he could only do so if the stranger was actually in the house at the time.</p> <p>“ 4. The officer was not justified in breaking the outer door of the defendant’s house, if justified at all, to arrest a stranger therefrom, unless he has first stated to the occupant the fact that he had a warrant for the arrest of a person supposed to be therein on a criminal charge, and stated the name of the person sought after, and had been refused admission by the occupant, and this only upon reasonable proof that would justify the presumption that the person sought to be arrested was in the house at the time.</p> <p>“ 5. An ordinary supposition that McKenna was in the house of the defendant is not sufficient to warrant the officer in forcibly entering the defendant’s house.</p> <p>“ 6. If the officer was first seen by the defendant while in the act of breaking open the defendant’s outer door, the defendant was not required to inquire his business, if he notified him to leave, before he could repel the invasion of the officer.</p> <p>“ 7. If the jury believe that the defendant did not hear or understand that Woodman had a warrant to arrest any person in the house, but that he, the defendant, honestly believed Woodman was attempting an unjustified invasion of his premises, and acted upon that suggestion; then if he fired for the purpose of deterring Woodman from forcibly entering the defendant’s house, he cannot be convicted.</p> <p>“ 8. Even if the defendant exceeded his rightful powers, yet if he had no intention to kill Woodman, or was not actuated by a reckless or wanton disregard of whether he killed him or not, ne cannot be convicted on the first count.</p> <p>“ 9. Even if he had not the specific intent to kill, yet he must have had in his mind the probable fatal result of his act, otherwise an intent to kill cannot even be inferred.</p> <p>“10. The government must satisfy the jury that Woodman made his business and authority known to the defendant, before he, Woodman, could justify a forcible entry by the officer; if there is doubt on this point, the defendant must have the benefit of it.”</p> <p>The judge refused to give all but the 7th, 8th and 10th requests, but instructed the jury as follows:</p> <p>“ If the officer had a warrant directed to him as a constable of the town of Medway, authorizing and requiring the arrest of McKenna for the offence of drunkenness, and having an honest belief, induced by information which, reasonably considered, justified such belief, that McKenna was in the defendant’s house, and, for the purpose of arresting McKenna, went to the house of the defendant, notified him that he had a warrant for the arrest of a person in his house, and requested or demanded of the defendant admission to his house for the purpose of serving such warrant, and, upon the defendant’s refusal to admit him, proceeded to make a forcible entrance through an outer door of the defendant’s house, he was not a trespasser upon the defendant’s dwelling-house, whom the defendant might lawfully repel by force from his dwelling; and if under such circumstances the defendant committed an assault upon said Woodman, it was an unlawful and criminal assault and battery; and, if committed with an intent to kill said Woodman, or by wanton or reckless acts, the ordinary and natural consequence of which would be the killing of said Woodman, the jury would be justified in finding the defendant guilty of an assault with intent to kill, as alleged in the first count of the indictment; but if the jury should have reasonable doubt of such intent to kill, or of the wanton and reckless character or tendency to kill, of such acts, and at the same time should be satisfied beyond a reasonable doubt that the defendant’s assault was unlawful and criminal, he might be found guilty of an assault and battery, as alleged in the second count of the indictment, committed without intent to kill, and either of these findings, according to the evidence applying to each, would be justified, notwithstanding said McKenna was not in fact then in the house of the defendant, and said Woodman did not notify the defendant that he had a warrant for the arrest of McKenna, the defendant not having inquired or sought to know whom the person was whom said Woodman was attempting to discover and arrest.”</p> <p>The jury returned a verdict of guilty on the first count; and the defendant alleged exceptions.</p>

Indictment in three counts. The last count was as follows: “ And the jurors aforesaid, for the Commonwealth of Massachusetts, on their oath, aforesaid, do further present, that Lawrence Murphy and James Hyde, otherwise called Frank Hyde, of Boston, aforesaid, on the fifth day of May, in the year of our Lord one thousand eight hundred and seventy-five, at Boston, aforesaid, with force and arms, two thousand pairs of stockings, each pair of the value of one dollar, of the…

<p>Tort for the conversion of 114 bushels of oats. Answer, a general denial.</p> <p>At the trial in the Superior Court, before Brigham, C. J., the plaintiffs called one Hamilton, who testified that he was the local freight agent of the defendant at Springfield; that car No. 8761 came over the road in January, 1871; that a way-bill came with it, which he identified, and which was put in evidence; that the price of carriage is made when the carriage begins; in this instance at Peoria, Illinois; that this was way-billed as 20,000 pounds, at seventy-five cents per hundred pounds. The waybill was issued by the Red Line Transit Company, an association of railroads of which the defendant was one. The plaintiffs were named as consignees; the place of destination was Northampton; and the weight was stated to be 20,000 pounds. He testified further, under objection of the defendant, which was overruled by the court, that he delivered the freight to the Connecticut River Railroad; that, before delivering this car, he weighed it, and found that it contained 23,667 pounds of oats, and that he took out of the car — the oats being in bulk — 3667 pounds of oats, equal to about 114 bushels ; that he did this under instructions of the defendant, to take out the excess when cars contained more than the bill stated; that he bagged the oats, kept them two months or six weeks at the freight-house, and then sent them to the bam of the defendant, and did not know what became of them afterwards ; that he had no instructions whether to give the oats up or not, on payment of the freight; that the freight was collectable at Northampton, the point of destination; that he left 20,000 pounds of oats in the car; that so far as he knew there was nothing in the car billed to any one else than the plaintiffs, and that no one else ever claimed anything in the car to his knowledge; that it appeared from the way-bill that the oats named in it were transferred from car 530, at Toledo.</p> <p>On cross-examination, he testified that the way-bill was the only means the defendant had of knowing what quantity of oats was to be delivered to the plaintiffs; that no demand was ever made on the defendant for the oats taken out of the ear, nor any offer made to pay the freight on them.</p> <p>One of the plaintiffs testified, and was asked, “ Was your firm owners of a car load of oats in January, 1871?” The defendant objected to the question, but the court overruled the objection, and the witness answered “ Yes;” and testified, without objection, that the plaintiffs bought the oats of one D. J. Perry. He was asked how many oats he bought and paid for, the defendant objected to the question, but the court overruled the objection, and the witness answered, “ 24,330 pounds.”</p> <p>He testified further, without objection, that he paid for the oats by a draft made on the plaintiffs, accompanied by a bill of lading; and testified, on cross-examination, that the draft was for a considerably larger sum than would be the price of the quantity of oats named in the bill of lading; that the draft was for the price of 24,330 pounds, and the bill of lading named only 20,000 pounds; that the plaintiffs noticed the difference, but paid the draft; that they had previously received cars containing a larger quantity of grain than the bills of lading called for; that they never informed the railroads of the excess in cars and never paid freight on the excess, unless the roads discovered the fact that there was an.excess, and charged them freight on it, and paid such bills as were presented; that the plaintiffs received the bill of lading and draft long before the oats arrived, but did not notify the defendant nor any of the roads of there being an excess of grain in this car above the quantity billed; and that they bought the oats delivered on the cars at Peoria. He further testified, on reexamination, that the plaintiffs did not have any arrangement or understanding with Perry that the oats should be under-billed, and that no one ever made claim on them for any part of the contents of the car; that there was no arrangement with consignors to ship the grain under-billed, and that he had no knowledge that it was to be shipped otherwise than correctly.</p> <p>The plaintiffs then, not having given previous notice to the defendant to produce any letters, offered in evidence the following letter, signed by Hamilton, dated January 23, 1871: “In reply to your letter of 20th inst., relative to excess weight taken from cars, grain from the West, would say, we have been taking grain, &c., from cars which we have received, when they have been way-billed under weight, and have taken some from cars 2823 and 3761, consigned to you.” The defendant objected to the admission of the letter, but the court overruled the objection, and it was admitted and read to the jury. There was no other svidence in the case.</p> <p>The defendant asked the judge to instruct the jury as follows: “ 1. That if Perry, knowing that the oats weighed 24,330 pounds, gave their weight to the railroad company, or caused them to be billed as 20,000 pounds only, intending that they should be carried as only 20,000 pounds, and freight paid thereon as only 20,000 pounds, it was a fraud on the roads, and there was no such delivery of the excess of oats on the cars, as would pass the title to the plaintiffs.</p> <p>“ 2. That if the plaintiffs, knowing that the oats were under-billed, suffered them to come on without notifying the road of this fact, intending to take them without paying freight on the excess, unless the railroad discovered the discrepancy between the weights billed and the actual weight, this was a fraud which would prevent their maintaining this action.</p> <p>“ 3. That on the evidence, there being no other evidence that the plaintiffs made any demand for the excess of oats, nor any offer to pay the freight on the excess, and it appearing that the defendant took the oats and put them into bags and kept them so, and it not appearing that the defendant would not have forwarded them on "an offer to pay freight being made, the plaintiffs cannot maintain this action.”</p> <p>The judge refused to give either of the instructions asked for, and instructed the jury to return a verdict for the plaintiffs; the defendant making no objections, other than those hereinbefore set forth, and consenting to such verdict saving the above exceptions. The jury returned a verdict for the plaintiffs; and the defendant alleged exceptions.</p> <p>The case was argued in September, 1875, and reargued in March, 1876.</p>

<p>In an action for injuries sustained by the plaintiff in falling through a scuttle in the defendant’s store, the evidence was conflicting on the point whether the plaintifl had any cause of action against the defendant. The defendant, against the objeo. tian of the plaintiff, was permitted to introduce evidence that the plaintiff was in poor credit with the defendant; that at the time of the injury he was indebted to him about $2000; that after the injury, and before the action was brought, the plaintiff made various purchases of the defendant, one of which was on credit ■ that he had dunned the plaintiff, threatened suit for the amount due, and had been unable to collect it; and that during these transactions the plaintiff never made any claim such as he sought to enforce in this action. Held, that this evidence was competent, as bearing on the question, whether the previous conduct of the plaintiff had been consistent with his present claim.</p>

<p>An allegation that the “ defendant made a contract in writing ” is not supported by-evidence of a contract not signed by the defendant, and the objection of variance is open to the defendant, although he does not set up the statute of frauds in hie answer.</p>

Contract on an account annexed to recover $474, with inter est, for work done and materials furnished. 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 plaintiff made an oral contract with Henry Famum, of whose estate the defendants are trustees, to lath and plaster a certain building on Federal Street for the sum of forty cents per square yard.

Contract to recover the amount of taxes paid under protest. The case was submitted to the judgment of the Superior Court, and, after judgment for the defendant, to this court, on appeal, on an agreed statement of facts, in substance as follows : The plaintiff was incorporated under the St. of 1868, o. 114, and was authorized to hold real and personal estate to the amount of $200,000.

<p>Contract for breach of an agreement to sell fruit jars to the plaintiff. The answer contained a general denial, and set up the statute of frauds. At the trial in the Superior Court, before Rockwell, J„ the plaintiff put in evidence, to support the alleged agreement, the following letters, all dated July 2,1874:</p> <p>“ To Samuel Oakman, Esq.: Will you please send by bearer 6 blank letter heads on which we can write copies of your letter of yesterday, to enable our travelling men to bull the price a little on porcelain and glass top jars. We now have full supply of both, and if any of your customers can’t get enough, we will help you out at $16 qt. and $20 2 qt. Rogers & Co.”</p> <p>“ Messrs. Rogers & Co.: Yours of this date received. I a» eept your kind offer for porcelain and glass top fruit jars at $16 qt. and $20 half gals. Please book me for 500 gross porcelain lined jars, say three hundred gross qts., two hundred gross half gals. Make deliveries, one hundred gross per week, commencing next week any time after fifth inst. I am very glad to be helped out of my dilemma. Samuel Oakman.”</p> <p>“ To Samuel Oakman, Esq.: Our offer to you was based on & telegram from Consolidated Fruit Jar Co., and you can use this line for authority to take the offer in our place and so simplify the transaction, as we are willing to relinquish any benefit there may be in the trade, having, since writing you, concluded to accept a still better offer for another jar. Rogers & Co.”</p> <p>Upon this evidence, by the consent of parties, before verdict, the case was reported for the determination of this court upon the questions whether the letters created any contract between the parties, and whether the letters were a sufficient note or memorandum in writing of the contract within the statute of frauds. If the court were of opinion that the plaintiff could maintain his action, the case was to stand for trial; otherwise judgment for the defendants.</p>

Contract. The writ described the action as one of contract with a count in tort, and did not allege that they were for the same cause of action. The declaration contained two counts. The first count was as follows: “ And the plaintiff says the defendant owes her $45 according to the account annexed.” The account annexed was for rent of a room and board.

<p>Contract for rough calf skins, of the value of $1035, sold and delivered to the defendant. The answer contained a general denial, and set up the statute of frauds.</p> <p>After the former decision, reported 118 Mass. 143, the case was tried in the Superior Court, without a jury, before Pitman, J. The facts proved were substantially the same as at the former trial, except that the judge further found that the defendant came into the plaintiff’s store about noon on November 9,1872, and took the bill of parcels of the calf skins, and asked if his skins were ready; was told by the plaintiff that they were ready, and they were then pointed out to him, lying in the door way of the store, near which the parties were standing, and the defendant then passed out of the door where the skins were lying, saying he would send his wagon for them. The plaintiff requested the judge to rule that this was a sufficient acceptance of the goods to take the case out of the statute of frauds; but the judge declined so to rule, and ruled “ that there was not such an unequivocal act of acceptance on the part of the defendant as would take the case out of the statute, and found for the defendant ; ” and the plaintiff alleged exceptions.</p>

<p>Contract upon the following instrument, signed by the defendants : “ In consideration of one dollar paid to us by Melendy, Hixon & Co., of Boston, the receipt whereof is hereby acknowledged, we hereby agree to guaranty the payment to the said Melendy, Hixon & Co. for any goods which may be purchased of them by Alvah Wentworth, of Lynn, not however binding ourselves to become responsible for a larger sum than five hundred dollars, except by another special agreement. The above guaranty to remain in force until it is withdrawn by us.”</p> <p>At the trial in the Superior Court, before Pitman, J., the defendants contended that the guaranty was not a continuing one, and put in evidence tending to show an extinguishment of the guaranty by the defendants’ indorsing and paying certain notes of Wentworth. On this point the evidence was conflicting.</p> <p>The judge ruled that the guaranty was continuing; that the burden of proof was on the defendants to show an extinguishment or discharge of the guaranty by substitution or payment and found that the defendants had not established any such ex-tinguishment or discharge, by consent of parties, and ruled that the law did not imply such from the transaction itself. The defendants alleged exceptions.</p>

<p>Contract on an award. The ■ declaration alleged that the plaintiff was a special partner in the firm of Putnam & Alley, of which firm one George D. Putnam- and the defendant were the general partners; that ? controversy arose between the defendant and himself as to what amount was due to him from tne defendant in the settlement of the affairs of the firm; and they, by a submission in writing, chose and appointed two persons named to hear and finally determine for them said controversy, and mutually promised to stand to and abide by the award thereupon, and that the plaintiff was ready on his part to perform what the award required of him. The answer contained a general denial, and alleged that the award was not within the submission.</p> <p>The submission and award (copies of which were annexed to the declaration) were as follows :</p> <p>“ Know all men by these presents: That Reuben W. Hopkins, of Arlington, in the county of Middlesex and State of Massachusetts, and John H. Alley, of Lynn, in the county of Essex and State of Massachusetts, have agreed to submit the demand which the said Reuben W Hopkins has against the said John H. Alley, in the settlement of the affairs of the late firm of Putnam & Alley, to the determination of Benjamin F. Moore and William T. Foster, together with a third party if the said Moore and Foster cannot agree, the award of whom being made and reported within ten days from this day to the said Hopkins and Alley, the judgment thereon shall be final; and if either party shall neglect to appear before the referees after due notice given them of the time and place appointed for hearing the parties, the referees may proceed in his absence. John H. Alley,</p> <p>“ February 1, 1873. Reuben W. Hopkins.”</p> <p>“ We, the undersigned, do hereby decide, in adjusting the claim of Reuben W. Hopkins upon John H. Alley, in the matter of settling the copartnership between said Hopkins and Alley and George D. Putnam; that the said John H. Alley shall pay the said Reuben W. Hopkins the sum of one thousand nine hundred and ninety-eight riftr dollars, with interest at the rate of seven per cent, per annum from May 31,1871, when the copartnership ceased; upon receipt of which money or its equivalent said Hopkins shall furnish said Alley with release in full from George D. Putnam of any claim which the said Putnam may have upon the said Alley in copartnership existing previous to 31st May, 18n- ‘ BenÍ' F- Moore’ I Referees ”</p> <p>February 5,</p> <p>At the trial in the Superior Court, before Pitman, J., without a jury, the defendant asked the judge to rule, as matter of law, that the award was not within the submission; that the arbitrators had exceeded their authority thereunder and had determined matters not submitted to them; that the same was void and that this action could not be maintained thereon. But the judge declined so to rule, and ruled that the award was valid under the submission, and (the plaintiff consenting to reduce the interest to six per cent.) rendered judgment for the plaintiff for the amount of said award, and interest at the reduced rate. The defendant alleged exceptions.</p>

Contract on a policy of insurance by which the defendant insured the plaintiff against loss or damage by fire to the amount of $2000 on his “ stock of hair, wrought, raw and in process, as retail hair store, contained in three story granite building No. 315 Washington Street,” in Boston. The answer contained a general denial, and alleged that the description of the building in the policy did not correspond to the building containing the lost or damaged goods.

<p>Tort for personal injuries sustained by the plaintiff, a laborer in the employ of the defendants, who were contractors, engaged in digging a trench. Trial in the Superior Court, before Rockwell, J., without a jury, who allowed the following bill of exceptions :</p> <p>“ One Roberts was the foreman of the defendants, and had charge of the gang of workmen to which the plaintiff belonged, and he had directions from the defendants and acted continually under these directions. The plaintiff testified that he was at work in the trench, which uncovered an old sewer, at a place where the trench had been dug, some seven feet deep; that the foreman directed him to leave that place, and go farther up along the trench, where it had not been dug so deep, and shovel some dirt out that had fallen in; that at the top of the ground a crust, about a foot in thickness, was harder and more compact than the dirt and sand below, which latter had caved in, leaving the crust hanging over; that he told the foreman the top ought to be broken in before shovelling the dirt and sand out, but the foreman said there was no fear; that he made some attempt to bring down the crust, but the foreman said he would risk it; that while in the act of throwing out a shovelful of the dirt, a portion of the crust fell upon his legs, and threw him down upon the old sewer, and pinned him there till he was released by others, and that he was injured. There' was other testimony in the case, introduced by both sides, and some of it conflicted with the above testimony of the plaintiff, particularly in regard to the declarations and directions of the foreman at and before the time of the accident.</p> <p>“ Upon the whole evidence the judge found as matters of fact that the plaintiff was injured, that the injury was caused by the negligence of the defendants, and that the plaintiff was at the time in the exercise of due and ordinary care; and that these facts were proved affirmatively by the plaintiff by the preponderance of evidence.</p> <p>“ The defendants asked the judge to rule that the plaintiff, being injured by his own negligence or the negligence of his fellow-servant, could not recover of his employers; that as the plaintiff noticed the danger, and the condition of the bank and dirt, and yet continued to work, and was injured in consequence thereof, he could not recover. But the judge declined so to rule, as the request for instructions assumed facts which did not exist, and found for the plaintiff in the sum of $175. The defendants alleged exceptions.”</p>

Tout. The declaration contained two counts. The first was for the conversion of certain articles of furniture.

