Volume 125 — Massachusetts Reports

Petition to the Superior Court, alleging that the petitioner was aggrieved by an award of the county commissioners, allowing $875 as damages caused by the location and construction of the petitioner’s railroad over the land of the respondent in Falmouth ; and praying for a jury to assess such damages.

<p>The officer’s return on a levy of execution upon land is, as against the _ udgment debtor, conclusive evidence of the competency of the appraisers.</p> <p>The officer’s return on a levy of execution upon two lots of land described them, by reference to the appraisers’ certificate, as owned in severalty by the judgment debtor, (whereas in fact his interest was an undivided half as tenant in common with another person,) and as bounded by a road and by land of persons named and as containing one about five acres and the other as containing two acres. In a writ of entry, brought by the judgment debtor against a person to whom the judgment creditor had conveyed one half of the two lots of land, the debtor contended that the levy was void because it failed to describe the land levied upon and the debtor’s interest therein as required by law; and offered evidence that the lot described as containing “ about five acres,” contained twenty acres, and that the lot described as containing “ two acres ” contained eight acres; and that, at the time of the levy, the creditor, the officer and the appraisers supposed that the debtor owned but one quarter part of each lot, and intended to appraise that interest only. Held, that the levy sufficiently described the land; and that the evidence was inadmissible.</p>

Bill in EQUITY, under the Gen. Sts. c. 113, § 2, against John Sheehan and Ellen Sheehan, his wife. Ellen Sheehan demurred for want of equity. Hearing upon the bill and demurrer, before Ames, J., who reserved the case for the consideration of the full court. The facts appear in the opinion.

<p>Although the sureties on the hand of a town treasurer are not liable for any default on his part which occurred during a previous term of office, where the bond recites that he has been chosen for the current year, and contains the condition merely that he shall faithfully discharge the legal duties of his office, yet if the treasurer, at the beginning of the year for which the bond was given, reports a balance due from him for the preceding year, and subsequently charges himself with amounts collected by him during the year, and credits himself with money paid by him on account of the town, such credits, in an action against the sureties on the bond, may first be applied to the payment of the balance due at the beginning of the year, although the treasurer had, prior to that time, converted such money to his own use.</p> <p>In an action against the sureties on a bond given by a town treasurer for the faithful discharge of his official duties, it was admitted that there was a breach of the bond, and that execution should issue for a certain amount. The defendants contended that a certain other amount should not be included in the execution, because there had been no formal demand on the treasurer before bringing the action. It appeared that the town, at the expiration of the treasurer’s term of office, appointed a committee to settle with him; that such committee made a report to the town, showing a certain balance due from the treasurer, which report was accepted; and that the treasurer turned over his official books and accounts and a sum of money to his successor. Held, that the unpaid balance in the hands of the officer was due immediately on the expiration of his term of office ; and that no formal demand on the part of the town was necessary.</p>

Bill in equity, inserted in an original writ of summons and attachment, dated April 21, 1873, against Joseph T. Barry James W. Barry, Jane Barry and Robert Girling.

<p>Writ oe entry, dated February 2, 1877, against Mary G. Thayer, Benjamin E. Thayer and Lucy A. Knight, to foreclose a mortgage of land in Easthampton. The two first named tenants disclaimed title to the freehold. The tenant Knight pleaded nul disseisin. The case was submitted to the Superior Court, and, after judgment for the demandant, to this court, on appeal, on agreed facts, in substance as follows:</p> <p>The two first named tenants are husband and wife, having been married prior to any of the transactions herein stated. The other tenant is their daughter.</p> <p>The demandant claimed title under a mortgage made on December 21, 1871', by Mary G. Thayer to the demandant and George H. Sprague. The conveyance was in consideration of $1000, and was subject to a prior mortgage for $1500 held by Ebenezer Ferry. The deed contained the following covenants : “And I do for myself, my heirs, executors and administrators, covenant with the said Knight and Sprague, their heirs and assigns, that I am lawfully seised in fee of the aforegranted premises; that they are free of all incumbrances, except the mortgage above stated, that I have good right to sell and convey the same to the said Knight and Sprague and that I will warrant and defend the same premises to the said Knight and Sprague, their heirs and assigns forever, against the lawful claims and demands of all persons.” The condition was the payment of a promissory note of $1000 by the grantor on July 1, 1872. Benjamin Thayer signed the deed, and his name appeared in the testimonium clause in token of his assent, but did not appear as grantor. Sprague’s interest has since been assigned to the demandant.</p> <p>On May 2, 1864, Benjamin E. Thayer conveyed the land, by a mortgage deed with power of sale, to Ebenezer Ferry. On June 19, 1869, Benjamin conveyed the land to one Clark, who, on July 12 following, conveyed it to Mary G. Thayer. On August 6, 1874, Frances A. White, who is now living, and who then, and at the time of the mortgage to Ferry, had a valid life estate in the land, conveyed the same to Mary G. Thayer. On August 24, 1874, Ferry, for breach of condition in the mortgage to him, sold the land, under the power, to William G. Bassett, and executed a deed thereof to him; but neither Bassett nor any one claiming under him, has ever been in actual possession of the land. On January 1, 1875, Mary G. Thayer conveyed the premises, including the life estate, to Lucy A. Knight, as whose tenant, Benjamin is in possession. All the above mentioned deeds were recorded at or about their dates.</p> <p>“ Any fact or deed recited, which would not be admissible against objection, is not to be taken as admitted. When any party would be bound by the rules of law, by estoppel or re-butter, the same are to apply in the determination of this case.” Such judgment is to be entered as the court shall order.</p>

Contract upon a promissory note for $800, dated December 30, 1875, signed by Byron Smith and M. W. Sawyer, payable to the order of the defendant, and by her indorsed in blank. 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 makers of the note declared on were, at the time, engaged as copartners in the business of buying and selling cattle and swine.

<p>A. bill in equity to redeem a mortgage alleged that the mortgage and the note secured by it were given without consideration for the accommodation of the mortgagee, by whose false and fraudulent representations they were obtained; and that an assignee of the note and mortgage took them after the maturity of the note in trust for the mortgagee, and under such circumstances as to be affected with all the equities between the original parties. At the hearing before a master, the mortgagor testified that the mortgage was given, not to represent any debt, but only to help the mortgagee to raise money by depositing it as collateral security, while the mortgagee testified that the mortgage was not given him to raise money, but represented the debt due him, which was then settled between them. There was also evidence that, at the time of the assignment, the mortgagor consented that the assignee, who took the note, which was payable on demand, unindorsed, by an assignment without recourse, six months after date, might hold the mortgage instead of the mortgagee. The master found that, although the note was made at the request of the mortgagee and for his accommodation, upon his representation that he could obtain money upon it by depositing it as collateral security, yet that the real purpose of the mortgagee in taking it was to obtain security for the debt already due him; that the mortgagor did not know the am ount then due from him, and no settlement was made between them, and the note was not given for any ascertained debt; that the actual debt was much less than the mortgage note at its date ; and reported the amount due with all the evidence. A decree was entered in accordance with the master’s report Held, on appeal therefrom, that the decree must be affirmed.</p>

<p>Three petitions, under the St. of 1875, e. 217, to the Superior Court, for a jury to assess the damages occasioned by the taking of the petitioners’ lands, situated in Taunton, by the respondent, in supplying the city with pure water.</p> <p>The cases were tried together, before Brigham,, C. J., who allowed a bill of exceptions in substance as follows :</p> <p>It was admitted that the several petitioners were the owners of the lands, as set out in their several petitions ; that the petitioners had applied to the county commissioners for the county of Bristol for the assessment of their several damages; and that, after such assessments had been duly made by the commissioners, these petitions were filed.</p> <p>The record of the taking of the lands by the city set forth that the lands were taken “ for the purpose contemplated in said act, viz.: for the purposes of constructing filter beds, basins, reservoirs and wells therein, erecting thereon boiler and engine-houses, and other buildings and structures necessary or convenient for the waterworks, laying conduits and pipes, constructing necessary roads and approaches, and generally for doing in and upon said lands all things necessary or proper to be done for the purpose of establishing and maintaining its system of waterworks.”</p> <p>Alexander H. Williams and Edwin Williams, two of the petitioners, were each asked, on cross-examination by the respondent, against the objection and exception of the petitioners, “ What became of the loam on that portion of your land taken by the city ? ” They each replied that the city had most of it, and that they took some with the assent of the water commissioners.</p> <p>Several witnesses testified to conversations with Alexander H. Williams, which were admitted against the petitioners’ objection, to the effect that, when experiments were being made to determine the location of the waterworks, Williams said they had better be on the Taunton side of the river; that he would be liberal with the city; that he was desirous of having the works on his and his brothers’ land; that the price could he easily fixed; and that the expense of land would not be half as great as on the other side of the river. One witness testified that Williams said “ they would let the city have it at their own price,” and that it would be a great benefit to Ward 5 and to property holders. It appeared that the lands taken were in Ward 5, and that, at the times of the above conversations, Williams was a member of the common council of the city from this ward.</p> <p>The petitioners contended that their lands were injured from drainage by the filter basin of the respondent’s waterworks. On this point, William R. Nichols, a chemist, was called as a witness by the respondent. It was admitted that he was an expert. He testified, among other things, that the point of drainage of the remaining lands, by the filter basin on the land taken, could be determined by experiments on the lands ; and the witness testified at length as to the manner of doing this, by driving tubular wells at various distances from the filter basin, and noting the effect upon those wells as the water was drawn down in the fil ter basin. The witness was then asked, “ Has the level at which, water stands under the soil been determined by experiment ? ” This question was objected to, except as to those experiments made on the lands of the petitioners; but the judge permitted the witness to testify, subject to the petitioners’ exception, at length, as to the experiments made by him, in connection with diagrams used by him in classes connected with the Institute of Technology at Boston, which were exhibited to the jury. It appeared that these experiments were made, in the laboratory of the witness in Boston, in small boxes; that he had put sand and gravel into these boxes, in its natural state, so far as he could, and allowed the earth to settle. The amount of earth used was about six feet in length, about six inches deep and four inches in width, and the Cochituate water was allowed to flow into this earth from a tube.</p> <p>A view was taken of the premises before the trial, and in the opening remarks made to the jury, before the view, by the respondent’s counsel, it was contended that the benefits arising to the several petitioners, by the laying out and opening of public streets over the land taken, since the land was taken, and the prospective benefits from a bridge to be constructed over Taunton River, by which the distances to the station of the Old Colony Railroad, Taunton Green and other important points were diminished, were to be considered. The petitioners contended that all such benefits, if any there were, could not be considered by the jury. This opening statement was objected to, but no exception was taken to it.</p> <p>Alfred H. Martine, a civil engineer, called by the respondent, was allowed, against the petitioners’ objection, for the purpose of showing the relation of the petitioners’ land to the thickly settled parts of Taunton, and public places of resort therein, to state the distance to the Old Colony Depot, from the corner oj the land taken at Williams Street, oy the highway, across a certain bridge, and also other distances along the route, to Taunton Green, the Unitarian Church, &c. It appeared that the route of which he gave measurements was the only route by the highway to the Old Colony Depot. The witness was also asked, “ What is the distance from the same point to the Old Colony Depot in an air line ? ” To this the plaintiffs objected, but the judge admitted the evidence for the purposes to which the other measurements applied. The witness gave an estimate of this distance.</p> <p>The judge rejected evidence offered by the respondent to show that, by a street laid out over the land taken, and since the taking, and by a contemplated bridge over Taunton River, under the St. of 1877, o. 72, the lands of the petitioners would be brought a mile nearer the station of the Old Colony Railroad than they were at the time of the taking.</p> <p>The petitioners asked the judge to give certain instructions to the jury, which it is unnecessary now to state. The judge declined to give the instructions requested, in the form in which they were presented; but instructed the jury as follows :</p> <p>“ The petitioners are entitled to recover compensation for all damages to their several tracts of land, occasioned by taking parts of these tracts for the uses and in the manner in which they were taken by the location. Such damages will include the value of the land taken from each tract, the diminished value of the residues of the tracts occasioned by the taking, by reason of any injury to those residues inseparable from any of the uses to which the city of Taunton may lawfully put the land taken. The value of the land taken may be determined, not necessarily by its value for the uses to which it was put before or at the time of taking, but by its value for any uses to which it was, at the time of taking, adapted and available. The diminished value of the residue of the tracts, occasioned by the taking, may be determined by considering the effect of the taking in dividing the petitioners’ lands, so that access from one part to another, which before the taking had been direct and convenient, became by the taking indirect and inconvenient, in depriving petitioners of access to the river for any valuable use to which the river could be applied in connectior with their several tracts of lands; in exhausting or withdrawing from the soil of such residues of land natural supplies of water, needful to the same, in any of the uses to which they were adapted and available and also the effect of the taking, in view of its character, purposes and influence, in any benefits or advantages the residue of land derived from the taking, by which such residue became adapted and available to new and valuable uses, or received an enhanced value for the uses to which they were applied before the taking; but all such advantages and benefits are to be those which the several petitioners in some specific or peculiar form receive from the taking, and not those benefits or advantages which the petitioners receive in common with other persons owning land in the vicinity, the practical question being this: What sums of money will compensate the several petitioners for all the consequences of the taking parts of their several tracts of land, for the use and in the manner in which they were taken, in view of the loss of what has been taken and the effects more or less injurious, and more or less beneficial, of the taking upon what remains to the petitioners of their several tracts ?</p> <p>“ The city of Taunton took the land of petitioners on July 7, 1876, and to that the inquiry as to damages applies; and, inasmuch as the act of taking reserved to the petitioners no right to use any part of the land taken for any purpose, the effect of the taking, with reference to damages, is to be considered as if, by the taking, the petitioners were absolutely excluded from any use of the land taken, for passing from their land not taken to and from the river, or to and from one part and another of the land not taken. In considering the area of the land of the several petitioners taken by the city of Taunton, the jury will treat the boundary of the land taken on the river as the lowest line to which the tide ebbs from natural causes. The petitioners are entitled to receive interest on their damages from July 7, 1876.</p> <p>“ Any evidence of declarations of Alexander H. Williams as to his desire that the land taken for the purposes of waterworks should be from his farm, or in Taunton, or in Ward 5, ought to be considered with such reasonable explanations as are afforded by his official relation to the city of Taunton, in determining whether he at the time of making such declarations, in view of what he knew of the probable and expected scope of the taking and the future use of the land taken, considered the location on his land more or less beneficial to the residue of his land, and whether his present claim is inconsistent with his claim and testimony in this trial.”</p> <p>The judge further instructed the jury “ that the petitioners would not be entitled to the whole market value of their lands, if the jury find that on the whole the advantages exceed the injury, if any there is, to the remaining lands.”</p> <p>The jury returned a verdict for each petitioner for less than the respective claim of each; and the petitioners alleged exceptions.</p>

<p>Replevin of thirteen barrels of oil. Writ dated July 10, 1874. At the trial in the Superior Court, at December term 1875, before Lord, J., the plaintiff offered evidence tending to prove that he purchased the oil of the firm of Shaw & Bruce, of which the defendant is the assignee in bankruptcy, under the following circumstances:</p> <p>On January 3,1874, Shaw called upon the plaintiff, and asked him to purchase some oil and some splits, saying that the firm had found it necessary to go into bankruptcy, and had consulted counsel on the subject; that it was necessary to raise money to pay the expenses incident to the commencement of proceedings, and that they had been advised that they could properly sell some of their property for that purpose. The plaintiff at first declined, but, being assured that counsel had said it was all right, provided they sold for fair prices, said he would see the counsel oil the subject, and asked Shaw where the goods were. Shaw replied that he had brought the splits with him and that they were then in the plaintiff’s basement, but that the oil was at the firm’s shop. Shaw and the plaintiff thereupon proceeded to the counsel’s office, and on the way, in passing the shop, Shaw, pointing to the barrels of oil, said, “ That is the oil.” The oil was in a shed separate from any other property, where it remained, with no agreement to pay storage by the plaintiff, until it was replevied. Counsel informed the plaintiff that he might safely purchase and pay for the goods under the circumstances, and thereupon a bill of sale of the thirteen barrels of oil and of the splits was written and given by Shaw to the plaintiff, who thereupon paid him a fair market price for the same. Upon cross-examination, the plaintiff testified that he had not agreed to purchase, nor had the bargain been consummated, until after he had talked with the counsel.</p> <p>Shaw & Bruce filed their petition in bankruptcy on January 6, 1874, and the defendant was duly chosen assignee on February 16,1874. The plaintiff also offered evidence tending to prove a demand upon the defendant before the date of the writ.</p> <p>The judge ruled that the evidence was not sufficient to prove a delivery of the oil to enable the plaintiff to maintain the action ; ordered a verdict for the defendant, and reported the case for the consideration of this court. If, upon the facts and evidence, the plaintiff was entitled to go to the jury upon the question of delivery, the verdict was to, be set aside and a new trial ordered; otherwise, judgment for the defendant.</p> <p>The case was argued in November, 1876, by S. B. Ives, Jr., for the plaintiff, and 0. Sewall, for the defendant; and in April, 1878, in writing, by S. B. Ives, Jr. G. A. Goddard, for the plaintiff, and G. Sewall, for the defendant.</p>

<p>Questions of law, arising at the trial, in the Superior Court, of 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, may be reported to this court, after verdict, under the Gen. Sts. c. 115, § 6.</p> <p>An appeal from the judgment of a magistrate upon 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, by which the debtor is adjudged guilty of some of the specifications in the charges and not guilty of others, vacates the whole judgment, and opens the case for trial upon all the charges, although the other party does not appeal.</p> <p>A creditor, who has filed 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, from the judgment of the magistrate on which charges the debtor has appealed, is not barred from prosecuting the charges by proving his claim against the debtor in bankruptcy, pending the hearing before the magistrate and before the charges are filed.</p>

Contract against George F. Odiorne, Retire C. Sturges, George Odiorne, K. W. Baker, William Maxson and Alexander Irving, upon a bond in the sum of $40,000, executed to the plaintiff, in which Sturges and George F. Odiorne, doing business under the name of R. C. Sturges & Co., were named as principals, and Maxson and Irving as sureties, and conditioned that the principals should build a certain vessel and perform a certain contract.

<p>In an action on an account annexed for work and labor, brought in the name of A. for the benefit of C., there was evidence that A., who was in the employ of B. bv the day, assigned to C. all claims against B. for money due and to become due " for services rendered and to be rendered ” for a certain time; that the consideration of this assignment was goods already furnished and to be furnished by C. to A.; that, before the time limited by the assignment expired, A. left the employ of B., and entered the employ of D., under an arrangement by which A. was m continue to work on B.’s premises at the same wages, to be paid by B. tc D., and by the latter to A., partly in cash and partly in goods. Held, that A.’s employment by B. being by the day, he had the right at any time to find employment elsewhere ; and that none of A’s wages, after he ceased to work for B., passed by the assignment to C., although the arrangement between A., B. and D. was made with the intent to terminate the employment of A. by B., and deprive C. of the benefit of the assignment.</p>

Contract, with a count in tort, against a common carrier, for the loss of a hand-bag and its contents. Trial in the Superior Court, without a jury, before Allen, J., who allowed a bill of exceptions in substance as follows : The plaintiff was a passenger on the defendant’s railroad from Cleveland, Ohio, westward, having purchased in Boston coupon tickets, over that and other roads, from Boston to San Francisco.

<p>In an action for personal injuries occasioned to the plaintiff through the alleged negligence of the defendant, a horse-railroad corporation, the evidence tended to show that, at the time of the accident, the plaintiff was driving along a street, in the daytime, with the off wheels of his wagon in the outer rail of the defendant’s track, at the rate of from four to six miles an hour; that the plaintiff was driving with a taut rein, his feet resting on a platform, huilt for the purpose, ;n front of the wagon; that, at the place where the accident occurred, a steam railroad crossed the street at grade with a continuous rail which crossed and cut the track of the defendant, leaving a gap of four or five inches between the thick part of the end of the horse-car rail and the steam-car rail; that the thick part of the defendant’s rail, which projected above the level of the top of the rail of the steam railroad, had been cut away so as to allow the wheels of the steam cars to pass without obstruction; that the end of the thick part, where it had been cut away, was broken under, and sharper than a right angle; that as the plaintiff was crossing the track of the steam railroad, his off wheels still running in the outer rail of the defendant’s track, he pulled up his horse slightly, and attempted to turn off to the right from the defendant’s track; that as the horse, after having passed beyond the further rail of the steam-railroad track, stepped with its off fore foot on to the outer rail of the defendant’s track, it sprung down about a quarter of an inch, and the plaintiff’s off wheel was caught by the end of the same rail; that the wagon was suddenly stopped, and the plaintiff thrown out and injured; and that, immediately after the accident, and, before the wagon had been moved away from the defendant’s rail, the rail was found to be raised up six inches or a foot, and resting against the wheel. The plaintiff testified, on cross-examination, that he slackened the speed of his horse about one third when he arrived within ten feet of the railroad crossing; that the horse was trotting all the time; that he had crossed there a dozen times before; that he did not "know there was any danger. Held, that, on the above evidence, the questions whether the plaintiff was in the exercise of due care, and whether the defendant was negligent, were for the jury.</p>

<p>Two ACTIONS OF TORT. The first was for personal injuries to the plaintiff’s intestate, Stephen Bayley, occasioned by a collision with one of the defendant’s trains at a grade crossing of its railroad over Everett Avenue, in Chelsea. The second was for injuries to the plaintiff’s horse and wagon, while being driven by Bayley, his servant, from the same cause.</p> <p>At the trial in the Superior Court, before Bacon, J., the jury returned a verdict for the plaintiff in each case; • and the judge allowed a bill of exceptions, the material parts of which appear in the opinion.</p>

Writ oe ENTRY to recover a parcel of land in Boston. Plea nul disseisin. After the former decision, reported 120 Mass. 522, the case was submitted to the Superior Court on agreed facts, in substance as follows : The demandant claims the demanded premises by levy on execution, on February 4, 1874, against Henry K. Appleton, the attachment being made on June 28, 1871.

<p>A purchaser of counterfeit bonds of the United States, in whose possession they are, need not return such bonds before bringing an action to recover back the mane r paid by him for them.</p> <p>A purchaser of counterfeit bonds of the United States, which are afterwards redeemed by the United States, may bring an action to recover hack the money paid by him for them before repaying the United States.</p>

Contract against the sureties on a bond given to dissolve an attachment in an action brought by the plaintiff against Henry F. Howe and others, by writ dated December 22, 1874. Trial in the Superior Court, before Wilkinson, J., who allowed a bill of exceptions in substance as follows: The first count of the declaration in the original action was on an account annexed, to recover $576.50, for the use and occupation of certain premises hired of the plaintiff by the defendants.

Tort for personal injuries occasioned to the plaintiff by the alleged negligence of the defendant.

Tout for personal injuries occasioned to the plaintiff while m the employ of the defendant as a locomotive engineer. Answer, a general denial.

Contract by the administrator of Ann Gr. Bates, against the trustees under the will of Charles W. Cartwright, to recover the balance of a legacy given to Bates by the will.

