Volume 122 — Massachusetts Reports

Tort. The declaration contained ten counts. The first alleged that the plaintiff, before and at the time of the committing of the grievances hereinafter mentioned, was, and from thence hitherto has been, and still is the owner, and lawfully possessed of a certain parcel of land, [which was described by metes and bounds,] situated in that part of Sandwich called Monument, on the Monument River, a navigable stream, and arm of the sea, in the county of Barnstable, including the…

Libel on the Gen. Sts. c. 107, § 4, for a sentence of nullity of marriage, setting forth that the ceremony of marriage was performed between the libellant and libellee in this Commonwealth on January 25, 1873, and that the marriage was void, because the libellee on August 5, 1857, had been married to Daniel Lewis, of New London, Connecticut, and that Lewis at a Superior Court, held in and for the county of New London in December, 1864, had been divorced from the libellee for…

Complaint under the bastardy act. At the trial in the Superior Court, before Allen, J., the respondent called Willard Force, a brother of the complainant, and asked him if he ever saw his brother Horace in bed with the complainant, to which he answered that he never had. He was then asked if he did not so state at the hearing before the justice before whom the first bearing was had. To this question the complainant objected, but the judge overruled the objection.

Contract on a bond to dissolve an attachment, signed by Barney Connor as principal, and by the defendants as sureties.

Complaint on the St. of 1876, c. 162, to the Police Court of the city of Gloucester, signed by two persons, alleging that they, “being of full age and competent to testify,” have reason to believe and do believe that certain intoxicating liquors “ are kept and deposited by John Ganey in a certain tenement situated on the northeasterly junction of Rogers Street and Central Street, and known as the Portsmouth Ale Depot, in said Gloucester, and occupied by said Ganey as a place…

Indictment under the Gen. Sts. e. 7, § 29, alleging “ that the city of Salem is a municipal corporation duly established by the laws of said Commonwealth, in said county of Essex, and that on the fourteenth day of December, in the year of our Lord one thousand eight hundred and seventy-five, a meeting of i he qualified voters of the various wards of said city of Salem, for the election of mayor, aldermen and members of the common council, and other municipal officers, having…

<p>A warrant may issue under the St. of 187fi, c. 162, to search, for intoxicating liquors, a storehouse kept in a dwelling-house, without the oath of one of the complainants, specified in § 2.</p> <p>A complaint on the St. of 1876, c. 162, and the warrant issued thereon, alleged that intoxicating liquors were kept " in the cellar of a certain one and a half story wooden house” occupied hy the claimant "as a storehouse.” The proof was that they were kept in the cellar of his dwelling-house. Held, that there was no variance.</p>

Indictment against Elizabeth Carroll and Silas B. Chamberlain, containing four counts. The first count charged that the defendants, at Boston, on May 1, 1875, “did falsely make, alter, forge and counterfeit a certain deed,” namely a discharge of a mortgage, purporting to be signed by Samuel F. Bachelder, “ with intent thereby to injure and defraud.” The second count was for uttering the same.

<p>Indictment on the Gen. Sts. e. 160, § 28, in three counts. The first count was as follows :</p> <p>“ The jurors for the Commonwealth of Massachusetts on their oath present, that Ezra S. Goodwin, of Boston aforesaid, on the seventh day of December, in the year of our Lord one thousand eight hundred and seventy-five, at Boston aforesaid, with force and arms, unlawfully and maliciously, did verbally threaten one Ferdinand Geldowski, that he, said Goodwin, would accuse him, said Geldowski, of having theretofore committed the crime of feloniously and wilfully burning a certain building of him, said Geldowski, with the intent of him, said Geldowski, to injure the insurer of said building ; said building having lately theretofore been burned and consumed by fire, and said building having been at the time of said fire insured against loss and damage by fire, with intent then a.nd there and thereby to extort, from said Geldowski, a certain sum of money, to wit, the sum of twenty-five thousand dollars, against the peace of said Commonwealth, and the form of the statute in such case made and provided.</p> <p>“And the jurors aforesaid, for the Commonwealth of Massachusetts, on their oath aforesaid, do further present, that William Fogg, of Boston aforesaid, before the said felony and threatening was committed, in manner and form aforesaid, to wit, on said day of December, with force and arms, at said Boston, did feloniously and maliciously incite, move, procure, aid, counsel, hire and command the said Goodwin, the said felony and threatening, in manner and form aforesaid, to do and commit; against the peace of said Commonwealth, and the form of the statute in such case made and provided.”</p> <p>The second count was as follows : “ And the jurors aforesaid, for the Commonwealth of Massachusetts, on their oath aforesaid, do further present, that Ezra S. Goodwin, of Boston aforesaid, on the ninth day of December, in the year of our Lord one thousand eight hundred and seventy-five, at Boston aforesaid, with force and arms, with intent to extort money from Ferdinand Geldowski, unlawfully and maliciously, did verbally threaten said Geldowski, that he, said Goodwin, would accuse him, said Geldowski, that a certain building of said Geldowski, insured against loss or damage by fire, he, said Geldowski, had lately theretofore unlawfully and maliciously burned and consumed, while the same was so insured, as aforesaid, with the intent of him, said Geldowski, to injure the insurer thereof; against the peace of said Commonwealth, and the form of the statute in such case made and provided.</p> <p>“ And the jurors aforesaid, for the Commonwealth of Massachusetts, on their oath aforesaid, do further present, that William Fogg, of Boston aforesaid, before the said felony and threatening was committed, in manner and form aforesaid, to wit, on said day of December, with force and arms, at said Boston, did feloniously and maliciously incite, move, procure, aid, counsel, hire and command the said Goodwin, the said felony and threatening, in manner and form aforesaid, to do and commit > against the peace of- said Commonwealth, and the form of the statute in such case made and provided.”</p> <p>In the Superior Court, before the jury were empanelled, the defendants moved to quash the indictment, for the following reasons: “1. Because the threats set forth in the several counts are not threats to accuse of any crime or offence. 2. Because neither count alleges that the building, the burning of which Geldowski was threatened to be accused of, was situated in Massachusetts, or in any place where the burning of it, with the intent to injure the insurer, was any offence or crime, or that such burning was at the time thereof any offence or crime, nor alleges where the building was situate. 3. Because neither count sets forth by what person or company, nor to what amount, the building was insured, nor what person or company Geldowski was threatened to be accused of intending to injure; nor that the threat was to accuse Geldowski of burning the building, knowing it to be insured. 4. Because neither count contains a sufficient description and designation of the building. 5. Because the second and third counts do not allege that the defendant Goodwin threatened to accuse Geldowski of having wilfully burned the building; and do not aver the amount of money intended to be extorted. 6. Because there is no sufficient allegation of time in either count as to the defendant Fogg." Aldrieh, J., overruled the motion, and the defendants excepted. The defendants were then tried, and a bill of exceptions, in substance as follows, was allowed:</p> <p>Ferdinand Geldowski, called by the government, testified as follows : “ On December 7, 1875, the defendant Goodwin came to me at Boston, and spoke of a fire in my factory in East Cambridge, in 1870. He said he had brought a man from the South who knew the cause of the fire, and had made an affidavit that I hired him to set the fire. He then took a piece of paper out of his pocket, and said, ‘ I am the agent of these companies that you were insured in.’ He showed me a piece of paper, and said, 61 suppose you recognize the companies.’ I told him I recognized some of them ; and he had some amounts put against the name of each company, and he said, 1 Those companies paid you about $32,000, didn’t they?’ I told him that was about the amount. He said, ‘ I am authorized from those companies to get back that money, and I am the only man you can settle with; have you any proposition to make ? ’. I asked him what he meant. He said, 6 How much will you give that nothing more will be said about it ? ’ I told him I would not give one cent, as the whole matter was a lie. He then jumped up, and said, ‘ I shall go and have you prosecuted.’ I told him to go ahead, as quick as he pleased, and to tell the insurance folks to do the same. He then left me.” On cross-examination the witness testified that the piece of paper shown him was a list of the insurance companies, with the amounts of the loss of each set against them, and that this was the only paper shown him at that time. There was no other evidence touching this conversation except that of the defendant Goodwin, who denied that he said “ I shall go and have you prosecuted,” or anything to that effect. This was the evidence relied upon by the government on the first count.</p> <p>Geldowski further testified: “ The next day, Goodwin and William Fogg came to my factory, and Goodwin called me aside and said, ‘ This is the man that made the affidavit, and I give you a copy of it, and at your leisure you may study it. My name is Goodwin; I shall put it on the back of it, and my post-office address. If you want to address me by mail, you may do so after you have considered the matter.’ He wrote his name and address, and then left. The next day Goodwin came to m store in Boston, and asked me if I had read the affidavit, and what I thought of it. I told him that there was not a word of truth in it; it was all a lie. He said, ‘ That is nothing to me. I am authorized by the insurance companies, and I am their agent, and I am to settle with you. I have got this case put in my hands, and I want this settled, and you had better consider the matter; in the condition you are in now, you cannot afford to have any talk made at this time, and I can settle this matter quietly with you, (I was in bankruptcy at this time,) and let us go somewhere, where we can sit down and have a room all to ourselves, and talk that thing over, and I will explain it to you, and you will see it in a better light.’ I told him just then I was busy; I had had some business to attend to with my counsel about my bankruptcy matters, but in the evening, if he would come to my house, I would talk with him as long as he had a mind to. He said he would come about seven o’clock. That evening, December 9, he came to my house in Boston. Two officers were there. I took him into the dining-room, and he drew out that same piece of paper again, on which he had the names of the insurance companies written, and said, ‘How let us talk business. These companies have paid you $32,000, and .he interest for five years amounts to $10,000 more, which will nake it now $42,000, and I am authorized from the insurance companies to settle with you. I am to reserve 50 per cent, of all I can collect of you. I have been put to a great deal of expense in working up this job, and I have been three months to work about it. I have been to Florida after this man. I have spent about $1000 out of my own pocket.’ I said to him, ‘ What is it you want ? Be easy with me, in my present circumstances, as I have not committed any crime, and would not be willing to pay one cent on that ground ; but since you have been misled by a man who has perjured himself, and in order to avoid talk at the present time, I would be willing to compensate you for what expense you have been to; but not one cent of that money shall go to any of the insurance companies, as I would deem ii a partial acknowledgment of guilt, of which I am innocent.' He said, 61 am alone in this matter, and hold the evidence in my own hands, and work for myself and nobody else.’ Then I said to him, 6 How will you satisfy the insurance folks ? ’ 6 The insurance folks can go to hell,’ he said, 1 and I will tell them the evidence I have is not worth a damn ! But how much will you give me to settle with me forever ? ’ I told him I had no proposition to make. ‘ What do you propose ? ’ 6 Well,’ he said, 11 propose to take $25,000, and say no more about it.’ I laughed at him, aiid told him I was not guilty of any crime, and would not pay him any such amount, and if I should not pay him anything, what would he do about it ? 6 Well,’ he said, 1 you would be prosecuted. Whatever is done must be done right away.’ I told him I was not afraid of him, or of any man, as I had done nothing to be afraid of. He said, 1 Let us talk business; how much will you pay ? ’ I told him I would offer $5000, on condition that none of the money should go to any of the insurance companies, as they had no claim upon me, and I would only consider it as a present to him. Then Goodwin said, ‘ $5000 is not enough even for myself, although I did not intend to pay the insurance companies one cent of the money; but still you must make a better offer. Pay $10,000,’ he said. I told him I would not pay that sum. He said, 1 Well, call it $5000 and $5000 in furniture, as I am boarding now, and am going to housekeeping.’ He said, 1 By the way, what are you doing with your house in Somerville?’ I told him it was unoccupied, and if he wanted to live there, rent free, it would not take much to fur nish it, as it was partly furnished. He said, ‘I could be a keeper for you, or agent for you, as I could have a chance to sell !t for you.’ I told him, ‘ Yes, that is so.’ He said, 6 When will we go out to your house ? ’ I said, ‘ Tomorrow afternoon at 3 o’clock.’ He said, ‘Let us understand our business; when will you give me the $5000, and when can I have the furniture ? ’ I told him the furniture I could not give him at present, as everything I had I put into the hands of my creditors to pay my debts, and I could not give him a stool-leg at that time; but when my business was fixed and in my own hands again, and affairs settled, I would satisfy him as to the furniture. Then ho turned to a door and said, 1 Is there any listeners about here ? Where does that door lead to ? ’ I said it led ‘ to my wife’s china closet, and she has the key to it, and if you will take $2000 less in money, I will open the door and satisfy you there are no listeners.’ The officers were then in the closet. He said, 11 will take your word for it; you are a better man than I thought you were; you are a square man, and you will find that I am a square man. Now, let us talk business again. I must have some money this week, as I am short of money.’</p> <p>“ I told him I could not say anything about the money till tomorrow, as I must borrow it. I said, ‘ I have no money; I have given up all I have.’ He said, ‘ What time will you let me know ? ’ I said, “ In the afternoon,’ and named a place. He said, 61 will be there, and I will wait for you an hour beyond the time.’ I told him he must draw up some kind of an agreement and paper that at any future time he would not trouble me again; and Goodwin said, 11 shall not do that, as I am not going to put my head into any halter. I am a man of my word, and I take you to be a man of honor ; and if I give you a paper to that effect it will only commit me to the insurance companies, and put me in their power; when I settle with you, I settle with you forever.’</p> <p>“ Then I told him Fogg ought to be in state prison for perjuring himself. He said, ‘ That is where he belongs, and I will help you put him there if you do the right thing by me. I have all this evidence against Fogg in my own possession. I had the affidavit sworn to in Key West. If both of us keep quiet about this, it will be for our mutual benefit, as this settlement must only be between you and me, and nobody else must know anything about it, as I am working for myself and nobody else, and nobody else will get a cent of this money; besides, I think I am a man of honor, and I take you to be a man of honor, and, if I give my word, no power on earth can make me break it; besides, I would make myself liable as soon as I accept, and so would you, and if we both, keep quiet about it, neither one of us — we would both make ourselves liable, and neither one of us can go back on the other.’ That was substantially all that was said.”</p> <p>Two officers testified that they were in the closet and heard this conversation. Goodwin denied saying to Geldowski that he would be prosecuted; and he further testified, both as to this interview of December 9 and that of December 7, that whatever he said as to any proceeding against Geldowski, he meant only civil proceedings.</p> <p>This was the evidence relied on by the government on the second count.</p> <p>It was in evidence that in January, 1871, the furniture factory of Geldowski, at East Cambridge, Massachusetts, was partially burned, and certain furniture of Geldowski’s in it was also burned; and he testified that, after the fire, different insurance companies paid him losses amounting in all to some $32,000; that the defendant Fogg was at that time in the employ of Geldowski, and afterwards went to Florida.</p> <p>The defendants put in evidence tending to show that in September, 1875, Goodwin was told that Geldowski had hired Fogg to set the fire, and had so defrauded the insurance companies: that soon after he (Goodwin) went to Florida, and found Fogg, and told him what he had heard, and asked him if it was true ; and Fogg, after some hesitation, said it was, and detailed to Goodwin the circumstances, substantially as set forth in the affidavit, and then, at Goodwin’s request, gave the affidavit referred ;o, and came to Boston with Goodwin, at his request, and at his expense. The affidavit was put into the case. It set forth that Geldowski hired Fogg to set fire to Geldowski’s factory; that combustible materials were arranged by Geldowski; that Fogg set the fire, and was paid $1300 therefor.</p> <p>15 appeared that before Goodwin went to Florida he communicated with the ./Etna Insurance Company, which had paid Geldowski a loss on this fire of some $5000 or more, and that, after hearing his statement, the president of the company gave him authority in writing to look up the evidence in the case for them, and agreed to give him fifty per cent, of what the com-pony might collect from Geldowski, and that the company sent him two hundred dollars towards his expenses in Florida; and Goodwin testified that he told Fogg in Florida that he represented the insurance companies, and that he wanted him to come north to help them recover back the money from Geldowski j and Fogg testified that he believed this to be so, and that he same to Boston only for that purpose. Fogg and Goodwin both testified that no communication was ever made by Goodwin to Fogg as to what means Goodwin proposed or intended to employ to collect the money from Geldowski, and that Fogg had no knowledge upon that point; and there was no evidence on the part of the government that there was such communication or knowledge, except what might be implied from the other facts stated in this bill.</p> <p>The defendants further offered evidence to show that, from the time when Fogg arrived in Boston, December 7, up to the time of his arrest, on December 10, he remained at the house of Goodwin, in Worcester Square, and did not go out, except on the occasion referred to, when he went with Goodwin to see Geldowski at East Cambridge; and it did not appear that Fogg, during this time, had any information as to what Goodwin was doing or saying, or intended to do or say; and Fogg and Goodwin both testified that Fogg had no such information, but was ignorant both of Goodwin’s intentions and acts, except that he understood Goodwin was to collect the money for the insurance companies, and he was to give his statement when called upon.</p> <p>It also appeared that, in Florida, Goodwin made a written agreement with Fogg, to the effect that if Fogg would come north with him and help him to collect the money for the companies, and do as he wished in all things, he would pay hún $1000 ; and when Fogg was arrested on December 10, at 10 Worcester Square, after Goodwin had been arrested at the house of Geldowski, his first inquiry was if the officers came from the insurance companies.</p> <p>Evidence was introduced by the government, tending to show that after Goodwin returned from Florida, and before he met Geldowski, his authority from the JEtna Insurance Company was revoked; and evidence was offered by the defendants tending to show that such was not the case, but that the secretary of the company told Goodwin they were satisfied with what he had done, and to go ahead and finish it up as well as he could and Goodwin testified that he believed the insurance companies had a good claim against Geldowski, and that he was authorized to collect or settle it the best way he could.</p> <p>The government, to show that whatever authority Goodwin had had from the -ZEtna Insurance Company was revoked before the first interview with Geldowski, called as a witness the secretary of the company, who testified, that on the morning after Goodwin’s return from Florida, on December 7, 1875, (at an hour which was earlier than the time of Goodwin’s first visit to Geldowski,) he (acting for the company) met Goodwin in Boston by appointment; that Goodwin read Fogg’s affidavit, and that the witness asked Goodwin what corroboration could be given to Fogg’s testimony, and then said to Goodwin that there was no case to present to á jury ; that Goodwin said that he did not propose to collect the money by a trial; and that then the witness asked him what he proposed to do, to which Goodwin replied, “ I shall go to Geldowski, and sit down opposite him, and read the affidavit to him, and put my hands on his knees, and say, ‘How I have got you; ’ ” that the witness asked what Goodwin would do in case Geldowski refused to pay anything, to which Goodwin replied, “ I will say to him, ‘ Old fellow, you ’ll be jugged! ’ ” And the witness testified that he then withdrew all Goodwin’s authority to act for the company in any way.</p> <p>The defendants introduced evidence tending to contradict this, and to show that the secretary of the company, on the occasion just referred to, expressed satisfaction with what Goodwin had done, and told him to go ahead, and finish it up as well as he could.</p> <p>The government also called as a witness J. W. Kinsley, president of an association of underwriters, who testified that Goodwin, before his journey to Florida, came to him, and asked him to get him authority from various insurance companies to collect from Geldowski what had been paid him; that he gave Goodwin a list of the companies, but marked the names of a majority oí them, which he informed him were extinct; and that Goodwin said, “ All the better; there will be so much the more for you and me; ” and that the witness thereupon refused to have anything to do with the matter.</p> <p>The foregoing was all the evidence material to the rulings and instructions prayed for and given, and was all the material evidence in the case affecting the defendant Fogg.</p> <p>The defendants asked the judge to instruct the jury as follows : “ 1. It is incumbent upon the government to prove that the building was insured, and that there was no evidence to warrant such a finding. 2. There is no evidence to warrant the conviction of Fogg on either count. B. There is a variance between the indictment and the proof on all the counts, as to the offence which Goodwin threatened to accuse Geldowski of; the indictment alleging the offence to be the burying of the building by Geldowski, and the evidence only tending to show that it was, if anything, the hiring and procuring of Fogg to brum it. 4. A statement to a person that he will be prosecuted unless he settles a claim, cannot be deemed to be a threat to accuse of crime; and the words testified to by the government witnesses do not constitute or import such a threat within the meaning of the statute. 5. The word 6 prosecute ’ may refer and apply to both civil and criminal proceedings with equal propriety, and unless a person using the word uses other words with it, indicating that it refers to criminal rather than civil, it is not to be taken to refer to criminal; and the jury, without such other words so used with it, would not be authorized to find that it did refer to criminal proceedings; and in this case there is no evidence of other words used indicating any reference to criminal proceedings. 6. If Goodwin honestly believed that the insurance companies had been defrauded by Geldowski, by means of the fire, and that they had a good and valid claim to recover back the insurance money; and if he was, or honestly believed himself to be, authorized to settle or collect the claim, and said whatever was said by him with the purpose and intent only of so collecting it for the companies, or the -¿Etna Insurance Com-j:\any, then, although the words used might otherwise constitute a criminal threat, the using of them with such purpose and intent only would not be an offence within the meaning of the statute. 7. The statute is not meant to cover cases where the intent is to obtain only that which, in justice and equity, the party making the threats is entitled, or honestly believes himself entitled, to receive. 8." If the jury should find that threats were made, but made only for the purpose of collecting a claim which Goodwin honestly believed to be due, and himself authorized to collect, such threats cannot be deemed to be threats made maliciously, nor with the intent to extort, and the making of them would not be an offence within the statute. 9. If Goodwin honestly believed that he bad a right to do and say what he did and said for the purpose of collecting the claim, and did not intend to threaten to accuse of any crime, nor to commit any cffence, there is no evidence of malice, nor of the intent to extort, and the defendants cannot be convicted. 10. The burden is on the government to satisfy the jury beyond a reasonable doubt that Goodwin did not have, or did not believe that he had, authority to settle with Geldowski, and that he did not believe the companies had a good claim against Geldowski to recover back their money; and that he said what he said to Geldowski, not for the purpose of collecting the claim for the companies, but for the purpose and intent of obtaining and extorting from Geldowski money which he, Goodwin, knew he had no right to receive, and which he knew Geldowski was under no obligation to pay ; and that he did this with malice towards Geldowski. 11. By the word ‘maliciously,’ used in the statute, is signified a feeling of ill-will, spite, revenge and malice towards the person threatened.”</p> <p>As to the first ruling asked for, the judge ruled that it was incumbent upon the government to prove that the building was insured, but declined to rule as requested in the last clause.</p> <p>The second ruling asked for, the judge declined to give, but submitted the question to the jury, whether there was evidence showing that Fogg was an accessory, with instructions as to what constituted that offence, not excepted to.</p> <p>The third request, as to a variance, was refused.</p> <p>Upon the fourth request, the judge instructed the jury that the language, “ I will have you prosecuted,” or “ I will prosecute you,” was language which might be applicable to a civil process as well as to a criminal process, and with equal propriety; but submitted it to the jury, as question of fact to be determined by them upon all the evidence in the case, whether the threat of prosecution, if one was made by Goodwin, was a threat to accuse of crime, or whether it was a threat only that he would prosecute Geldowski civilly.</p> <p>Upon the fifth request, the judge said to the jury: J have no hesitation in giving you that instruction so far, that, if all the language used by Goodwin was the word 6 prosecuted,’ — ‘ I will have you prosecuted,’—and there was nothing else said by Goodwin to qualify the language, then, inasmuch as that may be used with reference to civil as well as criminal proceedings, and is as consistent with one theory as with the other, it is the duty of the jury to adopt the first, if that is all there is to the evidence upon this subject, and there are no qualifying wolds ; but whether in this case there are such qualifying words, I will leave for you to determine. I am asked to say that in this case there is no evidence of other words used indicating any reference to a criminal proceeding. That I decline to do, but leave it for you, as it is your province to decide that question, and not mine.”</p> <p>As to the sixth, seventh and eighth requests, the judge instructed the jury that even if an insurance company had an equitable and legal claim against Geldowski for the recovery of this money back, and Goodwin believed that he was authorized as agent of the company to collect it, yet, inasmuch as Geldowski denied the claim, that it would be an offence, and would bring Goodwin within the purview of the statute under which this indictment was found, and what had been explained to them in the first part of the clause, if he maliciously threatened to accuse Geldowski of this crime of burning his building, with the intent to compel him to pay that money by means of that threat so made, he had no right to undertake to collect the money in that way.</p> <p>On the ninth request, the judge instructed the jury that it was a question of fact whether Goodwin did or did not maliciously make this threat; if he made it at all, did he make it, that is for an illegal or unlawful purpose, to obtain in an unlawful way the money; and that he could not excuse himself in this case, any more than any other party charged with a crime, on the ground that he believed he had a right to act as he did; that a man was supposed to know the law, and even if Goodwin honestly believed he had a right to do and say what he did, if, nevertheless, he maliciously threatened to accuse Geldowski, as Bet forth in the indictment, for the purpose of extorting this money from him, the honesty of his belief did not discharge the act of its criminal character.</p> <p>Upon the tenth request, the judge said to the jury: “ I instruct you that the burden of proof is upon the government in every part of this case to make out all that is necessary to convict the defendant of this offence; whatever is necessary the government must prove, and I have instructed you in regard to the matter of Goodwin’s belief, as to whether this claim was honest.” The judge had previously fully instructed the jury as to what it was necessary for the government to prove to maintain this indictment.</p> <p>Upon the eleventh request, the judge instructed the jury that malice in law included not only anger, hatred, revenge; that it was not confined to ill-will towards any one or more persons, but was to characterize all actions flowing from any wicked or corrupt motive; that such was malice in law, that it did not, as already said, necessarily mean hatred, ill-will or revenge; but any illegal act performed, as charged in this case, with the intent to extort money, is an act done with malice, or maliciously done.</p> <p>Other proper instructions were given as to other parts of the case, not excepted to. The jury found both defendants guilty on the first and second counts, and not guilty on the third count, and at the time of giving the verdict the judge proposed certain questions, which it had been announced would be asked, as follows :</p> <p>“ Did Goodwin honestly believe that the insurance companies had been defrauded by Geldowski by means of the fire ? ”</p> <p>“ If the jury find that Goodwin made a threat to Geldowski to accuse him of the crime of burning his own building, to defraud the insurers, did Goodwin, at the time he made the threat, honestly believe himself to be authorized to settle or collect the claim in behalf of the insurance companies, or in behalf of any one of the companies ? ”</p> <p>The jury answered both questions in the negative. The defendants alleged exceptions.</p>