<p>Where legacies are given to the same person by different instruments, the general rule is that the second is to be treated as additional to the first, in the absence of anything signifying a different intention; but the apparent intention of the testator must govern.</p> <p>A will contained a bequest of $5000 to A. in trust, to pay the income to C. for life, and after his death to convey the principal in equal shares to his wife and daughter ; a devise of a house in G. to C.’s wife for life, with remainder to her issue; a pecuniary legacy to a servant; and a residuary devise and bequest to other persons. By a codicil the testator bequeathed $7000 to A. and B. in trust to pay the income to C., with no provision as to the remainder after his death, and devised the house in G. to him, and gave to the servant named in the will “ $200 additional, making in all $1000.” Held, that the bequest of $5000 in the will was wholly revoked by the codicil; that C. was entitled to the income of $7000 only; and that the residue of that sum, after his death, would go to the residuary legatees.</p>

<p>Contract on a recognizance entered into under the Gen. Sts. c. 124, § 17, by the defendant Robert H. Aldrich, as principal, and the defendants Munyan and Edwin D. Warfield, as sureties, and conditioned that Aldrich, who had been arrested on an execution in favor of the plaintiff, should, within thirty days from the day of his arrest, deliver himself up for examination before some magistrate authorized to act, giving notice of the time and place thereof in the manner provided by law, and appear at the time fixed for his examination, and from time to time until the same was concluded, and not depart without leave of the magistrate, making no default at any time fixed for his examination, and abide the final order of the magistrate thereon. The case was submitted to the Superior Court on an agreed statement of facts, in substance as follows :</p> <p>The plaintiff was duly notified of the defendant’s desire to take the oath for the relief of poor .debtors before Oliver Pease, on February 27, 1874, at ten o’clock in the forenoon, at the office of S. T. Spaulding, Esquire, in Northampton, and on that day the parties appeared, and the case was thence continued to March 13, 1874, at the same place, when the creditor filed charges of fraud, and upon them issue was joined, the debtor pleading not guilty.</p> <p>The examination of the defendant, which was taken wholly in writing, was thence continued to April 1,1874, at the same hour and place, at which time sundry witnesses were examined orally on behalf of the creditor, and gave testimony which was competent and tended to sustain the plaintiff’s charges of fraud. The case was thence further continued at the request of the debtor, to enable him to secure the attendance of the defendant War-field, a material witness on behalf of the debtor, as was alleged, to May 27, 1874, at the same hour and "place, against the objection of the creditor, who desired to proceed from day to day with the examination and evidence. Before May 27, Oliver Pease, who was a resident of Amherst, removed his domicil thence to Belchertown, and, on May 27, at said time and place, he attended; but as he did not act, and declined to act for the reason that he had changed his residence and removed from Amherst, A. Perry Peck, another trial justice for said county, was requested by the debtor to attend, and did attend at. that time and place, and ordered the examination on said application and charges of fraud to be continued to Wednesday, June 24, 1874, at said hour and place. The debtor and his counsel were present when said order for continuance to June 24, 1874, was made.</p> <p>The creditor objected in writing to the jurisdiction of Pease, and also to that of Peck, who is a joint debtor in this judgment and execution, and in no way relieved from his liability thereon, and had been examined orally before Pease as a witness called by the plaintiff on the said application and charges of fraud. The creditor did not further appear at any subsequent time and place, claiming that the debtor had made default. On said June 24, neither Pease nor Peck attended, and one Dwight, another trial justice, at the request of Aldrich, attended at said time and place, and certified that he attended in the absence of A. Perry Peck, and at the time and place to which said cause had been continued by said Peck, and that Aldrich desired to take the benefit of the law for the relief of poor debtors.</p> <p>Dwight was, upon an examination, satisfied of the truth of the facts set forth in the oath to be taken by the debtor, and in the certificate to be made by the magistrate. He there administered the oath, and made a proper record of his proceedings, if he had authority to act in the premises. No notice was given to the creditor of any hearing before, or of any application to, Dwight, except the knowledge of the continuance as before stated. No witnesses were heard by Dwight, and he wí s not made acquainted with the evidence before offered and heard by Pease.</p> <p>After the expiration of the hour, and after the oath had been administered, but while Dwight, Aldrich and his counsel were there remaining, Mr. Hammond, of the plaintiff’s counsel, entered the office, and was informed of what had been done, but made no request, and immediately retired, and did not appear for the purposes of that case.</p> <p>If default was made in the condition of said recognizance, judgment was to be entered for the amount of the judgment debt and interest; and if there was no default, judgment was to be entered for the defendants.</p> <p>Brigham, C. J., ordered judgment for the plaintiff; and the defendants appealed.</p>

<p>A motion for a trial by jury on issues of fact in equity should ordinarily be made before the case is referred to a master; and will not be granted after the coming in of his report, if the issue was made by the pleadings, and the case referred to the master without objection, and heard before him at great length, and the evidence before him is not reported, and there is nothing to show that the master’s conclusion is unsatisfactory or that the case can be better tried by a jury.</p> <p>On a bill in equity by the owner of a mill privilege against the owner of another mill privilege, lower down the same stream, to restrain him from maintaining his dam at too great a height whereby the water was set back, the report of a master, to whom issues of fact were referred, found that the setting back of the water was directly attributable to the maintaining of the defendant’s dam at a greater height than he was entitled to maintain it, and did not directly negative certain acts of the plaintiff which the defendant contended caused the water to set back. Held, that the report sufficiently passed upon the question at issue.</p> <p>The owner of an estate on a stream, entitled to a share in the water power belonging to an upper privilege on the stream, cannot affect the rights of the other owners in that privilege by a grant to.an owner of the lower privilege; nor by declarations in pais, made at the sale, as to what the rights of the upper privilege are.</p> <p>On a bill in equity by the owner of a mill privilege against the owner of another mill privilege, lower down the same stream, to restrain him from maintaining his dam at a greater height than he is entitled to maintain it, the defendant may have alleged infringements by the plaintiff, of his rights in the use of the stream, determined by a cross bill.</p> <p>If an easement is created by grant, it does not cease, although the necessity for it ceases.</p> <p>The owner of an upper and a lower mill privilege conveyed the upper privilege, reserving, for the benefit of the lower privilege, all the water, which could be drawn through the waste gate, when the water ran over the rolling dam. Held, that the reservation was general, however the lower privilege might afterwards be used.</p> <p>That unity of titles in the dominant and servient estates should operate to extinguish an easement, the ownership of the two estates should be coextensive; and if a person holds one estate in severalty, and only a fractional part of the other, the easement is not extinguished.</p> <p>The owner of an upper and lower mill privilege appropriated to the lower estate the water which would be conducted thither by the tail race of the upper estate, and conveyed the upper estate, but not the land between the tail race and the river, and the only way in which the water used on that portion of the upper estate could return to the river was through the lower estate. The purchasers of the upper estate afterwards opened a trench through the intervening land, against the objection of the owners of the lower estate, to whom the land belonged, by which the water of the tail race was discharged directly into the river. Held, that a subsequent purchaser of the lower estate had the right to object to this diversion of the water and to have the trench closed.</p>

<p>Contract upon two policies of fire insurance upon buildings and machinery at Plympton, in Plymouth County, issued by the defendant, a corporation under the laws of Connecticut. The policies each contained, after the statement of the property insured and the amounts of the insurance, the following clause: “ Reference is had to application on file at this office, which is hereby made a part of this policy and a warranty on the part of the assured,” and the further clauses that the company was not to be liable for loss or damage “ if the assured, in the written or verbal application for insurance, makes any erroneous representation materially affecting the risk,” and “ all persons having a claim under this policy shall give immediate notice and render a particular account thereof, with an affidavit stating the time and circumstances of the fire, the whole value and ownership of the property insured,” &c. The applications, which were dated May 16,187B, and signed “ W. & C. K. Taylor, by B. S. King, man,” contained the following questions, against each of which the word “No’’was written: “5. Is the property mortgaged; if so, to what amount ? 6. Is there any other party interested in this property.”</p> <p>The property insured was totally destroyed by fire on May 23, 1873. The notices to the company and claim stated that the whole value of the property at the time of the fire was forty-five hundred dollars or more, and that the property belonged to the plaintiffs, and no other person or party had any interest therein.</p> <p>At the trial in this court, before Morton, J., it appeared that the policies were issued by an agent of the defendant in this Commonwealth; and that at the time of the insurance there was a mortgage on the property, duly recorded, for $2500, on which $1800 only had been paid. There was also other evidence bearing upon the question whether Kingman had authority to sign the applications for the plaintiffs, which need not be stated.</p> <p>The judge reported the case for the consideration of the full court, judgment to be entered for the plaintiffs for $3050, with interest, if the plaintiffs were entitled to maintain their action; otherwise, for the defendant.</p> <p>The case was argued in October, 1875, and reargued in January, 1876.</p>

<p>In an action against a railroad corporation, by the administrator of a person so injured by being struck by a car, while crossing the railroad, that he died almost immediately, there was evidence that the railroad, running north and south, crossed a highway at grade near the railroad station; that, a short distance north of the highway, a side track branched off and crossed the highway a little easterly of the main track, and led into but not through the station; that the station was south of the highway; that the pathway, used by persons going to the station from the highway on the east side, crossed the side track oblique’y, the distance to the platform being one hundred and fifty-seven feet; that at the point where the path left the highway one could see up the track to the north for about one hundred and fifiy feet, and from the track itself for half a mile; that the person injured was going to the station to see his daughter ofi by a train which was then due; that the ground was frozen and slippery; that, as he approached the railroad from the east, a freight train was coming from the north, which kept upon the main track, except a single car, which was switched upon the side track; that, as he was crossing the side track by the usual path, he was struck by the detached car, which was moving rapidly, and without any signal or warning. Held, that, on this evidence, the jury would not be warranted in finding that the plaintiff’s intestate was in the exercise of due care. Guay, C. J., and Mobton, J., dissenting.</p>

<p>An award under an agreement of parties and rule of court cannot be impeached for error in the application of the rules of law, unless the terms of the submission or award expressly or impliedly subject the latter to the revision of the court. The statement of the grounds of the award, or of the conclusions of law adopted by the referees as applicable to the facts found by them, is insufficient.</p>

<p>Contract upon a policy of marine insurance. The case was submitted to the judgment of the Superior Court, and to this court on appeal, upon an agreed statement of the facts, in substance as follows:</p> <p>The policy issued by the defendant to the plaintiffs was for an insurance of $3000 on the schooner Thriver and her outfits, for a whaling voyage, the risk commencing on November 21, 1870, and to terminate upon her discharge at her port of discharge in the United States. The Thriver, while on the voyage insured, in 1871 and 1872, met with two partial losses amounting to $827, as made up by the adjuster; and on February 3, 1873, the vessel and the outfits insured were wrecked and totally lost by the perils insured against. The plaintiffs were first informed of the loss about twenty days afterward, and thereupon duly notified the defendant, and, after sixty days from the notice, requested of it payment of the amount of the insurance. This the defendant refused, upon the ground that the policy had been cancelled on February 4, 1873. On that day the parties, the president of the defendant company representing it, and both being ignorant of the loss of the Thriver, had met and made the following arrangement: the defendant claimed that the plaintiffs owed it then $1196 for money collected on premium notes as its agents in procuring marine risks in Boston; the defendant also claimed $360, being two years’ earned premium on said policy, made up to two years from the date of the policy, or thereabouts, that being about the time when the parties began to consider this settlement and specify their respective claims and make their figures, but which settlement was not consummated till February 4, 1873, and the amount of said earned premium was not changed from what it was put down in the beginning; the defendant also claimed $255 earned premium on a terminated policy on the brig F. H. Moore. The plaintiffs claimed said partial losses on the schooner Thriver, namely, $827. Neither the policy declared upon nor said premium notes were then present; but it was then agreed that said policy should, when found, be cancelled, as set forth in the receipt here inafter mentioned, and the cancellation bear date February 4, 1873, and be sent to the defendant. The premium notes were to be given up and sent to the plaintiffs, and the plaintiffs were to pay, and did pay, the defendant $400 cash at that time, and transferred to the defendant what insurance stock they then had in said company, which the defendant shortly after sold at auction for $430, or thereabouts; and the plaintiffs also, at the same time, discharged the defendant from all claims on account of said partial losses, and the parties passed the following receipts :</p> <p>“ Boston, February 4, 1873. Received of the Atlantic Fire & Marine Ins. Co. one dollar and other considerations, in full of all demand for losses claimed on schooner Thriver, and said Soper’s stock is hereby transferred to said insurance office as part consideration, and policy on Thriver is to be cancelled this day. R. Soper & Son.”</p> <p>“ Boston, Feb. 4, 1873. Rec’d of R. Soper & Son four hundred dollars and other valuable considerations, in full of all claims for moneys collected on premium notes to date, and for notes for premiums on notes on brig F. H. Moore, and for premium notes on schooner Thriver on policy this day cancelled,, and all scrip issued to said Soper is to be transferred to said company, and the notes on brig F. H. Moore and on schooner Thriver are to be sent to said Soper on my return to Province-town. Joshua Paine, President Atlantic Mutual Fire & M. Ins. Co.”</p> <p>About a week afterward the plaintiffs sent the policy to the defendant, having made upon it the following indorsement signed by them: “ Boston, Feb. 4, 1873. Cancelled to date.”</p>

<p>Contbact against James J. Flynn and Mortimer T. Downing on a check drawn by Flynn, for the sum of $400, upon the Freeman’s National Bank, payable to the order of Downing and by him indorsed. The check was also indorsed by the plaintiff. The declaration contained three counts. The first count was against Flynn as maker; the second against Downing as indorser ; and the third against Downing for money paid to him at his request by the plaintiff. Trial in the Superior Court, before Allen, J., who allowed the following bill of exceptions :</p> <p>“ The plaintiff testified that in August, 1874, he went to the races at Springfield, and while there on the field, and in sight of the pool box and the judge’s stand, Downing came to him with the check set out in the declaration, and asked him to cash it, saying he owed one Barker; but he said in reply that he had no money. He further stated that he never agreed to indorse the check, but agreed to make it good; that a little while afterwards he went with Downing to Barker, a seller of pools on the field, and stated to him that the check was good, and he would make it good ; and that on the morning of the next day, in pursuance of his promise to make good, he indorsed it; and after protest paid $260.26, the amount due Barker on it, and took it up, and never claimed more than the amount so paid; that he..did not know what Downing owed Barker for. It appeared that Down-. ing lost by his pools to the value of $260; that Downing put his name on back of the check, and passed it to Barker, but he refused to either give him Ms pools, the change, or the check. It further appeared that the next morning, without any further conferences with Downing, and none at any time with Flynn-Barker came to the plaintiff and told him to put his name on the back, and he did so. The plaintiff also called one Carson, who testified that the defendant Downing came to him to get him to cash the check, which it was not convenient for him to do, but told Downing that Scollans would fix it.</p> <p>“At the close of the plaintiff’s case, the defendants moved for a nonsuit and to take the case from the jury, on the ground that no case had been made, and that there was no consideration at all for the indorsement; that if it was not so, it was a gaming transaction, and void in law. The judge declined so to rule, and ruled against the defendants.</p> <p>“ The defendant Downing then took the stand, and testified that he bought pools, as then stated ; that he went to the plaintiff and asked him to indorse the check, and he refused to do so; that the plaintiff refused to cash the check or indorse it, and he never knew of his having indorsed it until some months after-wards, and then repudiated the act.</p> <p>“ The defendants again requested the judge to rule as above stated, and that if the jury believed the transaction was as stated either by the plaintiff or by the defendant Downing, the plaintiff could not recover. But the judge declined so to rule, and instead thereof instructed the jury in substance as follows :</p> <p>“ That if, before Barker took the check, the plaintiff, in the presence and at the request of Downing, said to Barker that he would make it good, and did accordingly indorse the check after Barker had taken it, and afterwards paid the money upon it, he could recover the amount so paid, unless the transaction was tainted with illegality. That the purchase of pools was á gaming transaction, and illegal, and if the check was used for such purchase, and the plaintiff, when he indorsed it, knew or believed that it had been or was to be so used, he could not recover ; but if he believed that the check was passed to Barker in payment of a debt due to him from Downing, which had been contracted before the plaintiff took any part in the transaction, he might maintain an action, although it should appear that the debt had in fact been contracted in the purchase of pools, and the plaintiff knew, or had reason to believe, that it had been so contracted.”</p> <p>The jury "found for the plaintiff; and the defendants alleged exceptions.</p>

Tort for the conversion of 84 barrels of porter. Trial in the Superior Court, before Allen, J., who allowed a bill of exceptions in substance as follows: The plaintiffs claimed under a bill of sale, absolute in terms, for one dollar and other considerations, from one William H. Nichols, in the name of the Lawrence Brewing Company.

