Volume 127 — Massachusetts Reports

<p>A. conveyed by warranty deed to a town a parcel of land within the limits of the town and contiguous to a county road. The town bought the land for the purpose of using it in straightening and grading the road, and for obtaining the material to be used in the grading; but this purpose did not appear in the deed; and the purchase was not authorized by a vote of the town. The town constructed a road over the land, but did not legally lay out the road, nor was it so laid out by the county commissioners. Held, on an indictment, trader the Gen. Sts. c. 161, § 82, against A. for cutting down a tree that stood on the land conveyed by him to the town, that Ms deed was not void; that the town became lawfully seised of the land; and that if A. cut down the tree wantonly and without cause the indictment could be maintained.</p>

<p>Indictment in two counts, on the St. of 1874, c. 372, § 115. The first count was as follows: “ The jurors for the Commonwealth of Massachusetts, on them oath present, that John Chase, of said Boston, on the twenty-fifth day of October in the year of our Lord one thousand eight hundred and seventy-eight, at said Boston, was the commander of a certain vessel, to wit, a tug-boat, then and there being in the waters of the Charles River, in said Boston; that Stephen H. Welch was then and there the superintendent, duly and legally appointed and qualified, of a certain drawbridge, to wit, the drawbridge of the Boston and Lowell Railroad Corporation, a corporation duly and legally established by law in said Commonwealth, situate and being in the railroad of said corporation, and over the draw' and the waters of said Charles River, there in said Boston, as aforesaid, and being there duly erected and legally maintained as such drawbridge by said corporation; that said Chase then and there made application to said Welch, as such superintendent, to pass the said draw with said tug-boat; that then and there, and at the same time, a second vessel, to wit, the schooner Fawn, also made application to said Welch, as such superintendent, to pass said draw; that then and there said Welch, having full power and authority so to do, then decided that said schooner had the priority of right then to pass said draw first and before said tug-boat, and then communicated said decision there to said Chase; that said Welch, as such superintendent, then began to open the drawbridge of said draw, and to prepare to pass said schooner Fawn through such draw, and before said tug-boat; that said Chase then and there, well knowing the decision as aforesaid of said Welch, and that said Welch then had there full power and authority to make said decision there as aforesaid, did then and there, wilfully and unlawfully, fail to be governed, and refused to be governed by said decision, and attempted to pass his said tug-boat through said drawbridge first, and did then and there, wilfully and unlawfully, refuse, being by said Welch lawfully requested and directed so to do, to withdraw his said tug-boat to the rear and astern of said schooner, and then and there did wilfully and unlawfully threaten said Welch, as such superintendent, to interfere with said schooner, and to jam said schooner, and block up and impede said draw: against the peace of said Commonwealth and the form of the statute in such case made and provided.”</p> <p>The second count set forth substantially the same facts, and charged the defendant with obstructing the superintendent in the lawful performance of his duties.</p> <p>In the Superior Court, before the jury was empanelled, the defendant moved to quash the indictment, for the following reasons : “1. It is not alleged in the indictment by whom the said Stephen H. Welch was appointed superintendent of the drawbridge. 2. It is not alleged in the indictment, with sufficient certainty, that the Boston and Lowell Railroad Corporation had then and there any legal right to build a railroad across Charles River, or to maintain a drawbridge over said river. 3. It is not alleged, with sufficient precision, in said indictment, that the defendant disobeyed any order then and there given by the said Stephen H. Welch, as to the priority of the right of the tug-boat to pass said draw. 4. The indictment does not set forth, -with sufficient clearness and proper allegations, any offence under .the statutes of this Commonwealth. 5. There is no averment in said indictment that the two counts in said indictment are different descriptions of the same offence.” Colburn, J., overruled the motion; and the defendant excepted.</p> <p>At the trial, the government, for the purpose of showing the authority of the Boston and Lowell Railroad Corporation to maintain a drawbridge over the waters of Charles River, referred to the St. of 1832, e. 87, authorizing the corporation to build such •a bridge. There was evidence that the drawbridge had been built about fifteen or twenty years, and that it was built and had been kept in repair by the Boston and Lowell Railroad Corporation ; that the draw and bridge consisted of a passage for vessels, through the railroad, about thirty-six feet wide, spanned by a movable bridge, which, when opened, swung up-stream of the river; that, from the draw, piers extended up-stream of the river, one on each side of the draw, the inner faces of the piers at their lower ends corresponding with the sides of the passage through the railroad, but diverged from each other somewhat as they advanced up-stream.</p> <p>The superintendent of the drawbridge testified, that on October 25, 1878, the schooner Fawn, a sailing vessel, made application to pass the draw, and afterwards, but at about the same time, the defendant made application to pass the draw with a tug-boat propelled by steam; that the witness decided that the schooner had priority of right to pass the draw first and before the tug-boat, and that he made this decision without regard to the fact that the tug-boat was propelled by steam, and without regard to the provisions of the St. of 1872, e. 221, in relation to vessels propelled by steam on Charles River; and that, had not the schooner made application first, he should have allowed the tug-boat to pass the draw in about twenty minutes after her arrival.</p> <p>It also appeared in evidence that the two vessels were about sixty or sixty-five feet from the drawbridge, and up Charles River, but in the space between the piers, and remained at that distance for about three hours, during which a contest between the defendant and the superintendent was kept up, and the tug-boat was then allowed to pass the draw first, with the consent of the draw-tender, acting under the advice of the harbor-master. At the time these vessels were at said distance from the drawbridge, but in such position that the Fawn could not pass unless the tug either passed first or was run back, the draw-tender ordered the defendant to withdraw his tug-boat to the rear and astern of the schooner, and let her pass through, which he refused to do, con tending that he had a right to pass through first, and also contending that he was unable to obey the order by reason of other vessels above him. The evidence was conflicting as to the ability of the defendant to obey the order.</p> <p>There was no evidence offered that the defendant was obliged to obey the above order, or that the Boston and Lowell Railroad Corporation had any jurisdiction over the waters in Charles River, where the tug-boat was when said order was given, except the provisions of the statutes and the erection of the structures as before stated, or that the defendant interfered in any way to prevent the drawbridge being opened, or made his tug-boat fast to the piers of the Boston and Lowell Railroad Corporation.</p> <p>The foregoing was all the material evidence offered bearing upon the points raised by the exceptions; and the defendant asked the court to instruct the jury as follows: “ 1. The superintendent had no right to detain the tug-boat more than five minutes by the time-table for an out-going train to start, and except so far as might be necessary for the passage of railroad trains over said drawbridge, and in sight from the stopping-place at such draw. 2. The burden of proof is upon the government to show that the detention of the tug-boat more than five minutes was necessary for the purpose of allowing trains to pass over the drawbridge. 8. If the superintendent of the drawbridge made an order which was contrary to his duties, under the statute providing for the passage of vessels propelled by steam through said draw, then, even though the defendant claimed the right to pass said draw first, he is not guilty of the crime alleged, and a verdict of not guilty should be returned.”</p> <p>The judge refused to give the instructions requested; but instructed the jury as follows: “ The Boston and Lowell Railroad Corporation had a right to build its railroad across Charles River, and construct a draw and drawbridge, and maintain the same in and over the waters of said river; and the fact that the drawbridge and draw had been built by the railroad company, and maintained, substantially, as they now exist, for fifteen or twenty years, is evidence upon which the jury may find that they were duly and legally erected and maintained. The piers and the space between them are parts of the draw over which the superintendent had authority, and the defendant was bound to obey the decision and direction of the superintendent, and allow the Fawn to pass the draw first and before the tug passed through, though the tug was propelled by steam and the Fawn was not. If the tug was in such position between the piers as to prevent the Fawn passing through the draw first, the defendant was bound to obey the order of the superintendent to withdraw his tug, so as to allow the Fawn to pass first, if there was no obstruction which prevented his doing so; but if he was unable to obey such order, he could not be found guilty in not obeying it.”</p> <p>The jury returned a verdict of guilty upon the first count, and of not guilty upon the second count. The defendant alleged exceptions.</p>

<p>Indictment in two counts. The second count was as follows : “ And the jurors aforesaid for the Commonwealth of Massachusetts, on their oath aforesaid, do further present, that a certain person, whose name and a more particular description of whom are to said jurors unknown, on the eleventh day of November in the year of our Lord one thousand eight hundred and seventy-eight, at Chelsea aforesaid, with force and arms, with the intent to procure the miscarriage of one Anna F. Clark, did unlawfully use some unlawful means to the said jurors unknown, with said intent, she the said Anna being then and there pregnant with child. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Anna afterwards, to wit, on the twenty-second day of said November, at Chelsea aforesaid, by means of the unlawful means so as aforesaid to the said jurors unknown, in manner and form aforesaid used by said person so as aforesaid unknown, then and there died: against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. And the jurors aforesaid for the Commonwealth of Massachusetts, on their oath aforesaid, do further present, that George A. Ellis, Mary Jane Adams and Mary E. Shaw, before the said felony and abortion was committed in manner and form aforesaid, to wit. on the eleventh day of November in the year of our Lord one thousand eight hundred and seventy-eight, with force and arms, at Chelsea aforesaid, did feloniously and maliciously incite, move and procure, aid, counsel, hire and command the said person as aforesaid unknown the said felony and abortion, in manner and form aforesaid, then and there to do and commit: against the peace of said Commonwealth, and the form of the statute in such case made and provided.”</p> <p>In the Superior Court, before the jury were empanelled, the defendant moved to quash the indictment. Colburn, J., overruled the motion. The defendant was then tried, and the jury returned a verdict of not guilty on the first count, and of guilty on the second count, but that the death of Clark did not result from the miscarriage as alleged in the indictment. The defendant alleged exceptions, the substance of which appears in the opinion.</p>

<p>An indictment on the Gen. Sts. c. 161, § 35, charging the defendant with the embezzlement of a hank book belonging to A., which had been delivered on a day named to the defendant by A., “in the trust and confidence and with the direction that the defendant would and should thereby receive only the custody of said book, and would and should hold the same until said book was demanded by A., when the defendant would and should deliver up and return said book to A.,” sufficiently alleges the possession of the bank book at the time of its embezzlement to have been in the defendant.</p>

Three actions oe contract for money had and received, against the administrator of the estate of Sally Maria Moore, the mother of the plaintiffs.

<p>Bill in equity brought by Thomas W. Ward and Lyman Belknap against William B. Brigham and forty-nine others, alleging that the plaintiffs and defendants were members of a partnership known as the Milk Producers’ Association of Westboro, and entered into an agreement with each other by which they agreed to purchase milk of the individual members and others, and to transport the milk to Boston and there sell the same, and, after paying for the milk and the cost of transporting and selling the same, to divide the profits, if any, among the members; that the business was carried on for a long time by the partnership, and was discontinued about May 1, 1873; that the partnership was largely indebted to the plaintiffs and others, and debts to a large amount were due to the partnership.</p> <p>The prayer of the bill was, that a receiver be appointed and the affairs of the partnership wound up; that the debts be paid from the partnership property, and, in case that should be insufficient, that the members be required to pay the same; and for further relief.</p> <p>The answer denied the several allegations of the bill. The case was referred to a master, who reported the facts as found by him, the material parts of which appear in the opinion, and found that the defendants were entitled to a decree dismissing the bill. The plaintiffs filed exceptions to the master’s report.</p> <p>The case was heard by Ames, J., upon the bill, answer, master’s report and the exceptions thereto; and reserved for the determination of the full court.</p>

Bill ik equity, filed October 27, 1877, by the executor of the will of Darius S. Flagg, to set aside conveyances by the testator of all his property, real and personal, to his wife, in fraud of creditors.

Conteact upon an account annexed for money paid. Answer, a general denial. Trial in the Superior Court, without a jury, before Brigham, C. J., who allowed a bill of exceptions in substance as follows: Ephraim Churchill, the father of the defendant, died in the fall of 1865, then owner of one quarter part of a schooner, and left a widow, Martha H. Churchill, and four children. In November 1865, Martha H. was appointed administratrix of the estate of Ephraim.

<p>Trustee process. 'Writ dated October 10, 1877. Virgil H. Wilde, summoned as trustee, was defaulted. Horatio L. Lincoln appeared as claimant of the funds in the hands of the trustee by virtue of the following order: “ Taunton, March 27, 1877. L. N. Francis. Please pay H. L. Lincoln or order all the moneys which may become due me from the Virgil H. Wilde case, and this shall be your receipt for the same. Charles F. Coleman.”</p> <p>At the trial in the Superior Court, before Bacon, J., without a jury, the defendant was defaulted, and the trial proceeded between the plaintiff and claimant. The claimant produced the above order, proved its execution, and that, at the date thereof, Coleman was indebted to him. No question was raised as to the consideration of the order. It was also proved or admitted that, at the date of the order, an action was pending in the Superior Court, in which Coleman was plaintiff and Wilde was defendant, and that Francis was the plaintiff’s attorney; that at the September term 1877 of that court a verdict was returned for the plaintiff in that action; and that the same, by order of court, was continued for judgment, by reason of the present trustee process. This was all the material evidence in the case.</p> <p>Upon these facts, the plaintiff asked the judge to rule that the order produced by the claimant was neither in form nor in substance an assignment of Coleman’s interest in the action against Wilde, and, at the time of its execution and delivery to the claimant, was invalid, and of no effect to pass or convey any property of the defendant in this action, in the hands of Wilde, as against the plaintiff in this action. But the judge refused so to rule; found for the claimant; and ordered the trustee to be discharged. The plaintiff alleged exceptions.</p>

Contract against the defendant, as a joint and several promisor, upon the following promissory note, signed by William H. Shurtleff: “ $500. Providence, R. I. September 27,1875. One month after date I promise to pay to the order of myself five hundred dollars.” On the back of the note was the name of Shurtleff, followed by that of the defendant.

<p>A collector’s deed of real estate, sold by him for taxes, assessed to “ the heirs ” of a person named, some of whom are residents and some non-residents, is invalid, under the Gen. Sts. c. 12, § 35, if it fails to state that demand was made upon any of the resident owners, or that the taxes were not paid within fourteen days after demand; and, if the collector sells the whole of the land, the fact that some of the resident owners were present at the sale and expressed a wish that it should proceed^ and that they, together with some of the non-resident owners, accepted their respective shares of the proceeds of the sale remaining after the taxes and expenses of the sale had been deducted, is not such a waiver of the informality in the deed as will give validity to the sale.</p> <p>At the trial of a writ of entry, by a person claiming title under a deed of a col lector of taxes, to recover premises assessed to “ the heirs ” of a person named, if the tenant sets up title in himself by adverse possession, the fact that the tenant was a bidder at the tax sale, and that, before the sale, he attempted to buy the interest of one of the heirs, will not operate by estoppel to remedy a defect in the demandant’s title.</p>

Contract. The first count was for money had and received; the second count for money collected by the defendant as an attorney at law employed by the plaintiff. Writ dated July 12, 1876. Answer: 1. A general denial. 2. A discharge in bankruptcy.