<p>Tort for the conversion of a check, dated October SO, 1873, signed by George N. Noyes & Co. payable to the order of Dear-born Brothers, and indorsed by them to the plaintiff. Writ dated December 10, 1875.</p> <p>The declaration alleged in substance that the defendant, knowing the plaintiff to be the owner of the check and fraudulently contriving to defraud and cheat the plaintiff, first stopped payment upon the check and subsequently, upon the pretence that he wished to examine it, obtained possession of the check and refused to give it back to the plaintiff; and that the stopping payment on the check and each and all the subsequent acts of the defendant, including the conversion of the check, constituted a gross fraud upon the plaintiff, such as a discharge in bankruptcy would not affect, and was a breach of trust and an embezzlement of the plaintiff’s property. The answer contained a general denial, and set up a discharge in bankruptcy.</p> <p>At the trial in the Superior Court, before Dewey, J., the plaintiff introduced evidence tending to prove that the defendant, being indebted to the firm of Dearborn Brothers, gave the check to J. H. Dearborn, one of the firm, on October 28, 1873, on account of such debt; that the check was, on the same day, for a valuable consideration, indorsed and delivered to the plaintiff by Dearborn Brothers; and tnat on the day it was payable it was presented to the bank for payment by the plaintiff and nayment was refused, the defendant having notified the bank not to pay the same; that the plaintiff then sent his clerk to the defendant’s place of business with the check to present it for payment; that the clerk, having the check with him, asked the defendant why payment of the check had been stopped, and the defendant said he wanted to see the check, and, the check being handed to him, took it and put it in his drawer and refused to return it, saying he would keep it; that the plaintiff, on the return of his clerk, went to the defendant’s store and said to him that he came to ascertain why he had stopped the payment of the check and kept the check from the clerk, and the defendant said he thought he could take care of the check himself, refused to give it up, and has since retained and refused to deliver or pay the check to the plaintiff.</p> <p>The defendant proved his discharge under the United States bankrupt act from all debts, claims and demands existing prior to March 20, 1874, which were or might have been proved against him in bankruptcy, except such as were exempted by the bankrupt act; and contended that the present action could not be maintained on the plaintiff’s evidence.</p> <p>The plaintiff contended that the debt or liability which he sought to enforce in this action was created by the fraud of the defendant, and, therefore, was not affected by his discharge in bankruptcy.</p> <p>The judge, among other instructions given, instructed the jury, that if the defendant took the check and retained it, under a claim of right, honestly believing he had a right so to do, he was not liable in this action, though in law he had no right to retain it; but that if the defendant obtained possession of the check by fraud, knowing that he had no right to it, and retained possession of it intending to prevent and thereby preventing the plaintiff having possession of property belonging to him, then this action could be maintained.</p> <p>The judge, at the plaintiff’s request, also instructed the jury that"; if the defendant did any acts, in relation to suppressing and retaining the check, which were unlawful for him to do, thereafter no presumption existed that he was innocent of wrongful intent in so taking and retaining it; but, in that case, the burden was upon the defendant to prove, and that he must satisfy the jury, that he acted honestly and under a belief that he had a right so to take it and retain it.</p> <p>The jury returned a verdict for the plaintiff; and the defend ant alleged exceptions.</p>

<p>Contract for breach of an agreement to purchase certain black lead.</p> <p>At the trial in the Superior Court, before Rockwell, J., the following letter from the plaintiff to the defendants was in evidence :</p> <p>“ When we had the pleasure of your visit a short time since, you stated that you would report on your return to Boston, in regard to the contract for about 600 casks of Crown double hammer No. 1, Amalia Mine, German black lead, for next year. According to last quotations, we could import the lead at $1.70 gold per 100 lbs. in shipments of 100 casks per month (probably from the 1st April next), payable cash in 30 days after arrival of each lot.”</p> <p>The defendants’ letter of acceptance was as follows: “ Your esteemed favor of the 23d inst. is at hand and contents noted. We should like to make the contract for the 600 casks, Crown double hammer No. 1, Amalia Mine, German lead, at $1.70 gold per 100 pounds.”</p> <p>There was also evidence that the kind of lead in question was imported in casks weighing about 800 pounds each, unless espe* eially ordered otherwise, and that it was imported in long and short casks of different weight.</p> <p>The defendants contended that, at the time of making the contract referred to in the plaintiff’s letter, the parties bargained for lump lead, 600 pounds in the casks, and proposed to ask one of the defendants, who was a witness, the following question: “ At the time of making the agreement in suit, was there any stipulation by paroi between you and the plaintiff as to the weight of the casks referred to in the written agreement ? ”</p> <p>The plaintiff objected to the question, on the ground that it was sought by paroi evidence to vary, control and contradict the contract in writing i and the judge excluded the question.</p> <p>The jury returned a verdict for the plaintiff; and the defendants alleged exceptions.</p>

Tort for personal injuries occasioned to the plaintiff’s intestate, Daniel Kennedy, by the negligence of the defendant. Answer, a general denial.

Two actions of tort. The first was brought by the plaintiff as administratrix, for personal injuries occasioned to her intestate, John J. Carey, a boy sixteen years old, while in the employ of the defendants. The second was brought by the plaintiff as surviving parent of the deceased, for the loss of services arising from the same accident.

Contract upon a check. Trial in the Superior Court, before Aldrich, J., who allowed a bill of exceptions, which, after stating the evidence in the case and setting forth the entire charge to the jury, concluded as follows: “ Plaintiff’s counsel excepted to the charge, and prays that his exceptions may be allowed.”

Tort for malicious prosecution. Writ dated March 19, 1875. The declaration alleged that the defendant, maliciously and without probable cause therefor, caused a complaint to be sworn out before a justice of the Police Court of the city of Salem on May 18, 1874, wherein the plaintiff was charged with the crime cf larceny of sundry articles alleged to be the property of the defendant, and of the value of over $500 ; that thereupon the justice issued his warrant for the arrest…

Tort against a common carrier, for personal injuries occasioned to a passenger, by the alleged negligence of the defendant. Answer: 1. A general denial. 2. That the plaintiff was not in the exercise of due care.

<p>Contract on an account annexed to recover $591.84, for labor performed and materials furnished. At the trial in the Superior Court, before Wilkinson, J., without a jury, it appeared that on November 20, 1874, the plaintiffs, as the parties of the first part, and the defendant, acting by its committee on public property, as the party of the second part, entered into an agreement, under seal, the material parts of which were as follows :</p> <p>“ The said parties of the first part do hereby agree for themselves, their heirs and assigns, to provide all materials and perform all labor required in the erection and completion of the masonry of a building, for the party of the second part, to be located upon its estate situated on the corner of Sacramento and Oxford streets, in and for said city, according to plans, drawings, and the accompanying mason’s specifications, prepared by J. H. Littlefield, architect, bearing even date herewith, and signed by the parties hereto; and such other drawings and detail explanatians, as may be considered necessary for the progress and completion of the building, according to the true intent and meaning thereof.</p> <p>“ And in case any particulars shall be deficient or not clearly shown by said plans or expressed in said specifications, the said parties of the first part shall carry out the general design as directed by said committee and architect in as thorough a manner as if the same were shown and fully expressed.</p> <p>“ And in case any work or materials done or provided by the said parties of the first part shall be unsatisfactory to the said committee or architect, then the said parties of the first part shall, on being notified thereof by said architect, immediately remove such unsatisfactory work or materials and supply the place thereof with other work or materials which shall be satisfactory to said committee and architect.</p> <p>“ And it shall be lawful for the said committee or architect at all times to direct in writing any additions to or deviations from the plans and specifications aforesaid, without in any other respect or particular varying this agreement or impairing the force thereof; and in case of any such deviations or additions, so directed in writing, such further time shall be allowed for the completion of the said work as the said architect shall decide to be reasonable, and such sums of money shall be added to, or deducted from, the amount of the consideration hereinafter agreed to be paid, as the said parties, committee and architect shall judge the increase or diminution in the amount of work and materials thereby occasioned to be fairly worth.</p> <p>“ And it is expressly agreed that no alterations or additions are to be paid for unless so directed in writing.</p> <p>“ In consideration of the foregoing, the said party of the second part héreby agrees to pay to the said parties of the first part” “the sum of ten thousand four hundred and ninety-five dollars, in separate payments as follows: ” [Then followed a provision in respect to the mode of payment.]</p> <p>The plans did not show any piles, and the specifications, referred to in the agreement, did not mention any; but the specifications provided, under the heading “ Excavations,” that the earth should be removed “ from the area of the lot to be covered by the building and other works to the requisite length, breadth and depth, for the basement, walls, foundations, piers,” &c. Under the heading “ Foundations,” were the following provisions:</p> <p>“ The exterior basement foundation walls, shown to be con structed of stone by the plans, and all other exterior foundations beneath steps, door sills, platforms, &c., are to be constructed of the best quality of large, sound, flat, blue stone, laid with the broadest sides level. The work is to be well bonded and tied together, with at least every fourth stone the full thickness of the wall. All the basement and trench walls are to be faced upon both sides, and laid straight and true to a line, the basement side with a plumb, true fall, and the exterior with a battering fairly straightened face. The work is to be laid close jointed, thoroughly pinned up, and chinked with suitable stone quoins upon both sides, and filled solid with stone clear through.</p> <p>“ The work will be laid solid in, and pointed on both sides with mortar composed of one cask of best Newark cement to one of best fresh Rockland lime, mixed with a proper proportion of coarse, sharp-grit sand. The mortar for the trench walls, below the basement floor, will be three fourths cement to one of lime.</p> <p>“ The earth beneath all the walls is to be thoroughly tamped and puddled, and the bottom course of stone firmly bedded upon it. The bed or levelling course will be laid broader than the wall above it, as indicated by the sectional drawings.</p> <p>“All the basement walls will commence fourteen inches at least below the basement floor, and as much deeper as necessary to guarantee a firm and solid foundation. The walls will all be of the thickness and construction indicated by the drawings, laid and completed in the most thorough and workmanlike manner.”</p> <p>The specifications further provided that the plaintiffs should 44 do any and all other masonry and jobbing in the masonry line, necessary to fully finish and complete all parts of the building according to the true intent and meaning of the plans, drawings and the mason’s specifications, whether particularly herein described or not.”</p> <p>The work and materials in question consisted of piles furnished and driven by the plaintiffs; in excavating to an extra depth in order to drive the piles, and in cutting them off; of coping stones, furnished to lay on the piles, with the labor of laying the same; and of rubble stones laid on the coping stones up to the line of the bottom of the foundation as shown on the plans from which the plaintiffs made their estimate, furnished for that purpose by the architect.</p> <p>The defendant contended that the work and materials sued for in this action were furnished under the above agreement, for which the plaintiffs had been paid, and were within its terms, while the plaintiffs contended that the work and materials were extras not included in the contract, for which they were entitled to recover additional compensation.</p> <p>The plaintiffs offered to prove that neither the plans nor specifications required any piles to be furnished or driven; that when they estimated and made the contract, they were furnished with a plan by the architect, showing a section-of the foundation which they were to build, which section was figured, and required them to build the same fourteen inches below the bottom of the cellar, and no more, and that their estimate, bid and contract were made with reference to such plan and specifications ; that on excavating for said foundation, as required by the plans and specifications, the soil was found to be of such a character on a part of the rear of the site of the proposed building as to make it necessary, in the opinion of the architect, to drive piles in order to secure a safe foundation for that part of the building; that thereupon the architect staked off the distance for which he wished piles to be driven, furnished the plaintiffs with piling plans, and directed them to do the work in question ; and that the plaintiffs thereupon told the architect that if the piles were driven, and the work done by them, the same was not part of the contract, but would be extra work for which they would be entitled to additional compensation, and the architect told them to go ahead and do the work as he directed, and they would be paid for it. The plaintiffs also offered to prove that they then did the work in question by special direction of the defendant’s architect, in accordance with the piling plans furnished them by him; that the prices charged for the same were just and reasonable; and that the architect was the defend ant’s agent, and authorized to bind the defendant by his acts and directions in the erection of the building.</p> <p>The plaintiffs also offered to prove, by a large number of persons engaged in the same business as themselves, and accustomed to estimate and bid for similar contracts, as experts, that the custom, rule or practice was universal, where plans were furnished, from which to make estimates, showing sections of the walls, to estimate according to the section as shown, and to contract with reference thereto, and that, if afterward the walls were changed by increasing their height or depth, such change was not included in the contract, and that additional compensation was due therefor.</p> <p>The judge refused to admit any evidence; and ruled that, by the contract and specifications, the plaintiffs were bound to insure a safe foundation for the proposed building; that the defendant might require them to go to any depth necessary for that purpose; that, if it was necessary to drive piles to secure such a result, then the plaintiffs were bound to drive piles as part of their contract; that they were not entitled to recover any extra compensation therefor; and found for the defendant. The plaintiffs alleged exceptions.</p>

<p>Contract. The first count was upon a policy of insurance against fire, alleged to have been made on November 2, 1875, by the defendant to the plaintiff. The second count was upon an agreement to insure and to deliver a policy of insurance. Writ dated September 18, 1876. At the trial in the Superior Court, before Wilkinson, J., the following facts appeared :</p> <p>The plaintiff’s property, described in the policy, was partially destroyed by a fire which broke out between 11 and 12 o’clock on the night of November 2, 1875. On or before November 1, 1875, Holden P. Durfee, the treasurer of the plaintiff corporation, duly authorized to beep its property insured, directed Benjamin L. Wood, an insurance agent, to effect insurance in place af certain policies then expiring.' Wood, in the afternoon of Monday, November 1, 1875, asked Joseph W. Hinckley, one of the firm of Jackson and Hinckley of Taunton, agents of the Revere Insurance Company, the Western Assurance Company, and of other companies, whether he could place $2500 on the Massasoit Steam Mills. Hinckley, after consulting with Jackson, reported to Wood that they would take the $2500, but did not tell him in what company. Jackson and Hinckley had authority to write policies in the Revere Company, but their authority in the defendant company was limited to binding the company, the policies being written by one Carpenter, the general agent in Boston. Jackson and Hinckley decided to write the $2500 in. the Revere, and a policy was written by them on November 1 or 2 in the Revere, and the placing of the risk was reported to the main office of the Revere in Boston, on November 1. On Tuesday evening, November 2, about 6 o’clock, Jackson took a letter from the post-office in Taunton, from the president of the Revere Insurance Company, declining the risk. Jackson read it, took it to his office, laid it upon his desk, left his office and returned there the same evening about half-past seven or eight o’clock. The Revere policy at that time was in his office, not having been delivered. He then consulted with Hinckley, and they decided to place the risk at once in the defendant company, and Hinckley made a memorandum to the following effect: “ Nov. 2, 1875, Massasoit Steam Mills, $2500 in Western Assurance.” On the morning of November 3, about 8 o’clock, before going to Boston, Hinckley went to the house of their clerk and said that the Revere Company had declined the risk on the Massasoit Steam Mills, and instructed the clerk to report the risk to the Western Assurance Company, for Carpenter to write the policy. On this day both Jackson and Hinckley were absent from Taunton, and, at the time of the conversation with his clerk, Hinckley was ignorant of the fact that the fire had occurred the night previous, nor did Jackson know of the fire before leaving Taunton. On November 3, about 9 o’clock in the morning, Wood went into the office of Jackson and Hinckley and told the clerk that the Massasoit Steam Mills were burned, and that the mills wanted their policies, and asked if Jackson and Hinckley had written a policy for him. The clerk said they had it. the Revere, but that the Revere had declined to take it, and that she had instructions to place it in the Western, and asked Wood what to do, because, as she said, she did not know whether she should insure a building after it was burned: and told Mm she would wait until Hinckley returned. Wood asked her if she had the Revere policy in the office. She said she had, and Wood said, “ I will take it.” She replied, “Had you better take it before they” (Jackson and Hinckley) “come?” Wood answered, “Yes; I must have something to show for that insurance.” The clerk thereupon gave it to him, and Wood took the Revere policy with others to Durfee and delivered it to him. On November 3, Jackson and Hinckley wrote to Carpenter, informing him of the burning of the Massasoit Steam Mills, and that they had placed the risk in the Western Assurance Company $2500 the evening before the fire. They did not make a report of the form of the written portion of the policy to the Western Assurance Company until the morning of November 4, and on the evening of November 4, or in the morning of November 5, they received from Carpenter a policy covering the property destroyed, dated November 2, for a period of one year, beginning at noon of November 2, being the policy declared on. On the morning of November 5, Jackson took the Western Assurance policy to Fall River and asked Durfee to exchange the Revere policy for it. Durfee was busy at that time, and told Jackson that he would meet him at the bank between 12 and 1 o’clock. Durfee was at the bank at the time appointed, but Jackson did not appear, and Durfee did not at any time exchange the Revere policy for the Western Assurance, concluding, as he expressed it in his testimony, that a bird in the hand was worth two in the bush. At the time Wood handed the Revere policy to Durfee, he did not state the circumstances under which he got possession of the policy.</p> <p>Jackson received a telegram from Carpenter on November 6, asking him to return the policy in the Western. He retained the policy some four or five days and then returned it to Carpenter. On June 5, 1876, the plaintiff demanded the policy of Carpenter, but he did not then deliver it, nor has he since delivered it. Wood, on November 2, before the fire, was aware that Jackson and Hinckley had placed the risk in the Revere, but how he acquired the knowledge did not appear.</p> <p>Wood and Jackson and Hinckley had considerable business dealings in the way of placing risks for each other, and it was not their custom to pay over the premiums at the time the risk» were bound, but to account for the same in their monthly settlements.</p> <p>Some time after the fire, Wood tendered to Jackson and Hinckley the amount of the premium for the $2500 covered by them, but they declined to receive it, either for the Revere Insurance Company or for the defendant, on account of the controversy that had arisen. The policy sued on had no provision making the liability of the company conditional upon the payment of the premium.</p> <p>It further appeared that the Revere Insurance Company was the party really interested as plaintiff in this suit, in consequence of an arrangement made between said company and the Massasoit Steam Mills Company, and that the Massasoit Steam Mills Company claimed to hold only one of the two companies, the Western Assurance or the Revere.</p> <p>The Revere policy contained the following clause: “ The insurance may also be terminated at any time, at the option of the company, on giving notice to that effect, and refunding a ratable proportion of the premium.”</p> <p>The plaintiff made proofs of loss, duly sworn to, to all the companies except the Western, on December 2, 1875, in each of which the name of the Revere Insurance Company was inserted and the name of the Western did not appear. Proof of loss was made to the defendant on June 14,1876, similar to the ones made on December 2,1875, except that the name of the Revere which was printed was stricken out, and the name of the Western interlined, the proofs to the Revere and the Western each being returned upon its receipt by them.</p> <p>Upon these facts the defendant asked the judge to rule that the plaintiff could not maintain the action, but the judge refused so to rule, directed the jury to return a verdict for the plaintiff, and reported the case for the determination of this court. If, upor the facts, the action could be maintained, judgment was to be entered upon the verdict; otherwise, judgment for the defendant.</p>

<p>It is no defence to an action of replevin by a seller of property, which he sold and delivered to the purchaser on condition that the right of property should remain in him nntil the whole of the agreed price had been paid, that a third person lent the purchaser part of the money which he paid to the seller, and that the third person, having obtained possession of the property, mortgaged it, and afterwards tendered the agreed price to the seller.</p>

<p>CONTBAOT, against Edwin H. Bennett and Charles Haynes, upon a bond dated December 15, 1874, naming the plaintiff as obligee, in the sum of $3000, signed by the first named defendant as principal, and the other as surety, and containing the following condition:</p> <p>“ The condition of the obligation is such that whereas the said Amos & Bennett, doing business under the firm name of Amos & Bennett, and proprietors of the Avon Club House, 30 Avon Street, Boston, have contracted certain debts in fitting up and furnishing said house, and for supplies thereof; said parties have this day dissolved said partnership; said Amos has conveyed to said Bennett all his interest in said house, and in and to said furniture, fixtures, goods, effects and credits of said firm, and retires from said partnership; and the said Bennett continuing said business, in consideration of the conveyance aforesaid, and of said Amos retiring from said house, hereby agrees to assume and pay all the rent, carpenters’, painters’ and plumbers’ bills, for supplies, and all other bills and debts contracted for and on account of said firm business. Now if said Bennett shall pay the same and hold said Amos harmless on account, then this obligation shall be void; otherwise, it shall be and remain in full force and virtue. Nothing herein shall be construed to prevent said Bennett from contesting claims which he may deem improper.” Bennett was defaulted; and Haynes alone defended.</p> <p>At the trial in the Superior Court, before Wilkinson, J., it appeared that the plaintiff and Bennett, as copartners, established an eating-house; that, in fitting it up and carrying it on, Bennett contributed about $600, and the plaintiff contributed nothing, and they contracted debts to the amount of $2700 or more; that they carried on this eating-house about two months, still owing these debts, when they dissolved the partnership, and the bond in suit was then given ; and that the plaintiff, having no attachable property, on January 12, 1875, executed an assignment of the bond to bis creditors, “ as security for my indebtedness to said parties; ” and delivered the bond and assignment to the attorney of the creditors, who had since retained them.</p> <p>The plaintiff testified that he borrowed a check for the amount of the debt to certain of his creditors, giving his note for the same, for the purpose of paying the debt, and passed the check to them in payment of the debt, but whether this was before or after he made the assignment of the bond he did not remember; and that, after he made the assignment, he gave his promissory notes, payable on demand, to other creditors, one to each for the amount of his debt. He also produced the bill of one of them, which bore the word “ settled ” written over the signature of an attorney, as the receipt he took on giving his note for that debt, and testified that he believed he got the same kind of receipts from the rest of the creditors, on giving them notes as above stated; and those creditors testified at the trial that they approved the settlements by notes.</p> <p>The plaintiff further testified that payment had not been demanded or made on either of the above mentioned notes, and that he and Bennett examined all these bills and found them correct. Haynes testified that he had paid the bills of several other creditors of Amos & Bennett.</p> <p>The plaintiff contended that there had been a breach of the bond; and the judge, by request of the plaintiff, directed the jury to assess the sum due if they found a breach.</p> <p>The defendant Haynes asked the judge to rule that, it appearing that the plaintiff had parted with all interest in the bond, and there being no evidence that the plaintiff ever paid any of the debts before he assigned the bond, there had been no breach; that the bond could not be prosecuted in the plaintiff’s name for the benefit of creditors of Amos & Bennett; and that damages could not be assessed for the payments made by notes of Amos to creditors.</p> <p>The judge refused so to rule, and instructed the jury that the mere fact that the bond was assigned would not prevent the action being maintained either for the benefit of the plaintiff or for the benefit of the creditors whose claims had been settled by the plaintiff; and that if payment had been made by note and check, such payment by note, where satisfaction was acknowledged, would be sufficient and equivalent to cash.</p> <p>The jury returned a verdict for the plaintiff in the sum of $1001.36, being the amount of the money paid and notes given, and interest; and the defendant Haynes alleged exceptions.</p>

Tort for the conversion of a lot of leather and shoe stock. At the trial in the Superior Court, before Wilkinson, J., the plaintiff put in evidence tending to show that on March 10, 1875, the property in question was owned by and in the possession of ICnowlton and James, a firm doing business in Boston, who on that day mortgaged it to the plaintiff, to secure a preexisting debt and a sum of money then lent, the mortgagors having the right to “ sell in the ordinary way of…

Replevin of a lot of woollen cloths. The defendant was defaulted, and the parties subsequently agreed that the default should stand and the defendant take part in the assessment of damages.

Tort- for loss of services of Ellen Wilton, a daughter of the •plaintiff, occasioned by her being run over by one of the defendant’s cars on July 16, 1868. Writ dated June 22,1874. At the trial in the Superior Court, without a jury, before Pit-man, J., it appeared that Ellen Wilton had, in the name of her father as next friend, brought an action against the defendant, and recovered $5000 for the injuries done her by this accident. 107 Mass. 108.