<p>The burden of proof is on a party, seeking to establish a lost will by paroi evidence of its contents, to prove the contents by evidence strong, positive and free from doubt.</p> <p>If a will, once known to exist, is not found at the death of the testator, it is presumed to have been revoked.</p> <p>On an appeal from a decree of the judge of probate refusing to approve and allow an instrument alleged to be a copy of a will, the original being alleged to be lost, suppressed or destroyed since the death of the testator, issues were framed for the jury, covering these questions. Held, that an issue proposed hy the appellant, and which the judge who tried the case refused to submit to the jury, as to specific parts of the alleged will, was immaterial.</p> <p>If this court has power, on a probate appeal, to revise the discretion of the judge presiding at the trial of issues of fact before a jury, in refusing to grant a delay in the trial on account of the absence of a witness, no affidavit of the testimony expected nor any statement of the grounds of such expectation having been made, it will only do so where the circumstances connected with the absence of the witness, and his alleged relation to the case, are so peculiar as to require that the ordinary rule should be dispensed with.</p> <p>To establish by copy a will alleged to have been destroyed or suppressed by parties having an adverse interest thereto, evidence of a- conspiracy by such parties to suppress the will is immaterial, unless accompanied with evidence sufficient to justify a jury in finding the execution and contents of the will, and its loss since the testator’s death.</p> <p>A party cannot, under the St. of 1869, c. 425, contradict his own witness, by showing that he has made at other times statements inconsistent with his testimony, without first calling his attention to the circumstances and occasion of the supposed statements.</p>

<p>Repeated entries by the lessor upon leased premises, and carrying away of crops, cutting down a fruit tree, and removing a cooking stove from the house, though acts of trespass, do not amount in law to an eviction of the tenant.</p> <p>Damages suffered by a lessee by the lessor’s trespasses upon the leased premises cannot be set up by way of recoupment, in an action by the lessor .for the rent reserved.</p>

<p>Bill nr equity for a settlement of the affairs of a partnership. An argument was had upon the questions made by the pleadings in March 1874, by Q. F. Homer, for the plaintiff; W. Colburn, for the defendant Presby; and W. Graston, for F. W. Bird, another defendant; and in March 1876, upon the suggestion of the court, upon the question of the legality of the transactions between the partners, as appearing upon the master’s report, by the same counsel, except that JE. C. Bumpus appeared in the place of W. Colburn for the defendant Presby. The case is stated in the opinion.</p>

<p>If a seller of merchandise, in order to maintain his lien for its price, refuses to permit the purchaser to take possession or control of it, he thereby prevents an acceptance and receipt of it by the purchaser within the statute of frauds.</p> <p>Upon an agreement for the sale of merchandise and payment therefor by a satisfactory note, the purchaser examined the merchandise, had it weighed, marked with his initials, and piled up by itself in the seller’s warehouse, to be taken away upon payment for it or giving a satisfactory note for its price. The purchaser never complied with these terms, and the seller refused to allow him to take the merchandise away, claiming a lien upon it for its price. After remaining for several months it was destroyed in the warehouse by fire. Held, that there was no such delivery of the merchandise as to constitute the seller a bailee for the purchaser.</p>

<p>Contract upon a policy of insurance, by which the defendant insured the plaintiffs in the sum of $5000, on “ their interest as mortgagees ” in certain furniture, in the Grand Central Hotel, at Saratoga Springs, from January 10,1874, to January 10,1875. The case was submitted to this court on agreed facts, in substance as follows: c</p> <p>The property insured was mortgaged to the plaintiffs by two mortgages, one by Charles R. Brown and the other by Robert Hamilton, to secure the sum of $99,462.38, both mortgages being dated August 1,1872. Default was made in the performance of the conditions of the mortgages, and, without taking any steps to foreclose the same, the plaintiffs, on June 2,1873, no part of the mortgage debt having been paid, entered into an agreement with George O. Marcy, whereby they agreed to assign to him the mortgages and notes, upon the payment to the plaintiffs, by Marcy, of $90,000. Under this agreement, Marcy paid the sum of $25,000, and on April 3, 1874, he, without having made any further payment under the agreement, relinquished all his claims thereunder.</p> <p>On May 1, 1874, the plaintiffs, as parties of the first part, entered into an agreement, under seal, with Alexander Cherry, as party of the second part, which, after reciting that the parties of the first part were holders of the Brown and Hamilton mortgages, and that the party of the second part was desirous of purchasing the mortgages, and all the right, title and interest of the parties of the first part in the furniture and property included in said mortgages, proceeded as follows:</p> <p>“ 1. The said parties of the first part agree to assign and transfer to said party of the second part, his heirs or assigns, the said chattel mortgages, and all their right, title and interest in said furniture and property therein described, on payment of all the four promissory notes hereinafter mentioned.</p> <p>“ 2. Said party of the second part agrees to keep said fumi turc and property insured for the benefit of said parties of the first part, pursuant to the terms and conditions of said mortgages, in responsible companies.</p> <p>“ 3. In case of failure to pay said notes, or either of them, or the interest, the said parties of the first part resume the right to foreclose said mortgages, or take or sell said property, the same to all intents or purposes as if said notes below mentioned were the notes mentioned and specified in said mortgages, and it being the intent hereof to allow said mortgages to remain as security for the payment of the notes below mentioned.</p> <p>“ 4. Said party of the second part may, from this date, take possession of said furniture and property.</p> <p>“ 5. In consideration of the above, the said party of the second pait has made, and at the timo of the execution of this agreement delivered to the said parties of the first part, his foul promissory notes amounting to $62,500, payable to the order of Henry A. Clark and George Harvey, and indorsed by them and payable at the Commercial National Bank of Saratoga Springs, with interest, as follows : $20,000 in four months; $20,000 in sixteen months; $20,000 in twenty-eight months; $2,500 in twenty-eight months.”</p> <p>Cherry paid the first of the notes secured by said agreement, and no further payment has been made- by him. On October 28, 1874, he assigned to the plaintiffs his interest under said agreement. Neither Marcy nor Cherry ever purchased the equity of redemption of said furniture.</p> <p>On October 1,1874, the Grand Central Hotel was destroyed by fire, and a portion of the property insured was burned; due proof of this loss was made by the plaintiffs. The value of the mortgaged property before the fire was $66,308.26, and the value of the portion saved was $13,167.69, making the amount of loss on the furniture by the fire $53,140.57. The total amount of insurance was $57,000.</p> <p>The plaintiffs still hold their original mortgages and mortgage notes, and have paid premiums for insurance to the amount of $3724, which, by the terms of the mortgages, should have been paid by the mortgagors. Other collateral security, mentioned in the agreement with Marcy, for said notes, is worthless, and the makers are insolvent. No part of said notes or the interest thereon has ever been paid, unless the facts hereinbefore stated constitute payment.</p> <p>The plaintiffs contend that their interest as mgrtgagees was equal to the whole value of the mortgaged property at the time of the loss; and it is agreed that, if this claim is sustained, judgment is to be entered for the plaintiffs for $4661.45, with interest from January 23, 1875.</p> <p>The defendant contends that the value of the plaintiffs’ interest as mortgagees, and for which they are entitled to indemnity at the time of the loss, is determined by deducting the payment by Cherry of $20,000 from the sum of $62,500, for which said plaintiffs agreed to sell to Cherry, also deducting the value of the property saved. If this position is sustained by the court, judgment may be entered for $2573.01, with interest from January 23,1875.</p>

Contract to recover back the amount of a sewer assessment paid under protest.

<p>In the city of Boston, public footways may exist by prescription, which the city is bound to keep in repair, and is responsible for defects in, under the Gen. Sts. c. 44, §§ 1, 21, 22, 26.</p> <p>An ancient public footway two feet wide, lying between lands of the city of Boston and of an individual owner, was by an agreement between the city and such owner widened to twelve feet, each party contributing a strip of land for that purpose, with mutual covenants that it should be used only for foot passengers. It was subsequently used by the public and kept in repair by the city. Held, that the city was liable, as for a highway, for a personal injury to a foot passenger occasioned by a defect therein.</p>

Tort for an injury sustained by the plaintiff on board the defendants’ vessel, by a fall through a hatchway left open and without proper guards or barriers. The material facts, as they appeared at the trial in this court, before Ames, J., were as follows : The plaintiff was employed by his son, at the time in the employ of the Boston Ice Company, by whom the vessel was loaded, to assist in loading a quantity of ice on board the vessel.

<p>Contract against Joseph H. Sandford, George Lovejoy and Robert P. Gould, copartners doblg business under the firm name of O. A. Bingham & Co., to recover the price of twenty-four bags of wool of the value of $2930.40, sold and delivered by the plaintiff to the defendants. Answer: 1. That the sale was by sample, and with the representation and warranty that the wool corresponded with the sample, and that in fact it did not so correspond. 2. The statute of frauds.</p> <p>After the former decision reported 118 Mass. 102, the case was tried in the Superior Court, before Rockwell, J., who allowed °> bill of exceptions in substance as follows :</p> <p>The plaintiff introduced evidence to show that the wool sold was a uniform lot of unwashed fleece wool, bought by him of a wool dealer at Norwich, Connecticut, who was present and testified that the wool was all one lot, with no difference; that he bagged .it from a pile indiscriminately, and shipped it to the plaintiff. The plaintiff’s witnesses further testified that the wool was received at the plaintiff’s storehouse; that eight bags, without selection, about one third of the entire lot, were emptied of their contents on the floor; that the remainder was piled up in the bags in the next room, and the ends or sides ripped open and examined by Hall and Hollister, men in the employ of the plaintiff, who pronounced it alike; that the room, where the bags were, had other goods in it, and had no windows, but was lighted by double doors on each side, which were kept open during the day, that in March, 1872, the plaintiff requested one Williams, a wool broker, to find a purchaser for this wool; that Williams went down and examined both that on the floor and that in the bags, and Williams testified that it was a uniform lot of heavy fleece wool; that on March 20 he took the defendant Lovejoy</p> <p>down to examine it for purchase; that they called at the plaintiff’s office, and Hall, in the employ of the plaintiff, went down with them to the storehouse; that Lovejoy examined the wool in the pile, and asked Hall if it was “ all one lot; ” that Hall said he had examined it and could see no difference, and that it was all bought at the same time of one man, in one lot, that the rest of the wool was in the next room in bags, and could be got out in a few moments; that Lovejoy said he had examined it all he wanted to; that Lovejoy went into the next room and examined the bag of super-pulled wool, and said he would take that if he took the other; that he would, in such case, send his wagons for it; that Hall said it would be more convenient to send it by their wagons, and Lovejoy assented, if he decided to take it; that there was no statement or representation that the wool was all alike, or that that in the bags was of the same quality as that on the floor; that the price named for the fleece wool was forty-nine cents, and that for the super-pulled wool ninety cents per pound; that in the afternoon of the same day the broker met Lovejoy on the street, and Lovejoy said to him he would take the wool at the prices named; that the broker went to his office and made out triplicate sale notes, one of which he handed to Lovejoy at the defendants’ counting-room, who looked at it and said it was “ All right; ” that he gave one to the plaintiff, and kept one himself. The one handed to the plaintiff was-put in evidence, and is as follows :</p> <p>“ Boston, March 20, 1872.</p> <p>“ Sold for account of Mr. T. Remick to O. A. Bingham & Co.</p> <p>Abt. 5,500 lbs. Un’hs Fleece Wool, price . 49c.</p> <p>1 Bag Super-pulled, price .... 90c.</p> <p>Bags @ value.</p> <p>Tare 3 lbs. each.</p> <p>Cash. Terms, 30 days. H. R. Williams, Broker.”</p> <p>It was further in evidence, that the above note was a true Q/r count of the sale; that the plaintiff’s first knowledge of the ts 'e was on receipt of the sale note; that on the next day the wool was weighed, and in the afternoon sent up to the defendants’ store, who received and hoisted it into their loft; that a bill of it was sent to the defendants, that, on March 25, the defendants sent the plaintiff the following letter: “ The wool received from you not being like sample shown us, we refuse to accept, and hold the same subject to your order; ” that was the first knowledge he had of any complaint by the defendants; that he replied by letter, dated March 26, stating that the wool was fairly represented, and that he should hold the defendants to the trade, and received a letter from the defendants, dated March 27, inclosing the bill rendered, and requesting the removal of the wool without delay; that Hall and Williams, at the request of the defendants, three or four days after the sale, went and looked at a portion of the wool emptied out-of the bags at the defendants’ store; that Lovejoy said he had bought this to go with another lot of wool he had sold; that it was not so good, and did not look like the same wool. Hall asked him to pick out one bag different from the rest, and Lovejoy said there was no difference, it was alike, but it was not the wool he bought; that he found no fault with the pulled wool, but did not want that unless he had the whole. One Miller, a wool merchant, who had examined the wool at Norwich, with a view to purchase it, and afterwards recognized and examined it at the plaintiff’s storehouse prior to the sale, testified that it was a uniform lot of fleece wool. It was in evidence that this was the only lot of fleece wool the plaintiff had at the time, and that the bag of super-pulled wool was all one grade of super-pulled wool.</p> <p>The defendants offered evidence tending to show that Lovejoy had been taken by Williams, as the broker employed by the plaintiff, to the plaintiff’s store; had met Hall there, and was taken into one loft in the plaintiff’s storehouse on Russia Wharf, and there shown about three bags of wool opened on the floor; that he examined it and found it was a good lot of unwashed fleece wool; that he asked Hall where the rest of the wool was, and Hall replied that it was in the other loft; that it was dark there; that the wool was in bags piled up behind some shoddy and waste wool, and that it would be very inconvenient to get at it. Lovejoy then asked if this was a fair sample of the entire lot, and Hall replied that it was; that Lovejoy then said if this was a fair sample of the lot he would purchase it; that Hall said it was, and Lovejoy bought it then and there, and said he would send his own wagon after it when he wanted it; that either on the same afternoon, or upon the next, about 4 o’clock, a lot of wool arrived at the defendants’ store, in two wagons, sent by the plaintiff; that Lovejoy was then about leaving the store, and could not stop to examine the wool, but simply told his men to hoist it into the loft, which was done, and the wool remained there unopened until the next morning, when the men commenced to open the bags, and had opened eight or nine, when one of the men, who had before seen the samples at the plaintiff’s store, seeing that this was not the wool he had been shown, ordered the men to stop opening the bags, and sent for Lovejoy, who came into the loft and saw the wool opened, and found it was of a very inferior kind and condition, and not two thirds the value of the sample shown him at the plaintiff’s store; that Lovejoy ordered the men to stop opening the bágs, simply ripped down the sides of the other bags, and saw that it was all of the same inferior condition; that he examined the bags of pulled wool, and found that it contained a large proportion of inferior grades of wool; and he then sent immediately for Hall to come and examine the wool; that Hall was out of town; that Lovejoy also sent for Williams, who called the next day, looked at the wool, and said “ it was not the wool Lovejoy had bought; ” that Lovejoy told him he should not take it, but should send it back; that a day or two after this Hall came in, and was shown the wool in the same position and condition as when the men stopped opening it, and was told by Lovejoy that it was not the wool he bought, and he should refuse to take it; that on the same day Lovejoy wrote the letter above referred to, dated March 25 ; that on the 25th, after Hall called and refused to take back the wool, Love-joy had it repacked in the original bags, just as it came from the plaintiff, and had it stored in the loft in a place where it could easily be inspected or delivered to the plaintiff; that it so remained there subject to the plaintiff’s orders, untouched by the defendants, until it was destroyed in the fire of November 9 and 10, 1872. The defendants also offered evidence tending to show that Lovejoy never received or saw any broker’s note; and that such a note was never received or seen by any of the defendants or by any one in their employ.</p> <p>The defendants also put in other evidence tending to show that this was a sale by sample; that the wool opened at their store was inferior to that shown by the plaintiff; and that, as soon as the inferior condition of the wool was ascertained, they refused to take it.</p> <p>Upon this evidence, the defendants contended that the plaintiff could not recover unless he proved a receipt and acceptance óf the wool or some part thereof, or that something had been given in earnest to bind the bargain, or in part payment, or that some note or memorandum in writing of the bargain was made and signed by the defendants or by some person thereunto by them lawfully authorized; that, if the sale was by sample, then it was a sale with a warranty that the bulk of the wool corresponded with the sample; that if it was such a sale, then the broker, having authority only to reduce to writing the actual terms of the sale, would have no right to sign any note or memorandum which did not contain that fact or element, and the note in this case would be invalid; and that, unless the jury found there had been a receipt and acceptance of the wool by the defendants, there could be no recovery in this case; so that the question for the jury was whether this was a sale by sample ; that if they found that it was, then, whether the bulk of the wool corresponded with the sample or not, they must find a verdict for the defendants.</p> <p>The defendants asked the judge to instruct the jury as follows :</p> <p>“ 1. There can be no recovery in this case unless the wool has been received and accepted by the defendants, or unless there was a sufficient memorandum in writing.</p> <p>“ 2. If, as soon as the wool was received and opened by the defendants, they refused to receive and accept it, and so notified the plaintiff, there would in law be no such acceptance of the wool as to bind the defendants or to answer the provisions of the statute of frauds.</p> <p>“ 3. If there was no such acceptance, then, unless there was some note or memorandum in writing of the sale, signed by the defendants or some person by them duly authorized, the plaintiff cannot recover.</p> <p>“ 4. If the actual sale made was by sample, such sale by sample would be a warranty that the bulk of the wool corresponds with the sample shown, and the broker would not be authorized to sign in behalf of the defendants any note which did not contain in effect this warranty.</p> <p>“ 5. If the sale was by sample, and the note did not, in effect, contain this element, such note would be invalid.</p> <p>“6. If such note is invalid, then there would be no valid sale which would bind the defendants.”</p> <p>The judge gave the 1st, 4th and 5th instructions- asked, but declined to give any of the others in the language in which they were presented; but, to cover the points in the requested instructions alluded to, instructed the jury as follows:</p> <p>“ The important questions, upon which the case must turn, are whether the sale was an honest sale or not, and whether the sale was in the ordinary way, without the exhibition of any part of the wool as a sample, the defendants1'seeing the wool in part, and having opportunity to examine the whole; or whether the sale was by sample, with representation that the bulk was equal to the sample, which would imply a warranty. The first is substantially the plaintiff’s theory, and the second substantially the defendants’ theory. If the plaintiff’s theory is affirmatively proved, then it was a good sale, and not affected by the statute of frauds, giving the plaintiff the right to recover. In that case, the note signed by the broker Williams is a true and sufficient memorandum in writing of the sale; and, also, the delivery of the wool at the storehouse of the defendants, and its receipt by them into their storehouse, (if the jury believe the plaintiff’s evidence upon that point,) was a delivery and acceptance on their part, sufficient under the statute of frauds. But if the jury are satisfied of the truth of the defendants’ theory, that the sale was by sample, then if the defendants, even after the delivery and receipt of the wool into their store, discovered for the first time that the bulk did not substantially conform to the sample, they had a right to give the notice which they gave, and be free from obligation to pay for the wool, and had a right to the position that there was no acceptance of the delivery of the wool on their part, and no memorandum in writing such as the statute aforesaid requires.” Other instructions were given to the jury as to what constituted a sale by sample, and in other respects, which were not objected to by the defendants.</p> <p>The jury returned a verdict for the plaintiff for the fuL amount claimed; and the defendants alleged exceptions.</p>