<p>Bill in equity, filed January 20, 1879, the allegations of which, so far as it is now necessary to state them, were as follows :</p> <p>On May 10, 1848, the plaintiff was incorporated by the St. of 1848, c. 307, and authorized to construct a railroad from the tau n of Greenfield in this Commonwealth to connect with a railroad to be constructed from the city of Troy in the state of New York.</p> <p>Oh July 28, 1855, under the St. of 1854, e. 226, an act authorizing the Commonwealth to lend its credit, to the amount of $2,000,000, to enable the plaintiff to construct a tunnel and railroad through the Hoosac Mountain, and requiring the plaintiff to mortgage its franchise and property, the plaintiff mortgaged to the Commonwealth “ the entire railroad of said corporation, with its franchises, income and property,” to secure the payment of said loan.</p> <p>By the St. of 1860, c. 202, the terms of the loan were modified, and the plaintiff was required to execute a further bond and mortgage, and to purchase “the entire road, franchise, stock, bonds and other property” of the Southern Vermont Railroad Company, and transfer the same to the Commonwealth as security for a loan then made and as additional security for the payment of the loan already made. In pursuance of this statute the plaintiff, in April 1860, purchased the last-named property and mortgaged the same to the Commonwealth; and, on July 6,1860, also made a mortgage to it of “ its own entire railroad,” “ and all its franchises and property whatever.” On April 5, 1862, a further mortgage was made to the Commonwealth of “ all the franchises and property whatsoever, real, personal and mixed, of said Troy and Greenfield Railroad Company.” All of these mortgages were as additional security for the payment of the above-mentioned loans.</p> <p>On September 4, 1862, under the St. of 1862, c. 156, an act authorizing the plaintiff to surrender to the Commonwealth the property mortgaged, and providing for the completion of the road and tunnel by the Commonwealth, and that “ the right of redemption ” should not be barred until ten years had elapsed after the road and tunnel should be completed and open for use, the plaintiff surrendered to the Commonwealth, under the several mortgages, all its property, real, personal and mixed. This surrender was made, not by reason of any default on the part of the plaintiff, but because the Commonwealth was specially interested in completing the road and tunnel, and requested the surrender to be made. At the time of the surrender, the Commonwealth had only advanced on account of the road and tunnel the sum of $725,338; and, after the surrender, the Commonwealth remained in exclusive possession of the property and managed the same as it saw fit, and completed the road and tunnel, and opened them for use about June 30, 1876.</p> <p>On December 21,1878, a demand was made on the treasurer of the Commonwealth for an account of the expenditures made in behalf of the road and tunnel, and an offer made to redeem on payment of such sum as was equitably due.</p> <p>The prayer of the bill was for an account; that the plaintiff should be allowed to redeem on payment of such sum as should be found to be due; and for further relief.</p> <p>The Commonwealth appeared specially, and demurred to the bill, assigning the following, among other grounds of demurrer: “ The defendant is a sovereign state, and cannot be impleaded in said cause, or be bound by any order or decree that may issue from this honorable court therein.”</p> <p>The case was heard by Endicott, J., on the bill and demurrer, and reserved for the determination of the full court. If the demurrer was sustained, the bill was to be dismissed.</p>

<p>Petition for a writ of prohibition. The case was heard and reserved by Soule, J., upon the petition and answer, for the determination of the full court, and is stated in the opinion. It was first argued at the bar, and was afterwards submitted on briefs to all the judges.</p>

Petition for a writ of prohibition to restrain a master in chancery from proceeding to hear the application of M. F. Paige, a debtor arrested on mesne process, to take the oath that he did not intend to leave the state.

<p>One who “ consigns ” goods to another, to he paid for only as they are sold hy him, has not such possession or right to immediate possession as will support an action of tort for the conversion of the goods.</p>

<p>A testator, by his will, gave to his wife, for her life, his homestead estate and the personal property used with it, also an annuity of $12,000 out of the general residue of his estate, which it was declared should take precedence of all other annuities, and not be subject to deduction or contribution. These provisions were declared to be in lieu of dower. To his only son, and after his death to the son’s wife, he gave a life interest in the homestead and personal property, after the death of the testator’s wife, also the net income of certain real estate, (after deducting two small annuities,) so far as sufficient to cover all the living and expenditures of the son. By a codicil it was provided that, if the net income of the real estate was not sufficient to pay to the son $4500 annually, the amount necessary to make it up to that sum should be taken out of the annuity of $12,000 to the testator’s wife; and it was also provided that an annuity of $6000 should be paid to the son or his wife out of the general residue, while either was in possession of the homestead. To the testator’s wife’s sister was given a certain parcel of land for life and an absolute annuity. By a subsequent codicil it was declared that the provisions in her favor should take precedence of all others, except those in favor of the testator’s wife, his son and son’s wife. Held, that the provisions in favor of the son and the son’s wife took precedence of those in favor of the testator’s wife’s sister.</p>

<p>Under the St. of 1872, c. 343, authorizing the town of Brookline to take the waters of Charles River, “ for the use of said town and the inhabitants thereof, not exceeding one and a half millions of gallons daily,” and providing that the town should be liable in damages to any person injured by such taking, the town voted to accept the act, and to draw from the river the above amount. It also constructed a water-gallery on land near the river, taken under the act, pumped water from this gallery and distributed it to the inhabitants. After the gallery was substantially completed, but before any water was taken from it for the use of the town, the owner of the land taken conveyed it to the town by a quitclaim deed. A portion of the water in the gallery came by percolation from the river through the natural soil between the gallery and the river. Held, -that there had been a taking of the waters of the river, within the meaning of the act; that it was immaterial whether, at the time the water was withdrawn, the town held the land taken by purchase, or by the right of eminent domain; and that a person whose property had been injured by such taking was entitle! to indemnity.</p>

<p>Contbact against the first-named defendant as maker, and the other defendants as indorsers, on the following promissory note: “$3000. New York, January 20,1877. Four months alter date I promise to pay to the order of Charles F. Parker & Co. three thousand dollars at the National Bank of Commerce, Boston, Mass. Value Received. Alexander Law.” On the back of the note was the name “ John Savery’s Sons,” and under it “ Charles F. Parker & Co.”</p> <p>Trial in the Superior Court before Rockwell, J., who reported the case for the determination of this court, in substance as follows:</p> <p>The note in suit was signed by Alexander Law, indorsed by him in the firm name of John Savery’s Sons, and by Charles H. Demerritt in the name of Charles F. Parker & Co., a firm doing business in Boston, of which firm he was a member; at maturity thereof due demand was made and notice given, and no part of the note has been paid.</p> <p>Law, at the time the note was made and negotiated, was a member of the firm of Charles F. Parker & Co., and he and the other defendants were members of the firm of John Savery’s Sons. The sole business of this firm was the manufacture of hollow iron ware in Jersey City, and the sale thereof at its place of business in the city of New York. Law had for many years been the manager and head of the firm, and had signed its name in the ordinary course of its business; but the firm had never, during all that time, made or issued any promissory notes or other negotiable paper, nor indorsed any notes, except that it indorsed for collection such notes as it received from its customers; and, since May 1876, Law, by arrangement among the partners of the firm, had been deprived of the right to sign checks upon the bank in New York in which the funds of the firm had been deposited, and the bank had been notified to that effect; but the plaintiff had no knowledge of this fact, and no notice or ground of suspicion of any want of authority in Law to use the name of the firm in the ordinary course of business.</p> <p>The note, in suit was brought to the banking-house of the plaintiff on February 3, 1877, before its maturity, by John Demerritt, who procured at the time a loan from the plaintiff of $2200 upon his own note for that amount, payable on demand to the bank, and deposited the note in suit as collateral security therefor. No part of the loan to Demerritt has been paid.</p> <p>The plaintiff had previously discounted negotiable paper bearing the name of John Savery’s Sons, which had been paid in due course of business, but which had been in fact issued by Law without the knowledge or authority of any of his partners, and paid without their knowledge that it ever existed; and the plaintiff had inquired into the standing of the firm of John Savery’s Sons, and found it to be unquestioned.</p> <p>The note in suit was, in fact, made, indorsed and issued by Law without the knowledge, consent or authority of any other member of the firm of John Savery’s Sons, and in fraud of the firm, and not in the course of its business or for its benefit or for any consideration moving to the firm; but the plaintiff had no knowledge, notice, suspicion or ground of suspicion of this fact, or of any infirmity in the note or the negotiation thereof, unless the same is to be inferred from the form of the note, and from the facts and circumstances above stated.</p> <p>Upon these facts, the judge ruled that, from the form of the note itself, the plaintiff was, as matter of law, affected with notice of the defence existing to the note on the part of the defendants other than Law, and directed a verdict for them. If this ruling was incorrect, a new trial was to be ordered; otherwise, judgment on the verdict.</p> <p>The case was argued at the bar, and was afterwards submitted on briefs to all the judges.</p>

<p>Two actions OF CONTRACT against the members of the firm of John Savery’s Sons.</p> <p>The first CASE was on three promissory notes, each dated in 1877, signed by Alexander Law, payable to the order of Charles F. Parker & Co., and having on the back, first, the name of the payee, and then that of “ John Savery’s Sons.”</p> <p>At the trial in the Superior Court, before Putnam, J., the evidence as to the making of the notes and their fraudulent indorsement by Law, and as to his being a partner in both firms, was similar to that in the case of National Bank of Commonwealth v. Law, ante, 72. It also appeared that the plaintiff bought the notes of a broker at its place of business before mar turity; and there was evidence that none of the officers of the plaintiff bank had knowledge that Law was a member of either firm.</p> <p>The defendant requested the judge to rule as follows : “ 1. The plaintiff under its corporate powers had no right to purchase these notes. 2. From the mere form of the notes themselves, the bank was charged with notice that the notes were made for Law’s accommodation, in fraud of the firm. 3. The plaintiff cannot maintain this action, if, at the time the bank took the notes in suit from the broker and paid its money for them, it had notice or knowledge that they were contracted and issued for the private use of Law, or if the circumstances, under which it took the notes and paid the money therefor, were such as to authorize an inference of its knowledge, or such as ought to have put it on inquiry as to the real character of the transaction, unless the plaintiff satisfies the jury that the indorsement of John Savery’s Sons was made with their knowledge and consent, or that the notes were indorsed by them in the ordinary course of the business of the firm.”</p> <p>The judge declined to instruct the jury as requested; hut instructed them that the plaintiff had a right to purchase notes in the manner these notes were purchased; that the form of the notes was not sufficient, as matter of law, to charge the plaintiff with notice; hut the jury might take any fact appearing on the face of the notes, or otherwise known to the plaintiff, into consideration, in determining whether it had notice or was put on inquiry; and that, if the plaintiff purchased the notes in good faith without notice of the fraud, it was entitled to recover.</p> <p>The jury returned a verdict for the plaintiff; and the defendants alleged exceptions.</p>

<p>A., the second indorser of a promissory note made by B., payable to his own order and by him indorsed, procured it to be discounted by a bank, and, at the same time and as part of the same transaction, delivered to the bank, as collateral security for the note then discounted, a note payable to A., signed in the firm name of a partnership by one of the partners without the knowledge and in fraud of the firm, and given to A. as security for the note of B., which had been previously obtained by A. from the firm, and had been passed by him to C., the president of the bank, as security for a loan from C., and was in the possession of the latter at the time it was discounted. On the back of the note of the firm at the time it was delivered to the bank was a memorandum signed by A. stating that the note was held by him as security for the note of B. Both notes were dated on the same day, were for the same amount, and were payable at the same time. The bank had no knowledge of the dealings between A. and the firm. Held, in an action by the bank against the firm on the note of the latter, that the bank was charged with notice that the note in suit was given as security only for the payment of the note of B.; and that the action could not be maintained against all the members of the firm, without proof that the note was given with their consent, or in the regular course of the partnership business.</p>

Tort for false and fraudulent representations. At the trial in the Superior Court, before Rockwell, J., the jury returned a verdict for the plaintiff, and the defendant alleged exceptions, the material parts of which appear in the opinion.

<p>Tort for personal injuries on May 14, 1877. Writ dated May 21,1877. Answer, a general denial. On April 12, 1878, the defendant was allowed to file a further answer, setting up a settlement of the case by reason of the following paper, signed by the plaintiff by his mark: “ Boston, August 10, 1877. Received of Old Colony Railroad four hundred and fifty dollars in full settlement and satisfaction for any and all claims that I have or may have against said company for injuries received at or near the entrance to their machine-shop yard, Foundry Street, South Boston, by reason of the cars running off the track and striking the gate or fence, on or about May 14, 1877.” Trial in this court, before Morton, J., who reported the case for the determination of the full court, in substance as follows:</p> <p>The plaintiff, while travelling on Foundry Street, a public highway in Boston, was injured by the collision of two trains under the management of the defendant corporation, whereby a portion of one train was thrown against a fence which divided the defendant’s track from Foundry Street, and a bar in the fence was thrown against the plaintiff.</p> <p>There was evidence tending to show that the plaintiff’s counsel was informed of a settlement by the counsel for the defendant, within two or three days after the above paper was executed, and that the plaintiff then had $400 of the money received by him of the defendant under this paper, in a savings bank, to his credit, and the balance in cash; and that the additional answer was shown to the counsel for the plaintiff, and filed with his knowledge, but without leave of court, on December 5, 1877.</p> <p>The plaintiff contended that his signature to the above paper was procured by false representations and by fraud practised upon him by the agent of the defendant; that he had not entered into an agreement for the release, discharge or settlement of this cause of action; and that the money was given him as a gratuity, and to support him for twelve months, or until the trial, and without prejudice to his claim against the defendant. The defendant contended that the paper was a contract of settlement of the claim in suit, and could not be varied by paroi evidence that the money was not received by the plaintiff in settlement of such claim. The judge so ruled, and also ruled that it was competent for the plaintiff to impeach the contract for fraud.</p> <p>The plaintiff then put in evidence tending to show that -he was about sixty-five years old, very poor, and illiterate, and, since the accident, unable to rest in bed, and much enfeebled in mind and body; that, after the action was begun, the plaintiff’s deposition was taken in his room; that the defendant’s counsel, learning that the plaintiff was dependent upon charity, offered in his presence to have the defendant send a physician to him, and to see that he did not suffer, and to suggest this course to the defendant’s superintendent; that the plaintiff, with his daughter, Hannah Hogan, afterwards called upon the superintendent, who drew the above paper, and'the plaintiff testified that he understood that he was settling for a year, or until the trial of his case, and his daughter, who was present, testified that he said, “ I sha.11 not call upon'you for a year; ” that the superintendent told the plaintiff that he had no case, that he was a trespasser, that he could prove that the plaintiff was upon the defendant’s land leaning upon a bar in the fence, that he had been seen there before, that it would be a long time before his case would come on, that if he got anything .the lawyers would “ eat it all up,’ that he should have a job on the road, and that the road would also pay all expenses and counsel fees.</p> <p>The defendant’s evidence tended to show that the paper was read to the plaintiff and his daughter, and was explained to them both before they signed it; that on September 8, 1877, being called upon for pay by one Odell, who had assisted in the preparation of the plaintiff’s case, the plaintiff and his daughter executed the following paper, in the presence of Odell and two other witnesses: “We, Jeremiah Mullen and Hannah Hogan, do hereby certify that the superintendent of the Old Colony Railroad did agree, on the tenth day of August 1877, upon settlement with me, Jeremiah Mullen, on account of injury received by me from said, road, on May 14, 1877, to settle all bills and charges pending in this case, irrespective of all costs to me; ” that, when the plaintiff gave Odell this paper, he said that he had got $450, and had made a full settlement, and had no more to do with the defendant ; that, in October 1877, the plaintiff, being told by the defendant’s counsel that his counsel said that he had not settled his suit, said, “I have settled my claim; my counsel had no right to make any such statement; ” and that the plaintiff also told several other persons that he had settled with the defendant.</p> <p>The plaintiff contended that the receipt, if obtained by fraud, was not binding; that he could be allowed to show that the money was given for another purpose; that the minds of the parties did not meet upon any agreement for a full settlement; that the money was for a settlement for a year only; and that, under such circumstances, the action could be maintained without returning the money. But the judge ruled that the plaintiff could not maintain the action without returning the money. The plaintiff then tendered to the defendant’s counsel in court the amount of money received, $450, and interest thereon from the time it was received to the date of the tender, which was refused. The plaintiff then offered to put this tender in evidence, but the judge ruled that, at that stage of the case, the plaintiff could not, as a matter of right, put this tender in evidence ; and, as a matter of discretion, declined to open the case for that purpose; and directed a verdict for the defendant. If the rulings were correct, judgment was to be entered on the verdict ; otherwise, a new trial was to be ordered.</p>

