Volume 121 — Massachusetts Reports

<p>Writ oe entry. The case was argued at the bar in January, 1876, and was afterwards argued in writing.. So much of it as is material to the understanding of the point decided is stated in the opinion.</p>

<p>A right of way, whether acquired by grant or prescription, is not extinguished by the habitual use by its owner of another way, equally convenient, instead of it, unless there is an intentional abandonment of the former way.</p>

<p>The right to maintain water pipes under a highway gives no claim for compensation, under the Gen. Sts. c. 44, § 19, for damages sustained by reason of the raising of the grade of the highway.</p>

Contract upon the following promissory note, signed by the defendant: “Canaan, July 5,1873.

Contract for money had and received. The answer set up that the money was handed to the defendant to hold as stakeholder, on a wager as to the result of a horse race, and was to be paid to the winner; that both the plaintiff and the defendant knew that the wager was illegal, and aided and abetted in the race.

<p>Contract for the price of a quantity of hop beer sold by the plaintiff to the defendant in 1875, before the enactment of the St. of 1875, c. 99, regulating the sale of intoxicating liquors. Writ dated September 9, 1875, which was after the above mentioned act took effect. Answer, a general denial, and that the beer was intoxicating, and the sale thereof unlawful.</p> <p>The defendant also filed a declaration in set-off, to recover back the price paid by him for liquors alleged to be intoxicating bought of the plaintiff in 1875, and while the St. of 1869, e. 415, was in force.</p> <p>At the trial in the Superior Court, before Dewey, J., the plaintiff requested the judge to rule that the St. of 1875, c. 99, repealed the St. of 1869, c. 415 and that the claim in set-off was barred thereby; but, it being admitted that the payments in the account in set-off were made prior to the passage of the St. of 1875, the judge ruled that the repeal was not a bar to the claim in set-off.</p> <p>The jury found for the defendant on his account in set-off and also upon the other part of the case; and the plaintiff alleged exceptions.</p>

Contract upon a promissory note for $203.60, signed by the defendant, dated January 27,1875, and payable to the plaintiff three months after date. The answer contained a general denial, set up want and failure of consideration, failure on the part of the plaintiff to perform a condition precedent to the payment of the note, and fraud in procuring the same. The defendant also filed a declaration in set-off.

Writ oe entry to foreclose a mortgage, given by the tenant to secure the performance of a contract by herself and her husband to support and furnish suitable clothes to the demandant. Plea nul disseisin. At the trial in the Superior Court, before Wilkinson, J., the demandant testified that he made a request of the tenant for clothing, and that she referred him to her husband.

<p>o Tobt for the obstruction of the plaintiff’s right of way, and cutting down shade trees. The answer denied obstructing the right of way, admitted the cutting down of the trees, and justified the act through ownership of the soil. At the trial in the Supreme Court, a verdict was ordered for the plaintiff; and the defendant alleged exceptions, which were not allowed, and which were afterwards waived, and the case sent to an assessor to assess the damages.</p> <p>From the assessor’s report it appeared that in 1865 the defendant conveyed to A. Perry Peck a parcel of land in Northampton bounded and described as follows : “ Beginning on the line of the highway at the northeast comer of the land of Henry Watson; thence running 184 feet northwesterly on said highway to the new avenue as laid out by said grantor in his plan of lots; thence running westerly on said avenue 360 feet to a "bound stone, where another avenue intersects the avenue first above named; thence running southerly on the easterly side of said second avenue 425 feet to a bound stone; thence easterly at nearly right angles with said avenue 278 feet to the southwest corner of said Watson’s land; thence northerly and easterly on said Watson’s land to first mentioned point; containing three acres, be the same more or less, with the unrestricted right of way in and upon said avenues above named forever.”</p> <p>The question at issue was whether the first boundary line ran to the side of the avenue or to. the centre thereof, the alleged trespass being committed in that portion of the avenue lying between the centre and the plaintiff’s land.</p> <p>The assessor found that at the time this deed was made there was no monument at the end of the first boundary line; that there was one at that time at the end of the second and third lines, both of which monuments were at the side of the avenue; that afterwards the parties placed a monument on the first line at the side of the avenue, the distance from the point of beginning being 194 feet instead of 184 feet as stated in the deed.</p> <p>The plaintiff’s damages were assessed; and, on the coming in of the assessor’s report, the defendant objected to its acceptance, on the ground that the assessor erred in the construction of the deed to the plaintiff’s grantor; but, it appearing that the construction of the deed was a matter in issue at the trial in court, and that the assessor adopted the construction as then ruled, 0 Wilkinson, J.,' overruled the objection and ordered judgment upon the assessor’s report; and the defendant alleged exceptions.</p>

Writ oe entry to foreclose a mortgage of a parcel of land in Northampton. Plea, nul disseisin, with a specification of defence that the first named tenant had a homestead estate in the land. Trial in the Superior Court, before Putnam, J., without a jury, who allowed a bill of exceptions in substance as follows . The demandant is the assignee of a mortgage given by the first named tenant on May 25, 1863, to secure the payment cL $2500.

<p>Bill in EQUITY by Henry D. Wilcox against Hem an S. Lucas and Charles Alden. Hearing upon pleadings and proofs before (Jolt, J., who reported the case for the determination of the full court, in substance as follows:</p> <p>On January 22, 1864, Eras tus Wright, being the owner of a let of land in Chester, upon which were certain ores, metals and minerals, sold and conveyed to Lucas all the iron ore, metals and minerals in and upon a portion of the lot, (described by metes and bounds, being a strip ten rods wide, following the course of a vein of iron ore,) with the right at all times to ei ter for the purpose of digging and carrying away the same.</p> <p>On March 16, 1869, Wright sold and conveyed by warranty deed to Wilcox all the ores, metals and minerals in and upon the whole lot, (describing it by metes and bounds,) with like right to enter, dig and carry away, “ excepting and reserving all rights, privileges and easements conveyed ” by Wright to Lucas by the first deed.</p> <p>Wilcox and Lucas bought the property described in the second deed upon joint account, and as equal owners, and the deed was made to Wilcox alone, he holding the property under it as trustee for Lucas and for himself, because for some reason Lucas did not then desire to be publicly known in the transaction.</p> <p>While the property was so held, Wilcox and Lucas together negotiated a sale of an undivided third part thereof to Alden; and on April 1, 1869, Wilcox executed a deed of warranty, with the usual covenants, to Lucas and Alden, purporting to convey to them two undivided third parts of all the rights, privileges and easements described in the second deed, (repeating the description of the whole lot by metes and bounds,) “meaning hereby to convey to said Heman S. Lucas one undivided third part of the above described rights, privileges and easements, and one undivided third part to said Charles Alden.”</p> <p>The third deed, as between Wilcox and Lucas, was without further consideration, and was intended and understood to be an execution of the trust above mentioned, by conveying, for the joint benefit of Wilcox and Lucas, to Alden the share which he had bought, and by transferring to Lucas the legal estate in that to which he was equitably entitled. The scrivener who wrote this deed had before him at the time the second deed, or a copy of it; he was directed to make a warranty deed, but he was not told either to insert or to omit the exception or reservation named in the second deed, and nothing was said to him by either of the parties about it; and he left it out, in making the deed, because of the above direction, and because he supposed that its o omission was immaterial. At this time, Wilcox and Lucas and the scrivener, under a mistake as to the true interpretation of the deed in the location of the premises, supposed the situation of the iron vein, described in the first deed, to be such that no part of the property conveyed by that deed was included within the limits of the description of the second deed. There was no mistake or misunderstanding as to the language used in the third deed, nor any other mistake regarding it, except the mistake as to the situation of the iron vein. Alden was not present when this deed was prepared, and had no reason to expect that It would be made differently from what it was, and knew nothing about the iron vein or the first deed.</p> <p>On May 2, 1870, Wilcox conveyed his remaining third part of the property to Lucas, and Alden also afterwards conveyed his share to Lucas, so that Lucas became the sole owner of the property, subject however to a mortgage made by him to Alden.</p> <p>Lucas having begun the business of mining emery upon the land, and opened the mine with the assistance of Wilcox, the Chester Emery Company, which had become the owner of the rights conveyed by the first deed, brought an action of tort in the nature of trespass against Lucas, and recovered judgment for something more than $3000, whereby it was ascertained and determined that the minerals described in the first deed were upon the land described in the second and third deeds. See Chester Emery Co. v. Lucas, 112 Mass. 424. Lucas paid that judgment, and commenced an action at law against Wilcox for breach of the covenants contained in the third deed.</p> <p>The present bill prayed that Lucas and Alden might be ordered to correct and reform the third deed, so that the property and rights described in the first deed might not be included therein, and that Lucas might be restrained from prosecuting his action at law against Wilcox, and from selling or conveying the property and rights erroneously included in the third deed, and for further relief. The plaintiff at the argument waived all claim to relief as against Alden.</p>

Petition to the Superior Court, under the St. of 1871, c. 382, § 7, for a jury to revise a betterment assessed by the city council of the city of Springfield on land of the petitioner, on account of the widening of North Main Street.

<p>Contract for breach of an agreement to accept a deed of a house and lot purchased by the defendant at a sale by auction, and to pay the price at which it was struck off to him by the auctioneer. Writ dated May 3, 1875.</p> <p>At the trial in the Superior Court, before Putnam, J., the plaintiff put in evidence a memorandum in writing of the sale to the defendant on April 20, 1875, for $5450; and of a tender of a deed of the premises on April 30, 1875. The defendant refused to accept the deed, on the ground that there had been by-bidding at the auction, and this question was submitted to the jmy-</p> <p>On the question of damages the plaintiff offered to prove that the premises were sold by auction again for her on June 1,1875, upon conditions similar to those of the first sale, when it brought only . $4725 ; and the auctioneer testified that there had been no material change in the market value of the property at the time of the first sale and the time of the second sale, or the time of the tender of the deed; though he had never looked at the property for the purpose of fixing a value upon it. The defendant objected to this evidence, on the ground that it was a sale made after the action was brought. But the judge overruled the objection, and admitted it as competent evidence bearing on the question as to what damage the plaintiff suffered by reason of the defendant’s refusal to comply with his contract on April 30, 1875, and the value of the premises at that time. The jury returned a verdict for the plaintiff for $725; and the defendant alleged exceptions.</p>

<p>Several persons signed an agreement to pay to a street railway company a certain sum of money each, provided that the company would purchase a particular lot of land and put their depot and other buildings thereon, the subscriptions to be payable on demand “ when the sum required is subscribed hereto.” At the trial of an action on this agreement, it appeared in evidence that the amount required to purchase the lot was $2000, and that this was known before the paper was written, and was stated to the defendant when he signed it, and that a person had agreed to make up whatever was wanting to complete the sum of $2000 ; that $600 was subscribed on the paper, and the balance to make up the $2000 was paid. Held, that the action could be maintained.</p>

Indictment for abortion. On Tuesday, March 28,1876, the defendant was set at the bar for trial, in the Superior Court, and a jury was empanelled and sworn to Try the cause, and the prosecution proceeded to put in evidence. On the second day of the trial, the presiding judge was called home by the sudden sickness, followed by death, of his son.

<p>Indictment in three counts for three distinct larcenies from three different persons, at different times.</p> <p>At the trial in the Superior Court, before Colburn, J., William J. Flynn was called by the government as a witness, and testified to facts tending to connect the defendant with each of the larcenies. After Flynn had testified, it appeared that the name of the owner of the property described in the third count in the indictment was erroneously stated in that count, and the district attorney stated that he withdrew the charge in that count, and offered to enter a nolle prosequi upon it, or consent that a verdict of not guilty should be rendered on that count, and offered no further evidence upon it.</p> <p>After the testimony for the government was in, and before the defendant’s case was opened, the defendant recalled Flynn for cross-examination, and asked him if he had not given to one McCausland a different account of his knowledge of the property described in said third count from that which he had given at the trial; he said that he had. The counsel for the defendant was proceeding to examine him as to the statement made to Mc-Causland, when the district attorney objected; and, upon being asked his purpose by the court, the counsel for the defendant stated that he desired to examine the witness as to his statements to McCausland, and then contradict him by McCausland, for the purpose of showing that he had made statements to McCausland as to his knowledge of the property described in the third count inconsistent with the testimony he had already given. The judge ruled that the defendant was no longer on trial on the third count, and that the course proposed was not competent, and the witness was no further examined.</p> <p>The jury returned a verdict of guilty on the first count, but not guilty on the second and third counts of the indictment; and the defendant alleged exceptions.</p>

<p>Under the Gen. Sts. c. 63, § 98, a fine is not recoverable for the use of the next of kin of a person, not a passenger, who is killed by the negligence of a railroad corporation or its servants, and who leaves no widow or children.</p>

Complaint under the St. of 1875, c. 99, to the District Court of Northern Berkshire, averring that James Burke, at Adams, on May 15, 1875, “ unlawfully did sell intoxicating liquors to Leonard Furber, the said James Burke not having then and there any license, authority or appointment, according to law, to make such sale.” The warrant for the arrest of the defendant was issued by “ Jarvis Rockwell, justice of said court.” The defendant moved to quash the complaint, on the…

Complaint under the St. of 1875, c. 99, to the Police Court in Lee, charging the defendant with a single sale of intoxicating liquor, on July 1,1876, to Wilbur C. Winegar, at Lee.

<p>Indictment for a nuisance, in Main Street, in Great Barring-ton. In the Superior Court, before Rockwell, J., the facts were agreed to be substantially as follows :</p> <p>¡The alleged nuisance was the dwelling-house of the defendants, which stood, at the time of the finding of the indictment, where it had always stood, since it was built about twenty-seven years before, and during all this time it had been uninterruptedly occupied by the defendants, or their tenants. The highway in question was widened and relocated by the county commissioners of Berkshire, in 1852, and one of the east lines of the highway as relocated is described in the report of the commissioners, substantially as follows : “ passing through the house of Rodney Hill and Peter Crosta, six feet from the front of the main part of the same, and it is ordered that said house be permitted to remain on its present site during its natural life only.” The above described house, being the alleged nuisance, was the house referred to in the report of the county commissioners, and if in the highway it was there by reason of the relocation, and had remained there by reason of the permission supposed to have been granted in the location as above quoted. It was contended by the government that the county commissioners had no authority to grant permission for the house to remain in the highway, and that the defendants were indictable for maintaining the same, and the judge so ruled.</p> <p>It was also agreed that only a portion of the highway in question was known as Main Street, a part thereof and the part on which the dwelling stood, being commonly known as Water Street; but the part whereon the dwelling stood was sometimes covered by the name of Main Street, in general speech. For this reason the defendants contended that there was a material variance between the allegations describing the highway in the indictment, and the facts in reference thereto as agreed; but the judge ruled otherwise, and instructed the jury to return a verdict of guilty against both of the defendants. The defendants alleged exceptions.</p>

Indictment against Herbert M. Bowers and Ellen C. Newton, for adultery on November 2,1875.

<p>When the enacting clause of a penal statute merely refers, without otherwise stating it, to an exception in a subsequent section, the exception need not be negatived in an indictment, unless necessary to a complete definition of the offence.</p> <p>In an indictment on § 4 of the-Gen. Sts. c. 165, which enacts that “ whoever, having a former husband or wife living, marries another person, or continues to cohabit with such second husband or wife, in this State, shall (except in the cases mentioned in the following section) be deemed guilty of polygamy,” the exception, stated in § 5, of a person whose husband or wife has been absent for seven years and not known to be living, need not be negatived.</p> <p>On the trial of an indictment for polygamy, it appeared that the name of the defendant’s first wife was spelled “ Gigger ” in the indictment and in the record of the marriage. A witness testified that her name was spelled “ Jiger” or “ Jigr,” which he pronounced with the “ g ” hard. Held, that the question of misnomer was rightly submitted to the jury, and that they were warranted in finding that the initial letter had the soft sound, and the subsequent “g” or “gg” the hard sound.</p>

Indictment for larceny of “six bottles of whiskey, of the value of two dollars each bottle, six bottles of brandy, each bottle of the value of two dollars, of the goods and chattels of Charles H. White.” At the trial in the Superior Court, before Allen, J., there was evidence tending to show that the defendant, in company with two other boys, went with some empty bottles to a place at the head of certain outside stairs in front of a hotel, where the defendant stood, and the…

<p>Complaint to “ Charles E. Jenks, a trial justice in and for the county of Worcester,” charging the defendant with keeping for sale intoxicating liquors with intent unlawfully to sell the same. The jurat on the complaint was headed, “ Commonwealth of Massachusetts, Worcester ss.,” and was signed “ Charles E. Jenks, Trial Justice.” The warrant commanded the officer “to take and bring before the subscriber, or some other trial justice in said county of Worcester, the body of the above named Levi Huard,” &c.; and was signed “ Charles E. Jenks, Trial Justice.” The record, transmitted to the Superior Court on appeal, was as follows: “Commonwealth of Massachusetts, Worcester ss. By virtue of the within warrant, the defendant is brought into court this eighteenth day of November, A. D. 1875, and the within complaint is read to him, and being asked whether he is guilty or not guilty of the offence within charged upon him, says that he is not guilty; but after due and full examination it is considered by me that he is guilty of the offence charged against him. It is therefore ordered by said court, that the said defend- • ant pay a fine of $50.00 to the use prescribed by law, that he pay the costs of this prosecution taxed at $9.95, and in default thereof that he stand committed to either of the Houses of Correction in said county till the same be paid, or said defendant be otherwise discharged in due course of law.”</p> <p>The record further stated that the defendant appealed to the Superior Court for the county of Worcester, and recognized to prosecute his appeal, and was signed “ Charles E. Jenks, Trial Justice.”</p> <p>In the Superior Court, after a verdict of guilty, the defendant moved in arrest of judgment, because the record in said cause filed did not show:</p> <p>“ 1. That he was ever arraigned at any place within the jurisdiction of the trial justice who received the complaint herein.</p> <p>“ 2. That he was ever brought before said trial justice, or any other trial justice having jurisdiction of the subject matter of said complaint.</p> <p>“ 3. That he was ever tried upon said complaint before said trial justice, or any other trial justice having jurisdiction of the subject matter of said complaint.</p> <p>“ 4. That he was ever arraigned before any person or court having authority to arraign him.</p> <p>“ 5. That he was ever tried before any person or court having authority to hear and determine the subject matter of said complaint.”</p> <p>The motion was overruled; and the defendant appealed.</p>

<p>3n She triai of an indictment under the Gen. Sts. c. 160, § 28, charging the defendant with maliciously threatening to accuse a person named of a crime with the intent to extort money from him, evidence of the truth of the accusation is admissible upon the question of intent.</p>

Indictment on the Gen. Sts. e. 161, § 35, for larceny of money alleged to have been delivered to the defendant in trust and confidence to be by him delivered and paid over to the Washington Engine Company of Milford, a voluntary association and having a treasurer, Charles Peters, duly authorized to receive said money, and, before the defendant delivered and paid over said money to said company, embezzled and fraudulently converted by him to his own use.

<p>Indictment for adultery with Jane E. Lee, at Fall River, on January 1,1875.</p> <p>At the trial in the Superior Court, before Brigham, C. J., Ellen Bolton, who had been in this country about four years, testified that four years before she knew a woman in England who was called the wife of the defendant, and they had two children there; whether she was married to the defendant or not she did not know, and was not acquainted with her before she was married, if she was married, nor whether she was living or not oh January 1, 1875.</p> <p>Edward Herbert testified that he knew nothing about the wife in England, except what people said; that he had seen a woman in Fall River, and a child, who were called the wife and child of the defendant, but he did not know whether they were or not.</p> <p>Joseph G. Braley, a state detective and a deputy sheriff, testified that some time in January, 1876, he had a civil precept to arrest the defendant for debt, and that when he arrested him, he spoke of sending for his wife upstairs, and that a woman came down stairs and afterwards spoke about her husband, or getting bail for her husband; that the name of this woman in Fall River was Jane E. Lee; that afterwards, when he arrested the defend ant on the complaint for adultery, in April or May, the defendant said Herbert was the man who had caused his arrest, that Herbert was a smart little fellow, and that he would get even with him; that Herbert had caught him now, but that it would not take more than two or three years in jail to get out of it.</p> <p>The witness further testified as follows: “ After I got him to the court house, I asked him if he had a wife in England, and he said he had, that he left a wife and two children there, one of which was born after he left; he did not say when he left them, nor whether they were living now or not; he also said he had a wife and child here, but did not say when he married her, nor how long he had been married. He asked me then if it would help the matter if he got a divorce now from the woman in England.” The defendant objected to the testimony of Braley relative to the declarations while under arrest, in answer to the questions of the officer; but the judge ruled that they were ad- * missible.</p> <p>The defendant offered no testimony; and asked the judge to rule that there was no evidence that the alleged wife of the defendant was living at the time of the alleged adultery, January 1, 1875 ; and that there was no evidence that adultery had been committed with Jane E. Lee on January 1, 1875, or that she was then his reputed wife.</p> <p>The judge declined so to rule, but did rule that there was evidence from, which the jury might infer that the said alleged wife was living in England at the time of the alleged adultery, and that general repute of such marriage was competent evidence upon which the jury might find the defendant guilty, if they believed the testimony.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions. y</p>

<p>The 19th article of amendment of the Constitution of the Commonwealth, requiring the Legislature to provide for the election of “ clerks of the courts by the people of the several counties," does not apply to the clerk of a district court, whose jurisdiction is inferior to the principal courts, and extends over part of a county only.</p>

Indictment against John A. Coffey, David Prior, and Frank Cotey, for an assault and battery upon Mary Prior on August 16, 1875.