<p>Contract on five drafts, payable to the plaintiffs, drawn on the defendant and alleged to have been accepted by him. Trial in the Superior Court, before Pitman, J., without a jury, who allowed a bill of exceptions in substance as follows:</p> <p>The plaintiffs introduced evidence tending to show that the defendant wrote the following words on four of the drafts: “I take notice of the above, Henry Baldwin; ” and, on one of these drafts, for $600, subsequently made a partial payment of $400; that these orders were drawn on the defendant by certain debtors of the plaintiffs in their favor, to pay them for building materials by them furnished to said debtors, with which to build four brick dwelling-houses, one on each of four lots of land in Linwood Street, in Boston; that before any of the orders were drawn, one of the debtors made four several mortgages, one on each of said lots of land, and each to secure said debtors’ note to the defendant for the sum of $6000, for the purpose of raising money to pay for said land and building said dwelling-houses, which the defendant contested ; that the defendant retained the entire consideration for the mortgage notes in his own control, and afterwards made payments for the land, and for labor and materials for erecting the dwelling-houses thereon; and that, at the time the orders were respectively drawn and presented to him, he had a sufficient sum remaining in his control from the consideration of said mortgages to pay the orders in full, according to their terms; and that the work on said houses was carried forward, so that all of said orders would average due on or about September 15, 1872, if the defendant was liable thereon.</p> <p>The plaintiffs put in other paroi evidence; and the defendant put in paroi evidence tending to show that he declined to accept or to become bound to pay the plaintiffs.</p> <p>The plaintiffs asked the judge to rule that the writing of the words on these orders by the defendant was a valid and legal acceptance of the same by him, and rendered him liable to pay the same; and also that writing the words on the order for |600, and subsequently paying a portion of the same, constituted a valid and legal acceptance of that order, and rendered the defendant liable to pay the remainder of the same.</p> <p>The judge refused so to rule, but held that these words, written on the orders, and the acts of the defendant, did not, in law, amount to an acceptance of either of the orders, or render the defendant liable to pay the same or any part thereof, but that these acts were only pieces of evidence; and, upon the whole evidence, found no acceptance proved, and found for the defendant. The plaintiffs alleged exceptions.</p>

Petition filed December 30, 1875, under the St. of 1874, e. 205,* representing that the parties were legally married in 1872, and afterwards lived together in this Commonwealth, and had two children, who now lived- with the petitioner; and that on September 13,1875, the respondent deserted the petitioner without cause, and they had since lived apart, without any fault on her part, but by his fault in leaving her, and he had failed, without just cause, to furnish suitable…

Contract upon a promise of the defendant to pay the note of a third person to the plaintiff, upon default of the promisor. The answer set up the statute of frauds. At the trial in the Superior Court, before Pitman, J., without a jury, it appeared that the plaintiffs sold to the defendant certain goods, taking in part payment his due bill, which was reduced by subsequent payments to $200.

<p>Bill in equity to close up a partnership. At a former hearing, before Wells, J., the plaintiffs relied on an agreement signed by the three partners, of which the following is a copy: “ Agreement made this third day of August A. D. 1871, between J. B. Brine, P. J. Moley and E. F. Jackson. The partnership heretofore existing under the firm of Brine Bros. & Co. is hereby dissolved. E. F. Jackson is alone authorized to sign the name of the firm in liquidation, make collections, pay bills, receive money and draw checks, until the old business is settled as hereafter arranged. The other partners shall assist is closing up the business, except as aforesaid. From collections and assets, E. F. Jackson is to receive the sum advanced by him, $4874, without interest. The balance of assets and property, after paying debts, to be divided between Messrs. Brine and Moley, according to their interest in the business; that is to say, $1800, without interest, to Moley, and the balance to Brine. Brine takes the store and business. Brine and Moley assume the risk of all accounts and contracts up to August 1, 1871. All money drawn from the business after August 1,1871, by P. J. Moley and E. F. Jackson is to be deducted from the above portion.” Under that agreement Jackson had begun to liquidate the affairs of the firm prior to the filing of this bill.</p> <p>It was then ordered: 1st. That that agreement “ be set aside and annulled as an agreement, the said Brine being a minor at that date, and having elected to avoid the same on that ground; and that said writing be taken to have no further or other effect filian as evidence upon the question of the actual transactions and relations between the parties.” 2d. “ That the case be referred to a master to hear the parties and report to the court hia findings as to the actual relations between the parties and their respective rights in and to the funds and assets that are now in or that may come into the hands of the receiver; and also to state the accounts between them.”</p> <p>The master’s report stated the following facts: The partnership was formed about July 1, and was dissolved by mutual consent on August 4,1871. At the formation of the partnership, Jackson contributed to the common stock $4874, Holey $1800, and Brine $882, and it was agreed that each should receive one third of the profits. During the continuance of the partnership, Jackson drew out $34, Holey $100, and Brine $673.15. There were no profits of the partnership, and the assets were not sufficient to pay back in full the original contributions.</p> <p>At the final hearing, before Colt, J., the plaintiffs contended that, no agreement being shown as to the division of the common stock upon a dissolution of the partnership, each partner was entitled to the amount of his contribution and interest, and that the deficiency in assets should be borne by the partners equally.</p> <p>The defendant' contended: 1st. That the assets should be equally divided among the three partners, without regard to the amounts contributed by each. 2d. That if such was not the rule, then the deficiency should be borne by the several partners in proportion to the several amounts contributed by them, and that the defendant should not bear any part of the deficiency.</p> <p>The case was reported for the consideration of the full court; such order or decree to be entered as the case required.</p>

Petition under the St. of 1871, c. 382, § 7, to the Superior Court for a jury to revise an assessment of a betterment, made by the board of aldermen of the city of Boston, upon the estate of the petitioner, fronting on Shawmut Avenue, part of which was taken to widen that street.

<p>Contract by the surviving trustee under the will of Jonathan Simonds, to recover of the defendant the amount of an assessment made upon an estate, situated at the corner of Warren Street and Eliot Street, by the board of aldermen of the city of Boston, for the widening of Eliot Street.</p> <p>At the trial in the Superior Court, before Oolburn, J., without a jury, it appeared that the trustees under the will of Jonathan Simonds leased the above described estate to one Rosenfeld for the term of eighteen years from January 1,1855, the lessee cove* nan ting to pay “ all taxes and duties levied or to be levied thereon during the term; ” and that Rosenfeld on May 81,1856, assigned the lease to the defendant and one Joel Snow, copartners under the name of Job A. Turner & Co., for the residue of the term, taking from them a contract of even date, by which they agreed to make certain repairs and improvements upon the premises, to be paid for by Rosenfeld, and to reassign the lease, which was described and referred to, to him when such payment was made in full.</p> <p>In pursuance of an order of the board of aldermen of the city of Boston, approved December 31, 1869, Eliot Street was widened, part of the leased land was taken, and a betterment assessed upon the remaining part, on December 20, 1870, in the sum of $1700. The plaintiff paid this assessment on November 22, 1871, and no notice was given the defendant or Snow of the assessment, and no demand to pay the same was made upon either of them. The lessor did not appeal from the assessment, or apply for a jury to revise the same, and the defendant and Snow were given no opportunity to do so by notice.</p> <p>The judge ruled that upon the foregoing facts the plaintiff was not entitled to recover of the defendant the whole or any part of the amount paid by the plaintiff as a betterment; and the plaintiff alleged exceptions.</p>

<p>In an action on a policy of insurance against fire, containing a clause that the company should not be liable by virtue of the policy until the premium therefor be actually paid, it appeared that the company's general agent was accustomed, in the usual course of his business with a certain insurance broker, to deliver policies containing this clause to him, without requiring the cash payment of the premiums, charging him therewith instead, in personal account, and rendering him monthly bills thereof, deducting an agreed commission for obtaining the risks, the broker in his monthly settlement paying the premiums charged, whether he had collected them or not; that a large number of such policies had been so issued by the agent, with the company’s knowledge and without objection, and losses had been paid on many of them, though no such cases were shown where the loss happened before an actual payment of the premium; that the broker made application to the agent for insurance upon behalf of the plaintiff, and the agent accordingly filled up, executed and countersigned a policy to him, and sent it by mail to the broker, who informed the plaintiff that he had his policy for him, and would call on him the first of the following month, and settle the matter. It also appeared that the broker had been in the habit of obtaining insurance for the plaintiff and keeping his policies for him, and frequently had funds of the plaintiff in his hands, and had never demanded of him payment of the premium on the policy in suit. Held, that this evidence would warrant the jury in finding that the duly authorized agent of the company had accepted the individual credit of the broker as a payment of the required premium ; and that the plaintiff was entitled to maintain the action.</p> <p>A policy of insurance against fire provided that the insurance might be terminated at any time at the option of the insurer on giving notice to that effect, and refund ing a ratable proportion of the premium for the unexpired term of the policy Held, that a notice of a desire to terminate the policy, without an offer to return part of the premium, was not sufficient.</p> <p>A policy of insurance against fire provided that any person other than the assured, who might have procured the insurance, should be deemed the agent of the assured, and not of the insurers, under any circumstances whatever, or in any transaction relating to the insurance. Held, that the clause referred to the original transactions connected with obtaining the policy, and could not be construed to mean that an insurance broker procuring the policy should be the agent of the assured to receive notice of its termination.</p>

<p>In an action on a policy of insurance against fire, the issues were whether an addition to the building, in which was the property insured, materially increased the risk, and whether the insurer assented to the addition being made. A witness for the defendant, who had the general management of its business, was asked on cross-examination whether the plaintiff did not, in an interview with him, show him a letter containing the statement: “All my companies have paid, and I see no reason why the others should not pay.” The witness answered in the negative. Held, that the evidence was collateral and irrelevant to the issues on trial, that the witness could not be contradicted, and that the admission of a letter written by an agent of other insurance companies, containing such a clause, with evidence that it was shown to the witness, gave the defendant good ground of exception.</p>

<p>A demurrer to evidence must be in writing with a joinder by the adverse party.</p> <p>A demurrer to the plaintiff’s evidence admits all the facts that the evidence tends to prove, and, if it is overruled, the plaintiff is entitled to judgment.</p> <p>A report from the Superior Court in an action of contract stated the plaintiff’s evidence, and that thereupon “ the defendant demurred to the evidence, and the case is reported for the determination of the Supreme Judicial Court, it being agreed that if the defendant’s demurrer be sustained, there shall be an entry of verdict for defendant; otherwise a new trial.” It appeared by papers transmitted with the report that a verdict was rendered for the plaintiff. Held, that the proceedings were irregular and erroneous, and that the report must be dismissed.</p>

Tort for personal injuries sustained by the plaintiff by coming in contact with an electric telegraph wire, suspended across one of the streets in the defendant city, while the plaintiff was travelling on the street.

<p>Bill in equity alleging that the plaintiff was the owner of the fee in the soil and of a right of way in a passageway leading from Purchase Street by land of the plaintiff and to a shop of the defendant, which adjoined the rear of a store of the defendant on Atlantic Avenue; and praying that the defendant might be restrained from using the way as appurtenant to the land on which that store was built, or for the purpose of passing, or of carrying merchandise or other things, between that store and Purchase Street. The answer alleged that the defendant had acquired a right to such use by adverse possession.</p> <p>Hearing before Wells, J., who ordered an injunction to issue, and reserved the case for the consideration of the full court, upon a report, the material part of which is stated in the opinion.</p>

Petition under the St. of 1868, e. 287, for a decree for a sale of land on the ground that it was incumbered by contingent remainders or executory devises. Hearing before Gray, C. J., who reserved the question of law arising on the petition for the consideration of the full court. The facts appear in the opinion.

Bill nr equity, filed January 21, 1876, against Samuel K. Williams and the trustees under the will of Samuel K. Williams, deceased, to reach and apply the future income of a trust fund in their hands in payment of a debt due from the first named defendant to the plaintiff. The defendants demurred for want of equity ,• and the case was reserved by Morton, J., for the consideration of the full court. The material facts appear in the opinion.

Petition under the Gen. Sts. o. 150, to enforce a mechanic’s lien. In the Superior Court, Colburn, J., declined to continue the case, although proceedings in bankruptcy were pending against the first named respondent; and the respondents alleged exceptions. The judge also declined to order a sale of the land and the petitioner alleged exceptions. The facts of the case appear in the opinion.

<p>The owner of a tract of land divided it into lots, with streets running through it, and had a plan thereof made and recorded. The plan showed, between two of the streets, two lots, the side line of one apparently marked “ 90,” and that of the other “ 103.70,” with a passageway between them marked “ 8.” In fact the distance between the two streets was 193.70 feet, and, according to the scale marked on the plan, the figures marked on the side line of each lot carried that line to the centre of the passageway. In a deed, which referred to the plan, the side line and the line on the passageway, of the first lot, were described as running “ ninety feet to a passageway eight feet wide, then turning at a right angle and running on said passageway,” a given distance. Held, that the plan and the deed must be construed together, and that the side line did not run ninety feet, exclusive of the passageway.</p>

<p>To constitute a legal taking by the city of Boston of the water of Sudbury River, under the St. of 1872, c. 177, the filing in the registry of deeds of a description of the stream taken, within sixty days from the time of such taking, as provided by the St. of 1846, c. 167, § 1, is requisite; and upon default therein the city is liable for damages in an action of tort.</p> <p>The members of the Cochituate Water Board of the city of Boston can justify their acts by the authority of the city, in an action of tort brought against them, only to the same extent as the city might do.</p> <p>The Cochituate Water Board of the city of Boston in the year 1872, after the passage of the St. of 1872, c. 177, authorizing the city, through the agency of the board “ to take, hold and convey to, into and through said city all the water of Sudbury River,” caused a dam to be built across the river, and a canal to be cut from it, by which a portion of its water was for several months diverted into Lake Cochituate. The city failed to file in the registry of deeds within sixty days from the time of the taking the description of the stream taken, as required by the St. of 1846, c. 167, § 1. Held, in an action of tort against the members of the board, that, even if their acts were authorized by the city, they became liable as trespassers, by reason of the default by the city in not filing the description required by the above named statute.</p>

<p>If the instructions given to the jury embrace substantially those requested, it is no ground of exception that they are in different language.</p> <p>Upon an indictment for keeping a disorderly house, the jury must be satisfied that, during some substantial portion of the time covered by the indictment, the defendant had, in whole or in part, the control and management of the premises complained of; and that, while so kept and maintained by the defendant, they were a common nuisance, as a common, ill-governed and disorderly house.</p> <p>It is sufficient, to support an indictment for keeping a disorderly house, that the defendant suffered and allowed the place to be the habitual resort of drunkards, thieves and prostitutes until late and unseasonable hours of the night.</p> <p>The common nuisance charged in an indictment for keeping a disorderly house may consist in drawing together dissolute persons engaged in unlawful practices.</p>

Indictment for forgery, in four counts. The first count charged the defendant with making, and the second with uttering, a bond of the tenor following: “ Know all men by these presents, that we, Marion Pearce and John F. Costello, of Boston, in the county of Suffolk and Commonwealth of Massachusetts, as principals, and William P. Schell and Isaac Judson, of said Boston, as sureties, are holden and stand firmly bound and obliged unto John Belcher, of Winthrop, in the county…

