Volume 123 — Massachusetts Reports

<p>The first case was an action of contract for money had and received to recover $1311.57, alleged to have been paid by the plaintiff to the defendant by mistake. Answer, a general denial.</p> <p>At the trial in the Superior Court, before Wilkinson, J., without a jury, the plaintiff offered to prove the following facts :</p> <p>In February, 1874, the defendant made a written agreement with the plaintiff to sell and convey to him, at the rate of $27 a square foot, a piece of land on Summer Street in Boston, bounded and described as follows: “ All that lot of land bounded southerly on Summer Street, lying between the land sold by said corporation to Browning and Pickett and the land now or late of Thorndike, and extending northerly from said Summer Street to land of trustees under the will of Joshua Sears.” The defendant caused the land to be surveyed, and informed the plaintiff that it contained seven thousand one hundred and twenty-six square feet, and that the price at $27 a square foot, under the agreement, was $192,402. The defendant also caused a deei to be executed conveying the land to the plaintiff, in which the consideration was stated to be $192,402, and the land was bounded and described as follows : “ All that parcel of land in said Boston, bounded southwesterly on Summer Street, 55.81 feet; northwesterly in part on land now or late of Thorndike and partly on land of trustees under the will of Joshua Sears, 145.73 feet; northeasterly on land of the said trustees under the will of Joshua Sears, 41.34 feet; and southeasterly on land of said corporation, by a line parallel to the northwesterly line of Hawley Street, as recently established, and thirty feet distant therefrom, 148.90 feet. Containing seven thousand one hundred twenty-six square feet.” The covenants in the deed were limited to the lawful claims and demands of persons claiming by, through or under the grantor. The line of the land upon Summer Street was, in fact, eight inches shorter than that given by the deed, and the contents of the land were in consequence 48.57| square feet less than those given by the deed. The line in which the plaintiff c.ontended that this error occurred is measured from the land of Thorndike, on the northwest, to the line thirty feet distant from the side of Hawley Street, and parallel therewith on the southeast; and the plaintiff fixed the boundary of the land of Thorndike by the southeasterly face of a wall. The plaintiff paid the defendant $192,402, and the deed was delivered to him in March, 1874. About two months after-wards the plaintiff prepared to build on his land, and then first discovered the deficiency in measurement and quantity.</p> <p>The defendant contended that the land of Thorndike was eight inches northwesterly from the place fixed by the plaintiff, that is, on the northwesterly face of the wall; that the length of the line upon Summer Street and the contents of the land were correctly given by the deed; and that the whole of the land covered by said wall had been the property of the defendant, and passed to the plaintiff by the deed; and asked the judge to rule that the action could not be maintained, because it was an action to try the title of real estate. The judge so ruled, and ordered judgment for the defendant.</p> <p>No question was raised as to the correctness of the measurements of the line on Summer Street, between the points taken by the defendant as its bounds, or as to the computation of the area from those elements. The question was whether the land of Thorndike extended to the northwesterly or southeasterly side of the wall.</p> <p>The plaintiff alleged exceptions to the foregoing ruling.</p> <p>The second case was a suit in equity, in which the bill alleged the same facts, and prayed that the defendant might be compelled to pay to the plaintiff the sum of $1311.57, and interest, and for further relief. The answer contained a demurrer, that the plaintiff was not entitled to relief, for the following reasons : 1. That there was no error or mistake in measurement or calculation alleged, but only a partial failure of title, against which the plaintiff was not protected by the agreement or deed. 2. That the matters alleged in the bill might be tried and determined at law. 3. That the court had not jurisdiction of a bill praying for the payment of a sum of money, except as ancillary to a prayer for specific performance, or some other relief.</p> <p>Hearing before JDevens, J., who reserved the case on the bill and demurrer for the consideration of the full court.</p>

Petition by Mary D. K. Buckley and Julian G. Buckley, minor children of Juliette A. Buckley, appearing by their next friend, for partition of a parcel of land in Boston, of an undivided third part of which their mother Juliette A. Buckley died seised. Katharine L. Buckley, the step-mother of the petitioners, was the only respondent who appeared.

Replevin of 771 barrels of cement attached by the defendant, as a deputy of the sheriff of Suffolk, on a writ against a firm doing business in Boston under the name of Downing & Co. At the trial in the Superior Court, before Wilkinson, J., it appeared that the plaintiff had sold the cement to Downing & Co., and claimed the right to stop it in transitu, on account of the insolvency of Downing & Co. The judge reported the case for the consideration of this court.

<p>Under the St. of Missouri of December 10, 1855, § 18, providing that “after the Hannibal and St. Joseph Railroad shall be completed, equipped and in operation, said road shall be required to pay into the treasury of the state the surplus proceeds of all land sales, or such other securities as may be provided by the company, in a deed of trust or otherwise, in a place to be adopted by said company, to raise funds to complete the road,” only so much of such proceeds is to be paid to the state as remains after deducting the amount of all expenses and obligations lawfully incurred by the corporation in completing, equipping and putting in operation its railroad, including sums advanced by the corporation to trustees for expenses of the management, surveying and disposing of lands granted by Congress and included in deeds of trust, and for taxes thereon, and to satisfy reclamations on bad titles and other incidental expenses; sums paid, either in money or in stock, to discharge the bonds issued by the corporation, and secured by deeds of trust, and the interest on such bonds; and sums paid and obligations incurred to other parties than the state to raise money to complete the road and not secured by mortgage thereof.</p>

Tort for personal injuries sustained by the plaintiff by the falling of a wall upon him.

Two petitions to the Superior Court, under the St. of 1871, e. 882, § 7, for a jury to revise assessments of betterments, made by the board of street commissioners of the city of Boston, the first upon that part of the petitioner’s estate situated at the corner of Kneeland Street and Washington Street, and the second upon that part situated at the corner of Bates Place, on account of the widening of Kneeland Street.

<p>A person, who is constructing a brick wall abutting upon a highway, may be liable for negligence in not providing safeguards or barriers to prevent the accident of a brick falling, to the injury of a passing traveller, although there is no negligence of his servants, who are breaking and handling the bricks.</p>

Contract on an account annexed, for ice sold and delivered between April 1, 1874, and April 1, 1875. Answer, a general denial. At the trial in the Superior Court, before Wilkinson, J., without a jury, the plaintiff offered evidence tending to show the delivery of the ice and its acceptance and use by the defendant from April 1, 1874, to April 1, 1875, and that the price claimed in the declaration was the market price.

<p>Bill in equity, filed February 2,1877, against the Marginal Freight Railway Company and the Union Freight Railroad Company, alleging that the plaintiff, at July term 1875 of the Superior Court for the county of Suffolk, recovered judgment against the Marginal Freight Railway Company, for money due from it to him before May 6, 1872, upon which judgment execution was duly issued, and remained unsatisfied; that the charter of the Marginal Freight Railway Company was repealed or attempted to be repealed, by the St. of 1872, e. 842, passed May 6, 1872, at which time it owned certain railroad tracks in the streets of Boston; that the Union Freight Railroad Company was incorporated by the same statute, and by virtue thereof took these tracks; that the Marginal Freight Railway Company, being dissatisfied with the estimate duly made of its damages by reason of such taking, filed a petition to the Superior Court for a jury to estimate such damages, which application was still pending; that the interest of the Marginal Freight Railway Company in its claim for damages could not he come at to be attached or taken on execution in an action at law against it; and that the Marginal Freight Railway Company neglected to press its application for a jury.</p> <p>The prayer of the bill was that the Marginal Freight Railway Company might be ordered to prosecute, or to permit the plaintiff to prosecute, that petition to final judgment; that the Union Freight Railroad Company might be ordered to pay to the plaintiff so much of such judgment as might be recovered against it as might be necessary to satisfy the plaintiff’s debt; that the defendants might be restrained from discontinuing' or settling the action without first paying to the plaintiff the amount of his debt; and for further relief.</p> <p>The Union Freight Railroad Company demurred, on the ground that the plaintiff’s judgment against the Marginal Freight Railway Company was void, and that the bill could not be maintained against either defendant, because the charter of that corporation was repealed more than three years before the recovery of the judgment or the bringing of the bill; and for want of equity.^</p> <p>The Marginal Freight Railway Company filed an answer, containing a demurrer for want of equity.</p> <p>Hearing before Endicott, J., who reserved the case, on the bill tad demurrers, for the consideration of the full court.</p>

Contract on an account annexed for the price of a cargo of coal. Writ dated November 18, 1874. Answer, payment by the note of George B. James & Co. At the trial in the Superior Court, before Aldrich, J., the following facts appeared in evidence : The plaintiffs were shippers of coal in New York, and the defendants were dealers in coal in Portland, Maine, under the firm name of James & Williams.

Petition, under the Gen. Sts. c. 150, to enforce a mechanic’s lien for labor performed and furnished upon four dwelling-houses owned by the respondent,, and situated in that part of Boston formerly Dorchester.

Tort for the conversion of machinery. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, on an agreed statement of facts in substance as follows: The plaintiff claims title as assignee of one Cunningham, un • der a composition with his creditors; the defendant, as mortgagee of certain real estate used by Cunningham as a shoe-shop, in which the machinery was situated and used by Cunningham.

<p>The board of aldermen of the city of Boston has no authority, since the enactment of the St. of 1871, c. 382, to assess a betterment tax for the widening of a street ordered before the passage of that act.</p>

<p>Contract on a recognizance entered into, under the Gen. Sts. c. 124, § 10, on January 5, 1876, by the first named defendant as principal, and the other defendants as sureties, and conditioned that O’Connor, who had been arrested on an execution in favor of the plaintiff, should, within thirty days from the time of his arrest, deliver himself up for examination before some magistrate authorized to act, giving notice of the time and place thereof in the manner provided by law, and appear at the time fixed for his examination, and from time to time until the same was concluded, and not depart without leave of the magistrate, making no default at any time fixed for his examination, and abide the final order of the magistrate thereon.</p> <p>The case was submitted to the Superior Court, and, after judgment for the defendants, to this court, on appeal, on an agreed statement of facts in substance as follows:</p> <p>Within the thirty days, O’Connor caused a notice of his desire to take the oath for the relief of poor debtors on February 4,1876, at seven o’clock in the forenoon, in Marlborough, in the county of Middlesex, to be served on the plaintiff, on February 3, 1876, at fifteen minutes after four o’clock in the afternoon, by leaving a true and attested copy thereof at the last and usual place of abode, in Framingham, of the officer who made the arrest. Neither the plaintiff nor its agent or attorney resided oi had a place of business in the county of Middlesex. The distance from the place of service to the place of hearing was. not' less than ten miles. O’Connor appeared before the magistrate at the time and place stated, remained until the expiration, of’ the hour, and was then discharged, neither the plaintiff nor. any. one in its behalf appearing.</p>

Bill in equity for the assignment of a mortgage to the plaintiff, or that the same might be declared to be held in trust for him, and for an injunction to restrain the defendant from transferring the same.

Bill in equity by Nathan Morris and the Tremont National Bank of Boston against Josiah Bacon, for the assignment to the bank of a mortgage made by Morris to Abraham Jackson. Hearing upon the pleadings and proofs before Bevens, J., who made a decree for the bank, from which the defendant appealed. The facts appear in thé opinion.

Bill in equity by Elizabeth F. Strong against Abraham Jackson, his assignees in bankruptcy, Edwin E. Kingsley, the Tremont National Bank, the First National Bank of Boston and John McQuaid, to redeem a mortgage.

<p>Contract for money had and received. Trial in the Superior Court, before Qardner, J., who, at the request of the plaintiffs, reported the case for the consideration of this court, in substance as follows : 1</p> <p>The plaintiffs had been engaged for many years in Boston, under the firm name of Cyrus Carpenter & Co., as manufacturers of ranges and furnaces. They had known Abraham Jackson and William Carpenter for several years, and had had business transactions with them. William Carpenter was a builder and owned some real estate and other property. Jackson had acted as his legal adviser and held a power of attorney authorizing him to collect debts due William Carpenter and to sell and convey his land. It was alleged by the defendant, but denied by the plaintiffs, that William Carpenter had also given Jackson a power of attorney to make and execute promissory notes and to use his (Carpenter’s) name in any business in which he (Carpenter) was engaged; and there was conflicting evidence on this point. William Carpenter had upon some occasions left with Jackson promissory notes, signed by him in blank, which Jackson had negotiated with the plaintiffs and others. Prior to the transaction in question, the plaintiffs had exchanged notes with Jackson and William Carpenter, sometimes for the accommodation of the former and sometimes for their own accommodation. About February 15, 1875, Jackson and William Carpenter obtained from the plaintiffs, for Jackson’s accommodation, three promissory notes made by them amounting in all to about $6400, one of which was for- the sum of $2625. The plaintiffs received, from Jackson and William Caipenter, notes signed and indorsed by them in exchange for these notes. The notes were not identical in form but aggregated the same amount. A few days afterwards Jackson called alone at the plaintiffs’ place of business and stated to Cyrus Carpenter that he desired to get another note from the plaintiffs for $2625, and that he could place it at less rate of discount than the former note. Cyrus Carpenter thereupon gave him a note for $2625 signed by the plaintiffs, dated February 15, 1875, payable to the order of William Carpenter in four months from date, and Jackson gave him in exchange a note for the same amount, date and time, signed by himself to the order of William Carpenter and indorsed by William Carpenter. In April, 1875, Jackson left Boston, and was subsequently adjudged a bankrupt. William Carpenter also failed and was adjudged a bankrupt. There are only nominal assets in his estate; and no dividend has been declared out of it. The plaintiffs proved against William Carpenter all of the claims held by them, including the note for $2625, given in exchange for the second note furnished to Jackson, and Cyrus Carpenter was appointed one of the assignees of his estate.</p> <p>Shortly before the plaintiffs’ second note for $2625 matured, the plaintiffs were notified that the same was held by the defendant, and thereupon wrote to the defendant that it would not be convenient for them to pay the note at maturity, but that they would pay twenty-five per cent, in cash and give a note for the remainder. A few days after its maturity, namely, on June 26, 1875, one Bush, the president of the defendant, called at the plaintiffs’ place of business and brought the note with him. A settlement was made by the payment of $704.95 in money, and the giving of a new note - by the plaintiffs for $1968.75, payable in four months from June 18, 1875. The plaintiff testified that he was familiar with the signature of William Carpenter, but that, in the conversation with the president of the defendant bank, nothing was said about the indorsement, and that he did not in fact examine it. Bush testified that Cyrus Carpenter turned the note over and looked at the indorsements. Bush was not familiar with William Carpenter’s signature. Shortly after Bush had left the plaintiffs’ counting-room, Cyrus Carpenter handed the note to his sen, one of the plaintiffs and bookkeeper of the firm. The note purported to be indorsed by William Carpenter and by Abraham Jackson. The son immediately expressed the opinion that the pretended signature of William Carpenter was a forgery. The note was soon afterwards shown to William Carpenter, who pronounced his signature a forgery. The plaintiffs thereupon notified the defendant that the supposed indorsement of William Carpenter was forged, that they would require the defendant to return the money paid, and they should not pay the note for 11968.75.</p> <p>The plaintiffs subsequently filed a petition in bankruptcy, and effected a composition with their creditors for ten cents on the dollar, in accordance with the provisions of the bankrupt law.</p> <p>There was evidence tending to prove that the indorsement of William Carpenter to the note aforesaid was forged, that he did not know of the making of the note; and it appeared that the note was placed or passed about the time of its date by Jackson through a broker to the defendant, who discounted and took and paid the amount of the same in good faith, and there was evidence tending to prove that the proceeds of the note were used by Jackson for his own purposes.</p> <p>Upon this evidence the judge ruled that the action could not be maintained, and directed a verdict for the defendant. If there was any evidence upon which the action could be maintained, the verdict was to be set aside and the case stand for trial.</p>

<p>An agent of an undisclosed principal may be treated as the principal.</p> <p>If a person pays a promissory note through mistake, supposing the signature upon the note to be his genuine signature, he may, on discovering it to be forged, maintain an action to recover back the money paid, if he is not guilty of loches whereby the situation of the other party is changed to his injury.</p> <p>The situation of a person, to whom money is paid by mistake on a forged note, is not changed to his injury by the fact that, on payment, he transfers to the payer a mortgage which he received as collateral security for the note, and which, with tho note, he took in good faith, supposing the note to he genuine, the mortgage having been given as security for another note, of which the forged note was a copy.</p>

Contract on a policy of insurance against perils of the seas, whereby the defendant insured the plaintiffs $5000 on the ship Coringa, valued at $25,000, and $3000 on her freight “ on board or not on board,” valued at $15,000, on a voyage therein described.

Tort for breaking and entering the plaintiff’s close. Writ dated August 14, 1874. At the trial in the Superior Court, on appeal, the jury, by agreement of parties, returned a verdict for the plaintiff, and Pitman, J., reported the case for the determination of this court. The facts appear in the opinion.

<p>A firm, of which an infant was a member, gave certain checks in payment for goods, and the infant supposed, when he became of age and until after the firm’s dissolution, that the checks, which were duly protested for non-payment, were paid. At the dissolution, which was seven weeks after the infant became of age, during which time he drew money from the firm for his personal use, some of the goods were unsold, and his partners agreed with him to assume and pay all the firm’s debts. Held, that the above facts would not justify a finding that there was a ratification by the infant, after he came of age, of his promise to pay the checks.</p>

<p>Contract to recover $350, the amount of an appropriation voted by the defendant at a town meeting on April 12, 1875, under an appropriate article in the warrant, “ for the purpose of paying Bartholomew Cusick back state aid.”</p> <p>Trial in the Superior Court, before Grardner, J., who directed a verdict for the defendant, and reported the case for the consideration of this court. So much of the report as is necessary to the understanding of the point decided was as follows:</p> <p>The plaintiff introduced evidence tending to show that he enlisted into the military service of the United States on November 3,1861, (at which time he resided in Brookline,) as a member of Company A, Thirty-second Regiment Massachusetts Volunteers ; that he was duly mustered into service as a member of said company, and served therein until February 9,1863, when he was honorably discharged for disability; that he resided in this state; that he was, and had been ever since said service, partially disabled by sickness contracted therein, for which he was in receipt of a pension from the United States; that he was claimed by the town of Brookline as part of her quota under a call of the President for volunteers, and allowed as such by the state; and that he was credited by the United States to this state as part of said quota under said call.</p> <p>There was evidence that he was paid state aid by the town of Brookline in 1861, but to what amount did not appear; that he was paid $156 as state aid by the town in 1862, of which $144 was reimbursed by the state, and that he was paid $15 in 1863, which also was reimbursed; that, after the payments in 1863, he made no application for state aid until January 18, 1875, when he did make application to the selectmen, which application was duly transmitted by them to the state authorities, and was produced at the trial by the state auditor ; and that, since the date of the application, he had received $2 a month as state aid. Except as aforesaid, he had received no state aid from any town or state.</p>

Contract for breach of an agreement. Writ dated December 22, 1873. On the same day personal property of the defendant. was attached, and, on the next day, the defendant gave a bond with sureties to dissolve the attachment. After the former decision reported 120 Mass. 37, the case was tried in the Superior Court, without a jury, before Brigham, C. J., who on October 16, 1876, found for the plaintiff in the sum of $420.52.