<p>If a person not a party to a promissory note, for a sufficient consideration, places hia name on the back of it, after it is due, changes the rate of interest on the face of the note, pays the interest then due, and subsequently pays an instalment of interest at the changed rate, he is liable as an original promisor.</p> <p>An agreement to forbear, for a certain time, to enforce the performance of a contract complete in itself cannot be pleaded in bar to an action upon the contract.</p>

<p>Tout for an illegal issuing of certificates of stock by the defendant corporation. Writ dated December 30, 1872. At the trial in this court, before Morton, J., without a jury, the following facts appeared:</p> <p>On March 10, 1853, an indenture was executed by Elizabeth B. Crowninshield of the first part, Francis B. Crowninshield, trustee, of the second part, and William Mountford of the third part, reciting that a marriage was intended shortly to be had ana solemnized between the parties of the first and third parts, and by the terms of which Elizabeth B. conveyed to Francis certain personal property in trust, to pay the net income to her during .'•overture, taking her sole receipt therefor, “after such income accrues, and such income not at any time to be paid by way of anticipation,” with provisions in case of the termination of the coverture. The indenture also contained the following clauses :</p> <p>“ And upon the further trust that the trustee under this instrument shall and may dispose of any part of the trust property, and the proceeds of such sale, and also any other proceeds of the trust property, invest and reinvest from time to time, and at all times, as he shall think discreet; and shall and may execute all deeds or other instruments convenient or proper to that end; and the purchaser or purchasers of said trust property shall not be bound in any manner to see to the application of the purchase money or consideration therefor. Provided, however, that said trustee shall first obtain the written approbation of said Elizabeth of such sales and investments, if she shall be at the time thereof within the United States of America.”</p> <p>“ And in case the trustee herein named, or any trustee or trustees who may be appointed under this instrument, shall die, resign or become incapable to act, then and thereupon said trust property shall be conveyed to such other trustee or trustees as said Elizabeth may in writing appoint, to be held upon the trusts hereinbefore declared; or if said Elizabeth be not then alive, then such appointment to be made by the judge of probate, for the time being, for the county of Suffolk, and said trust property to be conveyed and held in conformity with such appointment and said trusts herein set forth.”</p> <p>On August 12, 1856, an indenture was executed between Francis B. Crowninshield and George H. Rogers, by which Crowninshield resigned his trust under the above named indenture, and conveyed the trust property in his hands to Rogers, with the knowledge and consent of Mrs. Mountford. Rogers died on May 21, 1870; and on August 6, 1870, the following indenture was executed by Mrs. Mountford, her husband, and Caleb W. Boring, the plaintiff in this' action : “ Whereas an indenture was made, bearing date the tenth day of March, A. D. one thousand eight hundred and fifty-three, between Elizabeth B. Crowninshield of the first part, Francis B. Crowninshield of the second part, and William Mountford of the third part, by which indenture certain property belonging to said Elizabeth, in a contemplation of a marriage with said William, was assigned and transferred to said Francis, in trust, as will more fully appear by said indenture, reference to which is hereby made as part of this instrument; and whereas said marriage was afterwards consummated between said William and Elizabeth, and said Francis resigned said trust, and George H. Rogers, of Gloucester, in the Commonwealth of Massachusetts, was appointed in his place; and whereas the said Rogers has since deceased, and the said Elizabeth, by virtue of the power to her given by said indenture, has appointed, and by these presents does now nominate and appoint, Caleb William Loring, of the town of Beverly, who is a citizen of said Commonwealth of Massachusetts, as trustee under said indenture, with all the powers and subject to all the provisions in said indenture contained. And the said Elizabeth does hereby authorize the said Caleb William Loring to receive said trust property from the executors of the will of the said George H. Rogers, or any representative of him or his estate, and does empower and authorize the said Loring to receive, take and obtain from any and all persons or corporations said trust property, and to commence and prosecute any and all actions that be necessary for obtaining possession of the same. And the said Loring on his part does hereby accept the appointment as trustee under the indenture aforesaid, and agrees to perform all the matters and duties to be done and performed by the trustee under said indenture as fully as if the same were herein specifically set forth. And it is mutually agreed between the respective parties hereto that the provisions and terms of said indenture are in full force and effect between them, the said Caleb William Loring being liable to the same extent and subject to the same obligations as are mentioned in the same.”</p> <p>The plaintiff also offered evidence tending to show that Rogers, while trustee, invested a portion of the trust fund held by him for Mrs. Mountford in shares in the defendant corporation, and took certificates, in some of which he was described as trustee for Mrs. Mountford, and in others as trustee simply; that the corporation had notice that he held all these shares in trust for Mrs. Mountford; that afterwards, and while trustee, he transferred these certificates to various persons, by transfers absolute in form, but in fact as collateral security for his own debts ; that these certificates were surrendered to the defendant corporation and new certificates issued by it to such persons,. in the years 1867 and 1869, and the early part of the year 1870.</p> <p>On these facts, and others not material to be here particularly stated, the judge found for the defendant; and reported the case for the consideration of the full court. If the finding was justified, judgment was to be entered accordingly; otherwise, such order or judgment was to be entered as the court might deem proper.</p>

<p>Tort against the sheriff of Essex for the alleged wrongful act of his deputy. At the trial in the Superior Court, before Pitman, J., without a jury, the following facts appeared:</p> <p>The plaintiffs attached certain personal property, on a writ against William W. Phillips and Edward Martin, as copartners, doing business under the name of Henry Phillips, on March 24, 1875. It was afterwards sold on mesne process, on a prior attachment, on a writ in favor of Edward Martin against Henry Phillips, which last named writ was never entered in court. The plaintiffs recovered judgment against William W. Phillips and Martin, in the Superior Court for the county of Suffolk at January term 1876, and placed the execution duly issued thereon in the hands of the defendant’s deputy, and requested him to apply the proceeds of the personal property in satisfaction of the execution. This he declined to do 'except- in part, but first applied the same in satisfaction of an execution issued from the Police Court of Haverhill, on December 1, 1875, upon a judgment in favor of Matthew Plumstead, Jr., recovered on November 15, 1875, against Henry Phillips, William W. Phillips and Martin, as copartners, doing business under the name of Henry Phillips. Plumstead’s writ was dated March 24, 1875, and commanded the officer to attach the property of Henry Phillips; and thereon, upon March 24, prior to the attachment in the suit of the plaintiffs against William W. Phillips and Martin, the deputy did attach the personal property as the property of Henry Phillips. Subsequently, and before judgment in the action, by leave of the Police Court, and without notice to the plaintiffs, Plumstead amended his writ and declaration by declaring against Henry Phillips, William W. Phillips and Martin, as copartners doing business under the name of Henry Phillips. William W. Phillips and Edward Martin carried on the grocery business and used the name of Henry Phillips, by his permission and consent, in making purchases, and the goods attached were so bought; and the debts of the plaintiffs and Plumstead, on which their judgments were obtained, were contracted in the name of Henry Phillips. Between the parties, Henry Phillips had no interest' in the attached goods; but this was not known to Plumstead.</p> <p>Upon these facts the defendant asked the judge to rule that Henry and William W. Phillips and Martin, as to third parties, were copartners; and that the deputy rightfully satisfied the execution of Plumstead before that of the plaintiffs; and that the plaintiffs were not entitled to recover in this action. The judge refused so to rule, and found for the plaintiffs; and the defendant alleged exceptions.</p>

<p>A lessor, who, in consideration of the assignment to him, by the lessee, of certain underleases of parts of the demised premises, accepts from the lessee a surrender of the original lease, “ but without prejudice to the leases of parts of the premises assigned to him,” may maintain an action against a sub-lessee for rent accruing after the assignment.</p>

Contract for the rent of certain premises on Washington Street, in Boston, and for the cost of steam heat supplied to the same.

Tort, by the assignee of the mortgagee of certain personal property, for its conversion. Answer, a general denial, and that the defendant, an officer, attached the property in question on a writ against the mortgagor.

<p>Brae, in equity, inserted in an original writ of summons and attachment, dated July 16, 1872, against Boring W. Gleason, Kiles P. Gleason, Henry Pearson and Sarah N. Charlebois, al leging that a deed was procured from the plaintiff, conveying a parcel of land in Reading to the defendant Kiles P., by means of the false and fraudulent representations of the defendant Boring W., a real-estate broker employed by the plaintiff to sell the same for him on commission ; and that the plaintiff was induced by such false and fraudulent representations to take in exchange a worthless equity of redemption in a lot of land in Boston belonging to Pearson; that Kiles P. and Pearson were parties to the fraud; and that the land in Reading was afterwards conveyed to the defendant Charlebois, who purchased the same in good faith, without knowledge of the fraud, and gave a mortgage back to Kiles P., which he now holds, to secure part of the purchase money. The bill prayed that the defendants might be restrained from transferring this mortgage to any other person, and might be required to assign it to the plaintiff, make restitution in damages, and for general relief.</p> <p>The defendants severally filed answers denying fraud, and containing demurrers on the ground that the plaintiff had a plain and adequate remedy at law. The answer of the defendant Pearson also alleged that Pearson, two or three weeks before the sale to the plaintiff, agreed to sell his equity of redemption in the lot of land in Boston to Kiles P. Gleason, for $3000; that this sum was all he received for the conveyance, which was made to the plaintiff, at the request of Kiles P.; that, at the time, he supposed the estate was free from incumbrances, except certain mortgages; that afterwards, being informed that there was an outstanding lease, he paid the plaintiff $50 in money and a gold watch in full settlement of any claim he had or might have by virtue of the covenants in the deed to the plaintiff.</p> <p>After the decision overruling the demurrers, reported 117 Mass. 557, the case was tried, before Wells, J., on the following issues to the jury:</p> <p>“1. Was there an agreement or understanding between the defendant L. W. Gleason and the defendant K. P. Gleason, by which the said L. W. Gleason was to be interested in the property which he was employed to sell, or in the proceeds or profits of the sale or exchange of property, or to be in any way benefited or compensated for his part in the transaction, otherwise than by his commission as a broker ?</p> <p>“ 2. Did the defendant Pearson have any interest in, or know of, or participate in, that arrangement, or in carrying it out ?</p> <p>“ 3. Was the plaintiff induced to make the exchange of estates by false representations and deceit on the part of L. W. Glea son?</p> <p>“ 4. Did K. P. Gleason participate in the fraud and deceit practised upon the plaintiff ?</p> <p>“ 5. Did K. P. Gleason have notice, when he received the deed from the plaintiff, that the same had been procured by means of false representations ?</p> <p>“ 6. Did Henry Pearson participate in, or know of, said false representations ?</p> <p>“ 7. Has the plaintiff settled with said Pearson for the incumbrance of the land, and discharged all claim on account thereof ? ”</p> <p>The jury answered all these issues in the affirmative, except the last, which they answered in the negative. The defendants alleged exceptions, which were duly filed and presented to the judge, who died before allowing them. By consent of parties, Morton, J., reported the case, in substance as follows, for the consideration of the full court, the parties agreeing that the re port was correct:</p> <p>The plaintiff testified as follows : “ My estate in Reading consisted of seven acres of land, with a house and stable upon it, and a large grapery, and was worth $7000 in 1871. In June, 1871, I went to L. W. Gleason, and employed him as a real-estate broker to sell my estate, and agreed to pay him $250 as a commission. After this, L. W. Gleason said he had a good place in Boston to sell, and that, if I wanted to exchange, he would give me a good bargain; that the Boston place was worth $18,000, and would rent for $1500 a year; that I could come into possession on October 20; that, after paying taxes, there would be $900 or $1000 clear. We went to Chickering Place in Boston, and Gleason showed me the house, but we did not go in, Gleason giving as a reason that the tenant was fractious, and he did not like to go in. Gleason stated that the mortgage on it was $6000. Before we went to Chickering Place, Kiles P. Gleason came with L. W. Gleason to my place in Reading; I had but little talk with them; they talked with themselves most all the time; nothing was said about Kiles P. being a purchaser. I made a bargain the next day. I think L. W. Gleason said it was a trade, and I signed a $500 bond. I did not see K. P. Gleason before the deed was given. I gave the deed in L. W. Gleason’s office. Pearson and L. W. Gleason were there. I gave my deed to L. W. Gleason, and he gave me a deed of the house in Chickering Place., Nothing was said that day about a lease. Soon after, a lease was made to Nelson. I left the house in Gleason’s hands to let. Eight away after the bargain was made, before the deed was given, he said he would lease it, that Nelson was good responsible man, and would pay the rent monthly. It was let for $1500 a year. The lease is dated October 3. I never received any money on account of the lease. I received a watch about two years ago from L. W. Gleason. He said something about a lease of Graham; I think he said Pearson gave it. Soon after the deeds were passed, Gleason told me Graham had a lease. I asked him how much Graham was paying ; he said $1000 ; that Graham got it under price through a friend. He took me one side, and said that the police had driven Graham out; that he kept some women there.”</p> <p>On cross-examination, he testified as follows: “It seems to me that we went into an adjoining house in Chickering Place, next to No. 6. Think Gleason told me it would rent for $1500; was well worth $13,000. Think I understood he gave it as his opinion. He said Nelson wanted it to run the two houses together. Don’t think the lease was signed the same day as the deed. When I took the deed, the lease was all ready for me to sign. Nelson was not there. I found out about the Graham lease just before I was to come into possession (October 6). Saw L. W. Gleason; he wanted me to wait; said he would get Graham out. Gleason gave me a watch. I supposed it was about the lease. Gleason told me it was a good and. respectable neighborhood; said No. 6 was kept for a boarding-house; that it was wanted for a hotel. The property was sold under mortgage on September 2, 1872. I attended the sale. It was sold again for informality in the first sale. I think L. W. Gleason offered to raise money to take up the mortgages for me, and he tried to induce me to raise money to redeem the property. I received $85, proceeds of the sale; receipt is dated September 2, 1872. Up to April, it was in Gleason’s hands, and he collected rents' at rate of $1000. I told Gleason I would put it in Proctor’s hands. I cannot say whether the deed to Gleason was executed and delivered the same day. I think Gleason has the $500 bond. I saw Pearson but once. I supposed Kiles P. Gleason owned the Chickering Place property. Graham was in possession at the time the deed was given.”</p> <p>The plaintiff offered in evidence the following deeds: Pearson to Cheney, dated October 2,1871, of Chickering Place estate, consideration $13,000; Cheney to K. P. Gleason, of estate in Reading, consideration $7000, dated October 3, 1871; K. P. Gleason to S. 1ST. Charlebois, of same estate, consideration $7000, dated April 27, 1872 ; mortgage deed, Charlebois to K. P. Gleason for $3300, of same date.</p> <p>Mrs. S. N. Charlebois testified as follows: “ In 1872, I lived at Hyde Park. In the spring of that year, moved to Reading. Bought the Reading place of K. P. Gleason, through L. W. Gleason, for $7000. Gave the place in Hyde Park and a mortgage, to K. P. Gleason for $3300. [This evidence was admitted under the defendants’ objection.] The deeds were passed in L. W. Gleason’s office. K. P. Gleason was not present. My deed of the Hyde Park property ran to L. W. Gleason, who did all the talking and made the trade. I did not know that the deed was to run to L. W. Gleason till deeds were passed. My husband questioned the conveyance to L. W. Gleason; he said it would make no difference, as he had made a trade with K. P. Gleason. There was a mortgage on the Hyde Park house, and K. P. Gleason paid me $300, which made the mortgages even. L. W. and K. P. Gleason came together to see the Hyde Park property.”</p> <p>The plaintiff offered in evidence a deed from S. N. Charlebois to L. W. Gleason, of the Hyde Park estate, consideration $8000, subject to a mortgage of $3000, dated April 27, 1872, which was admitted under the defendants’ objection.</p> <p>William Proctor, a real-estate agent, testified as follows: “I was acquainted with the Reading estate. In October, 1871, it was worth $7000. In April or May, 1872, Cheney came to me about the Chickering Place estate, and I applied to L. W. Gleason for the key, and endeavored to let the house, and could not. I asked Gleason what the house was let for; he said for a house of ill-fame, and could not be let for any other purpose. I after-wards found it to be so. I told him the property was not such as Cheney could hold, as he could not let it for a lawful purpose, and, was of no value to him. I told Gleason he did wrong to sell it to such people; he omy made a vague reply. I asked if Cheney knew of it; he said ‘ No.’ I never went into the house until the mortgagee’s sale. I learned the character of the house, it was notorious. Gleason said the police had closed it up. 1 was present at mortgagee’s sale. Defendant Pearson and a friend of his were there, and ten others. I made no attempt to sell the estate after learning its character. Think it was worth a few hundred dollars above the mortgage. It would be hard to get $6000 at forced sale.” There was also other evidence that, in 1871, the house in Chickering Place was worth from $5600 to $7000; that it was used as a house of ill-fame, and that all the houses in the place were used for the same purpose.</p> <p>Solon Bancroft testified as follows : “ The plaintiff came to me in April or May, 1872, to consult me, and, in consequence, I had interviews with Pearson and K. P. Gleason. Pearson told me that he received for the Chickering Place house $3000 above the mortgage; that L. W. Gleason sold it as his agent; that it had been used as a bed house. Kiles P. Gleason said he bought the Reading place through L. W. Gleason. The understanding was that when L. W. Gleason found a. good chance to trade, he was to let him know. I made an offer to reconvey the Chickering Place estate to Pearson. Do not remember having deed. After the mortgage sale, Kingsbury brought me an account showing the balance.”</p> <p>Upon the plaintiff resting his case, the defendants offered no evidence, and asked the judge to rule that the plaintiff had shown no cause of action, and that the jury would not be warranted in finding for the plaintiff upon the issues. The judge declined so to rule, and submitted the issues to the jury.</p> <p>The defendant Pearson requested the judge to rule, as especially applicable to his case, as follows :</p> <p>“ 1. There is no evidence competent to show that Pearson had any interest in, or knew of, or participated in, the'alleged fraudulent representations; and the answer to the second question to the jury should be in the negative. 2. There is no evidence competent to show that Pearson participated in, or knew of, such false representations; and the answer to the sixth question to the jury should be in the negative. 3. The evidence shows that the plaintiff settled with Pearson for the incumbrance of the lease, and discharged all claim on account thereof; and the answer to the seventh question should be in the affirmative. 4. The plaintiff waived his claim against Pearson for the breach of the covenant in his deed on account of the existence of the lease, by his recognition of the tenant under the lease. 5. The plaintiff was guilty of negligence in the management of the Chickering Place house, in allowing it to be sold without making proper effort to redeem it, and the defendant Pearson is released thereby from any liability on account of his covenant in his deed relating to his lease. 6. The plaintiff did not make sufficient offer for the return of the Chickering Place house to enable him to rescind the sale, and cannot maintain the bill. 7. The insertion of $13,000 as the consideration is not evidence of the actual consideration, and is not evidence in itself from which the jury have a right to infer fraud. 8. The fact that the plaintiff had completed his bargain with Kiles P. Gleason, and had executed his deed before Pearson made his deed, and before the plaintiff saw Pearson’s deed, is evidence that the plaintiff was not induced to trade by the insertion of the consideration of $13,000 in the deed. 9. There is no evidence that the plaintiff was influenced or induced by the consideration named in the deed from Pearson, to make his deed to Kiles P. Gleason. 10. The receipt by the plaintiff of the balance of the sale of the Chickering Place house, without offering to pay the money to Pearson, is a waiver of his claim against him.”</p> <p>The defendants also requested the judge to instruct the jury that the fact that the defendants rested their case and put on no witnesses was no ground for any presumption against them.</p> <p>The judge refused to give the first, second, third, fourth and fifth prayers for instruction, in the language in which they were asked, but instructed the jury that the interest, knowledge and participation of Pearson, in the alleged fraudulent representations, were for the jury to consider and pass upon, on all the evidence in the case; and the judge instructed the jury fully thereon; and submitted the question of settlement with Pearson to the jury, with full instructions thereon, as also the subject matter contained in the fourth and fifth requests; refused to give the sixth and tenth requests, as not applicable to the issues being tried. The seventh request was given with qualifications; and the eighth and ninth requests were given. The defendants alleged exceptions.</p> <p>After the above report was made, the plaintiff died, and hie executor was allowed by the court to come in on motion and prosecute. From this order, the defendants appealed.</p>

<p>Petition, filed May 12, 1876, to the Superior Court, alleging that on April 3, 1876, the petitioner was, and for seven years before had been, a butcher, and lawfully engaged in the business of slaughtering cattle and sheep on premises occupied by him in Watertown; that this business was not at any time a nuisance, or hurtful to the inhabitants of Watertown, or dangerous to the public health, and the exercise thereof was not at any time attended by noisome or injurious odors, and was not - at any time otherwise injurious to the estates of the inhabitants of Water-town, or contrary to public comfort and convenience; that the state board of health, on said April 8, prohibited the exercise of the petitioner’s trade and business on and after May 15, 1876, and caused to be served upon him, on April 14, 1876, a copy of their order of prohibition, as follows :</p> <p>“ Commonwealth of Massachusetts. State Board of D Health. Boston, April 5, 1876. To George A. Sawyer, of the town of Watertown, in the county of Middlesex: You are hereby notified that at a meeting of the state board of health, held at Boston, in the county of Suffolk, on the third day of April, 1876, it was ordered, on the petition of W. H. Ingraham and four others, and after a hearing of the parties, that George A. Sawyer, of Watertown, be and he hereby is directed to discontinue the business of slaughtering and rendering on the premises now occupied by him, on and after the fifteenth day of May, 1876. And it is adjudged and determined by this board, that the premises are noxious and offensive, and that the public health and the public comfort and convenience require that the said George A. Sawyer be ordered, as aforesaid, to cease and desist from carrying on the said business on the said premises, on and after the fifteenth day of May, 1876. And you are hereby directed to comply in all respects with the requirements of the said order, under penalty of what may follow thereon.”</p> <p>The petitioner further alleged that' he thereupon obeyed said order, and thenceforth desisted and refrained from the carrying on of his trade of butcher, and of slaughtering cattle and sheep, on the premises; and that “ said order of prohibition was and is illegal and unjust, and that he is aggrieved thereby, and appeals hereby therefrom, and applies-to the Superior Court, now in session in said county of Middlesex, for a jury to hear, pass upon and determine the questions determined by said state board of health in the premises, in issuing and serving said order of prohibition upon him, and that the jury may either alter or annul in full said order of prohibition, and that he may recover his just damages caused to him by service of said order of prohibition as aforesaid, and costs ; and that the court may issue such order of notice in the premises to those who should be made respondents, as to said court shall seem meet.”</p> <p>On this petition, an order of notice was issued to the state board of health and the selectmen of Watertown. The board of health appeared, and filed a motion to dismiss the petition, for want of jurisdiction. The court sustained the motion, and ordered judgment for the respondent; and the petitioner appealed to this court.</p>

<p>An officer who arrests a person, without a warrant, under the St. of 1876, c. 17, on the ground that he is “ found in a state of intoxication,” is liable to an action for an assault and false imprisonment, if he omits to make a complaint against him for the crime of drunkenness ; or if the person arrested is not in fact intoxicated, although the officer acts in good faith, and under a reasonable belief that the person is intoxicated.</p> <p>In an action against an officer, who arrested the plaintiff, without a warrant, under the St. 1876, c. 17, there was evidence that while the officer was taking the plaintiff to the lock-up, the plaintiff asked to be let off, and promised the officer that if he would release him, he would go home peaceably; that the officer released him and did not afterwards make a complaint against him. There was also evidence that when the plaintiff was released, the officer told him to be at court the next day; and that the officer then applied for a warrant, but did not obtain one. The judge instructed the jury that, to release the officer from liability, the jury must be satisfied that it was understood and agreed between the parties at the time that no further proceedings were to be taken. Held, that the defendant had no ground of exception.</p>