Complaint on the St. of 1876, c. 162, to the Municipal Court of the city of Boston, alleging reason to believe and belief that certain intoxicating liquors are kept and deposited in a certain building in Boston, “ situate in Federal Street, and numbered two hundred and ninety-one and two hundred and ninety-three in said street, in said Boston, in the basement and first story of said building,” occupied by the claimant as a place of common resort, with intent to sell the same…

<p>Under the Gen. Sts. c. 84, §§ 1, 9, a person is punishable for keeping his shop aper on the Lord’s day, although he conscientiously believes that the seventh day of the week ought to be observed as the Sabbath, and actually refrains from secular business on that day.</p> <p>The provision of the Gen. Sts. c. 84, § 1, prohibiting the keeping open a shop on the Lord’s day, is constitutional.</p>

Indictment for conspiracy as follows : “The jurors for the Commonwealth of Massachusetts, on their oath present, that Edgar R.… Held: and had held, Maud out to the public, and to Mr. and Mrs. Shorey and others, as his wife, and her sole purpose was to have the formal legal evidence of the fact of their marriage appear, then she was guilty of no criminal offence, nor of doing anything which was wrongfully injurious to said Richardson ; and especially if they had, in…

Complaint dated August 16, 1876, charging the defendant with a violation of § 13 of the rules and regulations relating to hacks and wagons, passed by the board of mayor and aldermen, 3i the city of Boston, September 21, 1875, providing that “ no owner, driver, or other person having charge of any hackney carriage, shall stand with such carriage to solicit passengers in any street, square, lane, alley, or public place within the city, other than the place assigned to such…

<p>On a writ of scire facias against a trustee, brought more than sixty days after the date of the execution in the original action, it appeared that the execution had never been returned into the clerk’s office. The officer to whom the execution was delivered was permitted to testify that he made a demand on the trustee within thirty days; that the trustee replied, that he had no funds; that he never drew any return on the execution, but returned it, as he thought, within sixty days of its date, to the plaintiffs attorney; that he had not since seen it, but had made diligent search for it. The judge, who tried the case without a jury, ruled that the plaintiff could prove the necessary facts in this way*, and that the plaintiff could maintain the action. Held, on exceptions, that it must be assumed'that the judge found as a fact that the execution was lost; and that, if so, the ruling was correct.</p>

<p>Contract, by an indorsee against Lewis Rice and William. J. Harolson as makers, with a count against Rice as indorser, of the following instrument, signed “Lewis Rice, Wm. J. Harolson, Receivers,” and indorsed “ Lewis Rice, Receiver.”</p> <p>“ $ll,520/e%. Boston, July 1, 1873. Four months after date we promise to pay to Lewis Rice, Receiver, or order, eleven thousand five hundred twenty and -//j dollars, for value received, with interest at the rate of two per cent, per month after due, having deposited with the holders as collateral security, with authority to sell the same at the broker’s board, or at public or private sale, at his option, on the non-performance of this promise, and without notice, twenty-three (23) receivers’’ certificates of indebtedness $1000 each of the Alabama and Chattanooga Railroad.”</p> <p>The writ was only served on Rice, whose answer contained: 1st, a general denial; 2d, that the instrument declared on was not a negotiable promissory note; 3d, that it was made, executed and delivered in the city of New York, and was void under the usury laws of that state.</p> <p>At the trial in the Superior Court, before Wilkinson, J., the defendant Rice contended that the instrument declared on was not a negotiable promissory note, and that he was not personally bound thereon, as his signature was that of a receiver only, but the judge ruled otherwise.</p> <p>It appeared that the defendants were receivers of the Alabama and Chattanooga Railroad Company, appointed by the United States Circuit Court in Alabama, and were engaged in operating and equipping it, and in borrowing money, to be used upon the railroad, upon their notes, with certificates of indebtedness, issued under the order of said court, pledged as collateral security.</p> <p>The defendant Rice was allowed, against the plaintiff’s objection, to show that the note in suit was actually a New York contract, made and given there, and to impeach it for alleged usury under the statutes of New York, which were put in evidence. He also introduced evidence tending to show that he resided in Boston; that the note in suit was executed and delivered in New York in renewal of three notes then due and nayable in New York; and that it was dated “ Boston ” for the purpose of avoiding the usury law of New York.</p> <p>The plaintiff introduced evidence tending to show that, although the note in suit was made in New York, it was agreed that it should be dated at Boston, and that it should be a Massachusetts contract subject to Massachusetts laws; and that the plaintiff took the note as security for a debt, before maturity and without knowledge of the circumstances under which it was made.</p> <p>The plaintiff contended that the note in suit was on its face a Massachusetts contract, being dated, and, as he contended, payable in Boston, where the defendant resided and did business ; that the defendant must prove the transaction in question to have been a New York contract, made under such facts and circumstances as would bring it under the operation of the statutes of that state in evidence, for its construction and validity ; that parties, who reside as citizens and do business in other states, may, while in the State of New York temporarily, negotiate and contract with each other for a loan of money, by one of them to the other, and not necessarily be subject to the laws of New York in regard to usury; that they may contract and fix a rate of interest with reference to the laws of the state where the parties reside and do business, and under which the agreed rate is legal, provided it is done in good faith, with no intention and without any shift or device to evade or violate the laws of New York; that the note, if void for usury under the laws of New York, was good in the hands of an innocent third party in Massachusetts, who took it here before maturity and for value; that the St. of 1863, o. 242, would apply; that the defendant Rice could not, as indorser, impeach the note in the hands of such holder; that if he made the note in the present form in known violation of the laws of New York, and for the . raudulent purpose of thus concealing the fact and giving it currency in the market, and the plaintiff was misled and deceived thereby to his hurt and for that reason, and took the note for value before maturity and without notice express or implied, the defendant was estopped to make this defence of usury as against him, at least to the extent of the debt as collateral security for which he took and still holds the note.</p> <p>The judge ruled, as matter of law, and under the statutes of New York, which were introduced in evidence, that the note was absolutely void on the ground of usury, both as against the original party and any innocent holder, for value, and before maturity, and that the plaintiff could not recover against the defendant Rice, either as maker or indorser, and directed a verdict for the defendant; and the plaintiff alleged exceptions.</p> <p>Before the exceptions were heard, the defendant was duly adjudged a bankrupt, and moved this court that further proceedings be stayed to await the determination of the court in bankruptcy. It was admitted that the plaintiff had brought his action more than four months before the proceedings in bankruptcy, and had made an attachment which was not dissolved by such proceedings.</p>

<p>The holder of two mortgages on the same parcel of land, entered to foreclose the first mortgage; but did not enter under the second mortgage. A bill in equity was brought against him to redeem the first mortgage, and in his answer he di 1 not set up the second mortgage. A decree was entered that, on payment of a certain sum, he should release and discharge the mortgaged premises described in the bill from the mortgage therein described, and should deliver up possession of the premises. Held, on a subsequent bill in equity to obtain the discharge of the second mortgage, that he was not estopped to set up the second mortgage.</p>

Contract on three promissory notes made by Wales R. Stockbridge, and indorsed by Samuel Gregg, the defendants’ testator. Writ dated January 19,1875. Trial in the Superior Court, before Brigham, C. J., who allowed a bill of exceptions in substance as follows: Samuel Gregg, of Boston, died on October 25, 1872, leaving a will and codicil.

Tort for the conversion of certain chattels. At the trial in the Superior Court, before Rockwell, J., the plaintiff put in evidence a mortgage of the chattels given by-Amelia Merrill to one Hall, and an assignment by Hall to her before the alleged conversion.

Bill m equity by the executors and trustees of the will of Alexander Baxter, to obtain the instructions of the court. The will contained, besides other provisions not material to be stated, the following: “5. I give to my brother, Allen Baxter, the use of the dwelling-house he now occupies, and the use of three acres of land near the house occupied by Benajah Whelden, during his natural life.

<p>Contract on a policy of insurance by which the defendant insured Justin R. Smith, the plaintiff’s intestate, for the term of five years from August 13, 1873, “against loss or damage by fire, under the conditions and limitations hereinafter expressed, in the sum of $1300, as follows : $1000 on his two story frame dwelling-house and wood-shed connected; $100 on his household furniture therein; $100 on his barn and shed connected ; $100 on his hay therein; situate in West Whately, Massachusetts, tad occupied by himself for a dwelling and private barn. $2200 insurance on said house, $300 on the barn, $250 on said furni turc, and $100 on said hay, elsewhere.”</p> <p>The policy contained the following provisions: “ This company shall in no event be liable till the actual payment of the premium, nor beyond the sum insured, nor beyond three fourths the actual value of the property insured at the time of the loss or damage.” “ And the insured hereby covenants and engages that the representation given in the application for this insurance contains a just, full and true exposition of all the facts and circumstances in regard to the condition, situation, value and risk of the property insured, so far as the same are known to him; and if any material fact or circumstance shall not have been fully represented, or if the insured shall make any attempt to defraud the said company, then, and in any such case, this policy shall be null and void, unless confirmed by a new agreement thereon, written after a full knowledge of such facts and circumstances.”</p> <p>“ In case of loss, the insured shall forthwith render to said company a particular statement in writing, signed and sworn to by him, of the value of the property insured, the amount of the loss or damage thereon, his interest therein, all other insurance thereon; the purpose for which, and by whom, the building insured, or containing the property insured, was occupied; the cause or origin of the fire, so far as known; and, if required, submit his books of account and other proper vouchers to the examination of the company.” “ In case of other insurance upon the property hereby insured, whether prior or subsequent to the date of this policy, whether the same shall be binding as a contract of insurance on the parties thereto or not, the insured shall not, in case of loss, receive any greater portion of the loss or damage sustained than the amount hereby insured shall bear to the whole amount insured on said property as herein stated.”</p> <p>After the former decision, reported 118 Mass. 465, the case was tried in the Superior Court, before Wilkinson, J., who allowed a bill of exceptions in substance as follows :</p> <p>The plaintiff put the policy in evidence, and the sworn statement of the assured, made after the loss, in which he made oath that the cash value of the “ dwelling-house and shed,” above the foundation, at the time of the loss, was $4300, and evidence as to the value of the property insured.</p> <p>The defendant put in evidence the application upon which said policy was issued, in which the blank space left for the valuation was not filled, and offered evidence tending to show that, before the policy was issued, the assured represented and stated orally to the secretary of the defendant, who took the application, that the true value of the dwelling-house and shed was from $4300 to $4500; and that insurance was granted by the defendant on the house and shed for $1000 in addition to previous insurance for $2200 already obtained by the assured from the Whately Mutual Fire Insurance Company, by a policy dated June 9,1873. And the defendant further offered to show that its policy was made on the faith of such representation and statement, and that the assured, at the time of making this representation and statement, knew it to be false. The judge ruled that such representation and statement, not being in the application, co.uld not be shown by oral evidence.</p> <p>Among other evidence offered by the defendant was evidence tending to show that in 1859 the assured applied to the Whately Mutual Fire Insurance Company for insurance, and, in accordance with its by-laws, a committee of directors, at the applicant’s request, appraised the house and shed for the purpose of determining what insurance should be granted thereon, and that this committee appraised it at $1350, and granted insurance for $1100; that after the expiration of this policy, in 1865, the assured made another application, and another appraisal was made by the then committee at $1500 as the true value, and a policy was issued thereon; and that again on June 9, 1873, the last-mentioned policy having expired, the assured made another application to the same company, and the committee of directors then appraised the house and bam at $3000 as the true value, and a policy for $2200 was thereupon issued, which remained in force at the time of loss. The judge ruled that these certificates of appraisal were not admissible as evidence of the value of the property insured, but allowed the defendant to call the appraisers to testify to the value of the property at the times of the appraisals, and the defendant excepted.</p> <p>The plaintiff, being called by the defendant as a witness, was asked, on cross-examination, as to the nature and quality of the foundation of the house and shed. To this inquiry the defendant objected, but the judge permitted it, and he said “ it was one of the best foundations he ever put in.” To this evidence the defendant excepted.</p> <p>The defendant offered evidence tending to show that the assured, two or three months prior to the date of the policy sued on, offered for sale his entire farm of fifteen or sixteen acres, to one Scully, including the dwelling-house and shed, a barn valued at $400, a shop with water privilege, wheel and machinery, all for $2800; and this evidence was admitted without objection. This evidence was contradicted by a witness called by the plaintiff. The defendant afterwards called one Sanderson, who in November, 1873, purchased all that remained of the above described property, after the house and shed were burned, and proposed to show by this witness that he paid to said Smith $1200 as the agreed price therefor. To this evidence the plaintiff objected, and it was excluded, and the defendant excepted.</p> <p>In accordance with the former decision in this case, 118 Mass. 465, the plaintiff contended and the judge ruled that the proportion which the defendant was to contribute towards the loss of the barn and shed was ten thirty seconds of three fourths of the actual loss, the Whately Mutual Fire Insurance Company having insured twenty-two thirty seconds on the same risk, by the prior policy above mentioned.</p> <p>The defendant then called attention to the fact that this prior policy contained no clause relating to the rates of contribution in case further insurance should be obtained in another company, and, there being no such provision, contended that its policy was invalid. The judge ruled otherwise, and the defendant excepted. The defendant also, in this connection, offered to show that the full sum of $1750 had been paid over to the plaintiff upon an adjustment of loss with the Whately Mutual Fire Insurance Company. It appeared that the Whately Mutual Fire Insurance Company was organized under the St. of 1872, c. 375; that the charter, issued by the secretary of the Commonwealth, was dated May 13, 1873 and that the certificate required by the St. of 1871, c. 297, § 5, was not issued by the insurance com missioner until July 19,1873, although it was dated May 13, 1873; but this evidence was excluded, and the defendant excepted.</p> <p>The case was submitted to the jury under instructions not objected to, except as above; and a verdict was returned for the full amount of the insurance. The defendant alleged exceptions.</p>

Wbit op entby, dated August 10, 1875, against Mather E. Hawes and Caroline A. Bridgman, to recover a parcel of land in Belchertown. Plea, nul disseisin.

<p>Tort to recover the amount of a judgment paid by the plaintiff to Mary J. Hanchett for injuries sustained by her upon a highway which the plaintiff was bound to keep in repair • and also $150, the expenses of the suit in which that judgment was recovered. Trial in the Superior Court, without a jury before Rockwell, J., who found the following facts :</p> <p>Hanchett was injured on March 23, 1873, by falling upon loose bricks, lying on the sidewalk near the corner of King Street and Washington Street, in Westfield. Upon the lot at that corner, the Normal School boarding-house was building, and the bricks had fallen upon the sidewalk, from piles of bricks in a temporary shed which had been built by Rice & Gordon. This shed extended along Washington Street, with its end on King Street. The end of the shed was not strong enough to hold the piles of bricks, and they finally broke through, and many of them fell out upon the sidewalk and caused the injury. The negligence of the owner of the bricks, if he had placed and left them in that situation, was the cause of their falling upon the sidewalk. One Bush sold and delivered the bricks to the defendant Mayo, and upon unloading them from his wagon, placed them in these piles by the defendant’s direction, where they remained several weeks till they fell. The bricks used by Rice & Gordon, in building the Normal School boarding-house, were taken from these piles, partly before and partly after the accident, but all the bricks in the piles were not used by them.</p> <p>The defendant contended that by virtue of a contract in writing dated October 24, 1872, the material part of which was as follows, he was not the owner of the bricks at the time of the injury, but Rice & Gordon were the owners:</p> <p>“ The said Rice & Gordon hereby agree to do for the said Mayo all the brick work and plastering required by the plans and specifications for the completion of the Normal School boarding-house for the Massachusetts Board of Education, on its ground in. Westfield, Massachusetts, in a good and workmanlike manner. And the said Mayo hereby agrees to furnish all stone necessary for the work, finished and ready to set, on the ground, and to furnish and deliver on the lot all brick necessary to complete the building, for the price of eleven dollars per thousand, to be paid him by the said Rice & Gordon, and he agrees to pay the said Rice & Gordon the sum of seventeen dollars per thousand for all bricks laid, the quantity to be determined by measurement, reckoning twenty-four bricks to the cubic foot, and to measure in and pay for all stone work at the same rate, and the sum of thirty-five cents per square yard for all plastering, and at the end of each month to pay eighty per cent, of the value of all that shall have been done as above, and the balance when the work shall have been finished. It is further agreed that said Rice & Gordon shall do any stucco work, or any work not mentioned in this contract which is required, for which they shall receive the market price. The said Mayo further agrees to furnish all boards necessary to build a suitable lime house and to cover brick and the walls. The said Mayo further agrees to have everything, which he is required by this contract to furnish, ready for use as fast as it shall be required by the said Rice & Gordon, for the most convenient and expeditious performance of their contract; and he further agrees to cause all the other work and materials of said building to be done and furnished at such time and in such manner as not to hinder or delay the said Rice Sc Gordon in carrying on their work as rapidly as they may desire to do, and he hereby agrees to pay them damage for any hindrance or delay arising from his failure to perform his contract as above.”</p> <p>The judge ruled, as matter of law, that, by the true construction of the contract, the property in the bricks had not, at the time of the injury, passed from the defendant to Rice & Gordon ; and that the contract had no effect to relieve the defendant from his liability, growing out of his ownership of the bricks, and his negligently placing them in that position and suffering them to remain there until they fell and lay upon the sidewalk, causing the injury.</p> <p>The plaintiff introduced in evidence two notices, sent to and received by the defendant during the pendency of the original action, requesting him to appear and defend the same, describing the action in one of the notices as brought by Hanchett in the Superior Court for this county for an injury received by her “ from a defect in the highway in said Westfield, while travel-ling on the same, and which highway is described in her writ; ” and, in the other notice, describing the action as brought for damages sustained by her “ on the highway in front or near the site of the Normal School boarding-house in said Westfield.” The defendant objected to their introduction in evidence, as not specifying the place of the injury with sufficient certainty; but the judge admitted them.</p> <p>The judge ordered judgment to be entered for the plaintiff for the amount of the former judgment and interest, and also $150, which was agreed to have been expenses paid out by the plain* tiff for counsel fees in the original action. The defendant alleged exceptions.</p>