<p>Where money is lent to a married woman, upon an agreement that it shall be applied to the use of her husband or his firm, she is not liable on a note given by her therefor prior to the St. of 1874, c. 184.</p> <p>Kridence that a firm was composed of the husband of a married woman, to whom, money was lent, and of the son-in-law of the lender; that she was in no need of money except to assist her husband, and that the lender had no inducement to lend it except to aid the firm, which was in financial difficulty; that, during the negotia tian, the question whether she ought to “ sacrifice ” her property for her husband's or the firm’s benefit was discussed; that the money was handed to her, and she in» stantly, without counting it, handed it to her husband, who gave it immediately to his partner; and that the latter at once deposited it to the credit of the firm; will justify a finding that the money was lent upon an agreement that she should apply it to the use of her husband or his firm</p>

Bill in equity by James Foster and Mary Hersey against Joseph O. Wightman and William I. Goodrich to restrain the sale of a parcel of land under a power contained in a mortgage from Hersey to Wightman, and assigned by him to Goodrich.

<p>An erasure by a testator of certain clauses in his will, with the intention of revoking them only, is a valid revocation of such clauses, but not of the whole .will; and the property thereby covered, in the absence of a contrary intention, passes under a general residuary clause in the will.</p>

Replevin of chattels alleged .to belong to Seth E. Pecker, Frank O. Dame and John H. Swasey. Writ dated June 23, 1875. Held: the first as executrix of the will of her late husband, and the second, which ran directly to herself, she being entitled thereto under the will.

<p>If a certificate of shares in the capital stock of a corporation is taken without the owner’s knowledge, and, together with a forged power of attorney, is delivered to an auctioneer for sale, to whom the corporation issues a new certificate in the name of the auctioneer, who delivers it to an innocent purchaser for value, to whom, in turn, on its presentation, the corporation issues a new certificate, the owner is entitled, on a hill in equity against the corporation and purchaser, to a decree to com* pel the corporation to issue to him. a certificate for his shares and to pa; him the dividends thereon, but not to a decree against the purchaser; and, upon such a bill, the court cannot decide, unless by consent, whether the corporation is liable to the purchaser.</p>

Coíttragt on a policy of insurance, dated March 1, 1870, on the life of Moses E. Bigelow in the sum of $10,000, issued by the defendant, “in consideration of $539.70 to them paid,” “and of a like sum to be paid to them or their duly authorized agent on or before the first day of March at noon, in each year during the term,” “ for the use of the assured, and, in case of his death before the expiration of this policy, for his wife, Irene E. Bigelow,” and payable to him at the…

Bull in equity, filed August 9, 1876, against James P. McNamara and M. J. Waldron, copartners, containing the following allegations: That on the day therein mentioned the plaintiff and the defendants made the following agreement: “ This agreement, made this first day of January, eighteen hundred and seventy-five, by Eliphalet N. Badger, of Chelsea, Mass., and James P. McNamara & Co., of Chicago, 111., witnesseth, that the said Badger agrees to act for said McNamara & Co., as…

<p>Bill in equity by Francis A. Hall and Henry A. Whitney, executors of, and trustees under, the will of Andrew T. Hall, to obtain the instructions of the court.</p> <p>The will, dated July 9, 1875, and admitted to probate January 3,1876, after bequeathing and devising the residue of the testator’s estate to his wife for life, and, after her death, to his daughter absolutely, contained, besides other provisions not material to be stated, the following:</p> <p>“ I also give and bequeath to the said Francis A. Hall and Henry Austin Whitney, if they or either of them shall be living at the time of my decease, the sum of five thousand dollars, in trust. The whole shall form a fund which shall properly be invested, and to accumulate until my said grandchildren last mentioned respectively attain the age thirty-five years, when a proportionate part of said fund and accumulation (dividing by the number of said grandchildren then living who shall not have received their share) is to be paid over to each of them ; and in case of the last beneficiary, before attaining the age of thirty-five years, I direct that the remainder of said fund and accumulation be considered as part of the residue of my estate, and be subject to the disposition of the same heretofore made.” The will contained no prior mention of any grandchildren.</p> <p>The bill alleged, and the answers admitted, that the testator died on November 22, 1875, leaving a widow, Lydia Y. Hall, a daughter, Mary A. H. Munroe, who was born on or about August 19, 1829, and was a widow, (her husband having died in December, 1870,) and seven grandchildren, and presented the question whether the bequest to the executors as trustees was not void for uncertainty and remoteness. Hearing upon the bill and answers before Devens, J., who reserved the case for the consideration of the full court.</p>

Two ACTIONS OF CONTRACT, each upon an account annexed, for services on board a vessel, of which the defendant was the master.

Motion in the Superior Court to accept an award of three arbitrators upon a submission, entered into before a justice of the peace under the Gen. Sts. c. 147, § 1, of the following demand: “ The right of R W. Morville to recover from the American Tract Society the sum of $5000 alleged to have been given in the month of March 1869, by said Morville (under the assumed name of ‘ Union ’) to said society, and by said society to have been received and accepted upon certain…

<p>An agreement to take all the leather of a certain thickness forming part of a large pile, from which it was afterwards to be selected by the seller, the receipt of part or the leather by a common carrier, not expressly authorized by the buyer to accept it, and the acceptance by the buyer of that part but with no intention to perform the whole contract, are not a sufficient acceptance to take the sale out of the statute of frauds.</p>

<p>In replevin of whiskey, brought by A. against C., there was evidence that A. sold the goods in Cincinnati to B., who did business in Boston; that, by the terms of the agreement, the whiskey was to be delivered and regauged on the cars at Cincinnati, and, on receipt of an invoice of the whiskey, B. was to send to A. at New York his promissory note for the price, on three months’ time, dated at Cincinnati as of the date of the delivery on the cars there; that the whiskey was put on the cars, and an invoice and a form of a note, dated at Cincinnati, on ninety days, were sent to B.; that B. did not sign this note, but pledged the goods to C. for a valuable consideration, failed in business, and two days afterwards sent a note to A. in New York, dated at Boston, and payable three months after date; that A. replevied the whiskey in Boston on the day the note arrived in New York, and two days after-wards tendered the note to B. in Boston, who refused to receive it. Held, that the evidence would warrant the jury in finding that the sale was upon a condition which was broken, and that there had been no waiver of the condition; and that, if so, B. acquired no title to the goods which he could transfer to C.</p> <p>The omission of a judge to observe, in his charge to the jury, upon a particular point not suggested at the trial, cannot, if no misdirection is shown, be taken advantage of under a general exception to his whole charge, although all the evidence is stated in the bill of exceptions.</p>

Contract against the makers of the following instrument: “ February 16, 1871. $53,000.

<p>Tort for personal injuries occasioned to the plaintiff, by the falling in of the sides of a sewer upon which he was at work while in the employ of the defendant, who was a' contractor. Trial in this court, before Lord, J., who reported the case for the determination of the full court on the question whether the plaintiff, upon the evidence put in and offered, should become nonsuit, or the case stand for trial. The nature of the evidence introduced and offered appears in the opinion.</p>

Bill in equity, filed December 27, 1876, to restrain the defendant from removing a chimney in which the plaintiff claimed certain easements. Upon the filing of the bill, a temporary in junction was granted. At the hearing, before Colt, J., the following facts were admitted by the parties : About a hundred years ago, a block of three houses was erected on the corner of Clark Street and Hanover Street, in Boston.

<p>The first case was a bill in equity, filed February 24,1876, against Deming Jarves Hastings and Sally Ann Dwight, for specific performance of the following agreement, under seal, executed and delivered by them to Lydia T. Hastings :</p> <p>“ Know all men by these presents that we the undersigned, Deming Jarres Hastings, son of Sally Hastings and grandson of the late John Jarres of Boston, and John Dwight and Sally Ann Dwight, his wife, daughter of Sally Hastings and granddaughter of said John Jarres, all three of us of or late of the town of Medway, county of Norfolk and State of Massachusetts, hare entered into the following agreement which witnesseth, viz.:</p> <p>“ That whereas by the last will and testament of John Jarres iabs of Boston, county of Suffolk and state aforementioned, dated March 26th A. D. 1819, and duly prored and allowed at a Probate Court for said county of Suffolk on the 8th September, 1823, the real estate belonging to him situated on the easterly side of Newbury Street in said Boston was bequeathed to Deming Jarres and his heirs to hold in trust for Sally Hastings, and at her death then in trust for the children of said Sally Hastings who shall be living at the time of her decease and their heirs forever, in fee simple, they to take and hold the same as tenants in common. And whereas the aforementioned will of said John Jarres may be so interpreted as to exclude the children of the late Samuel Jarres Hastings (who was also a son of said Sally Hastings and grandson of said John Jarres) from participation in the aforesaid Newbury Street estate, and whereas it is our sincere belief that the said John Jarres never intended to ex-elude any of the descendants of said Sally Hastings from participation in said property, but on the contrary he did intend a just and equal distribution of said property amongst the descendants of said Sally Hastings :</p> <p>“ Therefore, in consideration of the foregoing, and the further .onsideration of the sum of ten dollars paid to each of us by Lydia T. Hastings, guardian of the children of the late Samuel Jarres Hastings aforementioned, the receipt whereof is hereby acknowledged, we have renounced, and do by these presents renounce for ourselves and our heirs forever, any and all claim which we hare' or might have by any construction of the aforesaid will to the portion of the aforesaid estate, which would hare belonged to said Samuel Jarres Hastings had he lived, in favor, of Ms children and their heirs forever, confirming it to - them;, and will defend the rights of said children and their heirs to the-aforementioned property against all and every other claimant under the said John Jarves, so that they can take possession and hold the same as fully and completely as though their father had survived the said Sally Hastings :</p> <p>“ And furthermore, as it may so happen that the children of either of us, the said Deming Jarves Hastings and John Dwight and Sally Ann Dwight his wife, may be placed in the same position as that now held by the children of the late Samuel Jarves Hastings : We now by these presents, each to the other, do bind ourselves and our heirs forever to waive any right to a greater portion of the before mentioned estate, which might accrue in consequence of the death of either of us, than would fall to us should we survive the aforesaid Sally Hastings, but to confirm to the children of each of us the proportion of said estate in the same manner as though we altogether with the said Samuel Jarves Hastings had survived the said Sally Hastings.</p> <p>“ In confirmation of the foregoing agreement we hereunto set our hands and seals this the twenty-ninth day of June, A. D. 1852.”</p> <p>The second case was a bill in equity, filed March 4,1876, to reform the above agreement.</p> <p>The two cases were heard together before Morton, J., on motions for issues to be framed for a jury, and the following facts appeared: 9</p> <p>In 1823, John Jarves of Boston died, and his will, dated March 26, 1819, contained, besides other provisions not material to be stated, the following : “ I give and devise to my son Deming Jarves and his heirs my real estate on the easterly side of Newbury Street in said Boston, to hold to him and them, in trust to permit, suffer and sufficiently authorize and empower my daughter Sally Hastings and her assigns to have, receive and take the rents and issues thereof to her and their own sole and separate use and benefit during her natural life,” “ and from and immediately after the decease of my said daughter, then in trust for all and every the child and children of said Sally Hastings who shall be living at the time of her decease, and their heirs forever in fee simple, they to take and hold the same as tenants in common. All the rest and residue of my estate I give, devise and bequeath unto my son Deming Jarves, be the same real, personal or mixed, to have and to hold the same to him his heirs and assigns forever.”</p> <p>At the death of John Jarves, Sally Hastings and three children of hers, namely, Deming Jarves Hastings, Sally Ann Hastings, now Sally Ann Dwight, and Samuel Jarves Hastings, husband of Lydia T. Hastings, were living. On June 26, 1849, Samuel Jarves Hastings died, leaving two children by Lydia T. Hastings surviving, namely, Samuel Jarves Hastings, Jr., and Catharine Hastings. At the death of Samuel Jarves Hastings, there were living three children of Deming Jarves Hastings, and six children of Sally Ann Dwight, by her husband, John Dwight, now deceased. At the time the agreement was executed, on June 29, 1852, all these children of the parties were living.</p> <p>On December 21,1858, Samuel Jarves Hastings, Jr., died, and on December 19,1861, Catharine Hastings died, both being unmarried, without issue and intestate. On November 28, 1875, Sally Hastings died, leaving Deming Jarves Hastings and Sally Ann Dwight, her only children surviving. Thereupon Lydia T. Hastings requested Deming Jarves Hastings and Sally Ann Dwight to convey and confirm to her one undivided third part of the estate devised by the will of John Jarves to Sally Hastings for life, which they refused to do.</p> <p>Deming Jarves Hastings and Sally Ann Dwight contended that the agreement was made in its present form by mistake and did not express the agreement or carry out the intention of the parties at the time it was made; and that it was a voluntary agreement without consideration. It was admitted that they received no pecuniary consideration from Lydia T. Hastings, either personally or as guardian.</p> <p>The judge reserved the case, upon the question as to the construction of the agreement, for the consideration of the full court. If the construction was as contended by Deming Jarves Hastings and Sally Ann Dwight, both bills were to be dismissed; otherwise,both cases were to stand for further hearing.</p>

Bill in equity, filed December 1, 1873, by Robert D. Evans and Levi Ladd against Charles M. Clapp for the settlement of the affairs of a partnership. Hearing upon the pleadings, a master’s report and exceptions thereto, before JEndieott, J., who reserved the case for the consideration of the full court The facts appear in the opinion.

<p>If an insurer refuses to accept an abandonment of a stranded vessel, but takes possession for the purpose of getting her off, repairing and restoring her to the owner, and, in good faith and with reasonable diligence, proceeds to make what he deems full repairs, at a cost less than half her value when repaired, after making the usual deductions, and tenders her in this condition to her owner, who refuses to receive her, but makes no objection to the sufficiency of the repairs, and points ont no deficiencies, there is no acceptance of the abandonment, and no constructive total loss of the vessel, although it afterwards appears that the repairs were not fully made.</p> <p>A vessel was chartered to proceed to a certain port “ with all convenient speed,” and there take a cargo on board and transport it to another port. Her owner effected insurance on the freight. The vessel, while on her way to the port of lading, was Stranded and abandoned to her underwriters, and an abandonment was also made to the underwriters on the freight. The underwriters on the vessel got her off, «•paired her at a cost less than half her value, and tendered her to the owner, who refused to receive her. After the abandonment, the owner refused to have any thing to do with the vessel, and wrote to the charterer that the vessel was a wreck and in the hands of the underwriters, and that he could not proceed as per charter party. Held, that, there being no total loss of the vessel, and the owner having voluntarily abandoned the charter party, he was not entitled to recover the insurance on freight.</p>

<p>If the owner of a mill holds it in fee simple at the time of the institution of a complaint for flowing land, under the Gen. Sts. c. 149, and mortgages it pending the proceedings, a levy and sale on execution, issued on a judgment recovered on such complaint, which describe the interest taken and sold as an equity of redemption, pass no title.</p>

Contract. At the trial in the Superior Court, before Brigham, C. J., the plaintiffs proved the following agreement, signed by the defendant: “ Newton, Mass., November 21st, 1873.

Writ op entry to recover a parcel of land in Truro. The tenant filed the following : “ And now comes said Freeman and defends his right, and says he did not disseise the said inhabitants of the town of Truro, in manner and form as they in said writ and declaration have supposed, and of this he puts himself upon his country.

<p>Contract. In May, 1876, the case was referred by agreement of parties, under a rule of court, to Henry W. Paine, esquire, who made an award in favor of the plaintiff; and the defendants moved to set aside the award for the following reasons:</p> <p>“ 1. Because the referee was not entirely disinterested, but, having been associated with Elias Merwin, esquire, for several years, as counsel for Goodrich, the plaintiff in this action, in a very important and bitterly contested lawsuit, in which said Goodrich’s character was involved, was thereby necessarily biased in his favor, and unable to decide with absolute impartiality, whether said Goodrich’s testimony, on which his case before the referee mainly rested, was true or false.</p> <p>“ 2. Because the defendants were not informed that the referee had acted as counsel for the plaintiff, and consented to his appointment, because they were informed and believed that the referee had never been connected in any way with the plaintiff, and did not discover the connection which had existed between them till after the award was made.”</p> <p>At the hearing on this motion, Colt, J., found the following facts: “ On June 22, 1866, one Winthrop W. Chenery brought an action against John Z. Goodrich, the plaintiff in this action, to recover damages for an alleged false and malicious libel, published by Goodrich concerning him. Goodrich retained Mr. Merwin as his counsel in that action, by whom the case was argued on demurrer before the full court, and subsequently, the case coming on for trial in the year 1870, Mr Paine was retained as senior counsel by Goodrich, at the suggestion of Mr. Merwin, and as such conducted the trial of the case before a jury, and afterwards argued it in the spring of 1871, on exceptions taken by the defendant at the trial. One of the questions presented to the jury was, whether the statements contained in the libel complained of were true, or made in good faith, and the trial excited much personal feeling in the parties. The ease was settled by agreement of the parties in September, 1871, and after that date the referee had not acted as counsel for Goodrich in any matter, or had any personal relation with him. These facts were not known to the defendants or their counsel when they agreed to the appointment of Mr. Paine as referee. The defendants’ counsel testified that, if these facts had been known to them, they would not have advised, nor would the defendants have consented to, his appointment. The defendants’ counsel, before signing the agreement for the reference, asked Mr. Merwin, (who was the counsel of Goodrich in this case, and who assisted in the trial before the referee,) whether Mr. Paine was connected with or interested in Goodrich as counsel or other* wise, and was informed that he was not, from which the de* fendants’ counsel inferred that the referee never had acted as counsel for Goodrich, and so stated to the defendants, and the defendants consented to the reference upon this understanding. Neither the defendants, nor their counsel, had any notice or knowledge that the referee had acted as counsel for Goodrich until after the award was made, when the defendants discovered it by accident. Goodrich was a material witness for himself before the referee in the trial of this case. The defendants did not contend that Mr. Merwin intended to mislead the defendants’ counsel in regard to the relation which had existed between the referee and Goodrich, or that he intentionally concealed it from them, or that the referee was chargeable with improper conduct in the hearing before him, or was conscious of any bias or prejudice in the case.”</p> <p>The judge ruled that it did not necessarily follow, from the fact that the referee had acted as counsel for the plaintiff in the case and under the circumstances above stated, that he was so far biased in favor of the plaintiff as to render his award invalid; and, as there was no evidence to show that the referee, was biased, found as a fact that he was not. The judge ruled that" no cause was shown for setting aside the award, and accepted it. The defendants alleged exceptions.</p>

<p>Replevin. In the Superior Court, on appeal, the defendant filed a motion to dismiss the action, on the ground, among others not material to be stated, that there had been no legal service of the writ upon the defendant. Bacon, J., sustained the motion on all the grounds assigned; and the plaintiff alleged exceptions.</p>