<p>An indictment under the Gen. Sts. c. 166, § 3, which charges the defendant with unlawfully and fraudulently adulterating “ a certain substance intended for food, to wit, one pound of confectionery,” does not sufficiently describe the substance alleged to have been adulterated, and, if seasonably objected to for that cause, must be quashed.</p>

<p>Indictment for manslaughter. After verdict of guilty in the Superior Court, the defendant, on the same day, moved to set aside the verdict for the following reasons: “ 1. Because the proceedings in regard to the rendition of the verdict and separation of the jury were irregular and illegal. 2. Because no proper and correct verdict was rendered by the jury. 3. Because, after the case was given to the jury, and before any verdict was rendered, they had separated without the knowledge or consent of the defendant.”</p> <p>The motion was overruled by Gardner, J., who allowed a bill of exceptions, stating the facts that appeared upon the hearing of the motion, as follows:</p> <p>The jury retired to consider their verdict during the morning session of the court, and at the time of the adjournment of the court in the afternoon they had not agreed. The judge adjourned the court, and, when on his way from the bench to the lobby and within two minutes after the formal adjournment of the court, instructed the officer in charge of the jury, without the knowledge or consent of the defendant or his counsel, that if the jury agreed before the coming in of the court, on the following morning, he might permit them to seal up their verdict, separate, and return with their verdict into court at the opening thereof in the morning. The jury thereafter, and about six o’clock that evening, agreed upon a verdict of guilty, which the foreman wrote into a printed blank, signed and sealed up with the other papers in the case, in the presence of all the jury. The foreman then informed the officer that the jury had agreed. The officer asked if they had sealed up their verdict, to which the foreman answered, “Yes.” The officer then said, “You may separate, and return into court tomorrow morning at half-past nine o’clock.” The jury separated, the foreman taking the sealed verdict with him.</p> <p>At the opening of the court the next morning, all the members of the jury, the defendant and one of his counsel were present in court. The clerk was directed by the court to take the verdict. The clerk called the defendant by name. The clerk Then said, “ Gentlemen of the jury, have you agreed upon your verdict?” The foreman answered, “We have,” and handed, by the officer, a sealed envelope to the clerk. The clerk broke the Beal, and took therefrom and read to the jury the paper which is copied in the margin,* and which was all printed, except the word “ guilty ” and the signature, which were written by the foreman. The clerk then said: “ Gentlemen of the jury, hearken to your verdict as the court has recorded it. You, upon your oaths, do say that the prisoner at the bar is guilty. So you say, Mr. Foreman, and so, gentlemen, you all say."</p> <p>The above is all that was said. The foreman, after he had sealed the verdict as above stated, kept the same in his possession until he delivered it to the clerk, when the verdict was returned, and he testified that it had not been opened. The defendant and his counsel knew that the jury had separated after the adjournment of the court; but, as to all the other above facts, they were ignorant.</p> <p>The case was argued at the bar, and was afterward submitted on additional briefs to all the judges.</p>

Complaint to the Municipal Court of the city of Boston, averring that Gustavus Hoyer, of Boston, on March 24, 1878, “ that day being the Lord’s day, at Boston aforesaid, and within the judicial district of said court, unlawfully did sell intoxicating liquors to a man whose name is unknown to said complainant, the said Hoyer not having then and there any license, authority, or appointment, according to law, to make such sale of said intoxicating liquors on the said Lord’s…

<p>After the arrest of a clerk, nineteen years old, for larceny of his employer’s goods, and while out on bail, the employer said to him, “ I am satisfied that there are other receivers -whom we have not yet discovered. I should like to have you make a clean breast of this matter; ” and the clerk thereupon made a confession. Bteld, that the words used by the employer contained no promise or threat; and that the confession was admissible in evidence against the clerk on his trial for the larceny.</p> <p>It is not necessary to prove the time as alleged in an indictment for larceny.</p> <p>On the trial of an indictment containing five counts, for larceny in a building, of the property of R., it appeared that the defendant had confessed to R. that he had, daring the time covered by the indictment, stolen from his shop at different times, large quantities of the goods described in the indictment; that some of the larcenies he committed alone, and some were committed jointly with an accomplice, but he fixed no particular ^occasion of larceny. The accomplice testified that he and the defendant had, for a period of some months, at various times, stolen from the'shop such goods as were described in the several counts of the indictment, but he did not fix any particular occasion of larceny. The judge instructed the jury that “ if they found from the evidence, including the confession ot the defendant, that he had, on five different occasions, within the period covered by the several counts, stolen articles described in the several counts of the indictment respectively, they would be authorized to render a verdict of guilty, and not otherwise.” Held, that whether there were five distinct larcenies proved was a question of fact for the jury, and was properly submitted to them.</p>

<p>In an action of tort against a surveyor of highways for the removal, while acting within the scope of his authority, of earth and gravel from the highway in front of the plaintiff’s estate for the purpose of making repairs, the surveyor’s judgment as to the necessity of such repairs is conclusive, and his good faith in making them cannot be questioned, whether the repairs are made opposite such estate, or on another part of the way or on another highway within his jurisdiction; and the only remedy is under the Gen. Sts. c. 44, § 19.</p> <p>A surveyor of highways, while acting within the scope of his authority, may remove earth and gravel from one highway or part of a highway to another within his jurisdiction.</p>

<p>On a petition for the assessment of damages for the taking of land by the city of Worcester under the St. of 1867, c. 106, providing for a system of sewerage for the city, the presiding judge refused to rule that the city had a right of way over the location and a right to keep the location of the sewer free from structures by abutters, but instructed the jury that the city could enter upon the land, make repairs, reconstruct and make such changes as it saw fit, subject to which right the petitioner could use and improve the land as he wished. Held, that the petitioner had no ground of exception.</p> <p>The assessment by the city of Worcester under § 4 of the St of 1867, c. 106, providing for a system of sewerage for the city, of the benefit to an estate from which land is taken for the construction of a sewer, includes such benefit only as is derived in common with the other estates drained thereby ; and a peculiar benefit to the estate may be set off by the city in the assessment of the owner’s damages for the taking of his land.</p>

<p>The owner of land, who makes a contract with a firm of masons, by which the latter are to furnish all the materials and labor in building a party wall, half on his land and half on the land of an adjoining owner, is liable in tort to such adjoining owner, after the wall has been completed and accepted, for an injury to his property by the fall of the wall, resulting from its defective and unsafe condition, whether owing to his own negligence or to that of the masons.</p> <p>On the issue whether the owner of land in a city, who builds a party wall under an agreement with the adjoining owner, reciting that “ any points respecting the same, which are not herein specifically provided for, shall be decided by the custom in regard to party walls in the said city,” is bound to put flues therein for the use of such adjoining owner, an expert may be asked if party walls in that city are “ usually constructed with flues for the accommodation of the adjacent estate.”</p>

<p>A court of equity will not entertain a bill by the assignee of a strictly legal right, merely upon the ground that he cannot bring an action at law in his own name, nor unless it appears that the assignor prohibits and prevents such an action from being brought in his name, or that an action so brought would not afford the assignee an adequate remedy.</p> <p>A bill in equity, by A. and B., copartners, against C. and D., alleged that D. executed to A. and B. a license to use a patented machine, for which they were to pay him certain license fees on rendering true monthly accounts; that at the same time D. made an agreement with A. to pay him for his services, (which he performed,) in introducing the machine to the public, a sum equal to such license fees; that D. had assigned his rights in the license and agreement to 0., and A. had assigned his rights under the agreement to A. and B. as copartners; that A. and B. had used the machine, duly rendered accounts to C. and D., paid them therefor a certain sum, and owed and were ready to pay to C. a further sum therefor; that a like sum was due from C. to A. and B,; that A. and B. had demanded of C. that he should pay to them the sum so paid by them, and should set off such further sum due to him against the sum so in equity due to them from him; and that C. wholly refused to do so, and threatened to sue them for the further sum due and to set aside and avoid the lease and license, and to seize upon and take possession of the leased machine. The prayer of the bill was for a discovery under oath; for an account of all sums due from A. and B. to 0. and D. or either of them, and from C. and D. or either of them to A. and B.; for a set-off of such sums against each other; for an injunction against bringing any suit against A. and B. on account of any claim against them as above stated; and for further relief. Held, on demurrer, that the bill could not be maintained, either on the ground of set-off, or for an account, or for relief against forfeiture, or to reach, under the Gen. Sts. c. 113, § 2, property not attachable at law, or for discovery.</p>

<p>Tort, by the assignee in bankruptcy of Cyrus Leonard, for the conversion of a cow and a yoke of oxen. Writ dated November 27, 1876. Trial in the Superior Court, before Brigham, C. J., who allowed a bill of exceptions in substance as follows : On November 16, 1875, Leonard sold the cattle in question to the defendant, and delivered them to him the next morning. It was admitted that Leonard was insolvent at the time of the sale, and was, on March 3, 1876, adjudged a bankrupt, on his own petition. The plaintiff contended that the sale was in fraud of the bankrupt act.</p> <p>Leonard, who was called as a witness by the plaintiff, was asked what conversation he had with the plaintiff, after the delivery of the cattle on November 17, 1875, with reference to his property, or the disposition he had made of it. The defendant objected, and the judge excluded the evidence.</p> <p>The plaintiff then offered in evidence certain mortgages of personal property executed by Leonard to third persons on November 18, 1875. It appeared that all the property Leonard had on November 15, 1875, not exempt from attachment, was the property conveyed to the defendant and the property described in these mortgages, and that the value of the whole property was about $800. It also appeared that, at the time of the sale to the defendant, Leonard was indebted to different persons, to an amount above $2000. The mortgages offered in evidence were excluded.</p> <p>The plaintiff called Lyman Wilbur, who testified, among other things, as follows: “I had a talk with the defendant, within a day or two after November 18, 1875. The defendant asked me if I had heard anything from Lincoln, referring to the plaintiff, I said ‘ No.’ He then asked if Leonard owed my son. I told him that he did; he asked how much; I told him about $280, Wilbur then said, ‘ Leonard is too smart for Lincoln ; will Lincoln sue Leonard ? If Lincoln sues Leonard, he will go into chancery.’ He asked me what Leonard had given my son for security. I told him, as far as I could remember. At another time he said Lincoln would not get much, but the other creditors would get their pay. At another time, after the bankruptcy, he came to my house and asked my son to sign to give Leonard his discharge in bankruptcy; he spoke about Leonard’s going into bankruptcy. I told him I did not think it was right that some should get all their pay and others nothing. I asked him how he could make it out that he could put in a claim for $100, when he had received $120. He said he could put in other things to make it $100.” There was no evidence, by either party, as to whether the defendant had met Leonard between the time when the defendant had received the cattle of Leonard and the date of the first talk with Lyman Wilbur. The plaintiff offered evidence tending to show that Cyrus Leonard’s financial reputation for a year previous to the sale to the defendant was bad, and it appeared that for some years previous he was slow pay, and that his financial reputation had continued about the same. The plaintiff again offered the mortgages in evidence ; but the judge excluded them.</p> <p>The defendant was asked by his counsel, “ Did you know at the time of the sale that Leonard had a fraudulent purpose to make a preference under the bankrupt laws, or that he was contemplating bankruptcy ? ” The judge ruled, against the plaintiff’s objection, that the question was competent, and the defendant answered that he did not. The defendant also testified that he lent Leonard $165 for thirty days on October 16, 1875, and that on November 16, 1875, he called on Leonard for payment; that Leonard said he had no money on hand, but had some cattle which he was intending to sell to raise the money, and would like to sell them to him, and thereupon the sale in question was made.</p> <p>The plaintiff again offered the mortgages in evidence 5 but the judge refused to admit them.</p> <p>The plaintiff asked the judge to rule as follows : “ 1. It is immaterial what was the defendant’s belief as to the intention of Leonard in making the sale. 2. If the defendant bad reasonable cause to believe that Leonard made the sale in contemplation of insolvency, that is, with a view or under expectation of petitioning for the benefit of the bankrupt act, then such sale was void and the plaintiff can recover. 3. A transfer within four months of filing the petition by the bankrupt, with a view to prevent the property from being equally distributed among all the creditors, is a transfer in fraud of the bankrupt laws of the United States; and if the defendant had reasonable cause to believe that Leonard was at the time of the transfer insolvent, then he is presumed to know that it was a transfer in fraud of the bankrupt laws of the United States.”</p> <p>The judge refused so to rule; but instructed the jury that the plaintiff, to maintain the action, must prove that, on the day the cattle were delivered by Leonard to the defendant, Leonard was then insolvent in fact, or contemplated becoming so; that the sale and delivery were with a view to give a preference to the defendant as his creditor; that the defendant then had reasonable cause of belief that Leonard was insolvent; and that the defendant knew that such sale was made by Leonard in fraud of the bankrupt law, i. e. so as to evade or defeat the operation of the bankrupt law.</p> <p>The judge, at the request of the plaintiff, also instructed the jury as follows : “ The fraudulent intent, with a view to give a preference, extends to a sale made with an intent to give one creditor any advantage over others in respect of payment or security of his debt. Evidence of the debtor’s financial condition and reputation a year before his going into bankruptcy is competent to show what means the defendant had to know or cause to believe that he was insolvent during the year following. It is immaterial whether the defendant in fac#- did believe that Leonard was insolvent or not. If the sale to the defendant was out of the usual and ordinary course of business, it is primé facie evidence of the fraudulent intent of the parties.”</p> <p>The jury returned a verdict for the defendant; and the plain tiff alleged exceptions.</p>

Petition to the county commissioners for a jury to assess damages occasioned to “ certain real estate, easements and privileges ” in New Bedford, by the location and construction of its railroad by the respondent.

Bill in equity, filed October 1, 1877, to restrain the defendant from violating the following agreement, dated August 3, 1876, and signed and sealed by him : “ This may certify that I, Franklin Upton, of the town of Danvers, in consideration of the sum of $500 to me paid by Joseph W. Ropes, hereby agree to sell and relinquish all my interest and good-will in the business now conducted by Ropes & Upton, together with all debts now due them; and I hereby agree not to…

Bill nr equity against William F. Cloon and Francis Par-ton, to reach and apply a trust fund in the hands of Cloon in payment of a debt due from Parton to the plaintiff. The bill alleged that the will of Mary R. Parton, dated February 5, 1863, contained the following provisions : “ Item 1.

<p>A testator, by his will, after giving certain real estate to his widow in fee, with all his furniture, and a certain sum in trust for the support of a deceased son’s wife and children, devised the residue of his estate in trust to support his widow out of the income during her life, to pay a certain annuity to bis son and daughter “ during the continuance of this trust,” to add the surplus income to the residue, to permit his deceased son’s widow to occupy a certain dwelling-house free of rent during her widowhood, and, “ as soon as may be after the decease of my said wife, my said trustees or their successors shall convey, transfer or pay to my son and daughter, in equal shares, all the estate here given in trust, if they both survive my said wife, subject to the right of the widow of my said son, deceased, to occupy as aforesaid said tenement in my said house during her widowhood. In case either of them should die in the lifetime of my said wife, leaving no issue, the said estate given in trust shall be transferred or conveyed to the survivor, subject to the same right of my said son’s widow.” The son survived the widow, and the daughter, who was married after the death of the testator, died before her, leaving a son and a husband, who was appointed her administrator. Held, that the testator’s son and daughter each took a vested equitable remainder in the residue, expectant on the termination of the widow’s life estate, and liable to be divested only by the death of either of them in the widow’s lifetime without leaving issue; that the son was entitled to one half of the residue, and the daughter’s administrator to the other half; and that the daughter’s annuity ceased with her death, her administrator being entitled to the proportional part thereof for the time between the last payment to her and her death.</p>

Tort for malicious prosecution. Writ dated October 11, 1876. At the trial in the Superior Court, before Allen, J., without a jury, the plaintiff introduced evidence tending to show that the defendant made a complaint against him to the Municipal Court of Boston, in which he charged the plaintiff with an assault and battery upon him; and that he was arrested on a warrant issued on said complaint, and was discharged on September 26,1876.

Contract on a policy of insurance, dated July 12, 1875, by which the plaintiff was insured in the sum of $2500 “ on his frame building and fixtures known as the Oceanic House, situate in the town of Gosport, Star Island, Isles of Shoals, N. H.’* The policy also contained the following clause: “ Warranted a family to live in said house throughout the year.” At the trial in the Superior Court, before Putnam,, J., the execution of the policy, and the loss of the insured…

<p>Contract, with a count in tort, against the sheriff of Norfolk, for the wrongful act of Henry A. Darling, his deputy. Trial in the Superior Court, before Colburn, J., who ruled that the plaintiff was entitled to recover; and the defendant alleged exceptions, the substance of which appear in the opinion.</p>

<p>Tort for personal injuries occasioned to the plaintiff’s intestate, John H. Morse, while in the employ of the defendant corporation. Trial in this court, before Lord, J., who reported the case for the consideration of the full court. If, upon the evidence, it would be competent for the jury to find for the plaintiff, the case was to stand for trial; otherwise, the plaintiff was to become nonsuit. The nature of the evidence appears in the opinion.</p>

<p>The owner of two adjoining lots of land built a house on each, with a chimney between them, which was built entirely on one lot, but was intended for the use of both houses, and had suitable entrances into it from each house. Afterwards, by simultaneous deeds, he conveyed one lot to A. and the other to B., describing the lots by metes and bounds, with “ all rights, easements, privileges and appurte- ■ nonces to the said land belonging,” and with covenants of warranty against all incumbrances made or suffered by the grantor, but containing no reference to the chimney. In an action by A. against B. for taking down the chimney, the jury found that A. could have built a chimney on his own land at a reasonable cost, and returned a verdict for B. Held, that if A. had an easement in the chimney, it was one created by implication, as being absolutely necessary to the enjoyment of his estate; and that, on the finding of the jury, no such easement was created.</p>