<p>Bill in equity, filed December 3, 1877, alleging that the plaintiffs were owners of a parcel of land fronting on Merchants’ Row in Boston; that there was a passageway about seventy-two feet long and about eight feet and one inch wide throughout its entire length leading from State Street to this parcel of land and bounded northerly by it, and westerly by land formerly of Andrew J. Allen and now owned by the defendant; that the plaintiffs owned in fee one undivided third of the soil of this passageway, and had the right to have the whole of it lie open and unincumbered for their use as a carriage-way and foot-way to their land; that the defendant had obstructed this passageway by making excavations therein, and placing stone steps opening and leading to its land, and had erected barriers near these openings, so that the plaintiffs could not pass along the passageway, as they had a right to do; that the defendant refused to remove these obstructions, and prevented the plaintiffs from so doing; that the plaintiffs were contemplating alterations in the building on their land for purposes which would require the use of the entire width of the passageway for passing and repassing ; that they could not improve, use or lease their land so profitably and advantageously as they otherwise might, and that they would suffer an irreparable damage if the defendant was permitted to continue the obstructions.</p> <p>The prayer of the bill was for an injunction to restrain the defendant from maintaining the excavations and obstructions, and to require it to restore the passageway so that the plaintiffs could pass without obstruction over the entire length and width thereof; and for further relief.</p> <p>The answer admitted that the plaintiffs had a reasonable right of way over the passageway, but denied that such right of way was obstructed, and also denied that the plaintiffs had a right to have the way open and unobstructed throughout its entire area; averred that the stone steps and barriers set forth in the bill had been there for many years, and that the defendant had a right so to maintain them; and alleged that the plaintiffs had a plain, adequate and complete remedy at law.</p> <p>The case was heard before Ames, J., who reported it for the determination of the full court, in substance as follows:</p> <p>In 1769, John Jeffries and Ann Jeffries his wife, who then owned the plaintiffs’ estate, Thomas H. Peck, who then.owned the land on the east side of the passageway, and William Maxwell, who then owned the defendant’s estate, executed an indenture, reciting that they were seised in fee of a passageway leading f;om King Street [now State Street] to the land of Jeffries and his wife, “ which passageway measures nine feet in the front on King Street, and continues the, same width as high up as the northeast corner of said Maxwell’s dwelling-house, and measures at the upper end six feet four inches; ” and also reciting that the parties had agreed “ that the said passageway, measuring as aforesaid, shall always lie open and unincumbered for passing and repassing and transporting goods of all kinds to and from their respective houses; ” and each party covenanted that he “ will not incumber or stop up the same, but that the same shall lie open ” for the use of their respective estates, and quitclaimed to the others a right of way in said passageway “ according to the measurement aforesaid.”</p> <p>In 1826, Pliny Cutler, in pursuance of an order of this court, conveyed to Andrew J. Allen the right, title and interest of the minor children of Beza Tucker in a narrow strip of the westerly side of the passageway, thirty-six feet long, eight inches wide at the north end, and seven and a half inches wide at the south end thereof, bounding it easterly on the passageway, and containing the following clause: “ The line adjoining said passageway and the easterly side of said strip is to run in such a direction as to leave the passageway aforesaid at least eight feet wide in every part.”</p> <p>On the same day, Andrew J. Allen, by deed reciting the existence of a passageway “seventy-two feet in length and of an equal width ” leading from State Street to an estate fronting on Merchants’ Row, belonging to the minor children of Beza Tucker deceased, “ which said passageway has been kept open for a long time for the benefit of the owners and occupants of the stores situate on the estate aforesaid, and of those adjoining said passageway on each side thereof, and by them used in common,” and referring for a more particular description to the indenture of 1769; and reciting that it was thought by those having an interest in the passageway that it should be made more equal in width, and also reciting the conveyance to Allen, above set forth, of the strip at the southerly end of the passageway on the westerly side, conveyed to said minor children a strip of land at the northerly end of the passageway thirty-six feet long, twenty inches wide at the northerly end, and ten inches wide at the southerly end, “ running in such direction on the line adjoining the land of the said Allen as to leave a passageway in no place less than eight feet wide, which said strip is to be kept open and unincumbered and held in the same proportions and used for the same purposes by the owners of the estates adjoining the same as the other parts of said passageway heretofore have been.”</p> <p>In June 1867, the heirs of Allen conveyed to the defendant the lot on the westerly side of the passageway, bounding it easterly by the passageway, and all their rights in the passageway “which is bounded south by State Street eight feet one inch, west by the estate hereinabove described, north by estate of the heirs of Beza Tucker, and east by land now or late of John Tucker; subject, however, always to the legal rights of other parties in said way; ” and referring to all of the deeds above set forth.</p> <p>Early in November 1867, the defendant obstructed the passageway in two places, by excavations from three to four feet wide, and five to six feet deep, and by descending stone steps leading to rooms on the defendant’s estate, with barriers on two sides, of the openings, forming obstructions of a permanent and continuous character.</p> <p>On November 8‘, 1867, Josiah P. Cooke and another, trustees, who then owned the plaintiffs’ estate, gave a written notice to the defendant that they were entitled to all the rights in the passageway secured to John and Ann Jeffries by the indenture of 1769, except as modified by the deed from Cutler to Allen, and forbidding the defendant to incumber or dig up the passageway, and requiring it to remove all obstructions.</p> <p>In May 1877, Cooke and another, trustees, conveyed their estate to the plaintiffs, and the plaintiffs afterwards, and before bringing this bill, requested the defendant to remove the obstructions in the passageway.'</p> <p>It was agreed, for the purposes of the case only, that the plaintiffs had the rights of John and Ann Jeffries as modified by the deed of Cutler, and that the defendant had the rights of Maxwell as modified by the deed of Allen.</p> <p>In addition to the facts above stated, the plaintiffs offered evidence to show that the obstructions in the passageway injured their estate, and interfered with the use of the passageway for certain classes of goods, and thus prevented the letting of the building on the estate for certain purposes.</p> <p>The defendant contended that, under the deeds above set forth, the plaintiffs were not necessarily entitled to have the whole passageway kept open throughout its entire length and breadth, but only to a reasonable and convenient way within the limits of the passageway; and that they had never been interfered with in the exercise of such a convenient right of way; and that the plaintiffs, under the circumstances of the case, could not maintain a bill for an injunction without having first brought an action at law to establish them legal rights, and obtained judgment in their favor therein. It appeared that such an action at law was now pending.</p> <p>The judge found and ruled, on the deeds and evidence above stated, that the plaintiffs had a clear right to the use, free from any obstruction, of the whole width of the passageway, of not less than eight feet in width, throughout its whole length and breadth; that the same had been and was obstructed and occupied by the defendant without right, by obstructions of a permanent and continuous character, and that such obstructions were and would be an irreparable injury, for which a judgment for damages in an action at law would not give adequate relief; and ordered a decree to be entered for the plaintiffs. The defendant appealed to the full court.</p>

<p>The words "regularly employed,” in the St, of 1878,c. 284, § 1, exempting a vessel “regularly employed in the coasting trade ” from compulsory pilotage, include the case of a vessel actually and legally so employed at the time the services of a pilot are tendered, even though the vessel is sailing under a register, and is not continuously so employed.</p>

Contract on the St. of 1873, c. 353, for labor performed on the defendant’s railroad. Writ dated February 14, 1877.

Petition for a writ of mandamus to compel the president and treasurer of a railroad corporation to transfer to the petitioners, on the books of the corporation, certain shares of its capital stock, which it was alleged they had purchased at a sale by the corporation for the non-payment of an assessment thereon, under the St. of 1874, o. 372, § 45, and to issue to them a certificate thereof.

Petition for a writ of mandamus to compel the delivery of the books, papers and records, appertaining to the office of city clerk of the city of Taunton, to the petitioner, who claimed to have been duly elected city clerk for the present year, in accordance with the act to establish the city of Taunton, St. 1864, c. 209, § 8, which provides that the city council (which consists, when full, of eight members of the board of aldermen and twenty-four members of the common…

<p>The first case was an action of contract against the de fendant as indorser, to recover the interest which became due on June 1, and December 1, 1876, on three notes of the Eastern Railroad Company of $1000 each, payable to the defendant and purporting to be indorsed in the name of the corporation by A. H. Merrill, its treasurer.</p> <p>At the trial in the Superior Court before Bacon, J., without a jury, the plaintiff put the notes in evidence, and proved a demand upon the maker for the interest falling due on June 1, and notice to the defendant of the refusal to pay. It was admitted that Merrill was the treasurer of the defendant corporar tiou, and that he indorsed the notes as above set -forth. The by-law of the corporation relating to the treasurer was as follows:</p> <p>“The treasurer shall have charge of all books of accounts, moneys, papers, bonds, mortgages, and other writings of security, and property belonging to the bank, and shall be responsible for their safe keeping. He shall draw all necessary papers, and discharge all obligations of the corporation, and his signature shall be binding upon the corporation.”</p> <p>On October 1, 1873, the defendant corporation voted to sell Eastern Railroad notes to the amount of five thousand dollars and on December 1, 1873, voted to sell the entire amount oi such notes then held by it. These notes were purchased by the defendant in 1872, and went into the possession of Merrill as treasurer and custodian of the property of the bank. The defendant employed a firm of auctioneers to sell the notes, and they were bought by one Robbins, who sold them to the plaintiff.</p> <p>The second case was for interest due on two other notes of the Eastern Railroad Company, indorsed as in the first case. The declaration contained a third count for money had and received.</p> <p>The evidence was the same as in the first case. One of the plaintiffs also testified, on the count for money had and received, that, after he knew that the notes were indorsed, he said, in the presence of the person to whom the bank had entrusted them for sale, that he would take them, and that he would not have taken them if they had not been indorsed. There was also evidence that the notes were indorsed before the plaintiff bought them, and that he paid for them the regular market price.</p> <p>It was agreed that the notes were to be considered as if in the possession of the clerk, to be delivered to the defendant if judgment was rendered for the plaintiff on the third count.</p> <p>The judge ruled that the defendant had no power to make itself liable as an indorser of the notes in question, and an indorsement, if made, would be ultra vires and void; that if the defendant had such power, the authority given by the directors to the treasurer to sell and the by-laws of the defendant conferred upon the treasurer no authority to make the defendant liable by an indorsement; and that the plaintiffs in the second case could not recover on the count for money had and received, because they must be supposed to have known when they purchased the notes that the defendant had no power to make itself liable as an indorser; and that, if the plaintiffs could otherwise recover on this count, they had, upon the foregoing facts, entitled themselves to surrender the notes and recover thereon.</p> <p>The judge found for the defendant in each action, and ordered Judgment accordingly; and the plaintiffs alleged exceptions.</p>

<p>Appeal by th,e administrator of the estate of Francis Busli from a decree of the Probate Court giving to the widow of the intestate, on her petition, an additional allowance of $1512.16, out of the personal estate of her husband.</p> <p>At the hearing before Ames, J., the following facts appeared: The only property left by Francis Bush, except household furniture of the value of $173, which was allowed to his widow, con sisted of assets of the late firm of Bent & Bush, which he held as surviving partner, and there will be nothing to the credit of his private estate, there being only assets sufficient, as appears by the inventory and the return of commissioners, to pay a dividend on the claims against said firm.</p> <p>Upon these facts, the judge, being of the opinion that no allowance should have been made, ordered a decree to be entered reversing the decree of the Probate Court; and, at the request of both parties, reported the case for the consideration of the full court.</p>

<p>Bill in equity, filed March 29,1877, alleging that the plaintiff, a corporation established under the laws of this Commonwealth, had for many years been engaged in the business of manufacturing and selling furnaces, ranges and stoves, and parts of the same, and had during such time exclusively used upon each of the stoves one of the following names ; “ Magee Advance No. 7,” “ Magee Advance No. 8,” “ Chelsea Cook No. 7,” “ Chelsea Cook No. 8,” “ Champion Cook No. 7,” “ Champion Cook No. 8,” “ Magee No. 7,” “ Magee No. 8,” “ Standard Cook No. 7," “ Standard Cook No. 8,” “ Success Cook No. 7,” “ Success Cook No. 8,” and during the same time had used upon ranges, either the name “ Magee Portable Range No. 7,” or the name “ Magee P irtable Range No. 8; ” that each of these names was used to designate the stove or range respectively as an article of a peculiar kind, character and quality, and as manufactured by the plaintiff, and as a trade-mark.</p> <p>That certain parts of each of the stoves and ranges, which are peculiar in shape and suited only to such stove or range, such as are entitled grates, linings, beds, fronts, gas-burners and shakers, by reason of the great heat and hard usage to which they are necessarily subjected, are worn or burnt out, broken and otherwise rendered useless, from time to time, while the rest of the stove or range yet retains its utility; and on this account numbers of each of these parts must be made for each of said stoves and ranges, that new ones may replace those which are rendered useless from time to time; that the plaintiff, by great pains, expense and skill manufactures these parts of the stoves and ranges so that they fit the stores and ranges with great exactness, and are of such material and workmanship as to endure the heat and usage to which they are subjected to an extraordinary extent, whereby they have acquired a high repute among the users of such stoves and ranges, for their durability and the facility with which the new ones may be made to replace those which are rendered useless; and the sale of them and of.the stoves and ranges of which they form a part, by the plaintiff, has been much increased.</p> <p>That not only has the aforesaid name of each of the stoves and ranges been used for and upon and connected with each of the parts of the stove or range in the sale and manufacture of each of such stoves and ranges as a whole, but the plaintiff has always made and sold the aforesaid parts, respectively, for the replacement of like parts which have become useless, under the name applied to the stove or range to which they belong, to designate the parts as articles of a peculiar kind, character and quality, and as manufactured by the plaintiff, and as a trade-mark; and has the right to use each of these names as a trade-mark for the parts of the stove or range for which it is used.</p> <p>That, since the plaintiff has had the exclusive right to use these names or trade-marks as aforesaid, the defendant has been and now is manufacturing parts corresponding to the parts of the stoves and ranges made and sold by the plaintiff, and has been and now is, without the plaintiff’s consent, using in the sale thereof the same names therefor as those used by the plaintiff, for the purpose of falsely representing them to be of the same kind, character and quality as those manufactured and sold by the plaintiff; whereas, in fact, they are not of the same kind, character and quality, and are ill-fitting and inferior in material and workmanship to those sold by the plaintiff, and tend greatly to injure the reputation of the stoves and ranges and the parts thereof made and sold by the plaintiff.</p> <p>That the defendant, by his unlawful and wrongful acts aforesaid, has made and received great gains and profits, which ought to and would have, but for said unlawful and wrongful acts, been received by the plaintiff.</p> <p>The prayer of the bill was for an answer under oath, for an account, for an injunction to restrain the defendant from the use of the plaintiff’s trade-marks, 'and for further relief.</p> <p>The answer admitted that the defendant had made castings of parts of stoves and ranges for dealers in various parts of the country, from patterns furnished to him by such dealers, which had on them letters and figures, such as a grate with “ M. A. 7 ” upon it, which fitted a stove called “ Magee Advance No. 7 ; ” a grate with “ R. 7 ” upon it, which fitted a range called “ Magee Portable Range No. 7; ” a gas-burner with “ 7 R. P.” upon it, which fitted the same range; a grate with “ P. R. 8 ” upon it, which fitted a range called “ Magee Portable Range No. 8 ; ” a gas-burner with “ P. R. 8 ” upon it, which fitted the same range; and many others of a similar kind, which need not now be mentioned ; but denied that such letters and figures constituted any trade-mark of the plaintiff; and averred that, in all cook-stoves and ranges, such letters and figures were solely for the purpose of showing the number of inches in diameter of the circular openings in the top of the stove or range; and also averred that the letters and figures on some of the other castings were intended simply to facilitate the laborers in extensive furnaces and warehouses in classifying such goods, and were not used as a trademark by the plaintiff.</p> <p>At the hearing before Ames, J., it appeared that the plaintiff manufactured and sold the ranges and stoves mentioned in the bill, using as trade-marks the peculiar names mentioned in the bill, both by casting them on the stoves and ranges, and by designating them with said names in selling them; and also manufactured and sold grates, linings, beds, fronts, gas-burners and shakers, peculiarly fitted to each of such stoves and ranges, to replace the like parts thereof which became worn out or broken, using in the sale the trade-mark of each stove and range to designate the parts sold for its repair, and also casting on each of the parts the initial letters and number of the trade-mark of the stove or range for which such part was fitted, in the manner set forth in the answer. It also appeared, that the numbers applied to stoves and ranges, and their parts, made by the plaintiff and other manufacturers, always corresponded with the number of inches in diameter of the pot-holes; and that the parts above mentioned, made and sold by the plaintiff, had been made of the best material, and to fit with great exactness, and had acquired high repute thereby.</p> <p>It appeared that the defendant, after the adoption by the plaintiff of the names mentioned in the bill, and before the filing of the bill, sold, in large numbers, parts of stoves and ranges corresponding to those named in the bill, to be used for the repair of the stoves and ranges made and sold by the plaintiff, and advertised the parts so sold by him, by issuing a catalogue entitled “ Catalogue of Grates and Linings manufactured by J. B. Le Barron, Middleboro’, Mass.,” and containing in its list the following :</p> <p>Advance grates Ho. 7 & 8.</p> <p>“ beds 66 66</p> <p>“ fronts 66 66</p> <p>“ gas-burners 66 66</p> <p>Chelsea Cook (O.P.) grates Ho. 7 & 8.</p> <p>66 66 beds 66 66</p> <p>66 66 fronts 66 66</p> <p>Chelsea Cook (N.P.) grates Ho. 7 & 8.</p> <p>66 66 beds 66 66</p> <p>66 66 fronts 66 66</p> <p>Champion Cook grates Ho. 7 & 8.</p> <p>66 66 fronts 66 66</p> <p>66 66 beds 66 66</p> <p>Magee Cook grates Ho. 7 & 8.</p> <p>66 66 beds 66 66</p> <p>66 66 fronts 66 66</p> <p>66 66 gas-burners 66 66</p> <p>66 66 shakers 66 66</p> <p>Magee Range grates Ho. 7 & 8.</p> <p>66 66 fronts 66 66</p> <p>66 66 beds 66 66</p> <p>66 66 gas-burners 66 66</p> <p>Success Cook grates 66 66</p> <p>These names and numbers were to designate the' parts, made and sold by the defendant, to repair the stoves and ranges made and sold by the plaintiff; and the defendant sold such parts, when ordered, by these names.</p> <p>It appeared that the defendant had cast these parts in moulds made from the parts sold by plaintiff as aforesaid, and had thereby cast on his parts the initial letters and numbers borne by the parts made by the plaintiff; but when the defendant had notice by the subpoena that this suit was commenced, he caused to be filed off from his patterns all letters, numbers, initials and marks whatsoever, and ever after cast the parts accordingly.</p> <p>The defendant contended that neither the sale of the parts, with representation by his catalogue that the parts were of his manufacture, nor the sale of the parts without the letters and numbers on them, nor the sale of the parts with the letters and numbers on them, would violate any rights of the plaintiff, and that such letters and numbers did not constitute a trademark, and the use of them would not constitute a representation that the parts were made by the plaintiff, and that the several parts of the stoves and ranges were not protected by a trade-mark on the stoves and ranges, so as to prevent the making by the defendant of the several parts for repairs ; that if he had made and sold either or all of the stoves and ranges described in the bill, striking off all letters and figures or marks whatever which tended to represent them as made by the plaintiff, and more especially if the defendant represented them to have been made by himself, there would be no violation of a trade-mark, nor any trade-mark to be violated; and that the making or casting those parts of the stoves or ranges which require to be often renewed, such as grates, beds or grate-rests, fronts, gas-burners or shakers, either without any representation thereon indicating to the public that the same were cast by the plaintiff, or -without any letters or marks whatever thereon, except what constituted the mere plain grate, grate-rest, front, gas-burner and shaker, would not constitute a violation of a trade-mark of the plaintiff.</p> <p>The judge found that the parts manufactured and sold by the defendant were made of inferior metal, and were inferior in accuracy of fit to those manufactured by the plaintiff; and held that the name of the stove or range attached as a trade-mark to each of the parts of it, especially to those parts which bore the initial letters of the trade-mark; that the defendant, by selling the parts and advertising them as he did, infringed the rights of the plaintiff; that designating the parts in their sale by the name adopted by the plaintiff, as by the catalogue or otherwise, violated the rights of the plaintiff, even though the defendant did not represent that they were made by the .plaintiff; and that the plaintiff was entitled to an injunction and account, as prayed in the bill; and ordered that the case be sent to a master to state the account.</p> <p>From this decision the defendant appealed ; and the judge, being of opinion that the matter ought to be determined by the full court before further proceedings were had, reported the case for that purpose.</p>