<p>Indictment, in five counts, under the Gen. Sts. c. 63, § 98,* and the St. of 1871, e. 352, † to recover, for the use of the widow and children of Charles Keniston, a fine, by reason of the loss of his life, from being run over on May 7, 1874, by an engine and brain of cars of the defendant, at a place in Somerville where the defendant railroad crosses Park Street, so called, at grade.</p> <p>The first count was as follows:</p> <p>“ The jurors for the Commonwealth of Massachusetts, on their oath, present that the Fitchburg Railroad Company, a corporation duly and legally established in this Commonwealth, and duly authorized and empowered to propel engines and cars, by the power of steam, along, over and upon the railroad hereinafter described, was on the seventh day of May, in the year of out Lord one thousand eight hundred and seventy-four, as it still is, the owner of a certain railroad leading and extending from Boston, in the county of Suffolk, in this Commonwealth, to and through the city of Somerville, in this said county of Middlesex, and further, and was then in full occupation, possession and use of said railroad, and was a common carrier, over, along and upon said railroad, of passengers and merchandise, and that said corporation, being such owner, and in such possession, use and occupation of said railroad, did on said seventh day of May, at Somerville aforesaid, by its servants and agents, they being there to direct it and being then and there engaged in the business of said corporation, and while said servants and agents then and there were legally engaged in the business of said corporation, run, propel and drive by the power of steam, a certain locomotive engine over, along and upon said railroad, and that by reason of the unfitness and gross negligence and carelessness of said servants and agents, while engaged in said business as aforesaid, said engine was then and there run, propelled and driven as aforesaid, rashly and without watch, care or foresight, and with</p> <p>great, unusual, unreasonable and improper speed, and that the said engine then and there was, by reason of such unfitness and gross negligence and carelessness of said servants while engaged in the business of said corporation, as aforesaid, driven at, against and upon the body of one Charles Keniston, of said Somerville, he, said Keniston, being then and there in the exercise of due diligence, and not then being in or upon any car or vehicle of said corporation, and not then being a passenger of said corporation, and not then being in the employment of said corporation; and that said engine did then and there, while being driven as aforesaid by said agents and servants of said corporation, violently strike Charles Keniston, and did then and thereby inflict divers wounds, bruises and injuries in and upon the head, body and limbs of him said Keniston, of which said bruises, wounds and injuries said Keniston then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say that on said seventh day of May, in the year of our Lord one thousand eight hundred and seventy-four, by reason of the unfitness and gross negligence and carelessness of said servants and agents of said corporation while engaged in its business as aforesaid, the life of said Charles Keniston, he said Keniston not then and there being a passenger of said corporation nor in its employment, and then and there being in the exercise of due diligence, was lost, in the manner and form aforesaid, whereby said Fitch-burg Railroad Company has become liable to a fine not exceeding, five thousand dollars nor less than five hundred dollars, to be recovered by indictment and to be paid to the executor or administrator of said Charles Keniston, for the use of the widow and children of said Charles Keniston; and that Eliza Keniston, of said Somerville, widow of said Charles Keniston, has been duly appointed, and now is, the administratrix of the goods and estate of said Charles Keniston, and that said Charles Keniston had at the said time of his decease two lawfully begotten children, both of whom are now living. Against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided.”</p> <p>The second count was as follows:</p> <p>“ And the jurors aforesaid, for the Commonwealth of Massachusetts, on their oath aforesaid, do further present that the Fitchburg Railroad Company, a corporation duly and legally established in this Commonwealth, and duly authorized and empowered to propel engines and cars, by the power of steam, along over and upon the railroad hereinafter described, was on the seventh day of May, in the year of our Lord one thousand eight hundred and seventy-four, and still is, the owner of a certain railroad leading and extending from Boston, in the county of Suffolk, in this Commonwealth, to and through the city of Somerville, in this said county of Middlesex, and further, and was then in full occupation, possession and use of said railroad, and was a common carrrier over, along and upon said railroad, of passengers and merchandise, and that said railroad, in its line and course in and through said Somerville, then crossed and intersected, and now does, a certain public highway, called and commonly known as Park Street, at the same level with said highway, and that then and there said Charles Keniston, of said Somerville, was travelling upon, along and over said highway at the point whereat said railroad then and there crossed and intersected the said highway as aforesaid, and was in the lawful use and occupation of said highway and of said portion thereof where said railroad and said highway then and there crossed, and was then and there in the exercise of due diligence, and that said corporation did then and there, by its servants and agents, they being thereto directed and being then and there engaged in the business of said corporation, run, drive and propel, by the power of steam, a certain locomotive engine along, over and upon said railroad, and over, across and upon said highway at said point where said railroad then and there intersected said highway, and did, by reason of the unfitness and gross negligence and carelessness of its said servants and agents while being then and there engaged in the business of said corporation as aforesaid, then and there run, propel and drive said engine rashly, carelessly and negligently, and without watch, care or foresight, and at a great, unusual and improper speed, and did then and there, by reason of said unfitness and gross negligence and carelessness of said servants and agents while engaged in the business of said corporation as aforesaid, suddenly drive, run and propel said engine at, against and upon the body of said Charles Keniston, while the said Charles Keniston was travelling upon said highway as aforesaid, he being then and there in the exercise of due diligence, and not then and there being in or upon any vehicle of said corporation, and not being then a passenger of said corporation, and not being then and there in the employment of said corporation, and that said engine, being so driven as aforesaid, did, by reason of said unfitness and gross negligence and carelessness of said servants and agents, suddenly and violently strike him said Keniston, and did then and there and thereby inflict divers bruises, wounds and injuries in and upon the head, body and limbs of him said Keniston, of which said bruises, wounds and injuries he said Keniston then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say that on said seventh day of May, in the year of our Lord one thousand eight hundred and seventy-four, by reason of the unfitness and gross negligence and carelessness of said servants and agents of said corporation, while engaged in its business as aforesaid, the life of said Charles Keniston, he said Keniston not then and there being a passenger of said corporation, nor in its employment, and then and there being in the exercise of due diligence, was lost, in the manner and form aforesaid, whereby said Fitchburg Railroad Company has become liable to a fine not exceeding five thousand dollars nor less than five hundred dollars, to be recovered by indictment, and to be paid to the executor or administrator of said Charles Keniston, for the use of the widow and children of said Charles Keniston; and that Eliza Keniston, of said Somerville, widow of said Charles Keniston, has been duly appointed, and now is, the administratrix of the goods and estate of said Charles Keniston, and that said Charles Keniston had at the said time of his decease two lawfully begotten children, both of whom are now living. Against the peace of said Commonwealth, and contrary o the form of the statute in such case made and provided.”</p> <p>The third count was as follows :</p> <p>“And the jurors aforesaid, for the Commonwealth of Massachusetts, on their oath aforesaid, do further present that the Fitchburg Railroad Company, a corporation duly and legally established in this Commonwealth, and duly authorized and empowered to propel engines and cars, by the power of steam, along, over and upon the railroad hereinafter described, was on the seventh day of May, in the year of our Lord one thousand eight hundred and seventy-four, and still is, the owner of a certain railroad leading and extending from Boston, in the county of Suffolk, in this Commonwealth, to and through the city of Somerville, in this said county of Middlesex, and further, and was then in full occupation, possession and use of said railroad, and was a common carrier over, along and upon said railroad, of passengers and merchandise, and that said railroad, in its line and course in and through said Somerville, then crossed and intersected, as now it does, a certain public townway of said Somerville, frequented by and open to all the good citizens of this Commonwealth, called and commonly known as Park Street, at the same level with said town way; that said corporation was then and there bound and required by law to give warning of the approach and passage of every locomotive engine there passing upon said railroad, by either ringing a bell or sounding a whistle from or upon such engine, giving either one of said signals continuously, or the one or the other alternately without cessation, during the passage of each such engine, over the space of eighty rods in the course of such engine immediately preceding said intersection of said railroad and said town way; and that then and there one Charles Keniston, of said Somerville, was travelling over, along and upon said town way, being then and there seated in his carriage, and drawn by his horse, at and upon the point of said way whereat said railroad then crossed and coincided with the same, as aforesaid, at the same level therewith, as aforesaid, and was in the lawful use and occupation of said town way, and was not then and there grossly negligent, nor acting in violation of law; and that said corporation did then and there, by its servants and agents, they being thereto directed and being then and there engaged in the business of said corporation, and while being engaged in said business, drive and propel, by the power of steam, a certain locomotive engine, along, over and upon said railroad, froin a point more than eighty rods distant from said town way, toward, upon, over and across said town way, at said point where said railroad and said town way then and there intersected as aforesaid, neither was the bell provided for said engine then and there rung continuously during the passage of said engine then and there over said space of eighty rods, in its course toward, and immediately preceding the said way, nox was any whistle upon, from or. connected with said engine, sounded continuously during said passage, nor was any continuous signal and warning given by said corporation or by any one, by either the ringing of such bell and the sounding of such whistle alternately without cessation of warning, and, in fact, no bell was then and there rung and no whistle was then and there sounded during said passage over said space of eighty rods; and that said Keniston being so lawfully travelling upon said way as aforesaid, and not being then and there apprised of the approach of said engine, — the said engine, being then and there so driven at a great and unusual speed, did then and there, by reason of said failure to give said warning as required by law, surprise and .suddenly strike and collide with said Keniston, then and there being drawn and travelling as aforesaid, and did then and there inflict divers fatal bruises, wounds and injuries upon the head, body and limbs of said Keniston, whereof he, said Keniston, then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say that said Keniston, on the said seventh day of May, in the year of our Lord one thousand eight hundred and seventy-four, was fatally injured in his person and thereby lost his life by collision with the said engine of said corporation passing over the crossing of said way by said railroad, at the same level therewith, and that said corporation’s neglect aforesaid to give the signals afore specified as required by law, contributed to said injuries and death, said Keniston not being at said time of said collision guilty of gross or wilful negligence, nor then acting in violation of law, nor contributing in any way, either by gross or wilful negligence or by any unlawful act, to such collision or injury, whereby said corporation has become liable to pay a fine not exceeding five thousand dollars nor less than five hundred dollars, to be recovered by indictment, and to oe paid to the executor or administrator of said Charles Keniston, for the widow and children of said Charles Keniston; and that Eliza Keniston, of said Somerville, widow of said Charles Keniston, has been duly appointed, and now is, the administratrix of the goods and estate of said Charles Keniston, and that said Charles Keniston had at the said time of his decease two lawfully begotten children, both of whom are now living. Against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided.”</p> <p>Trial in the Superior Court, before Aldrich, J., who allowed a bill of exceptions, which, after stating that Keniston was killed at the time and place mentioned in the indictment by a locomotive engine of the defendant, and that there was evidence that the said engine was going at great and unusual speed, and that no bell or whistle was heard by those near the place of the accident, at the time the locomotive engine approached and passed the crossing, set forth the evidence on the question of due care on the part of the deceased, and the evidence on the question whether Park Street had been established as a public way, (which is omitted as immaterial to the points decided,) and proceeded as follows:</p> <p>The judge instructed the jury that before they would be authorized to convict the defendant upon the first count, they must be convinced by the evidence beyond every reasonable doubt that Keniston, at the time he lost his life, was in the exercise of due diligence, and that his life was lost by reason of the gross carelessness and negligence of the servants of the defendant corporation ; that the indictment contained no charge of negligence or carelessness on the part of the corporation itself or of unfitness on the part of its servants, and that therefore the jury, before they could convict on the first count, must find that the gross carelessness or gross negligence of the servants of the cor poration was the sole cause of the death of Keniston, and that his want of due diligence in no manner contributed to his death, that if they entertained a reasonable doubt as to the affirmative proof of either of these propositions they should return a verdict of not guilty upon the first count, and that the burden of proof in support of both of the foregoing propositions was upon the government.</p> <p>In relation to the second and third counts, the jury were instructed that if they should be satisfied beyond a reasonable doubt, upon all the evidence; that the corporation did not give the signals required by the St. of 1862, c. 81, § 1, (all of which was fully explained to the jury,) and if they should in like manner be satisfied that the neglect on the part of the corporation to give said signals contributed to the loss of Keniston’s life, they would be authorized to convict upon these two counts, unless they should also be satisfied by the evidence that, in addition to a mere want of ordinary care, (which was explained,) Keniston, at the time of the collision, by which his life was lost, was guilty of gross or wilful negligence or was acting in violation of law, and that such gross or wilful negligence or unlawful act contributed to his loss of life.</p> <p>The jury were directed to return their verdict on each count separately, which they did accordingly,, returning a verdict of guilty on each of the first three counts; and the defendant alleged exceptions.</p> <p>The case was argued at the bar, and was afterwards submitted upon written arguments.</p>

<p>The St. of 1874, c. 221, prohibiting the employment of all persons under the age of eighteen, and of all women, in laboring in any manufacturing establishment, more than sixty hours per week, violates no contract of the Commonwealth implied in the granting of a charter to a manufacturing company.</p> <p>The St. of 1874, c. 221, prohibiting the employment of all persons under the age of eighteen, and of all women, in laboring in any manufacturing establishment, more ' than sixty hours per week, violates no right reserved under the Constitution to any individual citizen, and may be maintained as a health or police regulation.</p> <p>A law, which merely prohibits a woman’s being employed in any manufacturing establishment more than a certain number of hours per day or week, does not violate her right to labor as many hours per day or week as she may see fit, and is within the power of the Legislature to enact</p>

Complaint under the St. of 1875, e. 99, § 6, el. 4, alleging that the defendant, at a time and place named, “ did sell intoxicating liquor to one Fanny Stewart, she the said Fanny Stewart being then and there under twenty-one years of age.” Trial in the Superior Court, before Lord, J., who allowed a bill of exceptions in substance as follows: The evidence offered by the government showed that Fanny Stewart, a minor, was sent by her mother, an adult, who furnished her with…

<p>On the trial of an indictment for polygamy, it appeared that the defendant, being a Protestant, had been married in Ireland to a Roman Catholic, by a Roman Catholic priest, that he had cohabited with the woman there as his wife, and that he had afterwards, while his wife was living, been married to another woman in this Commonwealth. Held, that the law of Ireland must be proved as a matter of fact; and that, in the absence of evidence what that law was, the marriage there must be considered as legal.</p>

Writ OF error to reverse a judgment rendered for the Commonwealth, upon an indictment for an assault, at December term 1874 of the Superior Court in Norfolk, upon which the plaintiff in error was sentenced to the State Reform School.

Petition, filed at October term 1874, to make absolute a decree of divorce nisi obtained by the petitioner against the respondent at April term 1872, for extreme cruelty; and to award her a gross sum in full of all alimony, and instead of the sum of $4000 annually, as ordered by the court at April term 1873.

Petition to the county commissioners for a jury to assess damages for the taking of land for the widening of Washington Avenue in Chelsea.

Petition to the county commissioners for a jury to assess damages for the taking of land by the respondent to widen North Elm Street in Westfield. At the trial, before a sheriff’s jury, the respondent, by way of set-off to the petitioners’ claim for damages, offered to prove that the remaining land and premises of the petitioners had been benefited by the widening of the street, by giving a broader and handsomer avenue iu front of them, and by making them more convenient.

<p>By the St. of 1874, c. 55, the Old Colony Railroad Company was authorized to purchase the rights, franchise and property of the Middleborough and Taunton Railroad Corporation, and the latter was authorized to convey to the former its franchises and property, rights, easements, privileges and powers, and thereupon the former corporation was to “ be subject to all the duties, liabilities, obligations and restrictions to which said last named corporation may be subject.” Held, that the Old Colony Railroad Company, upon the completion of the purchase and conveyance, became directly liable in an action of tort for damage occasioned by the prior neglect of the Middleborough and Taunton Railroad Corporation.</p>

<p>By the St. of 1843, c. 54, the Norfolk and Bristol Turnpike Corporation was authorized to surrender its charter, and the towns through which a part of the road passed were authorized to lay it out as a common highway. The inhabitants of one of these towns voted in a town meeting to accept the turnpike as a highway, and authorized the selectmen so to lay it out, which they did, and made a record of it. It continued to be used as a highway to the year 1875. Held, that, whether the action of the town was or was not legally effectual, the attempted compliance with the provisions of the St. of 1843, c. 54, followed by actual, general and uninterrupted pnblic use of the road since, was enough to establish it as a highway. The provisions of the Gen. Sts. c. 43, § 82, do not apply to a turnpike road, given up to the public by the turnpike corporation by a surrender of its charter, and subsequently used as a public highway.</p> <p>Under the Gen. Sts. c. 43, § 12, the county commissioners, in making a new location of a road, have power to change its grade and to prescribe such manner of construction as the alterations ordered in its course and width may render necessary. Upon the neglect of a town to make a highway established by the county commissioners, the Gen. Sts. c. 43, § 49, impose upon them a duty, as to the exercise of which no discretion is left to them; and, upon their neglect, a mandamus lies to compel them to complete the way as ordered.</p>

<p>Contract upon the following agreement, signed by the defendant, and dated October 5,1874 :</p> <p>“ In consideration of one dollar and other good and valid consideration to me paid, I hereby agree, upon the delivery to me and in my name, within three days from the date hereof, of a quitclaim deed, conveying the land described in a mortgage deed to Winfield S. Partridge given by Edward K. Hood, said quitclaim deed to be given by said Partridge and said land to be free of all incumbrances except a mortgage now held by the South Scituate Savings Bank for twelve hundred dollars covering on a portion ef said land, to give said Partridge a first mortgage deed for twelve hundred and fifty dollars, payable in two years at eight per centum per annum, interest payable semi-annually, on my homestead estate situated on Essex Street, Lynn, Mass. And also a power of sale first mortgage upon a portion of said land to be conveyed to me by said Partridge for one thousand dollars, payable in two years with interest thereon payable semiannually at the rate of eight per centum per annum; said land being the westerly half of said land described in said mortgage from Edward K. Hood to W. S. Partridge.”</p> <p>The answer averred that the consideration of the contract was an agreement on the part of the plaintiff- to stop a criminal prosecution against Edward K. Hood, the defendant’s son.</p> <p>At the trial in the Superior Court, before Bacon, J., without a jury, the following facts appeared; In August, 1874, a complaint was entered in the Police Court of Lynn, against Edward K. Hood, for having mortgaged to the plaintiff in this action certain real estate in Lynn, without informing him of an existing incumbrance upon it. On this complaint, Hood was bound over to answer at the then next term of the Superior Court for the county of Essex. The land mentioned was the same as that referred to in the agreement declared upon. Upon the day before the grand jury met, one Silsbee, the plaintiff’s agent, went to the house of the defendant, and, according to his own testimony, told her that if she would purchase the land of the plaintiff at what it cost him, he having sold under his mortgage and bought it in, “ the matter,” meaning the prosecution, “ could undoubtedly be arranged.” Under this inducement the defendant signed the contract. The defendant testified that she signed the contract to save her son from jail, and that Silsbee told her “ the prosecution could be stayed.” It further appeared that at the time of the trial the complaint was still pending in the Superior Court, never having been heard by the grand jury, and that no acknowledgment of satisfaction had been made by the plaintiff in court or elsewhere of the complaint; that the amount agreed to be paid by the defendant for the land was the precise amount due by her son to the plaintiff at the date of the contract, and that the plaintiff thereby gave up to the defendant all the security he had for the amount.</p> <p>The plaintiff contended that the arrangement testified to might be made under the Gen. Sts. c. 171, § 28, as preliminary to an acknowledgment of satisfaction, and that, at common law, such a misdemeanor might be compounded by the party injured if he received no more than his damages by the injury.</p> <p>The judge found as a fact that the written agreement declared on was entered into by the defendant for the purpose of compounding said complaint, ruled that it was illegal and void, and ordered judgment for the defendant. The plaintiff alleged exceptions.</p>

Writ of entry to recover possession of a parcel of land in Lawrence. Plea, nul disseisin.

Bill in equity by the trustee under the will of Stephen Westcott, to obtain the instructions* of the court.

Petition bv the president of the Eastern Railroad Company and a creditor thereof, for the appointment of trustees under the St. of 1876, c. 236, the material provisions of which are stated in the opinion. Hearing before Ames, J., who reserved, for the consideration of the full court, the question whether the appointment should be made.

The defendant and O. and D. bought a quarry and afterwards sold a portion to B., taking his notes in payment. Held: in an action on this agreement by the assignees in bankruptcy of C. and D., to recover the amount of an unpaid note of B., that the agreement was a guaranty and not an original promise of the defendant.

<p>Where a change of grade in a highway is a part of its original construction, a petition for a jury to assess damages must, under the Gen. Sts. c. 43, § 22, be brought within one year from the time of the adoption of the order laying out the highway.</p>

Petition to the Superior Court for a jury to assess the damages to the petitioner’s estate on Silver Street in Boston. The petition alleged that the city had “raised the grade” of said street, and that certain damages were caused thereby.