<p>Conteact, with a count in tort, alleged to be for the same cause of action. Writ dated September 26, 1870. The count in tort alleged that the defendant, a corporation duly established by law, was a common carrier of goods and merchandise; that on May 22, 1868, it received at Providence, in the State of Rhode Island, from the plaintiff’s agents, thirty cases of bleached cotton cloth, which it agreed with the plaintiff, for a reasonable compensation, to transport safely from Providence to the city of Hew York ; that the thirty cases contained 39,691 yards of cloth, of the value of $7000; that the defendant so carelessly and negligently conducted itself that the cotton cloth, while being so transported by the defendant, was burned and injured by fire to the amount of $6000. The answer admitted that the defendant was a carrier; denied loss by negligence; set up a limitation of liability under the U. S. St. of March 3, 1851; and relied upon certain proceedings under that act, in the District Court of the United States for the Southern District of Hew York.</p> <p>After the former decision, reported 113 Mass. 495, the case was tried in this court before Lord, J., who allowed a bill of exceptions in substance as follows:</p> <p>It appeared that the cotton cloth in question was delivered at Lowell to the Boston & Lowell Railroad Company, to be conveyed by railroad to Providence, Rhode Island, and thence by the defendant’s line of steamers to Hew York; that it was delivered in Providence to the defendant on May 23, 1868, and put on board their steamship the Oceanus; that the steamship sailed that afternoon, and arrived in Hew York the next morning, Sunday, but none of the cargo was discharged on that day; and that on Sunday afternoon a fire, which originated in one of the defendant’s buildings on the pier at which the vessel was lying, burned the steamship to the water’s edge and destroyed or damaged the cloth and nearly the whole of her other cargo, which belonged to various shippers; that portions of her cargo were afterwards discharged in a damaged condition, and no freight was earned or received by the defendant on the cargo, or any portion thereof; that the damage to the cargo by the fire largely exceeded the amount or value, immediately after the fire, of the defendant’s interest in the steamer, and her freight then pending; that the defendant at the time of the fire held leases of the wharf property. and was owner of the buildings thereon.</p> <p>The plaintiff contended that the fire was caused by the neglect and not by the design of the defendant; and offered evidence tending to show that at the time of the fire the pier was covered with a building between five hundred and six hundred feet long, that portion of it which covered the head of the pier being somewhat higher than the part which extended down the pier; that the sides of this building were made of pine boards painted on the outside, but not within, the roof being covered with a gravel roofing; and that the office, which was in a separate structure, standing by itself at the head of the pier within the main building with an open space between its roof and that of the main building, had wooden partitions, was occupied by the clerks employed in attending to the receipt and delivery of freight, and contained an iron stove standing about two feet from the partition, the stove-pipe running through the ceiling into a room over the office occupied by a stevedore in the employ of the defendant, and thence through the ceiling of the stevedore’s room, through an open space between the top of this room and the roof of the main building, into the open air.</p> <p>The plaintiff called a teamster as a witness, who testified to the foregoing details, and stated that he never saw any protection around the stove or stove-pipe, and that if there had been any such protection he should have seen it. He was not at the fire. Two firemen, called by plaintiff, testified that they received the alarm of fire at their station, and reached the premises in from three to five minutes before the fire showed itself, but when the main building was full of smoke, which apparently came from the office and the stevedore’s room; that, in from three to five minutes after their arrival, they went upon the roof of the main building to cut holes through the roof, and were there from ten to twenty minutes, during which time the fire spread down the pier until it caught the steamship, which was rapidly consumed; that the steamship was not on fire when they went upon the roof first, and the fire did not catch her for some ten to twenty minutes thereafter; and that they saw no one upon the steamer except firemen, and no watchman upon the premises from the time of their arrival until the fire was extinguished; that there was no steam upon the steamship at the time of the fire, so that she could only be moved by hand; and that the wind was blowing out of the dock, and the tide was ebbing, so that their natural tendency was to float the steamship away from t pier. The plaintiff offered no evidence to show that there was any fire in the stove on May 24, or how the fire originated, except that the firemen testified that when they first went upon the roof, smoke was coming up out of or around the stove-pipe, they could not say which ; and, without offering any other evidence, rested its case.</p> <p>The defendant thereupon asked the judge to rule that, upon the evidence offered, the plaintiff could not maintain its action, and that the defendant was entitled to a verdict. The judge refused so to rule, but ruled that the case must be submitted to the jury upon the question whether the defendant, under all the circumstances of the case, had exercised reasonable and proper care in keeping the property intrusted to its charge. To this ruling and refusal to rule the defendant excepted.</p> <p>The defendant thereupon offered evidence tending to show that it was necessary for the proper conduct of its business as a common carrier, and for the proper protection of goods during their receipt and delivery, and while awaiting the orders of the consignees, that the pier should be covered with a building substantially like that burned; that the buildings upon the pier were built about four years before the fire ; that they were very thoroughly built; that the sides of the buildings were made of boards tongued and grooved so as to fit into each other, and the roof was so made that, when completed, it presented nothing but a surface of gravel; (the plaintiff did not contend that the roof was of improper construction;) that the interior of the building was open from one end to the other, so that a person standing at the head of the pier could see the whole length of the pier r that the lower end and sides were closed, with openings at intervals corresponding with the gangways of the steamships, which could be shut when not needed for the receipt or discharge of cargo; that within the main building at the head of the pier were two smaller buildings ; that the office was in one of these buildings, the partitions being constructed of boards planed and well finished; that the remainder of the building, adjoining the office and separated from it by a partition, was divided, by a floor in the middle, into two rooms, of which the lower, opening into the main building, was used for the keeping of passengers’ luggage, and the upper was the stevedore’s room above alluded to, the ceiling of the stevedore’s room being on the same plane as the ceiling of the office, and both covered by the same roof; that in the office was the stove above alluded to ; that the pipe from this stove passed through the partition into a drum in the stevedore’s room, and thence out through the roof; and that beneath the stove, between it and the partition, and between the stovepipe and the partition for the entire length of the former, zinc had been put as a protection ; that the pipe passed through the partition through a double cylinder of tin, so arranged with holes as to allow a circulation of air between the two cylinders; that there was a similar protection where it passed through the roof, and that this was a sufficient protection against fire from the stove, and, although hot fires had been built in the stove for some years, there had never been any indication of undue heat to the partition, ceiling or roof; that there were on the pier four hydrants, connected by pipes with the main water-pipe in the street, each provided with sufficient hose, which were in good order on the day of the fire, and could be brought into use in one minute by one man; that on the day of the fire, the openings on the sides of the building over the pier were shut, except three which were open, one to afford an entrance to each of three steamships then lying at the pier, and that the entrances to the building from the street were closed ; that there was on the wharf a regular watchman, who was there at the time of the fire, sitting inside the buildings where he could see the whole pier, which on that day was clear from freight; that the Oceanus was provided with all the means for extinguishing fire required by the laws of the United States, and had three pumps, two hand-pumps, one near the bow and another near the stern, and one steam-pump near the centre of the .ship, each provided with a proper equipment of hose, which was kept actually connected with the hand-pumps, and was so connected at the time of the fire ; that upon reaching her dock on the day of the fire, the fires under her boiler had been drawn, in order that the boilers might be cleaned ; that this operation had been finished, and the hands were in the act of filling the boilers when the fire broke out that it was necessary for the safety of the vessel to clean tho boilers once a week; that it was the rule that this should be done on Sunday morning, and no fires could he lighted under the boilers until they had been fully filled again, without danger of an explosion; that during this operation the boat could not be moved by steam; that the full complement of the steamship was fifty-four men, including the officers, which were a captain, first and second mates, first and second engineers, first and second pilots, steward, and some minor officers; and that at the time of the fire, all were on board, except the captain and chief engineer, and were in various places on the vessel.</p> <p>There was no evidence that any one was in command of the vessel at the time of the fire, unless it is to be inferred that the first mate was in command in the absence of the captain; nor that any special order had been given to keep watch on board, or that any regulations had been established in reference to the breaking out of fire on the ship or the wharf. But there was evidence that a watch was always kept on the ship, and that the fire was first discovered by some of the men on board, when it was confined to the stevedore’s room, some thirty or forty feet from the stern of the ship; that thereupon the lines which held the steamship to the wharf were immediately cast off, the pumps manned, and a stream of water played upon the sides of the steamship, the capstan manned by all the men who could get hold of it, a line being attached from it to a post at the head of the pier; and that the fire spread so rapidly that the steamship could only be moved fifteen or twenty feet before the men were driven from her by the fire, the capstan being near the forward end of the vessel; the mate and others testifying that only twelve to fourteen minutes elapsed from the time the fire was first discovered in the stevedore’s room until the men left the vessel. The evidence showed that everything was done by the men on board which could be done to save the vessel. Much evidence was introduced to show what was done, but the plaintiff did not contend that the officers and men in charge of the vessel were guilty of any negligence in failing to save her, or that she was not properly equipped with means for extinguishing fire. The assistant engineer testified that the fire went like a flash, and that the men were driven from the capstan in about six minutes from the time when he first saw the fire in the stevedore’s room, thirty-five or forty feet from the steamship. There was evidence that the fire, when first discovered, was in the stevedore’s room and that the smoke and fire, when first seen by the officers of the steamship, were coming up out of or near the stove-pipe; and the defendant offered the evidence of witnesses, who examined the premises after the fire, with a view of ascertaining the cause of it, to the effect that the office in which the stove stood was not touched by the fire; that the stove and the stove-pipe through its entire length were undisturbed ; that there was no sign of fire or scorching in the partitions, ceiling or roof, where the stove-pipe passed through, but that it and all its appurtenances remained after the fire as before ; that there was a hole in the ceiling of the stevedore’s room and the roof overhead, but that it was two or three feet from the stove-pipe; and that the fire apparently originated in the baggage room under the stevedore’s room. There was no other evidence, except this, as to the cause or origin of the fire.</p> <p>The defendant also introduced evidence tending to show that at the time of the fire all other steamship companies, whose routes ended in New York, had their piers covered; that every pier then covered in New York was covered with a wooden building; and that the building which covered the defendant’s pier was in no way inferior in construction, size, material or other respects affecting its liability to bum, to the buildings upon the other piers in New York, but on the contrary was better.</p> <p>The defendant also offered to show by various witnesses that, at the time of the fire, companies and persons engaged in the same business as the defendant and having routes with a terminus in Boston, used covered wharves at Boston, and covered them with wooden sheds of the same construction and character as that which covered the defendant’s pier; and that there was no difference between the circumstances, including the danger of fire, under which such buildings were used in Boston, and the circumstances under which the defendant used its building. This evidence was offered for the purpose of showing the care exercised and precautions employed generally at the time of the fire by persons and corporations engaged in the same business and subject to the same responsibilities as?the defendant, The judge excluded the evidence, and the defendant excepted.</p> <p>The fire marshal of New York testified that the building on the pier operated like a horizontal chimney, and that when he arrived at the spot, which was from thirty-five to forty minutes after the bells gave the alarm, he found the part of the building on the pier on fire, with intense heat, and also the vessel.</p> <p>There was no evidence that any regulations had been established by the defendant in reference to the use of the pumps on the steamer or the hydrants on the wharf in case of fire, or that the watchman had received any instructions as to his duties in case of fire, or any other than general instructions to watch the whole pier. The watchman was not called, nor was his absence accounted for. It appeared that he was no longer in the employ of the defendant, and had not been seen for several years, and there was no evidence to show that any of the defendant’s agents or servants knew where he was. The mate and other officers of the steamship testified that the tide had very little force where the steamer lay, owing to the piers above, and that the wind and tide at the time of the fire would have had no appreciable effect in taking the steamship out of the dock.</p> <p>The defendant put in evidence the record of proceedings upon the libel and petition of the defendant, filed on May 14, 1872, in the District Court of the United States for the Southern District of New York, under the U. S. St. of March 3,1851, §§ 3, 4, and the 54th-57th Rules of Practice in Admiralty of the Supreme Court of the United States, claiming the benefit of the limitation of liability provided in the act of Congress. The record showed that the libel set forth the facts and circumstances; that upon this libel the District Court caused an appraisement to be had of the amount of the defendant’s interest in the steamship and in her freight for the voyage, and made an order for the giving of a stipulation, with sureties, for its payment into court whenever ordered ; that the defendant entered into a stipulation in conformity with the order, and a monition was issued against all persons claiming damages for the loss occasioned by the fire on board the steamship, citing them to appear before the court, and make proof of their claims, on or before October 15, 1872, and ordering public and other notice of the monition ; that this notice had been served on the plaintiff as well as on all other claimants; that the court made an order upon the plaintiff and the other claimants, which had been served, restraining the further prosecution of all and any suit or suits against the defendant in respect of any such claim or claims; and that the court made a final decree by which all persons in default, by reason of their failure to prove their claims, were forever debarred from prosecuting such claims. It was admitted that the process and restraining order issued on the defendant’s libel and petition were duly served on the plaintiff.</p> <p>The defendant asked the judge to rule that, upon the whole evidence, the plaintiff could not maintain its action, and that the jury must find for the defendant; but the judge refused so to rule.</p> <p>The defendant thén asked the judge to instruct the jury as follows : “ 1. Under the proper construction of the act of Congress entitled 6 An act to limit the liability of ship-owners, and for other purposes,’ U. S. St. March 3,1851, the libel and petition of the defendant, filed in the District Court of the United States for the Southern District of Hew York, and the proceedings had thereon, are a bar to the plaintiff’s action. 2. Under the proper construction of said act of Congress, the plaintiff is precluded from maintaining its action by said proceedings in said District Court. 3. By the decree of said District Court, made upon said libel and petition, and the subsequent proceedings thereon, it has been adjudged, as between the parties to the present suit, that the fire which caused the damage for which the plaintiff seeks to recover, was not caused by the design or neglect of the defendant within the meaning of said act of Congress. 4. There is no evidence that said fire was caused by the design or neglect of the defendant within the true construction of the said act. 5. Under said act the defendant is not liable, unless the fire on board the Oceanus was occasioned by the design of the owners thereof, or their neglect in respect of the construction, equipment or manning of the vessel. 6. The neglect referred to in said act is a neglect in respect of the vessel herself, and not neglect in respect of any arrangements which may be made for the protection of cargo before it is put on board, or after it is taken out of the vessel. 7. It is not neglect of the owners of a vessel, within the meaning of said act, to permit her, upon her arrival In her port of destination, to be attached to a pier covered by a shed, constructed in the manner usual and customary for such vessels in such port. 8. There is no evidence of neglect of the owners of the Oceanus, within the meaning of said act, in respect of the place where said vessel was attached. 9. There is no evidence in the case of neglect on the part of the owners of the Oceanus, within the meaning of said act, in respect of the construction or maintenance of the buildings at the head of the pier, or upon the pier itself. 10. If the fire originated in the buildings on the shore, and communicated to the steamer by the shed upon the pier, the defendant is not liable. 11. Unless the fire itself was originally caused by the neglect of the defendant, the defendant is not liable. 12. If the fire did not originate in the steamer Oceanus, the defendant is not liable.”</p> <p>The judge refused to give these instructions; but, after stating to the jury that the question before them was whether the fire which caused the damage complained of was occasioned by the neglect of the defendant, instructed them as follows: “ It becomes necessary for you to inquire whether there was any negligence on the part of the defendant corporation; not whether any of the servants of that corporation, while performing the duties which the corporation imposed upon them, have been guilty of misconduct or negligence, but whether the corporation itself has been guilty of any misconduct. The corporation is the owner, and the liability of the corporation is the exact liability of the owner. The corporation provides ships, docks, piers and places for the transaction of the business incident to its enterprise. Now, if there is a failure to do what is proper for the reasonably setting in motion and carrying on the business of the. corporation, that is in law a neglect of the corporation. The case here rests upon the provision made by the corporation for the purpose of doing the business. It is like the case of a railroad company that is bound to furnish the railroad with a good roadbed, with a properly constructed road, with a suitable equipment, with a proper depot. A neglect to furnish either of these is a neglect of the corporation itself in providing means by which the business is properly to be done. Was the corporation guilty of neglect? The plaintiff contends that the arrangements made for carrying on its business were unsuitable and unsafe; in the first place, in having a structure so large, and of such combus* tibie material, thus placed by the side of the dock upon the pier and in having means in it for heating which were unsafely provided ; and, in addition, that the corporation had failed to make such proper regulations as it was their duty to make to provide against such a contingency as happened, which men of prudence should have anticipated. Whether it was guilty of neglect, is a question for you. The corporation was bound to act reasonably under all the circumstances of the case. The place where the property was, the circumstances surrounding it, whether a dense or a sparse population, whether easy or difficult of access for re moval in case of danger, the value of the property, are all elements for your consideration in determining whether the defendant did or did not use reasonable care to protect the property against fire. If it did not, and if, further, you are satisfied that the want of that reasonable care was what caused the destruction of the plaintiff’s property, then the defendant is liable. The plaintiff must satisfy you of two propositions : that the defendant neglected the proper means, the reasonable and proper precautions, which should have been taken against fire; and that by reason of that failure to take proper precautions against it, its property was destroyed. If it has satisfied you of both these propositions, your verdict must be for the plaintiff; otherwise, for the defendant.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Contract upon an account annexed for the support of Ezra Waitt and George W. Waitt, two paupers. Answer, a general denial. Trial in the Superior Court, before Pitman, J., who reported the case for the consideration of this court, in substance as follows:</p> <p>The plaintiff offered to show that Ezra Waitt, the grandfathei of the paupers, came to Malden from Lynn in 1783, and moved on to the “ Pratt Place,” so called, in what is now Malden, which he bought on February 4, 1783 ; that on February 23, 1784, a warrant was issued by order of the selectmen of Malden, and served on Ezra Waitt, to warn him and his family to depart from the town; that on February 28, 1785, he sold the “Pratt Place,” and on March 22, 1785, bought the “ Ireson Place,” so called, in that part of Malden which became Melrose by the St. of 1850, c. 309, and resided there until his death in 1831; that the clear annual income of each of these places was ten pounds ■during the period it was occupied by him; that his son, Ezra Waitt, the father of the paupers, was born in Lynn on February 8, 1781, came to Malden with his father, and in September, 1815, moved with his family on to a place which is now in Malden, and on January 25, 1823, bought and settled on a freehold estate in that portion of the town which remained within the limits of Malden on its division by the St. of 1850, and resided there continuously with his family, including the paupers, until 1832, when he and his family moved to Boston; that Ezra Waitt, one of the paupers, was born on March 28, 1810, and George W. Waitt, the other, was born on January 24, 1813; that they were absent from Malden when the town was divided ; and that their last dwelling place in the town was in that part of it which remained Malden after the division.</p> <p>Upon this evidence, the judge ruled that the plaintiff could not recover; and directed a verdict for the defendant. If the ruling was right, judgment was to be entered on the verdict; otherwise, the verdict was to be set aside.</p>

<p>Under the Gen. Sts. c. 98, § 8, an executor is bound to account in the Probate Court for rents of real estate received by him from the time of the death of the testator, and his failure to account for and pay over the same is a breach of his bond, for which he and his sureties are liable; but if he is removed from office, they are not liable for rents collected by him after his removal.</p> <p>A provision in a will charging and binding the real estate of a testator for the payment of legacies, and empowering the executor to sell it to pay such legacies, does not affect the rights of the heirs or devisees in the rents until the power is exe outed by a sale.</p> <p>Li an action on a probate bond, it appeared that A. was duly appointed, by the Probate Cour*’ executor of the will of B.; that afterwards A. was removed for cause, in not rendering an account to the Probate Court, from his office of executor, and an administrator de bonis non, with the will annexed, was appointed in his place; that A., in his capacity as executor, received rents of the real estate of B. to a large amount, and made disbursements in reference to the estate; and that, in accordance with a power contained in the will, he made endeavors to sell the real estate. Held, that there was notning in the case to show that the judge before whom it was tried erred in disallou ing a claim on the part of A. for compensation for his services as executor.</p>

<p>Bill in equity filed April 4, 1877, by the executors of the will of John Gardner of Boston, who died March 16, 1876, against the United States and the heirs at law of the testator, to obtain the instructions of the court as to the validity and effect of the residuary clause in a will dated January 17, 1862, and admitted to probate April 17, 1876, by which the testator-after making certain legacies and providing for the payment of certain annuities, provided as follows : “ Fifth. Wishing to contribute my mite towards suppressing the rebellion and restoring the Union, I give and devise the rest and residue of nay estate, after paying the donation and providing for the payment of the annuities aforesaid, to the United States of America.”</p> <p>All the parties submitted the case to the decision of the court upon the following facts : The residue of the estate of the testator, after payment of debts, legacies and expenses of administration, and providing for the annuities, is of considerable amount, consisting partly of real estate, situated in this Commonwealth and in the State of Iowa, and partly of personal estate. The plaintiffs have, for the benefit of the estate, and with the consent of all the parties in interest, managed the real estate in question and collected the rents thereof, and now have in their hands moneys arising from such rents, for which it is their duty to account, either to the United States or to the heirs at law. Morton, J., entered a decree in favor of the United States ; and the heirs at law appealed.</p>

<p>The St. of 1878, c. 173, providing that the compensation awarded to auditors by this court or the Superior Court shall be paid by the county, and shall not be taxed in the bill of costs of either party, applies to a case in which final judgment had not been rendered, nor the compensation of the auditor awarded, before the statute took effect, although he had been appointed and had returned his report before that date.</p>

<p>Contract upon a bond to dissolve an attachment, signed by the first named defendant as principal and the others as sureties. The principal was defaulted, and the sureties alone defended. The case was submitted to the Superior Court upon an agreed statement of facts, by which, if the plaintiff was entitled to recover, judgment was to be entered for her for the amount recovered in the original action; otherwise, judgment for the defendants. The Superior Court ordered judgment for the plaintiff in the sum of $93.23; and the defendants appealed to this court. The facts appear in the opinion.</p>

<p>A case stated, whereby it is agreed that judgment shall be for the plaintiff, if the action can be maintained in any form, “ either at law or in equity,” waives all questions of form and process.</p> <p>A testator by his will gate $1500 to a parish “ to build and support a public school for the education of children as the law now directs, to be located as near a certain meeting-house as land could be purchased for a reasonable price. The parish, jn 1864, voted to accept the gift, those a committee of its members, of which A was chairman, to receive it, and subsequently, without leave of court, voted, in 1865, to relinquish the trust fund to that school district within it nearest the meeting-house. The district, having accepted the fund, chose a committee of its inhabitants, of which A. was also chairman, to administer it. A. continued to hold the fund, his associates disclaiming any interest in it, as a trust fund. Held, in an action brought in 1875, that the gift was a public charity; that the parish might recover possession of such trust fund ; and that the statute of limitations had not begun to run in A.’s favor.</p>

<p>Tort for the conversion of 40 machinist’s tools. Writ dated October 17, 1876. Answer, that the tools were part of a large number, converted at one time by one act, for which conversion the plaintiff had recovered judgment against the defendant, which had been paid.</p> <p>At the trial in the Superior Court, before Gf-ardner, J., it appeared that the plaintiff had occupied for two years a building, belonging to the defendant, as a machine shop; that about April 20,1874, the defendant took possession of the premises under mortgages which covered most of the personal property therein, and excluded the plaintiff and his workmen therefrom, and that the defendant had since retained possession of the premises and the personal property. The plaintiff testified that during the year 1874, he and his family were ill, and he did very little about the matter; that afterwards a reference was attempted, which failed; that, while this was pending, he went to the shop about every week to see the defendant about it, but the latter avoided him; that this lasted from January to May, 1875; that after that he was not at the shop more than twice until about November 20; that in August, 1875, he brought an action against the defendant for the conversion, in which a nonsuit was entered by agreement; that before this was done, he had thought of other articles not included, and decided to give up that action and bring a new one ; that about November 20, he again went to the shop and demanded of the defendant to see and take the goods, but the defendant refused to comply with the demand, and ordered him from the premises. It did not appear that he explained to the defendant what goods in particular he referred to, or that the defendant then knew that the action was to be abandoned.</p> <p>On December 2, 1875, the plaintiff brought a new action, including in his declaration, as he testified, all he could then remember or ascertain about. This action was tried at March term 1876, and judgment rendered against the defendant for $634, which he paid. The plaintiff further testified that after-wards, at three different times, he demanded other articles of the defendant, and the first two times the defendant went through the shop with him and gave up a part, but, observing him taking notes of other articles, turned him out of the shop; that the last demand was made on September 18, 1876.</p> <p>Upon this evidence, the defendant requested the judge to rule that the former judgment was a bar to this action; and that there was no evidence of any wrongful concealment, of the articles sued for in this action, before the former suit. But the judge declined so to rule, and instructed the jury that the judgment recovered in the first action would be a bar to this action, unless the plaintiff was prevented from including these articles in the former action by the wilful, intentional acts of the defendant in secreting the goods, or wilfully preventing the plaintiff from seeing tnem, with intent to prevent him from knowing what they were; that if, in the former action, the plaintiff accidentally omitted the articles sued for in this action, or if he failed to remember them, or if, by any act of the plaintiff, he neglected to enumerate those articles now sued for, the former ’udgment would be a bar to this action.</p> <p>The jury returned a verdict for the plaintiff for $109.05; and tne defendant alleged exceptions.</p>

<p>Contract on a promissory note dated January 11, 1876, for $10,000, signed by James O. Ives & Co., payable in four months from date to the order of the defendant, and indorsed by him, “ waiving demand and notice.” Writ dated June 28, 1876.</p> <p>At the trial in the Superior Court, before Grardner, J., there was evidence that the plaintiff, a national bank established at Lawrence under the laws of the United States, purchased the note in Boston from one Benyon, the president of the Exchange Bank in Boston, a few days after its date, paying its face value, less interest, therefor.</p> <p>The defendant asked the judge to rule that the plaintiff, being a national bank, had no power or authority, under the U. S. St. of June 3, 1864, §§ 6, 8, 30, 39, and the U. S. Rev. Sts. §§ 885, 3407, 5133-6, 5197, to purchase the note in suit, and therefore had no title to the note. The judge declined so to rule; but ruled that the action could be maintained, and ordered a verdict for the plaintiff. The jury returned a verdict accordingly; and the defendant alleged exceptions.</p> <p>The case was argued at the bar in November 1877, and additional briefs were submitted to the court in May 1878.</p>

Contract for money had and received by the defendants to the plaintiff’s use. Answer, a general denial. At the trial in the Superior Court, before Wilkinson, J., at April term 1877, it appeared that the plaintiff was a national bank, organized in 1866, under the banking laws of the United States, and that it was in the habit of investing its available funds to a considerable extent in commercial paper.