<p>Indictment in six counts. The first count alleged that David R. Brown, on December'1,1874, at Boston, “with force and arms, did unlawfully use a certain instrument, a more particular description of which is to the said jurors unknown, by then and there forcing and thrusting said instrument into the body and womb of one Ann Powers, otherwise called Emma L. Smith, she, the said Powers, otherwise called Smith, being then and there pregnant with child, with the intent of him, said Brown, thereby then and there to procure the miscarriage of the said Powers, otherwise called Smith; against the peace of said Commonwealth and the form of the statute in such case made and provided.”</p> <p>The fourth count alleged that the defendant, on December 10, 1874, at Boston, “with force and arms, did unlawfully use a certain instrument, a more particular description of which is to the said jurors unknown, by then and there forcing and thrusting said instrument into the body and womb of one Frances Ordway, otherwise called Frances A. Chase, she, the said Frances, being then and there pregnant with child, with the intent of him, said Brown, thereby then and there to procure the miscarriage of her, the said Frances; against the peace of said Commonwealth and the form of the statute in such case made and provided.”</p> <p>The indictment was found by the grand jury empanelled at January term 1875 of the Superior Court, to serve for six months, and was returned into court on February 6, 1875. On the first day of February term, before the grand jury had proceeded to the transaction of any business, and again, upon being called upon to plead to the indictment, the defendant filed a “ special plea to the array of the grand jury,” alleging that they were not impartially drawn from the whole body of adult male citizens of the county; that divers competent citizens were arbitrarily and illegally omitted from the list; and that they were not duly summoned and returned; and setting forth more particularly the grounds of objection. The district attorney filed a replication to this plea, traversing the allegations thereof, and setting up the St. of 1875, c. 5.</p> <p>Before the empanelling of a jury for the trial of this plea, the defendant tendered a similar “ special plea to the array of the petit jury,” which Brigham, C. J., overruled, without calling upon the district attorney to file a replication thereto, and ordered the trial to proceed upon the special plea already filed.</p> <p>Upon such trial, it appeared that the venire for the grand jury was issued in due form; that the jury list had been prepared by the mayor and aldermen by placing thereon such persons as they thought to be qualified to serve; that the mayor and aldermen, acting together with the city clerk, drew from the box the names of twenty-two persons, and afterwards of nine other persons, and the clerk made separate records of the twenty-two names and of the nine names, placing the latter in the order of their drawing, and delivered copies of both records, omitting from the first the name of one whom he discovered by the records of the city to have served as a juror within three years, to a constable, who discovered by the same records that three others of the twenty-two were exempt by law by reason of their employments, and summoned the remaining eighteen of the twenty-two, and four of the nine, and those so summoned were returned and served as grand jurors. The further particulars of the mode of drawing, summoning and returning these jurors are not material to be set forth.</p> <p>The judge instructed the jury that the grand jury was a legal body, and the indictment lawfully presented. The jury returned a verdict for the Commonwealth; the defendant alleged exceptions to the rulings aforesaid, and to other rulings at that trial, which it is unnecessary to state; and the case was continued to March term 1875.</p> <p>At that term, before the jury were empanelled, the defendant filed a motion to quash the indictment on the ground that “there is charged therein no legal offence legally, specifically and formally set forth, and the same is uncertain and insufficient.” Brigham, C. J., overruled the motion. The defendant then pleaded not guilty, and was tried, and found guilty on the first and fourth counts of the indictment, and not guilty upon the other counts; and a bill of exceptions in substance as follows was allowed:</p> <p>Emma L. Smith, called by the government, testified that on August 5, 1874, she saw the defendant at his office on Howard Street, in Boston, and consulted him as to her condition, and was thereupon told by him that she was either pregnant or had a tumor, and that his price for relieving her, by medicine, would be $25, or by an operation, $50; that the witness expressed her wish to take medicine for her relief, and, thereupon, received from the defendant a half package of medicine, for which she paid him $13; that the witness used this medicine as directed by defendant, without relief, and received, afterwards, more medicine from the defendant, for which she paid him $6, which she used without effect, and so subsequently stated to defendant, who thereupon advised her to submit to an operation by him, and exhibited to her instruments for operating on pregnant women, one of which, a steel instrument, he told her would throw her into labor in a few hours, and the other, a rubber instrument, with a syringe attached, which he told her might not operate for twenty-four hours or longer; that subsequently the defendant introduced into her person and to her womb, an instrument, which the witness did not see, causing her pain; that this operation was performed in a room she believed to be the defendant’s office ; and that, in about three days afterward, the witness, who remained in the house in which said office was, was delivered of a male foetus, which had apparently been a living foetus within a few days of its birth.</p> <p>Frances A. Chase testified that on or about December 10, 1874, she called at the defendant’s office, on Howard Street, saw the defendant and told him she thought she was four months advanced in pregnancy and asked him if he took such cases, and the price; that the defendant said he took such cases and the price was from $100 to $500, his lowest price $50; that she told him that all she could spare was $25; and that he then told her he sometimes took payment partly in cash and partly in notes, and agreed to take her case on these terms ; and thereupon, two promissory notes were written for her to sign; and, on the evening of the same day, she carried these notes to defendant, paid him $25, and went into a room adjoining his office, where he caused her to be placed in a chair, (the same which was exhibited to the jury at the trial,) and made an examination of her, which caused her considerable pain, which the defendant assured her would be over in a few seconds ; and the defendant told her, as he assisted her from the chair, that she would be all right; that the witness remained in said house the following night, in a room to which the defendant introduced her, and also during a week afterwards, when she was delivered of a male foetus, which was living before the acts of the defendant upon the witness’s person.</p> <p>John F. George, a police officer, testified as follows: “ I am a police officer of Station 3, and assisted in arresting the defendant about six o’clock p. M., on Sunday, December 13, 1874, at house 46£ Howard Street, and on the same night took some surgical instruments — which I now exhibit to the jury — from the drawer of a secretary from a back parlor up one flight of stairs. On the following day I took the defendant into the presence of Emma L. Smith and Frances A. Chase, and asked them in the defendant’s hearing and presence if they knew him; both said they knew him, one knew him as Dr. King, the other knew him as Dr. Brown. I asked them if he performed an operation on them, and they said he did. The defendant asked if they had been operated on previously by any other person ; they said No, they came there to be operated on to get rid of children. The instruments exhibited are all, of any account, I found in the secretary; I might have left some others there; I took only such as I thought would apply to this case, as Dr. Gilley suggested; there were some small instruments there like sail-needles.” All this testimony of the witness George, as well as the exhibition of the surgical instruments by him, were excepted to by the defendant.</p> <p>A chair, called by some of the witnesses “ a speculum chair,” which there was evidence tending to prove was used by the defendant in performing the operation upon Frances A. Chase, was brought into court during the trial, and it and its mechanism were exhibited to the jury, against the objection and exception of the defendant. The testimony of two persons who were physicians and surgeons was admitted, against the objection and exception of the defendant, both of whom testified that most of the surgical instruments exhibited were adapted to producing the abortion of pregnant women, although none of them could be said to be so exactly designed for such use as not to be apjropriate also for use in necessary and lawful acts of surgery.</p> <p>The defendant testified in his own behalf that the surgical instruments exhibited were none of them adapted to use in producing abortion, and were all adapted and in common use in lawful and necessary surgical operations. The defendant explained to the jury the purpose and use of each instrument and of said speculum chair, as he testified. The defendant offered and asked permission to read to the jury, books of medical authority as to any matter of which medical experts might testify, and as to the uses of any of the instruments exhibited. The evidence of such books was rejected by the court, and the defendant excepted. The defendant testified that he was a graduate of the medical department of Bowdoin College, and had practised medicine and surgery for from thirty to forty years; that the witness, Emma L. Smith, called upon him to be treated for a tumor on the neck of her womb, declaring that she did not think she was pregnant, and that the defendant examined and treated her medicinally and surgically for a tumor discovered by him on the neck of her womb; and that he neither administered to her or advised her to use any medicine which was capable of producing any abortive effect, or, by the use of any surgical instrument, did any act for the purpose of producing or tending to produce an abortion. The defendant also testified that the witness, Frances A. Chase, came to his office, in company with a man, who stated to the defendant that this woman had been operated on by a midwife to procure an abortion, and that the defendant undertook, at the request of this man, to treat said Chase, medicinally and surgically, to relieve her of a dead foetus in her womb, and of the maladies incident to her condition, when the defendant saw her for the first time; that the defendant examined and treated and operated upon the said Chase, exclusively for the discovery of a dead foetus in her womb, and its removal, and the cure of maladies incident to the death of that foetus, and denied any unlawful or criminal act in relation to her for the purpose of causing or having any tendency to cause abortion of a living foetus. The defendant also put in testimony tending to contradict the testimony of George, the policeman.</p> <p>The defendant submitted thirty requests for instructions to the jury, of which eleven were given; and the others are sufficiently stated in the opinion, except the following:</p> <p>“20. That an operation for the removal of-the tumor alone, although produced by the defendant, will not enable the jury to convict the defendant upon this indictment.</p> <p>“ 25. That under the first count, if it is doubtful whether abortion was produced or attempted by instruments or other means used for procuring abortion, without lawful justification, then the defendant is not guilty.</p> <p>“ 29. That, although the two women are by law not to be considered or treated as accomplices, still the jury are to take their statements with great circumspection and caution and discredit.”</p> <p>The judge also instructed the jury as follows : “ As by the defendant’s testimony it is confessed that he inserted into the bodies of each of the women named an instrument, which does not appear to have been known to the grand jury who found the indictment, on December 10th and on December 11th last, at Boston, the only practical questions to be considered by the jury in relation to the first and fourth counts are, first, whether, at the time when this instrument was inserted into their bodies by defendant, the women were pregnant with child; and second, whether this instrument was thus inserted into the bodies of these women unlawfully, that is to say, without justification in law. As to these two questions, the jury are instructed that the allegations of the indictment, that an instrument was forced and thrust into the bodies of these women, are substantially and sufficiently proved by evidence that such instrument was inserted into their bodies by any degree of mechanical force.</p> <p>“ As to the first question, the jury are instructed that the proof on the part of the prosecution must be, that, at the time of the defendant’s acts upon the bodies of said Ann Powers and said Frances Ordway, they were pregnant with children which had vitality, so that in the course of nature they could mature into living children. The statute is intended to prevent and punish the destroying of embryo human life, the germs of human life before birth in the course of nature, and would not apply to acts to procure the miscarriage of a woman having a dead foetus in her womb.</p> <p>“ As to the second question, affecting the lawfulness of the defendant’s acts, the jury are instructed that a physician may lawfully procure the miscarriage of a woman pregnant with child, by any means appropriate and reasonable for that purpose, directly or indirectly applied, if in so doing he acts in good faith for the preservation of the life or health of such pregnant woman.</p> <p>The justification of a physician thus acting must depend upon his exercising his best skill and judgment, and in the honest belief that his acts directly applied to produce a miscarriage, or applied to the treatment of a disease so as to involve a miscarriage, as a not unusual incident of such treatment, are necessary to save such pregnant woman from great peril to her life oi health, Acts for the purpose of procuring the miscarriage of a woman pregnant with child, to be unlawful, need not be done in a spirit of wanton cruelty or wicked revenge; but would be unlawful if done from any wicked, base or sordid motive, offensive to good morals or injurious to society. Such acts would be none the less unjustifiable because done by the consent or upon the. solicitation of the pregnant woman whose miscarriage was attempted to be procured, or because done to screen such a woman from exposure or disgrace, or for gain or reward.</p> <p>“ The possession by a physician of surgical instruments adapted to use in procuring the miscarriage of pregnant women would be explained consistently with that physician’s innocence of any intention to use them for unlawfully procuring miscarriages, if they were instruments also adapted equally to other and legitimate uses in surgery or midwifery, unless their extraordinary number and variety was in more than ordinary proportion to the whole number and variety of surgical instruments possessed by him, or the exigencies of his practice furnished him occasions for using; but the significance as evidence, of the possession of any number or variety of surgical instruments adapted especially to procuring miscarriage of pregnant women, would more or less depend upon circumstances, usual or unusual, ordinary or extraordinary, attending the mode of their possession and keeping, and the exigencies of such physician’s practice.</p> <p>“ Inasmuch as Ann Powers and Frances Ordway, by their solicitation of or consent to the acts of defendant, alleged to be unlawful, were severally implicated in these acts, and their unlawful and criminal character, that fact may justly be considered by the jury as affecting their credibility as witnesses and the force and weight of their testimony.”</p> <p>After verdict, the defendant filed a motion in arrest of judgment for the same reason assigned in the motion to quash the indictment. This motion was overruled; and the defendant alleged exceptions.</p> <p>The court directed the objections to the grand jury to be first argued.</p>

<p>Contract upon the following recognizance under seal: “ Commonwealth of Massachusetts. Berkshire, ss. Be it remembered that on the seventh day of April, in the year of our Lord eighteen hundred and seventy-three, personally appeared before me, Joseph Tucker, Esq., Justice of the District Court of Central Berkshire, holden at Pittsfield, in said county, Sidney A. Luce as principal, and Jesse Howard and Horace A. Hibbard as sureties, and acknowledged themselves to be jointly and severally indebted unto Collins B. Warner, in such a sum as shall cover the conditions of this recognizance, to be levied on their several goods or chattels, lands or tenements, and in want thereof, upon their bodies, to the use of the said Collins B. Warner, if default be made in the performance of the condition hereunder written.</p> <p>“ The condition of the above written recognizance is such, that the above named Sidney A. Luce, principal, shall prosecute with effect an appeal by him made from a judgment given by me, the said justice, against him, at a term of said court, held before me at said Pittsfield, on the fifth day of April, 1873, in favor of the said Collins B. Warner, and shall pay all rent now due, all intervening rent, and all damages and loss which said Collins B. Warner may sustain Vj the withholding of the premises, and by any injury done thereto during such withholding, together with all costs, until the restitution of the premises to the plaintiff in case the judgment from which this appeal is taken is affirmed, then this recognizance is void, otherwise in full force.”</p> <p>“Witness, Joseph Tucker, Esquire, at said Pittsfield, this seventh day of April, in the year of our Lord eighteen hundred and seventy-three. Walter B. Smith, Clerk.”</p> <p>The defendants demurred to the declaration on the ground that the recognizance was invalid because it was not “for a certain or definite sum, or for any penal sum.”</p> <p>The demurrer was sustained in the Superior Court, and judgment ordered for the defendants ; and the plaintiff appealed to this court.</p>

<p>A mortgagee of land, who has not taken possession thereof, cannot maintain an a& tian for forcible entry and detainer under the Gen. Sts. c. 137.</p> <p>A purchaser, under a power of sale contained in a mortgage of land, cannot maintain an action for forcible entry and detainer under the Gen. Sts. c. 137, when neither he nor the mortgagee has taken possession.</p>

Bill in equity, against the commissioners authorized by the St. of 1875, o. 193, to construct a highway and bridge across the Connecticut River at Turner’s Falls, to restrain them from taking land of the plaintiff for that purpose, and alleging, among other things, that the cost of the highway and bridge with suitable approaches thereto, including land damages, would exceed the limit imposed upon the defendants by the statute.

<p>Under the Gen. Sts. c. 129, if the declaration describes the plaintiff as a corporation, by reference to the writ in which the plaintiff is so described, and the answer denies each and every allegation in the plaintiff’s declaration, the plaintiff’s incorporation is put in issue.</p>

Conte act, on an account annexed, for the price of a lot of water proof cloaks of different dimensions, and one pair of sleeves, all manufactured from rubber cloth. The price of each article and the discount from the gross sum were stated in the account. The answer alleged a warranty and breach of the warranty, and a rescission of the contract.

<p>Although an infant is disqualified from serving as a juror, yet, if his name is on tho list of jurors returned and empanelled, his serving as juror does not entitle a party, against whom a verdict has been rendered, to have the verdict set aside, although he is ignorant of the fact of minority until after the verdict.</p>

<p>A mortgagee of personal property, summoned as trustee, under the Gen. Sts. c. 123, § 67, in an action against the mortgagor, and who, knowing that the property was attached, and that he was summoned as trustee, entered no appearance, filed no answer, and was defaulted, is estopped to maintain an action against the ofiicer for a conversion of the mortgaged property by a levy of execution thereon.</p>

<p>A canal company granted to a paper manufacturing company “ as much water as will be necessary to carry the machinery in a paper mill working eight engines, not exceeding one hundred and sixty pounds weight of rags to each; but the quantity of water so drawn is not to exceed the quantity necessary to carry six thousand spindles at the C. mill during the time said mill runs in the twenty-four hours, and using a wheel as large in proportion to the head and fall as is used in said mill, end of the same construction, unless an improvement is made before the wheel shall he constructed, in that case to he of the most approved model, if without additional expense; the water to be drawn from the canal at such distance from the surface, and applied to the wheel in such manner, as shall produce the greatest power with a given quantity of water; ” and also granted “the privilege of drawing water from said canal in the night-time,” provided it did not prevent the pond from being full an hour before sunrise in the morning; and also, “ in case the quantity of water named aforesaid, and drawn in the best manner to produce the most power, shall be insufficient to carry said machinery and eight engines,” to draw additional water, paying at a certain rate for the additional quantity so drawn. The C. mill was run only twelve working hours a day, and it had always been the practice of paper manufacturers to run their paper engines during the entire twenty-four hours of the day. The wheel originally put in by the grantee was of the best kind then in use, and was superior in efficacy to the wheel then in use at the C. mill.* Ever since the grantee’s mill was built, it was practicable to lower the wheelpit, and thereby to apply the water to the wheel so as to produce the same power by the use of a less quantity of water; but it did not appear that the actual position of the wheel was objected to by the grantor for twenty-five years, although, ten years after the wheel was built, a certain sum was paid, by a compromise between the parties, for excess of water used before that time. Held, on a bill in equity by the grantor against the grantee to prevent an excessive use of the water of the canal, (1.) that the grantee, within the limits expressed, had the paramount right to draw the water by night as well as by day, and not a mere right in common with the grantor or other mill-owners; (2.) that the quantity of water, to which the grantee was entitled, was not to be diminished by improvements in wheels or machinery since the original construction of the grantee’s wheel; (3.) that the position of the grantee’s wheel was authorized by the terms of the indenture and the understanding and acts of the parties, at least until objection was made and opportunity given to make such a change as to remove the objection; and that the bill could not be maintained.</p>

<p>Bill in equity to restrain the defendants from entering upon a parcel of land in Milford and interfering with the use and enjoyment thereof by the plaintiff. Hearing before Oolt, J., who reported the case for the consideration of the full court, in substance as follows:</p> <p>Sullivan Sumner, deceased, by a warranty deed, dated August 21,1850, in consideration of $600, paid by the Universalist Society No. 1 in Milford, conveyed to Leander Holbrook, treasurer of the society, a parcel of land on the east side of Pearl Street, in Milford, upon which the meeting-house of the society is situated. The deed contained the following provision: “ The said grantor covenanting for himself, his heirs and assigns, that the land between said premises and the county road, running from said Milford to Holliston and between the hotel occupied by L. B. Felton and the land of the proprietors of the brick meeting-house in said Milford shall forever remain common.”</p> <p>Darius Sumner, deceased, the father of Sullivan Sumner, by warranty deed, dated March 13, 1820, conveyed to Pearly Hunt and ten others, as proprietors in common, a parcel of land in Milford on which the old Universalist Meeting-house stands, by-deed containing the following clause : “ Said lot is hereby conveyed to said proprietors for a meeting-house lot to build a brick meeting-house thereon, and such sheds as may be necessary and agreed upon by said proprietors to accommodate said meetinghouse, the remainder to be kept for a common and for no other purpose; and the said grantor also hereby covenants to lay his lot common and not have any fence or obstruction between his dwelling-house and said meeting-house lot, so as to have but one common between the said. meeting-house and said grantor’s house, being the east line.”</p> <p>The two clauses quoted from the deeds describe the same parcel. Sullivan Sumner derived his title to the land conveyed by him to the society, and to the land described in the two clauses, by descent from his- father, Darius Sumner. The hotel estate mentioned in the deed of Sullivan Sumner is the same upon which the dwelling-house of Darius Sumner stood at the date of his deed to Hunt and others. Pearl Street has been laid out since the date of the deed of Darius Sumner. Both the deeds were recorded soon after their respective dates. The plan used at the hearing is printed in the margin.*</p> <p>On March 15, 1866, Sullivan Sumner conveyed the hotel estate, and the land described in the two clauses quoted, by warranty deed to Daniel S. Chapin. On October 1, 1867, Chapin conveyed the same premises by warranty deed to George D. Nichols; and on June 11, 1871, Nichols conveyed the saíne by warranty deed to the plaintiff. In neither of these three deeds was there any mention or exception made of any right acquired by other parties under the deeds from Darius and Sullivan Sumner.</p> <p> </p> <p>Road running from Milford to Holliston.</p> <p>The defendants contended that, under the deeds of Darius and Sullivan Sumner, they had acquired the right to have the land described in the two clauses kept open as a public common, that the society and its members had the right to pass and repass over all parts of the parcel, and that the plaintiff had no right to fence the land or erect structures thereon.</p> <p>If, upon the above facts, the bill could be maintained, the case was to stand for hearing ; otherwise, to be dismissed.</p>

Contract to recover $184, for work and labor. Writ dated April 12,1875.

Replevin of a horse, buggy and harness, of the value of f 125, Trial in the Central District Court of Worcester, the judge of which allowed a bill of exceptions in substance as follows: The writ was returnable December 11,1875; service was made by E. J. Russell, deputy sheriff, and the approval of the replevin bond was signed “ E. J. Russell.” On February 15,1876, the defendant filed an answer claiming the ownership and right of possession of the property, and denying that…

<p>Contract against the defendant as indorser of the following promissory note, signed by Lucius W. Pond as maker, and indorsed by him and the defendant:</p> <p>“ $500. Worcester, Mass. Aug. 23,1875. Four months after date, I promise to pay to the order of myself five hundred dollars at bank, value received.”</p> <p>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 :</p> <p>On August 23, 1875, Lucius W. Pond, of Worcester, applied to the defendant, who had indorsed notes for him before, to indorse the paper in suit which then was written and read as above set forth. The defendant indorsed the note for Pond’s accommodation. Pond thereupon by the use of chemicals, rendered invisible the words “ five hundred ” and the figures “ 500 ” in the note, and wrote over the same the words “ two thousand ” and the figures “ $2000,” respectively. Pond then procured the plaintiff in the ordinary course of business to discount the note, it being changed as aforesaid, as a note for $2000, and the plain tiff did so. The plaintiff and its officers were entirely innocent of any fraud. Before the note came due, Pond was arrested and imprisoned for a large number of similar transactions. The plaintiff, after the maturity of the note, applied to the writing, which set forth the amount for which the note was given, a solution of nutgalls, which, as had been proved by many experiments, would restore any writing rendered invisible by the means employed by Pond, and this application revealed that the change had been made from $500 to $2000. No other alteration had been made in the note. The defendant was present and did not object when the solution was applied. When the note became due it was duly presented for payment, was dishonored and was duly protested, at the demand of the plaintiff, both as a $500 note, and as a $2000 note, and the defendant was duly notified as indorser, two notices, one treating the note as a $500 note, and one as a $2000 note, being sent him and received by him. The defendant did not know of the alterations made by Pond in the note, and never assented thereto.</p>

<p>It is within the discretion of the presiding judge, on the coming in of the report of commissioners to make partition, to reject evidence offered to show that they had not divided the estate with discretion, if, assuming all the facts which it tended to prove, no cause is shown for recommitting the report.</p> <p>An estate, described, in the report of commissioners to make partition, as a homestead, is to he presumed to be of the value of $800, according to the Gen. Sts. t. 104.</p>

<p>Tort against Michael Cronan and John Cronan. The declaration was as follows.</p> <p>“ The plaintiff says that on or about August 4, 1870, by articles in writing, duly executed by both parties thereto, he formed a copartnership with John Cronan, one of the defendants, in the business of making clothing and buying and selling ready-made clothing, and by the terms of said articles said copartnership was to continue five years from its date aforesaid, and, at the time of the grievances hereinafter set forth, the said copartnership had a long time, to' wit, the period of about two years, to run, and said company had always done and were then doing a large and profitable business, and the plaintiff expected and had reasonable cause to expect that large profits would accrue to him from the continued business of said firm up to the end of said period. And the defendants heretofore, to wit, on or about October 10. 1873, with the unlawful purpose of forcing and compelling the plaintiff to withdraw from said firm and to dispose of his interest therein to them or one of them, unlawfully conspired together to accomplish said unlawful purpose, and in pursuance thereof, by false and malicious representations, and, by other unlawful inducements offered to various creditors of said firm, procured said creditors to attach on several writs all the stock in trade belonging to said firm, and to represent to the attaching officer that said goods so attached were liable greatly to depreciate in value, and to petition said officer to sell said goods forthwith on said writs. And the plaintiff says that said creditors, by reason of said false and malicious representations and inducements, did attach all of said goods, and petition for the sale of the same on said several writs as aforesaid; and said defendants, in further pursuance of .said unlawful purpose, induced said officer, and said officer threatened to sell all said goods in the lump, whereby the same were liable to be sacrificed and sold for much less than their true value. And the plaintiff says that by said unlawful means he was forced to and did withdraw from said firm against his will, and give up and surrender the large profits he reasonably hoped to make in the prosecution of said business in said firm, and sell and dispose of his interest in said goods for much less than its true value.”</p> <p>Michael Cronan died pending the action; and John Cronan demurred to the declaration on the ground that it set forth no cause of action.</p> <p>In the Superior Court, the demurrer was sustained, and judgment ordered for the defendant; and the plaintiff appealed to this court.</p>

Contract for $2325.47, and interest thereon, being money-paid by the plaintiffs to the defendant’s use, “ the same being one third of the amount paid by the plaintiffs on taking up and paying the following note, signed by Lucius W. Pond, and the plaintiffs : “ Worcester, May 18, 1870.