<p>Tort for the conversion of a cornet attached by the defendant, a deputy sheriff, on a writ against the plaintiff, dated Au - gust 21, 1875.</p> <p>At the trial by jury in the District Court of Southern Berkshire, the plaintiff testified that he was a tinner by trade and had worked at the business for twenty-eight years, and still worked at it; that he earned about $15 a week by such trade ; that he was also a musician, and had worked at that business about fifteen years; and that he always gave a preference to the business of a musician. Another witness testified that the plaintiff worked for him as a tinner and that he also worked at the business of a musician, when he had opportunity. The plaintiff had owned the cornet about three months prior to the attachment, and in that time had played on it about fifteen times and had earned some money. When he played on the cornet he earned on an average about $5 a night. He played for balls, parties, and wherever he had an opportunity. The value of his tinner’s tools was not over $25, and the value of the cornet was $25, and these were all the tools the plaintiff owned in both kinds of business.</p> <p>The defendant contended upon the evidence that the plaintiff was not entitled to recover; and asked the judge to rule that “ a cornet of a debtor whose business is that of a tinner, and who earns his living principally by such business, is liable to attachment, although he occasionally earns small sums with such comet; ” but the judge declined so to rule, and instructed the jury that if they found that the plaintiff, although a tinner by trade and working principally at that trade, earned money as a musician with his cornet, that was a separate business and trade, and such comet was one of his tools in trade, and would be exempt from attachment, provided that such comet, together with his tinner’s tools, did not exceed $100 in value.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions. In the Superior Court the exceptions were overruled; and the defendant appealed.</p>

<p>Contract against Cyrus A. Stowell, Timothy D. Richardson and Charles Stowell, upon the following promissory note, in which the words in Roman letters were printed, and those in italics written, and purporting to be signed by the defendants, and by George W. Bardwell, whose name appeared first among the signers:</p> <p>“§^67. Greenfield, Mass. Sept. 29th, 18%.</p> <p>“ For value received, I promise to pay the Greenfield Savings Bank, or order, four hundred and sixty-seven dollars, on demand, with interest at the rate of seven per centum peí annum, payable semiannually on the first days of June and December of each year.”</p> <p>Cyrus A. Stowell and Richardson alone appeared, and filed several answers, each containing a general denial. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court on appeal, on agreed facts in substance as follows :</p> <p>George W. Bardwell obtained from the plaintiff a printed blank form of a promissory note, such as the bank was accustomed to use. He then wrote in the figures “ 67 ” at the top of the note, leaving a space of three tenths of an inch between the mark “ $ ” and these figures, and also wrote in the words “ sixty-seven ” before the word “ dollars ” in the body of the note, leaving three inches of the blank space before the words “ sixty-seven” unfilled; signed the note thus filled out, and presented it to the defendants, who, at his request and for his accommodation, signed the note as a note for sixty-seven dollars, and with no knowledge or expectation that the note was to be altered, given or negotiated for any other or larger sum, and without any authority to him to alter or increase the amount of the note.</p> <p>Bardwell then, without the knowledge of the defendants, fraudulently wrote the figure “ 4 ” before the figures “ 67 ” at the top of the note, and “the words “ four hundred and ” before the words “ sixty-seven ” in the body of the note; and on the note so altered, the plaintiff, without any notice of the alteration, lent to Bardwell the sum of $467. The note was then in the condition it now is, and there was no mark or indication of al teration.</p> <p>If, as matter of law on the foregoing facts, the plaintiff was entitled to recover on the note, judgment was to be entered for the plaintiff ; otherwise for the two defendants who appeared.</p>

Tort for injuries occasioned by an alleged defect in a highway, which the defendant was bound to keep in repair. At the trial in the Superior Court, before Putnam, J., the plaintiff’s evidence tended to show that on the evening of October 18,1875, he was travelling on the highway in question with a horse and carriage, and was driving with due care; that the highway was a county road running over a mountain.

Bill in equity against the administrators and heirs at law of James M. Boss, alleging that James M. Boss died on May 19 1873, having his domicil in this Commonwealth, intestate and without issue; that he left a large estate consisting of both real and personal property, a large part of which was situate in this Commonwealth ; that Ross and his wife, Cynthia B., on December 13, 1870, resided in the county of Erie and State of Pennsylvania, and on that day executed an…

<p>In an action for the use of a derrick, upon evidence being put in by the defendant that a block and chain on the derrick broke in using it, the plaintiff may put in evidence that it is a usual thing for blocks and chains on any derrick to break when in use.</p> <p>A claim for the use of a chattel for a certain time is supported by proof that, during that time, the defendant had it in his possession, with the right to use it whenever he pleased.</p>

Indictment for an assault with a pistol upon one Paul. Trial in the Superior Court, before Bacon, J., who, after a verdict of guilty, allowed a bill of exceptions, the substance of which appears in the opinion.

Indictment for receiving stolen goods. At the trial in the Superior Court, before Dewey, J., there was evidence that one Salvini had been convicted of stealing the goods in question, which were boots and shoes ; that the defendant lived in the same house and occupied the same room and bed with Salvini for a certain period during which the larcenies were supposed to have been committed ; that Salvini professed to be an honest and lawful dealer in boots and shoes, and brought,…

<p>Indictment 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 December 21,1876, a certain tenement in Northampton for the illegal sale and illegal keeping of intoxicating liquors. Trial in the Superior Court on June 20, 1877, before Bacon, J., who allowed a bill of exceptions in substance as follows:</p> <p>One of the witnesses for the government testified that he had bought liquor at the defendant’s house, could not say when he bought it, but thought he bought it within a year; and that there was a hearing before the magistrate. The district attorney asked the following question: “Whether at the time you speak of, that you testified before the magistrate, you testified of the purchase of this same one half pint of gin? The defendant objected, but the judge allowed the question to be put for the purpose of fixing the time of the sale. Other witnesses testified to this sale, and fixed the time of it.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Indictment against Robert Scott and James Dunlap, for breaking and entering, on January 26, 1876, the banking house of the Northampton National Bank, at Northampton, with intent to commit larceny therein. Trial in the Superior Court, before Bacon, J., who allowed a hill of exceptions in substance as follows :</p> <p>1. At the opening of the trial, the district attorney moved that Edward B. Gillett, esquire, be allowed to assist the government in the prosecution of the case. Objection being made by the defendants, Mr. Gillett stated to the court that, as he understood it, he was present simply by procurement of the district attorney, without any assurance or expectation of compensation from any private source, and that he would be as free to act impartially in the matter as he should be and as he was when he was acting in the judicial office as district attorney. In answer to interrogatories put by the defendants, it appeared that he was first applied to, to act in the trial, by letter from the private counsel of the bank, and that he afterwards received a letter from the district attorney requesting his assistance. The counsel for the defendants said, inquiringly, “You don’t suppose that you stand in such circumstances that you could possibly receive, for the labor you may spend here, any present from the bank ? ” to which Mr. Gillett (facetiously) replied: “ Well, sir, I should not care to have my virtue put to any very strong test, your honor, upon a subject of that sort, of course.” To the further question, “ Whether he would not consider it an extremely mean bank if it did not pay him? ” he said, “ I have not formed any opinion upon that subject.”</p> <p>The judge thereupon said that, unless there was something further, he would allow Mr. Gillett to act as desired by the district attorney ; it being understood that the district attorney retained the responsible management of the case.</p> <p>2. It appeared in evidence that, on the night of January 26-27, 1876, the Northampton National Bank was broken into, and that a large number of valuable securities were stolen from it. It also appeared in evidence that, on the same night, the house of John Whittelsey, the cashier of the bank, was entered by five masked burglars, with dark lanterns, when the different inmates of the house were taken from their several rooms and led into the room occupied by Whittelsey; that, after remaining there a short time, Whittelsey was ordered to dress, and was taken out of the room into the upper hall and there guarded for some time, and then taken down stairs, when the combination of the lock on the vault of the bank was extorted from him by two men whom he claimed to identify as the defendants. Upon his direct examination, Whittelsey stated that he identified them from their general appearance, height, size and form, and especially from their voices; that their voices impressed him more than anything else; that he suspected they might be arrested some time, and he watched them closely; that he noticed particularly Scott’s broad shoulders. On cross-examination, the witness stated that there was nothing peculiar about the height, size and form of the defendants differing from other men in the community, excepting that the defendant Scott had a peculiar shrug about the shoulders ; that he had noticed this shrug sev eral times at the jail since Scott’s arrest, but that he would not undertake to pronounce him guilty from this shrug alone; that he would undertake to identify them by the voice; and, to the question whether there was any peculiarity about the voice, he said he could not answer. The defendant Scott was then asked to stand up and repeat something, which he did, and the witness said he was suppressing his voice. Scott was then told by his counsel “ to speak it right out.” The judge then said, “ I do not think this is competent.” The counsel for the defendants contended that he had a right to have the peculiarities of the defendants’ voices pointed out by the witness, and that for this purpose the voices themselves were competent to be introduced. The judge ruled otherwise.</p> <p>3. The government contended, and, against the objection of the defendants, was allowed to show, by one William D. Edson, a witness for the government, that, in the year 1873, Edson, the two defendants and one William Connor formed a general conspiracy to rob banks; that it was a part of their plan and understanding that, in their travels through the country, they should obtain information of such banks as were insecure and feasible for robbery, and should report to each other the results of their observation; that in the summer of 1875, Edson, who was in the employ of Herring & Company, of New York, safe makers, and had been sent by them to Northampton on business of the company, first informed himself of the practicability of robbing the Northampton National Bank, and reported the same to the defendants at Wilkesbarre, Pennsylvania, and then furnished the defendants the means of duplicating the keys of the vault lock; that this was done in pursuance of their general conspiracy before mentioned.</p> <p>4. The witness Edson was allowed, against the objection of the defendants, to testify as to the details of preparations made</p> <p>or robbing the Northampton National Bank in pursuance of said conspiracy; and he testified, among other things, that after meeting the defendants at Wilkesbarre, and giving them information about the dial and lock of the Northampton National Bank, which was about August 5,1875, he, with Scott and Dunlap, returned to New York together, and that Scott and Dunlap there practised with the duplicate keys, which Scott had made, on a sample dial which Edson furnished them; that Scott and Dunlap agreed to go to Northampton in a day or two, which they did; that they told him, Edson, they had found where Whittelsey the cashier lived, in what part of the house, and how many there were in the family, &c.; that afterwards there was another meeting, when Connor was also present, and Scott, Dunlap and Connor all agreed to go to Northampton; that they afterwards said they had been there; that they had watched Whittelsey’s movements, and those of the watchmen of the bank and of the town; that the witness, at their request, went to Northampton and saw the president and vice-president of the bank, and found that the dials were out of order, and went back to New York and told the defendants and Connor that they had better stop work then, as the bank would be more carefully guarded than usual; that this was in September, and the work was abandoned, and nothing further was done till November; that afterwards, Scott, Dunlap and Connor wanted the witness to come to Northampton and see about the Northampton National Bank; that the witness did so on November 22, and obtained impressions of the key at the bank, and, on his return to New York, gave the defendants the impressions; that he also afterwards found out the combination and gave it to the defendants ; that he had five or six interviews with the defendants before the robbery in January. The defendants contended that the attempt to rob the Northampton National Bank in the summer of 1875 was abandoned, and that the evidence of that attempt was inadmissible. The government contended that the attempt was only temporarily suspended, and was resumed again m November. The judge admitted the evidence.</p> <p>5. The government offered to show, by the witness Edson, that there were words and expressions, well understood by the defendants and Connor and Edson, by which they communicated with the witness Edson and with each other in the prosecution of their work under their conspiracy, through the column of the New York Herald, entitled “personals,” and the witness Edson, against the objection of the defendants, was allowed to testify that on January 30,1876, two “personals ” appeared in the New York Herald which the witness claimed and stated were placed there, one by himself, which he explained was for the purpose of having William Connor meet him; and the other placed there by William Connor, which he, Edson, explained as calling for a meeting between himself and Connor on business connected with the robbery. A copy of the New York Herald of January 30, 1876, was produced, and the “personals” identified and read by Edson, as follows: (Edson’s “ personal ”) “ Idalia, F. N., meet me on the Avenue Monday evening.” (Connor’s “ personal ”) “ Idalia, F. N., 8 sharp.” Edson further testified that the defendants, Connor and himself had agreed upon this form of personal, if they wished to see him ; and that he met Connor at the corner of 34th Street and Broadway at 8 o’clock Monday evening; that Connor took him to 60th Street and 10th Avenue, where he met Scott, and afterwards Dunlap; and that Con-nor at this time handed him over about $1200, as his portion of the money taken from the safe.</p> <p>6. The government contended, and offered evidence tending to show, that on February 5,1876, the defendant Scott went by boat from New York to New Haven, with two horses and a sleigh, intending to go thence to Hartford, Springfield and Northampton, for the purpose of obtaining and bringing to New York the securities of which the bank had been robbed, and which had been secreted near the place of robbery; that after Scott’s departure, Connor and Edson met in New York, and Edson informed Connor of certain facts showing the danger of going to Northampton at that time, and convinced him that Scott ought to be recalled. The witness, Edson, against the objections of the defendants, was allowed to testify that on February 7, Edson, with the concurrence of Connor, inserted in the New York Herald a “ personal ” which read as follows: “ Knox, come home,” and he referred to a copy of the Herald containing this personal. The witness further testified that Connor told him that Scott formerly had a horse by the name of Knox and would recognize the personal. The government, in connection .with this evidence, produced evidence tending to show that Scott returned to New York without the securities and without having visited Northampton. But Edson testified that Scott said that he returned on account of a paragraph in the Springfield papers and that he did not see the personal in the Herald. The defendants objected to the evidence of this personal, but the judge ruled that Connor was upon the evidence sufficiently connected with the conspiracy and with the robbery of the Northampton Bank to make his acts in furtherance of the common purpose of the conspirators admissible, and admitted the evidence, subject to the final consideration of the jury. The witness Edson further testified, against the defendants’ objection, that, on the occasion when he told Connor that it was not safe for Scott to go to Northampton for the securities, Connor told him that he and Dunlap would go to Springfield and intercept Scott, and have ’him come home, and that other conversation passed between Connor and Edson at this time, having reference to the recalling of Scott. The admissibility of this evidence was discussed to the judge, as also its effect and bearing if admitted, and the government asked to have certain portions of it admitted, while it would not insist on other portions ; but the judge ruled that all these declarations of Connor should go in, subject to the defendants’ exception, or all should be excluded, and the government then elected to withdraw all these declarations, and the judge ruled that none of the statements of Connor or conversations between Connor and Edson in the absence of the defendants, should be considered by the jury as in evidence, and he should instruct the jury to disregard them; and in his charge the judge cautioned the jury not to consider any declarations of Connor or conversations between Connor and Edson, in the absence of the defendants. The defendants excepted both to the admission and the withdrawal of the evidence referred to. In the closing argument to the jury, the attorney for the government referred to this evidence and to the “ personal,” “ Iinox, come home,” but no objection or exception was taken to this at any time, and the judge expressly charged that any declarations of Connor or Edson made in the absence of the defendants were not to be considered by the jury.</p> <p>7. The witness Edson was allowed, against the defendants’ objection, to testify that, in November, 1876, he took L. B. Williams, one of the directors of the bank, to see Connor in relation to negotiating for the stolen property. The witness had previously been allowed, against the defendants’ objection, to state in his account of the conspiracy, and of the robbery of the Northampton Bank in pursuance thereof, that Connor’s part in the conspiracy, and in the robbery of the bank in pursuance thereof, was to receive the money and distribute it, and negotiate the securities. The government, in connection with the foregoing evidence of Edson, called Williams, who testified that he, at the time mentioned by Edson, had an interview with Connor in relation to negotiating the stolen securities.</p> <p>8. One Hall, of Springfield, a member of the firm of Hall & Prew, a witness for the government, was allowed to testify, against the objection of the defendants, that two persons came to his store in Springfield one or two afternoons before the announcement of the burglary, and purchased a pair of drawers and socks which were like some found among the things left at the cashier’s house on the morning after the robbery. The witness identified certain overalls, by peculiar marks, as being those he sold at his store; he also said that the drawers were the same kind in all respects as he sold, so far as he could judge; but the witness could not say that either of the defendants was the one who purchased these goods ; that he thought he had seen Dunlap before, but could not tell when or where. The witness also stated that he did up the goods in a paper wrapper with the printed advertisement of “ Hall & Prew ” thereon. The judge said that unless this evidence was afterwards further connected with the defendants it shbuld be excluded. The government offered, as the further evidence relied on, the evidence of one Holt, also of Springfield, who testified that on the two days previous to the robbery he saw the defendants at various places in Springfield, and watched their movements; that they went into stores or saloons there, though the witness did not testify to seeing them go into Hall & Prew’s store. The government further offered evidence tending to show that one of the masks left behind at Whittelsey’s house had been cut from and exactly fitted the remaining portion of a leg of one of the pairs of drawers sold by Hall, and that this remaining portion of a pair of drawers was found with a great variety of burglars’ tools, on the day before the robbery, at a place claimed by the government to be a place of rendezvous and concealment resorted to by the burglars. The government also offered evidence tending to •how that a paper wrapper on which was the printed advertisement of “ Hall & Prew,” Springfield, was found among the burglars’ clothing and tools left behind at Whittelsey’s house and found on the morning after the robbery.</p> <p>When the attorney for the government, in his closing argument, was commenting on the effect of this evidence of Hall, in connection with the other evidence recited, as tending to identify the defendants as the persons who bought the goods of Hall, the defendants made no suggestion or objection then, nor at any other time, that the evidence of Hall had not been properly connected with other evidence to make it admissible.</p> <p>9. L. B. Williams, one of the directors of the bank, was called by the government and asked if he had a meeting with Connor on the occasion testified to by Edson, and he was allowed to answer that he had. He was then asked under whose direction, if any, he had this meeting; this was objected to, and the witness was allowed to answer that he had it by arrangement with Edson who took him to see Connor.</p> <p>10. The witness Edson testified that he was to report to the defendants at Wilkesbarre, Pennsylvania, as to the Northampton National Bank, and that he did so. The time, place and circumstances of the interview between Edson and the defendants at Wilkesbarre, were claimed to be material evidence for the government; and, among other things, it was testified by Ed-son that it had been arranged between Dunlap and Edson that Edson should address Dunlap under the fictitious name of E. C. Hill, at the “ Wyoming Valley House,” Wilkesbarre. The register of this hotel was introduced, against the defendants’ objection, and Edson was allowed to point out his own signature on the register, under date of August 5th, and also the alleged signature of Dunlap, under the assumed name of E. C. Ilill, as on the register at the time Edson arrived, and, on the register, the room purporting to be assigned to E. C. Hill was No. 27, which room Edson visited and found Dunlap occupying, and that they there conferred together in regard to the Northampton Bank robbery. The defendants excepted to the admission in evidence of Edson’s signature on the hotel register.</p> <p>11. It was contended by the government that the witness Ed-son was corroborated on material points by the evidence of other independent witnesses, as well as by much circumstantial evidence, the tendency and effect of which was, as the government contended, to show that the acts and admissions of the defendants in relation to the robbery had been truthfully narrated by Edson, while the defendants contended that much of it only corroborated the mere acts and declarations of the witness Edson, and had no tendency to connect the defendants with the robbery. The judge gave instructions as to the kind of corroboration required. The defendants asked the judge to instruct the jury as follows : “ That the corroboration required of the witness Edson is not the corroboration of that part of the witness’s story which relates to his own acts and declarations, but corroboration of that part of his story which connects the defendants with the robbery.” The judge declined to give the instruction in the terms requested, but did instruct them as follows: “ That Ed-son, being a confessed' accomplice, it was not safe for a jury to convict the defendants on his uncorroborated testimony, although, if they believed his testimony, they could do so. The testimony of an accomplice should be scrutinized with extreme caution by the jury, and it is not safe or prudent for the jury to convict in this case upon the evidence of Edson alone, unless he is corroborated in important and material respects in matters vital to the issue in this case.” The judge had previously stated, in charging the jury, what matters and things it was incumbent on the government to prove, in order to ask of thé jury a verdict of guilty, in terms to which no exception was taken.</p> <p>The jury returned a verdict of guilty against both defendants ; and the defendants alleged exceptions.</p>