<p>Contract, with counts in tort, against a deputy of the sheriff of Norfolk. Writ dated October 3, 1876. Trial in the Superior Court, before Wilkinson, J., who reported the case for the determination of this court in substance as follows :</p> <p>Francis A. Smith, by warranty deed in common form, dated November 26,1844, became the owner of certain land in Stoughton, and has lived on it with his wife ever since, having no other land with a house on it. On August 14,1876, the defendant, a deputy sheriff, sold this land with the buildings thereon, by auction, under an execution against Smith, issued in due form of law. Among other bidders present was an agent of the plaintiff, sent by him to bid on the premises. The agent bid for the property the sum of $404, and the same was sold to the plaintiff. The defendant prepared and executed a deed to the plaintiff, some days after the sale, in the usual form of a sheriff’s deed, containing no covenant of warranty, except that the officer had complied with the rules of law in making sales of real estate. At that time the plaintiff read the deed and paid the defendant $404. Neither Smith nor his wife, at or before the sale, or the execution of the deed, notified the defendant that they or either of them claimed to hold an estate of homestead in the premises, exempt from being taken under the execution, and the defendant did not know whether any such estate existed'or not at the time of the sale, the delivery of the deed, or at or before he paid the money to the judgment creditor. The defendant, in putting up the property for sale, stated to those present at the sale that there was no incumbrance on the estate, except the right of dower in Smith’s wife, other than the execution, as of his own knowledge, to induce the plaintiff’s agent to bid, and he did so bid and purchase the estate, relying on said representation, and communicated the same to the plaintiff before the latter took the deed of the premises from the defendant, and paid the consideration. The defendant did not make the statement at the sale with intent to deceive the purchaser, unless it may be inferred from the facts above stated.</p> <p>At the trial, the plaintiff, claiming a rescission of his purchase, brought into court and tendered to the defendant a quitclaim deed of the plaintiff’s right, title and interest in the property, in common form, running from the plaintiff to Smith, and filed the same with the clerk of the court the day after the trial. The plaintiff offered evidence, which was excluded, that, at the time the deed was passed, and before the consideration was paid the defendant stated to him that the property was free from incumbrances, except said right of dower.</p> <p>If the action could be maintained, judgment was to be entered for the plaintiff; otherwise, judgment for the defendant.</p>

<p>Contract by Benjamin H. Stinson and four others, to recover back a tax assessed on May 1, 1876, to them as “owners or trustees ” of a certain “ new ship,” and paid by them under protest. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, on an agreed statement of facts in substance as follows :</p> <p>On November 10, 1875, the plaintiffs, who had certain claims against a vessel, then on the stocks in East Boston, and owned by Frank F. Gorham, acting for themselves and other like claimants, entered into an agreement with Gorham and the other claimants, by which they agreed, in consideration of the conveyance of the vessel and of the release of such claims to themselves, to complete, launch and fit her for sea, and then sell her to the best possible advantage, or, according to their best discretion and to the best advantage, sell her as she lay, or at some other stage of the work toward fitting her for sea, and apply the proceeds of the sale to the payment of the several claimants and of Gorham in an order named.</p> <p>All the claimants, including the plaintiffs, either had liens against the vessel for labor and materials furnished in her construction, or were the assignees of a mortgage upon the vessel, or had advanced money to build her.</p> <p>The ship was launched on April 11, 1876, at which time her hull had been completed by the plaintiffs, but her masts were not in. Everything below decks was complete. Her lower masts were all put in before May 1, 1876, but the rest of her spars and other rigging and sails were not put up until the latter part of July, 1876. In the early part of April, 1876, the plaintiffs made an arrangement with the owners of a wharf at East Boston, for the vessel to have a berth at that wharf upon being launched, and to pay §4.50 a day therefor, so long as the vessel should lie there. The wharf was a capacious one, capable of accommodating eight or more ships. By a berth is meant a place for a ship to lie alongside of a wharf where there are all the facilities from the shore and by water to take in ballast, stores, spars, rigging, and anything that may be needed to complete the ship and fit her for sea. The hiring a berth carries with it the right to use and pass over the strip of the wharf limited by the length of the ship, and to occupy that portion with whatever material may be brought to be put into the ship. Nothing was put aboard the ship while she lay at the wharf, until after she was sold. The vessel, having been launched, and having had her lower masts put in, was hauled to the wharf, and lay there on May 1, 1876. On that day, the upper masts and yards were in the yard of the spar-maker, in Boston, finished and ready to be put up. On July 12,1876, the plaintiffs sold the ship by public auction, in accordance with the power given them in the agreement.</p> <p>On May 1, 1876, the plaintiffs were not partners, but all of them had separate places of business in Boston, and three of them resided there, the others residing in different towns in the Commonwealth.</p> <p>The tax assessed and collected was based upon the whole vessel, and upon the entire taxable value thereof, so far as the vessel was constructed on May 1, 1876.</p> <p>No sworn return or list was made by the trustees or any par ties interested in the ship, and no petition made for an abatement of the tax.</p> <p>If, upon the foregoing facts, the plaintiffs, or any of them, were entitled to maintain this action for the whole or any part of the tax, judgment was to be entered for such of the plaintiffs and for such sum as they or any of them were entitled to recover, with interest; otherwise, judgment for the defendant.</p>

<p>Contract upon an account annexed for the price of three furnaces. After the former decision, reported 122 Mass. 501, the case was tried in the Superior Court, before Bacon, J., who allowed a bill of exceptions, the material parts of which were as follows:</p> <p>It was admitted that the furnaces were put into houses owned by the defendant, but it was in dispute whether they were bought by the defendant or by George W. Meserve.</p> <p>The plaintiffs offered evidence tending to prove that they were manufacturers and dealers in furnaces and similar goods that they employed one Rice as a salesman, whose business it was to learn of houses in course of erection, solicit orders for furnaces, &c., from the owners or builders, and make sales to them; that it was the duty and practice of Rice to report all sales to them for their acceptance or rejection, but that no notice of any limitation on his powers was given to the defendant or to any one else.</p> <p>The plaintiffs called Rice, as a witness, who testified that the defendant ordered the furnaces of him on a certain day, and to his conversation with the defendant, during which the order was given.</p> <p>Horace E. Walker, one of the plaintiffs, who was not present at the conversation between Rice and the defendant, after testifying that Rice communicated to him on the same day the defendant’s order, which the plaintiffs accepted and upon which they delivered the furnaces, in reply to the question, “ Upon whose credit did you deliver the goods ? ” answered, under the objection of the defendant, “ J. B. Moors’.”</p> <p>The defendant offered evidence tending to show that, under an agreement in writing between Meserve and himself, Meserve finished the houses into which the furnaces were put; that all the contracts for such finishing were made and all materials and labor ordered by Meserve in his own name ; that he had nothing to do with any of them; and that Meserve bought the furnaces of Rice, who was then personally indebted to him, with the un- ■ derstanding that they were to be set off against that account. The defendant’s bookkeeper testified that, after the furnaces were set, the plaintiffs’ collector presented a bill several times which was made out to Meserve, and that no bill made out to the defendant was presented until after Meserve failed to pay. On cross-examination, he testified that when the bill was presented he told the collector that the bill for the furnaces in question should be made to Meserve, and the bill was taken away; that after the furnaces were set, the collector presented a bill of the same several times to Meserve, which was made out to him; and that no bill for them was presented to the defendant until after Meserve failed to pay.</p> <p>Horace E. Walker, called in rebuttal, in reply to the question, “ State what you know of the bill which was made out to George W. Meserve?” answered, under the objection of the defendant, ' Moors’ bill, which was rendered him, was handed to me with the request that that portion of the bill relating to the furnaces be made out to George W. Meserve. It was done so ; and the bill was carried to Moors’ office for Meserve; ” in reply to the question, “ Did you direct the bookkeeper to make it out ? ” he answered, “ I did ; ” and in answer to the question, “ Did yc u make any charge or give any credit when that new bill was made out ? Did you give any credit to Meserve ? ” he replied, “ I gave no credit to Mr. Moors, and charged- nothing to George W. Meserve, and never have since to George W. Meserve.”</p> <p>The plaintiffs’ counsel, in his closing argument to the jury, having called attention to the following clause in the agreement between Meserve and the defendant, “ and should J. B. Moors enter into any engagements with regard to said property, I will save him harmless on account of same,” contended that at the time of its execution the parties thereto must have contemplated that the defendant might enter into engagements similar to the one sought to be enforced in this case. The defendant requested the judge to rule that this was not the meaning and effect of the agreement. The judge declined so to instruct the jury, but instructed them, as matter of law, that the clause “covers any engagement or contract which Moors might thereafter enter into with regard to the construction of the houses, and would cover the case of furnaces ordered by him after that time.”</p> <p>The jury returned a verdict for the plaintiffs; and the defendant alleged exceptions.</p>

<p>Bill in equity against Rolfe Eldredge, the trustees under the will of Edward H. Eldredge, and Amariah Taft, to reach and apply the fund in the hands of the trustees in payment of a debt due from Rolfe Eldredge, the son of the testator, to the plaintiff.</p> <p>The bill alleged that the testator, by his will, dated April 22v 1859, gave all his estate, real or personal, to trustees named, upon the following trusts :</p> <p>“ First. To pay my mother an annuity of three hundred dol,ars each year during her life, in equal quarterly payments, the first of which shall be made at the expiration of three months from the day of my death; and all subsequent provisions of this my will are to be construed with reference to this provision.</p> <p>“ Secondly. To apply such portion of the income thereof, as they may from time to time see fit, to the proper and liberal education and maintenance of my said son until he shall reach the age of twenty-five years; and then to convey, transfer and pay over the whole of said estate and all accretions thereof then in their hands to him the said Rolfe, to the use of him and his heirs forever; provided that, if in their judgment it will be best for his interest to convey, transfer and pay over the same or any portion or portions thereof, at any earlier time or times after he shall have reached the age of twenty-one years, they may do so.</p> <p>“Thirdly. If my son shall die before reaching the age of twenty-five years, leaving a widow and child or children, then to pay over one half of said income to his widow, and devote such portion of what shall not be so paid to said widow, as they may from time to time see fit, to the handsome maintenance and liberal education of such child or children, until such child or the youngest of such children shall have arrived at the age of twenty-one years; and then to convey, distribute, transfer and pay over the whole of said estate and all accretions thereof, in equal shares, to the survivors of the said widow and said child or children, share and share alike, to their own sole use forever and that of their respective heirs; provided that, if any such child shall have died leaving issue, such issue shall take by representation the share which its parent would have taken if one of said survivors; and provided also that if, after his arrival at ■he age of twenty-one years, my said son shall die leaving a widow or issue and a last will and testament duly executed, the said estate and accretions, or any part thereof to which such will may refer, shall be disposed of as shall be directed in and by his said will.</p> <p>“Fourthly. If my son shall die without issue and leaving no widow, then to pay over the whole net income aforesaid to my said wife during her life, to her own sole and separate use, and after het death to convey, distribute, transfer and pay over the whole remainder of said estate in equal portions to” brothers and sisters of the testator.</p> <p>The bill further alleged that the will also authorized the trustees to change the investment of any portion of the said estate and accretions from real to personal estate, or from personal to real estate, as fully and thoroughly as the testator could have done himself.</p> <p>The bill further alleged that the will was duly admitted to probate, and that the trustees accepted the trust and held under it a large amount of real and personal property; that Rolfe Eldredge and George 0. Marcy, formerly copartners in business, made two promissory notes payable to the order of the plaintiff, the amount of which they owed the plaintiff; that Taft contended that Rolfe Eldredge had assigned his interest in the trust property to him; and that Rolfe Eldredge had attained the age of twenty-one years, but had not reached the age of twenty-five years, and had no property liable.for his debts known to the plaintiff, except his interest in said trust property.</p> <p>The prayer of the bill was for an account; that the assignment to Taft might be set aside, or, if held by him as security, that the trust property, after the payment of the debt due to him, might be applied to the plaintiff’s debt; that the plaintiff might not be required to make Marcy, who was beyond the process of the court, a party; for an injunction, and for further relief. The defendants demurred for want of equity.</p> <p>The case was heard on the bill and demurrer by Ames, J., who reserved the case for the consideration of the full court.</p>

Contract against Major W. Potter, Robert Noble and M. M. Gavitt. The declaration was as follows : “ And the plaintiff says the defendants executed to him a bond as follows, to wit: Bond — Copy.

<p>If the estate of a deceased person is represented insolvent, and commissioners are appointed to determine the claims of creditors presented to them, the real estate may, after the expiration of two years from the granting of letters of administration, rightly be ordered by the Probate Court to be sold for the payment of debts, proved before the commissioners within the two years.</p>

<p>If a joint and several promissory note payable on demand, and signed by A., and by B. as surety, contains an agreement on its face, below the signatures, that A. is not to be compelled to pay the note before a certain time, an action cannai be maintained against the surety before the expiration of that time; and the defence that the action is prematurely brought may be pleaded in bar.</p> <p>In an action on a promissory note to recover principal and interest, the defence was that the action was prematurely brought; and, at the trial, the attention of the judge was not called to the question whether interest was due or not. The plaintiff excepted to a ruling directing the jury to return a verdict for the defendant on the ground that the action was prematurely brought. Held, that the plaintiff could not in this court contend that the action might be maintained for the interest.</p>

Contract. After the decision reported 122 Mass. 336, a second trial was had in the Superior Court, resulting in a verdict for the plaintiff, which the defendants moved to set aside, because the jury carried out with them, into the jury room, and kept there during their deliberations, the bill of exceptions, drafted by the plaintiff’s counsel and allowed by the court after the first trial and verdict for the defendants, which was read by the jury or in their hearing during…

<p>On a petition for damages occasioned to different lots of land abutting on a street, by reason of raising the grade of the street, one of the petitioners testified, on cross-examination, against the petitioners’ objection, that, before the grade of the street was raised, there was standing water on the lots of some of the petitioners ; but there was no evidence upon which of the petitioners’ lots the water was standing. Held, that no error appeared in the admission oí this evidence.</p> <p>On a petition for damages occasioned to the abutters on a street, by reason of raising the grade of the street, evidence that damages had been awarded to abutters other than the petitioners is res inter alios, and incompetent as an admission by the city.</p> <p>On a petition for damages occasioned to the abutters on a street, by reason of raising the grade of the street, benefits derived from the situation of the petitioners’ lands with reference to the street in question, enhancing their value in that regard, are direct and special, and are to be allowed in set-off, although the same benefit may be common to all the property on the street.</p>

Contract to recover $500 and interest from January 6,1872. Writ dated June 30, 1875. The case was submitted to the Superior Court on agreed facts, in substance as follows : The plaintiffs are partners doing business in Portland, Maine, under the firm name of Peering, Milliken & Co. The defendant is and has been since 1850, the wife of Daniel Pratt, and both have always resided in Massachusetts.

Indictment in two counts. The second count, upon which the defendant was convicted, charged that the defendant, at Boston, on April 7, 1877, “ did fraudulently obtain from one Joseph C. Fletcher, by means of a game, device, sleight of hand and trick, by the use of cards and other implements and instruments, a more particular description of which said game, device, sleight of hand, trick, implements, instruments and cards, is to said jurors unknown, certain moneys, to wit,…

<p>Indictment charging that the defendant, on November 29, 1876, at Somerville, “in and upon one James B. Hardy, with a certain dangerous weapon, to wit, with a pistol then and there loaded with powder and a leaden ball, with which dangerous weapon the said Henry M. Fenno was then, and there armed, feloniously, wilfully and of his malice aforethought did make an assault, with intent the said James B. Hardy then and there, with the pistol aforesaid, feloniously, wilfully and of his malice aforethought to kill and murder.”</p> <p>In the Superior Court, before the jury were empanelled, the defendant filed a motion to quash the indictment, assigning the following reasons therefor: “ 1. Because it is not alleged therein that the pistol, alleged to be a dangerous weapon, was capped or capable of being discharged. 2. Because there is no averment therein that the defendant aimed said pistol or discharged it at or towards any person. 3. Because the indictment is generally uncertain and void in law.” Putnam, J., overruled the motion: and the defendant excepted.</p> <p>At the trial, the government introduced evidence tending toi prove that the defendant was armed with a large sized revolving pistol, loaded with powder and ball, which was made to be discharged by means of a hammer striking upon a metallic cartridge containing the powder and ball, the end of which is explosive and ignites the powder which' throws out the ball; and that the defendant aimed and discharged the pistol at Hardy, within effective range of a pistol of that size, the bullets passing near the head of Hardy, so that he heard the whiz of one of them, but at such a distance that no assault could have been made upon Mm by striking him with the pistol itself, or by using It in any other way than by discharging it as a firearm.</p> <p>The defendant requested the judge to rule that the govern ment had failed to prove the charge alleged in the indictment by reason of variance; but the judge refused so to rule, and instructed the jury that the evidence, if they believed it, was evidence of an assault with a pistol upon Hardy.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>A., in accordance with a preconcerted plan with.B., who had a valise checked at a railroad station, entered the baggage room of the station, and presenting a check corresponding with the one on the valise, obtained permission from the baggage master to place a package in the valise. While the attention of the baggage master was called away by B., A. changed the checks on the valise and a trunk, which was standing underneath the valise, and immediately passed out of the room. By means of this substitution of checks, the trunk was carried to a station other than that intended by its owner. B. went on the same train with it, and on arrival at the station received it, took it with him, and rifled it of its contents. Held, that A. was guilty of larceny of the trunk and its contents.</p>

<p>Indictment, in two counts, for manslaughter. The first count charged that the defendant, at Brockton, on May 5,1878, made an assault upon Jeremiah Kelleher with a hammer, causing the death of Kelleher. The second count alleged that the killing was caused by the defendant “ in some way and manner, and by some means, instruments and weapons to the jurors unknown.”</p> <p>At the trial in the Superior Court, before Brigham, C. J., the government introduced evidence tending to show that Kelleher’s death was caused by a blow upon the head with a hammer, oi with some other weapon or instrument unknown, in the defend ant’s saloon, when the defendant with other persons was present, and that no one except the defendant was in a situation to do the injury. All the witnesses who testified for the Commonwealth at the trial had also testified before the grand jury which found this indictment, qpon the same matter.</p> <p>The defendant introduced evidence tending to show that the wound of which Kelleher died resulted from falling upon the floor, or striking against the counter while falling; that such falling was caused by a push given nim by the defendant to prevent him from falling backward against the counter, and to save the counter from destruction, and to prevent Kelleher from being injured by so falling; and that no more force was used than was necessary to accomplish such purpose.</p> <p>The defendant asked the judge to rule that, upon the evidence, the jury must be satisfied beyond a reasonable doubt that Kelleher was killed by a blow, or they must return a verdict of not guilty; that the jury, upon the evidence, must return a verdict of not guilty, upon the second count; and that there was a variance between the allegations in the second count and the evidence, and, for that reason, the jury must return a verdict of not guilty on the second count.</p> <p>The judge declined so to rule, but instructed the jury as follows : “ To convict the defendant, there must be evidence, beyond a reasonable doubt, that the defendant did some act of violence to the person of the deceased, which act was neither excusable nor justifiable, and caused the death of the deceased; that if such act of violence was done by the defendant, in the protection of his person or his property, when either was in danger of harm from the deceased, and for the purpose of repelling such harm, and such act was necessary and reasonable for that purpose, the defendant would not be responsible, under this indictment, for such act of violence, although it caused the death of the deceased; that if the jury were not convinced beyond a reasonable doubt that the defendant’s acts of violence to the deceased were done without excuse or justification, by means of a hammer, and thus caused the death of the deceased, the defendant must be acquitted upon the first count of the indictment; that, failing to find the first count of tne indictment proved, as required by law, the jury might find the defendant guilty on the second count, if the circumstances under which the deceased received the injury which caused his death admitted of no reasonable explanation, excepting that that injury was caused in the defendant’s saloon, and by the defendant using some means, weapons or instruments for that purpose, of the precise character and description of which the trial offered'no evidence, provided the defendant’s use of such means, weapons or instruments was unnecessary or unreasonable for the protection of his person or property.”</p> <p>The jury returned a verdict of not guilty on the first count, and of guilty on the second count; and the defendant alleged exceptions.</p>

Complaint to the First District Court of Bristol for an unlawful sale of intoxicating liquor. The record of the District Court, after setting forth the complaint, and the bringing in of the defendant to answer to the same, proceeded as follows; “Which complaint being read to the defendant, and he being asked by the court whether he is guilty or not guilty of the offence therein charged, stands mute.

<p>L." a husband conveys land to his wife with a design to hinder, delay and defraud his creditors, and the wife participates in such design, the hay cut on the land is liable to be taken on execution to satisfy the debt of a creditor of the husband, contracted subsequently to the conveyance.</p>

<p>A mortgage of a parcel of land to the grantee and his heirs, describing it by metes and bounds, “ with the factory buildings standing thereon, with the water-wheel shafting, belting, machinery, tools and fixtures, contained in said buildings,” and containing the usual covenants and habendum, is a mortgage of real estate only.</p> <p>A payee of a promissory note, signed by a principal and surety, and secured by a mortgage of land from the principal, may maintain an action on the note against the surety, without first exhausting the security.</p>

<p>A judge of the Superior Court has no authority, under the Gen. Sts. c. 115, § 6, at the hearing of a motion for a new trial, to report for the determination of this court a question of law which might have been and was not raised before verdict.</p> <p>At a trial in the Superior Court the plaintiff had a verdict, and the defendant alleged exceptions to a ruling of the judge upon a piece of evidence, and afterwards moved to set aside the verdict as against evidence and the weight of evidence. The judge, as he stated in his report, overruled this motion for the purpose of reporting the case to this court, and, after reciting the whole evidence as well as the particular exception, concluded his report as follows : “ If upon the evidence the action cannot be maintained, or if the exception taken by the defendant is sustained, then the verdict is to be set aside; otherwise, the verdict is to stand.” Held; that the judge, not having been asked at the trial to rule upon the whole evidence, was not authorized to report to this court the question whether upon the whole evidence the action could he maintained; and that the order overruling this motion should he set aside, and the motion stand for further hearing in the Superior Court.</p>

Porter sued Charette in the Superior Court in an action of contract, and upon the writ in that case an attachment of the defendant’s goods was made by Cook, as deputy sheriff, on Saturday, February 10, 1877, at 1 P. M. On Monday, June 11, 1877, at 12 M., Charette filed his petition in bankruptcy.