<p>Seven petitions to the county commissioners for a jury to assess damages occasioned by a change of grade in Lyman Street, In Springfield.</p> <p>The petition of Mayo, to which the others were substantially similar, alleged that “ the city council of said Springfield, by an order passed on the twenty-fourth day of August, in the year eighteen hundred and seventy-four, caused the grade of Lyman Street, in said city of Springfield, to be changed,” and “ that bj the alteration of said Lyman Street, his said real estate had been greatly damaged and the value thereof depreciated; that the city council lad awarded him as damages therefor only $375, which said sum is entirely insufficient.”</p> <p>The petitions were tried together before a sheriffs jury. The petitioners put in evidence a certified copy of the petition and proceedings of the city council of Springfield, by which it appeared that certain persons made a petition, dated August 1, 1874, to the city council, “that such change or changes may be made in the grade of Lyman Street, between Dwight Street and Spring Street, as common convenience and necessity may require ; also that suitable sidewalks may be ordered to be built on both sides of said portion of said Lyman Street; ” that said petition was referred to the board of public works, which, after due notice to the abutters and others interested in said petition, and hearing had thereon, reported that “ they are of opinion that common convenience and necessity require that the grade of said Lyman Street, between Dwight Street and Spring Street, should be changed,” according to a certain grade, specified in their report; also an estimate of the probable expense of fitting the same for travel, including gutters and macadamizing; and also an estimate of damages sustained, by persons and corporations, by reason of such proposed change, according to the pro visions of the ordinances of said city, and after due notice of a hearing for such purpose; and that said report was accepted and adopted by the common council, in concurrence with the board of aldermen of said city, on August 24, 1874.</p> <p>It was in evidence that the premises of Phelps, of Mayo and another, and two separate lots owned by Mayo alone, were situated on the northerly side of Lyman Street; the premises of Mattoon and another, on the northerly side thereof, on the corner of Chestnut Street; the premises of Stephen A. Bemis and another, executors, on the southerly side of Lyman Street, and on the corner of Chestnut ■ Street; one. lot owned by Mayo, and the premises of Hines and of Morrissey on the southerly side of Lyman Street.</p> <p>There was evi fence tending to show that the alterations made in Lyman Street were a lowering of the street at its intersection with Chestnut Street, at a point between Dwight Street and Spring Street, of about eight feet, and a raising-at the easterly end, at Spring Street, of about five feet; the new grade being uniform, and crossing the old grade about midway between Chestnut Street and Spring Street. It was admitted by both parties that Chestnut Street, prior to the passage of the order for an alteration in the grade of Lyman Street, had been lowered by the city at the point of its intersection with Lyman Street to the same level with the new grade of Lyman Street.</p> <p>The petitioners called William Mattoon as a witness, of whom they asked this question, which was permitted to be put and answered, under the objection of the respondent: “ Irrespective of receiving any damages for the cutting down of Chestnut Street, what was the damage to the lots of Mattoon and another and of Bemis, by the cutting down of Lyman Street ? ” The witness replied, “ Sixty dollars per front foot on Lyman Street to the lot of Mattoon and another, and fifty to sixty dollars per front foot on Lyman Street to the Bemis lot.”</p> <p>The petitioners also called A. L. Chapin as a witness, and asked him this question: “ How much would it cost to erect a protecting wall on the Bemis property on Lyman Street ? ” The respondent objected, but the presiding officer permitted the witness to answer, and he replied, “ Five thousand dollars.”</p> <p>The respondent called William H. Parsons as a witness, who testified in chief that, “ assuming Chestnut Street to have been cut down, the cutting down of Lyman Street benefited the petitioners.” The petitioners, on cross-examination, asked this witness, under objection, “ Supposing Chestnut Street had not been cut down, what would have been the effect on the Bemis estate of cutting down Lyman Street to its present grade ? ” The witness replied, “ A great injury to it.”</p> <p>The respondent also put in evidence the location of the “Springfield, Athol and Northeastern Railroad,” which had been duly filed on March 20,1874, and called George A. Ellis es a witness, who testified said location took a strip forty feet in width along the northerly end of the lots of Mattoon and another, Phelps, Mayo, and Mayo and another, lying on the northerly side of Lyman Street, as described in the warrant to the sheriff, and contended that those petitioners were not entitled to any damages for any injury caused to that portion of said lots covered by this location. The petitioners put this question, on cross-examination, to Ellis, “ Has the Springfield, Athol and Northeastern Railroad Company ever occupied under this location ? ” The witness replied, under objection, “No.”</p> <p>The respondent’s counsel offered in evidence the assessment of damages in favor of Mattoon and another and Bemis against the city of Springfield for the injury caused to their respective estates on the corner of Lyman Street and Chestnut Street by the lowering of Chestnut Street, and that the judgment had been paid. The petitioners objected to its competency, and the presiding officer excluded the evidence. Previously to the offer of this evidence by the respondent, several witnesses for the petitioners, who testified in chief that the damage to the estates of Bemis and another, and of Mattoon and another, by the cutting down of Lyman Street was fifty per cent, of the value of the property, on cross-examination testified that the estimate included the injury by the cutting down of both Chestnut Street and Lyman Street, and that it was impossible for them to separate in their minds the damage done by cutting down one street from that done by cutting down the other. When the respondent offered this evidence, no suggestion was made that it was in reply to the foregoing testimony, last stated above, of the witnesses for the petitioners. The jury were repeatedly told by the presiding officer, during the trial, that they were to consider no evidence except such as applied to the cutting down of Lyman Street alone.</p> <p>The respondent requested the following instructions to the jury: “ 1. The petitions are not under the Gen. Sts. o. 44, § 19, and cannot be maintained as petitions under that section, because they do not contain the allegations necessary under that section. 2. Neither of the petitions can be maintained under the Gen. Sts. c. 48, or amendments thereto or substitutes therefor ; and no damages can be recovered on either of said petitions under said chapter, its amendments or substitutes. 3. If Lyman Street, after the grading to the grade of Chestnut Street, was.by reason of such grading a more desirable avenue for the lots to front upon than it was before it was so graded, the benefit resulting from this is to be deducted from any damages sustained by the change.” The presiding officer declined to give the first and second, but gave the third request.</p> <p>At the request of the petitioners, the presiding officer gave the following instructions to the jury, which were excepted to by the respondent: “ 1. The petitions can be maintained under one or the other of chapters 43 and 44 of the Gen. Sts., and the amendments thereto or substitutes therefor, and for the purposes of this trial it is immaterial to the jury which, as the same rule of damages applies to each.</p> <p>“ 2. If the jury find that the petitioners, or either of them, suffered damage as alleged in said petitions, they are to assess such damages; and if they find any benefits were received by the petitioners, they cannot deduct from such damages the benefits which come from sharing in the common advantages and conveniences of increased public facilities, and the general advance in real estate by reason thereof, but are to deduct any direct and special benefits to the lots of the petitioners, if any arose, such as more convenient access to the particular lots in question.</p> <p>“ 3. If Chestnut Street was lowered to such an extent, before the loAvering of Lyman Street, that it thereby became a necessity to lower Lyman Street, in order that Lyman Street might be used, and the parties living on Lyman Street have an outlet, and the estates of the petitioners were damaged by reason of the lowering of Lyman Street to meet this necessity, the petitioners are entitled to recover damages, although it was better for them' to have Lyman Street lowered than left without connection with Chestnut Street, if Chestnut Street and Lyman Street were public roads and enjoyed by the whole public, and if the only way in which the lowering of Lyman Street benefited the petitioners was in sharing in the common advantage of increased public facilities and the general advance in value of real estate in tho vicinity by reason thereof.</p> <p>“4. The depreciation in market value is one element in determining the question of damages, but not the only criterion of damage. The real question is, what is the actual amount of damage caused to the petitioners by the change of grade ?</p> <p>“ 5. The inconvenience occasioned to the owner, the privation or diminution of his means of enjoying his property by reason of the changes made by the city, are elements of damage to be considered.</p> <p>“ 6. The only effect of the location of the Springfield, Athol and Northeastern Railroad upon the lands of the petitioners was to give the railroad corporation a right to take and use the lands for railroad purposes within the limits of its location, by paying damages therefor, and it cannot use or occupy the lands for any other purpose. Until the lands are occupied by the railroad corporation for that purpose, the petitioners may use them as they see fit; and, if the corporation should commence such a use and afterwards abandon it, the lands would revert again to the petitioners.”</p> <p>The presiding officer further instructed the jury that they should only consider the damages, if any, done to the respective estates of the petitioners by the alterations in the grade of Lyman Street, and should not take into account any damages caused by the lowering of Chestnut Street, and that they should consider all the damages caused thereby to the estates of Mattoon and another and Bends to have been assessed and fully paid.</p> <p>The jury returned a verdict for the petitioners, assessing a separate amount to each petitioner. In the Superior Court the verdict was accepted; and the respondent appealed.</p>

Petition under the St. of 1871, c. 382, § 7, to the Superior Court for a jury to revise an assessment of a betterment, made by the mayor and board of aldermen of the city of Worcester, upon the estate of the petitioner fronting on Pratt Street. Trial before Rockwell, J., who allowed a bill of exceptions in substance as follows: Under an order, adopted December 16, 1872, Pratt Street was altered, widened and graded.

<p>A. executed a mortgage of real estate with a power of sale to B., and subsequently conveyed the equity of redemption to C. The mortgage provided that after the expiration of sixty days from the breach of any of the conditions named therein, the mortgagee or those claiming under him might sell the premises at public auction" without further notice or demand, except giving notice ” by advertisement for three successive weeks in a newspaper. Upon breach of condition for nonpayment of interest, all the notices by advertisement were duly given, but did not state for what breach of condition the s&le was made, and the sale took place as advertised." Before the sale B. caused to be sent to A. by mail a copy of the paper containing the advertisement, and A. knew that the interest on the mortgage was in arrear, was informed that it must be paid and was asked where C. was. No formal demand was made upon A. It appeared that A. knew from some source that there was to be a sale of the property or some interest therein, and “ without making proper inquiry carelessly but honestly assumed and believed that it was not to be a sale under the power contained in the mortgage made by him.” . A. made no effort to ascertain the facts and did not attend the sale, at which the property was sold for less than its value. After the sale A. offered to redeem the mortgage and demanded an assignment thereof, was refused, and brought a bill in equity against B. and the purchaser, to redeem. Held, that the notices were not required to state for what breach of condition the sale was made; that mere inadequacy of price was not sufficient to invalidate the sale ; and that A. could not maintain his bill.</p>

<p>A. executed a mortgage of personal property to B. to secure his note for a certain sum and made payments to him thereon, which were indorsed on the note, and other payments not indorsed, which reduced the amount due to a nominal sum. B. died and his executrix, the mortgage being overdue, pressed A. for payment but did not receive anything from him. A. knew there was a balance due on the note, and by his declarations led the executrix to believe that there was a considerable sum due thereon, and from time to time promised to pay the interest, if he could not the principal. More than three years after the appointment of the executrix, A. contended that there had been other payments made on the note in the lifetime of B. which had not been indorsed thereon, but knew before the subsequent notice of foreclosure that the executrix contended that the indorsements on the note represented aE that had been paid. Subsequently, the executrix began an action against A. on the note, and made a general attachment of his real estate, but it was abandoned, no service was made and the writ was not entered. The executrix then published legal notice of her intention to foreclose the mortgage, and the notice and affidavit of service were duly recorded in the town clerk’s office, but were not indexed by him, and A. did not examine the registry or make any inquiries of the clerk before the expiration of the sixty days. At the expiration of that time the plaintiff took possession of the property, A. having made no tender of the amount due, or of what he considered due, on the mortgage at any time before the expiration of the sixty days. A. knew of the intention of the executrix to foreclose, and after the first publication of the notice, published a notice in the same paper, in which he offered to pay what was due, and also had an interview with the attorney of the executrix, but there was no agreement to stay the proceedings, and it did not appear that the executrix waived auy of her rights or that A. was misled. After the foreclosure, A. tendered the amount which he considered due on the note and brought a hill in equity to redeem. The value of the property taken was much greater then the amount due. Held, that the executrix might proceed concurrently by an action on the note, and to foreclose the mortgage; that the failure of the town clerk to index the notice and affidavit did not affect the validity of the foreclosure; and that no ground of relief in equicx was disclosed.</p>

Contract on a poor debtor’s recognizance. 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 : Charles H. Bartlett as principal, and the defendant as surety, entered into the recognizance, in the performance of the conditions of which there was a default.

<p>Writ or entry, dated May .22,1875, the demandant counting on a seisin “ as of fee and in mortgage.” Plea, mil disseisin, with a specification of defence that the tenant was in possession of a described portion of the demanded premises under claim of right, and a disclaimer of title as to the residue.</p> <p>Trial in the Superior Court, without a jury, before Bacon, J., who allowed a bill of exceptions in substance as follows :</p> <p>The demandant offered in evidence a mortgage of the demanded premises from one James Galway to Samuel Symonds, dated June 12, 1860, and recorded June 13,1860, and an assignment of the mortgage from Symonds to him, dated April 4, 1874, and recorded October 2, 1876. The demandant also offered in evidence another mortgage from James Galway to him, covering the same premises, dated December 23,1868, and recorded January 9,1869. The tenant objected that the demand-ant, having introduced one mortgage, could not put in another in the same action; but the judge admitted it.</p> <p>On cross-examination, the demandant testified that he had heard of a dispute between James Galway and the tenant while she was in possession, claiming some part of the premises, and that James Galway either ejected the tenant or attempted to, but when this was he could not state, and that he never heard of the tenant’s claim prior to taking the two mortgages.</p> <p>The tenant then offered in evidence a warranty deed, dated June 7, 1870, and recorded September 15, 1870, from James Galway, covering that portion of the premises claimed by her, which deed, after the description therein, contained the following : “ The same being the equitable share and proportion assigned in severalty, which, upon the terms and conditions of the original purchase, the said grantee was entitled to have in and of the estate conveyed to me by deed from Fitch Poole, dated March 31, A. D. 1857, and recorded in the Essex County (South) Registry of Deeds, book 556, leaf 237, as ascertained and determined by decree of the Supreme Judicial Court sitting in equity, in and for said county, at Salem, passed November 30, A. D. 1869, in a suit in equity therein pending between the said Joanna Galway, plaintiff, and me the said James Galway, defendant.”</p> <p>The judge allowed the tenant to put in evidence, against the demandant’s objection, a bill in equity brought by the tenant against James -.Galway, the decree of the court therein in her favor, and the report of the master, which was accepted by the court. The bill was filed on March 30, 1869, and was brought to compel James Galway to convey to the tenant that portion of the land described in the demandant’s writ, and claimed by the tenant, which James Galway had fraudulently taken a deed of in his own name.</p> <p>The tenant then testified that on March 31, 1857, she furnished James Galway with money to purchase the premises described in the demandant’s writ, on the condition that her name should be in the deed; that in June, 1868, James Galway purchased a house and moved it upon the premises ; that in July, 1868, she and James Galway arranged as to a division, he taking one part of the house, and she taking that part claimed in her plea and described in her deed, and that she had always occupied her part to the present time, claiming title;° and that, in the spring of 1868, James Galway attempted to eject her from the premises, claiming she had no title.</p> <p>The tenant thereupon asked the judge to rule upon the evidence, as matter of law, that the tenant, being the owner of one fifth of the premises at the date of the original purchase, as determined by the court of equity, and having been in possession of the premises from the date of the original purchase and prior to the date of either mortgage, claiming title to that portion described in her answer and decreed to her in equity, the demand-ant was not entitled to recover against her upon the one fifth claimed in her plea.</p> <p>The judge declined so to rule, and ruled that the demandant was entitled to recover against the tenant, the mortgagees not having received notice of the tenant’s claim of title at the time the mortgáges were given.</p> <p>The judge found for the demandant; and the tenant alleged exceptions.</p>

<p>Bill in equity, filed December 30,1873, by Gorham D. Gil-man, John A. Gilman and Samuel R. Gilman, copartners, doing business in Boston under the style of Gilman Brothers, against Edwin Hunnewell and John H. Dunbar, copartners, doing business in Boston under the style of Hunnewell & Co., to restrain the use or infringement of the plaintiffs’ trade-marks.</p> <p>The bill alleged that, long before the grievances set forth* John L. Hunnewell, of Boston, exclusively compounded, man* ufactured and sold, under certain trade-marks and undei certain labels, both his own, large quantities of a certain liquid medicine, called the Universal Cough Remedy, and of a certain medical pill, called Hunnewell’s Eclectic Pills, and of a certain medical pill, called Alterative Laxative Pills, Dr. Gilman Daveis’ Formula, each of which articles had acquired an extended reputation, and was sold in large quantities to druggists, grocers, physicians and dealers, and used in large quantities by physicians and others as valuable standard medicines, manufactured and sold by the said John L. Hunnewell; that the plaintiffs, on or about April 12, 1873, for a valuable consideration, purchased of John L. Hunnewell all of his property, right, title and interest in and to each of said medicines, together with the exclusive right to compound each of these, and to manufacture and sell %e same, and also the exclusive right to use his trade-marks and peculiar labels and name connected with each of said articles, and which had, for more than twelve years, been affixed to the bottles, boxes, packages and wrappers containing each of said medicines made and sold by the said Hunnewell, and by the plaintiffs since they acquired title therein ; and that the plaintiffs, since April 12, 1873, and until the grievances set forth were committed by the defendants, exclusively compounded, manufactured and sold, in large quantities, each of said medicines, with the trade-marks and peculiar labels and name attached to each box, bottle, package or wrapper containing said articles.</p> <p>The bill set forth the labels used by the plaintiffs, which are copied post, 142, 144, and marked A, B, F, G and IC, and those used by the defendants, which are copied post, 143, 145, and marked C, D, E, H, J and L. All the labels were printed upon white paper, except C, H and J, which were upon paper of a yellow color.</p> <p>The bill alleged that A was printed on paper and wrapped about glass bottles containing the plaintiffs’ cough remedy, and B was printed upon paper and pasted on each such bottle; and that C and E were printed upon papers pasted upon each of the defendants’ bottles, containing a similar medicine, and D was printed upon a paper wrapped about each of their bottles. The plaintiffs claimed the exclusive right to use as a trade-mark, so applied, the labels A and B, and the words “ The Universal Cough Remedy ” and “ A sure remedy for chronic or common cough, sore throat, and other minor throat complaints so often by neglect the forerunner of consumption.”</p> <p>The bill alleged that F was printed on paper and wrapped or pasted about glass bottles containing the plaintiff’s “ Eclectic Pills,” and G was printed upon a paper wrapped about each of said bottles; and that H was printed on paper and pasted upon square boxes containing a similar medicine made and sold by the defendants, and J was printed on paper and wrapped about each of such boxes. The plaintiffs claimed an exclusive right to use as a trade-mark, so applied, the words “ Hunnewell’s Eclectic Pills,” and the labels F and G.</p> <p>The bill alleged that K was printed on paper and wrapped or pasted about glass bottles containing the plaintiffs’ “ Alterative Laxative Pills; ” and that L was printed upon a paper wrapped about each of” the defendants’ bottles containing a similar medicine. The plaintiffs claimed an exclusive right to use as a trademark, so applied, the words “Alterative Laxative Pills,” and the label K.</p> <p>The bill further alleged that the defendants, with the fraudulent intention of injuring the plaintiffs, manufactured and sold each kind of medicine in imitation of the similar medicine compounded, manufactured and sold by the plaintiffs, and pretending that they were the same; and used the names, forms, words, expressions and labels above stated, for the purpose of falsely representing the defendants’ medicines to be those of the plaintiffs’, the defendants knowing that the plaintiffs’ medicines were well known in the market under the names aforesaid, as appeared by circulars usually sent by the plaintiffs with their medicines, (copies of which were annexed to the bill,) and that, by reason of the similarity in names, forms, words, expressions and labels, the public and dealers in medicines and physicians had been deceived.</p> <p>The bill also alleged that the defendant Edwin Hunnewell was formerly in the employ of the plaintiffs; that he then learned how to put up the medicines described, and how to use the trade-marks set forth, and how to form, print and use the labels connected therewith • that the defendants occupied a store in Boston, known as No. 170 Commercial Street, which store was directly underneath the place of business of the plaintiffs, that they might fraudulently use the trade-marks of the plaintiffs, and imitate their packages, name and labels, and so sell imitations of the medicines compounded, manufactured and sold by the plaintiffs.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p>The bill prayed for an account, damages, an injunction, and general relief.</p> <p>The answer admitted that John L. Hunnewell manufactured the medicines described in the bill before the defendants manufactured them, and admitted the manufacture and sale of simi lar medicines by the defendants; but denied the other allegations of the bill; and alleged that the defendants inclosed within the wrappers upon each package of the “ Cough Remedy ” and “ Family Pills,” and also, before selling either, sent, to all persons who would be likely to buy the same, circulars which, in addition to directions for the use of the medicines, were as follows :</p> <p>“Boston, June, 1873. To Patrons and Consumers: Having had the sole manufacture and putting up of Hunnewell’s UNIVERSAL Cough Remedy and ECLECTIC Pills for John L. Hunnewell for the last fourteen years, and he having sold his interest in these preparations to Gilman Bros, without making any provision that has always been promised me by J. L. H. in case of his disposing of the preparations, consequently throwing me out of business, I now propose to manufacture and put up and offer to the public the preparations of Hunnewell’s CELEBRATED Cough Remedy and Hunnewell’s FAMILY Pills, which will be safe and reliable and I know will meet the wants of the public. E. Hunnewell.</p> <p>“ Please address orders for the above preparations to Hunnewell & Co. 170 Commercial Street, Boston.”</p> <p>Hearing upon pleadings and proofs, before Ames, J., who reported the case, in substance as follows :</p> <p>The medicines described in the bill were not patented, but had been prepared and sold by John L. Hunnewell for several years before the sale to the plaintiffs. The defendant Edwin Hunnewell, during the whole or a large part of that time, had been in the employ of John L. Hunnewell, was familiar with the composition of said medicines, and was often engaged in putting them up; and during all that time John L. Hunnewell made use of labels, names and marks, generally similar to or identical with those described in the bill, in the sale of said medicines.</p> <p>For a valuable consideration, John L. Hunnewell sold to the plaintiffs, by a bill of sale dated April 12, 1873, all his right and interest in those medicines; and the plaintiffs have accordingly continued the manufacture and sale of the same ever since, at a large and heavy expenditure of money, in doing and advertising the business, making use of the various labels, marks, wrappers and circulars described in the bill.</p> <p>The defendants have been engaged since April, 1873, in the manufacture and sale of similar medicines, equal in quality and substantially identical in their composition with those made and sold by the plaintiffs ; and the marks, labels, names and advertisements used by the defendants are such as are described and set forth in the bill. The defendants sent the circulars set up in their answer.</p> <p>The plaintiffs proved the matters of fact alleged in their bill, except the allegations of actual fraud and intent to defraud, for proof of which they relied on the circumstances alleged, and on the labels, circulars and packages. There was no proof that the defendants ever represented their goods to be of the plaintiffs’ manufacture, other than the sale of them under such circumstances, and the labels, circulars and packages. There was no proof of John L. Hunnewell’s exclusive right to compound the articles, other than the fact of priority under the circumstances, and the various conveyances and instruments described in the bill.</p> <p>Upon this evidence the judge ordered that the bill be dismissed ; and the plaintiffs appealed.</p>

<p>If, upon the sale of a vessel, no new register or enrolment, such as is required by the acts of Congress of December 31, 1792, and February 18, 1793, is taken out or applied for, she ceases to be a vessel of the United States, and a subsequent mortgage of her acquires no validity by being recorded according to the act of Congress of July 29, 1850.</p> <p>Under the U. S. St. of July 29, 1850, requiring every mortgage or conveyance of any vessel or part of a vessel to “ be recorded in the office of the collector of the customs where such vessel is registered or enrolled,” the record must be made in the district in which is the home port of the vessel.</p>

<p>Where a husband goes into another state, without acquiring a domicil there, for the purpose of obtaining, and does fraudulently obtain, a divorce for a cause which occurred in, but which was not a cause of divorce by the law of, this state, a court of that state has no jurisdiction, and its decree granting the divorce is entitled to no faith and credit in this Commonwealth as a judicial proceeding, even if the decree recites facts sufficient to give it jurisdiction; but this court, the husband still ■ retaining his legal domicil in this Commonwealth, has jurisdiction of a subsequent libel of the wife, although.since their separation she has resided in another state.</p> <p>Where a wife dismisses a libel for divorce, and agrees to condone the husband’s previous offences and to live with him again, if he will not commit further acts of adultery, and he does afterwards commit adultery, such dismissal, agreement and condonation will not bar the wife from suing for a divorce for either his earlier or later acts of adultery.</p> <p>A voting list of a town, without evidence that a person’s name was placed thereon at his request, and a tax list with a memorandum of “ paid ” against his name, are inadmissible in his favor to show that his domicil was in that town.</p>

<p>An appeal from a judgment overruling a demurrer to a declaration cannot be heard in this court until after the case has been tried.</p> <p>A declaration contained three counts, two in tort and the third in contract for money had and received, not alleged to be for one and the same cause of action. A demurrer to the declaration was sustained because of a misjoinder of a count in tort with a count in contract. An amended declaration was filed, as a substitute for the first and second counts of the original declaration, containing two counts, one in contract and one in tort, and alleging that the count in tort was for the same cause of action as set out in the three counts of the original declaration. A demurrer, filed to the amended declaration because neither count stated a legal cause of action and for misjoinder, was sustained as to the first amended count and overruled as to the others. Held, that the count for money had and received in the original declaration remained in the record as one of the counts upon which the plaintiff relied, the deposition of an aunt of a party, who has known him from infancy, is admissible to prove his minority, and the question of its sufficiency is for the jury.</p> <p>In an action to recover back money obtained of the plaintiff, a minor, it is not necessary to make any other than the general allegation of damage to the plaintiff.</p>

<p>Contract on a policy of insurance against fire. 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, the substance of which appears in the opinion.</p>

<p>Contract upon the following guaranty: “ For value received, the receipt whereof is hereby acknowledged, the undersigned does hereby guaranty to Jordan, Marsh & Co. the prompt payment by George E. Moore to Jordan, Marsh & Co., at maturity, of all sums of money and debts which he may hereafter owe Jordan, Marsh & Co. for merchandise, which they may from time to time sell to him, whether such debts be on book account, by note, draft or otherwise, and also any and all renewals of any such debt. The undersigned shall not be compelled to pay on this guaranty a sum exceeding $1000, but this guaranty shall be a continuing guaranty, and apply to and be available to said Jordan, Marsh & Co., for all sales of merchandise they may make to said George E. Moore until written notice shall have been given by the undersigned to said Jordan, Marsh & Co. and received by them, that it shall not apply to future purchases. Notice of the acceptance of this guaranty and of sales under the same, and demand upon said George E. Moore for payment, and notice to me of non-payment, is hereby waived. In witness whereof I, the undersigned, have hereunto set my hand and seal this twenty-eighth day of February, A. D, 1873. William Dobbins. (Seal.)” Annexed to the declaration was an account of goods sold to Moore.</p> <p>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 :</p> <p>The plaintiffs are partners under the firm name of Jordan, Marsh & Co., and the defendant is the duly appointed administratrix of the estate of William Dobbins.</p> <p>William Dobbins, on February 28,1873, executed and delivered to the plaintiffs the above written contract of guaranty. The plaintiffs thereafter, relying on this contract, sold to said Moore the goods mentioned in the account annexed to the declaration, at the times and for the prices given in said account, all of the goods having been sold and delivered to Moore between January 16 and May 28, 1874. All the amounts claimed were due from Moore, and payment was duly demanded of him and of the defendant before the date of the writ. Other goods had been sold by the plaintiffs to Moore between the date of the guaranty and the first date mentioned in the account, but these had been paid for.</p> <p>William Dobbins died on August 6, 1873, and the defendant was appointed administratrix of his estate on September 2,1873, The plaintiffs had no notice of his death until after the last of the goods mentioned in the account had been sold to Moore.</p> <p>If upon these facts the defendant was liable, judgment was to be entered for the plaintiffs for the amount claimed; otherwise, judgment for the defendant.</p>

Writ of entry to recover two parcels of land in Boston. Plea, nul disseisin. The case was submitted to the Superior Court, and after judgment for the tenant, to this court, on appeal, on an agreed statement of facts, the substance of which appears in the opinion.