Tort for the killing of a horse. The declaration contained two counts. The first count alleged that the horse got upon the defendant’s railroad from a highway, through the defendant’s failure to maintain a suitable barrier or cattle-guard to prevent the entrance of beasts upon the railroad. The second count alleged that the defendant corporation, with its locomotive en gine and cars, wilfully, wantonly and maliciously chased, drove against and killed the horse.

<p>Contract to recover an instalment of $50, due May 80, 1874, and interest, against the indorser of the following promis spry note, signed by Honora May and William May: “ $1035.20. Fitchburg, November 30th, 1869. For value received I promise to pay John E. Davis, or his order, one thousand and thirty-five dollars and twenty cents as follows, to wit: fifty dollars at the expiration of three months from the date hereof, and fifty dollars at the expiration of each and every three months thereafter until the whole sum of ten hundred and thirty-five dollars and twenty cents is paid, with interest on the whole sum, at the rate of seven per cent., payable semi-annually.” Trial in the Superior Court, before Putnam, J., without a jury, who allowed a bill of exceptions in substance as follows :</p> <p>The making of the note and of the indorsement were admitted. It appeared in evidence that a demand was made upon the makers for the payment of the said instalment, and notice of its non-payment seasonably given to the defendant on June 2, 1874. This demand, however, was for the payment of said instalment, and interest then due upon said note, (some of the previous instalments and interest not having been paid,) and the notice given to the defendant stated that such had been the demand, and that the holders looked to him for the payment of said instalment and the interest due upon the note. The defendant had never been legally notified of the non-payment of such previous instalments.</p> <p>The defendant contended that the whole notice was invalidated by reason of its including notice of a demand for more than the indorser was liable to pay,- but the judge ruled that as the makers were liable for the whole, the demand was good, and that the notice was not wholly invalidated by reason of the demand covering more than the indorser was legally liable to pay, and found that the indorser was properly notified.</p> <p>It appeared in evidence that previous instalments and the interest upon the note, according to its terms, had not been paid except as by the indorsement of the proceeds of the sale of property, as hereinafter stated; that no notice of their non-payment was given to the defendant until, and except the notice of June 2, 1874, being the notice hereinbefore referred to, and the defendant contended that such want of notice for so long a period—, the plaintiff holding collateral security — was, under the circumstances, such a dishonor of the note and the instalment sued for as would discharge him as indorser; but the judge ruled that the defendant was not discharged thereby, so far as the amount of the instalment sued for and interest due thereon were concerned.</p> <p>It appeared that the makers of the note had given to the defendant, at the time of the making thereof, a mortgage of land, to secure its payment, and that the defendant had assigned this mortgage to the plaintiff, on May 2,1870, at the time when he transferred to it the note.</p> <p>On April 24, 1874, the real estate was sold at public auction, by virtue of a power of sale in the mortgage, and .for a breach of the condition thereof, for the sum of $995, and, after deducting the charges and expenses of the sale, the net amount of $970 was indorsed upon said note on May 2, 1874, and applied towards the payment of all of said note then due and unpaid. This application left the instalment now sued on still due and unpaid. The defendant contended that this application was illegal and that the plaintiff had no right to appropriate it in such a way as to cover instalments the non-payment of which he had not been notified of; but the judge ruled otherwise, and found for the plaintiff, in the sum of $54.25, being the instalment sued for and interest from June 2,1874; and the defendant alleged exceptions.</p>

Petition to the Superior Court under the St. of 1873, c. 261, for a jury to revise an award of damages made by the county commissioners to the respondent, upon its petition, by reason of the construction of the railroad of the petitioner. .

<p>Bill ru equity for the performance of an award and the settlement of the affairs of a partnership.</p> <p>. The case was heard at chambers in Boston, (the plaintiff being represented by W. A. Field, and the defendant by B. F. Thomas tf Gr. A. Torrey,') before Ames, J., who o'n October 23, 1875, made a decree, purporting upon its face to be by consent of the parties, requiring the defendant to pay certain sums of money and to execute certain conveyances, appointing a receiver, and referring the case to a master. On November 22,1875, the defendant appealed from that decree.</p> <p>On January 5, 1876, the plaintiff applied to the full court, sitting in Boston, to dismiss the appeal and affirm the decree, because it was made by consent. Notice of this application was given to the defendant, who appeared with counsel, and the matter was argued on January 13, 1876.</p>

Tort for breaking and entering the plaintiff’s close. Writ dated December 31,1874. Trial in the Superior Court, before Putnam, J., without a jury, who allowed a bill of exceptions in substance as follows: The trespasses complained of were admitted by the defendant to have been done by its agent; and the title of the plaintiff to the land in question was also admitted.

Tort under the Gen. Sts. c. 63, § 101, to recover damages for the destruction of the plaintiff’s property by fire communicated thereto by a locomotive engine of the defendant.

Replevin of a horse and other personal property, attached by the defendant, as a deputy of the sheriff of Worcester, on a writ against F. P. Brown, in favor of one Lincoln and others. Trial in the Superior Court, before Putnam, J., who allowed a bill of exceptions in substance as follows : .

<p>Machinery so attached to mortgaged premises, as to become a part of the realty as between mortgagor and mortgagee, by a mortgagor and his copartner, in part as a substitute for articles then removed, to be paid for equally by them, must be treated as annexed by the mortgagor, and he cannot, by any agreement with his partner, bind the mortgagee to treat the machinery as personalty.</p> <p>The possession of a mortgagee of land, who makes an entry on a certain date and records the certificate of such entiy within thirty days thereafter, commences from the date of the entry, and he may maintain an action for a trespass subsequent to the entry and before the record of the certificate.</p>

<p>Writ oe entry to recover possession of a parcel of land in Warren. Plea, nul disseisin. Trial in the Superior Court, before Gardner, J., who allowed a bill of exceptions in substance as follows:</p> <p>The issue was as to the true boundary line between the demandant’s lot and that of the tenant for a space of about seventy rods, there being no dispute as to the other parts of the line. The lots of the demandant and tenant, between which the line in dispute runs, were formerly parts of the same farm, known as the Chadwick farm, which became the property of Makepeace and Bosworth as tenants in common. They made a conveyance to the tenant of the western portion of the farm, by a deed in which the easterly line was described as follows, the portion now « in dispute being printed in italics: “ Commencing at stake and stone on the east side of meadow owned by J. W. Talbot; thence north 68^° east sixteen rods and twenty-two links to a large rock; thence north 10j/ east eighteen rods and three links to a corner of a wall; thence north 76° west two rods and twenty-three links; thence north 5° east forty-two rods and sixteen links; thence north 21¿° east six rods and eleven links, to the end of a wall; thence northerly 70 rods, to land of E. Elagg ; thence by land of Flagg to land of Josiah Henshaw; thence by land of said Henshaw to the road.” This deed also contained the clause: “ It being agreed that said Mullens, his heirs and assigns, shall maintain the northerly half part of the fence between said piece of land and the adjoining land of said Bosworth and Makepeace.” A plan of the land was introduced at the trial, the material part of which is printed in the margin.* Subsequently, Bosworth having conveyed his interest to Make-peace, the latter conveyed the portion of the farm lying easterly of Mullens’s line to the demandant, by a deed in which the description of the western boundary was as follows: “ By land of Talbot to land of Stephen Mullens; thence northerly on said Mullens to land of Flagg; thence northerly on said Flagg to land,” &c.</p> <p> </p> <p>The demandant contended that the line described in the tenant’s deed as running “ northerly seventy rods to land of E. Flagg,” was an irregular line, and ran N. 6|° W. 26 rods, thence N. 19° W. 18 rods, thence 1ST. 4§° W. 10 rods, thence 1ST. 10|° W. 8 rods, thence N. 16|-° W. 8 rods. The tenant contended that it •was a straight line.</p> <p>The demandant put in evidence showing that there was, at the time of the conveyance to the tenant, on the irregular line, an old fence much decayed and fallen, and that on the rest of the tenant’s easterly line was a stone wall; and offered paroi evidence of the acts and declarations of the tenant since he took his deed, as to the old fence being the boundary between the land of the demandant and that of the tenant, and of his treatment of the old fence as said boundary, with a view and for the purpose of showing the construction placed by him on the deeds in question, and on his deed as to his true easterly line at this point. The tenant objected to this evidence to prove that the line described as “ thence northerly 70 rods to land of E. Flagg ” could be the line of the old fence or other than a straight line. The judge overruled the objection and admitted the evidence.</p> <p>The line by the old fence measures seventy rods. The straight line, as claimed by the tenant, measures seventy rods, nine links, and this line strikes Flagg’s land six or eight feet westerly from the corner of Flagg’s wall.</p> <p>At the conclusion of the testimony, the tenant asked the court to rule as follows: “1. The deeds, construed together, fix the disputed line between the parties so as to preclude the possibility of the old fence being the boundary. 2. Under the circumstances surrounding the case, the deeds are to be construed to give Mullens a line from the end of the stone wall to Flagg’s corner.”</p> <p>The judge refused so to rule, but instructed the jury as follows : “ The acts and admissions of the tenant as to the construction given by him as to the boundary are to be considered by you, with the other evidence in the case, upon the question where this boundary line is, as was intended at the time the deed was given. In the absence of all controlling evidence, the true boundary would be a direct line from, the end of the cross wall to land of Flagg; but if you are satisfied that, at the date of the deed, there was in fact a fence passing in an indirect line from the end of the wall to Flagg’s land, and that this fence answers the distance called for in the deed; and you should also be satisfied, from the acts of the parties to the deed at the time of its execution, that they understood and intended said fence as the true boundary between their lands; the triangular piece of land " would not pass to the tenant.” Other instructions not objected to were given to the jury.</p> <p>The jury returned a verdict for the demandant; and the tenant alleged exceptions to the refusal to rule as requested and to the instructions given.</p>

<p>A bill in equity alleged that the plaintiffs were the assignees of the mortgagors of certain personal property, of which they were in possession; that they had fully performed ail the conditions of the mortgage and were entitled to hold the property discharged therefrom; that the mortgagees had given notice of an intention to foreclose and threatened to take possession of the property, by reason of which a cloud rested on their title, and prayed for an account. Held, that the bill disclosed no ground for relief in equity.</p> <p>.If the stating part of a bill in equity shows no ground for an account, a prayer for an account does not entitle the plaintiff to maintain his hill.</p>

<p>An award of arbitrators can be set aside upon the ground of mistake, only upon its being shown that the mistake was made by them upon their own theory.</p> <p>Where a case is referred to arbitration to determine the boundary line between two estates, a party, who under a misapprehension concedes an incorrect position of a point of division not in dispute, and is fairly put on his inquiry as to its true position, cannot object to an award made upon the basis of his concession.</p>

Tout for the conversion of a cow. Trial in the Superior Court, before Putnam, J., who reported the case for the consideration of this ‘court, in substance as follows: It appeared in evidence that the plaintiff’s cow strayed from his lot upon the adjoining lot of the defendant on Thursday, September 23, 1875. The cow had a clog upon her neck, and commenced jumping upon a young heifer of the defendant’s in his lot.

<p>Contract against the maker of a promissory note. Answer, 3 denial that the defendant made the note.</p> <p>After the commencement of the action, the defendant filed his petition in the court of bankruptcy and obtained his discharge, which was filed in the case. His assignee obtained leave to come in and defend, and the plaintiffs prosecuted the action for the purpose of obtaining judgment and execution against the property of the defendant attached in the action, and the as signee defended on behalf of the creditors. Trial in the Supe rior Court, before, Putnam, J., who allowed a bill of exceptions in substance as follows:</p> <p>There was evidence tending to show that on May 1, 1875, and before the defendant went into bankruptcy, the note, having been protested for non-payment, was presented to him, and he examined it, and said it should be arranged the following Monday. The plaintiffs also offered in evidence copies of the proceedings in bankruptcy, from which it appeared that the note in suit was contained and described in the schedule of the creditors of Jackson, signed and sworn to by him. This evidence was objected to on the ground that it was not admissible as against the defendant’s assignee; but the judge admitted it, and the defendant excepted.</p> <p>The plaintiffs contended, among other things, that if the jury were not satisfied upon the evidence that the defendant actually signed the note, yet that, by his conduct in reference to it, he was estopped from denying his signature.</p> <p>The presiding judge instructed the jury as follows : “ If, upon the whole evidence in the case, the jury shall be satisfied that the defendant, knowing that his signature was forged, by his words, acts or silence, gave the plaintiffs to understand that it was not forged, but was a genuine signature, intending thereby to cause the plaintiffs to rely on the note as his note, and the plaintiffs did so rely and act upon it, and were injured thereby, the defendant would be estopped to deny that his name was not a genuine signa turc, and that it was not put there by him or by nis authority.”</p> <p>The counsel for the assignee asked the judge to give these instructions : “1. Estoppels are not favored in law, because they operate to shut out the truth, and to prevent parties from asserting or defending their rights, by proof of actual existing facts. 2. There must be shown a wilful intent to induce the party to act on the faith of the alleged statements or representations, in addition to the fact that such statements were acted upon.”</p> <p>The judge gave the second instruction, as comprised substantially in the instructions already given, but declined to give the first.</p> <p>The judge stated to the jury, that if they found their verdict for the plaintiffs, he should inquire of them whether they found it on the ground that the defendant executed the note, or the ground of estoppel. The jury fouud for the plaintiffs, and answered in writing that they found on the ground that the defendant had “ acknowledged the signature to the note.”</p> <p>The defendant then filed a motion for a new trial; but the judge overruled the motion, on the ground that it appeared, by the special finding of the jury, that they did not find for the plaintiffs on the ground of estoppel, but on the ground that the defendant had acknowledged the signature of the note to be his; and being of the opinion that upon that ground the verdict was not against the weight of evidence.</p> <p>To the above rulings and refusals to rule the assignee alleged exceptions.</p>

<p>Petition filed in this court November 8, 1875, to establish the truth of exceptions taken by the petitioner at a trial by jury, in the First District Court of Plymouth, of an action brought against him by the respondent.</p> <p>The petition alleged that the petitioner seasonably presented to the presiding judge, and filed with the clerk of that court, a bill of exceptions setting forth the exceptions taken at the trial, and that a hearing was had thereon, but the judge had not allowed that bill of exceptions, but had prepared and filed a different one which did not truly or justly set forth the exceptions taken at the trial; and prayed this court to allow and hear the petitioner’s bill of exceptions.</p> <p>The respondent moved to dismiss the petition for want of jurisdiction.</p>

<p>Tort for injuries sustained by an alleged defect in a highway, which the defendant was bound to keep in repair.</p> <p>At the trial in the Superior Court, before Putnam, J., it appeared in evidence that there was a way in Nantucket, used for public travel, and known as York Street, which had been so used and known for a period of more than forty years. The defect complained of consisted of two posts standing on the southerly side of the way, against one of which the wagon in which the plaintiff was riding struck, so that she was thrown out and received injuries. This way varied in width from fourteen to seventeen feet, and, at the place where these posts were set, was seventeen feet wide, from fence to fence. The posts were twenty feet apart, and were three and two thirds feet from the fence, which marked the southerly line of the way. They were of wood, about three inches in diameter, three and two tenths feet in height, and painted white, as was also the fence next south.</p> <p>There was evidence tending to show that the foot travel on York Street was almost wholly on the southerly side of the street, and that this side of the way was worn hard by such travel; that there was no sidewalk on that side of the way, indicated by being raised, or otherwise separated from the carriage way; that there was no sidewalk on the north side of the street; that the carriage travel had worked towards the south side of the street, until, at a time about three weeks before the accident, the carriage rut upon that side of the way, and at the place where the post which was struck was set, was about the same distance from the fence as the post, and thence curved in towards the fence, being, at the easterly post, within eighteen inches of the line of the fence.</p> <p>The defendant put in evidence tending to show that the person, owning and occupying the lands adjoining this part of the way, caused these posts to be erected, to protect this foot way and to indicate the width of a sidewalk, and that the person setting the posts obliterated the old rut, and dug a horse track for a new line of travel, outside of and clear from the posts; that the wagons used in Nantucket were about four inches narrower than those used elsewhere, and that two of them, with due care, might safely pass each other opposite these posts. Upon several of these points, there was contradictory evidence put in by the plaintiff, tending to show that foot passengers took no particular line of travel in the street, and that, at the time of the accident, there was no obliteration of the old ruts; that the same were plainly visible, and led from the west, easterly (the direction in which the plaintiff was travelling) towards and up to the post which occasioned the injury.</p> <p>The defendant requested the judge to rule that these posts did not constitute a defect, for which the town would be liable; but the judge declined so to rule. The defendant then requested the judge to instruct the jury that these posts would not be a defect, for which the town would be liable, unless they unreasonably obstructed the way. The judge declined to. give this instruction; but upon these points instructed the jury, that whether or not these posts unreasonably obstructed travel was a proper matter for the jury to consider, as bearing on the question whether they constituted a defect in the highway; that the question for the jury was, whether they made travel unsafe for those travelling with due care, in the ordinary travelled path, as it then existed; if so, there was a defect; otherwise, not. The judge gave other instructions upon what constituted a defect, and due care, to which no exception was taken. The jury found for the plaintiff ; and the defendant alleged exceptions.</p>

Motion to dismiss the defendant’s bill of exceptions to rulings of Brigham, C. J., at a trial in the Superior Court at June term 1876, on the ground that the plaintiff had not been seasonably notified of the filing thereof. It appeared by the docket and files of that court that a verdict for the plaintiff was returned and recorded July 5, 1876. The certificate of the judge on the bill of exceptions was as follows: “July 31, 1876.

Contract for money had and received. 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, iu substance as follows: On or about October 16, 1872, the plaintiff, a resident of Fall River, bought of the defendant, who was also a resident of Fall River, a passage ticket from Ireland to America by way of the National Steamship Company’s line, for which she paid him 1160.

<p>Trustee process. The case was submitted to the Superior Court, and, after judgment discharging the trustee, to this court, on appeal, on an agreed statement of facts in substance as follows :</p> <p>The trustee had in his hands, at the date of service upon him, funds to the amount of §41.75. Patrick Harrington appeared as claimant of these funds, by virtue of the following assign • aient in writing, signed by the defendant, and duly recorded: “ Know all men by these presents, that I, Cornelius Murphy of Fall River, in the county of Bristol, in consideration of fifty dollars to me paid by Patrick Harrington of said Fall River, the receipt whereof I do hereby acknowledge, do hereby assign and transfer to said Patrick Harrington all claims and demands which I now have, and all which, at any time between the date hereof and the seventeenth day of November next, I may and shall have against the city of Fall River for all sums of money due, and for all sums of money and demand which, at any time between the date hereof and the said seventeenth day of November, 1875, may and shall become due to me, for services as a laborer in the employ of said city; to have and to hold the same to the said Patrick Harrington, his executors, administrators and assigns forever. And I, Cornelius Murphy, do hereby constitute and appoint the said Patrick Harrington and his assigns to be my attorney irrevocable in the premises, to do and perform all acts, matters and things touching the premises, in the like manner to all intents and purposes as I could if personally present. In witness whereof I have set my hand and seal, this sixteenth day of November, 1874.” At the time of the service of the writ on the trustee, the defendant was indebted to the claimant in the sum of $42 for necessaries furnished since the execution of the assignment; although the defendant had paid to the claimant the sum of $86, which was more than sufficient to cover all indebtedness existing at the time the assignment was given.</p> <p>If, upon these facts, the court should find that the assignment did not cover future advances, judgment was to be entered that the trustee be charged for $41.75; otherwise, judgment for the claimant and trustee discharged.</p>

Complaint under the mill act, Gen. Sts. c. 149. The answer set up that the respondent had a right to flow without any compensation to the complainant, because of a perpetual release and full satisfaction of all present and future damages therefor, by the former owner of the land described in the complaint ; and relied upon the following paper in support thereof, recorded in the registry of deeds: “ Mansfield, April 1, 1847.