<p>A., the holder of an overdue promissory note signed by C., requested B. to see his debtor and collect the note or get a new note for it. B., who acted in the matter gratuitously, took from C. on the Lord’s day a new note dated on a secular day, payable on demand to A.’s order, and gave the old note to C., and afterwards delivered the new note to A., who indorsed it to D. Neither A. nor D. knew that the note was delivered to B. on the Lord’s day, and C. in so delivering it intended to defraud A. Held, that, in an action by A. on the note against C., the defence of illegality would have been open; and that, under the Gen. Sts. c. 63, § 10, the same defence was open in an action by the indorsee; and that C.’s intention was immaterial.</p>

<p>A portable hot-air furnace, resting by its own weight upon the ground, put into a house by a person rightfully in possession under an agreement for a deed, does not become part of the realty, although connected with the house by a cold-air box and hot-air pipes and registers, in the usual manner.</p> <p>Gas-fixtures in a house, though attached by screws to pipes, are not part of the realty.</p> <p>A refusal to give an instruction requested is not a ground of exception, if the request is based on a portion of the evidence only.</p> <p>The mere fact that a person, pending a suit against him, is in possession of personal property which he has sold and constructively delivered, is not prima fade evidence that the sale is fraudulent as against a creditor.</p> <p>A person in possession of a house and land, under an agreement with the owner for a deed, put a hot-air furnace into the house, and then sold and constructively delivered the furnace to a third person. Afterwards, but while the furnace remained in the house, it was attached by an officer on a writ in an action by the owner of the house against the person with whom he had made the agreement for a deed. The purchaser removed the furnace; and, while it was in his possession, the officer seized it on an execution issued in the above-mentioned action, and sold it. Held, that, even if the furnace was part of the realty when put into the house, the purchaser could maintain an action against the officer for the conversion of it by him after it was removed from the house.</p>

Contract for breach of the following instrument, signed by the plaintiffs, declared on as a lease, with counts in tort for the conversion of some of the articles named therein: “ Know all men by these presents: That I, J. Needham, Jr. and J. It.

<p>In a trustee process, the trustee’s answer set up an assignment by the principal defendant of his wages to another, and stated that the assignment was “ duly recorded." The assignment purported on its face to be made by the defendant, of the town of S., and recorded in the office of a town clerk. Held, that the assignment must he deemed to have been recorded in the office of the town clerk of- S., and that the statement in the trustee’s answer was upon a matter of fact, and not of law.</p>

<p>The mayor and aldermen of a city, under the St. of 1875, c. 99, established fees for licenses to sell intoxicating liquors, and subsequently voted to grant a license to A., who the next day tendered the fee and demanded the license, but was told it would not be ready until the next day. On the same day, but after the tender was made, the mayor and aldermen voted to increase the fee for licenses. A., with full knowledge of the facts, paid the increased fee, under protest, and received his license. Held, that he could not recover back the money so paid.</p>

<p>In an action on a promissory note signed by a firm, and by others for the accommodation of the firm, and payable to the plaintiff's order, and discounted at a bank, it appeared that the note had been paid at maturity by two other notes, signed by one of the firm, payable to the plaintiff’s order and indorsed by other persons. The evidence was conflicting on the point whether the payment was made by the plaintiff, or by a member of the firm which signed the original note. Held, that, if the latter was the fact, the parties to the note were discharged; and that this question should be submitted to the jury.</p> <p>In an action on a promissory note, made before the St. of 1874, c. 404, against a person whose name appeared on the back of the note above that of the payee, the judge instructed the jury that, if the defendant wrote his name in blank on the back of the note, before it was delivered to take eSect as a note, he would be liable as a joint maker, in the absence of evidence that it was the intention of himself and the payee that he should be liable as indorser only. Held, that the defendant had no ground of exception.</p> <p>If the payee of a promissory note, at the time it becomes due, takes a promissory note for the same amount, signed by persons, some of whom are not parties to the first note, and retains the first note, there is no presumption of law, in the absence of an agreement to that effect, that he receives the second note in payment of the first.</p> <p>If a bill of exceptions states that a party requested the judge to grant certain requests for instructions, and that the judge declined to give the instructions requested, but gave full and appropriate instructions not excepted to, and omits to state what these instructions were, there is no ground of exception, unless the party had the right to have the instructions given without modification or qualification.</p>

<p>Where this court has held, on a report of the plaintiffs evidence alone, that the action may be maintained, the defendant has no ground of exception to a refusal at the second trial, at which the plaintiffs evidence was in substance the same as before, and the defendant’s evidence tended to contradict it, to take .the case away from the jury.</p> <p>In an action on a contract of insurance, the defendant contended that the contract was made under a mutual mistake of fact as to whether a previous risk had expired when the new contract was made. Held, that the burden of proof was on the defendant t,o show that the mistake, if it existed, was material; and that the question of materiality was for the jury.</p>

<p>In an endowment policy of insurance issued to A., payable to B. in case of the death of A. within ten years, but to A. if he should survive that period, and containing a condition that, if any premium due upon the policy shall not be “ paid on the day when the same is payable, the policy shall thereupon become forfeited and void, “ this condition, however, being subject to the provisions of ” the St. of 1861, c. 186, the expiration of the ten years is equivalent to the death of the assured, so far as regards the question when the policy becomes payable; and if A., having survived the period of ten years and notified the insurer of that fact, after paying each annual premium as it became due, fails to pay the last premium, he is entitled to recover the amount of the policy, less the amount due with interest, from him to the insurer.</p>

<p>In an action by C. against A. on a promissory note made by A., payable to B., and by him indorsed to C., after it was overdue, A. relied in set-off on a claim against B. upon a note secured by a mortgage of personal property, payable to B., and by him indorsed to A. at the time the note in suit was given, as the consideration for the same and for money then paid by A. to B., the mortgage being assigned to A. at the same time. There was evidence that, soon after the note in suit was given, A., having been told that the mortgage and note indorsed to him by B. were worthless, so informed B., and told him that he should hold him as indorser, to which B. assented, and said he would take the mortgaged property, sell it, and take care of the note, and would not hold the defendant liable on the note in suit until he had paid the mortgage note; that B. accordingly took possession of the property and stored it for two years, but failed to sell it or to pay the mortgage note, which became due before the note in suit was indorsed to C., and while B. had possession of the mortgaged property. Held, that this evidence would justify the jury in finding a waiver of demand and notice by B.; and that A. had a right to set off B.’s liability to him as indorser of the mortgage note.</p> <p>In an action on a promissory note, an allegation of demand and notice of nonpayment is supported by proof of a waiver of such demand and notice.</p>

<p>A bill of exceptions, admitted to have been duly presented to the judge, appeared by the record to have been seasonably filed, and at a subsequent term, after two general continuances of the case, restored by the judge to the files of the court, with his certificate thereon “ examined and allowed,” and within four days afterward entered in this court. Held, that notice to the adverse party of the filing of the exceptions, and his attendance before the judge at the hearing upon their allowance, need not appear of record, and were to be presumed in the absence of proof to the contrary; that neither the lapse of time, while the judge retained the exceptions, nor his omission to state in his certificate the reasons rendering the delay in restoring the exceptions to the files necessary, nor the want of any continuance nisi during the intervening vacations, afforded ground for dismissing the exceptions; and that the exceptions were entered in due time in this court.</p> <p>A party in whose favor a ruling is made, and who, upon the adverse party filing a bill of exceptions to such ruling, presents to the judge a draft of what he thinks such exceptions should be, cannot, on the judge allowing the bill of exceptions as filed, maintain a petition to this court, under the Gen. Sts. e. 115, § 11, to establish the truth of the allegations contained in his draft of the exceptions. ,</p> <p>If, in an action on a recognizance given by a poor debtor, under the Gen. Sts. c. 124, § 10, it appears that the debtor was discharged on a notice issued within seven days from the giving of a previous notice, the burden is on the defendant to show that the first notice was insufficient in form or service.</p>

<p>In an action on a judgment, evidence that, before the judgment was rendered, the claim on which the judgment was founded was in part satisfied, is incompetent, while the judgment remains unreversed.</p> <p>In an action on a judgment against two jointly, evidence that, before the judgment was rendered, the plaintiff, on payment by one of the defendants of part of the claim on which the judgment was founded, made an agreement with that defendant by which he released the latter from payment of any part of the judgment, and stipulated that the other defendant should be liable for one half only of the judgment, is incompetent in defence of the action.</p>

<p>If the occupant of a building, connected with which is a hatchway in the sidewalk leading into the basement, is compelled, by reason of his relation to the building, to pay damages recovered in an action of tort by a person who sustains an injury by falling into the hatchway, which had been left open and unguarded by the negligent act of a third person, he may maintain an action against such third person for indemnity; and the judgment in the action by the person injured is not conclusive against the right to recover.</p>

<p>The EIKST case was a bill in equity, filed November 9,1879, alleging that a partnership existed between the plaintiff and the defendant -; that the defendant failed to comply with the articles of copartnership; that differences as to the adjustment of the partnership affairs arose, and were referred to an arbitrator, who had made an award which was beyond the scope of the submission to him, and was fraudulent. The prayer of the bill was, that the award might be set aside; that the partnership might be dissolved, and a receiver appointed to wind up its affairs. Annexed to the bill were copies of the submission to arbitration and the award.</p> <p>The submission, executed by the parties on September 23, 1876, was as follows: “Know all men by these presents, that whereas John J. Richards, of Natick, and Edward Todd, of Somerville, both in Massachusetts, entered into a copartnership with each other by articles, dated July 7, 1873; and whereas there are differences and disagreements between them, and as to the adjustment of partnership affairs to this date; and whereas said Todd claims that there were errors in regard to the statements and representations made by said Richards, as to the amount of the business which he had been doing previous to said Todd’s entering into said partnership, and as to the amount and value of the property which said Richards conveyed to said Todd, and which said Richards contributed to the partnership stock, and also as to other matters and things pertaining to said partnership ; and as said partners cannot agree as to the same, they do hereby mutually agree to refer all of said matters to the arbitration and determination of Alonzo A. Knights, of Malden in Massachusetts, whose award, being made in writing, and reported to the parties within two months from this date, shall be final and conclusive upon them. And said referee, after due notice to the parties of the time and place of hearing, may proceed to hear and determine the matters submitted, — if either party shall neglect to appear in his absence, — and determine what sum either shall pay to the other.” The award stated that the arbitrator found that the contract of copartnership was vitiated and avoided by the false statements and representations of Richards, and set forth the sums of money Richards was to pay Todd, and the further acts he was to do to save Todd harmless.</p> <p>The defendant filed an answer on December 5, 1876, in which he alleged that he was induced to enter into the partnership by false and fraudulent representations made by Richards, and that the articles of copartnership were therefore void; that he contributed $8000 in cash and his note for $2000, as his part of the capital stock; that this note was payable to the order of Richards, and was still outstanding and unpaid; that all matters in dispute between the parties, including the claim for the deceit, were submitted to the arbitrator; and that his award was valid and binding.</p> <p>The second case was a cross bill filed on December 5,1876, and containing the same allegations of fact as were contained in the answer to the original bill, and which are above quoted. The prayer of the bill was, that the award should be declared valid; that Richards should be decreed to pay the amount found due by. the arbitrator, and be required to return and cancel the note, or to indemnify the plaintiff therefrom; and for general relief.</p> <p>Richards demurred to the cross bill, on the ground that the plaintiff had a plain, adequate and complete remedy at law. This demurrer was overruled by Morton, J., and an answer was filed denying the allegations of the bill.</p> <p>The cases were sent to a master, who found that the arbitrator exceeded the authority conferred upon him by the submission to arbitration; and also found that the contract of partnership was void by reason of the fraud of Richards in inducing Todd to enter into it; that Richards should return to Todd his note of $2000; save him harmless from the debts and liabilities of the firm; pay to him the sum of $8000 and interest, and the sum of $3900 for his services, less certain sums received by Todd from the business. The master also reported the evidence in full.</p> <p>Both parties filed exceptions to the master’s report; the substance of them appears in the opinion.</p> <p>The case was heard by Endieott, J., who overruled all the exceptions, and entered decrees in accordance with the report of the master; and both parties appealed to this court.</p>