<p>Appeal from a decree of the Probate Court, allowing the ac sount of Marshall W. French as trustee under the will of James Dimmick. Hearing before Ames, J., who reported the case foi the consideration of the full court as follows :</p> <p>The appellant objected to two investments allowed by the Probate Court, one of $14,100 invested in Portland and Ogdensburg Railroad bonds, and one of $5500 invested in the promissory note of H. Fairbanks, chairman, secured by such bonds pledged as collateral security to twice the amount of the note.</p> <p>The will of James Dimmick, dated July 12, 1858, contained the following clause : “ I order that my executors use their own judgment as to investing the moneys arising from my estate; at the same time I would recommend to them the propriety of keeping at least one half of the same invested on mortgage of unincumbered real estate, as I think well of that kind of security.” At the time of the appointment of French as trustee, the trust estate amounted to $40,605.90 personal estate, and $2580 real estate; and at that time the personal estate was invested in sundry stocks and personal securities, $25,500 being invested in United States bonds, $1000 in state bonds, $13,000 in various city bonds, and no part of it being invested in mortgages of real estate.</p> <p>In January, 1870, the trustee exchanged $1500 of United States bonds for six per cent. Pacific Railroad bonds. In June, 1871, he sold $13,000 of the United States bonds for cash at $112|, and during the same month he sold $1000 more of the same at $112§ for cash. In April, 1872, he invested $2000 in the Portland and Ogdensburg Railroad bonds. In the summer and' fall of 1872, some of the government bonds of the same issue as those held by the trustee were called in for redemption, and the trustee, apprehending that the rest would be called for soon, in November, 1872, sold $10,000 of the United States bonds for cash at $114f and invested the proceeds in Portland and Ogdensburg Railroad bonds.</p> <p>These bonds were the joint promises to pay of three railroad corporations organized in the State of Vermont, namely, the Essex County, the St. Johnsbury and Montpelier, and the Lamoille Valley, which were built and operated under one management, and extended in a continuous line from Lunenburg upon the Connecticut River to Swanton upon Lake Champlain, and together constituted what was called the Vermont division of the Portland and Ogdensburg Railroad, a line made up of different corporations extending from Portland in the State of Maine to Ogdensburg in the State of New York. The bonds were sometimes, and more properly, called the joint first mortgage bonds of the Lamoille Valley, Montpelier and St. Johnsbury, and Essex County Railroad companies. They were secured by a first mortgage upon the franchises, road-beds, tracks, rolling stock and tools of all three railroad corporations, were dated May 1, 1871, and were payable in gold coin in twenty years from date, and at the option of the corporations after five years from date, with semiannual interest coupons attached at six per cent., payable also in gold coin. These three railroads were together about 120 miles long, and their capital stock actually paid in in cash was from $10,000 to $12,000 per mile on the average. They passed through a good section of the state for local business, which had before been without railroad facilities; and they connected at Swanton with the Vermont and Canada Railroad, and thence by way of Rouse’s Point and Ogdensburg with a through line to the West; at Lunenburg they connected with the Maine and New Hampshire division of the Portland and Ogdensburg Railroad, then in process of construction, and upon completion of this latter line, (which has since been completed,) they would form a part of the shortest line between the seaboard and the great lakes; a line with very favorable grades for the transportation of freight, and promising to be a favorite route for pleasure travel. About sixty miles of the line in Vermont, being a portion of the whole of each of the three roads, was completed and in operation at the beginning of 1873, and a very considerable portion of the grading on the rest of the line, nearly or quite one half, was done at that time. The three roads were built under one management, and were all contracted for in 1873 under very favorable contracts. The entire issue of bonds secured by the mortgage was $2,300,000. They were all issued to the trustees in the summer of 1871, and from $1,300,000 to $1,400,000 of them had been sold when the financial panic of 1873 stopped their sale at what were considered proper prices, and the balance have not been sold.</p> <p>French had had experience in making investments for himself, also as treasurer of a savings bank in the town of Palmer, ana as president of a national Dank in Palmer. In the latter part of 1871, he purchased Portland and Ogdensburg Railroad bonds for Samuel A. Hitchcock, of Brimfield, to the amount of $83,000, and soon afterward $17,000 more, with which he endowed scholarships at Amherst College. Before purchasing the first lot of such bonds as trustee in April, 1872, he consulted with Hitchcock. and also with the treasurer of Monson Academy, who held some of the bonds, and also with members of the firm of Fairbanks & Co., financial agents for selling the bonds, and with Fairbanks, Brown & Co. and Brewster, Sweet & Co. of Boston, who were agents for selling the bonds of the New Hampshire and Maine division of the Portland and Ogdensburg Railroad line, all of whom recommended the investment, and all of whom were persons of reputed good judgment in financial matters, and in whose integrity he confided. Before buying the second lot of bonds in November, 1872, he again examined the condition of the road, procured an autograph letter from the engineer of the three roads, giving particulars about them in detail, and again consulted with the above persons and with numerous others; and the result of all his inquiries and investigations was to satisfy his mind that the investment was a safe and prudent one at the time.</p> <p>The roads were in the management of men who possessed in a high degree the confidence of the community for integrity and business ability; and in 1872 the bonds were selling from eighty to ninety per cent, of then’ par value, according to the size of the lots sold, were regarded as a first-class investment, and were purchased, by persons of reputed good judgment, for permanent investment. French paid for the bonds eighty-five per cent, of their par value; but at the time of the hearing, and for a long time before, they had very largely depreciated, and were offered for sale at from one fifth to one quarter of their cost, no purchasers being found. There was also evidence that within the last two years no more than ten per cent, of their par value was offered in the market. It appeared that interest had not been paid on the bonds since 1875. The note of Fairbanks was for a loan made in November, 1873, and was originally for $11,000, payable on demand to the order of H. Fairbanks, chairman, and indorsed by him with interest at ten per cent., and secured by such bonds to the amount of $22,000 at their par value. On February 2,1875, $5500 was paid on the note, and one half of the collateral was surrendered.</p> <p>The trust fund, at the time of the allowance of the account objected to, amounted to about $60,000, of which only $2150 were invested in a mortgage of real estate, and none in bonds of the United States.</p> <p>It was not charged by the appellant that, in the management of the funds in his hands, the trustee had any dishonest or fraudulent intent; and it was proved and conceded that, in making the investments objected to, he honestly and in truth believed that they were safe and proper investments for him to make, in his capacity as trustee. Whether in so doing he acted with the sound discretion which the law requires of a trustee, (taking into consideration the position and character of the funds as he received them, the recommendation expressed in the will, the character and prospects of the corporation in whose bonds he invested, and generally the time and circumstances of the case,) was a question upon which the judge had doubts, and reserved the case for the consideration of the full court. If, upon the facts reported, it was not an act of reasonable and sound discretion, on the part of the trustee, to make the investment complained of, under the circumstances and in the manner above set forth, then his account was to be disallowed, corrected or modified, as law and justice should require.</p>

Contract upon an account annexed for goods sold and delivered, and upon a promissory note given by the defendants to the plaintiffs. Answer: 1.

<p>Where a married woman carries on the business of keeping a boarding-house, the debts due to her for board are a part of the property employed in the business, within the meaning of the St. of 1862, c. 198, § 1; and, if she fails to file the certificate required by that statute, such debts are liable to attachment hy the creditors of her husband.</p> <p>Where a married woman carries on the business of keeping a boarding-house in one town, and there files the certificate required by the St. of 1862, c. 198, § 1, and removes to another town, but neglects to seasonably file a new certificate in the latter town, the debts due to her for board furnished in the former town, although protected, while she resides there, by the first certificate, are liable to attachment by the creditors of her husband after her removal and before the filing of .a new certificate.</p>

Contract upon a poor debtor’s recognizance, entered into under the Gen. Sts. c. 124, § 10, on June 15, 1877, by the defendant Samuels as principal, and the other defendant as surety, and containing the usual conditions. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court on appeal, upon an agreed statement of facts, the material parts of which appear in the opinion.

<p>Contract upon an account annexed for $108.50. Writ dated January 13, 1876. The declaration alleged that the plaintiff brought an action against the defendant and recovered judgment against him; that a horse belonging to the defendant was attached upon the writ in that action and placed in the hands of a keeper by the officer making the attachment; that after judgment was recovered, the defendant requested that the costs of keeping the horse should not be taxed in the taxation of costs and made part of the execution, and, in consideration thereof, promised to pay the plaintiff the same in a few days; that in consideration of said request and promise, the plaintiff consented that the fee for keeping the horse should not be so taxed; that the fee was not included in the taxation of costs; and that the defendant had not paid the plaintiff as agreed, but owed him the amount of the fee.</p> <p>Answer: 1. A general denial; 2. Want of consideration; 3. That the declaration did not set out a legal cause of action.</p> <p>At the trial in the Superior Court, before Allen, J., without a jury, the facts set out in the declaration were proved, substantially as alleged. It also appeared that there was a controversy between the parties as to whether the expenses of keeping the horse were properly taxable as a part of the costs of the suit, and the agreement and promise alleged in the declaration were made as an adjustment of this controversy; and that the plaintiff did not pay the officer’s fee for keeping the horse until after this action was commenced. The defendant asked the judge to rule that the plaintiff had no cause of action against the defendant, at the time it was begun, because he had not then paid to the officer the fee for keeping the horse ; that the fee could not legally be taxed in the bill of costs; and that the promise by the defendant to pay the same, for the consideration alleged in the declaration, would not support this action. The judge declined so to rule; and found for the plaintiff for the amount claimed. The defendant alleged exceptions.</p>

Contract upon a policy of insurance dated June 1, 1876, by which the defendant insured F. S. Coolidge against loss or damage by fire or lightning to the amount of $1500, for the term of six months from June 1, 1876, upon certain mill property, “ payable in case of loss to the Fitchburg Savings Bank, mortgagee.” The policy also contained on its face, and before the signatures of the officers of the defendant company, the following provisions : “ If any change takes place in…

Bill in equity, filed January 30, 1878, by Jonas A. Marshall, a trustee under the will of Jonas Marshall, deceased, against Thomas C. Caldwell, his co-trustee, and the legatees under the will, to compel a saie of land.

CONTRACT. At the trial in the Superior Court, before Aid-rich, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, the substance of which appears in the opinion.

<p>Contract by Abraham Harris and C. Herrman. The writ described the plaintiffs as copartners doing business under the rirm name of Harris & Herrman. Writ dated November 15, 1878, The declaration was as follows : “And the plaintiffs say that the defendant owes them $1017.92, according to the account hereto annexed.” The account annexed contained nine items for goods sold and delivered in September and October, 1876. The answer denied each and every allegation in the declaration and account annexed. The defendant also filed a declaration in set-off to recover $1126.37, alleging that on December 28, 1874, and on van-ms days between that time and September 1, 1876, he had purchased goods of the plaintiffs, which were sent to him with the weights marked thereon, that these weights were not the true weights, but much greater; that . he had paid for the goods according to the weights marked, and thus had paid the plaintiffs for goods not received.</p> <p>The case was sent to an auditor, who found that the plaintiffs were entitled to recover on their declaration $850.48, and that the defendant was entitled to recover on his declaration in set-off the sum of $70.72, leaving a balance due the plaintiffs of $779.76, and interest from the date of the writ.</p> <p>The case was then tried in the Superior Court, before Aldrich, J.; the jury returned a verdict for the plaintiffs for $425 ; and the plaintiffs alleged exceptions, the substance of which appears in the opinion.</p>

Contract against the defendants as copartners under the firm name of the Barre Boot Company, upon the following promissory note: “Barre, June 26th, 1857. $935. For value, received the Barre Boot Company promise to pay to the order of Rufus B. Holden nine hundred thirty-five dollars on demand with interest annually. “Witness, James Miller, Treas. “Nathan Woods.” for Barre Boot Co. Writ dated June 23, 1877. Answer: 1. A general denial; 2. The statute of limitations.

Contract upon an account annexed for services rendered as keeper of certain property attached by the defendant, a deputy sheriff. Answer: 1. A general denial; 2. That the contract was illegal and void. Ar the trial in the Superior Court, before Bacon, J., without a jury, the plaintiff put in evidence a written appointment of himself as keeper of personal property of one Winchester, which had been attached by the defendant on a writ against Winchester.

Contract for breach of warranty in the sale of a cow. At the trial in the Superior Court, before Putnam, J., the plaintiff’s evidence tended to show that he bought the cow of the defendant on May 6,1874; that the defendant then warranted the cow to be sound and all right; and that there was a breach of this warranty. The defendant contended that the sale was made about the middle of April, 1874; and that the cow .was then sound.

Contract for breach of the covenants in a deed of land from the defendant to the plaintiff.

Contract for money had and received. At the trial in the Superior Court, before Aldrich, J., without a jury, the following facts appeared: On February 19, 1868, the defendant was duly adjudged a bankrupt under the laws of the United States by the District Court of the United States for the District of Massachusetts, and on March 13,1868, the plaintiff was duly chosen assignee of the defendant’s estate, and a legal assignment thereof was made to him by that court.

<p>Bill in equity by one partner, Jones, against his copartner, Dexter, and two other persons, to settle the affairs of a part? nership.</p> <p>The bill alleged that the partnership, at the time of its dissolution in 1861, owned a share in the whaling barque Ocean Rover, then at sea, and in her outfits and catchings, and that in 1862, upon the voyage, the vessel and her cargo were destroyed by the insurgent cruiser Alabama, and this share was not insured , and that pursuant to a decision of the Court of Commissioners of Alabama Claims, the sum of $1564 had been paid to Dexter in respect of his and the plaintiff’s share in the vessel and outfits, and the sum of $55,068 to the other two defendants in respect of her total earnings and catchings, to be by them distributed among her owners, and praying for an injunction, an account and further relief.</p> <p>To this bill Dexter filed a plea, stating that in 1864, under the insolvent laws of the Common wealth then in force, the plaintiff, upon his own application, was adjudged an insolvent debtor, William S. Taber was appointed his assignee, and all the debtor’s property was duly assigned and transferred to him, whereby Taber was and still is, to the exclusion of the plaintiff, entitled to any property or money which, in the settlement of the affairs of the partnership, might be found due or owing to the plaintiff.</p> <p>The plaintiff then, with the assent of the defendants and by leave of court, amended his bill by alleging the adjudication of insolvency and the appointment of the assignee, and that the plaintiff in 1865 obtained a certificate of discharge, and that all debts proved against him in insolvency had been long since satisfied, paid and discharged, and no liabilities, existing or inchoate against him at the time of his insolvency, had any validity or existence; that the assignee had long since terminated the duties of his trust and ceased to be interested in the property or affairs of the plaintiff, and was in no way entitled to the amount to be found due or owing to the plaintiff upon a settlement of the affairs of the partnership, and had never elected to take or accept the ownership of the claim set out in the bill; and that any claim or title to redress, relief or indemnity, for loss suffered by destruction of the vessel, was not in its nature such as would pass to an assignee in insolvency, and that such assignee had no rights under the decision of the Court of Commissioners of Alabama Claims. The amendment also alleged that Taber joined in the bill to confirm the statement with respect to the proceedmgs in insolvency and to disclaim all interest in the subject matter in controversy, and was signed by Taber as well as by the plaintiff’s solicitor.</p> <p>Dexter filed a plea to the amended bill, relying upon the matters set forth in his former plea. The plaintiff moved that the plea be set aside for insufficiency; and the case was reserved by Endicott, J., upon the bill and amended bill, the pleas and this motion, for the consideration of the full court.</p>

Contract on an account annexed for use and occupation. The defendant filed the following: “ Answer in abatement and answer.

Contract upon an account annexed for intoxicating liquors sold and delivered on January 22, 1875. Answer: 1. A general denial; 2. Payment. The defendants also filed a declaration in set-off for money paid to the plaintiffs in 1874, according to an account annexed.

<p>In an action against an administrator for services claimed to have heen rendered his intestate by a woman who, as he contended, had lived in adultery with the intestate, a witness testified that when the widow of the intestate made a claim in the Probate Court for an allowance, the defendant objected to it on the ground that she had deserted her husband several years before his death. Held, that this evidence did not authorize the defendant to prove by the witness that the widow, in answer to this objection, said that she left her husband because of his adultery with the plaintiff.</p>

Trustee process. Writ dated December 31, 1877, and served on January 1, 1878. The city of Fall River, summoned as trustee, answered that at the date of service upon it, it had in its hands belonging to the defendant the sum of $248.

Contract against common carriers doing business under the name of the Kinsley Express Company.

Replevin. The answer denied the plaintiff’s title, and alleged that the goods were the property of William Hayes, and were attached by the defendant, a constable of Fall River, while in the possession of Hayes, by a creditor of his, and that any transfer from Hayes to the plaintiff was fraudulent and designed to impede the insolvent laws of Massachusetts and the bankrupt laws of the United States.

Petition to the Superior Court, at September term 1876, for the reassessment by a jury of the damages occasioned to the respondent by the taking of his land for the petitioner’s railroad. On August 2, 1876, the county commissioners, on the petition of Chase, had assessed such damages at the sum of $94.

Tort for personal injuries caused by the fall of a staging, upon which the plaintiff was at work, while he was, as alleged in the declaration, in the employ of the defendants. Trial in the Superior Court, before Gardner, J., who ruled that, upon the plaintiff’s evidence, he could not maintain the action, and, by consent of parties, before verdict, reported the case for the determination of this court.

<p>In an action of tort against a religious society and against A. and B., its agents, for personal injuries occasioned to the plaintiff by the fall of a staging, upon which he was standing while engaged in painting the ceiling of a church belonging to the society, it appeared that A. and B., acting as a committee and as the authorized agents of the society, made a contract with C., in whose employ the plaintiff was, to paint the whole of the inside of the church building for a gross sum, and not subject to the direction or control of- the defendants, except as to the quality of the work and the time within which it was to be performed; that the society undertook to erect and remove the staging to he used by C., and, acting through the same agents, employed D., a carpenter and builder of their own selection, by a contract for a gross sum, and not subject to the direction or control of the defendants, to erect and remove the staging and to supply all the material and labor required for that purpose; and that C. did not and could not know, from the appearance or from examination of the staging, whether it was or was not strong enough for his workmen to go upon to paint the church. There was no evidence that the defendants took any part in erecting the staging, or in directing its erection, beyond making the contract with D.; or that they at any time made any inspection of the staging; or that they were guilty of any negligence in employing D. to erect it. Held, that the society, through its authorized agents, had accepted and used the staging, and had in effect invited and induced C. and his workmen to come upon it to paint the church, and was liable to the plaintiff for an injury from the dangerous condition of the staging which was not apparent to him and which was caused by negligence in its construction. Held, also, that the society and its agents could not he sued jointly in this action.</p>

<p>Bill in equity, filed January 23, 1869, against the Grand Junction Railroad and Depot Company, the East Boston Freight Railroad Company, the Boston and Worcester Railroad Company, the Boston and Albany Railroad Company, Samuel S. Lewis and George W. Gordon, to reach and apply a sum of money in the possession of the two corporations last named, and alleged to belong to the first named corporation, in payment of a debt due from it to the plaintiff. Hearing on the pleadings and proofs, and an agreed statement of facts, before Ames, J., who reserved the case for the consideration of the full court. The material facts appear in the opinion.</p>

<p>Contract against Joshua G. Nickerson, Harrison Loring and F. H. Smith on the following promissory note: “ Boston, April 10, 1875. $4500. Five months after date we promise to pay to the order of Harrison Loring forty-five hundred dollars. Payable at Faneuil Hall Bank. Value received. J. G. Nickerson.” Indorsed “ Harrison Loring, F. H. Smith.”</p> <p>At the trial in the Superior Court, before Bacon, J., without a jury, it appeared that on April 10, 1875, Nickerson applied to Loring for his indorsement of the note of the firm of J. G. Nickerson & Co., a firm consisting of Nickerson and T. B. Wales, Jr. Loring consented, wrote the note in suit, signed it as indorser, and left it with his bookkeeper, with instructions to deliver it to Nickerson upon his signing it with the firm name. Nickerson soon afterwards obtained it from the bookkeeper, signed it with his own name, saying he could get his partner to sign it with him, but preferred not to give a firm note. Loring was not informed of the manner in which the note was signed till shortly before it became due. Nickerson, having obtained the note, offered it at a bank for discount, but, observing that it read “ we promise,” did not leave it there, but took it to Smith, procured Smith’s signature under his own name as a promisor, and then offered it again at the bank. The cashier of the bank pointed out to him that it was not drawn as a joint and several, but as a partnership note, and that Smith ought to have signed as mdorser, and Nickerson thereupon took it back to Smith and requested him to erase his name from the face of the note, and sign it as second indorser. Smith’s name was accordingly erased from the face of the note, and put on the back under Loring’s. Nickerson then returned the note to the bank, which, however, did not discount it, but the cashier put it into the hands of a broker, who sold it to the plaintiffs at the usual discount, and paid the proceeds to the cashier, who paid them to Nickerson.</p> <p>The plaintiffs bought the note in good faith, without any knowledge of the foregoing facts, and without observing that the note read “we promise,” or that there was an erasure under the signature of the promisor. The plaintiffs bought the note relying solely on Loring’s indorsement, and did not read it, but only looked to see that it was indorsed by Loring.</p> <p>The defendant Loring asked the judge to rule as follows: “ 1. If Smith signed the note originally as joint promisor with Nickerson, and his name was erased by Nickerson, or at his request, after Loring had indorsed the note and delivered it to Nickerson, and without Loring’s knowledge or consent, then Loring cannot be held, and it is immaterial whether Smith’s original signature to the note was made before or after Loring’s indorsement, or whether the plaintiffs knew or had reason to know that any change had been made in the note since Loring indorsed it. 2. If the note in suit, having been drawn in a form to call for the signature of more than one promisor, had upon its face the marks of an erasure under the signature of Nickerson at the time when it was presented to the plaintiffs for discount, these facts constituted primá facie evidence that the note had been altered after Loring’s indorsement, and the plaintiffs were bound to inquire into the actual facts, and are affected with notice of them.”</p> <p>The judge refused so to rule, but ruled that although Smith signed the note as joint promisor, and his name was afterwards erased and put on the back, yet, that having been done before it became a valid, binding note by its sale to the plaintiffs, Loring was not thereby relieved of his liability; and that, in the absence of negligence on the part of the plaintiffs, they were not affected by the want of authority in Nickerson, as between himself and Loring, to issue the note.</p> <p>The judge found that Loring never authorized the note to be issued except with the signature of J. G. Nickerson & Co. as promisors, and that tie plaintiffs were not negligent in failing to observe the form of the note or the erasure of Smith’s name; and ordered judgment for the plaintiffs. The defendant Loring alleged exceptions.</p>

<p>k corporation, to which A. had mortgaged a lot of land, sold it, under a power contained in the mortgage, to B., its treasurer, and conveyed the land to him by deed. B., in fact, held the title on a naked trust for the corporation. After this, the house on the land needing repairs, A., who did not know of the sale and supposed that he still held the equity of redemption, applied to the corporation to make an arrangement for the repairs, and was referred to B., and an agreement was made between A. and B. by which A. should make the repairs, and when so made the corporation should take a mortgage for a certain sum on the land, and, while the woik was being done, the old mortgage should remain as it was. After the work was done by A., he discovered the fact of the sale under the mortgage. Held, that he could not maintain an action against B. for the cost of the work so done.</p>

<p>Tort. The declaration alleged that the defendants, contriving to extort a pecuniary advantage from the plaintiff, and to compel him to do an act against his will, fraudulently induced him to come from the State of Rhode Island, where he lived, into this Commonwealth, within the jurisdiction of the Superior Court, so as to render himself amenable to its process, intending to arrest and imprison him when he did so come, and thereby compel him to settle a disputed claim; that, in pursuance of such fraudulent purpose, in anticipation of his coming, and when they knew he had not yet come, they procured a writ to be made, alleging that he was then commorant of Boston, and on that writ procured a false affidavit to be made that he was then about to leave the state, and a certificate of a magistrate to be made thereon, authorizing the plaintiff’s arrest; and that, when he did come, they caused him to be arrested on that writ and to be detained a long time. Answer, a general denial.</p> <p>At the trial in the Superior Court, before Bacon, J., the plaintiff introduced evidence tending to prove the facts alleged in the declaration; but it being conceded that, after his arrest, the plaintiff gave bail and answered to the defendants’ action, and ;hat said action was tried, and the defendants recovered a part of their claim against the plaintiff, and judgment was entered thereon, the judge ruled, as matter of law, that the plaintiff, by appearing and submitting to the jurisdiction of the court in that action, without pleading the illegality of the service of process upon him in abatement, was concluded by the judgment in that action, and could not maintain this action; and directed a verdict for the defendants. The plaintiff alleged exceptions.</p>

Contract upon a promissory note for $1,815.09, made by the defendant payable to his own order, indorsed by Robert W. Dresser & Co., to whom it was delivered by the defendant, and for whom it was discounted by the plaintiff. Answer. A general denial.