Contract on a policy of insurance against fire, containing the following clause: “And it is further agreed that the company have the right of cancelling any policy whenever any three of the directors shall deem there is sufficient cause therefor; in such case the secretary shall give the party insured and the party to whom the policy is payable in case of loss, seven days’ notice in writing of the determination of the company to exercise this right, and the insured shall be…

<p>Under the St. of 1873, c. 340, § 4, which provides that “any person” whose land has been filled up for the abatement of a certain nuisance in Boston, if “ dissatisfied with the assessment of the expense of raising the grade of his said land, may give notice thereof to the city council within six months after such assessment is made, and the city shall thereupon take said land,” one who owns an equity of redemption in such land may surrender to and require the city to take such interest.</p> <p>Under the St. of 1873, c. 340, if the city council lays an assessment of the expense of filling land to abate a nuisance, thereby creating in the landowner a right to surrender his estate to the city, it exhausts its authority, and cannot, by vacating the assessment,, deprive the landowner of his right to surrender, tinder the St. of 1873, c. 340, if a parcel of land has been over-assessed for the expense of filling the same for the abatement of a nuisance, the assessment is not on that account illegal.</p> <p>Where the order of a city council, in taking land surrendered to the city, requires a description, signed by the mayor, to be filed in the registry of deeds, and the mayor relies upon a vote of the city council, vacating an assessment upon the land, as depriving the owner of his right to surrender, a writ of mandamus, to compel the city to take the land, should issue to the mayor as well as to the city council.</p>

<p>Bill in equity, filed June 26,1874, by the trustees under the will of William Phillips, alleging that the testator died April 8, 1873, and that by his will the residue of his estate was given to the plaintiffs in trust to pay the net income thereof, as often as semi-annually, to John C. Phillips, during his natural life, and upon his decease, if he should' leave issue surviving him, to pay over, transfer and convey the principal or capital of the trust fund to and among his lawful issue; but if no lawful issue of John 0. should be living at his decease, then to pay over the net income of the trust fund, as often as semi-annually, unto John Phillips, son of Thomas W. Phillips, during his natural life, and at his decease to pay over, transfer and convey the principal or capital unto the lawful issue of John Phillips; that John C. Phillips is living, unmarried, without issue; that John, son of Thomas, is living, married, and has four minor children; that on April 8,1873, when the testator died, different portions of his real estate were occupied by tenants, some at will and some un der leases, who paid rent by the quarter or month, and that the quarters or months had commenced, but were not terminated, on April 8,1873, and that the amount of rents which were accruing and had not then become payable was $8448.78; that by the terms of the leases rent was payable for each quarter or month during its term, and at that rate for fractions of a quarter or month, and that the lessor had the right under each lease to terminate it, in case of the destruction of the buildings on the leased premises by fire or any other unavoidable casualty, or if they were injured by such causes so as to be unfit for habitation; and that the leases also contained the usual clause of entry and forfeiture in case of a breach of the conditions of the lease; that on April 8, 1873, portions of the testator’s personal property were invested in bonds and notes, and the interest on them was accruing and had not become payable, and that the amount of such interest was $25,925.65, and that some of these were bonds of the United States, issued under different statutes thereof; that the executor under said will collected said rents and interest at about the times the same respectively became payable, and paid the same over to the trustees under said will; that the plaintiffs held the same, and were in doubt whether said sums, or either of them, or any part thereof, after deducting proper commissions, should be paid over to said John C. Phillips, or added to the capital, and asked the instruction of the court thereon, and that the defendants might interplead and set forth their respective interests in said sums; and for further relief.</p> <p>The answers admitted all the allegations of the bill; John C. Phillips contending that the said several sums, as to which instructions were asked, after the deduction of all proper commissions, belonged to him as income; and John Phillips, as well as Richard Olney, who had been appointed by the court guardian ad litem of the infant defendants, and next friend of all persons, not ascertained or not in being, who might be interested in said sums of money, or either of them, contending that said sums should be added to the capital of the fund.</p> <p>Hearing on the bill and answers, before Fndicott, J., who reserved the case for the consideration of the full court.</p>

<p>A testator, by the third clause of his will, devised an estate to trustees in trust to employ the net income, at their discretion, for the use and benefit of his son G. during his life, and on his death to his children. On the son’s arriving at the age of twenty-one years, he was to be allowed to collect the rents, if capable, the trustees to continue their superintendence. If the son should die and leave no children, the trustees were directed to pay so much of the income as was necessary for the benefit of the testator’s son A. during his life. By the fourth clause, a second estate was devised to trustees in trust, to apply the income for the benefit of A. during his life, and if the income should be insufficient, the trustees were directed to take, from the income of the other property, a sum sufficient for that purpose, so that not more than one half of the property devised for G. should be appropriated for that purpose. By the fifth clause of the will, the testator devised an estate on C Street, and another on D Street, to trustees, in trust “to take and receive the rents and income of the same for the use and benefit of my son G. until he arrives at the age of forty years, and on his attaining that age, or should die leaving issue, then to the use of said G. and his heirs, unless said premises should be destroyed by fire; then my will is, that the trustees do sell the land, and place the proceeds in trust, the interest or income thereof to be applied for the use of my sons G. and A. in equal shares, the income of A.’s share to be appropriated by said trustees or his guardian during his natural life.” By the eighth clause, another estate was devised in trust, the income to be appropriated as in the third clause of the will. The fifteenth clause of the will provided as follows : “ In case both my son G. and A. should die without issue, my will is, that all the residue of my real estate hereinbefore limited, appointed and devised, and all my other estate, real and personal, be divided among my nephews and nieces,” &c. A. died without issue. Afterwards G. died, over forty years of age, intestate and without issue. No part of the estates, mentioned in the fifth clause of the will, had been destroyed by fire or sold by the trustees. Held, that G. had only a life estate therein.</p>

<p>A testator, by his will, devised the residue of his estate to trustees, in trust to pay the income to Ms son for life, and, on his death without issue, to be divided among his nephews and nieces, namely, the children of his brothers and sisters A., B„ C. and D., during their natural -lives, “ and after their decease to be equally divided among their children or their legal representatives.” No nephews or nieces were bom after the testator’s death. The son survived A., B., C. and D., and died without issue. Some of the testator’s nephews and nieces died before the son. The heirs at law of the testator released all claim, and a petition for partition was submitted to the court upon a case stated, in which it was agreed that the estate should be deemed to be held according to the intention of the testator, without regard to any question of invalidity for remoteness. Held, that the estate was to be divided into as many fractional parts as there were nephews and nieces living at the death of the testator; that each of them still living was entitled to a life estate in possession, and the respective legal representatives of those who had since died were entitled to an estate in fee simple in such proportionate share ; and that the descendant of a child of B., who died before the date of the will, took no interest under it.</p>

<p>When personal property has been attached and a mortgagee of it summoned as a trustee under the Gen. Sts. c. 123, § 67, he cannot, after a discontinuance against him as trustee, maintain an action of tort against the attaching officer for his refusal, before the discontinuance, to deliver the property attached.</p> <p>The provisions of Gen.. Sts. c. 123, § 67, allowing personal property subject to a mortgage to be attached, and the mortgagee summoned as trustee, are not in conflict with the 15th article of the Declaration of Rights, relating to trial by jury.</p>

<p>Contract against Theodore Pomeroy and Robert Pomeroy, copartners doing business under the name of L. Pomeroy’s Sons, Robert Pomeroy, Henry Colt and William F. Bacon. Writ dated February 9, 1874. The declaration was as follows:</p> <p>“And the plaintiff says the Pittsfield Woollen Company was and is a corporation duly organized under the laws of this state, and for a long time carried on business in Pittsfield, in our county of Berkshire; that on May 3,1862, these defendants and one William Pollock, being stockholders in said corporation, and owning all the capital stock thereof, executed and handed to and placed in the Pittsfield Bank a certain paper writing for the use and benefit of all persons who then were or might afterwards become creditors of the said Pittsfield Woollen Company. The following is a copy of said paper writing: 6 Whereas the stock of the Pittsfield Woollen Company, a corporation organized under the general law of this State, has all heen recently purchased and is now owned by the subscribers, who desire and intend to continue the corporate organization, but not for the purpose of exempting themselves from their individual liability for the debts of the company, now we hereby declare to all whom it may concern, that as to creditors of the corporation we do and shall hold ourselves liable, jointly and severally, as copartners, and such liability shall continue as to each one so long as he shall continue a stockholder in said concern, but shall not apply to liability contracted after transfer of his stock and a certificate thereof shall have been filed in the office of the town clerk of Pittsfield, signed by the clerk of said corporation. Dated at Pittsfield, the 3d day of May, 1862.’ .[Signed by William Pollock and the defendants.]</p> <p>“And the plaintiff says said Pollock died on December 9, 1866, testate, and that on April 4,1867, the duly appointed executors of the last will and testament of said Pollock lent to the said Pittsfield Woollen Company the sum of ten thousand dollars, and received from said company for the money so lent the promissory note of said company, and the following is a copy of said note and of the indorsements thereon: ‘ 110,000. Pittsfield, Mass., April 4th, 1867. On demand, after date, we promise to pay to the order of Wm. F. Bacon, Treas., ten thousand dollars, value received, at the Pittsfield National Bank. Pittsfield Woollen Co., W. F. Bacon, Treas.’ [This note was indorsed, 6 Wm. F. Bacon, Treas. Pittsfield Woollen Co.,’ and interest was indorsed, at various times, to October 4,1872.]</p> <p>“ And the plaintiff says that said paper writing at the time of making said loan was unrevoked and in full force, and that said loan was made to said company, as the defendants well knew, by said executors, on the faith and credit of said paper writing and of the binding obligation thereof on these defendants, and of their liability to creditors of the company for the debts of the company as expressed and declared in said paper writing.</p> <p>“And the plaintiff says he is the holder and owner of said note, and that he acquired the same relying on the contract and obligation of the defendants to creditors of the company, and especially on their liability and obligation to pay the money loaned as aforesaid, agreeably to the terms of said paper writing “ And the plaintiff says said company has never paid said note nor any part of it, though requested, except as indorsed thereon, and that there is a large sum due on said note, and that, in virtue of said paper writing and of the facts hereinbefore alleged, a cause of action has accrued to the plaintiff against these defendants, to have and recover of them the amount due on said note; and the plaintiff says the defendants owe him said amount and interest thereon.”</p> <p>Trial, without a jury, in the Superior Court, before Brigham, C. J., who allowed a bill of exceptions in substance as follows:</p> <p>The Pittsfield Woollen Company was a corporation duly organized under the laws of this Commonwealth, and carried on business, during the time to which the transactions hereinafter stated relate, in Pittsfield, and its stockholders consisted of the defendants and William Pollock, who died on December 9,1866, leaving a will, by which William D. F. Manice, James Renfrew, Henry Colt and Samuel W. Bowerman were appointed, and subsequently were qualified and have hitherto acted, as executors. On May 3,1862, occurred the transaction, stated in the record of said company, a copy of which is printed in the margin.* Immediately after this transaction, the statement and agreement, referred to in said record, and set forth in the declaration, signed by the defendants and by Pollock, was left in the keeping of the cashier of the Pittsfield Bank, and passed into the keeping of his successor in the office of cashier, and there remained until, by vote of the directors of said-bank, (a copy of which vote is printed in the margin,*) on December 16,1878, it was delivered to the defendant Theodore Pomeroy, who, with the defendant Colt, were directors of said bank. The bank, on April 4, 1867, held a promissory note of the Pittsfield Woollen Company, due on that day, for the sum of $10,000, given in renewal of a note for the same sum, due on December 1,1866; and, to enable the treasurer of the Pittsfield Woollen Company to pay said note of $10,000, the defendant Colt, acting as executor of the will of Pollock, lent, of the money of Pollock’s estate, $10,000 to the treasurer of the Pittsfield Woollen Company, and received there- . upon from said treasurer the promissory note declared on. Bowerman, acting therein as executor of Pollock’s will, consented to the making of the loan, and Manice and Renfrew, acting as executors of Pollock’s will, having no knowledge of the same until after it was made, acquiesced in the loan. Colt was induced to make, Bower man to consent to, and Manice and Renfrew to acquiesce in said loan, by their knowledge of the agreement of the stockholders of the Pittsfield Woollen Company, deposited in the Pittsfield Bank, and by their faith in and reliance upon the agreement, as security for the loan. On April 4, 1867, the Pittsfield Woollen Company was indebted to the Pittsfield Bank in the sum of $50,000, or thereabouts, and the bank was asking a reduction of the debt; and of this indebtedness, Colt, as director of the bank and stockholder of the Pittsfield Woollen Company, had knowledge; but there was no evidence at the trial that Bowerman, Manice or Renfrew knew the extent of said indebtedness, although their relation to the estate of Pollock, as holders of the stock of the Pittsfield Woollen Company which Pollock had owned, in their character of executors of Pollock’s will, caused them to know the general condition of the Pittsfield Woollen Company as to debts and ability to pay them.</p> <p>The judge found that the payment of said sum of S10,000 by Colt, under the circumstances hereinbefore stated, was not, and was not intended to be, by him or by his coexecutors Manice, Bowerman or Renfrew, a contribution by them as executors of Pollock’s will, on behalf of the estate of Pollock, to the payment of the indebtedness of the Pittsfield Woollen Company to the Pittsfield Bank, or to any other persons; and ruled that it was not in legal effect such a contribution, or an acknowledgment of the liability of said estate to make such a contribution, under the previsions of the agreement of the stockholders of the Pittsfield Woollen Company, then in the keeping of the Pittsfield Bank.</p> <p>At the time of Pollock’s death in 1866, and subsequently, until its principal property was sold by auction in the summer of 1872, the Pittsfield Woollen Company was in a state of financial embarrassment which ultimately became insolvency, but its debts were paid by the defendants, with the help of the proceeds of its property, the estate of Pollock making no contribution to the payment of such debts, and receiving no part of the proceeds of its property. Bétween April 4, 1867, and the closing up of the business of the Pittsfield Woollen Company, the executors of Pollock’s will, excepting Colt, frequently called upon the Pittsfield Woollen Company to pay the note of $10,000; and the defendants, in reply to such calls, contended that the note was in effect, and should be so treated, given as security for a contribution which had been made on the part of the estate of Pollock to the payment of the debt of the Pittsfield Woollen Company to the Pittsfield Bank, for which, in law and in equity, the estate of Pollock was liable, by reason of Pollock having signed the said -agreement jointly with the other stockholders. In the course of such controversy, the defendants, Colt not taking part in the matter, offered, upon the surrender by the executors of Pollock’s will of said note of $10,000, to pay them a nominal price for the stock of the company held by the executors as a part of the estate of Pollock, and to save harmless said estate from any further liability to make contribution to the payment of the debts of said company; but the executors, Colt not taking part in the matter as a coexec; itor, while agreeing to sell the stock at a nominal price, refused to surrender said note to the defendants, and insisted on its full payment.</p> <p>At the sale by auction of said Pittsfield Woollen Company’s property, in the summer of 1872, the property was sold for $86,000, and that sum was disposed of in paying the debts of the company. In the payment of the debts of said company, Colt received the sum of $21,000, and Theodore Pomeroy the sum of $5000.</p> <p>During the entire period between April 4, 1867, and the summer of 1872, the time of the sale by auction of the property of the Pittsfield Woollen Company, said company had visible and attachable property largely exceeding in value the sum of $10,000, and the same might have been attached in a sufficient sum to enforce the payment of the note declared on, and this fact was well known during all that period to all of the executors of Pollock’s will.</p> <p>The plaintiff is a counsellor at law, and received this note declared on from.the executors of Pollock’s will, who to that time had held the note and treated it as a part of the estate of Pollock, and had collected all the interest thereon of the treasurer of said company, William F. Bacon, who paid the same out of the funds of the company within two weeks before 'this action was brought. The plaintiff had not, when he received the note declared on, and has not had hitherto any absolute property therein, but received and held the same for the purpose only of bringing this action, in view of a supposed legal impediment to the maintenance by the executors, in their own names, of an action against the defendants, one of whom is their coexecutor, upon the note. The plaintiff did not receive, and has not held, said note, and does not prosecute this action for any purpose within the provisions of the Gen. Sts. c. 122, § 6.</p> <p>Upon finding the facts above stated, the judge ruled that the plaintiff was entitled to recover, and ordered judgment for the plaintiff for the amount of the note and interest. The defendants alleged exceptions.</p>

Tort for personal injuries, occasioned by an alleged defect in a highway, which the defendant town was bound to keep in repair. Trial in the Superior Court, before Wilkinson, J., who allowed a bill of exceptions in substance as follows : It appeared in evidence that the plaintiff, in travelling upon the road, was behind the vehicle of one Mosher, and that near the place of the accident he turned out to his right hand side of the road and passed Mosher’s vehicle.

<p>A trustee in his account, made after the death of the tenant for life, charged, as paid to the executor of the tenant for life, rents and profits of the trust estate, which accrued before and after the death of the tenant for life; for services as trustee during the entire term of the trust; for personal services in a suit in equity for instructions, brought after the death of the tenant for life, and for money paid counsel at the time of his appointment as trustee. Held, on a petition in equity to settle the account, that the trustee must account to those entitled in remainder for all rent accruing after the tenant’s death; and that he was not entitled to charge them for services as trustee during the life of the tenant, or for money paid to counsel at the time of his appointment; hut that he might be allowed a reasonable sum for personal services in the suit in equity for instructions, it not appearing by the decree in that case that the allowance for costs, made therein, included personal services.</p>

<p>A collector of taxes cannot maintain an action, under the Gen. Sts. c. 12, § 19, against an administrator, after the expiration of two years from the time of his giving bond, unless the case falls within some of the exceptions applicable to creditors generally.</p>

Contract against Charles L. Sawyer, Erastus 0. Sawyer, Enoch Washburn, and H. M. Gibbs, upon the following agreement, signed by' the two first named defendants, as principals, and by the others as sureties: “ Franklin, ss. March 27, 1874.

Bill nr equity, filed April 3, 1876, against Benjamin E. Thayer, Mary G. Thayer, Lucy A. Knight, and William G. Bassett, alleging the following facts: On July 20, 1860, Edson White, being seised in fee of a certain parcel of land in Easthampton, conveyed the same with the usual covenants of warranty to one Munson.

<p>Petition", under the Gen. Sts. o. 150, to enforce a mechanic’s lien for labor performed and furnished “ upon and about the building recently erected, altered and repaired,” owned by the respondent, and situated on a certain street in Springfield. Annexed to the petition was an account containing two items : the first, “for moving and placing the house, $250;” and the second,for raising the house, $25.” The case was submitted to the Superior Court, and, after judgment for the petitioner, to this court, on appeal, on an agreed statement of facts in substance as follows:</p> <p>At the time the work was done, the respondent owned the lot of land described in the petition, and also the wooden dwelling-house which stood thereon, and which had been erected there about ten years before, and was at that time in complete repair. To render the land more available for building purposes, he decided to lay out a street near the centre of the lot, and divide the whole tract into house lots, and contracted with the petitioner to remove the house, except a small ell, from its original location to another spot, over a newly excavated cellar. The petitioner did the work according to the contract, leaving the house on blocking or screws until the cellar wall was put in, and then, at the request of the respondent, raised it a few inches to receive the underpinning. The house was afterward put in condition for occupation in its new position, although it required no refitting other than what was necessary to adapt it to its new position, and to repair certain cracks in plastering occasioned by the removal and the open space where the ell part was cut off.</p> <p>If the performance of the labor above described would entitle the petitioner to a lien under the provisions of the Gen. Sts. c. 150, his lien was to be established for the amount of his bill and interest thereon; otherwise, the petition to be dismissed.</p>

<p>Libel for divorce from the bonds of matrimony for desertion. Hearing before Gray, C. J., who reserved the case for the consideration of the full court as follows:</p> <p>At September term 1874, the libel was filed, and notice ordered by publication, returnable at April term 1875, when a decree of divorce nisi was granted, to be made absolute on notice after six months’ publication, “ upon compliance with the terms thereof, unless sufficient cause to the contrary appear.” At the nearing upon the motion to' make the decree absolute, it appeared that its terms had been complied with; but that in June, 1875, the decree not having been made absolute, and the libellee being still alive, the libellant, believing that he had obtained a divorce and was at liberty to marry again, married another woman, and that she was now pregnant by him. Such order or decree is to be made as law and justice may require.</p>

<p>Tort for injuries occasioned by an alleged defect in a highway, which the defendant town was bound to keep in repair. Trial in the Superior Court, before Grardner, J., who reported the case for the consideration of this court, in substance as follows :</p> <p>The plaintiff testified that the accident happened on August 21, 1873, on a road leading from Heald’s Village to the depot; that he drove over the road in the morning about eleven o’clock; that it began to rain soon after, and rained occasionally in the afternoon; that he started to drive back about four o’clock in the afternoon, in an open wagon, his horse going on a slow trot; that the first thing he knew he was thrown on to the ground; that the horse had got into a hole in the travelled part of the road; that he got his fore legs in the hole nearly their whole length; that the horse jumped and got his fore legs out, and then got his hind legs in to the same depth ; that on examination of the place where the accident occurred, immediately after, he found a hole there, filled with water; that he got a stick and ran it down into the hole two or three feet, not less than two feet; that the hole was three feet or more across; that when he put the stick into it he found no rocks, only muddy water of no consistency, like putting earth into a pail of water and stirring it up; and that he did not notice any rock in the hole. Other witnesses gave similar testimony as to the condition of the road after the accident.</p> <p>Aaron Waite, a highway surveyor, testified in behalf of the plaintiff, that he made repairs on this road, the day before the accident from three to six o’clock in the afternoon, at the spot where the accident happened ; that it was late in the afternoon when he got through; that there was a stone in the wheel track which stuck up four or six inches; that he dug around it to get it up ; that it was two feet long and eighteen or twenty inches broad and was down two feet; that he dug down two feet, making a hole three feet across; that after he dug around it he found he could not get his chain around it, so he dug around and sunk it nearly where he found it, and covered it up; that the top of the stone was about eight inches below the surface; that he did not dig under the stone, but dug on the outside from the centre of the road, and turned it over into the hole; that the stone lay about level after he turned it; that he filled the hole with gravel and sand mixed together, some of which was washed down from the road above; that the land was moist ; that he filled the hole up to the top of the stone with stones that were in it before and a few that were lying around; that he filled it up level with the stone and left it crowning; that, on béing told of the accident, he went down to the place, but did not examine it or sound it; that it was properly filled but for the rain ; that he did not say the next morning, that he did not fill it as well as he wanted to ; that he did not say anything about the road at that time; that he did not dig under or remove the soil from the bottom of the stone, but tipped it to the side from the centre of the road; that the surface of the stone was nearly level; that he filled around the stone with stones and then gravel; that it was the same material as the rest of the road; that he did not go to the side of the road and get mud or put any into the hole; and that he worked the earth down with a shovel on top of the stone.</p> <p>Several witnesses testified that Waite told them, the day after the accident, that he did not fill up the hole as well as he should have done if he had had more time.</p> <p>The judge, being of the opinion that the action could not be maintained on the foregoing evidence, directed a verdict for the defendant. If the ruling was correct, judgment was to be entered for the defendant; otherwise, a new trial to be granted.</p>