Tort for personal injuries caused by an alleged defect in Bartlett Street in that part of Boston, formerly Charlestown. Writ dated June 24, 1875. At the trial in the Superior Court, before Gardner, J,, it appeared that the plaintiff, in the evening of November 5, 1872, was walking along the sidewalk of Bartlett Street, and when opposite the Bunker Hill Market, came in contact with the steps leading up into the market building from the sidewalk and fell, and was injured.

Contract against Penfield B. Goodsell and Andrew C. Mudge. Writ dated February 13, 1875.

Contract on an account annexed for goods sold and delivered.

<p>In an action for deceit, it appeared that the plaintiff had received, as collateral security for a balance due upon goods sold by him to the defendant, certain notes' of third persons, and also a mortgage note, in which the defendant was named as payee, as collateral security for the same, but the mortgage was not assigned or the mortgage note indorsed. The plaintiff offered evidence that the defendant represented that the land covered by the mortgage had been sold by a third person for a certain sum, which representation was false and fraudulent. Held, that the evidence was admissible; and that the fact that the mortgage note was not indorsed or the mortgage assigned was immaterial.</p> <p>In an action for deceit, it appeared that the defendant falsely represented that the makers of certain notes, taken by the plaintiff as collateral security, were good. Held, that the Gen. Sts. c. 105, § 4, providing that a representation concerning the credit of any other person must be in writing, did not apply. Held, also, that it was erroneous to instruct the jury, that if the defendant “ intended to represent and give the plaintiff to understand that the makers of the notes were in good pecuniary circumstances, and able to pay them, such a representation would be of a fact, and, if false and fraudulent, would be actionable."</p>

Contract upon a policy of insurance, by which the defendant insured the plaintiffs in the sum of $2500, “ on their two story brick and gravelled roof building, occupied by them for a carpet store, situate on leased land in rear of Ho. 166 Washington Street, Boston, Mass,” from January 10, 1871, to August 23, 1873.

<p>Tort for injuries to the plaintiff’s land by the excavation of adjoining land by the defendant.</p> <p>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 as follows:</p> <p>“ The plaintiff was owner of a parcel of land in a populous portion of that part of Boston, lately Roxbury, as described in her writ, bounded on the southwesterly side by the land of one Webb. On this land of the plaintiff, but immediately adjoining the division line, was a fence, and near to it a few currant bushes and certain modern structures. The two parcels in their natural condition made a knoll, the highest part of which was at or near the division line.</p> <p>“ Webb, the owner of the adjoining lot, under an agreement with one Gillighan, gave him permission to remove the soil of his land down to a grade of the street on its northwesterly side, on which both lots were located. Webb gave Gillighan the right to go up to, but not within two feet of the plaintiff’s fence. Webb had no other connection with the acts complained of.</p> <p>“ Gillighan for a consideration gave permission to the defendant to remove a portion of this said soil, and under that license the defendant removed all the soil that was removed nearest to and along the line of the plaintiff’s land, and the removal of which, it was alleged, caused the damage complained of. Gillighan gave the license to the defendant under the same restrictions as to 6 not within two feet of the plaintiff’s fence,’ as Webb had imposed upon him.</p> <p>“ The depth to which the grade of this adjoining land was lowered by the defendant against the plaintiff’s lot was at its greatest measure some ten feet, and at its lowest, some five feet. The soil of the plaintiff’s lot fell along the whole length of her line to the width of some two or three feet at the top, taking with it the fence and shrubbery upon it. The weight of the plaintiff’s structures near the line did not contribute to the falling away of the soil. The defendant left a bank of earth on the Webb lot against the plaintiff’s land along the whole line, but it was not in all parts two feet wide at the top. There was no falling away of the soil at the time the defendant ceased his work, which was in the fall of the year, about the 23d of October. The bank left by the defendant was rendered insufficient to hold the soil of the plaintiff in its natural condition by the effect of rains and frost. The bank began to give way under the effect of rains and frost at once, but the soil of the plaintiff was not actually disturbed till the month of March in the spring following the fall when the work of the defendant was ended.</p> <p>“ The damages occasioned to the plaintiff by loss of and injury to her soil alone, caused by the acts of the defendant, amount to ninety-five dollars. To put the plaintiff’s land into its former condition, and so maintain it by means of a retaining wall, (which I find to be the best method of accomplishing that result,) would cost the sum of five hundred and seventy-five dollars; and to replace the fence and shrubs would cost the further sum of forty-five dollars. The difference between the market value of the plaintiff’s lot of land as affected by the act of the defendant, and what its market value would be had it not been deprived of its natural supports, (without taking into account the unavoidable disadvantage to the plaintiff, which must have followed from the lawful cutting down of the adjoining lot, though her soil had not been disturbed thereby,) would be the equivalent of and fully compensated by the cost of putting her land back into the same condition it was before, or the sum of the two amounts last named, namely, six hundred and twenty dollars.”</p> <p>Upon the foregoing facts, the court was to enter such judgment as it should deem proper.</p>

<p>A judgment for the defendant, in an action brought by a tenant in possession of a house, for injuries to his person and property caused by. an explosion of gas in the house through the defendant’s negligence, is not a bar to a subsequent action by the owner of the house for an injury to his reversionary interest by the same ex-plosión ; nor is it conclusive evidence of the facts in issue between the parties.</p> <p>In an action against a gas light company for an injury to the plaintiff’s house, caused bj an explosion of gas in the house escaping from the main pipe in the street, through the defendant’s negligence, it appeared that the plaintiff’s tenant in possession, during the night, smelling gas, took a candle and went into the basement of the house; and, on arriving there, the gas ignited from the candle, and the explosion took place, causing the damage for which the plaintiff sought to recover. The presiding judge instructed the jury, without objection, that the burden of proof was on the plaintiff to show that the injury was caused by the defendant’s negligence, and that the negligence of the tenant did not contribute materially thereto; that the plaintiff must show by a fair preponderance of evidence that he was in the exercise of due care; and that if the tenant, on discovering the presence of gas, did not take reasonable precautions, or, without knowledge of such, did not make reasonable effort to notify the defendant, and if he recklessly brought the flame of the candle into contact with the gas, his want of care would prevent recovery. The plaintiff asked the judge to instruct the jury that if the defendant was negligent in allowing the gas to accumulate and in promptly remedying it, after having knowledge of the leak, “ then, although the tenant accidentally ignited the gas, the plaintiff might recover.” The judge gave this instruction, with the addition that if the tenant “merely accidentally, without recklessness or carelessness,” so ignited the gas, it was not such negligence as would prevent the plaintiff from recovering. The plaintiff also asked the judge to rule that if the defondant was negligent, the piaintiif could recover “ unless the tenant recklessly oí wil fully ignited the gas.” The judge gave this instruction, adding that if the tenant did it “ recklessly ” the plaintiff could not recover, but that if he did it “ accidentally merely ” he could recover. The plaintiff also asked the judge to rule that “ if the tenant supposed the gas to proceed from the furnace, and, acting under that impression, went into the cellar with the lighted candle to examine the furnace,” and while there the gas ignited, it was not such negligence as would prevent the plaintiff’s recovering. The judge gave this instruction, adding that if the tenant “reasonably” so supposed, the plaintiff might recover. Held, that the defendant had no ground of exception.</p>

<p>In an action against a gas light company for injuries sustained while escaping from a burning building in Boston, on the night of November 10, 1872, the fire being caused by an explosion of gas, there was evidence, on the issue of the defendant’s negligence, that the great fire of November 9, 1872, though under control, was still burning; that the mains and pipes of the defendant were broken by the fall of heavy buildings, causing leakage; that gas was escaping throughout the burnt district; that explosions were frequent; that gas accumulated in sewers and cesspools in dangerous quantities; that the defendant, notwithstanding the gas escaped as constantly as it was manufactured, continued to manufacture it through the day of November 10th; that the streets in the vicinity were filled with rubbish from the falling walls; that on the morning of November 10 the defendant was notified by the porter of the building that gas was escaping, and especially from the" next building; and that the defendant had a large number of valve boxes in the vicinity, which were not closed, but there was no evidence that the fire was caused by the leak of which the defendant was notified in the morning, or that, by shutting the valves in the vicinity, the escape of gas would have been stopped, or that it was practically possible to get at the valves for that purpose. Held, that negligence could not be inferred from the happening of the accident; and that, on this evidence, the jury would not be warranted in finding that the defendant was guilty of negligence.</p>

<p>The liability of cities and towns, under the Gen. Sts. c. 44, §§ 1, 22, for defects in highways, is not limited to such defects as are open and visible.</p> <p>In an action against a city for an injury caused by an alleged defect in a highway, there was evidence that the injury was caused by the breaking of a flagstone, which formed part of a sidewalk, and covered a coal cellar connected with a house; and there was evidence tending to show the size of the flagstone and the manner in which it was supported by walls underneath; that it had been in use for at least six years; that the upper part was somewhat hollowed out in places; that for six months or more there had been three or more cracks in it, visible on the upper surface and extending from the centre to the outer edges; that it broke by the plaintiff’s weight upon it along the cracks and in other places; that the edges of the pieces, where the cracks had been, were black and dirty and looked as if the cracks were old; that the stone on the under side was rotten and easily flaked off with a trowel; and that in many places the mortar had fallen out from the walls supporting the stone and the walls had become loose and insecure. Held, that the question whether the sidewalk was defective was for the jury.</p> <p>The sub-lessee of a part of. a house only, in the rest of which he has no right or control, may recover against a city for injuries sustained through a defect in the side- ’ walk in front of the house.</p>

<p>In an action for breach of an agreement in writing to hire the plaintiff’s hanse, where the defence was that the plaintiff failed to cleanse the house as he agreed, evidence “ that a universal custom and usage prevailed in the locality in which said house was situated, by force of which a lessor was required to cleanse a leased house before the lessee entered into possession of it,” is inadmissible, in the absence of evidence that the plaintiff knew of such custom and usage.</p>

<p>Contract on the following guaranty :</p> <p>“ Whereas Lawrence J. Riley, of the city of Boston, has upon the faith of this guaranty assigned to George Thompson, of said Boston, all his interest, right and title in a lease, which lease was recorded with Suffolk Registry of Deeds, liber 897, fol. 233. And whereas, in consideration of said assignment, said Thompson has agreed to pay monthly in advance, each and every month from August 1st, 1872, until June 1st, 1878, to said Riley, the sum of one hundred and sixteen T%7<¡- dollars, and also agreed to pay all the rent and taxes in said lease reserved, and has agreed to perform all the undertakings and covenants in said lease and in a guaranty thereto annexed, said guaranty being signed by the firm of Thompson and Riley. Now, in consideration of the sum of one dollar to us paid by said Riley, receipt whereof is hereby acknowledged, we hereby guaranty to said Riley the prompt payment of each of the above sums at the times aforesaid, and the performance of all the undertakings and agreements by said Thompson, hereby waiving all demand upon said Thompson and all notice to us for non-payment.</p> <p>“ Witness our hands and seals this the 12th day of July, A. d 1872. Jordan, Marsh & Co. [Seal.]”</p> <p>At the trial in the Superior Court, before Pitman, J., it appeared that the plaintiff and one George Thompson were partners prior to May 20, 1872, occupying a store on Washington Street, Boston, of which they had the lease referred to in the guaranty; that they then dissolved partnership, and on July 12, 1872, completed their settlement; that the guaranty declared on was then executed by the defendants and delivered to the plaintiff as a part of the settlement; and that the following agreement, referred to in the guaranty and annexed to the lease, was executed at the same time:</p> <p>“ In consideration of the payment to me of $116.67 per month (which payment is to be guaranteed by a satisfactory guarantor) during the continuance of the unexpired term of the lease of the stores No. 419, 421 and 423 on Washington Street, I hereby agree to assign said lease absolutely to Geo. Thompson, he to take upon himself all my covenants and undertakings therein mentioned, and also to assign to me absolutely, without any additional payment, the lease of the premises numbered 43 on Tre mont St. now occupied by Lawrence J. Riley and Co., said payment of $116.67 to be secured within two days from date hereof, and said lease to be then assigned.</p> <p>“ I the said George Thompson agree to comply with the above e -nditions, and make and accept said assignment.</p> <p>“ Witness our hands and seals this 12 day of July, 1872.</p> <p>“ Lawrence J. Riley & Co. [Seal.]</p> <p>“ George Thompson & Co. [Seal.]”</p> <p>It was admitted that the plaintiff had demanded of Thompson, and thereafter of the defendants, the sum stipulated in the guaranty to be paid each month, for the several months of June, July and August, 1873, and that payment had been refused.</p> <p>The defendant introduced in evidence the original lease of the premises to Thompson and the plaintiff, from Francis B. Hayes, for tne term of ten years, dated April 18,1867, the rent of which was payable upon the first of each and every month. Hayes testified that the building was destroyed by fire on May 30, 1873, that he elected to determine the tenancy the next day, and at once notified Thompson of his election, and the plaintiff a few days after.</p> <p>The defendants then offered to show that, at and before the time of the assignment and transfer of the plaintiff’s interest in the lease to Thompson, a portion of the premises was occupied by under-tenants of Thompson and Riley, for the illegal sale of intoxicating liquors, and was let by them to the tenants for that purpose; that the under-tenants were tenants of Hayes at the time of the lease to Thompson and Riley; that the unlawful use of the premises as aforesaid was known to Hayes, but that, nevertheless, it was one of the conditions of his letting to Thompson and Riley that they should accept the tenants as their own. The judge ruled that, if all these matters were proved, it would not render the lease a nullity, and that the assignment of the plaintiff’s interest therein was a valuable and sufficient consideration to support the agreement and guaranty.</p> <p>The judge thereupon ruled that, the execution of the guaranty being proved and the default admitted, there was no question for the jury, directed a verdict for the plaintiff, and reported the case for the determination of this court.</p> <p>If the ruling was incorrect, the verdict was to be set aside ; otherwise, judgment was to be entered thereon.</p>

<p>In an action for publishing a false and malicious statement concerning the property of the plaintiff, the special damage alleged being the loss of the sale of the, property, evidence of its value as a scientific curiosity, or for exhibition, is immaterial. Fair and reasonable comments, however severe in terms, may be published in a newspaper concerning anything which is made by its owner a subject of public exhibition, and are privileged communications for which no action will lie, without proof of actual malice.</p> <p>In an action for publishing in a newspaper a false and malicious statement concerning the property of another, actual malice may be inferred from false statements, exceeding the limits of fair and reasonable criticism, and recklessly uttered in disregard of the rights of those who might be affected by them ; and it is erroneous to instruct the jury that the plaintiff must prove a disposition wilfully and purposely to injure the value of the property, with wanton disregard of the interest of the owner.</p>

Petition against the Eastern Railroad Company and the trustees of the same, appointed under the St. of 1876, c. 236. The respondents filed a demurrer. Hearing before Eevens, J., upon the petition and demurrer, who reserved the questions arising thereon for the consideration of the full court, in whose opinion the case is stated.

Bill m equity against Cyrus W. Taylor, Frances E. Sawyer, Ellen C. Whitcomb, Mary E. Gates and Francis E. Gates, her husband, and Henry S. Whitcomb, to terminate a trust.

Tort for injuries occasioned to Daniel Boyle, the plaintiff’s intestate, by falling through a platform in the defendants’ foundry and the overturning upon him of the contents of a crucible of molten brass.

Contract : 1st, upon a covenant against incumbrances in a deed of land in Lowell; 2d, upon a special promise to pay whatever assessment should be made against the land, by the city of Lowell, for building a sewer, then in process of construction by the city. Writ dated November 18, 1873. Answer, a general denial.

<p>The St. of 1869, c. 378, authorized the county commissioners to “remove all dams” on certain streams “ for the purposes of proper drainage ” in certain towns, and provided that damages therefor should be assessed “in the same manner” as “in the laying out of highways.” Held, on a petition for a writ of certiorari by the administrator of the owner of a dam so removed, that a county commissioner, by reason of being a resident of one of the towns, was not disqualified to act in the proceedings relative to such a removal; that the owner of the dam, within a year after the order for the removal of the same, without any assessment of damages, followed by a refusal to settle with him, might apply for a jury to assess his damages ; and that his petition for a jury did not abate by reason of his death, and his legal representative might appear and prosecute.</p>

Contract upon a promissory note, made by Melvin E. Dam, payable to the order of the defendant, and indorsed by him to the plaintiffs. Answer: 1st. A denial of due demand and notice. 2d. A composition under the U. S. St. of June 22, 1874, § 17. At the trial in the Superior Court, before Oolburn, J., it appeared that the plaintiffs indorsed the note to the Wamesit Bank, who held the same until after maturity.

<p>Writ oe entry to recover one undivided eighteenth part of certain lands in Ashby and Townsend. The case was submitted to the Superior Court, and, after judgment for the tenant, to this court, on appeal, on an agreed statement of facts in substance as follows:</p> <p>On December 14, 1872, Joseph Howard and William Sheldon caused the interest and estate of Albert N. Wheeler, who then owned one undivided ninth part of the lands in question, to be attached on separate writs, which were duly entered and prosecuted to final judgments. On July 19,1873, executions thereon were duly taken out and levied upon Wheeler’s interest and estate in said lands, in the following order: 1st. The execution in favor of Howard was levied, and one undivided eighteenth part of the lands was set off, and seisin and possession thereof delivered to him. 2d. The execution in favor of Sheldon was levied, and the remaining undivided eighteenth part of the lands belonging to Wheeler (being the demanded premises) was set off, and seisin and possession thereof delivered to him.</p> <p>Howard was appointed by the officer as appraiser, and acted as such in the levy and set-off under the execution in favor of Sheldon, who, by the officer’s return, was to hold the land “ in common with Joseph Howard.” Neither Wheeler nor the demandant was present or took any part in the proceedings under the executions. In March, 1873, Wheeler conveyed his interest and estate in the lands to the demandant. In February, 1875, Sheldon died, and the tenant was his only heir at law.</p>

Contract upon an account annexed for services and expenses as a selectman and overseer of the poor. At the trial in the Superior Court, before Putnam, J., it was admitted by the plaintiff that the town had made no express agreement to pay him for such services, and that no salary was attached to his office.

<p>A town has power to compensate a member of a committee, appointed to execute the powers conferred upon the town by statute, for the purpose of supplying the town with pure water; and its intention end agreement to make such compensation may be shown by its ratification and confirmation of doings of the eommi ttee or of other agents or officers of the town.</p> <p>A member of a committee, appointed by a town to execute the powers conferred upe n the town by statute, for the purpose of supplying the town with pure water, for whose compensation no appropriation had been made, was paid a certain sum for his services by the town treasurer. At a subsequent town meeting, the report of the committee, containing this amount among the expenditures, was accepted. and at the next annual town meeting the report of the town treasurer, approved by the report of auditors, printed copies of which had been distributed among the voters before the meeting, and which contained the amount so paid, ivas also accepted. Held, that such acceptance was a conclusive ratification by the town of such payment, and could not afterwards be rescinded by a vote of the town at a subsequent meeting, or the amount paid be recovered back.</p>

<p>The St. of 1871, c. 382, § 1, providing that “ the board of city or town officers authorized to lay out streets or ways ” may assess a proportional share of the expense of laying out, altering, widening, grading or discontinuing a street or way, upon any real estate benefited thereby, does not apply to the locating anew of a high way by the county commissioners, under the Gen. Sts. c. 43, § 12, as amended by the St. of 1873, c. 165.</p>

Libel for divorce, filed September 28, 1876, for the cause of desertion, alleging that the parties were lawfully married at Woburn on September 17, 1872; that they afterwards lived in this Commonwealth, the libellant at Woburn and at Boston, and the libellee at Winchester; and that the libellee, on September 17, 1872, wilfully deserted the libellant, and has ever since con'inued such desertion.

<p>A. indorsed B.’s notes for his accommodation, and received from him a written agreement to hold hitr. harmless on each indorsement. B. lócame insolvent, and A. and B. agreed that C., a friend of B., should purchase all claims against B. by paying a certain percentage thereof to the creditors, and by giving, in addition, to each of those who held the notes so indorsed, B.’s note for a certain percentage indorsed by A. C. refused to purchase the claims, until, in addition to the conveyance of B.’s property to himself, he was paid a certain sum in cash equal to a certain percentage of all the claims, and A., in consideration of his release from all liability upon the notes indorsed by him, agreed to furnish the sum required. A. furnished a less sum than that required, B. making provision for the remainder, and C. accepted it, and, with the assent of all parties, carried the arrange ment into effect. C., after paying the percentage agreed on to the creditors, and all expenses, accounted with B. for the property received by him, including the sum advanced by A., and paid to B. a balance exceeding that sum. There was no express agreement to repay the sum advanced by A. Held, that A. was not a creditor of B., and could maintain an action against him for money paid.</p>

Bnx in equity by the executor of the will of Rebecca Bascom, to obtain the instructions of the court. The will, to which the husband of the testatrix assented in writing, was dated June 24, 1874, and admitted to probate on April 27, 1875, and contained the following provisions : “ First. I give and bequeath all my wearing apparel unto my sisters Susan B. Converse and Mary C. Learned, share and share alike. . “ Second.

Petition for a writ of certiorari to quash the proceedings of the selectmen of the town of Lexington, claiming to act under the St. of 1873, c. 214, in making excavations to drain certain meadows and low lands in that town, and in assessing the expenses thereof on the estates benefited. So much of the case, as is material to the understanding of the point decided, is stated in the opinion.