<p>In an action to recover damages for breach of a contract to deliver a lot of plate-glass, the case was submitted to the Superior Court on an agreed statement of facts, from which it appeared that the contract was completed by correspondence between the parties in August, 1871, in which the defendants offered to furnish the glass within sixty days from the date of the order, and the plaintiff ordered the same, stating that it would not be needed before the following December; that on October 17, 1871, the defendants notified the plaintiff of the arrival of the glass, and requested shipping directions, and the plaintiff replied on November 3, 1871, that he did not then need the glass, owing to building delays, and offering to make a deposit to retain the glass until requiredthat on December 9,1871, the defendants informed the plaintiff that they would retain the glass subject to his order upon the receipt of $1500 on account, and on December 26 the plaintiff sent $400, and promised after the first of the year to do better; that from this time the parties continued to deal with each other, the plaintiff making purchases amounting to more than $400, and nothing further was said about the plate-glass until August 15, 1872, when the plaintiff directed the defendants to forward the glass; that the defendants on August 20 refused, because of the long delay and the plaintiff’s neglect to make the full deposit of $1500, and claimed the right to apply the $400 to the subsequent purchases of the plaintiff. The Superior Court found that the plaintiff was not entitled to damages on the plate-glass contract. Held, on appeal to this court, that the judgment disclosed no error of law, from which an appeal would lie under the Gen. Sts. c. 112, § 11; that the facts would warrant a finding that the judgment below proceeded upon the inference of fact that a reasonable time had elapsed, and that the plaintiff had waived his rights under the contract.</p>

Tort. Writ dated December 22, 1873. The declaration alleged that on July 16, 1873, James W. Cox and Judah H. Cox made a negotiable promissory note payable to the plaintiff or order in the sum of $3500, in two years from date, secured by mortgage of land in New Hampshire; that on November 21, 1873, the plaintiff and the defendant entered into an agreement in writing, a copy of which was annexed, and which was in substance that the defendant agreed to sell and the plaintiff to…

Tout for personal injuries. At the trial in this court, before Ames, J., the plaintiff testified that he was a native of Ireland, where he never had any employment, except in farming, and where he had never had any experience with machinery; that on May 12,1869, two days after he landed in this country, he went to the sugar refinery of the defendants’ testator, Seth Adams, to try to get employment, and was hired to work in the warehouse by one Dustin, the general agent or…

Tort for injuries sustained by reason of negligent and unskilful surgical treatment of the plaintiff by the defendant’s servants. At the, trial in the Superior Court, before Allen, J., the plaintiff put in evidence tending to show the following facts: The defendant was incorporated by the St. of 1810, c. 94.

<p>Where a negotiable promissory note, obtained from the promisor by fraud, has been transferred to a third party before its maturity, the burden of proof is upon him to show that he purchased it for value in good faith; and, to determine this, all the attendant circumstances of the transaction are to be considered.</p>

Contract upon the following agreement, signed by the defendants : “ Boston, April 20, 1874.

Bill in equity, by the holder of a mortgage upon a parcel of land, to redeem a prior mortgage thereon. Hearing, on the pleadings and an agreed statement of facts, before Ames, J., who reserved the case for the consideration of the full court. The facts appear'in the opinion.

<p>A letter issued by a firm of commission merchants, inviting consignments of goods and stating that they “will be covered by insurance as soon as received in store,” does not import that they personally were to be the insurers of such goods, and is fulfilled by their obtaining reasonable and proper insurance against fire.</p> <p>A consignee, who effects insurance upon goods consigned to him, in pursuance of an agreement that " all consignments will be covered by insurance as soon as received in store,” is not required to effect the insurance in the name of the consignor, or place the policy in his possession or control.</p> <p>Insurance effected by a consignee “ on merchandise his own or held by him in trust, or on commission,” is not limited merely to his proprietary interest, but enures to the benefit of the consignor.</p> <p>A consignee, who has made advances upon goods consigned to him, and effected in suranee for the benefit of the consignor, has, upon the destruction of the goods by fire without his fault, the same lien upon the insurance money that he had upon the goods themselves.</p>

<p>A., the equitable owner of certain real estate held in trust for him, and to be conveyed, if the trust should not be revoked in his lifetime, to the trustee named in his will for the benefit of his wife and children, took assignments to himself, and to a third person for his benefit, of certain mortgages to which the property was subject, and which it was his duty to pay as the equitable owner of the property. The trust was not revoked in his lifetime, and by his will he devised all the property held in trust for him to B. in trust for the benefit of his wife and children. Held, that the mortgages had been extinguished by the assignments to A., and that his administrator with the will annexed properly refused to charge himself with the mortgages in the Probate Court.</p>

The first CASE was an action of contract on the following agreement signed by the defendant, and dated August 17, 1871: “ In consideration of one dollar to me paid by the Hyannis Savings Bank, a corporation in Barnstable, doing business under the laws of the Commonwealth of Massachusetts, the receipt whereof is hereby acknowledged, I hereby agree, to and with said bank, to cause to be fully completed, without unnecessary delay, the several houses this day mortgaged to said…

Contract. The declaration contained five counts, and an amended count was subsequently filed. The defendant demurred. The case was reserved by Grray, C. J., on the declaration and demurrer, for the consideration of the full court, and appears in the opinion.

<p>Contract. The declaration contained two counts. The first count alleged that the defendant, on November 30,1872, insured the plaintiffs on their schooner, the W. J. Dale, on a fishing voyage, until her return to port. The second count alleged that the defendant had, on December 2, 1871, made a policy of insurance upon that vessel, on a fishing voyage, to terminate on her arrival in port; that she had arrived in port, sailed again on a fishing voyage in October, 1872, and, being absent, the defendant, on November 30, 1872, agreed to treat that policy as a policy for the fishing season ending November 30,1872, with the right to have it extended until the return of the vessel, and did on that day extend and continue the contract until the vessel should return to port. Trial in the Superior Court, before Allen, J., who ordered a verdict for the defendant, and reported the case to this court in substance as follows:</p> <p>James G. Tarr, one of the plaintiffs, testified that his firm had been in the fishing business since 1859, and had been members of the defendant corporation every year since that date; that in the forenoon of November 30, 1872, Cyrus Story, the secretary of the defendant, called at the counting room of the plaintiffs and asked how many vessels they had out at that time; that the witness replied that there were out, the E. K. Parker, the B. D. Haskins and the W. J. Dale; that Story asked where they were, and the witness told him where each was at the last intelligence, the Dale being at Newfoundland for herring; that the witness stepped to the safe, took out their file of policies, selected the three for the vessels named and laid them on the desk before Story, folded; that on the back of the policy issued December 2, 1871, was the printed indorsement, “ Expires Nov. 30th, 1872,” and this was exposed to view as the policies were folded and filed; that the policies were not opened by either party; that Story asked the witness, “Do you want these policies extended?” and the witness replied, “Yes, we want them extended ; we want these amounts insured until they come home,” or words to that effect or substance; that Story said that it was part of his business, that he would attend to it and see the entries made and insurance effected; and that he made some memoranda in a small book, which the witness did not see; that in the latter part of December, 1872, or early in January, 1873, he met Mr. Proctor, president of the defendant corporation, in the street, and that Proctor inquired if he had heard anything about the W. J. Dale, to which he replied in the negative; that Proctor said he was sorry, as the office was obliged to keep its settlement with the stockholders open on her account.</p> <p>On cross-examination, the witness said that his firm had subscribed for $40,000 of stock for the year 1871—1872, and given their notes with sureties as required; that the business of the company is closed, or supposed to be closed, on the 30th of November of each year, except in regard to vessels not then arrived; that there was enough of the subscription unapplied to cover the W. J. Dale if need be, or could be, so applied; that the Dale returned from her Newfoundland trip in January, 1872; that she sailed again and returned in the summer, and again sailed and returned in October, in which month she sailed again to Newfoundland, for herring; that she had fully performed the voyage specified in the policy of December 2,1871, and brought her cargo to Gloucester; that, at the time of the conversation with Story, he supposed and had always supposed that the Dale was insured, by the season, by an annual policy; that every other vessel of the plaintiffs was so insured for the season ending November 30, 1872; that he understood at the time that he was applying for an extension on the Dale, as on the other vessels, as an extension of the existing policies; that he intended insurance for the voyage which she was on by extension and a premium for that.</p> <p>On reexamination, the counsel for the plaintiff was allowed to ask the witness, “ Had you any other reason for supposing her to be insured for the season, and not for the trip, excepting the indorsement on the back of the policy ? ” To which he replied: “ Because of her employment and of the practice of the company, and the indorsement, no doubt, led to my not opening and examining the policies.”</p> <p>Stephen Dodd, another of the plaintiffs, testified that soon after November 30,1872, he went to the defendant’s office, looked over the application book, and saw that the applications for the three vessels had been entered on November 30, but did not notice their phraseology as to extension; that after that he met both Story and Proctor, at different times, and each asked if the Dale had been heard from, and said that they wished to close the office; that after the middle of January, Proctor came to his house, and informed him that upon examination he had found « that the Dale was not insured; that the witness said they considered her insured, and Proctor said the company would dispute it.</p> <p>It appeared that the plaintiffs, before November 30, 1872, had subscribed for $25,000 stock for the year 1872-1873, and given their notes as required; that in the course of the year they took insurance to the full amount by applications subsequent to November 30,1872.</p> <p>David Tarr, another of the plaintiffs, testified that a day or two after November 30, he called at the defendant’s office, and asked Story if the Dale was insured, „ and Story replied, “All right, she is insured; ” that subsequently, on two occasions, Proctor told him that all the other vessels insured by them had been heard from, except the Dale, and wished to know where she was, as they desired to close up the business of the office, •and, on one of those occasions, he asked the witness to telegraph to a certain point, to inquire for her.</p> <p>It was admitted, if competent, that Story and Proctor, at various times between November 30, 1872, and January 15, 1873, informed other members of the company that the non-arrival of the Dale delayed the adjustment of the business of the company for the year ending November 30,1872, and that these statements were made in answer to inquiries by persons interested.</p> <p>It did not appear that anything was done between the plaintiffs and the defendant, between November 30 and the notice to the plaintiffs, after January 15, as to fixing any premium, or as to applying the alleged insurance to any particular subscription of stock.</p> <p>All the evidence of conversations and declarations was admitted against the objection of the defendant.</p> <p>The declaration and answer, the application and policy of December 2,1871, the application of November 30, 18'72, and the applications and policies for the schooners E. K.Parker and B. D. Haskins, and the by-laws, were made parts of the report,</p> <p>The application of December 2, 1871, was as follows :</p> <p>“ No. 43. Vessel §5,000. Outfits $500. The undersigned this day makes application to have fifty hundred dollars insured on 7-8 of the schooner W. J. Dale, 69.72 tons burthen years old, whereof is master. Employed in the trip to Newfoundland. . Whole vessel valued at sixty hundred dollars. Also, on outfits, five hundred dollars.</p> <p>“ Dodd, Tarr & Co., by C. W.</p> <p>“ Gloucester, Dec. 2, 1871.”</p> <p>[Then followed the names in print of Joseph O. Proctor and nine other directors, with the word “ Yes ” written after Proctor’s name.]</p> <p>The policy dated December 2, 1871, for a premium of five per cent., insured the plaintiffs fifty hundred dollars on the schooner W. J. Dale, and five hundred dollars on the outfits, “ for a voyage from Gloucester to Newfoundland, from thence to a port of discharge of cargo of herring at some point north of Cape Henry, and thence back to Gloucester.” “ Commencing this day, and terminating on arrival of vessel at Q-loucester as aforesaid. And to be insured in the manner prescribed by the bylaws, and to be subject to all the restraints and liabilities therein set forth.” The words printed in italics were in the original policy written above the printed words, “ the thirtieth day of November next, at noon,” and these printed words were erased. The policy also.contained the printed clause: “In case of the non-arrival of the vessel November 30th, this policy can be continued on application to the directors, and a rate per cent, to be paid for such continuance being agreed upon.”</p> <p>The application of November 30, 1872, was as follows :</p> <p>“No. -. The undersigned this day makes application to have extension of policy of the schooner W. J. Dale, tons burthen years old, whereof is master. Employed in the Whole vessel valued at hundred dollars. Also, on outfits, hundred dollars.</p> <p>“ Dodd, Tarr & Co. pr C. S.</p> <p>“ Gloucester, Nov. 30, 1872.”</p> <p>[Then followed, in print, the names of the ten directors of the defendant; company.]</p> <p>This application was a printed form, and all was in print except the date, the words “ extension of the policy,” the name of the vessel and the signature.</p> <p>The applications for insurance and for the extension of the insurance on the other two vessels were similar to those in the case of the W. J. Dale, the blanks in the applications for extension not being filled out. The policy issued on the E. K. Parker was dated April 6, 1872, and terminated “ the 30th day of November next, at noon.” The policy issued on the B. D. Haskins was dated December 20,1871, and terminated “ the 30th day of November next, at noon.”</p> <p>The by-laws of the defendant company, so far as material, are printed in the margin.*</p> <p>If, upon so mucl of the foregoing evidence as this court should deem competent, the plaintiffs were entitled to go to the jury, the verdict was to be set aside; otherwise, judgment for the defendant.</p> <p>The case was argued in November, 1875, and reargued in January, 1876.</p>

<p>Bill in equity, filed December 30,1875, against Samuel T Ames, Lucy Ann Harris, James B. Ames, Jacob Bambauer, Henry P. Bambauer, Arnold Kendall and Henry H. Barrows, alleging as follows:</p> <p>That Lucy Ann Harris leased to Samuel T. Ames, by two separate indentures, two lots of land in Boston, one on Summer Street and the other on Lincoln Street, each lease being dated September 24, 1866, and being for the term of twenty years from January 1,1867, at a rent of $2700 and $300, respectively, payable quarterly; that the lessee built a store on the Summer Street lot, covering that or a part of that, and running back and covering also the rear part of the Lincoln Street lot, and another store on a part of the Lincoln Street lot, leaving a strip used as a passageway, and another piece of the land, between the two buildings, vacant, it being done at an expense of $30,000, paid by Ames; that said Ames, in 1873, gave two sub-leases, one of the store on Summer Street, to Kendall & Barrows, and the other, of the store on Lincoln Street, to H, P. Bambauer, at a rent reserved to Ames of $7000 and $1500, respectively; the underleases being each for the balance of the period named in the original leases, the lease to Kendall & Barrows being acknowledged and recorded, the other not. '</p> <p>That the Lancaster National Bank levied upon and sold the leasehold estates or terms of years held by Ames, upon an execution in its favor against him, and caused the same to be sold and conveyed thereon, the seizure being duly made August 11, 1875, and the sale duly made November 27,1875, E. N. Harris purchasing one, and conveying the same at once to the plaintiff, and the plaintiff purchasing the other, taking deeds thereof from the sheriff; that they respectively entered upon the premises, offered to pay rent to the original lessor, and to comply with the other covenants of the leases from Lucy Ann Harris; notified the sub-lessees and Jacob Bambauer, who was in possession of the Lincoln Street building as tenant, of the levy, and demanded rent of them; that Ames did not lease and convey in the under-leases all of the estates; that the original lessor required the plaintiff to procure $10,000 insurance, as provided in the original lease, payable to her in case of loss ; and he did so to her satisfaction and acceptance; that Ames recognized the validity of the levy, and by Ms procurement and consent the judgment creditor paid, after the levy and before the sale, rent due and accruing to the original lessor, and the plaintiff was induced to buy in reliance upon Ames’s said conduct, and his statement or assurance that the levy was valid, and the sale would be effectual to pass the leasehold estates.</p> <p>That Ames afterwards conspired and confederated with Kendall & Barrows, Jacob Bambauer, and Ms son, James B. Ames, to deprive the plaintiff of the benefit of his purchases and as assignee in law of the leasehold estates; that he retains and withholds, after notice and a demand for the counterparts of the leases and sub-leases, and refuses to deliver them to the plaintiff; declines to give up the leasehold premises, or recognize any rights of the plaintiff therein; proceeds to execute and deliver an assignment of the sub-leases and the original leases to his son, ostensibly for the benefit of Ms creditors, but really in fraud of the plaintiff’s rights, and in pursuance of said fraudulent combination ; and he and Ms son claim a right to collect the rents of Kendall & Barrows under the lease to them, and Kendall & Barrows refuse to recognize the plaintiff as entitled to the rent, and insist upon paying to Ames and his son, by virtue of the pretended assignment; that they do not pay Lucy Ann Harris her rent due, subjecting the leases to forfeiture; that after the levy was made and the parties knew of it, Samuel T. Ames proceeded to make and give fraudulently to Jacob Bambauer a new lease of the Lincoln Street store, dating it back to August 2, 1875, so as to make it appear to have been given before the levy, with a rent reduced to $1000 a year, with taxes, which new lease was in turn given up and another given in its place in November, 1875, antedating it to August 2, 1875, and with a rent reserved of $1000 a year, without taxes; that this was fraudulent, and done in pursuance of said fraudulent combination; that said Ames, then pretending that this last named lease was given before the levy, as stated, assigned the same under seal to the plaintiff, making no claim to that portion of the lands covered by the same, recognizing and acknowledging Ms rights as assignee in law to this sub-lease; that this was done to deceive the plaintiff and to defraud him, giving Jacob Bambauer the demised premises at a reduced rent; that the sub-lease to Henry P. Bambauer was Lb ver surrendered or cancelled, but was in full force, and the lessee thereunder is willing to and has recognized his liability thereunder to pay rent to the plaintiff; that, after the levy, Samuel T. Ames, under said combination, got, or pretends that he got, of Jacob Bambauer, the rent due on the Lincoln Street store in advance to January 1, 1876, and of Kendall & Barrows to April 1, 1876; that said parties claim that the sub-leases operated and were in fact assignments of the leasehold estates, and not sub-leases, and passed all of the lessee’s estates therein, so that there was no property subject to a levy and sale upon execution; whereas the plaintiff claims that they were sub-leases, and did not pass all of the property and estates of the lessee, and that he became assignee in law of the leasehold estates or terms of years created under the original leases, with a right to the sub-leases as incident thereto.</p> <p>That the lease to Jacob Bambauer and the assignment to James B. Ames are fraudulent, and put a cloud upon the plaintiff’s title, and serve to embarrass the same and obstruct him in his rights, and that they should be set aside; that Ames and his son should be restrained from interfering with the estates and the sub-tenants, and from collecting any rents under the subleases ; that Lucy Ann Harris should be compelled to reeognizé the plaintiff and receive rents from him as assignee of the leasehold estates under her leases, and the plaintiff be permitted to pay the rent due her, and perform the other covenants contained in the leases to prevent a forfeiture; that Ames be compelled to deliver to the plaintiff the counterparts of the leases and subleases, and the sub-tenants, Kendall & Barrows, Henry P. Bambaner and Jacob Bambauer should be compelled to recognize as assignee, and pay rents to the plaintiff under the sub-leases, and desist from paying to the said Ames and his son, or either of them, and should be compelled to account for and pay over the rents which have accrued since the levy was made; that if the sub-leases are operative as assignments, Ames and his son, or one of them, are liable to pay to Lucy Ann Harris, in contribution, a part of the rent to be paid her on the Lincoln Street lease, and that this be determined in the alternative.</p> <p>The bill contained a prayer to this effect, and for an injunction, and for general relief. Copies of the original leases and the sub-leases, as alleged, to Kendall & Barrows and H. P. Bambauer, were annexed to the bill. These are omitted as immaterial under the opinion of the court.</p> <p>Henry P. Bambauer answered, admitting all the material allegations of the bill; and the other defendants demurred for want of equity.</p> <p>Hearing before Gray, C. J., who reserved the case, at the request of the parties, upon the bill, and the answer of Henry P. Bambauer, and the demurrers of the other defendants, for the determination of the full court.</p>