<p>If the defendant in a criminal case does not testify, the prosecuting attorney cannot be allowed to comment to the jury on the reasons given by the defendant’s counsel for his not testifying, nor to give other reasons which the government contended really existed for his not testifying.</p>

<p>Indictment under the Gen. Sts. c. 165, § 9, against Luke K. Blair for procuring an abortion upon Mary M. Wilson, on December 5, 1876, by reason of which she died; and against George Wilson, as an accessory before the fact. Trial in the Superior Court, before Bacon, J., who allowed a bill of exceptions in substance as follows:</p> <p>The defendant Blair formerly resided in Pelham, where he had property, but at the time in question he resided in Holyoke. The defendant Wilson, the husband of Mary M. Wilson, lived in Pelham. It appeared that Blair came to the house of Wilson on December 4, 1876, in the afternoon, and stayed there until the following afternoon. There was evidence that the defendant Wilson arranged on December 1 to meet the defendant Blair at Amherst on December 4, and to bring him to Pelham, which was done; and the district attorney contended both in opening the c$ase to the jury and in his argument, that the arrange-meat was made on December 1, by the defendants, that Blair should come to Pelham, at the time mentioned, to procure the abortion.</p> <p>The defendants introduced evidence tending to show that Blair had some buildings burned in Pelham, and that he was in Pelham on December 1, for the first time after the fire,, and,, as he was passing the house of Wilson, he saw Wilson in his door yard in conversation with one Peck; that he stopped and had a conversation with him, but did not get out of his carriage. The government did not rest the case against Blair upon the fact that a plan had been formed and agreed upon between the defendants, before Blair came to the house of Wilson, to procure an abortion upon Mrs. Wilson, but that, while Wilson was away, Blair and Mrs. Wilson came out from the bed-room and soon after Mrs. Wilson began to be sick, and the government contended that there was evidence other than above stated on which the jury might convict Blair, though they should acquit Wilson.</p> <p>Wilson carried Blair to Amherst, on his return to Holyoke, towards night on December 5, having sold his horses with which he was to take Blair to Holyoke; and the defendant offered to show, by the evidence of Blair, Wilson and Peck, what was said by Blair and Wilson, and the arrangement which was made about Blair’s coming to Pelham on December 4, and also to show the object of his visit to Pelham, and the arrangement which was made by Wilson to carry Blair from Pelham to Holyoke with a pair of horses belonging to Wilson, which Blair, at the request of Wilson, had talked with one Joseph Martin about buying. The defendant also offered to show by the evidence of Martin that Blair arranged with him to have Wilson come down with the horses on December 5, for him to look at them with a view of buying.</p> <p>The judge excluded the above evidence, but allowed the defendants to testify that no arrangement was made by them that Blair should go to Pelham for the purpose of procuring an abortion. Both Blair and Wilson were allowed to testify, so far as they chose, to all that was done by them and each of them during the time that Blair was at the house of Wilson, and also that, when Blair came to the house of Wilson on December 4, he and Wilson expected he was going to spend the night wi'ih a neighbor: by the name of Stratton. And the defendant Blair was allowed to show that an arrangement had been made with that neighbor to stay over night with him.</p> <p>The judge instructed the jury that, if an abortion was procured by Blair, and the defendant Wilson brought him to his house for the purpose of having an abortion produced, they should find Wilson guilty as an accessory before the fact. The jury acquitted Wilson, and returned a verdict of guilty against Blair; and he alleged exceptions.</p>

<p>A t the trial of a complaint for keeping intoxicating liquors on a certain day with intent to sell the same, in violation of law, evidence of the condition of the room where the liquors were alleged to be kept, as to appointments and fixtures, at eight e’clock in the morning of the next day, is admissible.</p>

Complaint to the Central District Court of Worcester, charging the defendant with keeping a dog between May 1, 1876, andv September 4, 1876, not “registered, numbered, described and' licensed according to law.” At the trial in the Superior Court, on appeal, before GoTburn, J., the defendant sought to justify under a license issued by the town clerk of Millbury, on May 24, 1876, by which “permission is given to Daniel Braney to keep the dog described in the margin, for one…

Indictment for breaking and entering a certain building with intent to commit a larceny of goods therein belonging to one Keene. At the trial in the Superior Court, before Allen, J., the government offered evidence that Keene was a deputy sheriff, and put in evidence a writ, by the return upon which it appeared that Keene attached the goods in question in the building, which Was a mill, as the property of one Godfrey and one Harden.

Complaint to the Third District Court of Bristol, charging that the defendant “ unlawfully did keep intoxicating liquor with intent unlawfully to sell the same in this Commonwealth, he the said Lewis not being then and there authorized to sell the same in this Commonwealth by any legal authority whatever.” In the Superior Court, on appeal, before the jury were empanelled, the defendant for the first time moved to dismiss the complaint for the following reasons : “ 1.

<p>Complaint to the First District Court of Bristol, alleging that the defendant, on February 16,1877, “ did keep intoxicating liquors with intent to sell the same in this Commonwealth, he the said Simon O’Keefe not being then or there appointed, authorized or licensed to sell the same in this Commonwealth for any purpose nor by any legal authority whatsoever.”</p> <p>In the Superior Court, on appeal, after a verdict of guilty, the defendant moved in arrest of judgment for the following reasons : That the complaint sets forth no offence, either in form or substance, over which any court in this Commonwealth has jurisdiction ; that the offence, if any, is one made punishable under the St. of 1869, c. 415, §§ 31, 36, which was repealed by the St. of 1875, o. 99, § 22; that there is now no such offence known to the law as “ keeping intoxicating liquor with intent to sell ” under any circumstances, but the offences are confined, under the St. of 1875, c. 99, § 1, to such persons as “shall sell, or expose, or keep for sale; ” that the negative averment in the complaint negatives only a present right to sell, but not the right to keep with intent to sell, — neither does it aver that he unlawfully kept the liquor, nor that he had an intent unlawfully to sell; and that a future intent to sell may be to sell lawfully.</p> <p>Brigham, C. J., overruled the motion; and the defendant alleged exceptions.</p>

<p>If a judge of a district court holds, at the same time, the office of mayor of a city within the district, the question whether he is disqualified to act as judge, by reason of incompatibility in the two offices cannot be determined upon an appeal taken by a person whom he has tried and found guilty upon a complaint originally made returnable before him.</p>

<p>Tort for the obstruction, from October 5,1865, to September 1, 1872, of the machinery of the plaintiffs’ mills, in Adams, by water set back by a dam built by the defendant’s intestate, Horatio N. Dean, lower on the stream. Writ dated March 8,1875. Trial in the Superior Court, before Dewey, J., who allowed a bill of exceptions in substance as follows :</p> <p>The plaintiffs put in evidence tending to show that their mills and dam were situated on land formerly owned in common by John Bucklin and Benjamin Read, and that, while they so owned it, they built a dam across the Hoosac River, and also erected mills, the raceway from which ran through the adjoining land of Read to the river below; that in 1784 Read conveyed one half of the mills, mill lot and dam, “ with the other appurtenances relative to the same,” to Benjamin Russell, who the same year became the owner of the other half; and from whom the plaintiffs derived their title by various mesne conveyances; that the adjoining lot, owned by Read, and through which the raceway ran, is that owned by the defendant’s intestate; that the raceway had, since 1784, been used in connection with the mills on their land; and that the dam erected by the defendant’s intestate was built over this raceway.</p> <p>The plaintiffs also put in evidence tending to show that those under whom they claimed had erected mills substantially on the site of their present mills, before the erection of any dam on the premises of the defendant’s intestate; and that the dam complained of was built by him in 1860; that, shortly after this dam was built, there was backwater on the plaintiffs’ wheels, as there had never before been; and the plaintiffs contended that it was caused by the dam.</p> <p>The defendant contended, and offered evidence tending to show, that the darn erected by his intestate was on a natural stream, a branch or channel of the Hoosac River, which divided at a point near the plaintiffs’ dam, forming an island, on which the mills of the defendant’s intestate were situated, and into which natural stream the water from the plaintiffs’ mills discharged, on their own land, and that the rights given by the deeds under which the plaintiffs claimed, and also the rights of the defendant, were to be construed and determined accordingly.</p> <p>It appeared that, after the erection of the mills by the plaintiffs’grantors, and the construction or adoption of their raceway about 1810, a mill and a dam, called the old fulling-mill dam, were erected on premises afterwards owned by the defendant’s intestate, and that the title to this mill and dam had been acquired by him before the erection of the dam complained of, which he built at a point on the stream about one and one half i ads below the old fulling-mill dam.</p> <p>• There was evidence tending to show that the old fulling-mill dam had a permanent planking which set back the water to the height of a certain overflow or waste-way some rods above; that, thus constructed and used, it did not set back the water upon or otherwise injure the mills above, as they were when it was erected, and that the dam complained of was of no greater height than the permanent planking and overflow or waste-way of the old fulling-mill dam; that the plaintiffs, since the erection of the fulling-mill dam, had materially lowered the stream or raceway at a point between their wheels and the fulling-mill dam, and had also lowered their wheel-pits and wheels; and that no period of twenty consecutive years had elapsed since the erection of the old fulling-mill dam, when the use of the plaintiffs’ wheels had not been obstructed by water set back by means of loose planks or flash-boards put on the old fulling-mill dam above its permanent planking, or on some other dam erected by the defendant’s intestate, or those under whom he claimed, on the premises owned by him when he built the dam complained oí.</p> <p>There was also evidence tending to show that the water, after leaving the plaintiffs’ wheels, had to pass through an archway above the premises of the defendant’s intestate, about fifty-six feet long and only fourteen feet wide, and that the quantity of water discharged from the plaintiffs’ wheels was so great that it could not be discharged through this archway without being therein at least two feet in depth, and without setting back water upon his wheels to at least that amount, when the wheels are in operation under the ordinary head and gates, and that if there was a sheer descent at the lower mouth of said archway, it would not reduce the depth of water in the arch, or on the plaintiffs’ wheels, and that, if the dam complained of should be entirely taken down, it would not lessen the depth of water in this archway, or on the plaintiffs’ wheels when in ordinary operation, and that, if the plaintiffs’ wheels had been hindered or obstructed by backwater, such backwater was caused wholly or in part by the archway being too narrow, and not sufficiently deepened to pass the volume of water discharged by the plaintiffs’ wheels when in use, without causing backwater therefrom. • There was no evidence that the defendant’s intestate, between October 5, 1865, and September 1, 1872, did any act whatever to his dam or waterworks, except to use them, as constructed in 1860, for the use of his tannery.</p> <p>The defendant asked the judge to instruct the jury that unless the defendant’s intestate had done something more than to simply use a dam erected before the time complained of in the plaintiffs’ writ, the cause of action would not survive against his administrator; but the judge declined so to rule.</p> <p>The defendant also asked the judge to instruct the jury that, if they believed that the backwater on the plaintiffs’ wheels was caused in part by the wrongful acts of the defendant’s intestate, and in part by the lowering of the plaintiffs’ wheel-pits, and in part by the narrowness of the archway, then they had contributed to their own injury, and could not recover against the defendant; but the judge declined so to instruct the jury.</p> <p>The judge then gave the jury the following instructions, among others not now necessary to state : “ The proprietor who first lawfully erects his dam across a stream to create a fall by means of which he may operate his mill has a right afterwards to maintain it against all other proprietors, both above and below him, and to this extent priority of occupancy gives priority of title. That is, the first occupant can flow back on the land of others above his dam, paying flowing damages, and he has a right to have the water pass off freely from his wheel, and the owner below has no right to flow back on his wheel.</p> <p>“ The defendant contends that the stream or channel, across which the dam was erected, was a branch of the Hoosac River that divided above the plaintiffs’ mills. Assuming this is so, the lower proprietor of a mill may maintain a dam, or raise it, so as to use all the unappropriated water-power of the stream ; he may do so, if it causes the water of his pond to set back into the raceway of the mill above, provided it does not obstruct the upper mill-owner’s wheel, or otherwise injure his mill. After each party has made an appropriation of the water-power he is entitled to, neither can make any changes which shall injuriously affect the rights of the other. The defendant contends that the backwater arises from other causes than the dam, and from causes for which he is not responsible, namely, that it is occasioned by the greater quantity of water which is discharged upon the plaintiffs’ wheels, which fills the wheel-pits and prevents a discharge as formerly, and causes it to set back, or not pass off freely; that the archway is not sufficient for the large discharge of water now passing off; that since the appropriation by the defendant’s intestate of the water rights below the plaintiffs’ dam, the plaintiffs have dug down and lowered their wheels so as to cause the water to set back on the present wheel, when it did not before. If the plaintiffs, in lowering their wheels, digging out their wheel-pit or raceway, or use of greater amount of water beyond what they were authorized by their deed from Read, and, as occupants of the first privilege, have caused the water to obstruct their wheels, or if others than the defendant’s intestate, as the builder of the archway, have done it, of course the defendant is not liable for the backwater arising from these causes. The plaintiffs’ wheels were not put in till four years ago, and they contend that there was backwater on the old one, and that the volume of water does not block up the archway; that the clearing out of the raceway has been of stones and dirt falling in. On all these points you will consider the conflicting testimony, and decide what are the facts.</p> <p>“ The defendant also contends that, if you should find that the dam caused the water to set back upon the wheels of the plaintiffs, his intestate did not raise his dam any higher than he had a right to, and his acts were not wrongful. The titles and rights to the tannery and fulling-mill dams had both vested in the defendant’s intestate. The fulling-mill title did not pass to Dean till about 1840. It was built about 1811, and the defendant contends that the fulling-mill dam was as high as the present dam, and that the height of the tannery dam was as high; that it had been maintained to that height for such a length of time, and under such circumstances as to give a right forever to keep it as high. In other words, that, by adverse use or possession of twenty years, his intestate and those under whom he claimed had acquired the right. It is important you should clearly understand what is necessary to the acquirement of a title or right in this way. The possession or user must be adverse, peaceable, uninterrupted, with a claim of right notorious and with the knowledge of the other party, and continued in this manner for twenty years; all these requisites must unite. If the use was permissive, or without a claim of a right, or if the right was claimed, but resisted or interrupted at any time in the twenty successive years, then no right is gained. If, by such an adverse user and possession as the law requires in order that a title or right shall be acquired in this mode, the defendant’s intestate had gained the right to maintain his dam as high as it now is, the plaintiffs cannot recover. But if he had not gained it, and, by maintaining it, he caused the water to set back on the plaintiffs’ wheels, placed no lower than the owner of the first wheel placed them, or that the plaintiffs, or those under whom they claim, have gained an adverse right in the same way in which, as already said, adverse rights above could be gained, then the defendant is liable for the damage caused by the backwater set back on the wheels by the dam.</p> <p>“ If you find that the backwater on the wheels of the plaintiffs is caused, a part of it, by the wrongful acts of the defendant’s intestate, and partly by other causes, as the lowering of the wheel or narrowness of arches, &c., or the increased volume of water discharged by the plaintiffs on the wheel, the defendant is . iable only for such portions of the damage as arose from the backwater which his intestate wrongfully caused, and you can only find for the plaintiffs for the amount which, upon the evidence, — the burden being upon the plaintiffs to satisfy you as to the amount, —you are satisfied arose from the wrongful acts of the defendant’s intestate, and not from any other cause.”</p> <p>After tnese instructions, and before the .jury retired, the defendant asked the judge to rule that if the old fulling-mill dam, at the height of its permanent boarding, did not set back water to the damage of the plaintiffs’ mills, or otherwise injure such mills, then the defendant’s intestate had a right to maintain a dam at that height; and if the jury find that the present dam of the defendant is at no greater height than the old fulling-mill dam with its permanent boarding, then the defendant’s intestate had a right so to maintain the present dam under the appropriation made by the erection of the old fulling-mill dam to that height. But the judge declined so to rule.</p> <p>The jury,,after a deliberation of several hours, returned into court, and, in answer to the inquiry by the clerk, whether they had agreed on a verdict, the foreman replied, “Yes,” and handed to the clerk a paper, on which was the following, signed by the foreman: “ The jury find for the plaintiffs, and assess damages in the sum of one dollar. The defendant shall reduce his dam to a level with the crest of the old tannery dam.” The clerk passed this paper to the judge, who stated to the foreman that the jury had no authority to return a verdict in that form, and directed him to erase in the verdict the following words : “ The defendant shall reduce his dam to a level with the crest of the old tannery dam.” The clerk then read to the jury the verdict as it was after this erasure, and, by the direction of the judge, inquired of the jurors if the verdict as read was their verdict; only three or four of the jurors assented, the others dissenting therefrom. The judge then stated to the jury that, as it appeared that they had not agreed on a verdict, they would retire for further consultation, which they did, the judge giving directions that, if they agreed, they might seal up their verdict and return it in the morning. The counsel of both parties were present and neither assented nor excepted to the order of the judge. The jury, after a further deliberation of several hours, agreed, and the next morning returned a sealed verdict for the plaintiffs, with damages assessed at $862.83, which verdict was duly affirmed by them and rendered. After the return of the jury into court the next morning, the counsel of the defendant, prior to the opening of the verdict, objected to the reception of any verdict, and reserved his right of exception to the same being received and affirmed.</p> <p>The defendant alleged exceptions to so much of the charge to the jury as related to the right of the plaintiffs to have the water discharged from their premises into the river below; to so much thereof as related to the causing of the alleged damage partly by the acts of the defendant’s intestate, and partly by other causes; to the refusals to rule as requested; and to the orders as to the verdict.</p>

<p>Tort for the obstruction, from July 3, 1873, to March 8, 1875, of the machinery of the plaintiff’s mills in Adams, by water set back by a dam built by Horatio N. Dean, in I860lower down the stream. Writ dated March 3, 1875. The case was tried in the Superior Court, before Dewey, J., with the preceding case, who reported it for the consideration of this court in substance as follows:</p> <p>The plaintiff corporation was duly organized on June 11, 1873, and the mill property and rights of the firm of Levi L. Brown and others were duly conveyed to the plaintiff. Horatio N. Dean died intestate on August 15, 1872; and after his decease the defendant, who was his son and copartner, continued to carry on the mill business in the same manner it had been previously carried on, until January 6,1873, when the heirs of Horatio IST. Dean conveyed the mill property to the widow and daughters of Horatio 1ST., and after that date the business of the mills was carried on by the defendant on their account, and acting as their agent, he having a power of attorney from them, dated January 6, 1873, the material parts of which are printed in the margin.*</p> <p>The defendant contended that on these facts he was not personally liable for any damages arising from maintaining the dam as alleged, and took the same exceptions as' in the preceding case, excepting that relating to the survival of the action. The jury returned a verdict for the plaintiff. If the exceptions in the preceding case were sustained upon any other ground, except that no action for the alleged cause could be maintained against an administrator, then the verdict in this case was to be set aside, and the case stand for a new trial. If those exceptions were not sustained for any other cause, judgment was to be entered on the verdict in this case, unless the court should be of opinion that, upon the facts herein stated, this action could not be maintained against the defendant, in which case the verdict was to be set aside, and judgment entered for the defendant.</p>

Appeal by Mary Cummings from a decree of the Probate Court, allowing the account of Peter Cummings as administrator of the estate of Edward Cummings.