Petition for a writ of certiorari, alleging that in September, 1875, David A. Sanborn and Daniel A. Sanborn, executors of the will 'of David A. Sanborn, petitioned the respondents for a jury to assess the damages sustained by them as set forth in their petition, which alleged that their testator in his lifetime and .on October 5,1874, was seised in fee of certain land situated on Prospect Street in Somerville; that on October, 5, 1874, the board of mayor and aldermen of the…

Trustee process. Joseph K. Baker, administrator with the will annexed of the estate of Benjamin Ryder, summoned as trustee, answered, denying that, at the time of the service upon him, he had in his hands and possession, as such administrator or individually, any goods, effects or credits of the principal defendant.

<p>H a policy of insurance upon a house provides that the policy shall be void, if the house “ shall remain vacant or unoccupied for the space of ten days, without written notice to, and consent of the company,” it is not erroneous to instruct the jury that, if the house had not been used as a dwelling-place by. some one within ten days of the loss, the policy would be void; and that, if the former occupant had moved with his family into another house where they slept and took their meals, the fact that some of his furniture remained in the house, and the key had not been surrendered to the landlord, until within the ten days, does not constitute an occupancy of the premises.</p> <p>It is no ground of exception to show that possibly full and accurate instructions were not given, if the instructions given are not erroneous, and no request was made for further instructions.</p>

<p>Writ oe review of a judgment recovered by the defendant in review against the plaintiff in review on the following con* tract in writing, dated January 22, 1870, and signed by the plaintiff in review and James T. Frary:</p> <p>“ It is agreed between H. A. Lathrop of Sharon, and James T. Frary and Charles W. Russell of New York, that for services heretofore rendered by said Lathrop to said Frary and Russell, they shall procure from the Lamson & Goodnow Manufacturing Company for him a license to manufacture at his said Lathrop’a works, in Sharon aforesaid, and not elsewhere, and sell three thousand dozens of cutlery, under the patent granted to Joseph W. Gardner in 1859, and assigned to the said company during the unexpired term of said patent; which license the said Lathrop has applied to and requested the said Frary and Russell to procure for him from said company; and further that they will pay the royalty charged for said license by said company; and they also agree to pay said Lathrop three thousand dollars when and as soon as said company shall have obtained a decree or judgment establishing the validity of said patent; and said Lathrop agrees that he will use his best endeavors to aid in establishing the validity of said patent whenever he shall be called upon to do so by said Frary and Russell, or said company.” After the former decision, reporte.d 119 Mass. 531, the case was tried in the Superior Court, before Allen, J., who ordered a verdict for the plaintiff in review, and reported the case for the consideration of this court, so much of which, as is material to an understanding of the point decided, was as follows :</p> <p>The execution and delivery of the agreement, and a demand of payment by Lathrop upon Russell before bringing the present suit, were proved. The defendant in review also introduced in evidence the records of three suits in equity brought by the Lamson & Goodnow Manufacturing ■ Company, in the United States courts, in the city of New York, to restrain the use of the invention described in the letters patent referred to in said agreement. The suits were brought against J. Russell & Co., Landers, Frary & Co., and Clement, Hawks & Co., respectively, by bills in equity, each of which was dated April 17, 1867. The several defendants respectively filed answers therein, setting up, among other matters, that the letters patent were'invalid; that the invention was not new. In May, 1870, the defendants in said suits, respectively, filed their written consent that said bills might be taken pro eonfesso, evidence on both sides had been previously taken, and on June 9, 1870, an order was entered in each case, that the bills should be taken pro eonfesso; and no further decree, order or judgment was ever passed or entered in either of them.</p>

Replevin of certain articles of personal property. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, on an agreed statement of facts in substance as follows : In July, 1875, one Nancy Walsh brought an action against the plaintiff on a promissory note which was then due and owing by him to her, and attached the goods and chattels replevied, belonging to the plaintiff, which were the same goods and chattels described…

<p>Petition to the Superior Court for a jury to assess damages sustained by the petitioners by reason of the taking, on April 28, 1870, by the respondent, under the St. of 1868, e. 182, of about 100,000 feet of land in West Roxbury.</p> <p>At the trial, before Wilkinson, J., the petitioners called witnesses as to the character and value of the land, who testified that, at the time of the taking, the land did not front upon any street, being surrounded upon two sides by land of the respondent, upon the third side by land of one Nickerson, and upon the fourth side by a parcel of land owned by the petitioners, containing about 31,000 square feet, lying between the lot in question and a highway called Pond Avenue; that the parcel of 31,000 square feet was lower than the land in question, being traversed by a brook; and that in 1870 or 1871, there began a general rise and advance in the value of lands in the towns adjoining Boston, which continued several years.</p> <p>Horace James, afterwards called by the petitioners, testified that he had been a selectman in Brookline for tel years prior to 1876; that in the year 1873 the town of Brookline purchased of the heirs of Moses B. Williams a parcel of land in Brookline, about 1000 feet distant from the land in question, for a town stable; that it was then surrounded by streets on three sides, forty or fifty feet wide, with sidewalks for nearly the whole front of the parcel; that, when purchased, it was separated only by one of said streets from another parcel of land, which had been sold in small pieces by one Hart, and was then occupied, in part, by laboring men and their families; that the town lot was similar to the land in question only in this, that each consisted of low land and was traversed by a brook; that the two lots were dissimilar in respect to their access to streets, and were also dissimilar as to their nearness to other houses, and as to the likelihood of their coming into the market; that the town lot would find many more purchasers than the land in question ; that there were perhaps half a dozen houses within three minutes’ walk of the land in question, large houses standing upon large lots of land; and that there had been but few sales near the land in question. The petitioners then asked James the price paid for the town lot. The respondent objected, but the judge allowed the question to be put, and the witness answered, “ twenty cents a foot.”</p> <p>The jury returned a verdict for the petitioners; and the respondent alleged exceptions.</p>

Contract upon a promissory note for $871.53, dated March 16, 1875, payable in six months, made by E. Mann & Son, and indorsed by the defendants. The case was submitted to the Superior Court, on an agreed statement of facts in substance as follows: The plaintiff became the holder of the note for value, before maturity.

<p>A. agreed in writing to build a hotel for a corporation and to take in part payment a certain sum in slack of the same, and, by a separate contract, B. and C., stockholders in the corporation, in consideration of A.’s “agreeing to hold and carry" a certain portion of the stock “free of expense” to themselves, “for two years from the date of said stock being issued to him,” agreed “ to pro rata the loss or gain in the value of said stock, at the expiration of the two years.” In an action upon this agreement, begun September 9, 1875, it appeared that A. received a certificate of the stock on December 5, 1874, but that it was dated with the assent of the corporation on July 3, lS^S. The judge, who tried the case without a jury found as a fact that the execution of the agreement by B. and C. was a consideration for A.’s executing the building contract, and admitted the building contract in evidence. He also found as a fact that A. had held and carried the stock for two years before bringing the action, and that the stock was worthless, and ruled that B. and C. were liable for two thirds of the par value of the amount so held by A. Held, that the building contract was rightly admitted in evidence; that the finding that A. had held the stock for two years was not erroneous; that .he agreement of A. with B.' and C. was in two parts, and that the division of profit or las? was to be divided equally between the two parties.</p>

<p>A defendant, who has been found guilty generally upon an indictment containing several counts for distinct offences, and has been sentenced upon some of the counts to imprisonment, and has been imprisoned under such sentence, cannot be brought up at a subsequent term to which the case has not been continued, and be sentenced anew upon another count in the same indictment, even if the first sentence was erroneous.</p>

<p>Habeas corpus of a person held by a deputy of the sheriff of Suffolk, under a warrant issued by the Governor of this Commonwealth, upon a requisition of the Governor of the State of Vermont, for his arrest and delivery as a fugitive from the justice of the State of Vermont.</p> <p>The warrant of the Governor of this Commonwealth contained the following recital: “ Whereas application has been made to me by the supreme executive authority of the State of Vermont for the delivery of Joseph C. Davis, of Boston, charged with the crime of obtaining money by false representations, and represented to be a fugitive from the justice of said State of Vermont, and now in said Boston, and I am satisfied that the demand is conformable to law, and ought to be complied with.” The copy of the indictment annexed to the requisition of the Governor of the State of Vermont was attested and certified by the clerk of the court therein named, and was certified in the requisition to be authentic and duly authenticated in accordance with the laws of the State of Vermont, and was accompanied by an affidavit that the defendant was a fugitive from justice, and was as follows:</p> <p>“State of Vermont. Windsor, ss. Be it remembered, that at f term of the County Court begun and held at Woodstock within and for the county of Windsor aforesaid, on the second Tuesday of December in the year of our Lord one thousand eight hundred and sixty-five, the grand jurors within and for the body of the county of Windsor aforesaid, now here in court duly empanelled and sworn, upon their oath present, that Joseph C, Davis, of Boston, in the County of Suffolk and Commonwealth of Massachusetts, heretofore, to wit, on the twentieth day of July in the year of our Lord one thousand eight hundred and sixty-three, with force and arms at Hartford aforesaid in the county of Windsor aforesaid, unlawfully, knowingly and designedly, with intent to defraud one Carlos S. Hamilton of his moneys, and with intent to procure the said Hamilton to loan and lend to him the said Davis the money of him the said Hamilton, upon the sole credit of him the said Davis, did falsely pretend and affirm unto the said Hamilton that he the said Davis was then and there a man of large wealth and property, and that he the said Davis was then and there the owner of a certain dwelling-house of great value, situate in South Hanson, in said Commonwealth, and was then and there the owner of a certain other dwelling-house of great value, situated in Cambridge, in said Commonwealth, and that he the said Davis was then and there the owner of a large amount of goods, wares and merchandise of great value, to wit, of the value of four thousand dollars over and above the amount of all his indebtedness for and on account of the purchase of said goods, wares and merchandise, and that he the said Davis was then doing a large and profitable business in trading and merchandising with said goods, wares and merchandise in the said city of Boston, and that he the said Davis was then making and realizing a profit upon the sale of said goods, wares and merchandise, of from twenty-five per cent, to thirty per cent, upon the cost of said goods, wares and merchandise ; and by means of which false pretences the said Joseph C. Davis did then and there unlawfully, knowingly and designedly, fraudulently obtain of and from the said Carlos S. Hamilton a large sum of money, to wit, the sum of fifteen thousand dollars, of the property and money of the said Hamilton, of the value of fifteen thousand dollars, upon the sole credit and responsibility of him the said Davis, with intent then and there to cheat and defraud him the said Carlos S. Hamilton of the same. Whereas, in truth and in fact, the said Davis was not then and there a man of large wealth and property, but on the contrary thereof was then and there poor and insolvent, and unable to pay Ms the said Davis’s just debts and liabilities by a large amount, to wit, by the amount of ten thousand dollars; and was not then and there the owner of a dwelling-house of large value, or any value at all, situate in said South Hanson; and was not then and there the owner of a dwelling-house of any value whatever, situate in said Cambridge or elsewhere; nor was said Davis then and there the owner of a large amount of goods, wares and merchandise of the value of four thousand dollars, or of any other amount or value whatever, over and above the amount of all his the said Davis’s indebtedness for and on account of the purchase of said goods, wares and merchandise; and that the said Davis was not then and there doing a large and profitable business in trading and merchandising in and with said goods, wares and merchandise, in said city of Boston or elsewhere; nor was said Davis then and there making or realizing a profit of from twenty-five per cent, to thirty per cent, upon the cost of said goods, wares and merchandise, upon the sale thereof, nor any profit whatever; but on the contrary thereof, he, the said Davis, was then doing a profitless and losing business in the sale of said goods, wares and merchandise in the said city of Boston ; all of wMch the said Davis then and there well knew, and of which the said Hamilton was then and there totally ignorant, and gave full credit to said false and fraudulent representations and pretences of him the said Davis. And so the jurors aforesaid, upon their oath aforesaid, do say that the said Joseph C. Davis then and there, to wit, at Hartford aforesaid, in the county of Windsor aforesaid, on the twentieth day of July aforesaid, in manner and form aforesaid, by means of said false and fraudulent pretences, did then and there unlawfully and fraudulently obtain of and from the said Hamilton the said property and money of him the said Hamilton of the value aforesaid, contrary to the form, force and effect of the statute in such case made and provided, and against the peace and,dignity of the State ”</p> <p>At the hearing, before JEndicott, J., upon the, petition, the writ, the officer’s return, the warrant, the requisition, and the indictment and other papers accompanying it, the petitioner contended that the indictment charged no offence known to the laws of Vermont, and was insufficient to justify or warrant hia surrender to the authorities of Vermont. It was agreed that the statutes of the State of Vermont and the decisions of the Supreme Court of Vermont, relating to the question raised, might be taken as evidence of the law of Vermont on this question, to the same extent as if that law had been formally proved as a fact.</p> <p>The judge was of opinion that the question whether the indictment properly charged an offence under the laws of Vermont was not open to the petitioner; but, at his request, reserved the case for the consideration of the full court upon the questions: 1st. Whether the petitioner could raise upon this record, and in this case, the question whether the indictment charged an offence under the laws of Vermont; 2d. If he could do so, whether the indictment did charge an offence under the law of Vermont; and admitted the petitioner to bail in the sum of $10,000.</p>

Habeas corpus of a boy under seventeen years of age, who had been tried, convicted and sentenced in the Superior Court, for Suffolk County, to imprisonment for six months in the house of correction, upon an indictment for breaking and entering an unoccupied house, and, upon this sentence, had been delivered into the custody of the sheriff, to be delivered by him to the keeper of the house of correction for such imprisonment.

Indictment for robbery, from the person of George Bums, of “ divers promissory notes current as money in said Commonwealth, of the amount and of the value of eighty-seven dollars, a more particular description of which is to the jurors unknown.” At the trial in the Superior Court, before Bacon, J., Bums testified: “ The money taken from me was three tens, eleven fives, and one two; and I so testified before the grand jury.” Another witness for the government testified that…

IimiCTMEHT on the Gen. Sts. c. 87, §§ 6, 7, for keeping and maintaining on May 1, 1876, and on divers other days between that day and the day of the finding of the indictment, a certain tenement in Brookline, for the illegal sale and illegal keeping of intoxicating liquors, said tenement being then and there a common nuisance.

<p>A., by a written assignment, in consideration of $2000 paid by B., sold and conveyed to him his entire right, title and interest in certain letters patent. In an action to recover a balance due under this assignment, B. offered in evidence a paper writing, dated three days before the assignment, signed by himself, in which he agreed to pay A. $900, in his notes, when A. should have obtained an improved patent for the same invention, and assigned the same to him; and containing certain conditions and stipulations which were not in the subsequent assignment. B. was also permitted to testify, that after signing this paper, he orally agreed with A. to buy his entire interest in the patent upon the same terms and conditions mentioned in that paper, except that the consideration was $2000, and that A. thereupon executed and delivered the assignment, out had not complied with the conditions. Held, that the evidence was inadmissible as varying the terms of a written contract.</p>

<p>Petition, filed in April, 1875, to the Superior Court, for a jury to assess the indemnity for trouble and expense occasioned to the petitioner by the laying out of a street in Lynn over his land, which land was not entered upon or possession thereof taken by the respondent. Trial before Gardner, J., who reported the case for the consideration of this court in substance as follows:</p> <p>The order for the laying out was passed by the city council on September 27,1871, and on October 31,1871, a notice was served on the petitioner by order of the mayor and board of aldermen, that the street had been laid out over his land, that $3998.10 as damages had been awarded to him, and that he was allowed sixty days for the removal of any buildings, fences or other erections on the land taken.</p> <p>On or about November 29,1873, the petitioner addressed a petition to the mayor and aldermen of Lynn, which was referred by them, with the concurrent vote of the common council, to the joint standing committee of the city council on laying out and altering streets. The committee made no report thereon, nor did the city council take further action thereon, unless it is included in the terms of a general order passed by the city council of that year, in concurrence, at their last meeting, on January 2, 1874, as follows : “ Ordered, that all unfinished business, contracts and work in progress but not completed, with the papers relating thereto of whatever description, be and are hereby referred to the next city government.” No action was taken by the city council of the year 1874 upon the petition. On or about June 1, 1874, the petitioner addressed another petition, being substantially a copy of his former petition, to the mayor and aldermen and common council of Lynn, which was referred by concurrent vote of those bodies to the appropriate committee, which committee reported an order on December 31, •1874, of that year, granting an allowance of $300 to the petitioner. This order was rejected in the common council.</p> <p>The respondent contended and asked the judge to rule that the petition would not lie for the reason that it was not filed within the time limited by law. The judge refused so to rule, and ruled that the petition was seasonably filed. To this ruling the respondent excepted.</p> <p>The petitioner offered evidence tending to show, among other things, that, in consequence of said laying out, he had been damaged by reason of his inability to sell his land in house lots, as he had- contemplated; that he had previously caused plans to be made for laying out the land in lots, and had advertised the land for sale in 1870, and that in consequence of the probability that a street or way might be laid out, substantially as laid out the next year, he had withdrawn his advertisements, and taken no further steps towards selling his land, except that, in April, 1871, he sold four of the house-lots; that he had been subjected to uncertainty as to the use which he might make of the land, and to derangement of his plans; that he had suffered disquietude, vexation and annoyance from the action of the city government in the premises; that he had been put to trouble and expense in visiting Lynn, in seeing the mayor of the city about the matter, and in consulting counsel as to his rights, and employing agents and attorneys to ascertain and enforce such rights.</p> <p>The judge, against the objection of the defendant, instructed the jury, among other things, as follows: “ 1. The petitioner must be a person claiming damages sustained in his property, by the laying out of this street. It appears by the record evidence that the defendant city had awarded to the petitioner about $4000, as damages sustained by him in his property, and there is evidence tending' to show that during the two years after the taking, the petitioner claimed payment of the amount awarded to him as damages. This evidence, if believed, will warrant the jury in finding that the petitioner was a person claiming damages as required by the statute.</p> <p>“ 2. You are to allow the petitioner full indemnity for the trouble and expense he has been put to by the proceedings of the city council in the laying out. In relation to the trouble the petitioner has been put to, you may consider the disquietude, vexation and annoyance he has been put to by the proceedings of the city council, by the laying out, and by the notice to him to remove his buildings, fences, &c., so far as these have been shown to you by the evidence; the derangement of the petitioner’s plans, if any, relative to his estate which he had made after the laying out, upon the assumption that his land so laid out was to be entered upon by the city for the purpose of constructing the highway; the uncertainty in which the petitioner has been kept, if you find that he has so been kept, for the two years from the taking, as to whether the land was to be entered upon by the city or not; the disturbance, if any, to his estate fairly consequent upon the expectation that the land taken was to be entered upon at any time within the two years; and the trouble which the petitioner has been put to, if any has been shown, in overseeing and directing the sale and removal of the buildings and fences from the land taken in compliance with the notice of the city to him; in consultation with counsel, within the two years from the laying out, in relation to the proceedings of the city council in laying out the street and awarding him damages; and in conferences by the petitioner within the two years with the mayor of the city in relation to said proceedings. All these matters, so far as the evidence in the case relates to them, you may consider, and in connection therewith you may consider the value of the estate and of the premises over which the street was laid out by the city.</p> <p>“You are also to indemnify the'petitioner for all moneys which he has fairly expended by reason of these proceedings of the city in laying out this street; expenses in selling and removing his buildings and fences, if any, in complying with the notice to remove ; expenses paid to counsel, if any, employed by the petitioner to see the mayor and city authorities within the two years in reference to these proceedings of the city in laying out said street; and expenses, if any, paid to counsel for himself within the two years, solely concerning these proceedings, so far as evidence of such expenditures has been presented to you.”</p> <p>At the request of the respondent the following instruction was given to the jury with the assent of the petitioner: “ You are not to consider nor award indemnity for any derangement or disturbance of the petitioner’s plans relative to his estate, or any uncertainty in regard to said estate or the use to be made of it prior to the laying out in Sept. 1871, induced by any anticipated action of the city government; nor are you to award any indemnity for trouble or expense incurred by reason of any representation made, or assurances given by any person, as to what would or would not oe the probable action of the city in respect to said estate.”</p> <p>The jury found for the petitioner and assessed his indemnity in the sum of $4450.</p> <p>By consent of the parties the case was reported to this court to determine: 1st. Whether the notice by the city to the petitioner to remove his buildings &c., situated upon the street as laid out by the city council, and the sale by the petitioner of said ouildings and the subsequent removal of the same, were in effect such an entry by the city upon the street so laid out as will prevent the petitioner from maintaining this petition. 2d. Whether the rulings, refusals to rule, and instructions to the jury by the court, were correct.</p> <p>If, in the opinion of the court, the first question above submitted was to be answered in the affirmative, and the land had been so taken as to make the laying out effectual, and the petitioner entitled to the damages awarded by the city, then the petition was to be dismissed. If not, and if any of the rulings were not sufficiently favorable to the respondent, the verdict was to be set aside; otherwise, judgment upon the verdict.</p>

<p>A child, attending a public school in a school-house provided by a city, under the duty imposed upon it by general laws, cannot maintain an action against the city for an injury suffered by reason of the unsafe condition of a staircase in the school house, over which he is passing.</p>

Tort for the conversion of certain furniture. The answer contained a general denial, and alleged that the furniture was attached by the defendant, as a deputy of the sheriff of Suffolk, by virtue of a writ against Alexander M. Munroe.

<p>On a writ of error to reverse a judgment of the Superior Court in an action upon * note made by the plaintiff in error, payable to the husband of the defendant in error, the record showed that the original declaration was in three counts, alleged to be for the same cause of action, the first two alleging that the note, though in terms payable to the plaintiff's husband, was in fact payable to her, and the third alleging, without mention of the note, that the defendant owed her a certain sum of money; that by agreement of parties the case was referred to arbitrators, to be disposed of in court in accordance with their decision; and that, after an award had been returned by the arbitrators, judgment was entered on default in favor of the plaintiff for a less sum, in accordance with the award, than was alleged to be due her in the third count. Held, that the third count was sufficient; that the submission to arbitration did not oust the jurisdiction of the Superior Court; and that the judgment was not erroneous. •</p>

<p>Contract on a judgment of the Superior Court for Middle-sex County in the State of Connecticut.</p> <p>At the trial in the Superior Court, before Brigham., C, J., the plaintiff introduced a certified copy of the judgment and a record of the proceedings of the court in which the judgment declared on was obtained, the officer’s return in which was headed “ State of Connecticut, County of Middlesex, Chatham,” and set forth that on March 29, 1870, an attested copy of the writ was left by him “ with said defendant at his usual place of abode in said town.”</p> <p>The defendant introduced evidence tending to show that on March 23, 1870, he left the State of Connecticut and came to Massachusetts, and never afterwards returned to Connecticut, and that on March 29, 1870, he was not within the jurisdiction of the court.</p> <p>The plaintiff was then allowed, subject to the defendant’s objection, to introduce evidence to show that on March 29, 1870, the defendant was at Chatham, in the State of Connecticut, and within the jurisdiction of the court. Among other evidence admitted was that of Henry Y. Barton, who testified that he had a conversation with the defendant more than a year after the original action was commenced, in which the defendant, among other things, admitted that he knew that the action had been brought by the plaintiff. The defendant had previously stated on cross-examination that he had had no conversation with Barton about the action, and had also denied having knowledge of it.</p> <p>The judge found that the defendant was within the jurisdiction of the court on March 29, 1870, and at the place where the attested copy of the writ was left, as shown by the officer’s return, and ordered judgment for the plaintiff. The defendant alleged exceptions.</p>

Tort for injuries occasioned by an alleged defect in a high* way, which the defendant was bound to keep in repair.