<p>Tort for seducing a girl under twenty-one years of age, alleged to be the plaintiff’s servant. At the trial in the Superior Court, before Allen, J., there was evidence tending to prove the following facts:</p> <p>The girl was born July 13, 1855. In 1868 she came to live with the plaintiff and his wife, who was the girl’s sister, at Jamaica Plain, and thereafter, with the exception of her absence at school or on visits, continued to live in the plaintiff’s house as her home. There was no evidence of any intention on her part to return to live with her father, or of any intention on his part to invite her to return or to claim her services.</p> <p>The father of the girl.kept house with his wife and daughters in Waltham in 1862. In May, 1862, he broke up housekeeping and went alone to Newbern, North Carolina, where he was engaged in business till 1872. In the latter year he returned to Boston, and since then has resided there, boarding at different places. He was in the habit frequently of visiting at the plaintiff’s house. After the father’s removal to North Carolina, his wife and her daughters boarded, together till 1863, when the wife died. Thereafter the daughters lived in Roxbury with their aunt and grandmother until 1867. In that year, the girl went to Pembroke and remained a year on a visit. At the expiration of that visit she came to the plaintiff’s house at Jamaica Plain, as above stated. The father paid his family expenses until 1867, since which time he has been unable so to do, and has done nothing towards such expenses.</p> <p>From 1868 to September, 1871, the girl attended school at Jamaica Plain. During the vacations, and at other times when at home, she assisted her sister in the care of the latter’s children and of the house. No money was paid to the plaintiff for her board. Her grandmother furnished some money which paid for her clothing and her personal expenses. In 1870 her grandmother was appointed her guardian, and in that capacity held a small amount of property. In March, 1874, her grandmother died, and the plaintiff was appointed guardian, which appointment he still holds. In September, 1871, the girl went to school at Norton, and remained there till June 14, 1873, with the exception of vacations, of which there were three each year, amounting in all to about two months of each year. The expenses of this schooling were paid by the grandmother. The girl spent the vacations at the plaintiff’s house, there rendering the same service as before.</p> <p>In June, 1873, the plaintiff’s wife became insane and was removed to a hospital, and the plaintiff, in anticipation of his wife’s removal to the hospital in June, sent for the girl to return immediately from school. She at once left school and returned to the plaintiff’s house, arriving there June 14, the day subsequent to the wife’s removal. The school term ended July 1. On June 15, the plaintiff and the girl had a conversation about the household arrangements, and it was then agreed between the plaintiff and the girl that the latter should assume the care of the house and of the plaintiff’s children, and that she should be assisted by a nurse. An additional servant, who had been employed prior to that time, was discharged by the plaintiff a few days afterwards. Subsequently to June 15, the girl took care of the house, doing the necessary work, except the sweeping in the parlors and chambers, assisted the nurse a little in the cooking, and took the entire charge of the oldest child, a boy about five years old. After the plaintiff's wife’s return in January, 1874, the girl continued to render the same services, but an additional servant was then obtained to help her.</p> <p>The father visited at the plaintiff’s house before and after June 15, 1873, knew of the service which the girl was rendering, and acquiesced, without saying anything on the subject by way of assent or dissent.</p> <p>In August, 1873, the girl made a visit of about three weeks, taking with her the plaintiff’s oldest child, of whom she had the sole care during her visit. She went on this visit because, as she testified, she was run down by reason of her impaired condition of health. For the same reason, she afterwards made visits in 1874.</p> <p>There was evidence tending to prove that about June 1, 1873, while attending school at Norton, and subsequently while at the plaintiff’s home, during the sickness of his wife, the girl was seduced by the defendant; that prior to 1873, she was strong and well, and of gay, cheerful spirits; and that subsequently to June, 1873, her physical health became impaired, she became very nervous and irritable, lost interest in her ordinary occupations, and was unable to work as before.</p> <p>Upon this evidence, the presiding judge ruled that the action could not be maintained, and directed the jury to return a verdict for the defendant. The plaintiff alleged exceptions.</p>

Tort for personal injuries sustained by the plaintiff through the negligence of the defendant’s servants.

<p>This court has jurisdiction in equity, under the Gen. Sts. c. 113, § 2, 6L 9, to abate t private nuisance, which threatens a continuous and permanent injury to a right of way.</p> <p>The owners of several lots of land may join in a bill in equity to restrain a private nuisance which threatens a continuous and permanent injury to a passageway, in which they have a right of way in common, as appurtenant to their several estates.</p>

<p>A person insured made an oral agreement with a mutual fire insurance company to renew his policies when they expired on October 1, 1872. The new policies were made, signed and entered upon the company’s books as of that date, and remained in its office until after the great fire of November 9 and 10, 1872. The insured on November 14, 1872, called at the company’s office, paid the premiums, gave the deposit notes dated October 1,1872, and accepted the policies of the same date. The secretary of the company, in answer to his inquiries, said that in bis opinion the company had a large surplus, was sound and good and would go on. On November 23, 1872, the company was enjoined from going on with its business. The directors of the company voted to collect all premium notes, and levied an assessment on all policies outstanding on November 9 and 10, 1872. Held, on a petition in equity to compel the receivers to return the premiums, and to restrain them from collecting the deposit notes and the assessments laid on the policies, that, by his agreement and acceptance of the policies dated October 1, 1872, the policy holder stood in the same position and with the same liabilities as if he had taken his policies on that day. Held., also, that the statements of the secretary were merely the expression of an opinion, and not a misrepresentation of fact.</p>

<p>Contract for labor done in making repairs upon a highway. Trial in the Superior Court, before Wilkinson, J., who ordered a verdict for the defendant; and the plaintiff alleged exceptions, the substance of which appears in the opinion.</p>

<p>A contract, by which a shareholder in a corporation, in consideration of the purchase of a part of his stock at a price named, agrees to secure to the purchaser the office of treasurer of the corporation, with a fixed salary, and in case of his removal to repurchase the stock at par, is void as against public policy, and as a fraud on the other members of the corporation, in the absence of evidence that the transaction was not for the private benefit of the shareholder, or that it was consented to by the other members of the corporation.</p>

<p>Contract on a policy of insurance upon the life of Lysander R. E. Morris, payable to the plaintiff, his wife. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court on appeal, on an agreed statement of facts in substance as follows :</p> <p>The defendant corporation is a mutual life insurance company incorporated by the laws of the Commonwealth of Pennsylvania, and having its usual place of business in Philadelphia. On January 31, 1878, the corporation issued from its office in Philadelphia a policy of insurance on the life of Lysander R. E. Morris, a citizen of Boston, Massachusetts, for three thousand dollars, payable to the plaintiff within sixty days after due notice and proof of the death of the said Lysander; the corporation at that time transacting business in this Commonwealth by an agency established in conformity with the laws thereof, through which agency the application for this policy was made.</p> <p>The consideration of this policy was an annual premium of $95.91, payable on or before January 31 in each and every year during the continuance of the policy. The first premium of $95.91 was paid February 15, 1873.</p> <p>On January 31, 1874, the policy lapsed by neglect of the assured to pay the annual premium then due; but afterwards, at the request of the assured, and upon his undergoing a new examination by the medical examiner of the company, at the assured’s expense, the policy was reinstated, and the payment of the premium was changed from an annual to a semi-annual payment, and on March 17, 1874, a payment was made at Boston. No other premium was paid. Lysander R. E. Morris died on January 3, 1875, and due notice and proof of his death were given to the defendant. The defendant has paid nothing on the policy.</p> <p>It is further agreed that the facts, as they appear in this agreement, are such as to make the defendant liable to the plaintiff, according to the provisions of the non-forfeiture act of Massachusetts, St. of 1861, c. 186, provided the court find that act," under subsequent legislation, applicable to the said facts, and in such case judgment shall be entered for the plaintiff for $2948.04, with interest from April 11,1875 ; otherwise, judgment shall be for the defendant.</p>

<p>A bill in equity alleged an agreement between the plaintiff and defendant that the plaintiff’s shares of stock, allotted to him on the formation of certain mining companies, should be issued to the defendant as trustee, to be held by him until the assessments, to become due from the plaintiff thereon, should be paid; that the plaintiff had paid more than was due on his shares, as shown by an account annexed to the bill; that the defendant had sold the shares and appropriated the proceeds; and prayed for an account, for the balance due on the over-payment of the assessments, and for payment of the highest value of the stock since the plaintiff became entitled to it. Held, on demurrer, that the plaintiff had a plain, adequate and complete remedy at law.</p>

Petition to enforce a lien under the Gen. Sts. a. 150, for labor performed, in the construction of a block of buildings in Boston.

<p>Tort for breaking and entering the plaintiff’s close, and removing certain fixtures therefrom. The declaration contained two counts. At the trial in the Superior Court, before Brigham, C. J., the jury returned a verdict for the plaintiff, and a bill of exceptions was allowed, the material parts of which appear in the opinion.</p>

<p>Contract against the administratrix of David F. McGilvray. Writ dated October 28,1872. Trial in this court, before Gcray, C. J., who reported the case to the full court, in substance as follows:</p> <p>The defendant having obtained leaw* from the Probate Court to adjust this suit by arbitration, upon agreement of the parties it was referred by rule of court, October 21, 1874, and the ref' eree returned Ms award in favor of the plaintiff on January 15, 1876.</p> <p>On February 10, 1876, the defendant filed a supplemental answer, alleging that she had represented the estate insolvent, and commissioners had been appointed by the Probate Court, and moving for a continuance of the suit to await the proceedings in the Probate Court. The plaintiff moved for judgment upon the award.</p> <p>At the hearing upon these motions, the following facts were admitted: On September 25,1871, the defendant was appointed administratrix, and gave bond for $25,000. At about the same time, it was intimated to her by a tMrd party that the plaintiff intended to make a claim against the estate, and on March 17, 1872, he himself informed her verbally that he had such a claim, and in August, 1872, she received written notice from the plaintiff of his demand, in which were stated the several claims involved in this suit, amounting in all to $17,852.88. On September 27, 1873, the defendant made and obtained leave to file in the Probate Court an affidavit that she gave notice of her appointment within three months from September 25, 1871. On February 7, 1876, she filed in the Probate Court the statement of debts and representation of insolvency, and commissioners were appointed to receive and examine the claims of creditors. The first and only appraisal of the estate was made February 8, 1876, by appraisers appointed February 7,1876, and the defendant’s only inventory was filed February 9, 1876, and wMch included notMng besides property and the proceeds and income from property within the defendant’s control and knowledge at the commencement of her administration of the estate.</p> <p>Copies of the statement of debts, representation of insolvency, and the appraisement of the .estate were annexed to the report. The statement of debts showed debts due persons other than the plaintiff amounting to $18,600, and stated that the “ administratrix, believing no other debts to exist and that the said estate was solvent, paid, within a year or thereabouts after the decease of said McGilvray, all the above mentioned debts.” The statement then set forth the award in the present case, that the damages and costs therein amounted to over twelve thousand dollars ; that the estate not having sufficient cash assets to pay the first above mentioned debts, the administratrix, from time to time, advanced to said estate money of her own to pay said debts, and had reimbursed herself, from time to time, as she collected the assets of the estate; that the award, together with the first" named debts, with the expenses and charges of administration, amounted to more than the whole assets of the estate in her hands as administratrix; and that the estate was insolvent, if the award was sustained.</p> <p>The representation of insolvency set forth debts claimed to be due from the estate to the amount of $30,600, funeral expenses, $150, and charges of administration, $4000, making in all $34,750; and the assets: real estate, $10,000, and personal, $19,000, making in all $29,000; that the estate was probably insolvent, and praying for the appointment of commissioners,</p> <p>The appraisement stated the real estate to be valued at $6000, and the personal at $18,460.</p> <p>It was ruled that the plaintiff was entitled to judgment on the award, but not to execution thereon, and the case was reserved, at the plaintiff’s request, for the consideration of the full court, such judgment or order to be made as law and justice may require.</p>

<p>Writ oe entry to recover a parcel of land in Boston. Plea, nul disseisin. Trial in the Superior Court, before Pitman, J., without a jury, who found for the demandant, and allowed a bill of exceptions, the substance of which appears in the opinion.</p>

<p>The eirst case was a bill in equity by the heir at law of Joshua Sears against the trustees under his will, to enforce a resulting trust in the residue of his estate. The bill alleged the following facts:</p> <p>That Joshua Sears died on February 7, 1857, leaving the plaintiff his only child and sole heir, then a minor, and a will, dated February 5, 1857, and duly admitted to probate, as follows :</p> <p>“ Know all men by these presents, that I Joshua Sears, of Yarmouth in the Commonwealth of Massachusetts, merchant, do make and publish this my last will and testament as follows, to wit: I give to my brother Charles Sears of said Yarmouth twenty-five thousand dollars. I give to my brother Willard Sears of Hew Bedford in said Commonwealth twenty-five thousand dollars. I give, devise and bequeath to my nieces Hannah Sears and Catherine Sears, daughters of my brother Charles Sears, the house in said Yarmouth now occupied by said Charlea Sears, the stable and Register office with the land under and around them, being the same premises which said Charles Sears conveyed to me. It being understood that my brother Charles shall with his wife occupy the same during their lives and the life of the survivor of them, they paying the taxes and keeping the premises in repair. I give to my niece Mary Jane Myrick two thousand dollars in full for services rendered and which she shall render to my son Joshua Montgomery Sears until he shall be five years old. I give to my nephew Alexander Pomeroy Sears' ten thousand dollars. I give to my nephew Cyrus A. Sears ten thousand dollars, to be paid to him five thousand dollars when he shall be twenty-five years old, and five thousand dollars when he shall be thirty-five years old, the interest on said sums until payment of the principal is to be paid by my executors and trustees to said Cyrus or his guardian. I give to my nephew Isaac Myrick fifteen hundred dollars to set him up in business. I give to the other children of Isaac and Lucy Myrick one thousand dollars to each. I give to my nieces, the children of my sister Sally Crocker, fifteen hundred dollars to each. I give to the two children of my sister Hannah Hamblin one thousand dollars to each. I order and direct my executors and trustees to pay to my sister Hannah Hamblin the income of five thousand dollars during her life. I give to my executors and trustees five thousand dollars, in trust to pay the income to my niece Olivia R. Sears during her life, and after her decease said five thousand dollars to go to her heirs. I give to the town of Yarmouth, my native town, fifteen thousand dollars, for the purpose of founding a school on the North side of Yarmouth for teaching navigation and kindred sciences.</p> <p>“ I give to the Boston Seamans Friend Society three thousand dollars.</p> <p>“I nominate and appoint Alpheus Hardy of Dorchester in said Commonwealth, merchant, to be the guardian of my son Joshua Montgomery Sears.</p> <p>“ I nominate and appoint Alpheus Hardy of Dorchester, Horatio Harris of Roxbury, merchants, and Hugh Montgomery of Boston, counsellor at law, all of said Commonwealth, to be the executors of and the trustees under this my will, and it is my will and I request that my said executors and trustees shall not be required to give any other or greater bonds to the judge of probate than said judge shall under all the circumstances of the case in his discretion think best.</p> <p>“All the rest, residue and remainder of my estate I give to said Alpheus Hardy, Horatio Harris and Hugh Montgomery, their heirs and assigns, as joint tenants, in trust to hold, invest, manage and take care of the same according to their best knowledge and discretion, and I wish them to invest one half part of my estate in favorable purchases of real productive estate, stores to be preferred, looking well to the value and titles thereof.</p> <p>“ And I wish them to invest one half part of said estate in bottom mortgages on estates which shall be considered of twice the value of the money loaned thereon, the titles of such estates to be well examined.</p> <p>“ I give to my son Joshua M Sears the sum of thirty thousand dollars to be paid to him at the age of twenty-one years.</p> <p>“All such parts of the income of my estate which may be necessary for the support and education of my son I order to be used for that purpose, and, when he shall be twenty-one years old, I direct that four thousand dollars be paid to him annually, when he shall be twenty-five years old six thousand per year, and ten thousand dollars per year when he shall be thirty years old.</p> <p>“ And in case of the death of my son before he arrives to the age of twenty-one years, then I direct that ten thousand dollars be paid to the said town of Yarmouth for the purpose of a library and six thousand dollars for free lectures in said town.* And the residue and remainder of said estate I direct to be paid and divided, one third thereof to my brother Charles, one third to my brother Willard, and one third to the children of my brother Thomas W. Sears.”</p> <p>That Alexander Pomeroy Sears, Cyrus A. Sears and Olivia R. Sears, mentioned in the will, are the children of the testator’s deceased brother Thomas W. Sears.</p> <p>That the persons named as executors and trustees were duly appointed, and had, as executors, fulfilled their trust, and by their final account, which had been allowed by the Probate Court, there was in their hands, on the settlement of their account as executors, nearly a million and a half of dollars, with which they charged themselves as trustees, and the same constituted the rest, residue and remainder of the estate of said Joshua Sears, after payment of his debts, the legacies given by the will, and the charges of administration; of which amount, about three fourths were invested in real estate, and the other fourth in personal property.</p> <p>That the plaintiff arrived at the age of twenty-one years on December 25, 1875; and that the defendants, until the plaintiff arrived at the age of twenty-one years, appropriated such parts of the income of the trust estate in their hands as trustees under said will, as was necessaiy for his support and education.</p> <p>That the defendants have invested, from time to time, all the income of said trust estate in their hands, after paying the charges and expenses of the trust, and appropriating so much of the same as was necessary for the support and education of the plaintiff; and that the value of the trust estate, now in the hands of the defendants as trustees under said will, exceeds four millions of dollars, invested in real estate and personal property, and the annual income thereof exceeds three hundred thousand dollars.</p> <p>That said Joshua Sears, by his said will, provided, in case of the death of the plaintiff before he arrived at the age of twenty-one years, that ten thousand dollars be paid to the town of Yarmouth for a public library, and six thousand dollars for lectures in said town, and the residue and remainder of said estate he directed to be paid and divided, one third to his brother Charles Sears, one third to his brother Willard Sears, and one third to the children of his brother Thomas W. Sears.</p> <p>That in the event of the plaintiff arriving at the age of twenty-one years, said Joshua Sears, in and by his said will, made no disposition whatever of any part of the aforesaid rest and residue and remainder of his estate so given, as hereinbefore set forth, to the defendants as trustees, or of the surplus income thereof, beyond the sum of thirty thousand dollars to be paid to the plaintiff when he should arrive at the age of twenty-one years, and the payment of four thousand dollars annually to the plaintiff until he should be twenty-five years old, and the sum of six thousand dollars annually until he should be thirty years old, and the sum of ten thousand dollars when he should be thirty years old.</p> <p>That the plaintiff, having arrived at the age of twenty-one years, and being the sole heir of the said Joshua Sears, as such heir is entitled to so much of the trust estate in the hands of the defendants, and of the income thereof, as is not required for the payment of said thirty thousand dollars, and the payment of said sums of four thousand dollars, six thousand dollars, and ten thousand dollars.</p> <p>The bill then alleged payment by the trustees to the plaintiff of the sum of $30,000, and a demand and refusal to pay so much of the rest as was not required to pay the annuities in question.</p> <p>The prayer of the bill was that the defendants be ordered to convey to the plaintiff so much of the estate in their hands as trustees, and the surplus income thereof, as was not required for the payment of the annuities; and for further relief.</p> <p>The answer admitted the allegations of the bill, except as to the construction of the will; suggested that, by the last clause of the will, the residue of the estate, after providing for the annuities, should be paid to the brothers of the testator and the children of a deceased brother; and submitted the questions arising on the will to the judgment of the court.</p> <p>The case was reserved by Gray, C. J., on the bill and answer, for the consideration of the full court. Horatio Harris after-wards died, and his death was suggested of record, and the suit proceeded against the surviving trustees.</p>

<p>In replevin the plaintiff may, without alleging special damages, recover such damages for the detention of the property as the jury, upon all the evidence, may he satisfied that the use of the property, considering its nature and character, was worth to him during the time of detention.</p> <p>In replevin against an officer, who justified under an attachment on mesne process against the plaintiff’s vendor, the issue was whether the sale was in fraud of creditors, and the jury were instructed that the defendant must reasonably satisfy them that the attaching party had at least a probable cause of action. Held, that the defendant had no ground of exception.</p>

Tort for an arrest and false imprisonment. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court on appeal, on an agreed statement of facts, in substance as follows : The defendant employed J. E. Guppies & Co. to collect a bill in his favor against the plaintiff, amounting to twelve dollars and accrued interest.