<p>Contract upon the following promissory note: “ $1000. June 11, 1875. On demand, after date, I promise to pay to the order of A. B. Wilton one thousand dollars, seven and one half per cent. Ann G. Eaton, Administratrix.” The writ, dated May 11, 1877, was against the defendant personally.</p> <p>Answer: 1. A general denial. 2. Want of consideration. Trial in the Superior Court, without a jury, before Allen, J., who found the following facts:</p> <p>The defendant is the widow of Jacob F. Eaton, who died on August 29, 1871, intestate. On September 13, 1871, she was duly appointed administratrix of his estate; and, on the same day, filed her bond in due form, and afterwards gave due notice of her appointment and acceptance of the trust. On ■ July 9, 1873, she filed her final account as administratrix, which was allowed by the Probate Court, and by which it appeared that the estate was solvent, and that, after payment of debts, she had paid to the next of kin their distributive shares thereof. Mo sale was made of real estate, all of which descended according to law. Mo new assets afterwards came into her hands. Some time during the year 1875, the plaintiff produced a promissory note, for $1000, dated January 17, 1867, payable on demand, signed by the intestate, and given by him to the plaintiff for money lent, and requested the defendant to pay the same. On the back of the note were various indorsements of interest, the last being April 17,1874, and also the following, all being in the handwriting of the plaintiff: “ Received payment in full upon the within.” The last indorsement of “ payment in full ” was made by the plaintiff at the time he gave Eaton’s note to the defendant, and took the note in suit in exchange therefor. The plaintiff offered the other indorsements, with further evidence to prove payment of interest on the note by the defendant. The judge admitted this evidence against the defendant’s objection, but found as a fact that the defendant had made no payment of interest on the note. The defendant had never seen or heard of the above note signed by the intestate until a short time before the date of the note in suit. At the time of the giving of the latter note, the plaintiff had not begun any suit at law or in equity on the former note, nor was any evidence offered to show that he contemplated any legal proceeding thereon. Prior to the time when the note in suit was" given to him, the plaintiff told the defendant’s agent that he thought it impossible to enforce payment at law of the note of Jacob F. Eaton, on account of the statute of limitations. The plaintiff offered no evidence to explain his delay in demanding payment of this note; nor did he offer to prove a demand for payment thereof upon any person prior to 1875. The surrender to the defendant of the note of the intestate was the consideration for the note in suit; nor was there any other or further consideration therefor, save such legal inference of consideration as may be drawn from the above facts.</p> <p>Upon these facts, the judge ordered judgment for the plaintiff; and the defendant alleged exceptions.</p>

<p>A. brought a bill in equity against B. praying for an injunction to restrain the latter from selling certain real estate, under a power of sale contained in a second mortgage which had been assigned to B., and upon which interest was overdue to a certain amount, until it should be ascertained what sum, if any, was due on the mortgage. A temporary injunction was granted, upon the execution by A., by order of the court, cr a bond to B.', conditioned that, in case it should be determined in the suit that B. was entitled to hold the premises chargeable for the payment of his mortgage in full, A. should pay the overdue interest thereon with interest on that sum, and keep down all interest accruing or accrued on the first mortgage. On motion of A., the injunction was dissolved, of which B. had notice. The case was heard on the merits, and the bill dismissed with costs. B. thereupon sold the premises under the power for a sum sufficient to pay the first, but not the second, mortgage in full. He then brought an action at law against A. on the bond, the further prosecution of which A. sought to restrain by a bill in equity. Held, that the bill could not be maintained; and that, by the terms of the bond, B. was entitled to recover the interest due on his mortgage, with interest on that sum, and the interest due on the first mortgage to the time when the injunction was dissolved, but was not entitled to recover the interest on either mortgage accruing after that time.</p>

<p>The disability of an infant to sue can be taken advantage of by plea in abatement only, and is not open to objection in a case submitted on an agreed statement of facts, unless specially reserved.</p> <p>An assessment of betterments upon an estate, under the St. of 1871, c. 382, is valid, although made tg a person who is neither the owner nor occupant of the estate.</p> <p>If A. conveys to B. dne undivided fourth part of an estate with a covenant against incumbrances, and, ad guardian of his minor child, conveys to B. the remaining three fourth parts without such covenant, and B. is compelled to pay an assessment of betterments laid upon the whole estate, which became an incumbrance before the conveyances, B. is entitled to recover of A., in an action on the covenant, one fourth only of the amount so paid.</p>

<p>A. deposited money in a savings bank, whose by-laws, contained in his deposit book, provided that the bank will not be responsible for loss sustained, when a depositor has not given notice of his book being stolen or lost, if such book be paid in whole or in part on presentment; that the bank does not undertake to be answerable for the consequences of mistakes as to identity, if it pays to a wrong party upon the bank book being presented; and that every depositor shall sign the by-laws and agree to conform to them, and in case of the loss or theft of the bank book shall give immediate notice thereof to the bank. A., who subscribed to the by-laws by making his mark, was unable to read, but that fact was unknown to the bank. After the death of A., of which the bank had no actual notice, it paid the amount deposited, without negligence and without notice that the book had been stolen, to B., who, fraudulently personating A., presented the book. After A.’s death, and before payment by the bank, his executor published the usual probate citation, addressed to the heirs at law, next of kin, and all persons interested in his estate, to appear and show cause, if any, against the probate of his will. Held, that the executor of A. could not maintain an action against the bank for the amount so paid.</p>

Tout. The declaration alleged that the defendant on May 5, 1877, attached, as a constable, on a writ against Frederick B. Hall, a stock of groceries belonging to the plaintiff, placed a keeper in his shop and continued him there until May 7, when he withdrew him and took away the sum of $150, which had been taken by the keeper; that, at the time of the attachment, the defendant well knew that the plaintiff was the sole owner of the goods, and that Hall had no interest…

<p>In an action by a father for the seduction of his minor daughter, there was evidence, including that of the daughter, that, before the seduction, the daughter appeared strong and well, and of gay and cheerful spirits, and that, after that time, she became nervous and excitable, and did not appear to be herself. There was no pregnancy or sexual disease, and no other evidence to show that the girl’s condition of health was caused by the act of the defendant. Held, that the evidence would warrant the jury in finding that the girl’s health faded as the immediate result of the defendant’s act. Lord, J., dissenting.</p> <p>If a father has not parted with the right to claim the services of his minor daughter, he may maintain an action for her seduction, although at the time thereof she is residing with another person.</p> <p>If, in an action by a father for the seduction of his minor daughter, the defendant requests the judge to rule that the evidence does not show such loss of services arising from the seduction as will entitle the plaintiff to maintain the action, and the judge gives appropriate instructions relating to loss of service generally, it is not open to the defendant, on exceptions to the ruling and refusal to rule as requested, to contend that the instructions were misleading in not containing a qualification to which the' attention of the judge was not directed.</p>

Contract upon the following agreement signed by the defendant : “ Boston, July 26, 1875. Whereas J. H. Stickney has this day lent J. W. Olmstead the sum of five thousand dollars, on a mortgage of the house owned and occupied by said Olmstead, numbered eight (8) Worcester Square, Boston, said mortgage being over a mortgage to Boston Five Cents Savings Bank for ten thousand dollars.

<p>The charter of a horse railroad corporation provided that the corporation should be liable for any injury any person might sustain by reason of the carelessness or misconduct of its agents or servants. A subsequent statute authorized it to lease its road and franchise, and to contract with any “responsible” person for the management of its road, but provided that such lease or contract should not release or exempt the corporation from any duty or liability to which it would otherwise be subject. The corporation leased its road, the lessee providing horses, cars and servants. By the negligence of a servant of the lessee a passenger was injured. Held, that an action for such injury could be maintained against the corporation.</p>

Bill in equity, filed July 8,1878, under the Gen. Sts. c. 113, § 2, cl. 11, by the assignees in bankruptcy of George T. Richardson and Francis H. Scudder, against Nathaniel B. Sherman and the Oliver Ames & Sons’ Corporation, to reach and have applied to the payment of a debt of Sherman his interest in the rent then due and to become due under a lease of certain real estate.

Bill in equity, filed April 8,1878, against Francis M. Weld and William Minot, setting forth debts due and payable from the defendant Weld to the plaintiff; and alleging that Christopher M. Weld, deceased, by his last will and testament, duly proved and allowed on April 8, 1878, devised all the residue and remainder of his estate to the defendant Minot, in trust, to pay the income thereof to Mary Ann P. Weld, wife of the testator, during her life, and on her decease to…

<p>If a deed to A. describes the land conveyed as bounded on a road, and refers to two recorded deeds to B., as conveying the same land with another parcel to be deducted in the grant to A., being already conveyed by the grantor to C., and these deeds describe the land as bounded on the same road, the road is a monument called for by the deeds, and A. takes only to the road as it legally existed when his deed was made, although, in the deed to C., the dividing line between his land and the land conveyed to A. is described as being a certain number of feet in length, which would carry the land farther than to the road; and, in an action by A. against his grantor for breach of the covenant against incumbrances in his deed, the deed to 0. is inadmissible in evidence to show that the boundary line of A.’s land is other than the road.</p>

<p>The statements, made by the president of a railroad corporation to induce a person to purchase stock in the corporation, that the corporation was able to lay its track and provide rolling stock, and pay all bills contracted: and that its stock was not for sale, and could not be bought anywhere but of him, are statements which a jury would be warranted in finding were representations of fact, and not expressions of opinion.</p> <p>A declaration contained two counts. The first, in tort, alleged that the plaintiff bought stock in a railroad corporation of the defendant, who was the president of the corporation, upon false and fraudulent representations by the defendant that the corporation was solvent; that its capital stock had all been paid in; that it was able to lay its track and provide rolling stock, and pay all bills contracted ; and that its stock was not for sale, and the plaintiff could not buy it anywhere but of the defendant. The second count was in contract for money had and received. At the trial, the plaintiff offered to prove that, at the time of the sale, and for the purpose of inducing him to buy, the defendant falsely stated that he knew there was money enough in the treasury of the corporation to purchase rolling stock for the road, provide and lay tracks, and furnish all necessary equipments. Held, that this evidence should have been admitted; and that the question whether the evidence supported the declaration should have been submitted to the jury under both counts.</p>

<p>It is a question for the jury whether a representation as to a person’s financial ability to pay a debt is made as a matter of opinion or as a matter of fact.</p> <p>If a defendant asks the judge to rule that, upon all the evidence, the plaintiff is not entitled to recover, and excepts to the rulings of the judge so far as not in accordance with the instruction asked, all the instructions given on this point are open to him on his exceptions.</p>

<p>Bill ih equity in the nature of a bill of interpleader, by the trustees under the will of Henry Farnum, to obtain the instructions of the court as to the, validity of a charitable bequest in the will, and as to a matter arising out of their administration of the trust.</p> <p>The case was heard on the bill and answers by Colt, J., and reserved for the determination of the full court. The facts appear in the opinion.</p>

Contract for failure of the defendants to deliver corn and oats of the quality sold by them to the plaintiffs.

Bill in equity, filed December 11, 1878, against the city of Boston and Charles Harris, its superintendent of streets, to restrain them by injunction from constructing the street, called A Street, in South Boston, at grade, over the tracks of the plaintiff’s railroad.

Tort for injuries received by the plaintiffs’ schooner while lying in the defendant’s dock.

<p>An interlocutory decree against an insurance company, appointing a receiver with power to continue the business of the company in the receipt of premiums and the payment of the necessary expenses of the business, and enjoining the company, its officers and agents, from receiving and disposing of the property of the company except to deliver it to the receiver, does not revoke or annul the authority of an agent of the company to receive payment of a premium on a policy issued by the company; and a person who pays a premium to such agent after the issuing of the decree, but before either of them knew of it, cannot maintain an action against him to recover it back, upon a declaration alleging that, at the time of such payment, the defendant had no authority to receive it.</p>

<p>Under the Gen. Sts. c. 99, a lessor is entitled to prove, against the insolvent estate of a deceased lessee, for rent hecoming payable by the terms of the lease, before or after the death of the lessee, up to the time that the claim is presented to the commissioners, but is not entitled to prove any claim for or on account of rent payable in the future.</p> <p>The receipt of money from a third person for use and occupation does not, beyond the amount so received, affect the rights or the remedies of the lessor against the lessee or his estate on the covenants in the lease.</p> <p>The surrender of leased premises by the administrator of a deceased lessee, who has occupied the premises after the death of the lessee, and its acceptance by the lessor, without any reservation of or agreement for a right to sue the administrator, or to prove against the insolvent estate of the lessee, terminates all liability of the administrator or of the estate upon the covenants of the lease.</p>

Contract against the executor of William W. Allen. Writ dated February 26, 1878.

<p>Under the St. of 1873, c. 340, § 4, which provides that “any^person” whose land has been filled up for the abatement of a certain nuisance in Boston, if “ dissatisfied with the assessment of the expense of raising the grade of his said land, may give notice thereof to the city council within six months after such assessment is made, and the city shall thereupon take said land,” a person who has tide by mortgage to such land when the assessment is made, and becomes abso.ute owner by foreclosure within six months after such assessment, may surrender to and require the city to take the land ; and he is not deprived of his right to surrender by.an order of the city council vacating the assessment, nor by the fact that the amount of the assessment is small, nor by a delay of more than two years to bring a petition for a writ of mandamus to compel the city to take the land.'</p>

Tort for obstructing the plaintiff’s right of way over Cedar Square, so called, in Cambridge. Writ dated January 24, 1878.

<p>On a petition for damages for the taking down of a dam in 1871, under the power given by the St. of 1869, c. 378, to secure proper drainage and to abate a nuisance, it appeared that, before 1870, the power at the dam had been supplied by the waters of a pond and of another body of water; that, in 1870, the -waters of the pond liad been taken under legislative authority. The petitioner put in evidence to show that the water-power was still of value after the waters of the pond were taken; and offered evidence of the actual expense of setting up a steam-engine with the necessary buildings and fixtures to supply the power lost by the taking of the pond; and what power the engine gave. Held, that the evidence was properly excluded. Held, also, that evidence of a lease of the premises and of the rent reserved therein, before the taking of the waters of the pond, was properly excluded. Held, also, that a question to a witness, — who testified that he had a mill on the same stream, a short distance below that of the petitioner, and was engaged in the same business, and that, after the waters of the pond were taken, he obtained the same supply, from an aqueduct company, — as to what it cost him to use the waters of the pond, before they were taken, for the same time that he had used the water of the aqueduct company, was rightly excluded.</p> <p>6-n admission made by an administrator in one case is competent evidence against him at the trial of another case.</p>

<p>A bill in equity by the judge of probate, for the benefit of the guardian of a minor, against the executor and the devisees of a surety upon the bond of a former guardian, alleged a breach of the bond, and the death of the surety leaving property, of which more than enough to pay the plaintiff’s Claim was still in the hands of the executor; that this claim and the plaintiff’s right of action did not accrue within two years from the time the executor filed bis bond and gave notice of his appointment, but did accrue within one year before the filing of the bill. Held, on demurrer, that the bill could not be maintained under the Gen. Sts. c. 101, § 84, or the St. of 1861, c. 174, § 2.</p>

Tort for personal injuries occasioned by a defect in a highway in the defendant town. Answer, a general denial.

<p>An agreement, by which a city undertakes with the owners of land taken for a street to submit the assessment of damages and betterments to arbitration, is ultra virf.s and void; and the city cannot maintain an action to enforce an award made under such submission.</p>

<p>Under the Gen. Sts. c. 24, the vote of a town, having a fire department duly established, to appropriate a certain sum for the purpose of paying the members of a private organization, who have not been appointed enginemen under § 14 or § 15, for services rendered to the town as enginemen for the preceding year, is ultra vires and void.</p>

<p>The St. of 1870, c. 293, § 6, providing that any justice of the Superior Court, upon the application of the selectmen of the town of Mashpee, after hearing all parties interested, may appoint commissioners to make partition of “ any or all of the common lands of said town, or of the people heretofore known as the Marshpee tribe of Indians,” and that he may direct that the same or any part thereof be sold, and the proceeds paid over to the treasurer of the town, is constitutional ; and if, upon a petition presented by the selectmen, a sale of a portion of the common lands has been ordered by the court, the selectmen may, while the first petition is still pending, file a second petition for the sale of the lands not included in the order.</p>

<p>On an indictment charging the defendants with conspiring with A. to commit a felony, the defendants admitted certain conversations had by them with A., and put in evidence by the government, tending to prove the crime charged; but testified that they had, while employed by the chief of the detective force of the Commonwealth, been instructed to associate with persons suspected to be criminals, and to lead them along by pretending to concur with them, and, when the necessary proofs had been obtained, to arrest them; and that their conversations with A. were for this purpose; that, although this officer had ceased to hold office for a year, they had been employed by him more or less since, and had pursued the same methods; and that they had no criminal intent. There was no evidence that the defendants had been informed that A. was a suspicious character, or requested to obtain evidence against him. Held, that evidence of the officer who formerly had employed them was inadmissible to corroborate their testimony.</p>

<p>In an indictment on the Gen. Sts. c. 161, § 59, charging the defendant with conveying in mortgage incumbered real estate without disclosing the incumbrance, the allegation that the consideration for the conveyance was the payment of a certain sum of money, is not supported by proof that the defendant, to secure release from arrest, gave a note, secured by the mortgage in question, in settlement of his debt to the grantee and costs of suit thereon.</p>

Indictment on the Gen. Sts. c. 161, § 59, alleging that the defendant, on May 4, 1875, at Maynard, unlawfully and fraudulently conveyed a certain parcel of real estate for a valuable consideration to John Joice, which was then and there incumbered by a mortgage to Simon Tuttle made by the defendant and dated May 2, 1873, without informing Joice of the existence of the incumbrance before payment of the consideration.