<p>Charges of fraud under the Gen. Sts. c. 124, §§ 31-34, against a person applying to take the oath for the relief of poor debtors, are in the nature of civil proceedings, and need not be proved beyond a reasonable doubt; and the debtor and his wife may, under the St. of 1870, c. 393, be called as witnesses by the creditor.</p> <p>Books of account of a bank, supported by the oaths of its treasurer and the clerk who made the entries therein, identifying the books, although they had no personal recollection of the facts, are admissible in evidence, to prove an account therein.</p> <p>At the trial of charges of fraud under the Gen. Sts. c. 124, §§ 31-34, the alleged fraud being that the debtor had bought land and had caused it to be conveyed to his wife in fraud of his creditors, if it appears that a part of the consideration was procured by means of a mortgage, to a third person by the debtor and his wife, given to secure the debtor’s sole note which it was contended that he afterwards paid, the mortgage is admissible in evidence.</p>

<p>A creditor of a bankrupt, whose claim is provable but has not been proved in bankruptcy, may, under the TJ. S. Rev. Sts. § 5106, prosecute to final judgment an action against the bankrupt, if no motion is made for a stay of proceedings, and the assignee does not intervene.</p>

<p>Petition under the St. of 1868, c. 287, for a decree for a sale of land, on the ground that it was incumbered by contingent remainders.</p> <p>At the hearing,-before Colt, J., it appeared that Otis C. Bamforth died seised of the land in question, and that his will contained the following clauses:</p> <p>“ I give and bequeath to my parents, Samuel Bamforth and Betty Bamforth, the use and improvement of all my estate, both real and personal, of which I may be possessed at the time of my decease, and so much of the estate itself as may be necessary for their comfortable support so long as either of them shall live.</p> <p>“ At the death of my parents, I give and bequeath to my sister Sarah M. Bamforth, and my friend Nancy Eleanor Spaulding, should either of them be living, one fourth each of my estate then remaining.</p> <p>“ After the above bequests have been taken out of the estate, I order and direct that the remainder be equally divided into five equal parts, and given to the following persons, viz.: Martha Ann Whitehouse, wife of Joseph B. Whitehouse; James Watson Bamforth, Sarah M. Bamforth, William C. Bamforth and Nancy Eleanor Spaulding.</p> <p>“ Should either of the above named persons die before the division last named is made, leaving no children, I order and direct that the amount be equally divided among the survivors.”</p> <p>The petitioners were the father and mother of the testator, and it was admitted that a like petition had, under the St. of 1869, c. 331, before this petition was filed, been presented, heard and dismissed in the Probate Court; that one of the questions before that court was, whether the respondents’ interest under the will was a contingent or vested remainder; and that that court held it to be a vested remainder.</p> <p>The justice of this court found upon the evidence that it appeared to be necessary and expedient that a sale and conveyance of the real estate be made as prayed for; and, at the request of the respondents, reserved the case for the consider» ation of the full court.</p>

Trustee process. Writ dated April 26, 1876, and served on April 28, 1876. The principal defendant was defaulted. The Northampton Cutlery Company was summoned as trustee.

Bill in equity by William L. Noyes against John F. Marsh and William B. Smith, containing the following allegations: That on September 7, 1874, the plaintiff and the defendants made an agreement in writing as follows: “If the said Noyes shall purchase sixty-three shares of the capital stock of the Springfield Glazed Paper Company now held by George Fowler, the said Marsh and Smith agree to and with him that the said company shall give him employment at such service as the…

Contract, by Israel Harmon and Henry Cooley, against Terrence Flanagan and F. W. Helen, to recover the rent of certain rooms in a block on Main Street in Springfield. Writ dated May 6, 1876.

<p>The St. of 1874, c. 275, § 2, providing that “ every highway or townway hereafter laid out shall he deemed to be laid out” under the Gen. Sts. c. 43, and the amendments thereof, “ unless the order laying out the same expressly declares the same to be laid out ” under the betterment acts, applies to a case of widening a street by a city, the final order for which was passed after the St. of 1874 took effect.</p>

Contract. Writ dated September 27, 1875. The declaration alleged that on April 4, 1874, William S. Hillman, in consideration of $3000, to him paid by the defendant, executed to the defendant a deed of certain real estate in Worcester, and the defendant accepted the same; that the deed contained the following clauses: “ This conveyance is made subject to a mortgage for $1200, and interest since March 4,1874, and also a mortgage for $600, which the said grantee assumes and…

<p>A. sold a sewing machine to B. under an agreement in writing, by the terms of which the title was to vest in him on payment of the price. In an action of replevin of the machine by A., there was evidence that A.’s agent delivered the machine to B. and agreed to take in part payment labor performed by B. for him. B. offered evidence that, prior to the execution of the agreement, he told A. of his agent’s agreement, and A. assented thereto; and that, after the execution of the agreement, A.’s agent told him that part payment should be so made, and that A. agreed thereto. The presiding judge refused to instruct the j ury that if the agent had authority to make the agreement, they must find a verdict for A. ; that a performance of the agreement by B. would not vest the title in him, and that A. would still have such title as would enable him to maintain his action; but instructed them that if the agent had authority to make the agreement, and B. performed it, then A. had no such title to the property as would enable him to maintain the action. Held, that the evidence was admissible, on the questions whether A.’s agent had authority to modify the written agreement, and whether he did modify it. Held, also, that A. had no ground of exception to the refusal to give the instructions requested, or to those given.</p>

Two ACTIONS OF contract, by the administrator of Isaac Prouty, upon the following promissory note, signed by Samuel Crawford and Jonas Wilson. “Spencer, January 10, 1863. For value received I Samuel Crawford as principal, and I Jonas Wilson as surety, jointly and severally promise to pay Isaac Prouty or his order four hundred dollars on demand with interest at 8 per cent. Writs dated November 4, 1875.

<p>If a promissory note, not negotiable, is given to a married woman by a third person in consideration of her husband’s giving up to him a like note, and she transfers the note, with her husband’s consent, to a creditor of his, in fraud of other creditors, the maker, in an action upon it in her name, cannot take advantage of that fact</p>

Complaint under the mill act, alleging that the respondent flowed the complainant’s land in Blackstone, by means of a dam maintained by it across Mill River, and that the complainant was seised and possessed, among other land damaged thereby, of “ all the land conveyed in a deed from Welcome A. Thayer to said complainant on the easterly side of said river, dated June 9th, 1857, recorded in said registry, book 583, page 274.” In the Superior Court, the respondent was…

<p>Information in equity by the Attorney General, at the relation of the inhabitants of the town of Douglas, alleging that Ezekiel Wood, a wealthy and benevolent citizen of the town, having at heart the interest of education, in 1849, signed and delivered to Albert Butler and others, all of Douglas and known as and called the trustees of the high school in Douglas, the following agreement in writing:</p> <p>“ Douglas, Mass., Nov. 13th 1849. For value received I promise and agree shall be paid out of my estate to the trustees of the high school in Douglas or their successors in office the sum of five hundred dollars, in the following manner, by my executors or administrators after my decease, as follows, to wit: One hundred dollars in one year after the appointment of said executors or administrators, and one hundred dollars per annum for the four successive years next thereafter, to be applied by said trustees to the advancement of education in said high school. And in case said school should not be kept the term of one whole year together during the five years in which said payments are to be made as aforesaid, then in that case this note, promise and agreement is to become null and void, and said payments become forfeited and go into my estate, to be administered by my said executors or administrators according to law and my will.” The information then alleged that by his last will, executed a few days afterwards, he provided as follows:</p> <p>“ It is my will that all my just debts and funeral charges be paid and discharged, by my executors hereinafter named and appointed, out of my estate, as soon as conveniently may be after my decease, including the payment of one certain note I have given to the trustees of the East Douglas High School in said Douglas, provided the stockholders and trustees are entitled thereto by complying with the terms and conditions of said note, and not otherwise.”</p> <p>The information also alleged that, before the making of the agreement and will, a high school had been and then was maintained in Douglas, by voluntary contributions of its citizens, which was kept in a building owned in whole or in par t by the stockholders mentioned in the will; that the sum of $500 was paid over by the executors of the will to the trustees named and was invested by them; that before the year 1866 the trustees expended several sums in the advancement of education in the high school in question; that in 1866 the high school was discontinued, and the town, established a public high school under the Gen. Sts. e. 38, § 2; that the trustees had not expended any of the fund for the support of a high school, nor for the benefit of the town, since 1866 ; that the fund in 1875 amounted to $422.32, and in that year the trustees expended a large portion of that sum in repair of the school building, owned by them, which they had leased to the town at its full rental value, the town receiving no benefit thereby and the expenditure not being for the advancement of education; and prayed that the trustees might be decreed to make good the sum so expended by them and to apply the portion of the fund unexpended to the advancement of education in the public high school of the town or otherwise.</p> <p>The case was heard and reserved, by Fndicott, J., upon the information, answer, report of a master and an agreed statement of facts, for the determination of the full court, and is stated in the opinion.</p>

Petition to the Superior Court, filed October 29, 1874, by Simeon A. Britton, Sarah A. Britton and Sarah M. Shattuck, for a jury to assess damages occasioned to the petitioners’ real estate, owned by them in common, by relocating and changing the grade of Lincoln Street in Worcester.

<p>A city, by accepting a statute authorizing it to make and maintain reservoirs and public hydrants “ in such places as may be deemed proper,” and building its works under it, is not liable to an owner of property destroyed by fire by reason of its neglect in cutting off the water from a hydrant, but for which the fire might have been extinguished.</p> <p>The owner of a building failed to pay water-rates for water supplied to his building by a city, and the city cut off the water from the building and from a hydrant in a street near by, although the water might have been cut off from the building alone. The building was destroyed by a fire, which might have been extinguished, had there been water in the hydrant. Held, that the owner of the building could not maintain an action against the city for the loss.</p> <p>Authority given by a city council to a committee thereof, on a petition for a hydrant to be attached to a certain line of pipes, to purchase the pipes, does not authorise the committee to agree in behalf of the city to maintain the hydrant.</p>

Complaint for costs, by a person duly summoned as trustee of Cynthia Hall, named as defendant in a writ sued out by H. M. Call and returnable at October term 1876 of the Superior Court. The trustee appeared and filed an answer on the first day of the term, and afterwards discovered that the writ had not been entered, and thereupon and during the same term filed this complaint.

<p>In a trustee process, a person summoned as a trustee has a right to be heard on the validity of an assignment to an adverse claimant, and is entitled to costs while attending, for that purpose, the court in which it is pending.</p>

Contract to recover $150 deposited by the plaintiff with the defendant. Trial in the Superior Court, without a jury, before Brigham, C. J., who found the following facts: The plaintiff first deposited moneys with the defendant in January, 1864, and, from that time until July, 1874, made once or twice in each year deposits of money.

Writ of ehtry to recover two parcels of land in Edgartown. Plea, nul disseisin.

Contract. Writ dated August 18, 1875. The declaration alleged that on August 17, 1874, the plaintiff was the owner of a certain building situated in that part of Boston called South Boston, and numbered 636 on Second Street, and of the value of $10,000; that the defendant on said August 17, in consideration of a premium to be paid to it by the plaintiff, agreed to insure the plaintiff against loss or damage to the said building by fire, for twelve months from and including…

<p>Contract upon an alleged warranty. At the trial in the Superior Court, before Allen, J., without a jury, the following facts appeared:</p> <p>On December 5, 1873, S. B. Bell & Company, in consideration of a loan of $9330, pledged to the defendant 180 cases of tobacco, and signed and delivered to the defendant a contract in which the tobacco was described as follows : “ The same being our own property and free from all incumbrancé, and all of the crop of 1871.”</p> <p>On March 1, 1875, the plaintiff paid the defendant the sum of $6646, and in consideration thereof the defendant signed and delivered to the plaintiff the following assignment of the contract above mentioned: “ For value received, we hereby assign and transfer to the First National Bank of Northampton all our right, title and interest in and under the contract, together with all the property mentioned therein.” On the same day, the defendant signed and delivered to the plaintiff a paper reciting the assignment of the contract of S. B. Bell & Co., and continuing as follows: “ The said company has received therefor from said bank $6646, with the guaranty of the company to the bank that the above sum is the amount due on the contract.”</p> <p>The plaintiff offered evidence tending to show that, on payment of the money stated in the assignment, the 180 cases of tobacco were delivered to the plaintiff, and retained by it until sold in the fall of 1875; that in August, 1875, one J. H. Lyman demanded of the plaintiff seven of the cases of tobacco delivered to the plaintiff, alleging that it was his property, and had been pledged and transferred to the defendant without right that Lyman brought an action of tort against the plaintiff in the Superior Court, for the conversion of the seven cases, and recovered judgment, and that the defendant, though requested, refused to defend the case.</p> <p>The plaintiff also offered evidence tending to show that of the 180 cases, there were sixty cases not of the crop of 1871, but of the crop of 1870, a crop well known to be inferior in quality and market value to that of 1871, in consequence of which the plaintiff sustained a loss of $1500.</p> <p>The judge ruled that the assignment and guaranty contained no warranty of title to the seven cases of tobacco, or that the sixty cases were of the crop of 1871; that the evidence offered was therefore inadmissible, and found for the defendant. The plaintiff alleged exceptions.</p>

Contract on an account annexed for the price of certain intoxicating liquors sold by the plaintiff to the defendant in April and May, 1873. Writ dated November 15, 1875. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court on appeal, upon an auditor’s report, which was to be taken as an agreed statement of facts, and so much of which as is necessary to the understanding of the point decided appears in the opinion.

Contract on a recognizance entered into under the Gen. Sts, c. 124, § 17, by the first named defendant, as principal, and the other, as surety, and conditioned that John A. Thayer, who had been arrested on an execution in favor of the plaintiff, should appear on December 11, 1875, at ten o’clock, A. M., at the office of A. Perry Peck, a trial justice for said county, in Northampton, being the time and place fixed by the magistrate taking the recognizance, at the debtor’s…

Bill in equity by the residuary legatees under the will of James Dimmick, against Albert A. Converse and William K. Dimmick. The will of the testator, after giving certain legacies and annuities, contained the following clauses : “ Sixth.

Tort for slander. The declaration alleged that the defendant publicly, falsely and maliciously accused the plaintiff of the crime of larceny, by words spoken of the plaintiff substantially as follows : “ He broke into my house and robbed it.” “ He entered my house and robbed it.” “ He entered my house and stole my money and my son’s money.” “ My son Herbert saw him in the house and saw him rob it, and will testify to it.” Answer: 1. A general denial. 2.

<p>Contract upon a bond “ in the sum of $500.” The case was submitted to the Superior Court, and, after judgment for the plaintiff for nominal damages, to this court, on appeal, on an agreed statement of facts, the substance of which appears in the opinion.</p>

<p>In an action for the conversion of goods, attached by the defendant in a shop as the property of the person in possession, and claimed by the plaintiff under a previous sale from that person, there was evidence that the seller conducted the business of the shop, after the sale, in the same manner as before. Held, that evidence tha1: the seller, after the sale and before the attachment, told a person that the goods he was then buying belonged to the plaintiff, who had bought him out, was admissible to show that, after the alleged sale, purchases and sales of goods were made by the plaintiff, or in his name.</p>

Replevin of certain machinery. Writ dated December 28, 1876.

Trustee process. Writ dated September 11, 1876. The defendant was defaulted. The Wamsutta Mills, summoned as trustee, admitted that, at the time of service upon it, there was in its hands the sum of $38.61, due the defendant.

<p>Bill in equity, filed July 6, 1876, by the inhabitants of the town of Freetown and the tax collector of that town, against the trustees under the will of Job Terry, late of Freetown, deceased, containing the following allegations :</p> <p>That Job Terry died in 1861, leaving a will which contained the following bequest: “ I give, bequeath and devise all my bank and railway stock, wheresoever being, unto Henry H. Fish and Leander Borden of Fall River, in said county of Bristol, to have and to hold the said stocks upon the trusts and for the purposes and intents hereinafter mentioned; that is to say, that they, the said trustees, will take into their possession said stocks, with power to sell and convey the same, or any part thereof, and tho moneys accruing therefrom; and the dividends, interests and profits thereof, from time to time at their discretion will invest m safe and profitable money stocks, or in mortgages on good real estate; and in further trust; that the said trustees will from time to time pay unto my grandchildren so much of the net yearly income of said trust fund, and the dividends, interests and profits thereof, as they in their discretion shall deem necessary, suitable and proper for their good education and support, not to exceed in any one year the sum of one thousand dollars; and in further trust that the said trustees shall at the expiration of twenty years from the day of my decease pay over to my heirs at law all the said trust fund, with the dividends, interests and profits thereof, to be divided between them according to law.”</p> <p>That the grandchildren and heirs at law of said Terry, alluded to in said will, namely, David Terry and Abbie Evans, have for many years resided and still reside, in said Freetown ; and that said trustees have in their hands a large amount of personal property in trust, under said bequest, which is properly taxable in Freetown to the heirs at law, as an accumulating fund under the Gen. Sts. c. 11, § 12, cl. 6; and the taxes thereon have for many years been duly paid by the trustees to the town of Freetown.</p> <p>That in the year 1875 said property was duly assessed in Freetown to said heirs, with a state, county and town tax, to the amount of $256.50; that a warrant for the collection of the same was duly committed to the tax collector on August 27, 1875, and was duly demanded of said trustees on or about October 1, 1875, but said trustees refused to pay the same.</p> <p>That said property is not liable to distress for the collection of said tax, that no action at law will lie against said trustees for the same, and that said heirs at law are not legally or pecuniarily responsible for the same, and that the plaintiffs have no plain, adequate and complete remedy at law for the eollecticn of said tax; and that this matter relates to the enforcement and regulation of the execution of a trust relating to personal estate.</p> <p>The prayer of the bill was that the defendants might be ordered to pay the tax.</p> <p>The defendants demurred to the bill, assigning as cause of demurrer that they were not liable to pay the tax. The demurrer was sustained; and the plaintiffs appealed.</p>

Trustee process begun in the Second District Court of Bristol, where judgment was entered against the principal defendants, and George Winslow and Henry H. Elsbree appeared as claimants of the funds in the hands of the trustee, and were adjudged to be entitled to the funds, and the trustee, who had filed no answer, was discharged. The plaintiff appealed to the Superior Court.