<p>Bill in equity, filed December 29,1874, praying for an injunction to restrain the defendants from selling certain maps. Hearing before Ames, J., who reported the case for the consideration of the full court, in substance as follows :</p> <p>The defendant Beers resided in the State of New York, and the only service made upon him was by leaving, on December 30, 1874, a notice at his last and usual place of abode in that state, to appear and show cause why a preliminary injunction should not issue against him, as prayed for in the bill. On January 2,1875, an injunction was issued as prayed for. On January 5, 1875, Beers filed a special appearance “ for the purpose of excepting to the jurisdiction of the court,” and moved “ that the injunction be discharged and vacated for want of jurisdiction.” This motion was overruled, and he filed an answer to the bill, not waiving the objection founded on the want of jurisdiction of the court. There was no other or formal motion to dismiss the bill as to him on that ground. It was afterwards ordered that the injunction should be dissolved, provided the defendant Beers should, within one week from the date of the order, file a written stipulation, with sufficient surety, to indemnify the plaintiff against all damages and costs, according to the final decree of the court, if any such there should be, in favor of the plaintiff, and generally to comply with such final decree. This order having been complied with, the injunction was, on January 28, 1875, dissolved.</p> <p>The plaintiff was afterwards allowed to amend his bill by adding thereto a prayer that the defendants be required to render an account and to pay over to him all the profits of said publication, or an equitable portion thereof, or such as would have accrued if the work had been performed with proper skill, care and diligence.</p> <p>Upon the facts of the case, it was afterwards decreed "that, as to all the defendants except Beers, the bill should be dismissed, with costs; but that the bill should be maintained against him, and that the case be submitted to a master to ascertain and report the account between him and the plaintiff, and particularly what profits Beers had derived or should fairly be charged with, and what damage the plaintiff had sustained.</p>

Contract on a policy of insurance, for $1000, on the life of Flora A. Hatch, the wife of the plaintiff.

<p>Bill in equity originally brought by Andrew T. Hall, executor of the will and codicil of William Bramhall, and, after the death of Hah, revived by the administrator with the will annexed of the estate of Bramhall, to obtain the instructions of the court.</p> <p>The will of the testator, dated April 18, 1865, contained the following clauses:</p> <p>“Fourth. I give and bequeath the sum of twelve thousand dollars to said Andrew T. Hall, in trust, for the benefit of my son Robert Bramhall during his life, to be used and applied as follows : The said Hall is to keep the same safely invested, and pay to said Robert Bramhall all the net income thereof, as often as received, taking his receipt therefor.”</p> <p>“ Sixth. I give, devise and bequeath one eighth part of all the remainder of my estate, real and personal, to each of my two sons, William T. Bramhall and Thomas M. Bramhall, their heirs and assigns forever.</p> <p>“ Seventh. I give, devise and bequeath the other six eighth parts of all said remainder of my estate to the said Andrew T. Hall, in trust, to manage and take care of the same, keeping it properly invested, and pay over the income as follows: the income of one of said eighth parts thereof to each of my two sons William T. Bramhall and Thomas M. Bramhall, during their lives; and the income of two of said eighth parts to each of my two daughters, Elizabeth S. Bramhall and Maria S. Bramhall, during their lives; the income to be paid to my said daughters is to be paid upon their individual receipts respectively; or if they or either of them so elect, it may be retained by said Hall and invested for their or her benefit. The amount of all debts which at the time of my decease shall be due to me from my sons William T. Bramhall and Thomas M. Bramhall, whether by note or book account, is to be deducted from their respective shares, one half from the proportion given to them absolutely, and one half from the portion given in trust.</p> <p>“ Eighth. Upon the decease of any of said children, William T., Thomas M., Elizabeth S., and Maria S., I give, devise and bequeath that portion of my estate, of which the income is above given to him or her for life, to his or her children, their heirs and assigns forever. And if either of them shall die leaving no child, or more remote descendant, then living, I give, devise and bequeath such share to the others of said four children, in equal shares, their heirs and assigns forever.”</p> <p>The codicil, dated July 20, 1866, was as follows :</p> <p>“ First codicil to my will, dated the seventeenth day of April, 1865 : To wit, fourth of said will, wherein I give and bequeath to Andrew T. Hall, in trust, ten thousand dollars for the benefit of my son Robert Bramhall during his life, &c., this part of said will I now revoke and declare void; and instead thereof I give and bequeath to the said Andrew T. Hall, in trust for my son Robert Bramhall, during his life, an equal portion of all such property as I may die possessed of, as my other children may be entitled to under said will above named. The said Andrew T. Hall is to keep the same safely invested, and to pay to said Robert Bramhall such portion of net income thereof as often as received, taking his receipt for the same, or such sum or sums as may be necessary support and maintenance (respectably.) Should the income of the property coming to said Robert exceed his reasonable necessities and requirements, the excess, if any, I direct and request the said Hall to invest in some good securities, say state of Massachusetts or city of Boston securities.”</p> <p>The facts of the case and the instructions requested appear in the opinion. Hearing before Endieott, J., who reserved the case for the consideration of the full court.</p>

<p>Two actions OF tort for the conversion of buildings. Trial in this court, before Wells, J., who reported the cases for the consideration of the full court, in substance as follows :</p> <p>On April 3,1874, the plaintiff was the owner of certain buildings on the land of another on Green Street and George Street, public highways in Lowell, with the right to remove them therefrom. On April 17, the plaintiff filed petitions with the mayor and aldermen of Lowell, for licenses to occupy and use for the term of four days a sufficient width of certain streets in Lowell for moving the buildings from Green Street, through the public highways in Lowell, to a lot on Elm Street in that city, which the plaintiff owned. Each petition contained the following clause: “ In case said license is granted, and in consideration of the same, I hereby agree with the city of Lowell, that I will keep said portion of said streets, so occupied, in a condition to the acceptance of the surveyors of highways of the city of Lowell, and the said building shall be moved without delay.” These petitions were granted “on the terms and conditions named in the petition, provided said building be placed on wheels, and drawn by oxen.” On April 27, the mayor and aldermen revoked this license, and notified the plaintiff thereof on April 28. On April 29, the surveyors of highways of Lowell, in writing, notified the plaintiff to remove his buildings from the public highways of the city forthwith, and prohibited him from using them for the occupancy or removal of the buildings, for the reasons assigned that they obstructed and incumbered the highways, and hindered, incommoded and endangered public travel; and further, that, “ if, after thirty-six hours from your receipt of this notice, said buildings remain on the public highways, we ftka.il remove them therefrom at your expense.” This notice was delivered to the plaintiff on April 30, at half past eleven o’clock in the forenoon.</p> <p>One of the buildings, called the “long block,” was about ninety feet long, and for its removal two licenses were granted, each for a building forty-five feet long. In removing this build . ing, the plaintiff cut the same into four pieces of about equal lengths, moved one part through the streets to the Elm Street lot, prepared the next part for removal and removed it into Green Street, and did the same with the third piece. Another building was separated from its ell, prepared for moving, and moved into George Street, and cut so as to be moved in two pieces, and the ell was prepared for moving and moved into and through George Street and into Green Street. Two licenses were taken for this building, one for removal of the main part and another for the ell. Both parts were moved into the streets more than four days before' April 29. There was evidence that all these parts of buildings when moved into the streets, and until taken down by the defendants, stood so that horses and wagons could and did pass by them in the streets.</p> <p>On April 30, the plaintiff, on receiving the notice from the highway surveyors, commenced moving upon rollers, and not on wheels, the second section of the long block which stood in Green Street, and, working all night, got it on to the Elm Street lot on the morning of May 1, at about eight o’clock. He came back and attached his horses to the said third section, and was proceeding to move that on rollers by means of a windlass fixed in the highway and operated by a horse attached to the lever and travelling in a circle in the highway, intending to move that in the same manner in the route designated in the license, to the Elm Street lot, when the defendant Clemence, acting as city marshal of Lowell, and also under verbal direction of the surveyors of highways, stopped the plaintiff’s horses and forbade and prevented him from moving it further through the streets. The same was done with the ell and the two parts of the George Street building, and all this was done between eight o’clock in the morning and noon of May 1, and they so remained in the highway until May 2, when the surveyors of highways made the following order: “ In board of surveyors of highways. Lowell, May 2, 1874. Ordered: That the city marshal take down the three buildings or portions of buildings in George and Green Streets, supposed to be owned by Hugh Morrison, and incumbering the said streets, thereby incumbering and endangering public travel, and remove the material thereon to the city yard and keep the same there at the disposal of the owners.” Under 'this order, the defendant Clemence, with the defendant Howe', who was superintendent of buildings, and the city men and wagons, on that day took to pieces the main part of the George Street house, as it stood in the street, and loaded the pieces into the city wagons and conveyed them to a lot of land belonging to the city, about three fourths of a mile off, and stored them, and, on May 4, did the same with the ell of that building and also the third section of the long block standing on Green Street. When Clemence so prevented the removal, the plaintiff declared that he should leave the buildings in the hands of the city or of the defendants, and should have nothing more to do with them, and did not go near the buildings again.</p> <p>There was evidence that the removal of the buildings to Elm Street could have been completed at comparatively small expense if it had not been interrupted, and that when so placed upon Elm Street they would have been of much greater value than by any other disposition of them.</p> <p>The plaintiff asked the judge to instruct the jury as follows : “ 1. That no license from the mayor and aldermen to remove the buildings through the city was necessary, or required by law. 2. That the plaintiff was not prohibited by law from using the highways of the city of Lowell for the purpose of moving buildings, and is entitled to damages for any injury done that prop erty even though in the highway, unless such injury was authorized by law, and that there was evidence tending to show a conversion by the defendants or one of them. 3. That it should be left to the jury to determine whether the buildings or parts of buildings described, considered in reference to the time and place when and where, and the manner in which they were being moved, were suitable and proper to be moved along the highways of Lowell, established according to law for the general and common convenience of the whole community. 4. That if the jury should find they were suitable and proper, and were being removed in a reasonable manner with due diligence, the defendants would be liable for taking them to pieces and removing them to the city grounds, even though directed to do so by the surveyor of highways, and that under such circumstances the taking them to pieces would be a conversion. 5. That if the plaintiff, acting under the license in good faith and reasonable expedition, moved Ms buildings into the streets, and, with due diligence, in a reasonable manner, and without unreasonable delay, was moving them towards the place designated in the license, the license was not so revoked as to deprive him of the right to move the buildings over the highway towards the place designated, although the time named for the removal had expired. 6. That it was a misuse or destruction of the buildings to take them down and destroy their character and value; or that the jury should pass on that question, and if they should find it a misuse or unreasonable and unnecessary disposition of the property, or not required by the circumstances, the defendants would be liable in trover, even though they preserved the pieces and offered to return them to the plaintiff. 7. That if the buildings were nuisances or incumbered the travel, &c., as they stood in the streets, the surveyors could only authorize their removal or remove them, and could not legally destroy them, and to take them to pieces would be a conversion, although they offered to return the pieces. 8. That the highway surveyors had no authority to take down and destroy the buildings in the streets, and could not authorize the defendants to do so, and that at most it was a question for the jury whether that was a reasonable disposition of the buildings as they stood. 9. That if the buildings were put in the streets, prepared to be moved under the license, and the time named for the removal expired while they were there, or if the license was revoked by the mayor and aldermen while they were so there, that would not deprive the plaintiff of the right to finish the removal, with due diligence, to the place designated in the license, or to remove them tM’ough the streets as best he could to preserve them as buildings, if the jury should find such removals would be reasonable and proper under all the circumstances. 10. That the defendants would have no right to destroy the buildings or take them to pieces there, even under the order of the surveyors of highways, if the jury should find that it would be reasonable and proper that they should be moved tM’ough the streets, and that they could be moved tMough the streets without damage to the public, and without unreasonable hindrance and delay of others in the use of the streets.”</p> <p>The judge declined to give any of the instructions requested, but submitted the following questions to be answered by the jury: “ 1. Was the third quarter section of the long block moved into the street on.the afternoon of Monday, April 27th, or previously ? 2. Were the buildings allowed by the plaintiff</p> <p>to remain in the street longer than would have been necessary if he had exercised reasonable diligence in their removal? 3. Was the removal of the buildings by taking them down a reasonable mode of removal under the circumstances of the cases ? ’’ The jury returned the following answers : “ 1. It was moved on Monday, April 27th. 2. They were. 3. It was.”</p> <p>The jury were instructed that, in answering the third question, they were to consider that the plaintiff, at the time the buildings were taken down, had no right to have them removed entire through the streets of the city to his Elm Street lot; and the defendants were not bound to move them or cause them to be moved entire either- to Elm Street,or to a distance through any other streets of the city.</p> <p>The following question was also proposed to be submitted : “Did the defendants take possession of the buildings in any manner or for any purpose other than as city marshal, for the purpose of enforcing the city ordinances, or by authority of the surveyors of highways, for the purpose of removing them as obstructions from the streets ? ” It was agreed that the answer to this question should be in the negative, subject to the exception of the plaintiff on account of the exclusion of evidence offered by him to show that one motive, which influenced the defendants and the surveyors of highways to induce them to prevent the removal of the buildings through the streets, was a desire to prevent buildings of that class from being erected or placed upon Elm Street.</p> <p>The judge thereupon ordered verdicts for the defendants. If the plaintiff could not maintain the actions, or either of them, judgment was to be entered on the verdicts; otherwise, new trials to be ordered, and such disposition to be made of each of the cases as the court should determine.</p>

<p>Contract for supplies furnished Mary McCloskey from March 5, 1875, to April 10, 1875. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court on appeal, on an agreed statement of facts in substance as follows:</p> <p>Mary McCloskey, being the wife of James McCloskey and more than twenty-one years of age, and not previously having a settlement in this Commonwealth, resided with him, after she arrived at said age, in Boston, for more than five years together, without either of them receiving relief as a pauper, and James McCloskey never derived or acquired a settlement either in Boston or in any other place in this Commonwealth.</p> <p>If, upon these facts, Mary McCloskey acquired a settlement in Boston, judgment was to be entered for the plaintiff; otherwise, for the defendant.</p>

Tort for personal injuries. Trial in the Superior Court, before Rockwell, J., who allowed a bill of exceptions in substance as follows: The facts in the case which were undisputed showed that the defendant had a contract with the city of Newton to convey ■scholars from Newton Upper Falls to the high school-house near Newtonville in the morning, and to go for them at the close oí the session in the afternoon; that he employed a person for this purpose to drive a horse and…

Petition to the county commissioners for a jury to assess damages for the taking of land on September 16,1873, for the widening of Milk Street in the city of Somerville.

<p>In an action against a town for injuries sustained by reason of the want of a railing to protect travellers from falling down an embankment just outside of the limits of a highway, which the defendant town was bound to keep in repair, the plaintiff, a girl nearly nineteen years old, testified that she was passing along the way on the side where the embankment was; that she saw a horse and cart stretched across the way; that she thought how she was going to get by, and that there was room enough to pass safely between the cart and the embankment; that it occurred to her she must be careful or she would fall; that she kept on, when the cart commenced backing towards her and she stepped aside, falling off the embankment and sustaining the injuries in question. The judge instructed the jury that tbj plaintiff must have been in the exercise of ordinary care, such as a person of ordinary prudence, of the plaintiff’s sex and age, would commonly and might reasonably be expected to exercise under like circumstances, in determining whether she would attempt to pass while the street was obstructed by the horse and cart, and in selecting the place where to pass, and while passing, and at the time of the ao eidsnt. The jury found for the plaintiff. Held, that the instructions given were apt and sufficient, on the issue of due care on the part of the plaintiff, and that the evidence was sufficient to justify the verdict of the jury.</p>

Tort for running over and destroying fire hose laid across a railroad track. Trial in the Superior Court, before Bacon, J., who allowed a bill of exceptions in substance as follows : About half past two o’clock on Sunday morning, September 27, 1874, a fire broke out in a building at Hyde Park, about seventy feet westerly of the line of the Boston, Hartford and Erie Railroad.

Contract on a recognizance entered into under the Gen. Sts. c. 124, § 10, by George Francis as principal, and the defendants as sureties, and conditioned that Francis, who had been arrested upon mesne process, should, within thirty days from the day of the arrest, deliver himself up for examination before some magistrate authorized to act, giving notice of the time and place thereof in the manner provided by law, and appear at the time and place fixed for his examination,…

Tort for breaking and entering the plaintiff’s close, digging a ditch through it, and turning the water of Stony Brook through the same.