Tort, on the Gen. Sts. e. 44, § 22, for personal injuries sustained by the plaintiff on March 18,1876, by falling into an open coal-hole in the sidewalk in front of a public school-house on a highway in Boston. At the trial in this court, before Morton, J., there was no evi dence that the defect had existed for twenty-four hours, but there was some evidence that the cover of the coal-hole was removed by the janitor, or that he knew of such removal, within that time.

<p>Bill in equity, filed October 3,1878, against Amory Leland, Charles H. Allen and the executors of Benjamin E. Bates, to settle the affairs of a partnership. The defendants demurred to the bill for want of equity. Hearing before Ames, J., who sustained the demurrer, and ordered the bill to be dismissed with costs. The plaintiff appealed to the full court. The facts appear in the opinion.</p>

Contract on a promissory note for $3000, dated July 31, 1868, signed by Thomas Corey, the defendant’s intestate, payable in five years after date to the order of John F. Costelo, and by him indorsed in blank. On the margin of the face of the note were these words: “ Given as collateral security with agreement.” Writ dated August 10, 1877.

<p>The president of a savings bank executed a written agreement, by the terms of which the bank, in consideration of a certain sum paid by A. on account of interest due from B. on a mortgage loan upon an estate of which B. was the owner in fee, A. owning the furniture in the house on the estate, and that the taxes for the previous year should be paid by either A. or B., agreed to extend, at B.’s request, for five months, the time of payment of the interest about to become due on the loan. Before the expiration of the five months, the bank entered, and foreclosed the mortgage, and took possession of the estate for breach of condition. The taxes referred to in the agreement were not paid by A. or B., but were subsequently paid by the bank; under an agreement with B. Held, in an action against the bank by A. on the agreement, that, whether or not the bank was bound by the agreement, A. was not a party to it; and that he could not maintain an action upon it, nor recover back, under a count for money had and received, the amount paid by him.</p>

<p>Contract on a promissory note for $500, dated December 29, 1875, signed “Jas. A. Benjamin, Treas.,” payable to the order of the defendant in forty-five days after date at the plaintiff bank, and indorsed by the defendant. Trial at June term 1878 of the Superior Court, without a jury, before Rockwell, J., who reported the case for the determination of this court, in substance as follows:</p> <p>Benjamin kept an ordinary banking account with the plaintiff bank. At "the time of giving the note in suit, he was treasurer of the town of Egremont, and the bank gave him for this note a draft to be used for the payment of a tax due from the town. The note and the proceeds of it were not made a part of his account with the bank, and the bank regarded the note as an official or town matter.</p> <p>On February 15, 1876, when this note matured, all things necessary to charge the defendant as indorser were done. On that day, and ever since, the bank held a note, made by Benjamin, which it had discounted, signed “ Jos. A. Benjamin,” dated November 13, 1875, for $1500, payable in three months after date at the plaintiff bank to one Callender, and indorsed by Callender. And on said February 15, there stood to the credit of Benjamin, as his balance of account, the sum of $381.10, and the same continued so to stand on the books of the bank until about six weeks before the trial, when it was indorsed as of February 16, 1876, on the note for $1500.</p> <p>On February 16, 1876, the day of the maturity of the note for $1500, the president of the plaintiff bank and its principal financial manager, during business hours, told the cashier, if the $381.10 standing to Benjamin’s credit was not drawn out by his checks before the close of business hours, to apply it on the $1500 note; and at the close of the bank for that day, it being found that Benjamin had drawn no checks on said balance, he again directed the cashier to apply it on the $1500 note.</p> <p>On February 19, 1876, during business hours, the defendant brought to the bank a check of Benjamin, made and handed to defendant on that day, and which was as follows: “ South Egremont, Mass., Feb. 15,1876. $381. National Mahaiwe Bank pay to the order of J. A. B. Treas. note 15 inst., three hundred and eighty-one dollars. Jos. A. Benjamin.”</p> <p>The defendant at the same time, acting at the request of Benjamin, tendered to the cashier of the plaintiff bank this check and $120 in money in payment of the note in suit, and demanded the note. The money had been furnished the defendant by Benjamin, but it did not appear that he informed the ‘cashier or the bank of this fact. The cashier declined to receive the check and money, and told the defendant he could not accept the check, because he had been directed to apply the balance of Benjamin’s account on another claim held by the bank, meaning the $1500 note. After this refusal, the cashier did, at the request of the defendant, receive the $120 and indorse the same on the note in suit, it being at the time understood that neither party intended thereby to waive his rights in reference to the check. The $120 have been retained by the bank.</p> <p>It is not the practice of the bank to charge over-due notes held by it to the account of a depositor until he has sufficient credits to pay the note. Benjamin became a bankrupt in the spring of 1876, and died in July or August of that year.</p> <p>Upon the foregoing facts, the defendant contended, as a matter of law, that the plaintiff was not entitled to recover; and the judge so ruled, and found for the defendant. If this ruling was correct, judgment was to be entered for the defendant; but if the plaintiff was entitled to recover, judgment was to be entered for him for the sum of $381.10, and interest from February 16, 1876.</p>

<p>Writ of entry, returnable to the Superior Court, to recover a parcel of land in Stockbridge. Plea, nul disseisin.</p> <p>The case was referred by agreement of parties and rule of court to Andrew J. Waterman as referee, whose award was to be final. The referee made and returned to court an award in favor of the demandant. The tenant moved that the award be set aside on the following ground: “ The referee was interested pecuniarily and as counsel in a similar case,, the case of Spaulding against Barnum, in this court; the cases being similar in these respects, that both were real actions, to try the title of real estate which had been attached as the property of a husband, the title standing in the name of a wife, and the conveyance of the husband alleged to be fraudulent and void as to creditors.”</p> <p>At the hearing upon this motion, before Hoelcwell, J., the following facts appeared: The referee in this case and Spaulding had each a judgment against said Barnum, and each had attached real estate standing in the name of Barnum’s wife, and Spaulding had bought in the same on the executions upon these judgments, and had brought the action of Spaulding against Barnum and wife by arrangement between Waterman and Spaulding, and Waterman acted as one of the counsel in that case, so that the referee was pecuniarily interested, and of counsel in the case of Spaulding against Barnum and wife, in that way. This was not known to the tenants, or their counsel, until after the hearing before the referee in the case at bar. The case of Spaulding against Barnum and wife was commenced in 1877, and was referred by agreement of parties and rule of court to Henry W. Taft as referee, and heard by him on August 15, 1878, but his award was not filed until the present June term 1879.</p> <p>The case at bar was commenced in May 1878, and was heard by Waterman as referee on May 22 and May 27, 1879, and his award was also filed at the June term, and on the same day that Taft’s award was filed. The hearing before Taft was concluded before the agreement and rule of reference in this case. There was no intention to mislead the tenants or their counsel in regard to the relation of Waterman to the case of Spaulding against Barnum; that relation was not intentionally concealed from them, and it was not contended that the referee was chargeable with improper conduct in the hearing before him, or was conscious of any bias or prejudice in the case, or had in his mind any recollection of the case of Spaulding against Barnum at the time he consented to act as referee. There was no evidence of any similarity in the facts of the two cases, but only that they were similar in their nature and objects.</p> <p>Upon these facts, the counsel for the tenants, while disclaiming any imputation of wrong on the part of the referee, contended that, by reason of this personal pecuniary interest on the part of the referee, and as counsel, the award should be set aside; that it was invalid as matter of law; that the inference was plain and direct, and would be drawn by the court, that, if his clients had known of the interest, they would not have agreed upon him as referee, and should not be bound by his award.</p> <p>The judge found, as a fact, that the referee was not actually under any bias; ruled that no cause was shown for setting aside the award; accepted the same; directed judgment to be entered for the demandant; and reported the case for the determination of this court. If the rulings were correct, the judgment was to stand; otherwise, the award was to be set aside, and a new trial ordered.</p>

<p>In an action on a policy of insurance upon a building and upon the goods therein, containing a provision that “ if a building shall fall, except as the result of a fire, all insurance on it or its contents shall immediately cease and determine,” it appeared that the eastern and western halves of the building mentioned in the policy were substantially distinct buildings, separated from each other by a brick partition wall extending from the front to the rear of the building and from cellar to roof, but with doors of communication in each story; that in each of these two parts or buildings, midway between the partition wall and the end wall, there was a beam or girder in each floor, extending from the front to the rear, supported by brick piers in the cellar and by wooden posts in each story, and upon which the joists of the floor rested; that by the giving way of the piers, in the cellar of the eastern half of the building, without the agency of fire, the beam or girder resting thereon fell down near the ground, bringing with it the floors and partitions and roof above, with the goods and merchandise in each story, in a mixed and confused mass, excepting only very small portions of some of the floors and of the roof, and a single case of goods; that only the outer walls of this part, and the brick partition wall, and an elevator in one corner, were uninjured by the fall; that, after the fall, a fire broke out which caused the injury sued for to the goods which had fallen, and to the elevator and surrounding walls, with the doors and windows therein, which remained standing; and that the west half of the building remained in all parts undisturbed and uninjured. Held, that the action could not be maintained.</p>

Contract on an account annexed for intoxicating liquors sold and delivered. Answer: 1. A general denial. 2. That the goods were sold in violation of law. Trial in the Superior Court, before Putnam, J., who allowed a bill of exceptions in substance-as follows : The plaintiff contended that he sold the liquors to the defendant on the account of Patrick Bulman, upon the defendant’s original promise to pay for them.

<p>A. and B. were members of a partnership. A. retired, and B. executed to him a bond of indemnity against all debts of the firm. A creditor of the firm recovered judgment against both A. and B. B. filed a petition in bankruptcy under the U. S. St. of March 2, 1867, and obtained his discharge; and A. subsequently paid the creditor a sum of money in settlement of the judgment. Held, that his claim against B. on the bond was provable under § 19 of the bankrupt act, and was barred by B.’s discharge.</p>

Tort. The declaration contained eight counts. The second count for libel was as follows : “ And the plaintiff further says, that the said defendant made and published and filed and caused to be filed in the office of the clerk of the Supreme Judicial Court in and for the county of Suffolk, and made a matter of public record in said court, a false and malicious libel concerning the plaintiff, a copy of which is hereto annexed, and therein falsely and maliciously charged the…

Contract with a count in tort, against the defendant as a common carrier, for the value of a package of merchandise, not personal baggage, entrusted by the plaintiff, a pedler, to the defendant, to be transported over the defendant’s railroad from Boston tb Maynard.

<p>The entry of judgment in an action by A. against B., by a court having jurisdiction of the subject-matter and of the parties, after the death of B. upon a default by him in his lifetime, without knowledge of his death, will not avoid the judgment, if otherwise valid; and such judgment is pleadable in bar of a suit for the same cause of action by A. against the administrator of B.; and a memorandum by A.’s attorney on the execution issued on the former judgment, upon the return of the execution to the files of the court, that no service of the execution had been made and that the execution was inoperative and void, is no part of the record, and is inadmissible in A.’s favor to impeach the former judgment.</p>

<p>(L cover, made partly of glass and partly of iron, forming a portion of the surface of a sidewalk in a city, and so changed by wear as to become smooth and slippery, on which a traveller, using due care, slips and falls solely by reason of its smoothness, cannot be held, as matter of law, not to be a defect in a highway, for which the city is liable under the Gen. Sts. c. 44, § 22.</p>

<p>Bill in equity by the trustees under the will of Thomas L. Winthrop, who died in 1841, to obtain the instructions of the court. After the decision reported 122 Mass. 535, the bill was amended; and the case was heard by Morton, J., and reserved for the determination of the full court. The facts appear in the opinion.</p>

Contract. The .declaration alleged, that the defendants agreed to purchase of the plaintiff, at a certain price, two thousand hides, to be delivered at a railroad depot in Boston; that the plaintiff delivered the hides as agreed, and the defendants refused to accept them; and that the plaintiff was obliged to sell the hides at a reduced price, whereby a cause of action had accrued to the plaintiff.

<p>Three policies of insurance against loss or damage by fire were made upon a stock in trade, described as contained in a certain building. The first policy provided that, if any property insured was “ damaged by explosion from any cause, this company is not liable unless fire ensues, and then for the loss or damage by fire only.” The second policy provided that the company should in no event be liable "for any damage caused by the explosion of gunpowder on storage, or a steam-boiler, except so far as the property after the explosion shall be destroyed by fire.” The third policy provided that the company should not be liable “for any loss caused by the explosion of gunpowder or any explosive substance, nor by lightning or explosions of any kind, unless fire ensues, and then for the loss or damage by fire only, which loss shall be determined by the value of the damaged property after the casualty by explosion or lightning;” and also provided that, “if a building shall fall, except as the result of a fire, all insurance on it or its contents shall immediately cease and determine.” By a sudden combustion of inflammable gas an explosion took place in one of the upper stories of the building, blew outward the larger portion of the walls on two sides, and caused the instantaneous fall of the roof, the interior partitions and the contents of the rooms, including a stove with a coal fire burning therein, in a mass of ruins upon the assured’s shop in the lower story; and, immediately after the explosion and fall, a fire, kindled by the burning coals from the stove, broke out in the fallen ruins, and destroyed his stock to the amount insured by all the policies. ' Held, that each insurer was liable for'the injury to the plaintiff’s goods by the fire which broke out immediately after the destruction of the building.</p>

<p>A. and B. entered into a contract for the sale and purchase of certain goods, to he shipped from a foreign port in twelve equal monthly shipments, and each shipment to be considered as a separate sale or contract; the buyer to have the right to retest the goods; sound packages to be accepted, and damaged packages, if any, to be rejected on the wharf. Eleven of the shipments were duly delivered and received. The goods composing the twelfth shipment were consigned to A. by the firm of which he had purchased them by one of a line of steamships, common carriers between the foreign port and the port where B. did business. The bill of lading, indorsed in blank, and the invoice, were received by A. by mail, and, upon the arrival of the steamship, were deposited by A. at the custom-house, and he received a permit, stating that the duties on the goods had been paid, and giving permission to deliver them, and, on payment of the freight, received from the agent of the steamship line a certificate of such payment stating that the consignee was entitled to delivery. The permit and certificate, with a written order from A., addressed to the steamship, for the delivery of the goods to B., were delivered by A. to a teamster, who was employed by B. and had orders from B. to cart away from the wharves all his merchandise whenever it should arrive, and had so carted away the eleven previous shipments. The teamster presented these papers to the delivery clerk of the steamship line, who informed him that the goods in question had not come out, but would probably be out in a day or two. He had not seen the goods, but supposed that they were there because they were on the bill of lading. On the next day, the goods, being still in the hold, were attached by an officer on a writ sued out by a creditor of A., and, on the same day B. paid A. for the goods. Had' the goods been on the wharf, the teamstei would have been allowed to remove them on giving up the papers which he held, according to the custom in such cases. Held, in an action of replevin .against the officer, that the jury would be warranted in finding a symbolical delivery of the goods, sufficient to perfect the title of B. as against the attaching creditor.</p>