<p>Tort. The declaration contained two counts, the first alleging that the defendant had debauched the plaintiff’s wife, and deprived him of her society; and the second that the defendant had alienated the affections of the plaintiff’s wife from the plaintiff, and had enticed her to desert him.</p> <p>At the trial in the Superior Court, before Rockwell, J., there was evidence tending to' show intimacy and familiarity, manifested in various ways, between the defendant and the plaintiff’s ■wife, and also tending to show that on November 2, 1870, they were seen together in the defendant’s barn under circumstances which, it was contended, afforded opportunity for the commission of adultery, and that, in the spring of 1874, they were again seen at the same place, the woman leaving the bam and the defendant remaining therein; also that at some time in 1873, and again in the fall of 1874, the defendant’s horse was seen hitched by the roadside, near woods, the carriage unoccupied, and that, shortly before and after, the defendant and Mrs. Hadley were seen in the carriage. There was also evidence tending to show that the defendant was frequently at the plaintiff’s house to see his wife, both when the plaintiff was present and when he was absent, and that the defendant and the plaintiff’s wife frequently walked and rode together. There was no specific evidence of the commission of adultery, or of any occurrences affording an opportunity therefor, other than as above.</p> <p>The plaintiff testified that he had lived happily with his wife up to 1873, when he began to suspect her of infidelity in connection with the defendant; that thereafter he had been much troubled, had remonstrated with the defendant, had objected to his visits and his course of familiarity; and that in August, 1873, his wife had left him and gone to her mother’s house to live, and that he had always treated her kindly, and had not offered her any personal violence.</p> <p>In addition to much testimony controverting and explaining the case of the plaintiff as above, there was evidence on the part of the defendant tending to show that the plaintiff had been always morose, cross and profane, and that he had on various occasions used violence toward his wife, by striking her, die., and that this treatment was both before and after the time he stated that his suspicions had been aroused regarding the defendant’s intimacy with her ; that he finally made a gross and scandalous charge against her, on hearing of which, while temporarily at her mother’s, she decided never to return. The plaintiff’s wife said under oath that his cruelty and this last charge were the causes for which she left him.</p> <p>The defendant asked certain instructions as to the evidence of adultery under the first count, to the effect that the evidence was insufficient to warrant the jury in finding that any adultery had been committed, and that there was no evidence of any acts at or about the dates specified, such as would warrant a verdict under the first count, both of which requests were denied, and the defendant excepted. The details of these requests and the ■ rulings given on these points are immaterial in view of the finding of the jury.</p> <p>The defendant also asked the judge to instruct the jury that in order to find a verdict under the second count, the jury must be satisfied that the plaintiff’s wife left him solely on account of the wrongful acts of the defendant, and that, if the cruelty of the plaintiff contributed to cause her to leave, he could not recover. The judge refused to rule as requested, and ruled on this point as follows : “ If the conduct of the defendant was the controlling cause which induced the wife to leave her husband, and if the jury are satisfied that but for that cause she would not have left him, the plaintiff can recover, although there might have been other causes contributing to the same result.” The judge had already instructed the jury that, upon the question of damages, the treatment and conduct of the plaintiff toward his wife were to be considered. The case was submitted to the jury on instructions as to both counts not objected to except as above.</p> <p>In order to ascertain the materiality of the exceptions taken as to each count separately, by consent of parties, the judge informed the jury that on their return into court with a verdict he should inquire of them their finding upon each count. The jury after deliberation returned into court with a general verdict for the plaintiff, with damages assessed at $657.10. This verdict was affirmed, but not minuted upon the docket. The judge thereupon, at the suggestion of both counsel, asked the jury whether they found their verdict on both counts or on only one, to which they replied through their foreman, “ On the second count.” Both counsel suggested the question, “ How did they find on the first count,” in reply to this question put by the judge they replied through their foreman, “ We did not agree upon the first count.” ' The judge told the clerk he might minute upon the verdict the above answers of the jury. The clerk suggested to incorporate in the verdict the statement that it was found on the second count, and with the assent of the judge read the verdict in that form to the jury. The defendant’s counsel at once objected to the reception and entry of the verdict in that form, and contended that the defendant was entitled to an agreement on the first count, or to have the jury discharged as disagreed. There was a colloquy between the counsel and the court, in which the plaintiff suggested that he could ask for leave to amend by striking out the first count. To this the defendant objected, and the judge then said to the jury, “ It is your duty to agree on both counts, and you will retire and deliberate.” The verdict and papers were thereupon returned to the jury, and they retired. The jury again returned into court, after further deliberation, bringing in the same written verdict as before. Without affirmation of this verdict the judge inquired if the jury had agreed on the first count. By their foreman they replied, “We did not find for the plaintiff on the first count.” The judge asked if they agreed for the defendant on the first count, to which the foreman replied, “We did not.” A member of the jury said, “ There is some mistake. We did agree for the defendant.” To this the foreman then assented, and the jury were sent out with the papers to put their verdict in form. They finally returned with a verdict as follows : “ The jury find fdr the defendant on the first count, and for the plaintiff on the second count, and assess damages in the sum of $657.10.” The verdict in this form was duly affirmed and recorded. The defendant alleged exceptions to the above rulings, and to all of the proceedings after the interrogation of the jury, on their first return into court, and to the recording of the verdict.</p>

Petition under the Gen. Sts. c. 44, §§ 19, 20, to the county commissioners for a jury to assess the damages to the petitioner’s estate by repairing a highway in Leicester. At the trial before the sheriff’s jury no question was made that the proper step by petition to the selectmen for the damages complained of was not made, or that they did not refuse to award the petitioner damages.

<p>Bill IK equity to restrain the defendant from turning the sewage matter of a part of the Mill Brook sewer, in Worcester, upon the plaintiffs’ land, and for damages, and for further relief. Hearing upon the bill, answer, replication, and a report of a master, before Devens, J., who reserved the case for the consideration of the full court. The facts appear in the opinion.</p>

Contract, against the administrators of the executor of Abel Kingman, to recover the value of a legacy. Writ dated July 15, .1875.

<p>Tort. The declaration was as follows :</p> <p>“ And the plaintiff says he was employed by the defendants New Bedford, in their place of business in and about their machinery and appliances used in receiving and delivering coal. That said machinery and appliances were operated and run by a steam-engine, for the management and operation of which, it was the duty of the defendants to employ a careful, competent and skilful engineer. That instead thereof they employed and continued to employ one William Perry as such engineer, who was careless, unskilful and incompetent for that purpose, which the defendants well knew, and which by using due caí e they might have known.</p> <p>“ And the plaintiff further says that he was imprudently, negligently and carelessly set to work by the defendants in and about their machinery and appliances aforesaid, without any caution or instruction, in an unsuitable and unsafe place to use and operate and attend unnecessarily dangerous and unsafe machinery and appliances of the defendants; whereby the plaintiff was exposed to great and unnecessary risks, and risks not required by his employment or the business carried on by the defendants, and whereby, and also by reason of the carelessness, unskilfulness and incompetency of the engineer, the said William Perry, who then managed and operated the steam-engine as aforesaid, the plaintiff while employed at his duty as aforesaid, and using due care, was struck and injured by said machinery and appliances of the defendants, and was subjected to great pain, suffering and expense for a long time.”</p> <p>At the trial in the Superior Court, before Pitman, J., the evidence was in substance as follows: The defendant corporation had a large building upon a wharf in New Bedford, with steam-engines and appliances for unloading coal from vessels at the wharf, and depositing it in railway cars and in heaps about the building. The method of doing this was by having a rope or fall attached at one end to a drum or cylinder in the engine room under the eye and care of the engineer, who had charge of the steam-engine which furnished the power. This rope passed up to the top of the building some eighty feet, through wheels or rollers attached to the framework there, and then dropped down outside, and by means of a hook was attached to a tub weighing about three hundred pounds, and was of sufficient length to drop into the hold of the vessel at the wharf, from which, when filled with coal weighing about seven hundred pounds, it was raised up by the steam power which caused the rope so attached to the drum or cylinder in the engine room to be wound around it. A piece of canvas or other mark on the rope indicated to the engineer the point at which he should cease to let it wind around the cylinder, it being the point at which the tub would be raised at a sufficient height for being dumped or emptied down the dhoot into the cars. To guide the tub when going down or up from the hold of the vessel, a man was stationed at the hatchway with a guy rope. For guiding or swinging the tub over to the shoot or dumping place on the wharf, after it had attained sufficient height from the vessel, a platform about ten feet square and about fifteen feet high was erected on the wharf. There was placed another drum or cylinder on this platform with a crank at the end for a man standing on the platform to take hold of when in use. To this drum was attached a rope which extended therefrom and was attached to the outer rim of a circular piece of iron, called a “dead eye,” with a hole in the centre, through which hole the rope to which the tub was attached had been passed. This “ dead eye ” was kept in its proper position by three or four other ropes extending from beams above and fastened to its outer rim. When the tub in ascending had cleared the vessel, it was the duty of the man stationed at this crank to seize the crank, and by turning the drum therewith, wind the rope on it, and cause the tub to swing over to the shoot or dumping place on the wharf, the tub rising to the height of the “ dead eye,” through which the hook could not pass. In this position it was the duty of the man at the crank to hold it until it was emptied, when he relinquished his hold on the crank, the rope unwound, and the tub of its own weight would swing back and descend to the vessel’s hold, where the hook was fastened to another tub which in the mean time had been filled and the same course was followed as before.</p> <p>The plaintiff was employed by the defendant corporation about its premises from some time in the spring of 1874, until July 16, when he was injured. He had frequently attended the crank in the course of his employment; and when he had wound the rope on the cylinder, and brought the tub to its proper position to be dumped, he held it in position with both hands brought up to, and resting on, his breast near his right shoulder. It required a great deal of strength to hold it in that position, and he could readily do it, but if he let go before it was dumped, he could not get out of the way, before the swift revolution of the crank impelled by the weight of the coal would hit him and injure him. On July 16, 1874, the plaintiff was thus employed at the crank, and, using due care, had got the tub in position to be held, in the manner above described, to be dumped; but the engineer instead of stopping his steam-engine at that point, as indicated by the canvas mark on the rope, as before mentioned, which it was his duty to do, suffered the engine to go on, thus winding the rope on the drum beyond the mark indicated, there being nothing to prevent it from continuing to wind and causing the tub to rise higher, and, unwinding the rope on the drum where the plaintiff was holding the crank, brought the whole force of the steam power on him and crushing him down, and breaking his hold, which it was impossible for a man to maintain, he was struck by the revolving crank on his shoulder and back, breaking his bones and otherwise injuring him.</p> <p>The plaintiff was twenty-seven years of age, and had no knowledge of the workings of steam-engines and machinery, other than as a common laborer; he did not know and had never been told that the tub could be raised higher by the engine than the point indicated, or that such raising would have any such effect upon the crank as described. The engine and engineer, though on a level with him, were in an inclosed part of the building out of his sight. If, from negligence of the engineer, pr from any cause, the engine continued to move and its cylinder to revolve, when the plaintiff held the crank in that position, there was nothing to indicate to him that it would so continue to move, and it was impossible for him to escape being hit by the crank if so continued, and he did not know the duty of the engineer in that respect. None of these facts were known to the plaintiff until after the injury. There was evidence from which the jury might find that they were known and understood by the engineers in the defendant’s employ. No appliances for the safety of the man at the crank were used. The plaintiff testified upon cross-examination: “ The platform was roomy enough. The only thing I didn’t know was what would be the effect of the engineer’s hoisting too high. I don’t know of any danger there except the engineer’s hoisting too high.”</p> <p>The defendant offered no evidence, and contended that upon these facts as matter of law there was no evidence of fault or negligence on its part for which it could be held liable under the declaration. The judge was of opinion that upon the declaration the plaintiff could not recover on the ground of use by the defendant of defective, improper or insufficient machinery, and offered the plaintiff an opportunity to amend, which he declined to do ; and thereupon ruled that the plaintiff, as the case stood, had no cause of action, and directed a verdict for the defendant, and reported the case for the consideration of this court.</p> <p>If upon the foregoing evidence it would be competent for the jury to render a verdict for the plaintiff, upon this declaration, a new trial was to be had; otherwise judgment for the defendant.</p>

Action on the Gen. Sts. c. 137, by a religious corporation, to recover possession of a house and land in Attleborough, alleged to be held by the defendant unlawfully and against the right of the plaintiff. At the trial in. the Superior Court, before Allen, J., on appeal, it appeared that after the appeal was entered, and before the next term of court, the plaintiff entered upon and took possession of the demanded premises.

Tort for breaking and entering the plaintiff’s close “ on divers days and times between May 1, 1874, and August 28, 1874.” Answer, a general denial, and a justification of the defendant’s acts by reason of a right of way. Trial in the Superior Court, before Rockwell, J., who, after a verdict for the plaintiff, allowed a bill of exceptions, the substance of which appears in the opinion.

<p>Tobt. The declaration alleged that the defendants did forcibly enter the plaintiff’s close, and wrongfully and forcibly remove, take and carry away, and remove, cut, break up and destroy the plaintiff’s gate, to the injury and damage of the said plaintiff as laid in his writ; and “ that the acts set forth and relied upon were committed by the said Ellen Foley alone, not in the presence of said Dennis Foley, but under his direction, and as his servant and agent, and as his acts as well as her own.”</p> <p>At the trial in the Superior Court, before Allen, J., the defendants contended that an action could not be maintained against the husband' and wife under this declaration; but the judge ruled that the action might be maintained against both.</p> <p>It appeared in evidence, that the trespasses alleged were in the line of a way claimed by the husband, extending from a public highway, over the land of the plaintiff, which lay along the line of the highway, to the husband’s land, lying at the rear of the plaintiff’s land, where was situated the defendants’ dwelling-house ; and, for the purposes of the trial, it was admitted that the husband had a right of way through gates and bars from his land through the plaintiff’s land in the line of the gateway to the public highway. The plaintiff offered evidence tending to show that the wife, in the absence of the husband, but acting, as the plaintiff contended, by the husband’s direction and instigation, removed the gate from its hinges and threw it upon the ground at divers times, and at one time with an axe cat up and destroyed one half of the gate.</p> <p>The plaintiff, for the purpose of showing that the husband encouraged and incited the wife to her acts, offered evidence of the acts of the husband, done in the presence of the wife, in removing the gate from its hinges and throwing it upon the ground. To this the defendants objected, but the judge admitted the evidence.</p> <p>The judge ruled that for the acts of the wife done by herself alone, and without the knowledge and instigation of the husband, the plaintiff could not recover in this action against both defendants ; but for the acts of the wife done in the absence of the husband, with his direction or instigation, the plaint- ff could recover.</p> <p>The jury returned a verdict for the plaintiff; and tin defendants alleged exceptions.</p>

Petition to the Superior Court, filed May 15,1875, for a jury to assess the damages occasioned to the petitioner’s estate by changing the grade of Brownell Street in Fall River. Hearing before Brigham, C. J., without a jury, who allowed a bill of exceptions, in substance as follows; Brownell Street had long been used and travelled upon by the public before 1870.

<p>A bill in equity, brought by A. against B., alleged that A., being the holder of a judgment, assigned it to B., a creditor, for the purpose of preventing other creditors from attaching and seizing any real estate that might be taken under the execution issuing upon such judgment, and B. at the same time executed am agreement, reciting the assignment and the fact that he had a claim against the assignor, and promising, on payment of his claim, to release the balance remaining on the judgment; that land was taken on execution upon this judgment; and prayed for an account, and that on payment of the amount found due from A. to B., the land might be released to A. A decree was entered that the case be referred to a master to state an account; that the balance due B. (if any) should be paid him; and thereupon B. should convey the land to A. On the coming in of the master’s report, B. moved that the bill be dismissed, upon the ground that the bill alleged that the judgment and land therein mentioned were conveyed to B. by A., for the purpose of defrauding his creditors, and that A. was not equitably entitled to relief. Held, that A.’s right to a reconveyance under the decree was res adjudicata, and that the bill did not allege any fraud on A.’s part, which would prevent his maintaining the bill.</p> <p>No exception lies to the finding of a master in matter of fact, where the evidence is not reported.</p>

<p>The widow of an intestate, without issue, is, under the Gen. Sts. c. 90, § 15, seised of an undivided half of his real estate for life, as tenant in common with his heirs, and may bring a petition for partition under the Gen. Sts. c. 136.</p>

Tort for the conversion of certain household goods. At the trial in the Superior Court, before Allen, J., it appeared that the plaintiff received the goods under the following agreement signed by him: “ Received of Thomas O. Falvey, 15 Weir Street, Taunton, the following described goods and chattels, amounting in total value to fifty-eight dollars and seven cents, to wiL: [Here followed a description of the goods.] And for which I promised to pay $58T^ in monthly instalments…

<p>Contract to recover the balance due on certain assessments made by the plaintiff corporation on its shares of stock standing in the defendant’s name.</p> <p>At the trial in the Superior Court, before Allen, J., without a jury, it appeared that articles of association were drawn up, a copy of which is printed in the margin,* which were signed by the defendant and others, and the figures $5000 were set against the defendant’s name, indicating the amount of stock or number of shares which he was to take in the corporation to be formed in accordance with the articles of association. It further appeared that the corporation was duly organized in accordance with said articles, and a certificate of incorporation under the St. of 1870, c. 224, § 11, was issued to it, wherein the capital was expressed as $100,000.</p> <p>The defendant was present at one or more meetings of the corporation after its organization, taking part in the same, and notice of the assessments was duly sent to him. The assessments remained unpaid for more than thirty days after they became due, and the stock standing in the defendant’s name was duly advertised and sold by public auction, after the expiration of the thirty days, for the unpaid assessments, and the balance remaining after deducting the amount received from the sale was the sum sought to be recovered. There was no other promise or agreement of the defendant to pay the assessment, than that contained in the agreement of association.</p> <p>The defendant introduced no evidence, but contended upon the above facts that he was not liable as matter of law, and requested the judge to rule “that the defendant, by subscribing for and taking shares in the plaintiff corporation, came under no personal obligation to pay for any assessments laid on such shares, and that the only remedy of the corporation to obtain payment therefor was by a sale of the shares in respect to which they were made.” The judge so ruled, and found for the defendant ; and the plaintiff alleged exceptions.</p>

Contract on the following bond executed by John Doherty, as principal, and by Dennis Garvey and the defendant, as sureties : “ Know all men by these presents, that we, John Doherty, of Fall River, in the county of Bristol, and Commonwealth of Massachusetts, as principal, and Dennis Garvey and Timothy C. Murphy, of said Fall River, as sureties, are holden and stand firmly bound and obliged unto Augustus Mosher of Fall River, in the county of Bristol, and Commonwealth…

Contract, against John W. Hall and Joseph S. Hubbard, as owners of the schooner J. E. Comegys, on an account annexed, for materials and supplies furnished and services rendered to said schooner. Hubbard was defaulted. Trial in the Superior Court, before WilMnson, J., without a jury, who allowed a bill of exceptions, in substance as follows: The defendant Hall owned fifteen sixteenths of the schooner and Hubbard the other sixteenth.

<p>A debtor, by a deed of trust executed by himself and the assignee only, assigned his property for the benefit of his creditors, none of whom assented thereto. The assignee gave notice of his acceptance of the trust, and a portion of the creditors presented their claims, which exhausted the assets collected by the assignee. Other creditors attached by the trustee process a sum due the debtor, which was claimed by the assignee under the deed of trust. Held, in the absence of proof that the sum held by the trustee was necessary to pay the creditors who had elected to come in under the trust deed, that the sum in the hands of the trustee was liable to be taken by trustee process.</p>

<p>A judgment creditor, before the appointed hour, to which a hearing for the examination of a poor debtor, pursuant to a notice given under a recognizance entered into in accordance with the Gen. Sts. c. 124, § 10, had been adjourned, agreed with the debtor, because of the illness of the magistrate, that it should be postponed; the magistrate at the appointed hour, but not at the appointed place, continued the proceedings according to the agreement; and the debtor did not appear before the magistrate at the appointed hour, but was afterwards discharged at the time to which the hearing was thus adjourned. Held, that the creditor had waived the condition of the recognizance, requiring the debtor’s attendance, and that there was no breach thereof.</p>

<p>To constitute a legal taking by the city of New Bedford of the water of Acushnet River, under the St. of 1863, c. 163, the filing in the registiy of deeds of a statement of the fact of such taking and a description of the water taken, as provided by an ordinance of said city, passed in pursuance of that statute, is requisite; and upon default therein the city is liable for damages in an action of tort.</p> <p>The owner of a mill privilege which is in the exclusive possession of tenants, above whose dam a city, having constructed permanent conduits, is constantly withdrawing large quantities of water, under a claim of right, to the injury of the mill privilege, may maintain an action of tort for the injury to his reversion, without proof of actual damage.</p>

Tort against a common carrier for the loss of a car load of apples, by freezing, while in the defendant’s custody. Trial in the Superior Court, before Pitman, J., who allowed a bill of exceptions in substance as follows: The apples were shipped at Oswego, New York, in good condition, consigned to the plaintiffs, at Salem, Massachusetts; and came over the defendant’s road from Albany to East Boston, where they arrived on November 26, 1873.

Contract on a promissory note, dated May 18, 1868, arid alleged to have been made by the defendants, under the firm name of Andrews Brothers. At the trial in the Superior Court, before Pitman, J., the defendant, N. M. Andrews, the only party defending, introduced evidence tending to prove that there was no consideration for the note.

<p>Tobt for personal injuries occasioned by an alleged defect in a way in Salem called Front Street, which the defendant was bound to keep in repair. Trial in the Superior Court, before .Pitman, J., who allowed a bill of exceptions in substance as follows:</p> <p>It appeared in evidence that there was at the time of the accident a semi-circular aperture or cellar way in the sidewalk of said street, about four and a half feet long and two feet wide at the widest part, which was covered by a grating. This grating was formed by iron bars running at right angles with the sidewalk, and distant from each other in some cases three and in others three and a half inches, and over these were placed three iron bars running parallel with the course of the sidewalk. The curved side of the cellar way was turned towards the street, and the straight side was coincident with the line of the building over the cellar. Of the bars last named the one nearest the building was about nine inches distant therefrom.</p> <p>The plaintiff, who was a boy about eight years old at the time of the accident, which occurred on February 17, 1875, testified that on that day he had been sent to carry dinner to his father, who was at work on Front Street, and, upon his return home, after seeing his father, as he was going down upon the right hand of Front Street, which was the side nearest his home, his attention was attracted by some toys in a window in a shop upon the opposite side of the street, which window was directly above the grating referred to, and he immediately crossed the street and stood in front of the window looking at the toys for some four or five minutes, and, in turning to come away, his foot slipped into the grating between the innermost cross bar and the building, causing the alleged injury.</p> <p>The defendant requested the judge to rule as follows: “ 1. The plaintiff has failed to produce evidence tending to show that he was in the exercise of due care when the accident occurred. 2. The plaintiff at the time of the accident was not in the exercise of his rights as a traveller.”</p> <p>The judge declined so to rule, but instructed the jury that in this case the question of due care on the part of the plaintiff, and the question whether or not he was a traveller, were questions of fact for them, and that there was evidence upon both points for them to consider; and upon these points gave them instructions, to which no exceptions were taken except as above. The jury found for the plaintiff; and the defendant alleged exceptions.</p>

<p>Tort for the conversion of a horse.</p> <p>At the trial in the Superior Court, before Allen, J., without a jury, it was admitted that the defendant had, four days previous to the date of the writ therein, received possession of the horse in question on a writ of replevin in his favor and against one Oren E. Welch, under whom both the plaintiff and the defendant claimed title; the plaintiff under a bill of sale from Welch, dated August 10, 1874, and the defendant under a bill of sale from Welch, dated October 8, 1874. There was evidence tending to show a delivery of the horse by Welch to the plaintiff. There was evidence tending to prove, and the judge found, that the defendant knew that the title and right of possession of the horse were in the plaintiff, and fraudulently sued out the writ of replevin for the purpose of obtaining possession of the horse, and removing him from the Commonwealth, and depriving the plaintiff of him; and that he did, with that intent, obtain possession of the horse under the writ, and secretly remove him from the Commonwealth, and kept him concealed from the plaintiff. It was admitted that no demand had ever been made upon the defendant for the horse.</p> <p>On this evidence, the defendant asked the judge to rule that there was no evidence of conversion, and that the plaintiff could not maintain this action without evidence of a demand. But the judge declined so to rule, and ruled that upon this evidence there was evidence of conversion, and found that there was a conversion by the defendant, and ordered judgment for the plaintiff. The defendant alleged exceptions.</p>

Replevin of a quantity of silk attached by the defendant, as a deputy of the sheriff of Essex, on a writ against L. R. Powers. At the trial in the Superior Court, before Gtardner, J., the plaintiffs put in evidence tending to show that the silk was sold by them to Powers in March, 1875, and that they were induced to sell the same by his false and fraudulent representations.