<p>Commissioners appointed to set off dower and make partition among heirs made * return, which was accepted by the court, by which they set off to the widow a lot, on the north side of a tide-water cove, described by metes and bounds running “ to the shore,” and thence by courses and distances, which there was evidence tending to show corresponded with high-water mark, " to Or. B.’s shore,” which was in fact a parcel of marsh or meadow, and not part of the estate divided; also three lots of upland; “ and also a privilege to have and take off the one third of the seaweed that may wash up on the shore of the lots by the cove and river, which privilege last mentioned is to be divided equally between ” the widow and the two sons, “ on all the land adjoining the river and cove; all which four lots of land, together with the privileges above described, we have set off to the said ” widow for her dower. The commissioners set off to one of the sons a lot on the south side of the cove, bounded “ by the cove and river,” “ excepting two thirds of the shore or seaweed that may wash up on the land or shore ; ” and did not otherwise dispose of the shore, between high and low-water mark, of the lot set off to the widow Held, that her title extended to low-water mark.</p>

Contract against John B. Dyer, John Campbell and George Lord, on a bond, dated September 20, 1876, executed to the plaintiff by Ellen Dyer and John B. Dyer as principals, and by the other defendants as sureties; the condition of which was as follows: “ The condition of this obligation is súch, that whereas the said William Poole has caused the goods and estate of the said Ellen Dyer and John B. Dyer, to the value of three hundred dollars, to be attached on mesne process, by…

<p>Complaint under the bastardy act.</p> <p>At the trial in the Superior Court, before Brigham, C. J., the complainant testified, and the evidence tended to show that, in the "time of her travail, she did not accuse any person of being the father of the child, although inquiry was made of her. The complainant and her mother, who was present at the time of the complainant’s travail, were allowed to answer, against the respondent’s objection and exception, the question whether the complainant had ever accused any other person than the respondent of being the father of the child. They replied “ No.”</p> <p>After a verdict of guilty, the respondent moved in arrest of judgment, on the ground that the supplemental complaint did not allege that the child was born a bastard. The judge overruled the motion ; and the respondent alleged exceptions.</p>

Motion by the defendant to the Superior Court to set aside a verdict for the plaintiff, on the ground of newly discovered evidence. Hearing before Allen, J., who allowed a bill of exceptions in substance as follows: The original action was in contract to recover a balance of $2756.54, for brick and stone work in the erection of a church in Amesbury.

Petition to the Superior Court, under the St. of 1875, e. 33 to vacate and review a decree of that court, establishing a mechanic’s lien on a building and land, and ordering the same to be sold to satisfy the lien, upon a petition inserted in a writ of original summons, sued out by the respondent against the petitioner under the Gen. Sts. c. 150. At the hearing in the Superior Court of this petition for a review, it was admitted that no sale had been made under that decree.

Petition, filed June 4,1877, for an attachment for a contempt in neglecting and refusing to give bond to secure the payment of alimony in accordance with the terms of a decree of this court, rendered at April term 1877, upon the libel of the petitioner, filed May 19, 1876, and the default of the respondent, and granting her a divorce from the bond of matrimony, and ordering him to pay to her the sum of $250 and costs on May 1,1877, and the further sum of $800 yearly until…

Bill in equity, filed July 19, 1877, against William Maynes and Henry W. Balcomb, under the St. of 1872, c. 243,* for the removal of a wooden building, alleged to have been erected in violation of an ordinance of the city of Salem, passed on April 23, 1877, establishing the limits of a fire district, within which the building was situated, and providing as follows : “No person shall erect, or cause to be erected, within said district, any wooden building of more than fifteen…

<p>The St. of 1872, c. 321, relating to the collection of taxes upon bank shares, did not apply to shares belonging to the estates of deceased persons.</p>

Writ, dated February 21,1876, returnable to the Superior Court, and describing each party as having his usual place of business in Boston in the County of Suffolk, and the cause of action thus; “ In an action of contract or tort. To the damage of the plaintiff (as he says) the sum of five hundred dollars.” The declaration filed with the writ contained a single count upon an account annexed for $81 for goods sold on December 21, 1875.

<p>Household furniture belonging to A. was sold to B. and a receipted bill of parcels given, signed by A. B., while the furniture was in the possession of A., in a house belonging to C., wrote on the bill of parcels, “ I hereby transfer and sell all of the above furniture to C.,” signed the writing, and delivered it to C., who went to the house and saw the property, and it was orally agreed that the property should remain in the custody of A., but that possession of it was given to and received by C., and that the legal title was to be in him. C. took out a policy of insurance on the property, against loss by fire, in which it was described as “his household furniture,” in a house, the location of which was described. During the term of the policy, and while the furniture remained in the house, a loss occurred. Held, that C. had an insurable interest in the furniture; that it was properly described; and that there was no material concealment or misrepresentation, in failing to state that the property was in a house occupied by A. Held, also, that statements made by C. under oath, in proofs of loss, “that the property belonged exclusively to the assured, and that no other person had any interest therein,” and that “ the articles named belonged to and were in the possession of the assured at the time of the fire,” did not amount to fraud or false swearing, within a clause in the policy requiring proofs of loss, and providing that any fraud or false swearing should forfeit all claim under the policy.</p> <p>A mistake of fact or honest misstatement under oath, on the part of an assured, does not amount to fraud or false swearing, within the meaning of those words in a policy of fire insurance.</p> <p>A policy of insurance against fire was issued by a foreign stock company, through its agents in this Commonwealth, on household furniture. The policy provided that, in case of loss, the insured should “forthwith” give notice thereof to the company, and, “ as soon after as possible,” make formal proof of loss, after which the company was to have sixty days in which to pay the loss; and that no action should be brought on the policy unless begun within twelve months of the loss. In an action begun on September 3, 1875, there was evidence that the loss happened on January 26, 1874; that the insured gave notice forthwith of the loss to-the agents from whom he procured the policy, and who referred him to one P. as the adjuster for the company, to whom he gave a memorandum of the furniture destroyed; that P. made no objection to its form, and both acted on it as sufficient, the only difference between them being as to the amount of the loss; that, in July the agents who had issued the policy ceased to act, and the negotiations were con. tinned with one T., as general agent of the company, who testified, for the defend, ant, “that he succeededP. in the business;” that he received the memorandum from P. in September, and made no objection to its sufficiency; that the insure^ after this, not finding T. at his office, though he called several times, went to the state where the company had its office, and saw the vice-president, who referred him to T.; that T. encouraged him to believe that the case would be settled, and promised to meet him ; that, on November 25, the insured wrote to the company about the matter, and stated that T. had promised to see him, but had not dons so; that the secretary of the company replied that T. had been kept busy at the office, and that the company was not aware that any proof of loss had yet bean furnished the company; that this was the first intimation the insured had that any objection was taken to the proofs of loss; that in December he wrote to T. and expressed a wish to see him soon, but received no reply ; that no further communication was had until March 30, 1875, when the insured sent formal proofs of loss, and asked for an interview with T., and received a reply signed by T., with the words “ general agent ” added, in which he said that an interview would be useless, “ as we cannot admit any liability.” Held, that the evidence was sufficient to warrant the jury in finding that P. and T. acted as general agents, with the knowledge and approval of the company, having authority to settle the loss, and that they waived the formal preliminary proofs of loss required by the policy; and also in finding that the agents of the company delayed a settlement upon the pretence that they were seeking to adjust the loss, and, while admitting the liability of the company, intended to prolong the negotiation and induce the plaintiff to forego his action for twelve months; and that they wilfully and in bad faith misled him in this respect, and prevented him from so bringing his action; and that, this being so, the action could be maintained</p>

<p>Contract to recover a monthly instalment of rent, alleged to have been payable by the defendants to the plaintiffs on June 7, 1876. Trial in the Superior Court, without a jury, before Pitman, J., who allowed a bill of exceptions in substance as follows:</p> <p>The plaintiffs leased to the defendants an estate in Boston, for the term of one year from November 7, 1875. By the terms of the lease the defendants covenanted to pay an annual rent of $2000, in monthly instalments of $167.67, on the seventh day of every month, beginning on December 7, 1875.</p> <p>On May 26,1876, the defendants filed their petition in bankruptcy in the District Court of the United States for the District of Massachusetts, and on June 1, 1876, were duly adjudicated bankrupts. The defendants pleaded their bankruptcy in bar of the action, and it was agreed that the same effect should be given to the plea as if a discharge in bankruptcy had been pleaded.</p> <p>Upon these facts the defendants asked the judge to rule that their bankruptcy was a bar to the plaintiffs’ right to recover, and was a release from all liability accruing after the date of filing the petition. The judge declined so to rule, but ruled that as the right of action under the lease arose subsequently to the defendants’ adjudication in bankruptcy, their bankruptcy was no bar to the plaintiffs’ right to recover; and found for the plaintiffs in the sum of $166.67. The defendants alleged exceptions.</p>

<p>Contract for money had and received. Trial, without jury, in the Superior Court, before Wilkinson, J., who found for the plaintiff, and allowed a bill of exceptions, the substance of which appears in the opinion.</p>

<p>Contract to recover $1706.87 deposited with the defendant and standing to the credit of Seaman & Co.</p> <p>At the trial in the Superior Court, before Putnam, J., it appeared in evidence that the plaintiff carried on business under the name of Seaman & Co.; that three checks for $850, $658.50 and $198.37 respectively, purporting to be signed by Seaman & Co., were paid by the defendant, the signatures of all of which were admitted to be forgeries ; that the defendant contended it was not liable, because it was through the fault of the plaintiff induced to pay the checks; that the plaintiff had in his employ one Hall, by whom it was agreed that the forgeries were committed ; that the check for $850, which was stamped with the hand stamp of the firm, was paid by the defendant to Hall; and that the checks for $658.50 and $198.37, the first of which was also stamped with the hand stamp of the firm, were delivered by Hall to Worster & Babson in payment for gold purchased, were indorsed and deposited by them, and paid by the defendant through the clearing-house.</p> <p>Francis Harrington, the paying teller of the defendant bank, testified that the plaintiff brought Hall to him, and introduced him to him some months before these checks wefe paid as a proper person to pay money to on the plaintiff’s checks, and said that he would do the business at the bank; that, after this introduction, Hall came to the bank with checks of Seaman & Co., and received the money on them; that he paid to Hall the check for $850; that the other two came through the clearinghouse, and he paid the money on them ; that the two larger checks had stamps on them; that he had very frequently seen a similar impress on the genuine checks j that he had paid checks signed Seaman & Co., and payable to Hall’s own order, which Hall had indorsed in his presence, at the time of payment; that Hall had frequently brought in checks, which were filled in with his own handwriting in the body of them; that the check for $850 was presented by Hall as agent of Seaman & Co.; that it was filled in, in the body of it, with the handwriting of Hall-; that it bore the stamp of Seaman & Co.; that that had some effect on him in inducing him to pay it, though he should have paid it, without that, on the strength of the introduction; that the check for $658.50 had the indorsement of Worster & Babson, and had the stamp, and those facts had some effect on him in inducing him to pay the check, and the signature to the check appeared all right. On cross-examination Harrington said that the check for $198.37 had not the hand stamp on it, but had the indorsement of Worster & Babson, and that had some effect on him, but he relied on his own judgment as to the signature to the check; that he did not compare it with any other signatures ; that he understood that the object of the introduction by the plaintiff was to identify Hall as the proper person to pay the money to, on Seaman & Co.’s checks; and that he was very familiar with the signature of Seaman & Co.</p> <p>Boyal B. Conant, the cashier of the defendant bank, testifica that the plaintiff brought Hall into the bank and introduced him to him; that he said, “ This is Mr. Hall, who will hereafter do my banking business; what he does will be all in order, correct, or right, or something to that effect.” On cross-examination he stated that he understood that it was an introduction, merely an identification of the party; and that he did not understand, from what the plaintiff said, that Hall was authorized to sign hia name as Seaman & Co.</p> <p>The plaintiff introduced in evidence the report of an auditor in his favor, by which it appeared that Hall filled checks very often and numbered the check book when he filled such checks, and that the check book was lying about in the plaintiff’s office during the day, and the hand stamp of the firm was accessible to any one in the office, the hand stamp being very seldom used.</p> <p>The plaintiff contended that, it being conceded that the signatures on the checks were forged, there was nothing in the evidence to exonerate the defendant from liability. The judge so ruled, directed a verdict for the plaintiff, and, by consent of parties, reported the case for the consideration of this court.- If the rulings were correct, judgment was to be entered upon the verdict. If the rulings, or either of them, were incorrect, the verdict was to be set aside, and the case to be returned for a new trial.</p>

<p>Contract for money had and received. At the trial in the Superior Court, before Gardner, J., the material facts appeared to be as follows :</p> <p>Caleb C. Thomas, owning a lot of land, made two mortgages thereof to one Capen, a third mortgage to the defendant, and a fourth mortgage to the plaintiffs. All the debts secured by the mortgages being overdue and unpaid, and Thomas still owning the equity of redemption, the defendant entered for breach of condition of his mortgage, and advertised and sold the premises, under the power of sale contained therein, for a sum sufficient to pay the costs and expenses of the sale, and the amounts due on all the four mortgages. The defendant contended that the plaintiffs, as subsequent mortgagees, could not maintain this action, whatever other remedy they might have. But the judge ruled that the action could be maintained, and, after a verdict for the plaintiffs for the amount due on their mortgage, reported the case for the determination of this court.</p>

Contract against the defendants as members of the firm of Spencer, Vila & Company, on two checks, dated in June, 1872, signed by the firm name, and payable to the plaintiff or order, and on an account due the plaintiff from the firm for the purchase and sale of stocks. Spencer filed an answer containing a general denial, and alleging that he was not a member of the firm at the time of the transactions in question.

Complaint for unlawfully keeping intoxicating liquors with intent to sell the same. At the trial in the Superior Court, before Rockwell, J., the jury returned a verdict of guilty; and the defendant alleged exceptions to the admission of certain evidence, the nature of which appears in the opinion.

Complaint for unlawfully keeping intoxicating liquors with intent to sell the same. At the trial in the Superior Court, before Rockwell, J., the jury returned a verdict of guilty; and the defendant alleged exceptions to the admission and sufficiency of certain evidence, the nature of which appears in the opinion.

<p>Indictment on the Gen. Sts. <?. 87, §§ 6, 7, in two counts, each count alleging that the defendant on January 1, 1877, and on divers other days between that day and the day of finding the indictment, did keep and maintain a certain tenement in New Bedford, for the illegal sale and illegal keeping of intoxicating liquors, said tenement being then and there a common nuisance.</p> <p>At the trial in the Superior Court, before Brigham, C. J., it appeared that the two counts were for separate offences, and referred to separate buildings, and the defendant requested the judge to direct that he be tried separately upon each count. But the judge directed that the trial proceed upon both counts together.</p> <p>It appeared in evidence that the tenement referred to in the first count was the lower floor of a building No. 4 Pearl Street, which was fitted up as a saloon for the sale of liquor, with a bar and other paraphernalia of the trade; and that this saloon, so fitted up, was used and much resorted to for the illegal sale and keeping of intoxicating liquors, the defendant being concerned in keeping the same during the time covered by the indictment.</p> <p>The tenement referred to in the second count was a building on the corner of Third Street and Pearl Street, and the evidence on that count was as follows : The building itself was a house occupied by three families, and was on the same side of Pearl Street as, and the next house east from, No. 4. A porch extended westerly from the corner house to within a few feet of No. 4 ; the door of the porch being about twelve or fifteen feet distant from the back door of No. 4, which back door opened directly into the yard from the bar-room.</p> <p>There was no fence between the two buildings, the yard was common to both, and there was no fence upon Pearl Street. On the Third Street side was a gate in the rear of the corner house, which gate was used in common by the occupants of both houses. Two witnesses testified to a sale of liquor in No. 4, which they entered by this gate on Third Street through this back door. There were two seizures of liquors made, during the time covered by the indictment, by the police of the city, upon search-warrants, in the corner building. The first was of a considerable quantity of various kinds of liquors contained in jugs, bottles and demijohns from a closet in the porch; and the other, some time afterwards, of a variety of liquors, contained in six jugs, from a room in the cellar. The door leading from the yard into the porch was on each occasion found unlocked; but the closet was locked and was broken open by the officers. The cellar was under the main building and was reached by a door from the porch, which was not locked, but the room in the cellar was locked and was broken open by the officers. In the room in the cellar were also found a hand pump, and half pint, pint and quart measures, and tunnels, which had been recently used. The porch contained a pump and implements for washing, such as a nench and tubs, &c., and nothing more; and the closet, which was about four feet square in a corner of this porch, contained nothing but the liquors found. The porch communicated with the cellar, with the main part of the house, and with the second story, but not with the third story.</p> <p>One France, who owned the building and lived in the second story, testified that she let the first floor to one Mathews, and that all the families in the house had the privilege of the porch for water and for washing; and that she knew nothing whatever of any liquor found in the porch; and did not know any was there; she was not inquired of relative to the cellar or the liquor found there. Mathews testified that he hired the first floor with the privilege of the porch, and the privilege of using a room for storage of wood and coal in the cellar when the liquors were found; that he had such a room kept locked, having fuel in it, but no liquors ; that the room in the cellar in which the liquors were found had no fuel in it, and was locked, and that it was not the same room used by him; that the porch was never locked, and was common to the whole house, and the pump in it was much visited by all the neighbors; and that he knew nothing whatever of- any liquors found in the porch or in the cellar, and did not know any were there. No other occupant of the house was called to testify in relation to the matter. Several officers testified that they had seen the defendant drive up to the gate on Third Street many times, and take from the wagon and carry into the gate jugs, and sometimes demijohns, but whether he carried them into the corner house or into house No. 4, they could not say in any case, the back doors of the two houses not being visible to them.</p> <p>There was no evidence that the defendant, or any one for him, had ever been in the corner building or porch; or had ever been seen going in or coming out from there; but all the witnesses for the government testified that they had never seen him in the building nor going in nor coming out from the same, except as they had seen him going in and coming out of the gate. It appeared that the defendant lived and boarded with one Smith, who occupied the upper story of the building No. 4 Pearl Street.</p> <p>There was evidence that officers had many times, during the period covered by the indictment, searched the saloon in building No. 4, but with the exception of two occasions they found no intoxicating liquors whatever; that on those two occasions they only found a very small quantity in bottles on the person of the bar-tender; and that on said several searches, tumblers of different kinds, a tumbler drainer, and in a closet behind the bar a number of new pint and quart glass flasks were found. No search was made in the upper story of No. 4 excepting once, and then no liquor was found.</p> <p>The above was all the evidence in relation to the second count and the defendant asked the judge to rule that there was no evidence upon which the jury could be authorized to convict the defendant upon that count.</p> <p>The defendant also requested the judge to rule that the evidence in relation to the finding of liquors in the corner building was not admissible in support of the first count. The attorney for the government contended, upon all the evidence in the case, that the bar-room in No. 4 Pearl Street was used for the sale of liquors, which were kept stored in the locked apartments in the corner house, and that the liquors found in those apartment,i were intended for the supply of the room in No. 4.</p> <p>The judge refused both requests, and ruled that there was evidence upon which the defendant could be convicted upon the second count; that the evidence in relation to the finding of the liquors in the corner building was admissible in support of the first count, and further instructed the jury as follows :</p> <p>“ If the defendant, within the time alleged in the indictment, kept tenements of one or more rooms in each of two buildings, independent of and detached from each other, evidence that in the tenement in one of these buildings was kept a store of intoxicating liquors, from which such liquors were supplied to his tenement in the other of these buildings, which was used by him for the illegal sale' or the illegal keeping of the liquors thus supplied, may be considered by the jury to explain the fact that upon searching the tenement thus used no intoxicating liquors were found there, or a smaller quantity of intoxicating liquors was found there, in connection with the fixtures and arrangements of a bar-room, than might be reasonably expected in a place used for the illegal sale or illegal keeping of intoxicating liquors. If the defendant during the time covered by the indictment kept tenements of one or more rooms in each of two buildings, independent of and detached from one another, and one of said tenements was used for the illegal keeping and for the illegal sale of intoxicating liquors kept for illegal sale there, or kept for supplying liquor to, and for illegal sale and illegal keeping- in a bar-room in the first named tenement, in which a very small quantity of intoxicating liquors were usually kept, the defendant may be convicted upon the two counts of the indictment, for keeping each of the tenements, which such counts severally describe.”</p> <p>The jury returned a verdict of guilty upon both counts; and .he defendant alleged exceptions.</p>

Indictment on the St. of 1874, c. 356, for illegal voting, found by the grand jury empanelled at January term 1876 of the Superior Court. After a verdict of guilty, the defendant, at January term 1877, moved in arrest of judgment, for the reason that “ the statute, under which the indictment was framed, was repealed by the St. of 1876, c. 172,” passed April 26, 1876. The motion was overruled; and the defendant alleged exceptions.