<p>Contract. Writ dated May 25, 1868.</p> <p>At the trial in the Superior Court at April term 1878, before Putnam, J., the plaintiff and the defendant both testified to a conversation which took place between them upon a matter material to the issue, the plaintiff testifying that at that interview the defendant expressed his satisfaction with the work, and said he had a check with him which he would give in payment for the work if the plaintiff would sign a paper agreeing to get the vessel off by the 1st of June; and the defendant denying this. The plaintiff then called Isaac Gr. Reed, for the purpose of proving what one Edward Jackson, a witness, had testified at a former trial of this case in October 1869, Jackson having since died. Reed testified that he was a member of the bar, and took minutes of the testimony for the plaintiff at the former trial; that he took down all Jackson said so far and as fast as he could, not taking some parts of it, but all he considered material; and that his whole testimony was in relation to this conversation between the plaintiff and defendant. The defendant objected to Reed’s stating what Jackson testified, because he did not know whether he took full notes or not; but the judge ruled that that was immaterial, as the witness could not be allowed to testify from his notes, but that if the witness, refreshing his memory from such notes as he had, could state the exact testimony, he might do so. The witness said that he could not testify word for word to what Jackson said, but would give the substance of the words; just the words he used, or the order in which he used them, he could not give. The witness was permitted to testify, against the defendant’s objection, that Jackson’s words were substantially these: that he was present at the said interview, that Lunt came in with a paper in his hands which he wanted Costigan to sign, that the date, June 15, was erased and June 1 was written in, that Costigan read it and handed it back and refused to sign it, and that Lunt then said if he would sign it he had a check there to pay him. The witness also testified that he thought these were his exact words.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Petition to the Superior Court for a jury to assess the damages sustained by the petitioner by the taking of her land by the respondent in constructing and maintaining its water-works under the St. of 1872, o. 343.</p> <p>At the trial, before Putnam, J., it appeared that the petitioner was the owner of a tract of about fifty-one acres of land on Cow Island, in that part of Boston formerly West Roxbury, and bordering on Charles River. On June 16, 1874, the town, acting under the provisions of said act, took seven acres of the land, being a strip two hundred feet in width, extending across the entire tract, and on January 25, 1875, the petitioner conveyed the same to the town, reserving in her deed the right of way across this strip to connect her remaining land. The town determined in 1874 to obtain, and has ever since obtained, its supply of water from this strip of land. Prior to May 1875, the time of the taking set forth in this petition, the respondent had built on this strip of land a filtering gallery, from which large quantities of pure water were daily pumped to a reservoir in the town from which they were distributed. There was evidence tending to prove that the water in the filtering gallery came wholly from the adjoining land by percolation, and not from the river.</p> <p>The petitioner contended that a portion of the meadow-land embraced in this taking was not only valuable as a source of water-supply to neighboring towns like Dedham and Needham, which had no water-supply, but was essential to Brookline in order to protect; or, if necessary, to extend its own water-supply. Upon this part of the case, they called Edward Sawyer, an experienced hydraulic engineer, who testified that he had been employed by various cities and towns for the purpose of providing water-supply, and had been employed by the town of Brook-line to make preliminary examinations for its own supply, and that he was familiar with the land in controversy; that a certain portion of the same was valuable as a source of water-supply, and had a capacity, in his opinion, of 500,000 gallons daily, and that he knew what was paid for such lands. He was then asked by the petitioner the following question: “ Taking into account all the demands from any source, and all the requirements from any source that were, in your judgment, reasonable and probable at that time, can you form an estimate of what was the fair value of that low land as a source of water-supply at that time, and if so, what was it? ” To which he answered, “ A man might reasonably expect to get $4000 or $5000 for it as a source of water-supply.” No objection was taken to this question and answer. The petitioner then asked him the following question: “ Taking that tract of two hundred feet in width in which the filtering gallery now is, and assuming that the owners of the adjoining land should dig filtering galleries or wells at a lower level upon that adjoining land and should draw down to that lower level, what in your judgment is the' capacity of that filtering gallery for a supply of water ? ” To this question the respondent objected, and the judge excluded it. The petitioner then asked the witness the following question : “ What would be the effect, in your judgment, of sinking wells or filtering galleries, similar to what there are now upon this two-hundred-feet tract, upon the adjoining land of the petitioner, and drawing the water down to a level below that of the filtering gallery ? ” This question was also objected to by the respondent, and excluded.</p> <p>The petitioner called Cyrus Gaboon, who was admitted as an expert on the subject of cranberry culture, and who testified that the meadow-land included in the land taken was suitable for raising cranberries, and was capable of producing one hundred barrels of cranberries to the acre, and as to the expense necessary to prepare the land for raising the crop. The petitioner then asked him what was the market value of cranberries in May 1875. The judge, upon the respondent’s objection, excluded the question. The witness was then cross-examined by the respondent’s counsel, who asked him whether the price of cranberries was lower now than it was in 1875, to which he replied that it was. The petitioner, on reexamination, then asked him what was the price in 1875, to which the respondent objected. The judge excluded the question.</p> <p>The respondent called Francis Marsh, who testified that he owned meadows in Dedham which were, in his opinion, about the same thing as the petitioner’s land; equally as good as that for the purpose of raising cranberries; that he had made an examination of the lands in controversy sufficient to know about them as to their quality, and that within three or four years he had sold fifteen acres of his land in Dedham. It appeared that these meadows were within half a mile of Charles River, that the land of the petitioner was on one side of the river, and Dedham on the other; but it did not appear in what part of the town they were situate, or how near the petitioner’s land, nor any other fact relating to them except as above stated. The respondent then asked the "witness the price for which he made the sale. The petitioner objected, but the judge admitted the question.</p> <p>The respondent offered to prove that, at the time of the taking, the petitioner’s land was largely covered with standing trees, and that since that date the petitioner had cut off a portion of the same and had sold and received the proceeds of the same, and offered evidence as to the value of the wood so taken. The petitioner objected to the admission of this evidence as immaterial. The judge ruled that in the existing state of the pleadings it might be inadmissible, but suggested that the respondent might amend its answer. The respondent thereupon filed an amended answer, setting up the above facts, and averring that the proceeds of the wood “ should go in diminution or recoupment of, or set-off to, the petitioner’s claim or demand.” The petitioner objected to the allowance of the amended answer, but the judge allowed it. The respondent then offered the above testimony in support of the amended answer, and the judge admitted the same on the ground that the testimony of some of the witnesses was of the value of the land with the wood upon it in May 1875. Upon this point, the judge instructed the jury that if, in estimating the damages for the taking of the land in May 1875, such estimate included the value of the land with the wood then upon it, the value of the wood subsequently taken should go in reduction or diminution of such damage.</p> <p>The jury returned a verdict for the petitioner for less than the amount claimed; and she alleged exceptions.</p>

<p>If, in an action on a promise to pay the debt of a third person, the defendant’s exception to a ruling that the case is not within the statute of frauds, is sustained by this court and a new trial granted, it is open to the plaintiff at the new trial to put in evidence, other than that introduced at the first trial, to take the case out of the statute.</p> <p>If a declaration contains more than one count, and the plaintiff at the trial obtains a verdict on one count only and waives the others, and the verdict is set aside by this court on the defendant’s exceptions, the plaintiff is not precluded at the new trial from putting in evidence in support of the counts previously waived.</p>

Contract. After the decision reported 120 Mass. 421, the Superior Court ordered the statement of facts, on which the case was argued before this court, to be discharged, and the case to stand for trial. See 124 Mass. 353. The case was then tried; the jury returned a verdict for the plaintiff; and the defendants alleged exceptions, the substance of which, and of the pleadings, excepting the fourth count, sufficiently appears in the opinion.

<p>Petition to the Superior Court for a jury to assess the damages sustained by the petitioner by the taking by the respondent of a parcel of land containing sixty-three and one half square feet for the purpose of widening a street. The land taken is shown on the plan printed in the margin,* being the small triangular piece enclosed in dotted lines, and marked A. Samuel N. Brown and others also filed a petition alleging that they were owners of the lots of land marked 1 and 2 on the plan, and had, as appurtenant to their lands, rights of way over the land taken by the respondent, and prayed for leave to join in the petition of the Boston Water Power Company, and to have their damages assessed by the same jury. The case was submitted to the Superior Court on the following agreed facts:</p> <p>On June 8, 1868, the Boston Water Power Company, being then the ownc r of the land in question, sold by public auction a large number of lots of land lying westerly of Dartmouth Street and northerly of St. James Avenue; and among them the lots marked 1 and 2, these lots being then unfilled flats. At the time of the sale, St. James Avenue was not filled and graded westerly of Dartmouth Street, but from Dartmouth Street easterly it was filled to the established grade; the other streets and avenues shown on the plan westerly from Dartmouth Street were not filled; Dartmouth Street, and the streets and avenues shown on the plan easterly from Dartmouth Street, were filled.</p> <p>The deed of lot 1 described this lot by metes and bounds, and bounded it by St. James Avenue, Huntington Avenue, Dartmouth Street, a passageway and by lot 2. The deed of lot 2 described this lot by metes and bounds, and bounded it by St. James Avenue, by lot 3, by a passageway, and by lot 1. The deeds of these and of the other lots referred to a certain plan recorded with Suffolk Deeds. This plan showed the length of all the lines of the lots west of Dartmouth Street and their contents. The plan printed in the margin is a copy of a portion of this plan. The large triangular piece enclosed in dotted lines, and including the land taken, did not so appear in the original or in the copies used at the auction sale, but this space was not represented as enclosed at all.* Brown and the other petitioners who seek to join hold their title by mesne conveyances from the purchasers at the auction sale, and have all their rights. The Boston Water Power Company had been the owner of all the land shown on the plan situated easterly from Dartmouth Street and southerly from the passageway, marked twenty-five feet wide; and had previously to June 8, 1868, sold all of its land easterly from Dartmouth Street, except the lot enclosed in dotted lines and the small triangular lot lying westerly of it, and except the streets shown on the plan, which it subsequently conveyed to the city of Boston.</p> <p>If the court is of opinion that the owners of lots 1 and 2 are not entitled to a right of way, judgment is to be entered for the Boston Water Power Company for $200, without costs, and the petition to join is to be dismissed, without costs; but if the court is of opinion that the owners of lots 1 and 2 are entitled to a right of way over the premises, judgment is to be entered for the Boston Water Power Company for $1, without costs, and for such owners for $1, without costs.</p> <p>Brigham, C. J., ruled that the owners of lots 1 and 2 were entitled to a right of way over the land taken, and ordered judgment to be entered accordingly. The Boston Water Power Company appealed to this court.</p>

Contract to recover the amount of a tax assessed by the defendant city upon the real estate of the plaintiff, on May 1,1875, and paid by the plaintiff under protest. The case was submitted to the judgment of this court upon an agreed statement of facts, the substance of which appears in the opinion.

Tort for the conversion of a horse. The defendant,' a constable, justified' under a writ against Margaret C. Dempsey, the plaintiff’s mother, by virtue of which he attached and sold the horse as her property.

<p>A. procured a policy of insurance against loss by fire " on his dwelling-house." He had previously conveyed the land, on which the house stood, by warranty deed, to B., to secure the latter from liability as a surety on a recognizance, B., at the same time and as part of the same transaction, giving A. an instrument of defeasance, which was not recorded. A loss by fire occurred, and the land was subsequently reconveyed to A. Held, that A. had an insurable interest; that, in the absence of any provision in the policy that the interest of the assured should be particularly described, the description in the policy was sufficient; and that a statement by him in his proof of loss that “ the property belongs exclusively to me, and no one else has any interest therein,” did not avoid the policy.</p>

<p>Contract on a promissory note for $975.24, dated August 10, 1875, signed by the defendant, payable to the order of Robert W. Dresser & Co., and by them indorsed.</p> <p>At the trial in the Superior Court, before Bacon, J., it appeared that, on September 18,1875, Robert W. Dresser & Co. borrowed of the plaintiff the sum of $3000 and gave him their promissory note therefor; that, at the same time, they delivered to him, as collateral security for the loan, three other promissory notes, one of which was the note of Hamlin & Co. for $1826.17, and the other two the notes of the defendant, one of which is the note in suit; that the last two notes were accommodation notes, but the plaintiff did not know this when he took them, and only became aware of it after the first one, not the one in suit, matured; that, on November 29, 1875, the plaintiff received from Dresser & Co. the sum of $500, for which he gave a receipt, promising therein to pay the sum received on demand; and that Dresser died on December 1, 1875.</p> <p>The plaintiff, being called by the defendant, testified that, on February 2, 1876, he received from George P. Baldwin a check for $913, which was subsequently paid, and in consideration thereof made and delivered to Baldwin the following instrument: “Boston, Feb. 2, 1876. For one dollar and other valuable consideration, I hereby release Hamlin & Co. of Norwich, Conn., of all demands on account of a note signed by Hamlin & Co. dated Norwich, Conn., Aug. 21st, 1875, four months after date, to order of Robt. W. Dresser & Co., for eighteen hundred twenty-six and seventeen one-hundredths dollars. Wm. H. Guild.” The plaintiff objected to the admission of this paper as a release, on the ground that it was not under seal, and that it was immaterial for any other purpose. But the judge admitted it. The plaintiff testified, on cross-examination, that he placed the note of Hamlin & Co. in the hands of his attorney, for collection; and that he received nothing upon said note beyond the above $913.</p> <p>The plaintiff further testified that, a short time before the defendant’s notes matured, he put them in a bank, for collection; and, upon notice from the defendant, he produced the following letter to the president of that bank: “Boston, Dec. 8, 1875. Sir: I have a notice of a note due at your bank to-day also one of 13th inst. Both of them I must decline to pay at maturity, I have no doubt they are left with you for collection; the owner of them is unknown to me, but said notes were borrowed by my friend Robert W. Dresser, Esq., whose lips are now sealed, but borrowed to be used as a margin in connection with a loan where there were other securities ; and I propose not to pay said notes until I know more about them. Yours very truly, Alford Butler.”</p> <p>There was evidence tending to show that the plaintiff received this letter before February 2, 1876, the date of his transactions with Baldwin in regard to the note of Hamlin & Co. The plaintiff objected to the admission of this letter. The judge admitted it in evidence for the purpose of showing the plaintiff’s knowledge that the above notes were accommodation notes.</p> <p>The plaintiff asked the judge to instruct the jury as follows: “1. If the jury find that the plaintiff took the two notes, signed by the defendant, as collateral security,' together with the note of Hamlin & Co. for his loan of $3000, without knowledge, at the time, that they were accommodation notes, and supposing them to be business notes, they would be business notes in his hands to all intents and purposes; and no notice to the plaintiff afterwards that they were accommodation notes would change 'their legal character. 2. If the plaintiff did not know, at the time he took the notes in suit, that they were accommodation notes, the defendant does not stand in the situation of surety by virtue of the actual accommodation character of said notes. 3. The burden of proof is upon the defendant to show that, if the note of Hamlin & Co. was released as to the makers for any less than its face, the plaintiff obtained less than he might have done, and that the defendant was damaged thereby; that the presumption of fact would be, in the absence of all testimony on the topic, that the plaintiff obtained all he could therefrom.”</p> <p>The judge declined so to rule; and, with other instructions not objected to, instructed the jury as follows: “ The plaintiff is entitled to a verdict for only so much of the notes in suit as is necessary to satisfy the balance of the debt for the security of which he received them, after deducting the amounts, if any, which he has received thereon. If the plaintiff knew, when he released Hamlin & Co. from their note, if he did release them, that the defendant made the note in suit for the accommodation of Dresser & Co., then he must account for the full amount of the Hamlin note, unless he satisfied the jury that it was not worth its face. It- is not sufficient for him to prove that he acted in good faith, but he is bound to prove all the facts and circumstances in reference to which the compromise was made, and that the compromise has not been prejudicial to the defendant. If the jury find that the plaintiff knew, when he released Hamlin & Co. from their note, that the defendant made the notes in suit for the accommodation of Dresser & Co., then their verdict must be for the balance of the debt of Dresser & Co. to him, after deducting the payment of $500, if it was a payment on the $3000 note, and the full amount of the Hamlin note, unless the plaintiff has proved that the Hamlin note was not worth its face.”</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

Contract on a witnessed promissory note for $1400, dated July 12, 1867, signed by the defendant, payable to the plaintiff in yearly instalments, with interest semiannually. In the margin of the note was the following: “ Secured by condition in deed of land in Milton, recorded in Norfolk Registry.” Writ dated December 18, 1877.