Contract for breach of the covenants of a lease for two years of a farm in Marblehead, from the defendant to the plaintiffs.

Contract, against the administrator of Ira G. Bean, on the following account annexed: “ Ira G. Bean to E. H. Safford, Dr. For the Essex Banner (weekly newspaper) from January 1, 1848, to January 1, 1874, 26 years, at $2 $52.00 “ Interest, 30.00 $82.00 “ Spring of 1873, credit by making stands, 8.00 “ Balance claimed at date of writ, $74.00 ” Writ dated Feb. 3, 1876.

Tort for injuries to the plaintiff’s horse, occasioned by a defect in Union Street, a highway which the defendant was bound to keep in repair.

<p>Bill in equity by tbe trustee under the will and codicil of Oliver Hubbard, to obtain the instructions of the court. The will was dated December 2, 1848, and contained, besides other provisions not material to be stated, the following:</p> <p>“First. I give and bequeath unto John G. King, of said Salem, Esquire, the sum of two thousand dollars, upon this trust, that he shall keep the same at interest, and pay the net annual income thereof to my niece, Mrs. Mary A. Saunders, widow of Jonathan P. Saunders, late of said Salem, during her life, and, at her decease, my said trustee shall divide the said sum equally among all her children, and the issue of any deceased child to take the share of their parent.</p> <p>“ Second. I give and bequeath unto the said trustee the sum of two thousand dollars, upon this trust, that he shall keep the same at interest, and pay the net annual income thereof to Mary Cleveland, wife of William S. Cleveland, to her sole and sep* arate rue and upon her separate receipts, during her life, and upon her decease my said trustee shall divide the same equally among her children.”</p> <p>“ Sixth. I give and devise unto my trustee aforesaid the undivided half part of the dwelling-house in Harbour Street in said Salem, which was devised by my late sister Catharine H. Savage in trust for the benefit of her daughter Sarah W. Savage, which I purchased of her trustee, upon the following trust, that he shall permit my niece, Mrs. Jane C. De M. Thatcher, to hold, occupy and enjoy the same during her natural life, to her own use, and at her decease my trustee shall divide the same equally among her three children, the issue of any one of who may have deceased to take the share of their deceased parent.</p> <p>“ And as to all the rest, residue and remainder of my estate and property real and personal of every name and nature, I give and bequeath the same, as follows, viz.:</p> <p>“ One fifth part thereof to the children of my late sister Mary Brown, in equal portions, the issue of any deceased child to take the share of their deceased parent.</p> <p>“ One fifth part thereof unto Hubbard Leech, of Sandwich, in Hew Hampshire, in trust that he shall divide the same equally among the six children of my late sister Lydia Leech, of Moultonborough in Hew Hampshire, the issue of any one of them who may have deceased to take the share of their deceased parent.</p> <p>“ One fifth part thereof to said John Gr. King, Esq., of said Salem, upon the following trust, that he shall keep the same at interest, and pay the annual income thereof unto my said niece Mary A. Saunders, during her natural life, and upon her decease my said trustee shall divide the same equally among her children, the issue of any deceased child to take their parent’s share.</p> <p>“ One other fifth part thereof to said King, in trust, that he shall keep the same at interest, and pay the annual income thereof unto my grand niece Mary Cleveland, wife of said William S. Cleveland, during her life, to her own separate use, and upon her own separate receipts, and upon her decease my said trustee shall divide the said sum equally among her children.</p> <p>“ And the other fiftb part thereof to said King, in trust, that he shall keep the same at interest, and pay the annual income thereof in equal portions to and among the four children of • my late sister Catharine H. Savage, during their natural lives, and, upon the decease of either of them, the principal of his or her share shall be equally divided among the heirs at law of such deceased persons.”</p> <p>The codicil, dated April 19, 1849, was as follows : “ I hereby revoke and annul the bequest and devise of the fifth part of the residue of my estate in trust for the benefit of the children of my late sister Catharine H. Savage, which is contained on the 3d page of my said last will, and substitute the following in the place of it, namely: And the other fifth part of the residue of my estate and property I give to John G. King of said Salem, my trustee in said will named, upon this trust, that he shall pay and divide the net income of said fifth part every year to and among Samuel Phillips Savage, Mrs. Jane C. De M. Thatcher and Sarah W. Savage, who are three of the children of my late sister Savage, during their natural lives; and upon the decease of either of them, the principal of his or her share shall be divided among the issue of such deceased person, and if he or she leave no issue, then among their heirs at law.”</p> <p>The bill alleged that Jane C. De M. Thatcher and Sarah W. Savage were dead, and their shares had been distributed; that Samuel Phillips Savage died on October 11, 1874; that he had two sons, George Savage and Henry Savage, and two grandchildren, George H. Savage and Emily K. Savage, children of Henry; that Henry and his two children were living at the time of the death of Samuel, and that George, as the trustee was informed and believed, had been absent from the Commonwealth for many years, and whether he was still living, or whether he had any children or issue living at the time of the decease of Samuel, the trustee was ignorant.</p> <p>The question presented by the bill was whether Henry Savage was entitled to receive the entire principal of his father’s share to the exclusion of his children, or whether the principal sum should be divided into three equal parts, and paid to Henry, George H. and Emily K. respectively.</p> <p>The defendants appeared and filed answers, admitting the facts alleged in the bill, and alleging that George Savage died in China in 1861, leaving no children or issue. The answer of Henry Savage claimed the whole of the trust estate in the hands of the plaintiff. The answer of George H. and Emily K. Savage claimed each one third of the trust estate.</p> <p>The cause was heard upon the bill and answers by Hndicott, J., and reserved for the consideration of the full court.</p>

<p>The owner of land, who forcibly enters thereon and ejects without unnecessary force »tenant at sufferance, who has had reasonable notice to quit, is not liable to an action for an assault.</p>

<p>Contract on a recognizance entered into under the Gen. Sts. c. 124, § 10, on December 24,1875, by Abraham Day as principal, and the defendants as sureties, and conditioned that Day, who had been arrested on an execution in favor of the plaintiff, should, within thirty days from the time 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.</p> <p>At the trial in the Superior Court, before Bacon, J., without a jury, the plaintiff put in evidence tending to prove that Day did not give the notices or deliver himself up for examination as required by the recognizance. The defendants then offered evidence tending to prove that on January 22, 1876, Day and the defendants, and H. C. Hubbard, the attorney for the plaintiff, wsie together in Gloucester, where a sale had that day been made of the equity of redemption of Day, in certain real estate, on execution, and a considerable sum realized therefrom, over and above the incumbrances and the execution debt; that the counsel for the plaintiff then agreed that Day need not deliver himself up for examination, or give the notice required in such cases, that he would collect the debt, for which the execution was issued against Day, out of the proceeds of the sale of the real estate above named; that neither Day nor the defendants need take any further action upon or by reason of the recognizance, and that they were wholly free from the same; and by reason of this agreement Day did not deliver himself up, and give the notice required by the recognizance.</p> <p>The judge refused to admit this evidence, and ruled that, if the facts were proved as the defendants offered to prove them, it would not be a defence to the action, and found for the plaintiff in the penal sum of the recognizance. The defendants alleged exceptions. 6</p>

Contract on a recognizance entered into, under the Gen. Sts. c. 124, § 10, on May 11,1874, by Benjamin Bussell as principal, and the defendant as surety. The case was submitted to the Superior Court, and, after judgment for the plaintiffs, to this court, on appeal, on an agreed statement of facts, in substance as follows: The recognizance was given to relieve Bussell from arrest on an execution against him in favor of the plaintiffs.

Contract. The declaration alleged that the plaintiff contracted with the defendants to buy for him, on commission, codfish in Portland, in the State of Maine, and ship the same to the plaintiff at Plymouth in this Commonwealth; and that the defendants bought the codfish, which the plaintiff directed them to ship to Plymouth, and offered to pay their cost with commissions to the defendants, but that the defendants refused to ship and deliver the fish.

<p>In an action on a promissory note, alleged to have been made on a certain day, if upon the face of the note an alteration is apparent in the date, the question whether the alteration was made before or after delivery is for the jury, if there is any evidence to show that the note at the time of delivery bore the date set forth in the declaration.</p>

Contract on an account annexed for the rent of certain premises on Washington Street, in Boston, from August 1 to October 1, 1874.

Contract to recover back rent paid in advance for a room, called Webster Hall, in a building in Hyde Park, under a lease from the defendant to the plaintiff, dated November 1, 1873, the material parts of which were as follows: “ This lease is given in consideration of an agreement, by the terms of which said Smith is to receive full benefit; so that the rent of said Webster Hall has been paid in advance for the term of three years from the first day of January next,'A. D.…

Contract. The declaration alleged that the plaintiffs demised a certain estate to the Cumberland Stone Company, by deed, a copy of which was annexed and is printed in the mar gin; * that said deed was executed by said Cumberland Stone Company, being a corporation, by its president, the defendant, was accepted by said Cumberland Stone Company, and, in pursuance thereof, said Cumberland Stone Company entered into and are still in the possession of said estate ; that, in…

Bill in EQUITY, filed September 11, 1876, for specific performance of the following agreement, signed by the plaintiff and defendant: “I, S. P. Blake, Jr., agree to lend Catherine H. Cunningham eight thousand dollars for three years at six and one half per cent., on her note secured by mortgage of the house in which she resides in Dorchester, with about one hundred and twenty-five thousand feet of land. [Here followed a description of the land by metes and bounds.] And I,…

Tort for personal injuries sustained by reason of a defect in a highway, which the defendant was bound to keep in repair.

Contract. Writ dated August 11,1875. The declaration contained two counts.

<p>An official inspector of fish, who brands the packages of fish, packed by him in his business, with his official brand, does not thereby gain a private right in the brand as a trade-mark.</p>

<p>The declaration in an action of contract alleged that the plaintiff made an oral contract with the defendant, in which the defendant agreed to do certain work “ tc the satisfaction of the plaintiff.” Held, that such averment must be proved before recovery could be had for breach of the contract.</p>

Contract on an account annexed against Patrick Coyne and Daniel Briscoe, as copartners. In the Municipal Court of the city of Boston, judgment was rendered for the defendant Briscoe, and for the plaintiff as against the defendant Coyne. Erom this judgment Coyne appealed to the Superior Court, and duly entered his appeal. Neither the plaintiff nor the defendant Briscoe entered an appeal, but Briscoe duly entered his appearance and filed his answer in the Superior Court.

<p>Petitions that in each of these cases (which are reported 120 Mass. 9, 285) the record might be amended so as to show “the questions decided by this court, under the laws of the United States, adversely to the plaintiff, and on which the decision of this court, dismissing the bill, is grounded ”—to the end that the plaintiff might be enabled to take the case by writ of error to the Supreme Court of the United States.</p> <p>Each case was a suit in equity for an account of an alleged partnership, which was denied in the answer. The illegality of the transaction alleged in the bill was also, in the first case, set up in the answer; and in the second case, though not set up in the answer, was argued by counsel at the suggestion of the court.</p> <p>In the first case, the rescript was dated March 1, 1876, and ordered the clerk of this court in Suffolk to make in the docket the following entry: “ Bill dismissed.” The “ brief statement of the grounds and reasons of the decision,” indorsed upon the rescript, was as follows: “ This bill seeks directly to enforce an illegal contract, and to secure its fruits to the plaintiffs, and cannot be maintained.” In accordance with the rescript, the clerk, on the same day, entered upon the docket of the court in Suffolk, “ Bill dismissed,” and no other order or decree was entered in the case.</p> <p>In the second case, the rescript was dated May 6, 1876, and in like manner ordered the clerk to make in the docket this entry, “ Bill dismissed.” The “ brief statement of the grounds and reasons of the decision,” indorsed upon the rescript, was as follows: “ It appears, by the master’s report, that, by means of the permit obtained by Johnston, and through the agency of Harney, the cotton was obtained beyond the lines of the military forces of the United States. Such a transaction was strictly prohibited by the laws and regulations of the United States in force at the time.” The clerk accordingly, on the same day, entered upon the docket, “ Bill dismissed.” And on May 16,1876, the following decree was entered: “ This case came on to be heard at this term, and thereupon, upon consideration thereof, it is ordered, adjudged and decreed that the complainant’s bill be dismissed.”</p> <p>These petitions were presented to the Chief Justice on November 14,1876, and were reserved for the consideration of, and argued before, the full court.</p>

Bill in equity, in the nature of a bill of interpleader, against the town of Nantucket and the city of Boston, alleging that the plaintiff was, on May 1, 1875, trustee under the will of Selina Herring, late of Boston, deceased, to hold the estate as an accumulating fund until the decease of Thomas J. Herring, son of the testatrix, and upon his decease to divide the same among the grandchildren of the testatrix; that the plaintiff was a resident of Nantucket on that day, and…

<p>A complaint under the St. of 1875, c. 99, averring that the defendant, on a day named, sold intoxicating liquor “ not having then and there any license, authority or appointment according to law, to make such sale,” sufficiently negatives the exception in the statute, if such exception need be negatived; and, if the defendant has a license, warrants the introduction of evidence of a sale on the Lord’s day, in violation of the conditions of his license.</p>

Indictment, under the Gen. Sts. c. 161, § 54, charging that the defendant, at a time and place named, “ devising and intending by unlawful ways and means to obtain the money, goods and chattels of Ehoda Corser, and with intent to cheat and defraud said Ehoda Corser, did then and there unlawfully, knowingly and designedly, falsely pretend and represent to said Ehoda Corser that a certain promissory note of the tenor following, that is to say, ‘1464.00. Worcester, Mass.

Complaint to the First District Court of Essex, alleging that the defendant, on October 9, 1875, did, with a certain vehicle, occupy a stand within the limits of the market of the city of Salem; and, after being ordered by the clerk of the market to remove therefrom, refused so to do, and remained therein for the ¿pace of an hour thereafter.

Complaint to the Municipal Court of the city of Boston, charging the defendant on July 14, 1876, with standing and selling newspapers on Haymarket Square, a public street in Boston, without a license, and in violation of a city ordinance, which provides, under a penalty, that “ no person shall stand on any street for the purpose of grinding cutlery, or for the sale of any article, or for the exercise of any other business or calling, unless duly licensed by the board of…

<p>Complaint to the Municipal Court of the city of Boston, charging the defendant with the larceny on April 19, 1876, in the dwelling-house of Joseph Burnett, of a wallet and money, the property of Harry Burnett.</p> <p>In the Superior Court, on appeal, the defendant pleaded in bar a previous acquittal upon the same offence, and put in evidence the record of his acquittal upon an indictment charging him with breaking and entering, on April 19,1876, the dwelling-house of Joseph Burnett, and committing the crime of larceny of a coat and hat, the property of Joseph Burnett.</p> <p>The defendant offered evidence to show that the wallet and money named in the complaint were stolen from the same place, at the same time, and by the same person, as the property specified in the indictment, attended by breaking and entering as therein set forth; that such was the evidence upon the finding of the indictment; and that such was the evidence at his trial upon the indictment.</p> <p>The defendant also offered in evidence a record of the Municipal Court of the city of Boston, to show that the original complaint, upon which the defendant was arraigned, charged him with breaking and entering a dwelling-house, and stealing therein all the property set out in the indictment, and the wallet and money; and that the property, mentioned in the indictment, was described in the complaint as the propeity of Joseph Burnett, and the wallet and money as the property of Harry Burnett and upon this complaint the defendant waived an examination, and was bound over to appear before the iiuperior Court, when the indictment was found against him.</p> <p>The defendant also offered paroi evidence to show the identity of the offences charged in the indictment and complaint. But there was no offer to prove that Joseph Burnett was the same person as Harry Burnett, or that the money and wallet were the property of the former, and not that of the latter.</p> <p>Aldrich, J., excluded all this evidence ; and directed the jury to return a verdict against the defendant upon his plea of autrefois acquit.</p> <p>The defendant was then tried; and it appeared that, when arrested, the defendant had upon his person, besides the wallet and money, a certain coat. The defendant offered in evidence a record of the Superior Court, to show a general verdict of not guilty, upon the trial of the defendant on the indictment aforesaid, charging him with the larceny of the coat, in the dwelling house of Joseph Burnett. The judge ruled that the record was inadmissible for any purpose.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

Indictment for forgery. At the trial in the Superior Court, the defendant was found guilty, and, before sentence, filed a motion for a new trial. This motion was heard and overruled in the absence of the defendant, while he was confined in jail. Neither the defendant nor his counsel expressed a wish that he should be present at the hearing. The defendant, on being called up for sentence, filed a motion in arrest of judgment for the following reasons : “ 1.

Complaint under the St. of 1875, c. 99, to the “Municipal Court of the Brighton District of the city of Boston, holden in said Brighton District for the transaction of criminal business, within and for the county of Suffolk,” charging that the defendant “ within the judicial district of said court, unlawfully did expose and keep for sale intoxicating liquors, with intent unlawfully to sell the same within this Commonwealth.” In the Municipal Court the defendant moved to…

<p>Contract against the executors of the will of Phinehas Ah len, Jr. The case was submitted to the judgment of the, Supe« rior Court upon a statement of facts, the material part of which was as follows:</p> <p>The plaintiff was the stepmother of said testator, and both were legatees and devisees under the will of his father, Phinehas Allen, Sen.</p> <p>On April 20, 1861, they executed an indenture which recited that Phinehas Allen, Sen., by his last will gave to the plaintiff, in lieu of dower, one third part of a house and land in Pittsfield, for her use and improvement during her natural life, and the sum of $800, to be paid by his executors in one year from his death; and by which the plaintiff granted, sold and released to Phinehas Allen, Jr., all her rights in the real estate and money levised and bequeathed to her by his father; and Phinehas Alim, Jr., in consideration thereof, covenanted for himself, his heirs, executors and administrators to pay to the plaintiff the sum of $225 semi-annually during her life, the first semi-annual payment to be made on the first day of May, 1861.</p> <p>Phinehas Allen, Jr., made to the plaintiff during her life the semi-annual payments of $225 each, as required by that indenture, which remained unrevoked at his death, unless by force of the fact hereinafter stated.</p> <p>Phinehas Allen, Jr., died July 4, 1873, leaving a last will, by which he appointed the defendants his executors, and made no general provision for the payment of debts, and which contained the following clauses:</p> <p>“ Seventeenth. All the rest and residue of my estate of every nature I give, bequeath and devise to my executors and trustees hereinafter named, to be held however by them upon the trusts and for the following purposes and not otherwise, namely, to hold and invest the same according to their best judgment and discretion, and, from the income arising therefrom,</p> <p>“ 1st. To pay Mrs. Fanny T. Allen, widow of the late Phinehas Allen, the sum of two hundred and twenty-five dollars on the first days of May and November in each year during her natural life.”</p> <p>The will was duly proved, and the defendants accepted the trusts of executors, and, ever since the death of their 1 estator, have paid to the plaintiff the sum of $225 semi-annually, on the first days of May and November in each year. But the plaintiff contends that she is entitled to a double annuity, that is to say, that the defendants are bound to pay to her semi-annually the sum of $225 under the indenture, and also an additional sum of $225 under the will.</p> <p>Aldrich, J., ruled against the plaintiff, and gave judgment for the defendants ; and the plaintiff appealed to this court.</p>

<p>Trustee process. The county of Franklin was summoned as trustee of the principal defendant, and the county treasurer in Ms answer disclosed that, before the service of this process, the county was indebted to the principal defendant in the sum of $125, for services performed as messenger in charge of the court-house, under an appointment by the county commissioners, at the rate of $500 per year, payable quarterly; that he had been ordered to pay said sum, but, before payment was made, an assignment was presented to him of said sum, and the holder of the assignment claimed said sum of $125. Upon this answer, the question whether the trustee in any event might be charged, was submitted by agreement to the Superior Court, and, after judgment for the claimant and the discharge of the trustee, to this court, on appeal. If the trustee might be charged, the case was to stand for trial; otherwise, the trustee to be discharged, and judgment for the claimant.</p>

Three petitions for writs of certiorari. Colt, J., reserved the several cases for the consideration of the full court upon the petitions, answers and facts found, the substance of which appears in the opinion.

Tort against James Halley and Timothy Murray for false imprisonment. Trial in the Superior Court, before Aldrich, J., who reported the case for the determination of this court in substance as follows: The jury found for the defendant Malley, and the only question was as to the defence of the defendant Murray, a constable, who arrested the plaintiff and committed him to jail.

Bill in equity alleging that the plaintiffs and defendants had been members of a copartnership, which was afterwards dissolved ; that the defendant Harris was intrusted with the full settlement of the partnership affairs upon the dissolution thereof, and the whole property of the copartnership was placed in his hands, and that, in addition to the amount of property received by Harris upon the dissolution of the copartnership, he had collected and received large sums of money…

<p>One, not a party to a former action, may maintain an action of tort against a person also not a party thereto, for suborning witnesses to testify falsely in that action, whereby his character is defamed.</p> <p>A declaration, in an action for suborning witnesses to defame the character of the plaintiff, each count of which alleges a series of connected acts as parts of a scheme designed to defame the plaintiff, sets out but one cause of action.</p> <p>In an action for suborning witnesses to defame the character of the plain tiff, special damage need not be alleged, if the acts charged are such that their natural and necessary consequence is to injure the plaintiff.</p>

Contract on a promissory note signed by the defendant as maker, and by A. C. Cushing, D. Whiton and E. P. Dunbar, as indorsers. Writ dated December 17, 1875. Held: and the estate was still pending in bankruptcy, unsettled.