<p>Indictment for an assault in Lawrence, upon Lizzie F. Hill, with intent to ravish.</p> <p>At the trial in the Superior Court, before Wilkinson, J., Hill testified that the defendant made the assault upon her, on December 12, 1876, about midnight, while she was on her way home unattended; that for a year previously she had known the defendant, and, at the time of the assault knew where he lived; that on some day after the assault, but in the same week, she made complaint to the officer at the head of the Lawrence police force, who afterwards made the arrest. The government offered to prove what she said to the officer at the time she made complaint to him, but, upon the defendant’s objection, the judge excluded the evidence.</p> <p>It appeared in evidence that the defendant was not arrested until December 19, 1876, and the only question submitted by the defendant was the question of identity. For the purpose of showing that Hill did not tell the officer that the defendant was the man who assaulted her, the defendant offered to prove that, from the date of the assault to the time of his arrest, he was, during a greater portion of the time, at his home in Lawrence, where he could easily have been found, and that no effort was made to secure his arrest until December 19. This evidence being objected to, the judge asked the defendant if he still objected to the offer of evidence made by the government and excluded as aforesaid, and, being answered in the affirmative, the judge rejected this offer of evidence by the defendant.</p> <p>The jury returned a verdict of guilty; and the defendant, alleged exceptions.</p>

Complaint to the Police Court of Haverhill for keeping and maintaining a certain tenement in Haverhill, for the illegal sale and illegal keeping of intoxicating liquors, the same being a common nuisance. The record, transmitted to the Superior Court on appeal, was as follows: “ Commonwealth of Massachusetts. Essex, ss.

Indictment for the larceny, on August 1,1875, of 623 pounds of wool, the property of John G. Wright, in a storehouse, the property of John Worster.

<p>On a complaint for selling intoxicating liquor, it is a sufficient statement of the name of the person, to whom the liquor is alleged to be sold, if the name, by which he was generally known at the time of .the sale, is given, although he was baptized by a different name.</p> <p>If, on a complaint for selling intoxicating liquor, the person to whom the liquor ia alleged to have been sold, and who testifies to the sale, admits that he went to the defendant’s place of business for the purpose of procuring evidence against him, and was paid for it, the defendant has no ground of exception to the refusal of the judge to give an instruction that the evidence of such person should be considered with great care, or to the giving of an instruction that in considering his testimony the jury should have regard to what appeared in the evidence, as to the part he had taken, that when a witness has by words or acts manifested a feeling adverse to the defendant, or, for any cause, might be affected by prejudice, the jury should consider and weigh these facts, and make reasonable allowance therefor, in considering his testimony.</p>

Complaint on the Gen. Sts. c. 87, §§ 6, 7, made and sworn to by William W. Pratt before a justice of the peace on December ‘1, 1876, and charging the defendant in due and usual form with unlawfully keeping and maintaining a common nuisance, to wit, a tenement used for the illegal keeping and illegal sale of intoxicating liquors, at Stoneham, “on the first day of July in the year, of our Lord one thousand eight hundred and seventy-six, and .on divers other days and times…

Indictment for perjury, alleging that “the jurors for the Commonwealth of Massachusetts on their oath present ” that, at October term 1876 of the Superior Court, a certain issue in due manner joined in that court between said Commonwealth and the defendant, upon a certain indictment, came on to be tried, and was then and there in due form of law tried by “ a certain jury of the country,” in due manner returned; and that at and upon the trial of the said issue, the defendant…

<p>In a criminal case tried in the Superior Court, and in which exceptions alleged at the trial have been entered in and overruled by this court, and a rescript sent down accordingly, a motion for a new trial, on grounds not affecting the correctness of the decision upon the exceptions, cannot be made in this court.</p>

Indictment alleging that the defendant assaulted George W Rigby, a police officer, and unlawfully obstructed him in the execution of the duties of his office.

Indictment for the murder of Charles Ricker at Lowell, in the county of Middlesex, on August 31, 1876. Trial before Ames and Morton, JJ., who allowed a bill of exceptions in substance as follows : It was proved that Charles Ricker came to his death by a shot from a pistol in the hand of the defendant.

Indictment in four counts, charging the defendant with receiving three bonds of the United States, knowing them to he stolen. At the trial in the Superior Court, before Bacon, J., the jury returned a verdict of guilty, on the second count, of receiving two of the bonds; and the defendant alleged exceptions, the material parts of which appear in the opinion. The case was argued in March, 1877, and a rescript was entered overruling the exceptions.

Indictment for assault upon an officer while in the discharge of his duty.

<p>Indictment for larceny on April 14, 1877, of a horse and two wagons alleged to he the property of William C. Hawkes.</p> <p>At the trial in the Superior Court, before Wilkinson, J., the government introduced evidence tending to show that Hawkes had his place of business near the defendant’s stable, and kept his horse and wagons in that stable; that Hawkes offered the defendant a commission if he would bring to him a purchaser of the horse and wagons at a stated price, but in no case was the defendant to make a sale of the property. This was denied by the defendant, who offered evidence tending to show that he was authorized by Hawkes to sell the property to any purchaser he might find, with no limitation, except as to price. It also appeared in evidence that on April 14, 1877, the defendant sold and delivered the horse and wagons by bill of sale to one Keenan, for $210, and that this money was never paid over or offered to be paid over to Hawkes. The government also introduced evidence tending to show that the defendant absconded with the money, and could Hot be found by the officer who had a warrant for his arrest.</p> <p>The defendant asked the judge to instruct the jury that, il the defendant, after selling the property rightfully, intended upon receiving the proceeds of such sale, or after receiving such proceeds, to convert them to his own use, and did in accordance with such intention keep the same, such intention and keeping was not evidence tending to show the alleged larceny.</p> <p>The judge declined to instruct the jury in the manner requested ; but on this part of the case, instructed them as follows;</p> <p>me defendant is charged in the indictment with a larceny of the wagons and horse, and not of the money received therefor; and unless the jury are satisfied, beyond a reasonable doubt, that the taking and selling of the wagons and horse was without right or color of right, the defendant cannot be convicted. If the defendant sold the wagons and horse rightfully, or under an honest belief that he had such right, no wrongful appropriation or keeping of the money would warrant a verdict of guilty. The fact, however, if the jury find it proved, that the defendant absconded and kept the money may be considered by the jury as evidence bearing upon the question whether the taking and selling of wagons and horse were felonious.”</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>A person who is held in custody on a charge of crime jointly with another person is not called upon to contradict statements prejudicial to him, made in his presence hy the other person, in answer to inquiries made by an officer; and such statements, though not contradicted by him, are not admissible in evidence against him.</p>

<p>Writ of entry, dated October 6, 1862, against the heirs of James Hannan, to foreclose a mortgage of land in Brimfield. Plea, nul disseisin, with a specification of defence that the mortgage was given without consideration, and was never intended or considered by the parties to it as a valid transaction.</p> <p>At the trial in the Superior Court, before Brigham, C. J., it appeared that James Hannan, on October 6, 1862, executed and delivered the mortgage to the demandant. The consideration stated in the mortgage was |1200, and the condition was as follows : “ Provided nevertheless, that if the said James Hannan, Ms heirs, executors or administrators, shall pay unto the said Dennis Hannan, his executors, administrators or assigns, the sum of twelve hundred dollars on demand, with interest annually, then this deed, as also a note bearing even date with these presents, signed by the said James Hannan, whereby he prom« ises to pay to the said Dennis Hannan the said sum and interest at the times aforesaid, shall both be absolutely void to all intents and purposes.”</p> <p>The demandant contended that there was a pecuniary consideration for the mortgage, but that no note, as recited in the mortgage, was given, and he produced none; and he further contended that a consideration was implied from the instrument. It was conceded that nothing had been paid upon the mortgage, either principal or interest.</p> <p>The tenants contended that it was competent for them to show by paroi evidence that no indebtedness ever existed between the parties to the mortgage, as a consideration therefor; that the mortgage was given without consideration, and was not given by James to Dennis Hannan as a gift, but to put the property out of his hands to protect it against possible liabilities to third parties ; and contended that such proof, showing that there was no debt due, would constitute a good defence to the action, and that no conditional judgment could be had.</p> <p>It was thereupon agreed that, if such proof was competent, and a good defence, judgment should be entered for the tenants; otherwise, judgment for the demandant, and conditional judgment for $800, and interest from the date of the mortgage.</p> <p>By agreement of both parties, the case was taken from the :ury before verdict, and reported to this court.</p>

<p>In a probate appeal, the decision of a single judge on questions of fact will not be reversed, unless it is clearly shown to he erroneous.</p> <p>An intestate left a widow, to whom he was married in 1855, after having unlawfully cohabited with her for eight years. They lived together after marriage for about two years, when difficulties arising between them on account of his gross and confirmed habits of intoxication, which had existed throughout their cohabitation, they agreed that she should live apart from him for a year and then return. Before she went away, he withdrew his consent, but she insisted on leaving. At the end of the year she returned, but, finding that he had a housekeeper, with whom she believed him to be living in adultery, there being no bed in the house but his own, she went away and never returned, and was not asked to do so, but continued living apart from him, rendering him no services and supporting herself, until his death, which took place some years afterwards. She had no children by him, was in her seventieth year, and had no means of support. The Probate Court, upon the application of the widow, made ner an allowance of $350; and its decree was affirmed, on appeal by the administratrix, by a justice of this court. Held, upon appeal to the full court, that the decree should be affirmed, with costs.</p> <p>At the hearing on an appeal by an administratrix from a decree making an allowance to the widow of an intestate, evidence that the assets in the hands of the appet lant are insufficient to pay the allowance made to the appellee by the Probate Court is inadmissible, if the fact of such insufficiency is not stated as one of the reasons of the appeal.</p>

Contract for money had and received. The declaration also contained counts in tort, alleged to be for the same pause of aofcion. Writ dated November 2, 1874.

<p>By the St. of 1852, c. 244, the East Boston Ferry Company was incorporated for the purpose of establishing and supporting a ferry between the main land in the city of Boston and the island of East Boston, and was allowed to collect and receive such tolls as the mayor and aldermen should determine; and the city of Boston was authorized, at any time during the continuance of the charter, to purchase the ferry and franchise of the company, and to issue scrip in payment therefor, and thereupon to collect the same rates of toll as were allowed to the company; provided that whenever the tolls collected should he sufficient to reimburse the city for the cost of the ferry, with annual interest on the scrip, and for all the expenses of the repairs and additions to the ferry, and all current and incidental ex penses of its superintendence and its management, and to provide a sufficient fund for its future support, “then the tolls on said ferry shall cease, and said ferry shall ever after be maintained by said city of Boston as a free ferry.” By the St. of 1869, c. 155, § 1, the city council, “for the purpose of improving private property, and of protecting the same and the travel and business between the main land in said city and East Boston from the disabilities and burdens of the ferry communications heretofore existing between said parts of the city, and of furnishing additional facilities to said travel and business,” was authorized to purchase thb ferry and franchise of the company, and to cause the ferry to be maintained “ in such manner and upon such rates of ferriage as the board of aldermen of said city shall from time to time judge the best interests of the said city to require, excepting only as hereinafter provided.” By the subsequent sections of this statute, the city council, “ upon the completion of said purchase,” was authorized to determine whether the interests of the city would be best promoted by maintaining the ferry free of tolls, either “thereafter” or “for a term of not less than ten years next succeeding said purchase; ” and, if either of these alternatives was adopted, tne board of aldermen was to adjudge whether East Boston, or any and what part thereof, would receive special benefit and advantage from the purchase, and provision was made for the assessment and levy of a portion of the cost upon the owners of real estate in the territory so adjudged to be benefited. In 1870, the city purchased the ferry, and maintained it for seven years afterwards at rates of toll fixed by the board of aldermen. Held, that the city council could not now determine to run the ferry free of toll.</p> <p>If the city council of a city, authorized by statute to maintain a ferry at such rates of toll as the board of aldermen may from time to time determine, orders that the ferry be run free of toll on and after a future day, this court, on an application made before that day arrives, may, by a writ of mandamus to the. city council, compel the city to continue to collect the tolls established by the board of aider-men.</p> <p>If the city council of a city, authorized by law to maintain a toll ferry, illegally orders the ferry to be run free of toll, a writ of mandamus may be demanded by the attorney general.</p>

<p>Contract for goods sold and delivered. Answer: 1. A general -denial; 2. That the goods were sold to Howard Crafts and Judson < Crafts, doing business under the firm name of Crafts Brothers; and that they paid for the same by their notes.</p> <p>Triahin the Superior Court, before Rockwell, J., who allowed a bill -of-exceptions in substance as follows :</p> <p>W. D. Vietts testified, for the plaintiffs, that he was their agent in selling liquors; that a few days before October 10, 1873, he saw the defendant at Holyoke, and the defendant told him that he had bought out a billiard-room, and was going to put his brothers in to run the place; that they would want some liqnors, and he wished some might be sent; that he then ordered certain liquors, being the goods in question, and directed them to he sent to him; that the brothers did in fact run the place, and appeared to do all the business of the saloon; that on October 10, 1873, he saw one of the defendant’s brothers at Hartford, who told him that the defendant had given his brothers authority to act as his agents in purchasing stock in the business, and asked him to hurry up the goods ordered previously by the defendant; that the brother also said he wished the witness would write to his principals in New York at once, for the goods; that the witness wrote at the brother’s request. The letter was produced, and it contained an order for liquors, (which the witness testified were the same ordered by the defendant,) and named the defendant as the person to whom the liquors were to be sent. There was no evidence that the defendant or either of his brothers read the letter, or heard it read before it was sent, nor was there any evidence to show that the defendant or either of his brothers saw the letter after it was written, ex . cept that it was in the presence of the brother requesting it.</p> <p>The defendant objected to the admission of the letter, and of the conversation with the defendant’s brother, but the letter and the testimony in regard to the conversation were admitted.</p> <p>Vietts also testified that on November 29, 1873, he visited the saloon in Holyoke, and saw the defendant’s brothers, and asked for a settlement of the bill; that one of the brothers wrote a promissory note, for part of the amount due, payable in ten days, signed it “ Crafts Brothers,” and handed it to the witness. For the purpose of showing fraud in the giving of the note, and to show that this note and another subsequently given did not constitute payment of the bill, Vietts was asked to state what was said when the first note was given, and, against the defendant’s objection, was allowed to state that, on receiving the note, he asked why it was signed in that way, and was told by one of the brothers that the defendant was one of the firm of Crafts Brothers. Vietts also testified that attempts had been made to collect the note; that it had been put in a bank for collection and had been protested; and that on December 26,1873, another note, signed “ Crafts Brothers,” was given for the amount of the first note and the balance of the bill, payable on demand. The defendant gave the plaintiffs notice to produce the notes at the trial, and they were produced and put into the case without objection. There was no evidence that either note had been returned to Crafts Brothers or to the defendant.</p> <p>It appeared that the defendant lived a mile and a. half from the saloon, and did not personally attend to it; and it was conceded that he was not in fact a member of the firm of Crafts Brothers. The defendant also put in evidence tending to show that he never ordered the goods, never directed that they should be charged to him, never had them, and did not agree to pay for them; and that one of his brothers was the owner of the stock in trade at the saloon. He also denied giving authority to his brothers to purchase goods on his credit.</p> <p>The jury returned a verdict for the plaintiffs for the full amount of their bill; and the defendant alleged exceptions.</p>

<p>In an action by a workman against his employer, for personal injuries caused by the fall of a staging, upon which the plaintiff was at work as a mason erecting a mill, the evidence tended to show that the staging was erected by fellow workmen of the plaintiff, out of material furnished by the defendant; that the staging was insecure by reason of a small piece of defective timber, called a putlog, on which the floor of the staging rested, and which had been in use by the defendant about two years; that the material for the staging was lying on the ground in piles near the building, and, from the mass, persons, who were afterwards the fellow workmen of the plaintiff, selected such material as they wanted, including the putlog in question ; that some of the workmen were journeymen whose trade it was to learn to build safe and proper staging, and that they superintended the erection of this staging. The judge instructed the jury that the plaintiff could not recover unless the jury were satisfied that the defendant did not exercise ordinary care in the selection of men and materials to erect the staging, and that such want of ordinary care caused the accident; and that, if the defendant was to furnish a staging as a completed structure, he was to use such care in so doing as any person of ordinary prudence would use in providing such a structure; and that if he was only to furnish material, or to furnish this putlog as a manufacturer’s utensil, he was to use ordinary care in so doing. The judge also, at the request of the defendant, further instructed the jury that if the defendant employed competent men to take charge of the erection of this building and of the necessary staging, and furnished suitable material for building the staging, out of which material a fellow workman, not under the superintendence of the defendant or his agent, selected a defective putlog which broke after the staging was erected, by which the plaintiff was injured, the defendant was not liable; and that the defendant was not liable if he used ordinary care and prudence in the selection of competent workmen and materials, from which the staging was made. Held, that the plaintiff had no ground of exception.</p>

Bill ih equity, filed March 8, 1877, by O. G. Spelman, Lewis Bodman, Henry L. James, Joel Hayden and William Skinner, against the administrators of the estate of Joel Hayden, deceased. The bill alleged that the defendants’ intestate together with the plaintiffs and Alfred P. Critchlow and the Nonotuck Silk Company, by Lucius Dimock, executed the following instrument : “ Williamsburg, January 26, 1866.