Contract on a bond, dated September 23,1874, running to “ the Williamsburg City Fire Insurance Company of Brooklyn, New York,” and its “ successors and assigns,” purporting to be executed by the defendant Frothingham as principal, and the defendants Albert G. Goodwin and William R. Storms as sureties, and conditioned that Frothingham, as its agent, should, among other things, “ duly and properly account for, pay over and apply all sums of money which may be received by him…

<p>Petition to the Superior Court for a jury to assess damages for land taken under the St. of 1873, c. 199, for the widening of Cragie or Canal Bridge in Boston.</p> <p>At the trial, before Bacon, J., it appeared that the order taking the land was passed July 18, 1874. No question was made as to the petitioner’s title to the land taken inside the harbor commissioners’ line, and marked A. on the plan printed in the margin,* and the only question was as to his title to that part of the pier wharf marked B. on the plan ; and the evidence on this point was as follows :</p> <p>On April 20,1840, Jesse P. Richardson conveyed to Edward L. Raymond by warranty deed, recorded with Suffolk Deeds, lib. 454, fol. 234, a lot of land and fiats, at the corner of Leverett Street and-what is now North Charles Street, to low water mark, “together with all the rights, easements, privileges and appurtenances to the premises belonging, including all my right, title, interest and estate, in and to the pier wharf or structure at the northwest end of the premises, on which structure a milding known as the Gymnasium formerly stood.”</p> <p>[[Image here]]</p> <p>In 1842 the petitioner hired the premises of Raymond to be used as a coal and wood wharf. The pier wharf had stood in its present place, next the bridge, since 1830 or earlier, but up to 1842 the rest of the premises had not been filled up solid. The commissioners’ line, established by the St. of 1840, e. 35, § 3, adopted the southeasterly side of the pier wharf as the harbor line at that place. Raymond agreed with the petitioner to fill the premises up solid to the pier wharf, and to let him the whole, the solid part and the pier wharf, which together formed one wharf, for the purpose of a coal wharf. Raymond filled out solid to the pier wharf, with the exception of a small triangular piece lying next the bridge and bounded by the bridge and the pier wharf on two sides and by a wooden barricade on the third side. The solid structure and the part on piers thus formed one wharf, and vessels loading or unloading necessarily lay alongside the pier wharf and received or delivered their cargoes therefrom and thereupon. There was no passage t'a or from the part on piers to North Charles Street except over the solid part of the wharf, but there was direct access from the pier wharf to Leverett Street.</p> <p>Raymond died in or about 1865, and all his right in the premises descended to his two daughters, Caroline E. Benton and Mary E. Ferris. Mrs. Benton, her husband joining, conveyed all her interest to her sister, and she, her husband joining, conveyed to the petitioner, by a deed dated January 1, 1869, “all that lot of land with the wharf and buildings thereon,” “ bounded southeast by North Charles Street two hundred and forty-one feet six inches; southwest by Livingston Street one hundred- and forty-three feet; northwest by the commissioners’ line two hundred and twenty-two feet; northeast by Canal Bridge one hundred and fifty-five feet, four and one fourth inches- A part of the granted premises is held by the authority of and under the provisions of a resolve of the Legislature, approved February 24, 1845', a copy of which resolve is recorded with Suffolk Deeds, lib. 855, fol. 65, and this conveyance is made subject to the terms and conditions of said resolve, and none of the covenants hereinafter contained shall in any possible event or contingency be deemed or held to apply, relate to, or to include that part of the granted premises which is held under said resolve, or which is subject to its terms and provisions. Or however otherwise said premises may be bounded, measured or described. Being part of the same premises conveyed to said Mary by Austin W. Benton and wife, by deed dated January 2, 1865, and part of the premises devised to said Mary by her father, the late Edward A. Raymond, by will which has been duly proved in Norfolk County. As to his title, see lib. 454, fol. 234; lib. 462, fol. 179.”* The deed contained the usual covenants as to the premises granted, “ except the portion held under said resolve.”</p> <p>The petitioner offered to show that from 1842, when the filling out took place, to the present time, the structure on piers constituted the head or front of the wharf, at which alone vessels could lie; that Raymond had claimed and occupied the pier wharf as his property by an adverse and exclusive occupation from a time prior to 1842 to the time of his death; and that the petitioner occupied the same premises from 1842 to the date of his purchase, as lessee and tenant of said Raymond and his representatives, and, since the date of his deed, as owner, up to the present time; that the premises had been continuously held by said Raymond and his grantees, under claim of title, by an open and adverse occupation against the State and all persons, and that they had occupied and claimed exclusive right to the space by the side and end of the pier wharf as a berth for vessels lying at said wharf and as appurtenant thereto; that the purchase money paid by the petitioner was based upon the entire parcel of land, including the pier wharf, its berths and appurtenances ; that he supposed they were included in the deed, and intended and meant, by the word “ wharf ” in such deed, the pier wharf in question; that no other wharf was used, or had ever been used for the receipt of coal, besides this pier wharf, and that it was the intention of the parties to the deed, and they supposed it would be so construed, that the. wharf referred to in the deed was this pier wharf; that he paid rent for the whole to Baymond and his heirs until the deed, and after the deed no claim was made upon him for rent for any part of the premises, but the grantors agreed to the petitioner’s treating the conveyed premises as including the pier wharf and its appurtenances; that, before the taking of the land for the widening, he notified the commissioners that his title included the pier wharf and its berths, and that they awarded him damages for taking part of the same as his property; that some objection having been made to the petitioner’s title to receive the damages for the taking of part of the pier wharf, he obtained from the heirs of Raymond a release and quitclaim, dated September 24, 1874, of all their interest in the pier wharf, declaring that the deed of 1869 to him was intended to include the same; and, the petitioner offered this deed in aid of his proofs of title, and in. proof of his right to receive the damages in question. But the judge ruled it to be inadmissible for either purpose. The petitioner also offered to show, by all the heirs of Baymond, that the intent and purpose of the conveyance of January 1, 1869, was to convey all their title to this pier wharf, and the right to berths and wharf-age.</p> <p>The land of Baymond and of the petitioner extended beyond the pier wharf in a southerly direction, and was filled up to the commissioners’ line ; but the petitioner offered to show that the part beyond the pier wharf had always been let and used as a separate wharf, and that the berth for vessels at its end was more shallow and with a harder bottom than the pier wharf, and could only be used for a small class of vessels, while the pier wharf could be used by the largest vessels.</p> <p>The petitioner contended that he was entitled to damages for the taking of a portion of the pier wharf, for damage to his coal yard and buildings by reason of shortening the pier wharf whereby vessels could not unload at his coal sheds, and for the taking of the water he had been wont to use as a berth for his vessels while unloading. The judge ruled that the petitioner had no title to the pier wharf, or the flats under or water above the same, and that the title to the pier wharf, if there was any, remained in the heirs of Raymond, and that his only claim for damages for land taken was for the land taken easterly cf the commissioners’ line.</p> <p>The petitioner also moved for leave to amend his petition by joining the heirs of Raymond, but the judge refused to grant it.</p> <p>By agreement of parties, and before verdict, the judge reported the case for the consideration of this court. If the rulings were correct, the case was to be sent to an assessor to ascertain the damages, and judgment was to be entered for such damages as he should assess, or as the parties should agree upon; otherwise, to stand for a new trial.</p>

<p>One, who employs master mechanics to do certain work under his agent’s general direction, each to furnish the men, tools and tackle necessary for His work, is not, in the absence of negligence in their selection, liable for an injury resulting to a servant employed by one master mechanic through the negligence of another in . furnishing imperfect tackle, or in the manner of using it.</p>

<p>P. by his will devised a share of his estate, real and personal, in trust to pay the income to his daughter E. and her husband S. during their lives, and the principal, after their death, “ to her heirs.” In the lifetime of S. and E., W., one of their eons, conveyed all his interest under P.’s will to S., who afterwards devised it tc E., and she devised it to C. and L. in trust to pay or appropriate the income, at their discretion and in such proportions as they should think best, to or for the benefit of W. and his wife and children, and, at the death of W. and his wife, to pay and convey the principal to such children equally. C., being sole trustee under P.’s will, transferred this property to himself and L. as trustees under E.’s will, and they afterwards resigned the latter trust, and B. was appointed in their stead. W. survived both his parents, and died in another state, leaving a widow and three children, two of whom took out administration on his estate in that state, and brought against C. a bill in equity, in their own right and as such administrators, stating it to be in their own behalf and in behalf of W.’s widow and third child, alleging that said widow and child were out of the jurisdiction of this court and residing temporarily in Europe, and praying for an account and distribution of W.’s share as heir of E. in the estate of P., and that said widow and child of W. might have the benefit of any decree. Held, that the bill could not be maintained, without making, or attempting to make, such widow and child, and B., the present trustee under the will of E., parties; nor, at least as to personal estate, without taking out administration in this Commonwealth.</p>

Contract on a recognizance entered into on July 10, 1875, under the Gen. Sts. c. 124, § 10, by the defendant Jones, as principal, and the other defendant as surety, and conditioned that Jones, who had been arrested on an execution in favor of the plaintiffs, should within thirty days from the day of his arrest deliver himself up for examination before some magistrate authorized to act, giving notice of the time and place thereof in the manner provided by law, and appear at…

<p>On a petition for partition, it appeared that in 1847 the respondent’s mother, who owned the land, conveyed by a void deed the northerly half of it to him, and that he entered under the deed, and from its date to the present time exclusively occupied the principal part of the premises therein described, claiming to be the owner thereof in fee, of which the petitioner had always had knowledge. The mother died in 1849, and the respondent became a tenant in common with the petitioner in the premises. After the date of the deed, until the mother’s death and for a year thereafter, the petitioner occupied the northerly part of the premises as the tenant of the respondent, paying him rent therefor. The dividing line, described in the deed, ran through the centre of the front door and front entry of the house, and continued through the kitchen and back stairway, so as to leave a strip about one loot in width of the kitchen and back stairway north of the line, which strip had always been used in connection with the southerly part of the house, occupied by the petitioner. The judge, who tried the case without a jury, found as a fact that the petitioner occupied a part of the cellar and of a shed north of the dividing line, by permission of the respondent, as hk tenant, but, in regard to the northerly half of the front entry and the strip, no such permission was found, or facts from which it could be inferred. Held, that the respondent had acquired title by adverse possession to the portion of the premises described in his deed, with the exception of the northerly half of the front entry and the strip.</p>

<p>Writ on entry. Trial in the Superior Court at April term 1876, before Brigham, C. J., who, by consent of parties and before verdict, reported the case for the determination of this court upon the question whether the evidence reported was competent and sufficient to sustain the demandant’s title.</p> <p>At October term 1876, the demandant moved for leave to become nonsuit as of right, without notice to the tenant, and Gardner, J., granted the same as of course, and a nonsuit was entered. Afterwards at the same term, the tenant objected thereto, and moved that the nonsuit be stricken off, which motion the judge refused to grant, upon the ground that the demandant was entitled to become nonsuit as of right; and the tenant alleged exceptions.</p>

<p>A mill-owner, who partially obstructs the flow of water in a stream to his own mill, is not thereby prevented from recovering, against another mill-owner who also ohstructs it, for the additional obstruction.</p>

<p>Petition in equity, that the receivers of the defendant company be ordered to pay the petitioner, out of the fund in their hands, for his services as solicitor in the cause. Hearing before JSndicott, J., who found the following facts:</p> <p>In December, 1872, the defendant company was enjoined from doing business, and receivers were appointed. Several hearings were had upon the petition for the injunction; and the petitioner was applied to by certain policy holders to appear at these hearings, and did so appear in their behalf.</p> <p>In April, 1873, two assessments were laid upon the members of the company, the first to pay losses and debts, and the second to provide for the payment of unearned premiums due to the unexpired terms of policies, each assessment being for fifty per cent, of the statute liability. Application was made to this court to ratify or amend these assessments, and they were referred by the court to an auditor, who made a report approving the assessments, and a hearing was had in June, 1873. Some time before this hearing, a meeting of all the policy holders was called by certain of theirtnumber, at one of the public- halls in Boston; this was not a meeting of the company called under its by-laws ; its officers did not issue the call, nor did they preside at or participate in the meeting. At this meeting a large number of the policy holders was present, it was voted to employ counsel, and a committee was appointed, who retained the petitioner, and he appeared in behalf of such policy holders, and filed objections to the auditor’s report. Some of the objections were overruled, and the rest reserved for the determination of the full court. The case was argued before the full court, and is reported 112 Mass. 192, the petitioner arguing in behalf of the committee of policy holders against the assessments. The court ratified the first assessment, and annulled the second. The amount of the assessment set aside was $478,328.77.</p> <p>The petitioner was not employed by the company in its corporate capacity, nor by its officers, nor by the receivers. The receivers, after paying losses and claims, had in their hands a balance of $244,014.62, which, after deducting expenses, was to be distributed among the policy holders. The judge also found that the petitioner rendered valuable service, for which a fair compensation would be $500; but, upon the facts found, ruled that he could not be paid out of the funds in the hands of the receivers, and declined to enter a decree to that effect.</p> <p>Upon the request of the petitioner, the judge reported the case for the consideration of the full court. If the ruling was right, the petition was to be dismissed ; otherwise, a decree was to be entered for the petitioner for $500, to be paid out of the fund.</p>

<p>On a libel for divorce on the ground of adultery of the husband, there was evidence that the husband, upon his wife’s discovery that he had contracted a venereal disease, and upon being charged with unfaithfulness, admitted it, in general terms, to be true; that the wife had no knowledge and was not informed of the particulars of his adultery in time, place or person with whom the offence was committed or its frequency; and that the wife after her discovery and before their separation several times occupied the same sleeping room with her husband; that there were prior acts of adultery of which the wife knew nothing until after the filing of her libel. Held, that the evidence would warrant a finding that she had condoned all his acts of adultery.</p>

<p>Bill in equity, filed May 25, 1875, by Emily Harwood against William E. Pearson, Mary A. Pearson, George J. Caldwell and Daniel A. Goodwin.</p> <p>The material allegations of the bill were that on October 16, 1873, William E. Pearson took the plaintiff’s money and promised to purchase a house for her; that on October 20, 1873, he purchased therewith an estate in Newburyport and caused the conveyance to be made to his wife, Mary A. Pearson, who took it with knowledge of the circumstances and notice; that on October 29, 1873, William E. Pearson and Mary A. Pearson executed a mortgage of the estate for the sum of $3500 to George J. Caldwell, who had notice that it was purchased with money so obtained from the plaintiff; that on June 26, 1876, Caldwell assigned the mortgage of $3500 to Daniel A. Goodwin, who took it in collusion with Caldwell and with notice; and that on February 7, 1874, William E. Pearson and Mary A. Pearson executed a mortgage of the estate to Daniel A. Goodwin for $1200, who took it with notice that the estate was purchased with money so obtained from the plaintiff. The bill prayed for a reconveyance, an injunction and general relief.</p> <p>The defendants William E. Pearson and Mary A. Pearson did not appear, and the bill was taken pro eonfesso as to them. The defendants Caldwell and Goodwin appeared and filed answers, admitting that they took the mortgages, denied that they had notice that they were wrongfully given, and alleged that they took them in good faith and in the ordinary course of business.</p> <p>Hearing, on the pleadings and proofs, before Mndieott, J., who made a decree, which, so far as material, was as follows:</p> <p>“ This cause came on to be heard upon bill, answers and oral proofs; and upon hearing thereof, and arguments of counsel of the parties, and the same having stood under advisement till this thirteenth day of January, 1877, it is now considered by the court, adjudged, ordered and decreed:</p> <p>“ That said William E. Pearson and Mary A. Pearson, his wife, do pay, settle and adjust with said defendant Daniel A. Goodwin the several sums secured by the assignment of said mortgage described in said bill, of twelve hundred dollars, given to said Goodwin by said Pearson and wife, upon the estate in Newburyport, described in said bill, and discharge, or cause to be discharged, by a good and sufficient instrument, delivered to the plaintiff, of said mortgage named in said bill, and also to release said estate from all claims and incumbrances made or suffered by said Pearson and wife, or either of them, so that the estate of the plaintiff described in said bill and covered by said mortgage may be relieved of all incumbrances whatever made or suffered by said Pearson and wife, except a mortgage of three thousand five hundred dollars made to George J. Caldwell, one of the defendants, by said Pearson and wife, and assigned to said Goodwin by said Caldwell, as described in said bill; and that all parties defendant to said bill do stand enjoined from selling or incumbering said estates until compliance with or performance of the terms of this decree, or such further decree as may be made in the premises.</p> <p>“ That said Goodwin, one of the defendants, do assign and transfer, by a good and sufficient deed to the plaintiff, said mortgage of three thousand five hundred dollars, given to said Caldwell, upon said estate in Newburyport, described in said bill and assigned to him by said Goodwin since the filing of said original bill, and release and discharge said estate of said complainant from all liens and incumbrances made or suffered by him, said Goodwin, except said mortgage of twelve hundred dollars given by said William E. Pearson and Mary, his wife, to said Goodwin, as described in said bill.</p> <p>“ That said cause do stand for such other and further decrees in the premises as law or equity may require.”</p> <p>The defendants Caldwell and Goodwin appealed from this decree. ,</p>

<p>An inhabitant of another state, who comes into this Commonwealth solely for the purpose of voluntarily appearing before a joint committee of the Legislature, to present and testify to a claim of his against the Commonwealth, and with the intention of returning home without unnecessary delay, is privileged from arrest on civil process, while so attending and returning.</p> <p>A person, who, while attending a legislative committee, is arrested, in violation of privilege, upon an execution issuing from this court, may be discharged on habeas corpus.</p>

<p>Contract on a promissory note for $105,333.33. Writ dated December 14, 1874, and entered at April term 1875, of this court.</p> <p>The plaintiff was and still is a corporation established and doing business in the State of New York, and the defendant a resident and citizen of Connecticut and doing business in that State. The defendant filed his answer at April term 1875, to wit, on May 6, 1875. The case was first placed on the trial list at September term 1876. During that term, to wit, on March 5, 1877, and before trial, the defendant filed by consent an amended answer, and on the same day filed a petition for the removal of the case into the Circuit Court of the United States for this district, together with a bond with sufficient surety in the form required by the act of Congress of March 3,1875. The plaintiff objected to the petition and bond, because they were not made and filed, as required by § 3 of that act, “ before or at the term at which said cause could be first tried.” It appeared from in spection of the records of this court, that several cases entered after this case at April term 1875, and one entered at September term 1875, were tried at April term 1876.</p> <p>' Upon these facts, Lord, J., reserved for the consideration of the full court the question whether the petition and bond were seasonably filed, so as to entitle the defendant to have the case removed into the Circuit Court of the United States.</p>

Contract against Linus M. Child and H. B. Crandall, on an account annexed, for a quantity of bricks sold to the defendants. Trial in the Superior Court, without a jury, before Bacon, J., who found for the plaintiff.

Petition to the Superior Court for a writ of review of a judgment recovered by the respondents against James C. Melvin, in an action of replevin of certain barrels of flour. The petition alleged that George H. Dupee, of whom the petitioners were the assignees in bankruptcy, owned the flour and left it in the possession of Melvin as a warehouseman.

Contract. Trial in the Superior Court, before Pitman, J,, who allowed a bill of exceptions in substance as follows: On January 20, 1876, a verdict was found for the defendant. On January 25, 1876, the plaintiff Dows, on a petition of his creditors, was adjudged a bankrupt in the District Court of the United States for the District of Massachusetts. On February 2, 1876, Dows suggested his bankruptcy, and prayed for a stay of proceedings.

<p>Contract on a recognizance entered into on June 18, 1875, under the Gen. Sts. c. 124, § 10, by Samuel G. Crowe as principal, and the defendant as surety, and conditioned that Crowe, who had been arrested upon mesne process in an action against him by the plaintiff, upon a judgment, should, within eight days, deliver himself up before some magistrate authorized to act, giving notice of the time and place thereof in the manner provided by law, and appear at the time and place fixed for his examination, 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. Writ dated December 7, 1875. Trial in the Superior Court, before Pitman, J., who reported the case, after verdict, for the consideration of this court, in substance as follows :</p> <p>The only question made at the trial was, whether there had been a breach of the recognizance upon the following facts: The debtor applied to a proper magistrate to take the oath for the relief of poor debtors, and due notice was given to the creditor to appear on June 22,1875. That meeting was duly adjourned to July 8, 1875, and thence to July 15, 1875, when charges of fraud were filed by the creditor, pursuant to the provisions of the statute; and on the same day the respective parties entered into and filed with the magistrate the following agreement in writing: “ It is agreed that the decision in this case shall turn upon the charges of fraud solely.” The hearing was then continued, hy successive adjournments, to November 27,1875, at 9 o’clock in the forenoon, at which time the creditor and his counsel, and also the counsel for the debtor, were present, but not the debtor himself, and the debtor’s counsel thereupon moved for a continuance, which the magistrate refused. At the expiration of the hour, the creditor moved for the debt- or’s default, and simultaneously the debtor’s counsel made a motion in arrest of judgment, and filed the same. The debtor was defaulted, and the motion in arrest of judgment was continued for hearing by the magistrate to December 3. On December 1, a motion was filed by the debtor, supported hy affidavits, to take off the default. On December 3, this and the motion in arrest were continued for hearing to December 9, and thence to December 10, neither the creditor nor his counsel appearing subsequently to the default. On December 10, the magistrate decided to remove the default, and adjourned the meeting to December 11, 1875, in order to give special notice thereof to tne creditor, which was done, when the debtor duly appeared, and, the plaintiff making no appearance at the end of the hour, the magistrate administered the oath and discharged the debtor.</p> <p>Upon these facts, the judge directed a verdict for the defendant. If the magistrate had jurisdiction and authority to discharge the debtor at the time, the verdict was to stand; otherwise, the verdict was to he set aside, and judgment rendered for the plaintiff.</p>

<p>If a case stated, submitted to the Superior Court, and, on appeal from its judgment, to this court, states evidence instead of facts, this court may discharge it, and order the action to stand for further proceedings in the Superior Court.</p>

<p>Habeas corpus of a person alleged to be unlawfully restrained of his liberty by the keeper of the jail at Salem in the county of Essex.</p> <p>At the hearing, before Colt, J., it appeared that the petitioner was on March 11,1877, convicted, before the Police Court of the city of Lynn, held by Nathan M. Hawkes, a special justice of said court, of the crime of larceny of five hens valued at six dollars, and was committed by said justice to the jail at Salem under a warrant signed by the clerk and under the seal of said court.</p> <p>It also appeared that Mr. Hawkes was duly elected a representative of the city of Lynn to the General Court for the year 1877; that he accepted the office, was duly qualified, and took and still holds his seat as a member of the Legislature.</p> <p>The petitioner contended that, by accepting the seat in the Legislature, Mr. Hawkes had vacated his office of special justice of said court, and that the commitment was therefore illegal. The judge admitted the petitioner to bail, and reserved the case for the consideration of the full court.</p>

<p>One good assignment of perjury will support a general verdict of guilty, although the other assignments in the indictment are defective.</p> <p>An indictment, alleging that the defendant falsely swore that at a certain time and place he saw J. S. write certain words, whereas in truth and in fact J. S. “ did not write at any time said words,” sufficiently charges perjury.</p> <p>On an indictment, for perjury, alleging that, at the trial of a certain indictment for forging certain bonds, the defendant falsely swore that he saw J. S. write a certain name in a hotel register, J. S. testified that he never wrote the name in thS hotel register, but that he signed the forged bonds, as surety, by the same name, which was fictitious. On cross-examination, the defendant asked him, “ When you signed ‘ the fictitious name ’ to the bond, did you swear before the magistrate that you had sufficient property to respond, and was that true 1 ” and also offered to show by the magistrate what J. S. said under oath as to his property, when he so signed. Held, that the defendant had no ground of exception to the exclusion of the evidence.</p> <p>An averment in an indictment that a motion for a new trial was heard by a justice of the Superior Court “at his chambers,” is sustained by proof that the hearing took place in a room used by that court for the transaction of business without a jury.</p>