<p>A notice in writing, left by a surety, in surrendering his principal, at the office of the plaintiffs attorney, mentioned the party giving it as the person who had entered into the recognizance and who had made the surrender, and particularly described the debtor and the execution on which he was arrested. Held, that the notice suf. ficientiy showed that it was from the surety, although not subscribed.</p>

.Contract on an account annexed against the defendant, as administrator of John C. Tucker, deceased. The case was referred by the Superior Court to an auditor, who made a report, stating in detail the evidence introduced before him, and his findings thereon.

<p>An attorney at'law, under a charge of commissions on money collected, may recover a fair compensation for services rendered, not included in his specific charges, although the client personally makes the collection ; and the time of making such charge is immaterial.</p>

<p>On the issue whether a mortgage of personal property, consisting in part of groceries and provisions, conditioned that the mortgagor “ shall not, except with the cflnsent in writing of the grantee or his representatives, attempt to sell or remove from said building the same or any part thereof,” and in which it was agreed that the mortgagor might “ retain possession of the mortgaged property and use and enjoy the same,” was given in fraud of creditors, the plaintiff asked the judge to rule that the mortgage was given upon an arrangement to allow the mortgagor to sell and consume the mortgaged property. Held, in the absence of evidence of such consent, that the request was properly refused.</p> <p>An assignee, for value and without notice, of a mortgage of personal property, given in fraud of creditors, acquires a good title against the creditors of the original grantor.</p> <p>A provision in a mortgage of personal property, given in fraud of creditors, that the mortgagor might use and enjoy the mortgaged property, will not warrant the jury-in finding that an assignee of the mortgage had notice of its fraudulent character.</p>

<p>A contract of partnership between two physicians provided that they should divide equally the gross receipts of their joint business in a certain town ; that one might be absent six months in the year, or for any remaining portion of the year, and the other might be absent when he pleased, but neither, if absent more than two days at a time, should have any part of the income derived from the business of the other during that time; and that if the first should withdraw and cease to do business in that town, without having shared the benefit of the business at all, then the other should pay him a certain sum. Immediately after signing the contract, the first absented himself from the town; and before his return, and before he had shared in any benefit from the business, he received a letter from the other, declining to go on with the copartnership. Held, that this act of the other did not prevent the first from withdrawing from business in that town, and thereby becoming entitled to the sum named.</p>

<p>On the issue whether A. had, in 1824, dedicated a piece of land to a town for a highway, declarations of A., in 1850, tending to show that he then owned the land, made when he was not upon the land unaccompanied by any act done upon or relating to the land, and it not appearing that he pointed out the land, are inadmissible in reply to evidence tending to show such dedication.</p>

<p>Contract on a recognizance entered into under the Gen. Stj. c. 124, § 17, by the defendant John A. Thayer, as principal, and the defendant John Thayer, as surety, and conditioned that John A. Thayer, who had been arrested on an execution in favor of the plaintiff, should appear on December 11,1875, at ten o’clock, A. M., at the office of A. Perry Peck, a trial justice for the county, in Northampton, being the time and place fixed by the magistrate taking the recognizance, at the debtor’s request, for his examination as poor debtor, and from time to time until the examination 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.</p> <p>Trial in the Superior Court, before Allen, J., who reported the case for the determination of this court in substance as follows: When the recognizance was offered in evidence the defendants objected that it did not conform to the statute, and was invalid and incompetent. It was agreed that the notice of intention to take the poor debtor’s oath was issued at the time when the recognizance was taken. The recognizance was admitted, and the defendants excepted.</p> <p>There was evidence that the poor debtor’s oath was administered to the debtor at about twenty minutes before eleven o’clock, A. M., at the place and on the day, and by the magistrate, named in the notice. The creditor had not appeared, but came in before eleven o’clock, and before the debtor left, for the purpose of examining the debtor. A question was made whether it was not too late, (the oath having been administered,) and whether the creditor had any right to examine the debtor, and the debtor,' “ at the suggestion of the magistrate,” left the office to see his counsel. The creditor remained about fifteen minutes longer, until about eleven o’clock, and, soon after he left, the debtor returned. Whether the debtor returned before or after eleven o’clock, and whether he returned for the purpose of submitting to examination, were controverted matters, on which there was conflicting evidence. It was also a controverted matter whether, when the creditor appeared, the debtor refused to submit to examination, and left the magistrate’s office with that purpose, or whether he left to secure the aid of his counsel.</p> <p>The defendants asked the judge to instruct the jury, that, if the debtor left the office to consult his counsel as to whether he should submit to examination, intending to return for examination if so advised, and did return for that purpose without unnecessary delay, there would be no breach of the recognizance even if he did not reach the magistrate’s office until after eleven o’clock. The judge declined so to rule, and submitted to the jury this question: “Was the debtor present for examination before the magistrate, after the creditor appeared, and within the hour ? ” And the jury were instructed that, “ If, when the creditor appeared, the debtor did not refuse to submit to examination, but left the office to call his counsel, intending to return and be examined, and did return for that purpose, the question should be answered in the affirmative, whether he returned before or after eleven o’clock; but if the debtor refused to be then examined, and "left to consult his counsel, intending to return for examination, if so advised, and not to submit to examination unless he should be so advised, and did not return until after eleven o’clock, the question should be answered in the negative.”</p> <p>The jury answered the question in the negative; and the judge ordered a verdict for the plaintiff.</p>

Petition, under the Gen. Sts. c. 150, to enforce a lien foi labor performed and materials furnished in the alteration and repair of a house in Springfield.

<p>Trustee process. Writ dated September 6,1875. John J. Power, summoned as trustee, answered, denying that, at the time of the service upon him, he had in his hands and possession any goods, effects or credits of the principal defendants. The plaintiff thereupon filed interrogatories to the trustee, and the material portions of his answers thereto were that, as agent of Patrick T. O’Reilly, he entered into a contract with the principal defendants for the building of St. Paul’s Church in Worcester, and that there was due from O’Reilly to the principal defendants by virtue of the contract, at the time of the service upon the trustee, the sum of $1810.57, and no more; that none of this sum had since been paid, and that there was nothing due from the trustee personally to the principal defendants.</p> <p>A copy of the contract was annexed. It was dated January 13, 1875, and purported to be made between John J. Power of the first part, and O’Brien and Borden of the second part. The parties of the second part agreed to do certain work on a church then building, and to complete the same on or before July 19, 1875 ; and the party of the first part agreed to pay them therefor as follows: “1. On June 1, 1875, the said Power to give two negotiable notes, one made payable to the said O’Brien and Borden for $2000; and one made payable to Charles Fuller for $1000, both of which shall be accepted as the first payment on this contract, and the smallest of which shall be given to the said Fuller by O’Brien and Borden in full payment for the carpenter work done by Fuller for O’Brien and Borden, in the pros' ecution of this contract. 2. On July 1, 1875, Power to give a note of same character as the first for $2000, made payable to O’Brien and Borden. 3. On August 1, 1875, Power to give a similar note for $2000, made payable to O’Brien and Borden. 4. On September 1, 1875, the said Power to give a similar note for $1000, which shall be in full settlement of this contract.” The contract also provided that “ the said Power will allow interest on all the notes given in payments when the time runs beyond the first of October, 1875.”</p> <p>In the Superior Court, the trustee was charged on his answer, and appealed to this court.</p>

Petition fur partition. At the trial in the Superior Court, before Wilkinson, J., without a jury, the petitioner put in a deed from one-Catharine T. Howe, to herself and the two respondents of the land in question, of one undivided third part thereof, and rested her case The respondents then called Josiah C. Blaisdell, Esquire, who testified that in 1868, the petitioner, with the respondent Howe, came into his office, when she agreed to sell to Howe her third part of the…

Tort for personal injuries received by the plaintiff while a passenger in a car of the defendant. Trial in the Superior Court, before Allen, J., who, by consent of the parties, before verdict, reported the case for the determination of this court, in substance as follows: .The plaintiff purchased of the defendant a ticket at Attleborough for Taunton, and entered the defendant’s train for that city.

Replevin. Trial in the Superior Court, before Allen, « The property replevied formerly belonged to Carpenter & Robinson, who mortgaged the same with other property, on July 29, 1875, to E. A. Grout & Company for the sum of $2,253.76, which sum was due for goods previously bought of the mortgagees. The mortgage was duly recorded.

<p>The Fall River Print Works was summoned as trustee in a process of foreign attachment. A claimant filed with his declaration an assignment duly recorded of the wages of the principal defendant from the “ Roheson Print Works,” and offered evidence tending to show that the trustee was as well known by that appellation as by its corporate name, and that it accepted the assignment. The judge, who tried the case, without a jury, ruled that there was no variance between the declaration and proof, and found for the claimant. Held, that the plaintiff had no ground of exception.</p>

Bill m equity to redeem a mortgage given by the plaintiff to the defendant’s intestate. The case was referred to a master, and at a hearing before him one Gammons, the father of the defendant’s intestate, was called as a witness by the plaintiff, and his testimony was mainly contradictory of that previously given by the plaintiff himself.

Replevin of certain articles of personal property. Trial in the Superior Court, before Gardner, J., without a jury, who found for the plaintiff, and allowed a bill of exceptions, the substance of which appears in the opinion.

<p>Contract on a promissory note for $1000, payable on demand. At the trial in the Superior Court, before Bacon, J., the plaintiff objected that, if the facts set forth in the defendant’s answer were proved, they constituted no defence to the action. By the consent of parties, the judge, before verdict, reported the case for the consideration of this court. If the facts set forth in the answer and competent to be proved, constituted no defence to the action, judgment was to be entered for the plaintiff; otherwise, the case to stand for trial. The facts appear in the opinion.</p>

Contract upon a policy of insurance against fire. At the trial in the Superior Court, before Aldrich, J., it was admitted by the defendant that the property described in the policy was destroyed by fire.

<p>In an action against a city for injuries occasioned by a defect in a highway, it appeared that the plaintiff fell into a hole in the sidewalk. There was no evidence that the hole had existed for twenty-four hours before the accident, or that the city had notice of it. More than twenty-four hours before, the agents of the city had dug a trench across the sidewalk at the place where the accident happened, and had negligently filled it up. The judge instructed the jury that if the earth under the sidewalk “ was in such a condition that the same might reasonably be expected, through the continuous action of such natural causes as were then operating, and such ordinary rains as might be expected to occur at that season of the year, at any hour, to wash out and produce such a cavity as that into which the plaintiff fell, it was competent for the jury to find an existing defect, for which the defendant might be liable.” Held, that the instruction was erroneous.</p>

Tort for personal injuries sustained by the plaintiff while in the defendant’s employ, in attempting to oil a part of the machinery of a steam-engine. Trial in the Superior Court, before Pitman, J., who allowed a bill of exceptions in substance as follows: It was admitted that the plaintiff, immediately after the accident, stated to Leonard C. Pierce, the superintendent of the defendant, that it was through his own carelessness that he was injured.

Contbact against John H. Hilton and Edward T. Bubier, on a receipt signed by them, which, after reciting the delivery to them by the plaintiff of five cases of boots, attached by the plaintiff, a constable, as the property of one Murphy, on a writ in favor of J. E. Smith and C. L. Smith, contained a promise to deliver the property on demand and to save the plaintiff harmless “ from all costs, trouble and expense that shall or may arise to him through our default in…

<p>Contract against Josiah Burnell and Daniel Prescott as co-partners, on an account annexed for quadrupeds, birds and fishes sold the defendants. All the items of the account, except the last, were under date of April 15, 1874, and the last was dated May 9, 1874. The defendants filed separate answers, each containing a general denial. The case was referred to an auditor, who found against the defendant Burnell, and in favor of the defendant Prescott, on the ground that he was not a partner of Burnell at the time the articles were sold.</p> <p>At the trial in the Superior Court, before Rockwell, J., the only question in issue was as to the liability of the defendant Prescott. The plaintiff put the auditor’s report into the case, and introduced evidence tending to show that Prescott was a partner of Burnell, and had held himself out as such in April and May, 1874; and the defendant Prescott put in evidence to the contrary, and offered certain evidence, which the judge excluded, the nature of which sufficiently appears in the opinion.</p> <p>The defendant Prescott requested fifty-five instructions to the jury, of which it is only necessary to state the following:</p> <p>“ 27. The auditor’s report is evidence in behalf of the defendant Prescott. It is entitled to the same amount of weight as a promissory note, put into a case after proof of its making and signature. It makes out a primá facie case for this defendant.”</p> <p>“ 55. Even if Burnell and Prescott were actually partners at the time of the alleged sale, yet, if the jury are satisfied that the goods were sold to Burnell, individually, the firm was not liable.”</p> <p>The presiding judge declined to give the instructions requested in the form in which they were presented, except the 55th request, which was given; and the judge further instructed the jury, that, to sustain the action against Prescott, the plaintiff must satisfy the jury, the burden of proof being upon him, either that, at the time of the sale and delivery of the goods, Burnell and Prescott were actually partners, or that Prescott represented himself as a partner of Burnell, holding himself out as such, and that the plaintiff, at the time of the sale and delivery of the goods, confiding in that representation and holding out, was induced thereby to make the sale; and defined what actual partners were, in a manner not objected to; that the representation must have been made before the sale and delivery to the plaintiff, or brought to his knowledge; and that, confiding in it,' the plaintiff sold the goods to the defendants as partners that the partnership could not be proved by statements of Burnell, and, if any evidence of that kind had been heard by the jury, they must lay it wholly out of the case; and that, if the jury were satisfied that the defendants were partners on April 15, 1874, or that there was such a representation, and that the plaintiff confided in it, the verdict would be against both ; otherwise, for the plaintiff against Burnell, and for Prescott against the plaintiff.</p> <p>The jury rendered a verdict against both defendants, and the defendant Prescott alleged exceptions, which stated the evidence on both sides, and the prayers for instructions at length, together with the instructions given as here reported.</p>

Wbit of beyiew to reverse a judgment recovered by the defendant in review against the plaintiff in review. Trial in the Superior Court, before Bacon, J., without a jury, who allowed a bill of exceptions in substance as follows : The plaintiff in review having been defaulted in the original suit, now filed an answer to the original declaration, and the case was tried upon the issue thus raised.

Contract to recover one half the cost of a party wall. 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 as follows : “ On May 13, 1869, Henry Lee and others, being the owners of three adjoining lots of land on Boylston Street, and numbered LI, 12, and 13, on Berkeley Square, in Boston, sold lots 11 and 12 to the plaintiff, by deed duly acknowledged and recorded at the time with…

<p>Section 3 of article 11 of the Constitution of Wisconsin concerning the “ organization of cities and incorporated villages,” and restricting their power of taxation, does not apply to counties.</p> <p>The Legislature of Wisconsin may authorize counties to subscribe for stock in aid of a railroad, and to issue bonds in payment thereof.</p> <p>A railroad corporation, having the right to construct its road between two places, by a circuitous route, and intending to apply to the Legislature for authority to construct a more direct road between these places, may, before such authority to build is obtained, or any location thereof made, make a valid contract for a sale of its stock, conditioned upon the building of the latter route.</p> <p>A railroad company was authorized to submit, and a county to accept by popular vote, a proposition for the sale of its stock to the county, signed by its president or secretary, and under its common seal. A proposition was made, signed by its Vice-president, and under its common seal; and this proposition was accepted. Afterwards, a statute was passed providing that no defects or irregularities in any of the proceedings, preliminary to the acceptance, should invalidate such agreement. Held, that the defect of form in signing the proposition did not invalidate the contract.</p> <p>By the terms of a contract between a railroad corporation and. a county, reciting that file former proposed to build a railroad from A. to B., the county was to give its bonds to a certain amount, and take stock in exchange. The bonds were to be delivered to a trustee in trust to deliver the same to the railroad corporation, whenever a continuous road between certain points named should be built. To this was added a condition that the railroad corporation should not tie bound to build any portion of the road between the points named, unless the municipal corporations on the line of the proposed road should agree to make a similar exchange of bonds for stock, to the amount of $400,000, to be deposited with the same trustee. It was then provided that if the road should not be begun in six months after the said sum of $400,000 should be subscribed by the municipal corporations, and the bonds thereof issued and deposited with the trustee, “ or shall not be built from A. to B. within two years from the deposit of such bonds with the trustee,” the county may withdraw their bonds and surrender their stock. At the time this contract was made, the railroad corporation had not, by its charter, authority to build the road as proposed. The bonds of the county were deposited with the trustee in February, 1872. The municipal corporations referred to in the agreement only subscribed for stock to the amountof $84,000. In February, 1875, the railroad corporation got authority from the Legislature to build the road on the line proposed, and it was at once begun and carried on with all reasonable dispatch. In September, 1875, the county demanded back the bonds of the trustee, and sought to rescind the contract. In December, 1875, that part of the road was completed which entitled the railroad corporation to the bonds. Held, on a bill in equity, filed by the county, to determine the trust, that the contingencies, upon which the plaintiff had the rignt to reclaim the bonds, had not occurred. Held, also, that the court could not say as matter of law that the reasonable time, within which the road was by implication to be built, had expired. Held, also, that the proposition, after ita acceptance, became a valid contract between the county and the company.</p>

<p>Where, upon a writ of entry to recover land levied upon, under the Gen. Sts c. 103 § 1, as land purchased by a judgment debtor, and conveyed, in fraud of his creditors, to the tenant, it appears that the judgment debtor purchased the land and that the deed was made to the tenant, the question whether the demandant is a creditor, and to what amount, is not open to the tenant any farther than it would be to the debtor.</p> <p>No exception lies to a refusal to give an instruction in the precise language requested, if it is given in substance.</p> <p>The ignorance of a grantor, in respect to an incumbrance on land conveyed by him, has no bearing on the issue whether the grantee became his creditor at the date of the conveyance, or subsequently, when the grantee removed the incumbrance.</p> <p>No exception lies to the admission of incompetent evidence, if no objection is made when the evidence is put into the case.</p> <p>Upon a writ of entry to recover land levied upon, under the Gen. Sts. c. 103, § I, as land purchased by a judgment debtor, and conveyed, in fraud of his creditors, to the tenant, evidence was admitted that the debtor sold a lot of land shortly before the land in question was bought, and the deeds to and from him were put into the case; that he built a house on the land in question; and that search was made and no other property of his was found. Held, that the tenant had no ground of exception.</p>

Bill in equity to restrain the defendant from laying ita tracks in Lincoln Street, and from connecting with and using the plaintiff’s tracks in Beach Street in the city of Boston. Hearing before Devens, J., who reported the case for the consideration of the full court, in substance as follows: The plaintiff is a street railway company, owning and operating a railway extending from South Boston to the city proper.

Contract by an indorsee on a promissory note signed by the defendant, payable to John P. Loring, and indorsed in blank, “ John P. Loring, by Wm. L. Lovell, attorney. Wm. L. Lovell.” Answer, that the note was procured to be signed by the fraudulent representations of Loring and of Lewis Coleman, a director in the plaintiff bank, and that the plaintiff had knowledge of the same.

<p>In an action by A. against B. in which C. was summoned as trustee, the writ was dated August 8, 1874, and, by a clerical error, was made returnable on September 29, 1874, when there was no term of court, instead of August 29, 1874, when all parties understood it was to be returnable. On August 10, 1874, B. as principal and D. as surety, executed a bond to dissolve the attachment of the sum of money in the hands of C., reciting that it was so attached in a writ returnable “ the 29th inst.” After execution of the bond, the writ, by the consent of all parties thereto, including C. but without the knowledge of D., was altered so as to be returnable on September 5,1874, and was entered on that day. Held, in an action on the bond, that D. was not liable.</p>

<p>Parol evidence is inadmissible to show that the words “ to let, lease and give possession ” of certain premises, contained in a written instrument, were intended as a contract to assign a lease, instead of a contract to lease the premises described.</p> <p>A memorandum in writing, signed by the defendant, “to let, lease and give possession of” certain premises at a date named, and for a certain sum, is insufficient to take the contract out of the statute of frauds; nor will the plaintiff be entitled, thereby, to the possession of the premises described, as tenant from year to year.</p> <p>A point, which appears from the report of the presiding judge not to have been made at the trial, must be taken to have been waived, and cannot be taken for the first time in this court.</p>

<p>Í x an action against a street railway company for unlawfully expelling the plaintiff from a car, a witness for the plaintiff was asked on cross-examination, whether on the night of the occurrence the plaintiff told him the cause of his expulsion. The witness answered, “ No, not for two days after.” The counsel for the defendant then said, “ Oh, it was two days after, he told you, then,” and the witness answered, “ Yes.” The plaintiff was then allowed to ask the witness what the statement made to him was, and the witness said that the plaintiff told him that he gave the conductor for his fare a dollar bill, and the conductor gave him fifty cents less than belonged to him. The jury found that the defendant was justified in putting the plaintiff off the car, but used unreasonable force in so doing. Held, that the admission of this evidence gave the defendant good ground of exception.</p>

Contract to recover back premiums paid to the defendant on a policy of life insurance dated December 26, 1867. Writ dated December 21, 1874.

Two actions OE TORT. The declarations in both cases alleged that the “ defendants by themselves, or their servants acting under their orders, with force and arms, did, an assault make upon the body of the plaintiff.” Answer, in each case, a general denial. r At the trial in the Superior Court, before Allen, J., it was admitted by the plaintiffs, that none of the alleged assaults or trespasses were done by the defendants personally, or in their presence, or by their express…

Petition to establish the truth of exceptions, alleged by the petitioner, in an action brought by him against the respondents, and disallowed by Lord, J., who presided at the trial in this court. The facts appear in the opinion.

Tort against a firm of contractors, engaged in building Trinity Church, in Boston, by the administratrix of the estate of Patrick Kelley, who was injured, while mixing mortar on the floor of the church, by the falling upon him of a staging, and oí the stone upon it. Trial in the Superior Court, before Gardner, J., who ruled that, upon the plaintiff’s evidence, she could not maintain the action, and directed a verdict for the defendants.

Contract under the St. of 1873, a. 353. The case was sub. uiitted 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: The defendant made a special contract, with one Gardner, to build a tunnel under its railroad.

Contract on an account annexed for the price of 59 barrels of glue sold by the plaintiffs to the defendant. Writ dated December 4, 1874. At the trial in the Superior Court, before Pitman, J., without a jury, it appeared that the plaintiffs were commission merchants, and that one Barney, a manufacturer of glue, consigned the glue to the plaintiffs for sale.

<p>The holder of a promissory note signed by A. brought an action on the note, and directed the writ to be served on B., which was done, although the holder of the note knew that B. was not the signer. B.’s name was similar to that of A., and B. was commonly known by A.’s name. B. was defaulted, and execution issued, on which the holder of the note directed an officer to arrest B., and the officer, acting in good faith, did so. Held, that the officer was not liable to B. in an action for an assault and false imprisonment, although he knew, before making the arrest, that B. was not the person who signed the note.</p>

Contract on a bond dated March 11, 1873, executed by the defendant Brown as principal, and the other defendants as sureties, and reciting that whereas the plaintiffs “ have caused the goods and estate of James Brown, Jr., and Daniel Murphy, to the value of one thousand dollars, to be attached on mesne process” in a certain action, “in which writ said Campbell & Brooks are plaintiffs, and the said Brown & Murphy are defendants.