<p>Bill in equity, filed May 18, 1877, by the executor of the will of John Downes, who died on August 11, 1854, to obtain the instructions of the court.</p> <p>The will, which was dated July 29, 1852, and admitted to probate on August 15, 1854, contained, among other provisions not material to be stated, the following:</p> <p>“ First. I give and bequeath to my beloved wife, Maria Gertrude Downes, the use and improvement of all my real and personal estate, (excepting such as is otherwise disposed of in and by this will,) to have and to hold the said use and improvement during her natural life, or so long as she may remain my widow; but in the event of her again marrying, or at the time of her decease, all the said real and personal estate of which she held the use and improvement is hereby given, bequeathed to my heirs at law.”</p> <p>[Here followed small specific legacies to three of the testator’s four children, his heirs at law, John Downes, Jr., Charles A. Downes, Henry H. Downes, and a legacy of $100 to the other, Julia M. Missroon.]</p> <p>“ All the foregoing legacies and bequests to my children are in addition to their equal shares of my real and personal estate tc which they may he entitled after the determination of the use and improvement thereof as hereinbefore provided for their mother.</p> <p>“And as to the residue of all my estate, whether real, personal or mixed, of which I may die seised and possessed, after the payment of all just debts, and the foregoing legacies and annuity, and after discharging all the claims which my widow may have and hold under this will, I hereby give, bequeath and devise the said residue to my four children above named, to be divided in equal shares between them, to have and to hold the same to them, my said children, their heirs and assigns forever ; and my said wife shall never, by the law of descent, become the heir to any or either of my children; and if it should so happen that any child of mine, holding property, should decease during the lifetime of its mother, the property thus left by such deceased child shall become, belong to and be received by the other surviving children or child.”</p> <p>The bill alleged that Henry H. Downes died on September 26, 1864, unmarried, intestate and without issue; that John Downes, Jr., died on September 21, 1865, leaving a widow and six children and a will, by which he gave the income of all his property to his widow while she remained unmarried, such property at her death to be divided equally among his children; that Charles A. Downes died on January 24, 1875, unmarried, intestate and without issue; and that Maria G. Downes, the testator’s wife, died on February 22, 1877.</p> <p>The executor requested the following instructions :</p> <p>“ 1. Whether or not Julia Maria Missroon, as only surviving child of said John Downes, is entitled, under said will, to all the rest and residue of the estate of said John Downes.</p> <p>“ 2. Whether or not the widow and children of John Downes, the younger, are entitled, under said will, to a share of the rest and residue of said estate.; and if they are, what share, respectively, and to whom he should convey the same.</p> <p>“ 3. Whether, upon the decease of Henry H. Downes, his interest in said estate became vested in his heirs at law; to wit, in his brother Charles A. Downes, his sister, Mrs. Missroon, hia brother John Downes, and his mother; and whether, if his interest would have so vested, his mother was prevented from fak mg the share she would have otherwise taken, by the terms of said will.</p> <p>“ 4. Whether, upon the decease of Charles A. Downes, the interest in the estate, if any, which he took as one of the heirs at law of Henry H. Downes, is to be considered as part of the estate to go to the surviving children of the testator, or to the heirs at law of said Charles A. Downes.”</p> <p>The defendants filed answers admitting the allegations of the bill to be true; and the case was heard, on the bill and answers, by Hndicott, J., who made a decree, which, so far as need now be stated, was as follows :</p> <p>“ This cause came on to be heard, and was argued by counsel, and, upon consideration thereof, it is adjudged and decreed, that by the will of the testator John Downes, his four children living at his death, to wit, John Downes, Junior, Charles A. Downes, Henry H. Downes and Julia M. Missroon, took vested remainders in the rest and residue of his estate, subject- to the life estate therein of his widow, Maria G. Downes; that upon the death of Henry H. Downes, unmarried and without issue, and intestate, his share of the rest and residue of said estate descended in equal shares to his mother, Maria G. Downes, and his brothers, John Downes, Junior, and Charles A. Downes, and his sister, Julia M. Missroon, subject to administration thereon according to law; that the legatees and devisees of John Downes, Junior, are entitled under his will to the share of said rest and residue vested in him at his death, subject to administration thereon according to law; that upon the death of Charles A. Downes, his share of said rest and residue descended in equal shares to his mother, Maria G. Downes, his sister, Julia M. Missroon, and the children of John Downes, Junior, the said children aking by representation, subject to administration thereon according to law.” The defendants appealed from this decree.</p>

<p>A license by municipal authority, under a statute, to a street railroad corporation to reasonably use a highway, is not the appropriation of an additional easement in the highway, which will, without special provision therefor, entitle abutters to compensation; and is constitutional.</p> <p>It is no ground for an information in equity by the attorney general to restrain a street railroad corporation from laying its tracts and running its cars in a certain street, under the authority of an order of the board of aldermen of the city of Boston, that the corporation had failed to accept the order by a writing filed with the city clerk within thirty days from the passage of the order, as required by its terms, the information having been filed before the end of such thirty days; and that the tracks as laid did not comply with the order, the variation not being stated, and not appearing to be material or intentional.</p>

<p>Petitiok to the Superior Court for a jury to assess damages occasioned to the land of the petitioner by the raising the grade of Foster Street in that part of Boston formerly Brighton.</p> <p>Trial in the Superior Court, before Wilkinson, J., who, after a verdict for the plaintiff, allowed a bill of exceptions, the substance of which appears in the opinion.</p>

<p>In action for the support of a pauper, it appeared that the husband of the paupel resided on a freehold estate in the defendant town from January, 1863, to January, 1868 ; that during the whole of this period he was more than twenty-one years of age; that he was an alien until November, 1864, when he became a naturalized citizen; that in May, 1867, his wife became an insane pauper, and was with his consent committed to the State Lunatic Hospital; and that in January, 1868, he ceased to be a resident of the defendant town. Held, that, by the St. of 1868, c. 328, § 1, as amended by the St. of 1871, c. 379, § 1, the husband of the pauper acquired a settlement in the defendant town.</p> <p>The St. of 1868, c. 328, § 1, as amended by the St. of 1871, c. 379, § I, relating to the settlement of paupers, is constitutional.</p>

<p>Contract upon an account annexed, by a deputy sheriff, for attendance upon the First District Court of Southern Middlesex. 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, the material parts of which appear in the opinion.</p>

<p>Tort. Writ dated July 1, 1875. The first count of the declaration was as follows: “ And the plaintiff says there is in the town of Bedford a public highway, leading from said town of Bedford to the town of Lexington, which said defendant is bound to keep in repair; that the same was negligently suffered by the defendant to be out of repair, whereby the plaintiff travelling thereon, and using due care, was hurt. And the plaintiff says he was travelling on said highway in his buggy, with his wife, and was driving, in the exercise of due care, a quiet and safe horse; that at a certain place in said highway a water trough, painted of a brilliant color, had been placed, and placed in such a position that the road opposite said trough was made more narrow than it had been before said placing of said trough; that as the horse approached said brilliantly painted trough, he sheered ; that said horse in sheering drew said buggy, upon a defect in said public highway, which defect was on that side of said highway which was opposite to said water trough • that said buggy was overturned by reason of said defect, and said ulaintiff was thrown out and greatly injured thereby.”</p> <p>The second count was as follows: “ And the plaintiff says the defendant negligently placed and allowed to remain for a long time, within the limits of a highway in said town of Bedford, a pump and water trough, painted of a bright red color, and of such a description that it was calculated to, and did, frighten horses travelling by the same upon said highway; that the plaintiff, with his wife, was travelling along said highway, and past said trough and pump, in his carriage, drawn by a quiet horse, and the plaintiff was using due care ; that the plaintiff’s horse was frightened by said pump and water trough, and sprang away from the same in such a manner as to overturn the plaintiff’s carriage and greatly injure said plaintiff.”</p> <p>The answer admitted that the defendant was bound to keep the highway in repair; left the plaintiff to prove care on his part; denied that he was injured as alleged, and that the highway or any part thereof was out of repair, and that any structure was placed in the highway by the defendant, and that there was any combination of any structure and any imperfect condition of the highway to cause an obstruction or defect in the highway; and denied that by means of any such combination the plaintiff was hurt.</p> <p>Trial in the Superior Court, before Wilkinson, J., who reported the case for the consideration of this court, in substance as follows: Under the first count of the declaration, the plaintiff offered evidence tending to show that there was a hole in the road into which his carriage entered, and by reason of which' it was overturned. But it appeared that the horse was frightened by a watering trough on the side of the way, and sprang to one side of the road in his fright, and struck the defect while so shying. The plaintiff did not contend that the carriage would have struck the defect, had it not been for the shying of the horse from fright.</p> <p>Under the second count, the plaintiff proved that at a regular meeting, under an article in the warrant, “To see if the town will raise money for the establishment and maintenance of public drinking troughs in the public highways,” the defendant town voted, “ That the selectmen be instructed to establish a public watering trough near the Lexington line, and that the expense does not exceed twenty-five dollars.”</p> <p>The plaintiff contended that, immediately after this vote, the selectmen set up the trough in • the mode it was at the time of the accident; that the structure was painted of a brilliant red color, and was of such a character that it would and did frighten steady horses; that it frightened the plaintiff’s horse, and caused him to jump aside and overturn the carriage and cause the injuries complained of.</p> <p>The judge ruled that the plaintiff could not recover upon either count of the declaration; and, by consent of parties, reported the case for the consideration of this court. If the action could not be maintained, judgment was to be entered for the defendant; otherwise, the case was to stand for trial under such directions as the court should give.</p>

Petition for a writ of certiorari to quash the proceedings of the county commissioners of Middlesex in issuing a warrant for a jury to assess the damages caused to land of Eliza H. Marvin by changing the grade of Walden Street in Cambridge. Hearing on the petition and answer, and agreed facts, before Ames, J., who reserved the case for the consideration of the full court. The facts appear in the opinion.

<p>Tort. Writ dated February 17, 1875. The declaration contained two counts. The first count alleged that the defendant forcibly broke and entered the plaintiff’s close, describing it by metes and bounds, “ and put, placed and laid divers large quantities of wood, coal, refuse bricks, mortar and rubbish upon the said close, and placed and poured, and caused to be placed and poured, great quantities of impure water upon the said close, and there kept and continued the said wood, coal, bricks, mortar, rubbish and impure water, without the leave or license and against the will of the plaintiff, for a long time, and until the commencement of this suit, and thereby greatly incumbered the said close, and prevented the plaintiff from having the use, benefit and enjoyment thereof.”</p> <p>The second count alleged that the defendant forcibly entered a certain other close of the plaintiff, describing it by metes and bounds, and concluded as the first count.</p> <p>At the trial in the Superior Court, before Putnam, J., it appeared that the different counts were for the same trespass, upon the separate lots; that the plaintiff was the owner of these lots, having purchased them in July, 1856, and that the defendant was a corporation, manufacturing brick, upon the opposite side of Hall Street, in East Medford.</p> <p>The plaintiff offered evidence of a trespass, of the character named in the declaration, committed in the year 1857, and that some persons had been seen wheeling bricks, mortar and lumber from the premises opposite, and dumping the same upon the plaintiff’s land. The plaintiff then proposed to offer evidence of another trespass, committed at a time within the period of the statute of limitations. To this the defendant objected, but the judge admitted the evidence de bene esse, and the plaintiff offered evidence under the first and second counts, tending to show a trespass of a similar character, committed by the defendant some four or five years ago.</p> <p>At the close of the plaintiff’s testimony upon this point, the defendant called upon the plaintiff to elect upon which trespass he would rely. The plaintiff contended that he had a right to rely upon both the trespasses. But the judge ruled that, the declaration not alleging a trespass with a continuando, but only that the defendant had “ kept and continued ” upon the land the materials that it had deposited at the time of the trespass alleged, the plaintiff could not go the jury upon both trespasses.</p> <p>The plaintiff then elected to go to the jury upon the first trespass, and, in order to avoid the effect of the statute of limitations, offered evidence tending to show that the coal, brick, mortar, rubbish and other materials which had been put upon the plaintiff’s land at the time of the first trespass, had been allowed to remain upon the land until the time of the bringing of this action. It appearing, however, from one of the plaintiff’s witnesses, that the defendant was not incorporated until the year 1863, and that, before that time, the brick-yard was carried on by others, and the defendant- had nothing to do with the premises in question up to that time, and did not do the acts committed in 1857, and there being no evidence to control this, the judge ruled that the plaintiff could not recover on account of the first trespass, ordered a verdict for the defendant, and reported the case for the consideration of this court. To the several rulings of the court the plaintiff excepted. If the rulings were correct, judgment was to be entered on the verdict; otherwise, a new trial was to be granted.</p>

<p>A testator, by his will, devised the residue of his estate to trustees, in trust to paj the income to his son for life, and, on his death without issue, to be divided among his nephews and nieces, the children of certain brothers and sisters, during their natural lives, “ and after their decease to be equally divided among their children or their legal representatives.” The son died without issue, and no nephews or nieces were born after the testator’s death. Held, that such a nephew or niece bom after the testator’s death would have been entitled to share with the nephews and nieces then living; that the limitation over to the children or legal representatives of the nephews and nieces living at the testator’s death was not void for remoteness; and that the possible partial invalidity of the devise in case of the children or legal representatives of any after-born nephew or niece would not defeat the devises to the children or legal representatives of the living nephew» and nieces.</p>

Petition in equity, by Thomas J. Gibbins, administrate! with the will annexed of Thomas Gibbins, to obtain the instructions of the court. The petition alleged that the testator, who died on June 7, 1876, left a will, which was duly admitted to probate on December 4,1876, and contained the following clauses : 61 First.

Petition to the Superior Court, filed April 11, 1873, for a jury to assess damages sustained by the petitioners by reason of the taking, on April 28, 1870, by the respondent, under the St. of 1868, c. 182, of about 100,000 feet of land in West Roxbury. After the former decision, reported 122 Mass. 305, the case was tried in the Superior Court, before Bacon, J., who allowed a bill of exceptions alleged by the respondent, the material parts of which appear in the opinion.

<p>Tort against the assessors of Monterey, for illegally assessing and causing to be collected a school-district tax. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, on an agreed statement of facts in substance as follows :</p> <p>Before and at the time of the passage of the St. of 1869, c. 110, abolishing the school-district system, the town of Monterey was divided into nine school districts. In the warrant for the annual town meeting in March, 1871, was the following article : “ To see if the town will vote to reestablish the school districts ; ” and under this article it was “Voted, to reestablish the school-district system.” On November 2, 1877, the clerk of the town, who was also clerk of the town at the time of the above mentioned meeting, amended his record of that meeting as follows : “ Nov. 2, 1877. I hereby amend the preceding record of the March meeting, 1871, from the best of my recollection, that the vote to reestablish the school-district system was passed by two thirds the legal voters present and voting thereon. The vote was not so declared by the moderator, nor were the votes on either side counted; but, from my knowledge and recollection, I have no doubt but that the above is according to the truth.”</p> <p>On July 10, 1875, the inhabitants of what was school district No. 2, in Monterey, prior to the abolition of the school-district system, voted to raise by taxation the sum of $600, for the purpose of paying the debt of the district, contracted between 1871 and 1875. This vote was duly certified by the person who acted as clerk of the district to the defendants, who thereupon proceeded to assess a tax upon the inhabitants of the district to raise the stated amount; and on August 13, 1875, issued their warrant in the usual form to the collector of Monterey, who, under this warrant, collected of the plaintiff the sum assessed to him, being $11.37; and the plaintiff paid the same under protesi in writing.</p>

<p>Petition to the county commissioners for a jury to assess damages occasioned by the taking of a strip of the petitioner’s land, eight feet and a half in depth, for the widening of Main Street in Brockton.</p> <p>At the trial before a sheriff’s jury, there was evidence that the petitioner’s land, which was situated in the business part of the town, was, before the widening, two hundred and forty-one feet deep, and was, to the depth of eighty or one hundred feet from the street, worth from two to three dollars a foot, while the rear portion was of much less value.</p> <p>The respondent requested certain instructions to be given to the jury, which were not given in terms ; but other instructions were given. The jury returned a verdict for the petitioner. In the Superior Court, the verdict was accepted; and the respondent appealed to this court. The requests for instructions and those given appear in the opinion.</p>

Trustee process. The writ was dated November 29, 1876, and, as originally sued out, returnable to the Second District Court of Bristol on the second Monday of December, 1876, was against Sarah Sisson as defendant, and the Fall River Savings Bank as trustee. The officer’s return showed that service thereof was made on the trustee on December 1, and on the defendant on December 5,1876.

<p>In an action for money had and received, the defendant, under a general denial, may prove that money, admitted to have been received by him, was, by agreement of parties, applied to the payment of advances previously made by him to the plaintiff.</p> <p>Under the St. of 1867, c. 56, § 2, making it lawful to contract to pay a greater rate of interest than six per cent, per annum, and providing that no greater rate “ shall be recovered in any action, except when the agreement to pay such greater rate of interest is in writing," a person who has paid a greater rate than six per cent, per annum, under an oral agreement, cannot maintain an action to recover back the excess.</p>

<p>A lease, purporting to be between A. as lessor and a corporation as lessee, was executed by A. and by B. and C., with no words to indicate in whose behalf the two latter signed it or in what capacity. B. and C. were the majority of a committee appointed by the corporation to make a lease, which made a report that it had made this lease for the corporation. The corporation accepted the report, entered under the lease and occupied the premises. Held, that the corporation was liable for the rent reserved in the lease, and could not terminate its estate by a notice sufficient to determine a tenancy at will.</p> <p>A corporation, occupying a hall under a lease, appointed a committee to wait on A., the lessor, and “ to ask for a reduction of the rent of the hall.” The committee reported orally that A. said that he could not reduce the rent, but if the corporation would pay a certain sum until a certain date, then the lease should terminate. The corporation voted “ that the report of the committee which waited upon A. for a reduction of the rent of this hall be accepted.” Held, that this vote was not an acceptance of A.’s proposition.</p>

Petition for a writ of certiorari to quash the proceedings of the county commissioners of Bristol in abating a tax assessed by the petitioner in 1876 upon the Watuppa Reservoir Company. Hearing upon the petition and answer, before Ames, J., who reserved the case for the consideration of the full court. The facts appear in the opinion.

<p>An action for an injury occasioned to the plaintiff hy a defect in a highway, before the St. of 1877, c. 234, repealing the Gen. Sts. c. 44, §§ 1, 22, took effect, and brought in the Superior Court after the passage of that statute, may be removed by affidavit of the defendant to this court, under the Gen. Sts. c. 114, § 8.</p>

<p>Contract on a judgment recovered by the plaintiff against the defendant. Writ dated January 24,1877. The defendant filed a declaration in set-off, alleging that the judgment was assigned by the plaintiff to Martin L. Marsh, and that Marsh had previously executed a bond to the defendant, and had committed a breach thereof; and set forth the bond and the breach.</p> <p>At the trial in the Superior Court, without a jury, the plaintiff proved the recovery of the judgment, and that it remained unsatisfied when this action was brought; and the following facts appeared : In December, 1875, Marsh proposed to the plaintiff to purchase the judgment. The plaintiff agreed to sell the same to him for the sum of $60, executed an assignment of it upon the execution issued on the judgment, and forwarded the execution by express to Haverhill, directing its delivery to Marsh, upon his paying to the expressman the sum of $60. Marsh, not being able or disposed to pay the sum required, suggested to William Hale to purchase the judgment, and Hale paid $60 to the expressman, and Marsh at the same time executed an assignment of the execution to Hale, who thereupon directed this action to be brought on his behalf in the name of the plaintiff and by his authority. Hale’s purchase of the judgment was in his own interest solely, and Marsh has never had any right or property in the same, otherwise than such as has hereinbefore been stated. After this arrangement between Marsh and Hale, but before it was consummated, Marsh was notified by the defendant’s attorney of the claim declared on in set-off. The defendant had notice also that the judgment was within the control of Marsh.</p> <p>The defendant introduced evidence of the execution of the bond declared on in set-off, and of the breach thereof, (which it is unnecessary to state,) and requested a ruling that, upon the assignment of the judgment by the plaintiff to Marsh, the right accrued to the defendant to set off the penalty of the bond against the amount of the judgment, and that the effect of that assignment could not be controlled by proof of a subsequent assignment from Marsh to Hale. But Brigham, C. J., refused so to rule, and ordered judgment for the plaintiff; and the defendant alleged exceptions.</p>

<p>Answers to interrogatories, signed and sworn to only by the attorney of the party interrogated, are insufficient under the Gen. Sts. c. 129, § 49, requiring such answers to be “ in writing, signed by the party and upon his oath."</p> <p>It is within the discretion of a judge either to order a nonsuit to be entered at the expiration of the time fixed for answering interrogatories filed under the Gen. Sta c. 129, § 46, or to allow further time; and, from the exercise of such discretion, an appeal does not lie to this court.</p>

Contract upon four promissory notes, signed by the defendant, payable to the plaintiff, or order, on demand, and dated respectively October 19, 1861, December 14, 1861, February 19, 1862, and August 15, 1862. Writ dated July 23, 1877. Answer, the statute of limitations. At the trial in the Superior Court, before Rockwell, J., the issue was whether the defendant had, within the meaning of the Gen. Sts. c. 155, § 9, been absent from and residing out of the state.

Replevin of 13 barrels of oil. Writ dated July 10, 1874. After the former decision, reported ante, 43, the case was tried in the Superior Court, before Colburn, J., who allowed a bill of exceptions in substance as follows: The plaintiff offered evidence tending to prove that he purchased the oil of the firm of Shaw & Bruce, of which the defendant was the assignee in bankruptcy, and paid for the same; and that the oil was, when purchased, in a shed belonging to the firm,…

Contract to recover one year’s salary at $2000, upon an agreement under seal, by the terms of which the plaintiff was to act as the agent of the defendant at port or ports to the eastward of the Cape of Good Hope, in the Zanzibar trade.

<p>A demand, under the Gen. Sts. c. 123, § 63, by a mortgagee of a chattel, upon an officer, who had attached the chattel as the property of the mortgagor, stated that the mortgage was given to secure a certain sum, which sum was then due and interest accrued thereon, and gave the date of the mortgage, (which was eighteen days before the date of the demand,) and the place of record. In fact, the rate of interest reserved in the mortgage was seven per cent. Held, that this error did not invalidate the demand.</p> <p>In an action by a mortgagee for the conversion of personal property, attached by the defendant, on a writ against the mortgagor, in whose possession the property was, the defendant is not entitled to have the fact that, after the expiration of the ten days limited by the Gen. Sts. c. 123, § 63, the property was returned to the mortgagor, considered in mitigation of damages.</p>

<p>On the issue of ordinary care by a bailee, if the evidence is conflicting as to the circumstances of the case, a question to an expert, as to the practice and care of others in the same business as the defendant, “ under like circumstances,” may properly be excluded.</p>

Contract on the following promissory note signed by a husband and wife : “ $600. Boston, March 28, 1876. One month after date we promise to pay to the order of N. B. Goodnow six hundred dollars value received at any bank in Boston. Due May 1.” Writ dated October 20, 1876.

<p>Appeal from a decree of the Probate Court allowing the account of the executor of the last will of Mary Ney. The case was reserved by Morton, J., for the determination of the full court, on an agreed' statement of facts, in substance as follows :</p> <p>Previously to September 24, 1875, Mary Ney deposited in her own name, in the Union Institution for Savings in Boston, various sums of money, her sole property, at various times, which amounted, on that day, to $5220, for which she held six separate bank books. On September 24, by an assignment not under seal, -she assigned her deposits and delivered her bank books to George F. Emery, the treasurer of the bank. The only consideration for the assignment and delivery was that Emery was ld draw for her whatever she wanted during her lifetime, and the balance, if any, left at her death, was to be paid by Emery to her son. Emery made no written agreement in reference to the matter, and her son was not informed of it until after her d& cease. Emery drew and paid to her, on account of the deposits, various sums at various times between September 24, 1875, and October 4, 1876, amounting in the whole to $2034, including amounts of interest drawn as such. When these sums were drawn, her signature was required by Emery to show that he drew nothing for his own use, and Emery’s signature was required by the bank. Sometimes, in Emery’s absence, pursuant to his directions to the bank clerks to allow her so to do, she drew money on account of the deposits.</p> <p>Mary Ney died on October 4, 1876, leaving no debts; a husband, to whom she had been married before 1875; and one son, whom, by a will made without her husband’s consent, and after-wards admitted to probate, she made her executor and sole legatee. Since her decease, Emery paid to her son the balance remaining of her deposits, amounting on September 17,1877, to $3705; and subsequently her son filed his account as executor,' not charging himself therewith, or with any part thereof. His account was allowed by the Probate Court, and the husband appealed.</p> <p>If the court should be of opinion that the residue of the deposit belonged to the estate of the deceased, then the decree of the Probate Court was to be reversed, and the case remitted for the amendment of the executor’s account accordingly; otherwise, the decree was to be affirmed.</p>

Contract to recover deposits amounting to $600, and $15 interest, in a savings bank.