<p>Indictment alleging that the defendant on June 9, 1876, at Brookline “ with force and arms, a certain building there situ ate, to wit, the dwelling-house of one Ignatius Sargent, did break and enter, with intent to commit the crime of larceny therein, against the peace of the said Commonwealth, and contrary to the form of the statute in such case made and provided.”</p> <p>At the trial in the Superior Court, before Putnam, J., the government called two witnesses who testified to a breaking and entering of the house described upon the day named; they were then asked to state at what time the entry was made. The defendant objected to this evidence, on the ground that, if the indictment charged any offence, it must be taken to be that of breaking and entering in the daytime, and that no evidence of the time could be introduced except upon preliminary proof that the time was computed according to mean time at Brookline on the day named. The judge ruled that the defendant could only be sentenced, under this indictment, if found guilty, for the ofence of breaking and entering in the daytime, but allowed the government to ask the question, without any further preliminary proof. The witnesses then stated that one of them looked at his watch at the time of the entry, and that it was then twenty minutes past eight o’clock in the evening. There was also other evidence as to the accuracy of the watch, and that the sun set at thirty-seven minutes past seven on that day, which was admitted against the defendant’s objection, but which need not now be stated.</p> <p>One of the witnesses for the government was asked, on his direct examination, what the defendant, when testifying in his own behalf, upon a former trial of this case, testified as to his connection with this transaction. The defendant objected, but the judge allowed the question to be put, and the witness stated that the defendant, at such former trial, testified that he was then at this place with the intention of taking away some lead. The defendant afterwards testified in his own behalf and as the witness had stated that he testified on the former trial.</p> <p>At the close of the evidence, the defendant asked the court to direct a verdict of acquittal, upon the ground that there was no competent evidence that the breaking and entering charged took place in the daytime; but the judge declined to direct a verdict as requested, and instructed the jury, that, upon the evidence, they were to say whether or not the offence was committed within one hour after sunset, mean time, at Brookline. '</p> <p>The evidence showed that the dwelling-house in question was owned by Ignatius Sargent; that it had been occupied by a tenant up to July 8; that on that day the tenant had moved out, so that it was unoccupied on July 9; that some of the tenant’s goods remained in the building at the time of the breaking, and the key of the dwelling-house was not delivered up to the said Sargent by the tenant until some days after. On this evidence, the defendant contended that the jury could not find that the dwelling-house was the dwelling-house of Ignatius Sargent. The judge ruled otherwise.</p> <p>After a verdict of guilty, the defendant moved in arrest of judgment, for the reason that “ the indictment charges no offence. under the laws of the Commonwealth of Massachusetts, and this court has no jurisdiction to sentence him under the same, as it contains no allegation that the breaking and entering set forth was committed either in the daytime on the one hand, or in the night-time on the other, and no averment showing whether it was committed in the daytime or in the night-time. The judge overruled the motion and, with the consent of the defendant, reported the case for the consideration of this court. If the rulings were correct, the verdict was to stand; otherwise, a new trial was to be ordered.</p>

<p>Petition of forty-nine legal voters of the towns of Sunder-land and Deerfield, praying for the appointment of commissioners under the St. of 1875, c. 175, entitled “An act relating to Sunderland Bridge.”</p> <p>Commissioners were appointed, who heard the parties, and made an award, in which they determined that the sum of $21,000 should be paid to the proprietors of the bridge “ as damages for laying out of said bridge, piers and abutments as a public highway, and for the land, toll-house and all the appurtenances thereof lying east of said bridge; ” and decreed that the towns of Sunderland, Deerfield and Whately were specially benefited, and that they and the county of Franklin should pay these damages in certain proportions, and also the expenses of keeping the bridge in repair.</p> <p>The report of the commissioners was directed to this court, and filed in the clerk’s office on February 9, 1876; and on the preceding day copies thereof were sent to, and received by, the proprietors of the bridge, the said towns and the county of Franklin.</p> <p>The county commissioners of the county of Franklin, on behalf of the county, appealed to this court at April term 1876, “ to a jury to be empanelled according to law for a rehearing and trial of all the issues, the determination and decision of which, by said commissioners, has been returned and certified to this court excepting so much of said award as fixes the amount to be paid to the proprietors of the Sunderland Bridge as damages for laying out of said bridge, piers and abutments and way as a public highway, and for the land, toll-house and all appurtenances thereof, lying east of the bridge, belonging to the said proprietors, from which no appeal is taken.”</p> <p>At the same term, the proprietors of the bridge moved that the award be accepted. Gray, C. J., dismissed the appeal, and accepted the award. The county commissioners appealed to the full court.</p>

Contract against E. C. Allen and Otis D. Sawin, on a bond, dated November 19, 1872, executed to the plaintiff by Allen as principal and Sawin as surety, and containing the following condition : “The condition of the above obligation is such that if the above bounden E. C. Allen, his heirs, executors or administrators shall well and truly pay, or cause to be paid, any and every indebtedness or liability now existing, or which may hereafter in any manner exist, or be incurred,…

<p>A bill in equity, brought by A. against B. and C., prayed for the delivery to A. of a certain contract, by which A. agreed at the option of 0. to convey to him or his assignee, for a price named and within a time named, certain partnership property which A. had recently purchased of C., alleging that B. had obtained an assignment of the contract from C., while he was acting as A.’s agent for the purchase of it from 0. The judge found that B. obtained the assignment as A.’s agent, and that A. was entitled to the benefit of it and to a transfer of it to himself from B., and also found that B., when he took the assignment, agreed to employ C., who did not know that B. was A.’s agent, but with no agreement as to price, length of time or kind of employment, and with no promise of any interest in the business, which B. was to carry on. Both B. and C. then asked for leave to amend their answers, and C.’s amendment, which was allowed, alleged that at the time of his assignment to B. it was understood that B. was to carry on the business and give him employment and an interest in it, that he did not know of B.’s agency, and, if he had, he would not have sold the partnership property to A. on account of unfriendly relations with him. B.’s amendment, which was disallowed, was substantially the same as C.’s, but alleged that the extent of C.’s interest in the business was to be subsequently determined between them. Held, on an appeal from a decree in favor of A. ordering the delivery to him of the contract, with costs against B., that the facts relied upon by B. and C. in their amended answers could be taken-advantage of by cross bill only.</p>

<p>Complaint under the bastardy act. At the trial in the Superior Court, before Gfardner, J., the complainant testified that the respondent had been improperly intimate with her during the year 1873 and down to September, 1874, and always at the house of one Barry, where during that time she lived; that the respondent was the father of her child, which was born on May 16, 1875, and that Barry first learned of her- condition at the time of the complaint. Upon cross-examination, the complainant admitted that said Barry had used violence towards her and that she was afraid of him.</p> <p>One Travis testified that she was a married woman, living separate from her husband; that she witnessed the intimacy between the respondent and complainant at Barry’s house, where she l carded with Barry a great part of 1874, and when not boarding there ; that she generally went there on Saturdays and remained till the following Monday; that she went to Barry’s house to do sewing and washing for wages which Barry agreed to pay and did pay her. „ The respondent offered evidence tending to show that Travis had made different and contradictory statements at other times,</p> <p>The respondent denied the charge against him, and that he had made any visits whatever at Barry’s house in 1874; and testified that at interviews with the complainant he charged her with making a false accusation at the suggestion of, and acting in concert with, Travis and Barry, the purpose of the three being to fix upon him the paternity of the child, and so extort money from him; that he went with Barry to Travis’s rooms and found Travis and the complainant there; that in their presence Barry asked him to drink ; that he did drink a number of times until he noticed that Barry was pretending to drink but was not drinking; that he then said they were trying to get him intoxicated, and was about to leave the room when Barry and Travis got between him and the door to prevent his going out; that the complainant said she wished to speak with him; that Travis and Barry immediately went into an adjoining room, and that he then had his first interview with her.; that Travis suddenly came back again without invitation, and proceeded to take part in the conversation; that he then charged them with attempting tc blackmail him, Travis advising him to settle the matter with Barry.</p> <p>The respondent also offered evidence tending to show that he was, during 1873 and 1874, sexton of a church, of which his-uncle was the pastor; that Travis, Barry and the complainant attended that church until January, 1874, when Travis and Barry were notified that they would not be allowed to attend further because they were living together improperly and habitually ; and that Barry then took an oath that he would scatter the McNulty family; that he knew of such threat.</p> <p>The respondent also called Toungman, the physician who examined the complainant at the time of the complaint, and who testified that she had never paid him any money whatever for services that he did not change a fifty dollar bill for her, which she had testified the respondent gave her, or for anybody, when he made the examination, but that a man, who appeared to be a relative of the complainant, and whose description answered to Barry’s, paid him $8 in scrip. The complainant offered no evidence that the man who paid the $8 was any other person than Barry, and Barry being present was not called by the complainant as a witness. The respondent called Barry as a witness, and he testified that he first knew of this accusation and of the complainant’s situation in December, 1874, on receipt of a letter from the complainant’s lawyer, which was produced.</p> <p>The complainant, on cross-examination, admitted that she had heard in 1874 from Barry that the respondent was a man of considerable property; and the respondent offered to show that Barry had stated that in 1874 or 1875, he went to the registry and procured copies of conveyances of land on record in the name of the respondent, although the respondent never had nor expected to have any business connection with Barry whatever. The respondent contended that this was evidence tending to show the purpose of Barry and the complainant in making the accusation, but the judge excluded the evidence, and the respondent excepted.</p> <p>The respondent also contended that the conduct of the complainant, Travis and Barry, and the above evidence, tended to show a conspiracy between them with the common purpose to falsely charge him with the paternity of the child, and to fabricate evidence to support the same.</p> <p>The respondent further contended that Travis was not telling the truth as to her visits to Barry’s house. The testimony of the complainant as to the visits of the respondent was confirmed by a large number of witnesses. The respondent offered to sho w that a police officer went to Barry’s place to replevy a coat, and that Barry said, “ I sha’n’t be here, but my wife will be here,” pointing to Travis, the complainant not being present. This was offered only for the purpose of showing improper relations between Barry and Travis, but the judge excluded the evidence,</p> <p>The jury returned a verdict of guilty: and the respondent alleged exceptions.</p>

Contract against a broker to recover back money paid to him for a note of $650, purporting to be signed by E. J. Brown, payable to the order of, and indorsed by, H. Mauthe. At the trial in the Superior Court, before Brigham, C. J., it appeared that the signature of Brown was a forgery, and that the defendant was a note broker and well known to be such by the plaintiff.

Tort for personal injuries caused by the plaintiff falling into a coal-hole in front of and connected with a store in Boston, of which the defendants were the lessees and occupants under a written lease.

Contract for a balance due on an account annexed for eerain cargoes of coal. At the trial in the Superior Court, before Pitman, J., it appeared that the plaintiffs were shippers of coal in New York city; that Wm. Wallace & Co., in Boston, during 1872, 1878, and as late as August, 1874, by permission of the plaintiffs, solicited and communicated to them many orders for cargoes of coal from consumers and dealers in and about Boston.

<p>Tort for personal injuries caused by a defect in Warren Avenue, in that part of Boston, formerly Charlestown. Trial in this court before Lord, J., who, after a verdict for the defendant, reported the case for the consideration of the full court in substance as follows;</p> <p>The plaintiff testified, that on October 12, 1874, he came to Boston on business, from Portland, Maine, where he then resided ; that, on the evening of the following day, he went in a street-railway car to Charlestown, and started at about nine o’clock in the evening to return to Boston, on foot; that he was familiar with the way, having, prior to February, 1874, lived several years in Charlestown, but had not passed over Warren Avenue for eight months before that evening; that he entered Warren Avenue from City Square, taking the sidewalk on the easterly side of the avenue, and, as he did so, he saw a wooden horse with a lantern attached to it, standing across the road-bed of the street within a rod or two of the entrance from the square, and at the same time noticed that the street was being repaved; that there was no guard or barrier of any kind across the sidewalk, and he supposed the guard across the road-bed was intended solely to prevent the passage of vehicles ; that he walked along, at his ordinary gait, looking ahead of him, seeing no obstruction or anything that suggested to him any danger in proceeding, and perceiving nothing unusual or peculiar in the condition of the sidewalk; that when he arrived at the crossing of the Fitchburg Railroad, which crosses Warren Avenue at right angles on a level grade, he stepped, from the end of the sidewalk abutting on the track, into a trench or excavation, and fell headlong, striking upon his face against one of the. rails of the track, receiving the injuries complained of.</p> <p>On cross-examination he testified, that, when he entered the a renue, he understood, from seeing the horse and light across it, that the avenue was undergoing repairs, and was closed to travel, but that he supposed the repairs were on the road-bed only, and that he did not look particularly to see whether the sidewalk was being repaired, and did not see any such repairing, but walked along as he ordinarily would upon any sidewalk, looking ahead; that he knew that, when a horse and light were put across one end of an avenue, it was customary to put another horse and light at the other end, to inclose the place shut off from travel, but that he did not look for any such horse or light, or see the horses and lights, hereinafter mentioned, across Front Street or in the street he was walking upon, on the other side of the railroad track; that there was no bend in the road, or anything to obstruct his view, so far as he knew, of the latter lights; and that when he stepped off the sidewalk, he did not look to see whether there were any lights ahead.</p> <p>The following facts also appeared from evidence introduced by the plaintiff : The excavation was about twenty inches deep, extending in a continuous line with the easterly sidewalk, under and between the rails of the track, from the end of the sidewalk abutting on one side of the track to the end of the sidewalk abutting on the opposite side of the track. The excavation was made a day or two before the accident happened, in the course of the repairs of the street, but by whom made, or for what purpose, did not distinctly appear. The street lamps were all lighted, and there was one at a distance of fifty feet from the place of the accident. The nearest guard of any kind was a wooden horse with a lantern attached standing about forty feet distant, on the opposite side of the avenue, across Front Street, a street entering Warren Avenue on the westerly side, by the side of and parallel with the railroad track. There was also a guard, with a lantern attached, standing across the road-bed of the avenue on the south or Boston side of the railroad crossing, but no guard across either sidewalk on that side. Between City Square and the railroad crossing, about thirty feet from the latter, Warren Avenue is entered on the easterly side by Water Street, but it did not appear in evidence whether or not there was any guard across Water Street. The distance from City Square to the railroad crossing is one hundred and eighty-six feet, and within those limits, on the easterly side of the avenue, were nine stores and four tenements for residence.</p> <p>The plaintiff also called one McLaughlin, who testified that he was the contractor employed by the city to perform the repairs, and that he was performing them under authority of the city; that the street was well blocked and lighted; that repairs had been made by him upon both the roadway and sidewalk, the roadway being repaved and the sidewalk rebricked and edge-stone relaid; that the repairs on the sidewalk were kept somewhat behind those on the roadway; and that the repairs on the roadway were then going on upon the Charlestown side of, and near to, the railroad crossing, and between the tracks; that he recollected that three or four courses of brick had been removed on the Charlestown side of the sidewalk, next to the end stone where the plaintiff stepped off, and that the end stone itself was canted, but otherwise the surface of the sidewalk was smooth and unobstructed, the edgestones were all in place excepting the end stone, and the sidewalk was substantially completed..</p> <p>Other witnesses for the plaintiff testified that within an hour and a half after the accident happened they went and made an examination of the alleged locality of it; that they walked along the easterly sidewalk of the avenue, from City Square to the railroad crossing; that the wooden horse, with a lantern at- ■ ached, stood across the road-bed, as described by the plaintiff, out there was no guard or signal of any kind upon the sidewalk; that the sidewalk was unobstructed and in completed condition up to about six or eight feet from the railroad crossing; that there the bricks had been laid, but not secured in place, and there was a space of about the width of three bricks next to the end stone abutting on the crossing, in which the bricks had not been laid; that the nearest guard or light was a wooden horse with a lantern attached, across the end of Front Street, on the opposite side of the avenue ; that, being unable to see the excavation distinctly, they detached the lantern from the horse and took it over to the place of the excavation, and by the light of it made their examination, finding the condition at the railroad crossing to be as hereinbefore described.</p> <p>Upon this evidence, at the request of the defendant, the judge ruled, as matter of law, that the evidence would not warrant the jury in finding a verdict for the plaintiff.</p> <p>If this ruling was correct, judgment was to be entered on the verdict; otherwise, a new trial was to be ordered.</p>

<p>Contract upon a promissory note for 17500, dated “ New York, June 27th, 1873,” payable “ on demand, with interest,” to the plaintiff, and signed bj the defendant.</p> <p>At the trial in the Cnp-orior Court, before Dewey, J., the defendant testified tha^g* consideration of the note was the return of a draft drawn by Lewis Rice upon the defendant, pay • able to the order of Rice, and indorsed by him; that both the draft and the note were made and delivered in New York, where the plaintiff resided; that at the time the draft was drawn and accepted and given to the plaintiff, which was in New York, it was agreed between Rice, the plaintiff and the defendant, that the plaintiff should take the draft at a greater interest than seven per cent, and give Rice the money; and that the plaintiff did pay to Rice for the draft the sum of $6908.33, the balance of $581.67 being reserved for interest.</p> <p>The defendant contended that by this agreement the original draft was tainted with usury under the laws of the State of New York, which were put in evidence, and was therefore void in the hands of the plaintiff. The defendant further testified that the acceptance of the draft grew out of an agreement between Rice and himself, by which he was to lend to Rice and another, the receivers of the Alabama & Chattanooga Railroad, the sum of $40,000, for which Rice was to pay him at the rate of two per cent, a month interest; that the draft was a part of the $40,000 ; that he had advanced previously a portion of the sum, for which he held the note of Rice; that, at the time he gave the note in suit, he agreed with the plaintiff to pay to him, as interest, the same per cent, allowed by Rice to the defendant, on a note given by Rice to the defendant; and a note signed by Rice, said to be in consideration of a portion of the sum of $40,000 aforesaid, was offered in evidence. The plaintiff objected to the introduction of this note, but the judge admitted it for the purpose of showing what the rate of interest reserved in the note was, which was two per cent, per month.</p> <p>It was in evidence that the defendant had paid nothing, either for principal or interest, on the note in suit, or on the original draft; and that, at the time the draft fell*due, the defendant desired further time to pay the amount thereof, and that the note in suit was then given by him and received by the plaintiff.</p> <p>The plaintiff contended that, inasmuch as the note in suit expressed interest on its face, without naming any percentage, the true construction of the paper was that ■ the rate should be the legal rate of interest in New York " it was incompetent to introduce evidence to control or va ; part of the note, by showing an oral agreement to pay at some future time a greater rate of interest; and that the draff, if purchased by the plaintiff of the holder, would not be tainted with usury, as between the parties thereto, even if the plaintiff bought it, or became the owner of it, under an agreement by which he received a greater rate of discount than the legal rate of interest.</p> <p>The judge instructed the jury that if the original draft was tainted with usury, of which the plaintiff had knowledge, then the note in question, which was given for the draft, would be affected by the usury, equally with the draft; that if an agreement was made between the plaintiff and the defendant, at the time the note in question was made, that it should be at a greater rate of interest than seven per cent, a year, which would be the rate under the laws of New York, although the note did not state the rate, it would be a defence; and refused to instruct the jury, as requested by the plaintiff, that the giving of the note, even if the original draft was tainted with usury, would purge it of fraud.</p> <p>The jury returned a verdict for the defendant, and, in reply to a question of the judge, stated that they found the original draft was void for usury, and was without consideration. The plaintiff alleged exceptions.</p>

<p>A creditor of a bankrupt does not, by consenting to a resolution for a composition under the U. S. St. of June 22, 1874, § 17, release a person liable as a surety for the same debt.</p>

<p>Contract upon an account annexed for goods sold and delivered. At the trial in the Superior Court, before Grardner, J., the jury returned a verdict for the plaintiffs, and the defendant tendered a bill of exceptions, the material parts of which were as follows:</p> <p>The defendant offered evidence tending to show that he did not order the goods, but that the contract was made by George W. Meserve with the plaintiffs, who did business in Boston.</p> <p>The plaintiffs contended that Meserve was of such pecuniary credit at the time of the sale that they would not have sold the goods to him, and, for the purpose of showing that Meserve’s credit was not good at that time, offered as a witness one Pond, who testified that he was a member of a firm in Boston in the same kind of business as the plaintiffs, and was acquainted with Meserve. In reply to the question, “ Did you know what his reputation for credit was ? ” he answered, under the objection of the defendant, “ With us, it was not good; ” and in answer to the question, “ In the trade in Boston, as far as you know, what was his reputation?” he answered, “It was not good.” On cross-examination, the witness said that he never heard Me-serve’s reputation for credit called in question except by members of his own firm.</p> <p>The defendant requested the judge to rule that the fact, that the witness Pond testified that he never heard Meserve’s credit questioned by other firms in the trade, rendered him an incompetent witness as to the general financial standing of the witness Meserve. The judge declined so to rule; but instructed the jury that they must take the testimony as given upon the stand, and consider it; that the evidence as to Meserve’s pecuniary credit was to be considered by them only upon the point as to whether the sale was made by the plaintiffs to Meserve or the defendant; that they must be satisfied from all the evidence that Meserve was a man whose credit was bad, that he had no financial credit m the community, and that his reputation as to credit was bad and reputation is what his neighbors say of him, what is generally talked of concerning his credit.</p> <p>The defendant, being aggrieved by the above rulings and refusals to rule, and the admissions and rejection of testimony, excepted to the same, and prayed that his bill of exceptions might be allowed.</p> <p>On this bill of exceptions the judge wrote and signed the following certificate, dated June 27, 1876: “The verdict in this case was returned into court, April 12,1876. On June 22,1876, and before the term had closed, the defendant presented to me the above bill of exceptions, the same not having been filed, with the following indorsement thereon: ‘ This may be filed as of proper date. Cyrus Cobb, Attorney for Plaintiffs.’ Ho application has ever been made to me to extend the time for filing this bill, and none has been granted. I have examined the above bill of exceptions and find them conformable to the truth. If, by the statutes and the thirty-sixth rule of the Superior Court, I am empowered, upon the above statement of facts, which I submit to the judgment of the Supreme Judicial Court, to allow the above bill, I do hereby allow the same, and for the reasons above set forth I order that the same be filed.”</p> <p>The court ordered the question, whether this court had jurisdiction of the exceptions, to be first argued.</p>