Bill in equity against Peter W. Morrell and Anna R. South-' wick, alleging that the plaintiff and the first named defendant were the executors of, and devisees under, the will of Ruth H. Morrell, deceased,- that the other defendant was the only other devisee; that at the time of her decease the testatrix owed certain debts, among which was a note, payable at the death of the defendant Morrell, and secured by a mortgage of land in the State of Maine; that the plaintiff, for…

Tort, with counts for libel, and others for slander. The declaration alleged that the defendant had charged the plaintiff with various wrong-doings in connection with the estate of Ebenezer Atkins, deceased, of whose will the plaintiff was executor, and among others with getting a deed from Mrs. Atkins, the sole legatee, of her real estate, without her knowledge, in which the plaintiff’s wite was named as grantee.

Information in equity, filed January 31,1876, by the attorney general, at the relation of Stephen H. Rhodes, insurance commissioner, alleging that the defendant, a corporation under the laws of the Commonwealth, did, in contravention of the St. of 1874, c. 222,* declare and pay, during the year 1875, a cash dividend or dividends exceeding ten per cent, upon its capital stock, as a dividend for that year.

Contract to recover the amount of a subscription by Amos P. Rollins, the defendant’s testator, towards the erection of a chapel for the plaintiff.

Contract on the following promissory note, signed by the defendants: “$1500.

<p>Contract against John H. Whalen as principal, and Timothy Phelan and Francis Quinn as sureties, upon a bond, dated April 1,1874, payable to the plaintiff, and conditioned that the de‘endant Whalen should appear at the next June term of the Superior Court, at Cambridge, and answer to a complaint made by the plaintiff on her examination on oath before the police court »f Cambridge, charging him with being the father of a bastard child, of which she was pregnant, and that he should abide the order of the Superior Court thereon.</p> <p>The declaration alleged the execution of the bond; that it was returned to the Police Court in Cambridge, and filed therein, and that proceedings were afterwards taken in the Superior Court, in the case named in said bond; that the following order was passed, which order Whalen had failed to abide: “ And now, after default upon the supplemental complaint, the said John IL Whalen is by the court adjudged to be the father of said child, andyit is hereby ordered by the court that the said Whalen pay to said complainant forthwith the sum of two hundred dollars for the maintenance of said child from the time of the birth of said child to the death of the child; that the said Whalen shall give bond with sufficient sureties in the sum of four hundred dollars for the performance of this order, and that said Whalen shall be committed until he gives such bond. It is further ordered that said complainant recover of said Whalen the costs of this suit.”</p> <p>The answer of the sureties contained a general denial; and set up that the plaintiff on or about April 23, 1874, acknowledged satisfaction in the action in which said bond was given, and prayed that all further proceedings therein should be stayed, by the following instrument: “ State of Massachusetts, County of Middlesex. Emma A. Haley v. John H. Whalen. Bastardy Case. The above named Emma A. Haley hereby acknowledges full satisfaction in the above entitled cause, v¡ herein the said Emma A. Haley is complainant, and the said John H. Whalen is defendant, and asks that all further proceedings be perpetually stayed herein. Emma A. Haley.”</p> <p>“ Cambridgeport, April 23,1874. Consent to the within agreement is given by us overseers of the poor of the city of Cambridge.” [Then followed the signatures of four of the overseers.]</p> <p>That said instrument was duly returned to the Police Court ,'tn Cambridge, and filed with the other papers in the action; that after the filing of said instrument they were informed by the clerk and judge of the Police Court that no further proceedings would be taken in said action, and that they, the defendants, were discharged from all liability on the bond given in the action ; that relying on the instrument executed by the plaintiff, and the representations of the officers of the Police Court, thej were induced to take no means to protect themselves and obtain security for their liability on said bond; that the action in which the bond was given was made returnable to the Superior Court, to be holden at Cambridge, on the first Monday of June, 1874; that the plaintiff did not enter the action on that day, but made a late entry and was ordered by the court to make due notification, which notification the plaintiff failed to make; that, after giving the above instrument and informing the defendants that there should be no further proceedings in the action, the plaintiff fraudulently and without due notice removed the action to the Superior Court, and fraudulently and without due notice obtained the order of court declared on in the plaintiff’s declaration ; that the plaintiff well knowing John H. Whalen, the defendant in the action, and the principal in the bond, to be a worthless and irresponsible party, and well knowing that any judgment or order of court obtainéd against him would be of no value, and well knowing the defendants Quinn and Phelan to be responsible parties, and seeking how Whalen might escape liability and contriving how Whalen might be got out of the state, and the defendants, Quinn and Phelan, charged on the bond, did conspire together with Whalen to inform the defendants that no further proceedings would be taken in the matter, and that they, the defendants, were discharged from all liability on the bond; that the plaintiff did fraudulently conspire together with Whalen to keep the defendants in ignorance of the removal of the said action to the Superior Court, until Whalen should be got out of the state, and the plaintiff should fraudulently charge the defendants on the bond.</p> <p>Trial in the Superior Court, before Pitman, J., who reported the casa for the determination of this court, in substance as follows:</p> <p>The principal defendant was defaulted, and trial was had against the sureties only. The execution of the bond and the proceedings thereon of record and the default, as recited in the plaintiff’s declaration, were proved or admitted. The defendants then offered in evidence the release referred to and made a part of their answer, the execution of which by the plaintiff was admitted. It was agreed that the signatures of the several overseers oi the poor that appear thereon were genuine, and that they were four out of the whole number of six constituting the board of overseers of the poor in the city of Cambridge; but that the action of the overseers was separate and individual, and not had at any meeting of the board. It was also agreed that the defendant Whalen in the original suit received notice of the late entry of the plaintiff’s complaint in the Superior Court, as ordered, and that the sureties on the bond did not receive notice of the late entry, and never knew that the action was entered in the Superior Court until after judgment thereon. It was also agreed that the child died before the filing of the supplemental complaint in the original action.</p> <p>The defendants further offered to prove the other facts set forth by way of defence in their answer. But the judge, being of opinion that all the evidence offered by the defendants was insufficient in law to bar the maintenance of the action and showed no legal defence thereto, if proved, directed a verdict for the plaintiff for the penal sum of the bond. If the evidence offered was material and competent, the verdict was to be set aside and a new trial ordered ; otherwise judgment on the verdict.</p>

<p>By the law of this Commonwealth, great ponds, not appropriated before the Colony ■ Ordinance of 1647 to private persons, are public property, the right of reasonably using and enjoying which for taking ice for use or sale is common to all, and in the water or ice of which the owners of the shores have no peculiar right, except by grant from the Legislature, or by prescription.</p> <p>The Gen. Sts. c. 61, § 1, authorizing the forming of corporations for the purpose of cutting, storing and selling ice, and the Gen. Sts. c. 161, § 73, punishing malicious injuries of “ any ice, upon any waters within this state, from which ice is or may be taken as an article of merchandise, whereby the taking thereof is hindered, or the value thereof diminished for that purpose,” do not restrict in any degree the common right of the public to the ice, or confer peculiar rights upon any corporations or individuals.</p> <p>In 1841, the owners of all the lands lying around and bordering upon a great pond executed, in accordance with an award to which they alone were parties, an indenture, containing a recital that they were “ the lawful proprietors in fee simple of all the lands covered by the waters of said pond, and of said waters, and all the privileges and appurtenances thereof, in proportion to their respective interests in the margin of said pondand by which they mutually agreed to divide “ the stir-face of said pond, and the waters thereof and the land under the same,” among themselves in fee, according to certain lines therein defined; and made mutual releases accordingly, with covenants for the quiet enjoyment by each party of the shares and portions of the premises to him so assigned and set out. In 1847, one of these owners made a conveyance of a parcel of land bordering upon the pond, “excepting and reserving to the grantor, his heirs and assigns, the exclusive right to take ice from said pond, which has heretofore pertained to said parcel of land, according to said indenture;” and the grantee, in 1872, conveyed this parcel to the defendant, reserving the same rights to the first grantor. In 1865, the first grantor conveyed to the plaintiff the right so reserved. Since 1839 the proprietors of lands adjoining the pond had been in the practice of cutting and storing ice for sale. After the indenture, Enes were drawn, whenever the pond was frozen, separating each proprietor’s privilege from the others, according to the lines defined in the indenture, and the proprietors were accustomed to flood the ice with water in order to increase its thickness, and conformed to those lines in preparing and cutting ice, and in conveyances which they made of land under the pond. No persons other than those employed by the proprietors ever came upon the pond to cut ice, and fishermen, who occasionaEy came to cut holes in the ice in order to fish, were not allowed to do so. The whole pond was much frequented by skaters, but it did not appear that they interfered with the ice-cutting in any way. When the pond was not frozen, fishermen and others went to aE parts of it in boats. Held, that a biE in equity to restrain the defendant from cutting ice on the pond could not be maintained by the plaintiff, either by virtue of ownership of the shore of the pond, or of title by disseisin, or of any covenant or contract made by or binding upon the defendant, or of any restriction imposed upon him or his estate.</p>

Contract on a bond executed by the defendants, and alleged to contain the following condition: “ The condition of this obligation is such, that whereas said Phillip Caldwell & Co. have caused the goods and estate of said James Healey, in the hands and possession of the Merrimack Manufacturing Company, in Lowell, to the value of one hundred dollars, to be attached on mesne process, in a civil action, by virtue of a writ bearing date the tenth day of October, A. D. 1874, and…

<p>Tort for malicious prosecution. At the trial in the Superior Court, before Putnam, J., the jury found for the defendant, and the plaintiff alleged exceptions to certain rulings of the judge. The defendant afterwards died, and his administratrix appeared and moved to dismiss the action, on the ground that it did not survive.</p>

Contract on a judgment recovered by the plaintiff in the Superior Court. Answer, a general denial. At the trial in the Superior Court, before Bacon, J., the plaintiff put in evidence the docket record of the proceedings in the action in which the judgment was recovered, and also the papers in the case, the record not having been extended.

Contract to recover $500, money had and received by the defendant to the plaintiff’s use, and also $5, the price of a carriage robe sold by the plaintiff to the defendant. Writ dated March 5, 1875.

<p>Writ of entry to recover a parcel of land in Melrose. Plea, nul disseisin. The case was submitted to the Superior Court, and to this court on appeal on an agreed statement of facts, in substance as follows:</p> <p>On February 4, 1874, the demandant recovered judgment in an action against the tenant, and on February 18,1874, execution issued upon the judgment. On February 21, 1874, the tenant was arrested upon the execution and committed to jail. On February 25, 1874, he went before a magistrate, and gave notice of his desire to take the poor debtor’s oath, and the magistrate issued the proper notice to the demandant and appointed February 28, 1874, for a hearing. On that day the parties all appeared, and the hearing was postponed until April 24, 1874. Meanwhile, on March 4, 1874, by agreement of all parties, the recognizance was discharged, all future proceedings upon the examination were discontinued, and the demandant consented that the tenant should be discharged from arrest. On March 5, 1874, an officer, by virtue of the same execution, seized the land in controversy. It was appraised, and duly set off by metes and bounds to the demandant, and seisin and possession delivered to him by the officer.</p> <p>In the Superior Court, Putnam, J., ordered judgment for the demandant; and the tenant appealed.</p>

Writ of entry to recover possession of a parcel of land in Townsend. Plea, nul disseisin. Trial in the Superior Court, before Colburn, J., without a jury, who allowed a bill of exceptions, in substance as follows : Both parties claimed under George Taft.

<p>A deed of land described it as “ beginning on the southerly side of the old county road, at the westerly corner of land now or late of C., and running easterly and southerly on said road to land now or late of B.,” thence by various courses and distances “ to the corner begun at, on the county road.” Held, that it included the fee to the middle of the road.</p>

<p>Petition to the Superior Court, filed October 26, 1874, for a jury to assess damages occasioned to the petitioner’s land by the widening of Watson Street in Cambridge. The case was submitted to the Superior Court, and, after judgment for the respondent, to this court on appeal, on an agreed statement of facts in substance as follows:</p> <p>On December 6, 1873, the city council of Cambridge passed an order to widen Watson Street, and awarded damages which were not satisfactory to the petitioner. The city did not actually enter upon and take the land of the petitioner until August 1, 1874. No objection was made to the regularity of the proceedings, and the petitioner had no actual notice of the passage of the order until June 18, 1874.</p> <p>If the petitioner, upon these facts, was entitled to a jury, the case was to stand for trial; otherwise, the petition to be dismissed.</p>

<p>A. and B. owned a parcel of land as tenants in common equally. A., with the consent of B., but at his own expense, built a house on the land, underpinned with stone and brick, and with a cellar. On a petition for partition by A., a decree was entered that partition be made between the parties, and commissioners were appointed to make it one half to each. The commissioners divided the land equally without regard to the house, and assigned the portion on which the house stood to A. This report was affirmed by the Probate Court. Held, on appeal by B., that there was nothing in the facts stated to require this court to hold as matter of law that the house was real estate, or was so considered by the court below.</p>

Contract on two promissory notes, by the payee against the maker. Answer, want of consideration.

Contract. The writ, issued from a District Court, was dated August 18, 1875, returnable on the “thirtieth day of August next.” The defendant entered a special appearance and filed a plea to the jurisdiction, on the ground “ that the writ was not made returnable within the time required by law.” The justice overruled the defendant’s plea, and allowed a motion of the plaintiff to amend his writ by substituting the word “ current ” for the word “ next,” and ordered judgment for…

Contract on an account annexed for services rendered and money expended as a member of a committee for building a town hall. The fourth item was, “ To cash paid for car fare, advertisement and bills, $20.00.” The other items were for work performed and services rendered.

<p>Appeals by the administrators of the estate of Cyrus Wake-field, deceased, from decrees of the Probate Court dismissing petitions filed by the administrators.</p> <p>The petition in the first case alleged that the estate of Wake-field was represented insolvent, and commissioners were appointed to take proof of claims; that the respondent held two promissory notes made by J. H. A. Tappan, and indorsed by Wakefield, which notes were proved against the estate of Tap-pan in bankruptcy, and also against the estate of Wakefield, to the amount of $9946.37; that a dividend was paid thereon to the respondent on January 21, 1875, from the estate of Tappan, to the amount of $1444 ; “ that notwithstanding said dividend* through accident, inadvertence and mistake, a decree of distribution of the funds in the petitioners’ hands was made on July 13, 1876, in which they were directed to pay to said Townsend National Bank, among other creditors, a dividend of 90 per cent, upon its claim, amounting to the sum of $8951.73, which, with the amount of $1444 already received from the estate of said Tappan, made an excess of $449.36 over the amount of the claim proved by said Townsend National Bank against the estate of said Wakefield; ” “ that, through similar inadvertence, accident and mistake, a further decree of distribution of the funds in the petitioners’ hands was made on September 21, 1875, in which they were directed to pay to said Townsend National Bank, among other creditors, a dividend of six per cent, upon its claim, amounting to the sum of $596.78, the whole of which was in excess of the amount of the said claim as proved as aforesaid.”</p> <p>The prayer of the petition was that the first decree might be amended, so that the amount thereby decreed to be paid to the Townsend National Bank should be $8502.37, instead of $8951.73; and that the second decree might be amended by striking out the amount of the dividend directed to be paid to the Townsend National Bank, so that, when the said decrees should be amended, the entire sum payable to the Townsend National Bank by the petitioners, together with the sum received by it from the estate of Tappan, should not exceed the amount of ih. claim as proved.</p> <p>A hearing was had in the Probate Court, and a decree made -dismissing the petition. The petitioners thereupon appealed to this court, assigning the following reason of appeal: “ That the petitioners are entitled to the relief prayed for in their petition.”</p> <p>The proceedings in the second case were precisely similar, except in the amount involved.</p> <p>The cases were heard, on appeal, before Endicott, J., who made a report thereof for the consideration of the full court, which, after referring to the proceedings in the Probate Court, and stating the facts, in regard to the claims and the dividends paid, to be as alleged in the petition, proceeded as follows:</p> <p>“ The administrators had notice of the dividend declared on Tappan’s estate at the time it was declared, but, by inadvertence, accident or mistake,' failed to notice the excess of the dividends, paid as aforesaid, over the amounts proved, and the fact of such excess and over-payments did not occur to them until after the time for appealing from the orders of distribution had passed.</p> <p>“ The appellees contended that they were entitled to receive from the estate of Wakefield such sums as, added to the dividend received from Tappan’s estate, should equal their several claims, with interest to the date of payment; and offered at the hearing to refund to the appellants the amounts, if any, received by them in excess of said claims and interest, but did not admit such excess.</p> <p>“ Upon these facts, the judge reserved the case for the determination of the full court upon, the two questions raised:</p> <p>1. Whether the reasons of appeal were sufficiently assigned.</p> <p>2. Whether the Probate Court had the power to amend its decree, as prayed for in the petition, and whether the same ought to be so amended.</p> <p>“In case either question should be determined against the appellants, the appeals were to be dismissed; otherwise, decrees to be entered as prayed for in the petitions.”</p>

<p>The time, limited by the Gen. Sts. c. 113, §§ 8, 10, for appealing from decrees of * single justice in equity, cannot be extended by consent of parties, or by the justice whose decree is appealed from.</p> <p>This court, under its general equity jurisdiction, may, for cause, remove or appoint trustees under wills or other written instruments.</p> <p>A testator by his will named three executors, and devised and bequeathed the residue of his estate to them, “ and the survivors or survivor of them, their successors in said trust, their heirs and assigns forever,” in trust to constitute a perpetual fund, to be held and invested by the trustees, with power to sell and reinvest, and the net income thereof to be managed and dispensed for certain charitable purposes by a corporation to be established by the Legislature, and to be composed of said trustees and their successors and such persons as they should associate with themselves in the act of incorporation, or as should afterwards be elected out of contributors to the fund; and provided that, in case of a vacancy in the board of trustees, the place should be filled by election by the corporation. Two of the persons named in the will resigned, before an act of incorporation had been obtained, leaving the defendant sole executor and sole trustee, and his fitness was in controversy. Held, that the permanent trust for the benefit of the charity was a distinct trust, though at first vested in the same persons who were named as ex- • ecutors; that the intention of the testator was apparent that the board should/ constantly consist of three trustees; and that the words “ the survivors and survivor of them ” did not restrict the power of the court to appoint new trustees in accordance with that intention.</p>

Petition to the county commissioners for a jury to assess damages for the taking of three lots of land, for widening Broadway in Somerville, in pursuance of a vote of the city council, passed October 19, 1874.

Two WRITS OE entry to recover parcels of land in Somerville. Pleas, nul disseisin. Trial in the Superior Court, before Colburn, J., who allowed a bill of exceptions in substance as follows: It appeared in evidence that, prior to 1850, one Thomas Rand, Jr. was the owner of a large tract of land in Somerville, on the northeasterly side of Milk Street, and between Spring Hill Street, afterwards called Spring Street, on the southeast, and Belmont Street on the northwest.

Contract, upon the following order: “ Lowell, February 3d, 1875. Mr. Blodgett, please pay to C. H. Robbins, the sum of four hundred and forty-five dollars, and oblige — to be paid when the house is finished — J. T. Willis.” Across the face of the order was written, “ I accept the order. Chas. A. Blodgett.” Writ dated December 21, 1875.

<p>An officer took-the defendant’s horses, and his wagon containing liquor, and directed the plaintiff, a stable keeper, to retain them until farther orders. When the liquor had been removed, the plaintiff sent word to the defendant that he might have his horses and wagon, but the defendant refused, unless they were delivered to him. They remained at the plaintiff’s stable, the horses were fed by him, and finally the defendant sent for them. Held, in an action to recover for feeding the horses after the liquor was removed, that no contract, express or implied, was shown between the parties.</p> <p>Upon overruling frivolous exceptions, double costs are not imposed, under the Gen. Sts. c. 112, § 13, unless moved for.</p>

- Contract to recover $800 for building a town way in Ash-land. Writ dated June 10, 1874.

Bill in equity against Abraham Jackson, the assignees in bankruptcy of Jackson, and the Franklin Insurance Company, for the conveyance of… Held: besides other collateral security, a mortgage made by one Carpenter, which was originally taken under the belief that it was a first mortgage, but was in fact a second mortgage, on discovering which the company called upon Jackson for further security, and he thereupon, on December 16, 1873, by deed of that date, assigned to the…

<p>Replevin, addressed to the sheriff of Dukes County or his deputy, and commanding him to replevy certain property described, “ belonging to Howard M. Smith, infant, of Tisbury, by his next friend, Edward T. T. Smith, of Tisbury, plaintiff, now held by Jason L. Dexter, of Edgartown, and deputy sheriff of Dukes County.”</p> <p>The writ was served by the sheriff; and the bond to the defendant, taken and returned by him, purported in the body thereof to be made by “ Howard M. Smith, infant, by his next friend Edward T. T. Smith, as principal,” and by two sureties.</p> <p>At the first term, the defendant filed a demurrer, assigning the following reasons therefor: “1. That the description of personal property in the writ is too vague, uncertain and indefinite ; that it is not in conformity to law, and is insufficient in law.</p> <p>“ 2. Because the officer serving the writ had no authority in law to serve the same.</p> <p>“ 3. Because no valid bond was taken by the officer in serving the writ, as required by law.”</p> <p>The plaintiff afterwards filed the following paper: “ Plaintiff’s answer to causes of demurrer assigned by defendant: And now the plaintiff comes by Ms counsel and answers, and says that he denies the several causes of demurrer to the writ and declaration and the service thereof, and denies that any cause of demurrer exists against the same as the defendant hath alleged, and hereby takes issue upon the same, and affirms in answer to the same: 1. That the description of personal property in the writ is not vague, uncertain and indefinite.</p> <p>“ 2. That the officer serving said writ of replevin had authority to serve the same.</p> <p>“ 3. That the bond given in said case, and taken by the officer serving said writ, is one given and signed in conformity to law and as reqMred in law.”</p> <p>Hearing upon the demurrer in the Superior Court, before Wilkinson, J., who gave judgment for the defendant, and allowed the following bill of exceptions :</p> <p>“ The judge overruled the first assigned ground of demurrer, and decided that the description of the property in the writ was sufficient. The plaintiff requested the judge to rule that the bond given in the action was a proper bond and given in conformity to law, and that the sheriff who served the replevin writ in the action upon the defendant therein, who was one of his deputies and had attached the property replevied upon a writ of Brown against Smith, pending in the Superior Court, and-so held it at the time of the replevin, had, at the time of such service, legal right to serve the same upon the defendant, and that the service upon the replevin writ in the action was a good service of the writ upon the defendant aforesaid, and made in conformity to law. The judge declined to so rule, but ruled that the bond was insufficient in law, and that the sheriff who served the writ had no authority in law to serve the same, and sustained the defendant’s demurrer upon the second and third grounds. The plaintiff alleged exceptions.”</p>