Petition in equity, filed April 26, 1877, alleging that on December 22, 1875, the defendant corporation was temporarily enjoined from doing any further business; that on December 30, 1875, by a decree of this court, the injunction was made perpetual and the petitioners were appointed receivers to wind up the affairs of the corporation, and immediately entered upon the discharge of their duties; that the corporation was permitted to continue its organization only to do such…

<p>Petition to the Superior Court, filed May 23, 1874, under the St. of 1871, o. 361, § 3, for the appointment of commissioners to assess the damages sustained by the petitioner by the taking, by the city council of the city of Worcester, of East or Lynde Brook, in the town of Leicester, to supply the city with pure water.</p> <p>After the former decision, reported 119 Mass. 375, commissioners, appointed by the court, heard the parties, and made an award, filed February 24, 1876, in which they determined the amount which should be paid as damages to the petitioner. In the Superior Court, on March 27, 1876, the respondent claimed in writing" a trial by jury, and the case was tried, before Rockwell, J., who allowed a bill of exceptions in substance as follows:</p> <p>It appeared that the petitioner was the owner in fee simple of a tract of land in the southerly part of Worcester, lying on both sides of a natural stream of water called Kettle Brook, on which it had water-mills, a dam and a pond, for supplying power for the mills ; that it acquired title to the land by deed on July 16, 1870; and that East or Lynde Brook was a natural stream of' water flowing into Kettle Brook above the petitioner’s premises.</p> <p>It also appeared that the St. of 1854, e. 338, was accepted by the city of Worcester on May 27, 1854, and the St. of 1856, c. 189, on December 12, 1871. The St. of 1861, c. 118, was in evidence. The petitioner put in evidence the Sts. of 1864, c. 104, and of 1871, c. 361, and the following order of the city council, passed December 22, 1871:</p> <p>“ Whereas the city of Worcester, in the exercise of powers conferred by the laws of the Commonwealth, for the purpose of supplying said city with pure water, has heretofore erected a dam across the valley of East or Lynde Brook, in the town of Leicester, and thereby formed a reservoir of water, and has constructed an aqueduct for conveying the water of said Lynde Brook to said city, and has acquired and taken all the land occupied by said dam, and all the land flowed by the waters of said reservoir, and the right to flow said land by said waters, and all the waters of said East or Lynde Brook, and of all branches and tributaries thereof, and all waters flowing into said brook, branches and tributaries, it is now in the exercise of the powers aforesaid.</p> <p>“ Ordered, that all the aforesaid acts and doings of said city be, and the same are hereby established and confirmed, and that said city hereby takes and appropriates, for the said purposes, the right to raise said dam five feet above its present height, and the right, by means of said dam, to flow back the waters of said East or Lynde Brook upon the lands above said dam, and all the lands which would thereby be flowed; also a strip of land ten rods in width around the entire margin of the reservoir thereby erected for the preservation and purity of the same. Also a certain tract of land situated in said Leicester. [Here followed a description of the land covered by the reservoir.]</p> <p>“ And it is further voted, that all the lands, brooks, streams, water-courses, water-rights and rights of flowage hereinbefore mentioned, be and the same are hereby taken by said city, and forever appropriated, established and confirmed for the purpose of supplying said city with pure water, and for the laying out and maintaining an aqueduct for conducting said water to said city, and for forming a reservoir to contain and hold said water, and for the preservation and purity of said dam, reservoir, aqueduct and water, the same being necessary therefor.</p> <p>“ And his honor the mayor is hereby authorized and directed to file in the office of the registry of deeds for the county of Worcester a description of said lands, brooks, streams, watercourses, waters, water-rights and rights of flowage, as certain as is required in a common conveyance of lands, and a statement of the purposes for which the same are taken, said description and statement to be signed by the mayor, and to be under the seal of the city.”</p> <p>The petitioner also put in evidence a description of the water or stream taken by the respondent and a statement of the purposes for which it was taken, reciting the above order of the city council, dated December 26,1871, signed by the mayor and filed in the registry of deeds on December 27, 1871.</p> <p>The respondent put in evidence an order of the city council of Worcester made on February 8, 1864, and it was contended that this authorized the taking of land, and that the land of the petitioner was taken under it; but a statement of the language of this order is not now necessary.</p> <p>It appeared that no compensation had ever been paid to the petitioner or to any former owners of its estate for any taking of East or Lynde Brook for supplying the city of Worcester with water. The judge ruled that the petitioner could not recover, and directed a verdict for the respondent; and the petiloner alleged exceptions.</p>

Contract, against W. A. Williams and Susan E. Williams, his wife, on an account annexed for work and labor. Answer: 1. A general denial. 2. That the plaintiff did the work under a special contract, by the terms of which he was to take in payment blacksmithing work to a certain amount, and the balance in a building lot to be selected by the plaintiff near a certain street, the lot to be conveyed to the plaintiff by the defendants, in July, 1875.

Tort for personal injuries alleged to have been caused by a defect in a highway called Main Street, in the defendant town, and about a mile from the centre of the village, on May 29, 1874. Writ dated April 28, 1875.

<p>Tobt for taking sand and gravel from the southerly portion of Nantasket or Long Beach in. Hull. 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, so much of which as is necessary to the understanding of the point decided was as follows:</p> <p>The defendant, acting under the authority of the town of Hull, dug up and carried away the sand and gravel for the purpose of repairing its highways; and, if the town had the right to take sand and gravel from the beach, the defendant was justified in so doing; all such sand and gravel was taken from between mean high-water mark and mean low-water mark. The beach in question was within the bounds of the common and undivided lands in Hull, recited in the St. of 1811, c. 56, §§ 1, 3, and was conveyed to the plaintiff by the county commissioners of the county of Plymouth on November 14,1866. For some years before 1810 the rights of taking seaweed from the beaches, and of feeding cattle on the common and undivided lands in Hull, had been in dispute between the proprietors and the town. In May, 1810, the proprietors presented a petition to the Legislature, representing that, in consequence of the town’s never having particularly located a highway across these commons, the inhabitants had claimed and exercised a right of turning their cattle and sheep into the streets, whereby they had free communications with the commons; and praying for an act of incorporation “to enable the proprietors of these common rights to secure, manage and dispose of the same, so as to secure their rights and best promote their interests.”</p> <p>On November 17, 1810, the town passed this vote : “ Voted, not to oppose the petition of said proprietors, if the proprietors agree to let the town have the beaches; also all the feeding lands in the township from Stony Beach to the point that is enclosed by gates and water-fences; also said town doth agree to give up to said proprietors all the feed that grows on the road leading through said commons. In consequence, said proprietors are to give up said beaches to the town, that is to say, said proprietors do give up to the town all said beaches rent for, be it more or less; then voted and agreed that the town pay for all the gates and water-fences.”</p> <p>On June 22, 1811, the Legislature passed an act incorporating the proprietors, (St. 1811, e. 56,) the first section of which defined bhe boundaries of their lands, including the whole of Nantasket or Long Beach, and the third section contained this clause, “ also reserving to the town of Hull the privilege of the shores, and of feeding all lands, not comprehended within the aforementioned bounds.”</p> <p>The records of the town from 1780 to 1808 are lost, and no proprietors’ records between those dates are in existence, so that no means exist of ascertaining who had control of and took the seaweed, sand and gravel from the beaches during that time. In 1808, 1809 and 1810, the town voted to let to various persons the right to take from the beaches seaweed, stones, sand and gravel. From 1810 to 1837, the town, by various votes, sold stones, sand, gravel, seaweed and driftwood from the beaches, claimed the beaches as belonging to the town, and that they were to be defended as such by law, and used sand and gravel from the beaches to repair its highways; and during that period the town was not interfered with in its dealing with the beaches, its doings being known to the proprietors. The proprietors organized under the St. of 1811, on March 5, 1812, and have since had exclusive possession of the land described in the first section, except in so far as their possession of Nantasket or Long Beach is deemed to be controlled by the facts herein stated. For a long series of years, beginning as early as 1837, until 1864, as shown by the votes of the town and of the proprietors, the right to manage the beaches was in controversy between them. On May 29, 1865, the county commissioners of the county of Plymouth purchased, under the authority of the St. of 1864, c. 45. the common and undivided lands of the proprietors.</p>

<p>It is a good consideration for a promissory note that the promisor gave it at the request and for the benefit of his son, who was in the employ of the promisee, to be applied by the latter towards the payment of a defalcation of the son, the note being so credited to the son on the books of the promisee.</p> <p>A. executed a deed of mortgage of land containing the condition “ that if, on demand, there shall be paid” $1000 on a certain promissory note, signed by A. as indorser, then the deed should be void. The note was signed by A.’s son as principal, and was for more than $1000, and was given on account of a defalcation of his, and upon the giving of which the son was taken back into the promisee’s employ, upon an agreement that a part of his wages should be applied in payment of the debt, under which arrangement more than $1000 was received by the promisee out of the son’s wages, leaving more than $1000 due on the note. Held, on a bill in equity by A. to redeem the mortgage, that the amount received from the son’s wages was not to be credited to the mortgagee.</p> <p>A decree of a judge in equity, making an allowance of interest in accordance with a finding of a master, to which no exception was taken, cannot be revised on an appeal to the full court.</p>

<p>A petition under the Gen. Sts. c. 44, § 19, to the mayor and aldermen of a city, alleging the ownership of land on A. Street and damages thereto because of repairs on A. Street, B. Street and C. Street, with a prayer for compensation, is sufficient, and will entitle the petitioners to damages sustained by reason of the repairs on A. Street.</p>

<p>Information, filed July 9, 1877, by the attorney general in behalf of the Commonwealth, alleging that in the city of Lynn, in the county of Essex, there was and long had been established a police court; that said police court consisted of one standing justice and of two special justices; that on January 15, 1867, Nathan M. Hawkes of said Lynn was duly appointed and commissioned a special justice of said police court, and since said January 15 had acted as such special justice ; that he was duly elected a member of the House of Representatives of the Commonwealth for the year 1877, and on Wednesday, January 3, 1877, took his seat as a member of the House of Representar fives, in accordance with his election-, and had ever since and still held his seat in the House of Representatives ; that by reason thereof he ceased to be a special justice of said police court, yet he had ever since that day continued to act and still acted as special justice of said court; and concluding as follows: “ Wherefore said attorney general giveth the court to understand and be informed that said Hawkes, without any legal warrant or right whatever, is in the use and exercise of said office of justice of the police court in the city of Lynn, and has usurped the same, in contempt of said Commonwealth, and against the peace and dignity of the same. Whereupon said attorney general for said Commonwealth prayeth the consideration of the honorable court here in the premises, and that due process of law may be awarded against him, said Nathan M. Hawkes, in this behalf, to make him answer to the Commonwealth, and show by what authority he claims to have, use and enjoy the office aforesaid.”</p> <p>It was thereupon ordered that notice be given to the defendant to appear on a day named and show cause why the prayer of the information should not be granted.</p> <p>The defendant appeared and filed a demurrer to the information; and the case was reserved by Lord, J., for the consideration of the full court on the information and demurrer.</p>

<p>In an action for personal injuries caused by an obstruction in a highway, where the evidence is conflicting as to the cause of the accident and the general character of the horse which the plaintiff was driving at the time of the accident, evidence of the character and habits of the horse, as well after as before the accident, is admissible.</p>

<p>In an action on an account annexed for wood sold to A., the report of an auditor stated that the plaintiff sold the wood in question to B., who was then engaged in manufacturing bricks for A. under a written agreement, by which A. was to furnish all necessary materials for making the bricks, except the clay; that the wood was delivered at the brick-yard, occupied by B., and there used by him in making the bricks for A.; that A. frequently visited the yard while the wood was being so used, and in fact sold a part of the bricks after they had been manufactured; that the plaintiff, at the time of the sale to B., was ignorant of the agreement between A. and B., and of the fact that any person except B. had an interest in the business, and was first informed of it within a week before suit was brought; that, in the meantime, A. and B. had made a final settlement of their accounts, in which A. gave up to B. certain promissory notes held against him, and B. released to A, his claim for making the bricks, and executed to him a receipted bill for the wood, which was dated prior to the time of settlement; and found for the plaintiff. The judge ruled that, on these facts, the auditor was not justified in finding for the plaintiff, and ordered a verdict for the defendant. Held, that the ruling was erroneous, and that the evidence should have been submitted to the jury.</p>

Tort for breaking and entering the plaintiffs’ close in Newburyport and removing a fence therefrom. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court on appeal, on agreed facts in substance as follows: The defendant, as an officer of the city of Newburyport, removed the fence from the plaintiffs’ premises, contending that it was within the limits of State Street.

Contract, on an account annexed, for $150, being the balance alleged to remain unpaid of the salary of the plaintiff, as teacher of the high school in the defendant town, for the year ending July 7, 1874.

Contract against Halsey J. Boardman, J. B. Loomis, J. W. Beals and Edward Page, on two promissory notes, signed “ Bequest Iron Association, J. W. Beals, treasurer,” payable to the order of the defendants and by them indorsed. The first note, dated September 29,1875, was for $446.51, payable four months after date; and the second, dated September 30, 1875, was for $2734.13, payable three months after date. Writ dated March 11, 1876.

Tort for malicious prosecution. In the Superior Court at January term 1875, the case was referred, by agreement of parties and' rule of court, to “ Henry W. Paine, Esq., as chairman, and William Washburn and John D. Morton as associates, for hearing and final determination according to the rules and principles of law.

Contract to recover $511.28. The case was submitted, to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, on agreed facts in substance as follows: On November 18, 1873, John Foley mortgaged a parcel of land to Benjamin B. Ware and John Q. A. Clifton, to secure the payment of two promissory notes, one for $1000, payable in three years, and the other for $2000, payable in five years.

Contract upon a promissory note, dated July 13, 1868, for $773, on demand, signed by the defendant, and purporting to be attested by Joseph I. Hickey. Writ dated May 6, 1875. Answer: 1. Want of consideration; 2. The statute of limitations.

Writ of entry dated September 20, 1875, to recover a parcel of land in Boston, marked A on the plan printed in the margin of the next page. Plea, nul disseisin.

Tort tor interrupting and obstructing certain easements elaimecl by the plaintiff in a parcel of land lying westerly of Atlantic Avenue, and marked B on the plan printed ante, 562.

Petition, under the Gen. Sts. c. 150, to enforce a mechanic’s lien for $178 for labor performed and materials furnished in the construction of a building.

Contract upon a policy of insurance against fire, issued by the defendant to the plaintiff “on his frame dwelling-house.” The policy contained the following clause : “ When the assured shall alter or enlarge a building, or appropriate it to other purposes than those mentioned in the policy, so as to increase the risk, without first obtaining the consent of the directors, and paying such premium as they may require, the said policy shall thereupon be void.” The pleadings…

Contract on an account annexed for services rendered and disbursements made by the plaintiff as an attorney at law.

<p>H the time for the filing and presentment of exceptions has been extended, under the Gen. Sts. c. 115, § 7, by the presiding judge, to a particular day, and this day is a legal holiday, and the excepting party fails to present them until the next day, the exceptions will be dismissed, if the adverse party takes the objection before the allowance of the exceptions.</p>

Contract for $132, money had and received, with a special count for the same cause of action. Trial in the Superior Court, without a jury, before Brigham, C. J., who found the following facts: Edward De Anguera brought an action against John Rogers, the present plaintiff, in the First District Court of Eastern Middlesex, for the price of a piano alleged to have been sold and delivered by De Anguera to Rogers.

Writ oe error to reverse a judgment rendered by the Superior Court, at March term 1877, affirming a judgment on default of the First District Court of Eastern Middlesex, for $50 and costs, in an action of contract brought by George H. Holden and Warren Holden against Martin Mullaly. Plea, in nullo est erratum. The error assigned was that the declaration alleged no legal cause of action.

<p>A. by his will devised certain real estate to his son B., on the condition that B. should provide for the support of his brother C., “ but if said B. shall neglect or refuse to perform and accept ” the condition named, then the estate should go to D., upon the same condition, “but not otherwise.” C. died in the lifetime of the testator, nnmarried and without issue. Held, that the condition became impossible by the act of God, and that B. had an absolute estate.</p>

Motion in the Superior Court to set aside an award made and returned into that court in pursuance of a submission before a justice of the peace under the Gen. Sts. c. 147, §§ 1, 2, on the ground that the arbitrators had made certain mistakes of law.

<p>Contract upon a promissory note, dated July 10, 1869, for $500, payable to the plaintiff, or order, on demand, with interest semiannually, signed by Samuel Shute as principal and by the defendants as sureties. Writ dated January 15, 1877. Answer, the statute of limitations.</p> <p>At the trial in the Superior Court, before Wilkinson, J., the note was produced in evidence and the signatures of the defendants admitted. The plaintiff, to take the note out of the statute of limitations, relied upon payments of interest, regularly made every S'x months from the date of the note to January 10,1876, and indorsed on the back of the note. These payments were made by Shute, and indorsed by him on the note. The defendants made no payments on the note, nor had they any knowledge of the payments by Shute, nor of the indorsements on the note.</p> <p>The judge directed the jury to return a verdict for the defendants, and reported the case for the determination of this court.</p>

<p>Petition to establish the truth of exceptions disallowed at . the hearing and trial of an appeal from a decree of the Probate Court, admitting an instrument to probate as the will of Thomas Davis, by which he appointed his wife, Edna J. Davis, executrix ; directed his executrix to furnish his son Franklin M. Davis a suitable support out of the estate until he became of age; devised and bequeathed all the residue of his estate to his wife, so long as she should remain unmarried and his widow, with remainder, on her decease or marriage, to his four sons, to be divided among them and the issue of any deceased son by right of representation; directed that the share of his youngest son, Franklin M., in his estate, together with the estate transmitted to him by his mother, should not exceed the share of his other sons in his estate; and authorized his wife, so long as she should remain unmarried and his widow, to sell at public or private sale any part or all of his real estate, when it could be done to advantage, and to execute proper conveyances of the same, the proceeds to be deposited in a savings bank, or, with any personal property left by the testator, to be invested in certain securities, and his wife, if the income of the estate was insufficient, to use so much of the principal as might be necessary for her support.</p> <p>The reasons of appeal were as follows: 1st. “ Because the said instrument was illegally made and executed. 2d. Because the said Thomas Davis, at the time when he executed said instrument, was not in a sound and disposing state of mind. 3d. Because said Thomas Davis was induced to execute said instrument by misrepresentation, deception and fraud. 4th. Because said Thomas Davis was induced to execute said instrument by undue influence.”</p> <p>The present petition alleged that upon an application to frame issues to a jury, Soule, J., ordered that the only questions submitted to them should be, 1st, whether the deceased, at the time of executing the instrument, was of sound mind; 2d, whether the execution of the instrument was procured by the fraud' and undue influence of the executrix, and of others acting- in- her behalf; and refused the request of the appellants that' the following additional questions should be submitted to the jury; 3d, whether the instrument was the will of the deceased, executed by him with knowledge of its contents ; 4th, whether the deceased, at the date of the instrument, wished or intended to give his wife the right, in her own discretion, to dispose of his whole estate, or of any part of the principal thereof; and that to this order and refusal the appellants alleged exceptions.</p> <p>The petition further alleged, in substance, that a trial by jury was had upon issues framed according to the order aforesaid, and a verdict returned thereon in favor of the executrix; that at such trial other exceptions were taken, and, together with .the exception before mentioned, were reduced to writing, filed, notified to the adverse party, and presented to the judge, within three days after the verdict; that the judge, after hearing the counsel of the parties, prepared a new draft of the bill of exceptions, stating the same questions and in the same aspect as in the bill of exceptions presented to him by the appellants, except in omitting their exception to the order and ruling upon the issues to be submitted to the jury; and that the judge made a certificate under his hand, disallowing the bill of exceptions presented as incorrect, because no exception had been taken to his refusal to submit the additional issues to the jury, but expressing his readiness, if the appellants would strike out the alleged exception to such refusal, to allow a bill of exceptions substantially as drawn by him as a substitute for the bill presented.</p> <p>The petition prayed that the truth of all the exceptions might be established; and the petitioner moved that it might be referred to a commissioner to report the facts to the court.</p> <p>By .direction of the court, the argument was confined, in the first instance, to the questions, whether the refusal to submit the additional issues to the jury was the subject of exception; whether these issues were included in the reasons of appeal; and whether, if the exception to such refusal was rightly disallowed, the petitioners were entitled to be heard upon the exceptions taken at the trial.</p>

<p>Contract. The defendant filed a declaration in set-off on an account annexed, one item of which was $1000 money paid. The defendant died pending the action, and his administrator appeared. The ease was tried in the Superior Court, without a jury before Rockwell, J., who ruled that the set-off could not be maintained, and found for the plaintiff. The defendant alleged exceptions, the substance of which appears in the opinion.</p>