<p>Contract on an account annexed, containing a large number of items, for a rice mill and machinery to be used in connection with it, sold to the defendant, and for labor about the same. •</p> <p>The action, which was brought in this court, was referred to an auditor, “ to hear the parties and examine their vouchers and evidence, and to state accounts and make report thereof to the court.” The auditor made a report, in which he stated the account, but declined to pass upon the question whether the plaintiffs gave credit to the defendant or to C. S. Hunt & Company, of which firm the defendant was not a member, and whether the defendant was properly chargeable for the account or any part of it. The case was thereupon recommitted to the auditor to find and report whether or not the defendant was indebted to the plaintiff for any of the items stated in the report, and, if so, to what extent. The auditor made a further report that the defendant was indebted to the plaintiffs in a certain sum, being the amount of certain items set forth in the account before stated.</p> <p>Before the day on which the case was tried, the defendant moved the court to strike out that portion of the auditor’s report wherein the auditor' passed upon the liability of the defendant, or to recommit the same to the auditor with instructions, or in some other way to order that the auditor’s finding upon the question of liability should not b & primd fade evidence with the jury, upon the - ground that it was not within the province of the auditor, or the power conferred upon him by the order of the court; and that his finding therein, being read to the jury as primd facie evidence, was an infringement upon the defendant’s constitutional right to have the question of his liability determined by a jury. Oolt, J., ruled otherwise, and the defendant excepted. At the trial, the same judge, in his charge to the jury, gave full instructions as to the effect to be given to the auditor’s report as evidence, to which no exception was taken, except as above stated.</p> <p>It appeared in evidence that certain items of the plaintiffs’ account were originally charged to O. S. Hunt & Co., of New Orleans, to whom the machinery was consigned. One of the plaintiffs, in explanation of these entries, testified that his partner had charge of the books and correspondence, and that as soon as he, the witness, learned the machinery had been charged to O. S. Hunt & Co., he told his partner, and gave him directions to alter the same by an entry on the books, by which C. S. Hunt & Co. were credited with the whole amount of the account, and the defendant charged with the same amount. This was objected to, and admitted subject to the defendant’s exception.</p> <p>One of the plaintiffs was asked, by their counsel, whether he had any knowledge in reference to C. S. Hunt & Co., or their financial condition. The question was objected to by the defendant, and the witness was then asked if he knew C. S. Hunt & Co. at the time he furnished this machinery; to which the witness answered “ No.” This last question was admitted subject to the defendant’s exception, and the plaintiffs were then asked if they knew the defendant at that time. Subsequently, the defendant called a witness to show what was the financial reputation and standing of C. S. Hunt & Co. in Boston, before and at the time of making the charges; and, the question being excluded, excepted, upon the ground that it was competent, and that, if not so before, it was made admissible by the previous question put to the plaintiffs by their counsel.</p> <p>The defendant had, before the trial, called for the plaintiffs’ books of account and letter books, and the same had been produced and examined by the defendant; and, in order to show that the plaintiffs looked to C. S. Hunt & Co., caused to be read, by one of the plaintiffs, from the plaintiffs’ letter book, a letterpress copy of a letter of July 3, 1871, signed by the plaintiffs, to one Benjamin Allen, as follows : “ Mr. Benj. Allen, New Orleans. Dear Sir: We wrote you on Saturday with sketch. But we forgot to ask, what we want to know, whether they intend to start the mill up as soon as it is finished. This is important to us, for we want to get some money out of them, and we can go to work in a little different way, if they are not going to start right up. Let us know at once about this.” One of the plaintiffs was asked by his counsel to explain what arrangements were referred to in this letter to Allen, which were to depend upon the time when the mill was to be started in New Orleans, and allowed to testify, subject to the defendant’s objection, as follows: “We were short of money, and wanted to get some money from the defendant on this job. If they were going to start the mill right up, we thought to ask him for some payment on account; but if not, we proposed to ask him for the whole; because if they were going to start right up, they would have a chance to see what the mill was, and, from courtesy, we thought we would allow them to do that before we asked for a settlement."</p> <p>It was contended by the plaintiffs’ counsel in opening the case, as 1 ending to show the defendant to be the real contractor, that the defendant had insured the goods sent to New Orleans. The defendant was asked by the counsel “ if he, the defendant, insured the goods on his own account.” This being objected to, and the defendant’s counsel offering to show that he insured “for whom it might concern,” the court ruled that this could only be shown by the policies of insurance, but allowed the defendant to state that he charged the amount paid by him for' insurance to C. S. Hunt & Co., who paid him for it.</p> <p>The mill being constructed for a certain purpose, namely, to be set up in New Orleans, for the purpose of cleaning rice there, the defendant contended that there was an implied warranty that it was reasonably fit for this purpose. The plaintiffs offered no evidence as to the quality of the mill or its fitness, except the auditor’s report. In reply, the defendant called one Chick, a miller, to testify to defects in the mill and its performance, and the manner in which it crushed the rice in the fall of 1871, when first set up. After the defendant’s case was closed, the plaintiffs called a witness in rebuttal, and were allowed to show by him that the mill and machinery were properly constructed for the purpose of cleaning rice; that the Louisiana rice for the years 1870 and 1871, which this mill was used to clean, was soft and of a different quality from eastern or Carolina rice, and more easily crushed. The defendant objected that there was an implied warranty that the mill was fit for cleaning rice, and that it was for the plaintiffs to show, as a part of their case, compliance with that warranty on their part. The judge said: “ I think it is competent and proper. How could the plaintiffs know that you were going to put in or produce evidence of the imperfection of the machine?” The defendant’s counsel then said: “ You remember that we asked nothing about Louisiana rice.” The judge replied : “ It is a part of your case to show that this work was not sufficiently done to justify them in claiming the price. You put in evidence to show that it was not well done, that it pounded the rice, and so on.” The defendant’s counsel then asked: “ Does your honor say that it was a part of my case to show that it was not fitly done ? ” and the judge replied, “I do.” The defendant excepted. The witness was then examined on the character of the mill. There was no discussion, other than as above appears, as to the question of the burden of proof; and the matter was not further alluded :o during the trial.</p> <p>The jury returned a verdict for the plaintiffs; and the defendant alleged exceptions.</p>

Contract on an account annexed for work and labor. The answer set up, among other things, a special contract by the plaintiff to make three machines for the defendant; that the terms of this contract were not performed; that the machines were never completed by the plaintiff or accepted by the defendant ; and that the defendant had not received any benefit or advantage from the labor performed by the plaintiff.

Bill nr equity, filed October 24, 1876, by Thomas P. Proctor and William W. Warren, trustees under the will of William A. Heyer, against the widow of the testator, his mother and children, to obtain the instructions of the court.

Bill in equity, filed January 27, 1873, by the heirs of John C. Tu her, to restrain the defendant from building over a pas sage way, and from placing a wall in it, by which its width was diminished. Hearing before Morton, J., who reported the case or the consideration of the full court, in substance as follows : The plaintiffs own an estate fronting on Merrimac Street in Boston, and bounded on one side by the passageway in question.

Contract on a recognizance entered into under the Gen. Sts. c. 124, § 10, on July 8, 1875, by the defendant Williams as principal, and the other defendant as surety, and conditioned that Williams, 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…

<p>A testator, by his will, devised a portion of his estate in trust for the benefit of his son A. during his life, and directed the trustees, in default of issue of A., to “ convey and transfer the same to my heirs at law.” A. died leaving no issue and never having been married. B., a son of the testator, died before A., having in his lifetime been declared a bankrupt, and leaving a widow and children. Held, on a bill in equity brought, after the death of A., by the trustees for infractions, that B. took a vested interest in the trust estate, which passed to his assignee in bankrnptey; and that, in the absence of evidence of a reconveyance to B. by his assignee of this interest, a decree could not be made to distribute it, until it was ascertained to whom it bélonged.</p>

<p>Contract for breach of the covenants of seisin and right to convey, contained in a deed from the defendant to the plaintiff of a parcel of land in Dorchester.</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>The land was a part of the estate devised to the defendant by her husband, who .died in August, 1872, at the age of seventy, whose will, drawn by himself in January, 1870, was admitted to probate, and was in the words following :</p> <p>“ That my whole estate, real and personal, I hereby devise and bequeath to my wife Catherine, in her own name and for her own purposes, with only this condition — That on the marriage of my daughter Catherine to William Gray, Jr., I gave her by deed through him, two acres of land, considered as good as any I had, and that I wish at the death of my wife Catherine that sha should make an equal division of her estate to such children as shall survive her, or their representatives, and out of the portion that shall come to Catherine to deduct the value of two acres, at as high a valuation as any there is, and to let the amount be absorbed in the whole amount to be divided, and to place all the parts in trust for them, as many as there shall be; this of course is not to interfere with that part of her estate already in trust.”</p> <p>The testator left five children by his marriage with the defendant, all of whom are still living; and his estate consisted mainly of about nineteen acres of land in Boston, close to the thickly settled part thereof, the tax levy on which, the year of his death, was $1244, and which was of great value for building purposes, but yielded an income of only $350 a year to the testator, and now yields little or no income to the defendant. On this land was the testator’s dwelling-house and a small cottage, rented for $150 a year. The testator likewise had a house in Chelsea worth $3600, his household effects, and about $5000 in notes secured by mortgages. He was also seised, to the use of his wife, under the will of her mother, of another estate in Boston, referred to by the last words of the will, on which the tax levy for the same year was $234, and which yielded at that time an annual income of $2000.</p> <p>The testator’s income from all sources for many years prior to his death did not much exceed $1000 a year; but the defendant’s separate income of $2000 was received and expended by him, and both his own income and that of the defendant were together no more than sufficient to meet his current family expenses ; and, to meet his yearly increasing taxes, he was accustomed to sell parcels of his land as opportunity offered.</p> <p>The defendant, after her husband’s death, applied the $5000 in notes paid over to her by the executor, the whole income she could derive from the estate devised to her by the will, and her entire separate income, to the payment of her husband’s debts, the support of her family, and the payment of the yearly taxes on the land; but finding herself unable to do so without selling parcels of land, as her husband was wont to do, she sold the described premises to the plaintiff, to aid in the payment of the taxes for that year. It was also agreed that, before the bringing of this suit, the defendant offered the plaintiff a release of the premises, signed by all her children, which the plaintiff refused.</p> <p>It was also agreed (if it would be admissible as evidence) that many times before and after the making of the will and up to the time of his death, the testator told the defendant that each of his children was to have, like his daughter Catherine, two acres of his land at their marriage, and that often during the same period he spoke of his land coming soon into market and his family having plenty after his death.</p> <p>If the defendant was seised in fee simple absolute of the premises, or had an absolute right to convey, or if her deed with the release would make a good title, judgment was to be for the dé fendant; otherwise, for the plaintiff in the sum of $500.</p>

<p>Appeal by the defendants from the taxation of costs by the clerk of the Superior Court, in an action of contract.</p> <p>The writ was dated December 22,1874, and was returnable on the first Tuesday of January, 1875, and directed the officer “to attach the goods or estate of Henry F. Howe, Charlotte Howe and Charlotte A. Lyman, all of Boston,” “ to the value of five hundred dollars.”</p> <p>The officer’s return upon the writ was as follows; “ December 22, 1874. By virtue hereof I attached certain goods and chat-' tels at No. 7 Bulfinch Place as the property of the within named Charlotte Howe and Charlotte A. Lyman, and left at the last and usual place of abode of each a summons for their appear* anee at court. On the same day I attached certain goods and chattels at 58 Green Street as the property of the within named Henry F. Howe, and left at his last and usual place of abode a summons for his appearance at court. Service and travel 4.98. Keeper, (each place,) 75.00. Custody and oath, 30.00. llorse and carriage, .72. $110.70.” Annexed to the return was the certificate of the officer, under oath, that the expenses taxed in the return had been incurred and were reasonable.</p> <p>On June 29, 1876, the officer, by leave of court, amended his return by adding: “ Keepers 15 days in house, $45.00. Custody in house 15 days, $15.00. Keeper 1 day in store, $3.00. Custody, in store one day, $1.00. And he says that said fees actually accrued after the return of this writ to court, and that the same are just and reasonable.”</p> <p>The clerk allowed costs to the plaintiff for “service, $174.70,” being the aggregate of the above sums. The defendants objected to the allowance for “ keeper’s fees and custody,” and appealed from this taxation.</p> <p>At the hearing, on appeal, the plaintiff offered to prove, and the defendants admitted, that it had been the “ practice in the office of the sheriff of Suffolk for more than thirty years to tax the same fees for like services as those taxed in this case, and that said fees were reasonable. The Superior Court affirmed the taxation of costs; and the defendants appealed to this court.</p>

Replevin of forty-four barrels of flour attached by the defendant, as a deputy of the sheriff of Suffolk, on a writ against George H. Dupee. The action was defended by the assignees in bankruptcy of Dupee.

<p>Bill in equity, filed April 29, 1875, by the executors of the will of Jonathan S. Baker, against Boardman P. Backus, William H. Stoddard and J. D. Kellogg to restrain an action at law upon a certain promissory note, and to enforce in set-off a certain other promissory note, not yet due, made by the defendant Backus and payable to the plaintiff’s testator.</p> <p>Hearing upon the pleadings and a master’s report, before Gray, C. J., who reserved the case for the consideration of the full court. The facts appear in the opinion.</p>

Contract to recover the balance of two promissory notes, payable to the plaintiff or order, one for $3549.88, dated July 1, 1863, and the other for $7132.28, dated July 7,1863, both signed by the defendant and by one John D. Blanchard, since deceased. Upon each of the notes was the following indorsement: “ Received fifty dollars on this note, June 8, 1866.” Writ dated June 7, 1872. Answer, the statute of limitations.

<p>Contract brought for the benefit of George M. Chapman, apon a joint and several bond in the sum of $40,000, executed by John P. Wheeler, as principal, and the defendant and another, as sureties, and containing the following condition : “ If the said John P. Wheeler or his assigns shall well and truly pay, or cause to be paid, all demands, acceptances or indorsements and obligations for which said [Charles H.] Valentine is in anywise responsible for or on account of said firm of John P. Wheeler & Co., and shall hold and save said Valentine harmless and free from loss or inconvenience on account of any debt, claim, demand or liability of the firm of said John P. Wheeler & Co., then this bond shall be void, otherwise it shall remain in full force and effect.”</p> <p>After the former decision, reported 116 Mass. 478, the case was heard, upon the question for what sum execution should issue, in the Superior Court, by Aldrich, J., who found the following facts:</p> <p>On February 10, 1859, John P. Wheeler & Co. drew a draft on six months for $1074.74, payable to the order of Isaac L. Hunt, on Charles H. Valentine, which was accepted by Valentine, and on February 24, 1859, John P. Wheeler & Co. drew a draft on six months, for $1074.75, also payable to the order of Hunt on Valentine, and which was also accepted by him, the consideration of both drafts being goods sold by Hunt to John P. Wheeler & Co. George M. Chapman lent money "to Hunt, and held the acceptances as collateral security therefor.</p> <p>Prior to August 30, 1860, Hunt assigned his property to Samuel I. Hunt, in trust for his creditors, under the laws of the State of New York. In September, 1860, Chapman caused a suit to be brought on the drafts against Valentine, in the name of Samuel I. Hunt, in the Supreme Court for the county of New York, and recovered judgment therein, on September 21, 1860, for $1862.25, including costs.</p> <p>On February 18, 1861, Valentine assigned the bond to Chapman, as collateral security. On August 6, 1867, Valentine paid Chapman $500, and at that time made absolute the assignment of the bond made to Chapman as collateral security in 1861, and, in consideration thereof, Chapman procured the entry of satisfaction of the judgment, and released the same, further agreeing with Valentine, that, in case Chapman realized, upon the bond, the amount of the judgment, interest and costs, he should repay the $500 tc Valentine.</p> <p>Upon these facts, the defendant asked the judge to rule, as matter of law, that execution should only issue for nominal damages, or, at the most, for the sum of $500 and interest since August 6, 1867. The judge refused so to rule, but ruled that the plaintiff was entitled to have execution issue for the amount of the judgment and interest, and directed execution to issue for the sum of $3584.83 damages. The defendant alleged exceptions.</p>

<p>A judgment creditor, who has not taken out execution on his judgment, does not, by filing, within four months next preceding the commencement of proceedings in bankruptcy by the debtor, a bill in equity, under the St. of 1875, c. 235, to apply to the payment of his debt land conveyed by the debtor with intent to defraud the plaintiff as his creditor, obtain a lien on the land as against the assignee in bankruptcy.</p>

<p>Contract on a policy of insurance on the bark Trident and outfits, “ wherever she may go on a whaling voyage,” from September 5, 1871, to September 5, 1875, against perils of the sea “ and all other losses and misfortunes, which have or shall come to the damage of the said ” bark. The vessel was valued at $15,000, and the outfits at $29,000.</p> <p>At the trial in this court, before Colt, J., it appeared that the vessel sailed from New Bedford on September 5, 1871; that, while engaged in whaling in the Arctic Océan, her cutwater was injured by coming in contact with floating ice ; that afterwards the vessel went to Panama, where she was lost with her outfits on February 2, 1878.</p> <p>To prove that the loss was within the terms of the policy, the plaintiff put in certain evidence, the nature of which appears in the opinion.</p> <p>The plaintiff also called, as a witness, a ship-carpenter, and proposed to show by him the condition of the ship as to her soundness and strength when she sailed from New Bedford. The defendant objected, and the judge intimated that such evidence was unnecessary, if the defendant admitted the seaworthiness of the ship when she started on the voyage, and the defendant then admitted it. The defendant asked this witness, on cross-examination, the age of the ship, and stated that it was proposed to show that she was upwards of fifty years of age. The plaintiff objected, unless he was permitted to go into the whole question of the condition of the ship, which he declared his readiness to do; and offered to show that the ship had been rebuilt in 1854, and that she was stout and staunch when she sailed in 1871. The defendant offered no evidence of the condition of the ship, except the cross-examination concerning her age. The judge excluded the question.</p> <p>The judge directed the jury to return a verdict for the plaintiff, and reported the case for the consideration of the full court If upon the evidence the jury were justified in finding the verdiet for the plaintiff, judgment was to be entered thereon; otherwise, the case was to stand for trial, or judgment entered for the defendant. If the verdict was sustained, an assessor was to be appointed tc determine the amount thereof, allowing salvage of wreck and outfits, as the same should appear.</p>

<p>At the time of making a bargain for the sale of a lot of land fronting on a street, it was agreed that the land should be surveyed by a surveyor, giving the purchaser seventy-five feet on the street and beginning at a point two hundred and twenty-five feet distant westerly from the land of a third person, and stakes put down indicating the corners. This was done, and a deed was subsequently made in which the point of beginning and the length on the street were described as in the agreement, and the other bounds were also given. Following the habendum was a clause whereby the grantee agreed to put up and maintain, without cost to the grantor, suitable fences wherever the premises adjoined land of the grantor. The grantor at the time owned land fronting on the street on each side of the lot conveyed, and fences were erected by the grantee on the lines indicated by the stakes, either before or upon receiving the deed. After eighteen years’ occupation, the grantee discovered that the surveyor had made a mistake in the point of beginning, and that the stake had been placed and the fence built two hundred and twenty-six feet and six inches from the land of the third person ; and moved the fence eighteen inches towards the land of that person. Held, in an action of trespass against him for this act, that the extrinsic evidence above stated was competent, and would justify a finding that his true line was that indicated by the stakes.</p> <p>In an action of tort for breaking and entering the plaintiff’s close and removing a fence, the defendant’s bill of exceptions stated that the judge found that the damages to the fence did n"ot exceed $10, and the injury to the plaintiff by being deprived of the use of his land did not exceed $5; and assessed damages in the sum of $100. Held, that no ground of exception appeared.</p>

Petition to the Superior Court, filed October 18,1875, under the St. of 1846, c. 167, § 6,* for the assessment of damages sustained by the petitioner from the taking of the waters of Sudbury River by the respondent, under the St. of 1872, c. 177.

<p>Contract on two promissory notes, each for §750.00, dated September 1, 1873, signed by the defendant and payable to the plaintiff or order, one twelve months, and the other eighteen months, after date. Writ dated September 1, 1875. The answer alleged payment, and set up a contract under seal signed by the parties to this action, and alleged performance by the defendant of the terms thereof. This contract was dated September 1, 1873, and after reciting the giving of the notes above described, proceeded as follows:</p> <p>“ Now therefore said Smith hereby agrees to transfer to said Brown shares in the American Coal Barge Co. to the amount of $4000 par value as security for the payment of said notes. And in case of a failure by the said Smith to pay said notes, the said Brown is to take all of said $4000 of said stock in payment of said notes and in full satisfaction of all demands occasioned by said failure to pay said notes.”</p> <p>At the trial in the Superior Court, before Pitman, J., without a jury, the making of the notes and the execution of the agreement were admitted. It appeared that neither of the notes was paid at maturity; that when the last note fell due, the other remained unpaid; that the parties resided at Tisbury in this Commonwealth ; and that the American Coal Barge Company was organized at Bristol, in the State of Connecticut, under the laws of that state.</p> <p>To prove the performance of the agreement on his part, the defendant offered in evidence a written transfer, signed by him, dated Bristol, Conn., January 13,1874, and purporting to assign and transfer to the plaintiff one hundred and sixty shares of the capital stock of the American Coal Barge Company standing in the name of the defendant.</p> <p>He also offered in evidence, for the same purpose, a certificate of stock, purporting to be signed by the president and secretary of the American Coal Barge Company, and dated Bristol, Conn., September 9, 1872, certifying that E. T. T. Smith was the owner of one hundred and sixty shares of the capital stock of the American Coal Barge Company. This certificate stated the par value of each share to be $25.00, and bore upon its face the following clause: “ Transferable only on the books of said company by E. T. T. Smith, or his attorney, on surrender of this certificate.”</p> <p>The defendant also offered evidence that in July, 1875, and afterwards on the day of the date of the writ, after it was made and property attached, but before service upon him, he offered the transfer and certificate to the plaintiff, who declined to take them without giving any reason, and did not then nor since demand any different assignment of the stock; but who stated, at the time of the tender, that he would not take the stock any way, that he did not desire it, but wanted his money.</p> <p>The plaintiff objected to the admission of the transfer and certificate in evidence, but the judge admitted them.</p> <p>It appeared that, after the agreement was executed, this, together with the transfer and certificate, were placed by mutual agreement in the safe of a third person, where they remained until the defendant got them to make his tender.</p> <p>No evidence was offered of the genuineness of the signatures appearing on the transfer and certificate; but the defendant testified, against the plaintiff’s objection, that he received the certificate of stock from the secretary of the American Coal Barge Company, that it was all right as represented by the secretary, and that he had paid the full par value of the stock by a conveyance of land to the secretary. The judge admitted this evidence de bene, but held it to be immaterial in the decision of the case.</p> <p>The plaintiff also objected that the transfer and certificate did not show any transfer of the shares from the defendant to the plaintiff, and that there never had been any transfer of the shares as provided in the agreement.</p> <p>It appeared that no transfer other than that above stated was ever made, and that the plaintiff never demanded or requested of the defendant any other assignment.</p> <p>Upon the above evidence, the judge held that it was competent to find that the plaintiff, by an absolute refusal to take the stock had waived any other or further tender of performance or assignment on the part of the defendant, and found as a fact that he did so waive and dispense with any further performance, and found for the defendant; and the plaintiff alleged exceptions.</p>

<p>The provision of the twenty-first article 'of amendment of the Constitution of the Commonwealth, which requires every representative in the General Court to have been, for one year at least next preceding his election, “ an inhabitant of the district for which he is chosen,” is satisfied by his having dwelt or had his home within the district for that time ; and a person, otherwise qualified, who, having been an alien, has been naturalized within the year, is eligible as a representative.</p> <p>Under the Constitution of the Commonwealth, an alien must be naturalized before he can become eligible as a member of the House of Representatives.</p>

<p>On May 8,1877, the following order was passed by the House of Representatives, and on May 10 transmitted by the Speaker to the Justices of the Supreme Judicial Court, who on May 14 returned the subjoined answer.</p> <p>Ordered, that the opinion of the Justices of the Supreme Judicial Court be requested upon the following questions of law, viz.:</p> <p>First. Is a special justice of a municipal, district or police court such a judge as the eighth article of amendment to the Constitution declares shall not have a seat in the House of Representatives ?</p> <p>Second. If the first question is answered in the affirmative, does the acceptance of the legislative vacate the judicial office ?</p>