<p>Under the Gen. Sts. c. 130, §§ 3, 7, a plaintiff’s demand for unliquidated damages is not the subject of set-off.</p> <p>Tc an action for breach of contract, for refusing to accept paving stones on delivery, it is error to rule that, if there was no market value of the stones at the place of delivery, a bridge in a city, the difference between the cost of delivering them there and the contract price would be the measure of damages, there being evidence of a market value of the stones in the city.</p>

<p>Contract for money paid. The declaration alleged that A. S. Smalley made a promissory note for $2500 to the order of A. S. Foss, and the plaintiff and the defendant signed the note as joint sureties for Smalley; that, in May 1878, Foss recovered judgment against Smalley, the plaintiff and the defendant, in the sum of $2818.38; that said sum, with the expenses accruing upon the execution thereon, amounting in all to the sum of $2884.77, was collected of the plaintiff; that the note was secured in part by certain bonds, which the plaintiff received upon the settlement of the execution, and sold for $500; and that the defendant owed the plaintiff $1192.38. The answer contained a general denial; admitted that a note was executed, in form similar to that set forth in the declaration, but denied that the defendant signed it as joint surety with the plaintiff. Trial in the Superior Court before Brigham, C. J., who reported the case for the determination of this court, in substance as follows:</p> <p>The plaintiff put in evidence the record of an action brought by A. S. Foss against A. S. Smalley, Thomas Newcomb and Nehemiah Gibson, on a promissory note signed by Smalley, payable to the order of Foss, and with the names of Newcomb and Gibson on the back thereof, on which the defendants were defaulted, and judgment recovered on May 3, 1878, for the sum of $2800 debt, and $18.38 costs of suit; which judgment the plaintiff satisfied on May 23, 1878, by paying the sum of $2943.78.</p> <p>The defendant contended that, if liable at all, he was liable only for one half of the judgment and interest, and not for one half of the costs, which included sheriffs’ fees and taxable costs; and put in evidence of the following facts: The note described in the declaration was the last of four notes made by Smalley, and indorsed by the plaintiff and defendant, each for the sum of $2500, which were renewed from time to time. The first of these notes, dated December 22,1874, was discounted by the Maverick National Bank, of which the defendant was president. The defendant received no consideration for his indorsement of the several notes, but indorsed them, upon the solicitation of Smalley, to comply with the usages of the bank in discounting notes, and as an act of friendship to Smalley, who received all the proceeds thereof and paid no part of the same to the defendant. At the time the first note was discounted, Smalley delivered to the bank $2000 in bonds of the city of Cairo, 111., and $1000 in bonds of Lawrence, Kansas, which were lent by the plaintiff to Smalley, to enable him to procure money by using them as collateral security for a loan of money for Smalley’s use. Smalley had given to the plaintiff security for the bonds and other indebtedness, and other bonds lent, by a mortgage, with policies of insurance, on a vessel, on December 8, 1874, which mortgaged property was afterwards sold, and the plaintiff received the proceeds thereof. The state of the accounts between Smalley and the plaintiff, on the plaintiff’s payment of the judgment, and at the time of this trial, did not appear by the evidence, but it did appear that such accounts had not been settled. Smalley agreed to pay the plaintiff two per cent for the use of the bonds, if he could procure money on them for seven per cent. Before the first note became due, Foss purchased it of the bank, and received "with it the bonds. The interest of the notes, as they successively became due, was paid by Smalley or by the plaintiff. The plaintiff, by permission of Foss, who then held the bonds, collected some of the coupons of them. The plaintiff called upon the defendant to pay one half of the last note, but the defendant refused to do so, denying his liability. The plaintiff, in rebuttal, offered 'evidence tending to prove that on satisfying the judgment he received the bonds of Foss, and sold them for $500.</p> <p>The judge ruled that, upon the above facts, the plaintiff was entitled to recover the amount claimed, less the value of the bonds, and submitted to the jury the question only of the value of the bonds, giving instructions upon that matter to which neither party made objection. The jury found the value to be $500; and the judge ordered a verdict for the plaintiff for the amount claimed in the declaration, and interest.</p> <p>If the ruling was erroneous, a new trial was to be ordered; otherwise, judgment on the verdict.</p>

<p>A- gave a note secured by mortgage of land to B., and then conveyed the equity of redemption to C., who assumed payment of the mortgage. The note and mortgage were then assigned by B. to D., to whom afterwards another mortgage of the premises 'made by C. came by assignment; and, subsequently, I), took from C. a quitclaim deed of the premises, with special covenant of warranty against all persons claiming under him, and a covenant that the premises were free from all incumbrances made by him, except the second mortgage. Held, in an action on the note by D. against A., that the note and first mortgage were not extinguished; and that evidence of the value of the premises was immaterial.</p>

<p>The question whether a written agreement, executed by one of two trustees under the will of the lessor, and by the lessee, is effectual to terminate a written lease, is not open to the trustees, on a report which states that it was admitted at the trial that the trustees and the lessee made the agreement.</p> <p>G., the lessee of an entire building, who was bound to make outside repairs, and who had the right to terminate the lease at a future day, gave notice to P., the lessor, of his intention to terminate it, and the parties thereupon entered into an agreement, three months before the lease would under the notice have expired, which provided that the lease should terminate at once; that G. assigned to P. all sub-leases of any part of the leased premises; that G. “is made agent” for P. “ to lease and collect rents and have general care and charge ” of the building for one year and three months, to furnish porterage, water, steam heat and gas, and make inside repairs, but not to contract liabilities in behalf of P.; that for his services “ as such agent,” during the first three months, he should receive no compensation, and should guarantee that P. should receive during that time the same net rent, excluding taxes, as though the lease was not terminated; that for the year, after the three months, P. should receive the gross rents, and G. should receive a certain percentage of the rents actually collected, and a certain sum in addition, in full for expense of water, gas, steam heat, porterage and inside repairs; and that G. was not to be bound to repair damages caused by fire, extraordinary casualty, defective construction of building, or by want of outside repairs, nor to furnish gas or janitor within any rooms or offices leased. Held, that P. was not liable for an injury, during the three months, caused by the negligence of a servant of G. in leaving open a coal-hole opening from the sidewalk in front of the building to the cellar.</p>

<p>Under the St. of 1874, c. 97, giving the right to the city of Somerville to take land for a public park, and to assess a proportionate share of the cost and expense upon real estate benefited thereby, and giving the same rights to owners to surrender their estates as is provided by the St. of 1871, c. 382, no surrender can be made of an estate not abutting on the park; and an estate opposite the park, and separated from it by a county road, is not an abutting estate.</p> <p>Where, under the St. of 1874, c. 97, part of an estate is taken by a city for a public park, and a betterment assessment is levied on the remainder, the owner cannot surrender such remainder, if he has settled for the part taken, and conveyed it to the city by a warranty deed.</p> <p>Where a statute gives a city the right to take land for a public use, and to assess a proportionate part of the cost upon estates benefited thereby, and gives in each case a right of appeal to a jury, a party interested has no constitutional right to a hearing before the city authorities on the question of the necessity of taking his land, or on the question whether his land is benefited.</p> <p>A city, authorized by statute to purchase or otherwise take land for a public park, may purchase the fee of the land.</p> <p>It is no objection to the validity of a betterment assessment, that the order levying it did not receive, in either branch of the city council, two several readings, as required by the rules of the city council.</p> <p>A betterment assessment was laid by a city council within the time prescribed by law; after this time expired, an order was passed by the city council to the effect that payment of a certain percentage, varying according to locality, of the sum assessed, within a certain time, should he a discharge, and that the collector enforce the original assessment after that time. After the expiration of this time, certain persons whose lands had been assessed filed a petition for a writ of certiorari to quash the proceedings of the city council. Held, that the order modifying the original assessment afforded no ground for issuing the writ. ,</p> <p>The St. of 1874, c. 97, gave the city of Somerville the right to take land for a public park, and provided that the city council might, if in its opinion any real estate in the city received any benefit or advantage from the park, beyond the general advantages to all real estate in the city, adjudge the value of such benefit and advantage to any such real estate, and assess upon it a proportional share of the cost and expense of the park to'the extent of one half the adjudged benefit. Held, that the statute was constitutional.</p>

<p>Appeal by the executors of the will of Frederick May from a decree of the Probate Court disallowing the will. Trial before Lord, J., who allowed a bill of exceptions in substance as follows:</p> <p>The case was'tried in this court upon the following issues: 1st. Whether the alleged will was duly executed. 2d. Whether Frederick May, at the time of the execution of the will, was of sound and disposing mind and memory. 3d. Whether he was unduly influenced to make the alleged will. 4th. Whether he ever revoked the same. 5th. Whether he was unduly influenced to revoke the same.</p> <p>1. The testator was under guardianship as an insane person from 1844 to the time of his death. The will offered for probate was dated July 14, 1870; and the alleged revocation took place in September 1874. It appeared in evidence on behalf of the appellants that, in the summer of 1874, a petition, signed and prosecuted by Sarah E. Skinner, (one of the persons charged with exerting undue influence in the making of the will and also in procuring a revocation of said will,) but afterwards signed also by Frederick May, had been presented to the Probate Court, for the removal of his guardian, Frederick W. G. May, and an answer thereto filed by said guardian; that a trial had been had thereon in that court, and the petition was dismissed and an appeal taken. The petition and answer were offered in evidence by the appellants. The petition was admitted without objection, but the appellees objected to the admission of the answer. The appellants claimed the right to show what the issue made up and tried in that proceeding was, and how far the will produced there at the call of the ward, and alleged to have been there revoked by him, was legitimately the subject of investigation. Frederiek W. G. May was one of the executors named in the alleged will, had children named as legatees in the will, and was one of the persons specified in one of the issues as having procured the will through undue influence. The answer contained various allegations by the guardian as to the character and conduct and treatment of Frederick May. It appearing that Frederick May erased his signature from the will, in open court, in the course of the hearing upon the petition, and the appellants claiming to have introduced evidence, from which the jury might infer that the whole proceeding for the removal of the guardian was a contrivance for the purpose of getting at and destroying the will, the judge admitted the answer in evidence, to show the issue in the Probate Court, and to exclude the idea that in any legitimate manner the will could have then been the subject of investigation.</p> <p>The report of the examination of Frederick May at the hearing in the Probate Court was put in by the appellees, read in full to the jury, and used in the examination of their medical experts. The report of all the acts and declarations of the testator, and of all that took place at the erasing of the signature, was put in by the appellants, and the same was commented upon by the counsel of both sides, as part of the res gestee, and the jury was permitted to consider it as such. The counsel for the appellees afterwards, during the charge to the jury, contended that the statements made by the testator in a private examination of Frederick May by the judge of probate, during this hearing, were also part of the res gestee, and competent to prove the facts stated.</p> <p>2. On the question of Frederick May’s soundness of mind, the appellees called, as expert witnesses, several persons, who were superintendents of hospitals for the insane, and who attended the trial and heard the testimony offered on both sides. By the direction of the judge, these witnesses were interrogated upon hypothetical cases based upon the evidence. The counsel of the appellees had inquired, upon certain facts assumed, “What is your judgment upon the question, whether this man was or was not of sane mind?” and one of these witnesses had replied, “My opinion is, he had an unsound mind;” and “Whether he was competent to transact the general, ordinary business of life?” and the witness had replied, “In my judgment, not.” The counsel for the appellees then framed a hypothetical case, and inquired of the witness, “Whether, assuming the facts stated in such case to be true, the said Frederick May was competent to make a will ? ” The appellants objected, and the objection was sustained by the judge.</p> <p>3. The appellants called Mrs. Catharine Stanwood as a witness ; and she was asked whether Miss Skinner ever talked to Frederick May about a will. The witness having answered in the affirmative, the appellants proposed to ask her what Miss Skinner said. The appellees objected, on the ground that it was offered to show undue influence, a matter with which the heirs at law had no connection. The judge ruled that, upon the question of the testator’s general testamentary capacity, anything that was said to him or by him was admissible. The witness was then asked, “ What, if anything, did Miss Skinner say about a will to Mr. May, the ward, when you were present? ” and made the following answer: “ He turned to her and said, ‘ Sarah, I am going to make a will and leave you $20,000.’ She whispered to him. He told me, she said she wanted the whole or none. Then I heard her say, ‘ Have n’t I done everything I could for your comfort and happiness?’ He said, ‘I thought so;’ and she replied, 6 Yes, I have; a great deal more than I ought to have done.’ ”</p> <p>4. The appellants contended, that certain declarations of the testator, made after the alleged revocation of the will, were admissible under the rule laid down in Shailer v. Bumstead, 99 Mass. 112; and inquired of a witness, Mrs. Stanwood, what Frederick May said to her about the will on December 3, 1874. The appellees objected; but the question was allowed by the judge, and the witness answered, “ Mr. May said, 6 She (Miss Skinner) told me to scratch my name out.’ I said, ‘Did you feel that you must do as she told you?’ He answered, ‘Yes. Perhaps you cannot understand it, but I always felt that what she said I must do. When she turned me out of her house, and told me to go, the time I went to Bennett’s, I knew there was no use of Baying anything; I went; and it was always so. What she said I must do, I must do.’ ” Upon calling the attention of the judge to this declaration, and others of a similar character made to another witness the day after the alleged revocation, for instruction in the charge to the jury, the presiding judge said, “ These statements, and those made before the judge of probate and at other times, are not evidence to prove facts; they are not evidence to prove that somebody helped him to make the will; but they are competent evidence to show the condition of his (the testator’s) mind at the time; also what his testamentary capacity was. Only in this view are they competent, and therefore, whatever he said about the revocation or about the making, when they are recital of facts afterwards, they are not competent to prove the fact stated.”</p> <p>5. Frederick W. Gr. May, who had been the guardian of Frederick May for some years, but was not an expert, was asked the following question by the appellants: “Whether you ever observed, in all this long period, anything in Frederick May which led you to infer in your own mind, in common parlance, that he was a crazy or cracked man.” The appellees objected; but the question was allowed by the judge, with this explanation: “I put it upon this ground; I want you to understand it precisely; the question is, whether he ever observed any fact which led him to infer that there was any derangement of intellect.” The witness answered: “ ISÍo, I don’t recall anything of that sort now; he was the better for advice and guidance, like many another man. I never saw any crazy act. His temper would sometimes make him excitable, very irritable; but any absolutely crazy act or speech I don’t recall, nor anything approaching to it, now.”</p> <p>The judge instructed the jury upon the whole case, and no exception was taken to the instructions. The jury found in favor of the" appellants upon the first four issues, and made no finding upon the last issue. The appellees alleged exceptions.</p>

<p>Indictment for burning the barn and shed of John C. Munson in Great Barrington, in the night-time of September 11, 1876. Trial in the Superior Court before Rockwell, J., who allowed a bill of exceptions, the material parts of which were as follows:</p> <p>Charles U. Surner, who had been indicted, tried and convicted of burning the same buildings, and was in custody awaiting sentence, and was admitted to have been an accomplice and an accessory before the fact, was called as a witness for the Commonwealth, and testified that he would be twenty years old on November 23, 1878; that he worked at Great Barrington village, and on Saturday afternoon, September 2, 1876, went home to his father’s house, changed his clothes, and left there about seven o’clock, walked alone to the village of Housatonic, about two miles off, arrived there about eight o’clock, and attended a temperance lecture in the hall, which closed about nine o’clock, and then went out of the hall, fell into company with William Moore, and they walked around the square and about the village, a part of the time with two girls whom they found on the street, and he and Moore separated in the southerly part of Housatonic village, below the Valley House, a little after ten o’clock, and he walked alone towards his father’s house, (which was admitted to be about half a mile from Munson’s,) and, as he approached Munson’s barn, saw a man walk up to the end thereof nearest to the witness, gather up some straw which was scattered there, strike a match, and set the straw on fire; that the witness then went up to the man, and by the light of the burning straw saw the defendant, who then had the burning straw in his hands, and he said to the witness, “ 0, it is you, is it ? you have caught me; keep still and say nothing, and I will make it all right with you; ” that the witness replied, “ You need not be afraid of me, I shall say nothing, I don’t like Munson very well myself,” and the witness then took the burning straw from the defendant and put it out; that the defendant then said, “ These buildings will be burnt by next Saturday night, and, if not, then next Sunday night any way; ” that the defendant told the witness to be where he could have plenty of witnesses to prove where he was during those nights, and that after the burning he should give out that he burnt the buildings, and the defendant would make it all right with him; that they then both went away, in different directions, and the witness went directly home to his father’s house, where he arrived a little after midnight; that his father got up from his bed and let him into the house, and he went to hed and remained there through the rest of the night.</p> <p>The witness further testified that the next time he saw the defendant was about the middle of the following week in the village of Great Barrington, and he there gave the witness four ten-dollar bills, and asked if that would do, and told the witness to keep still, and if he got “ stuck ” it would not be for more than four or five years, and he would make it all right when he got out, and would pay him well for his time; that on the morning of Monday, September 11, the witness heard that the build ings had been burned; that he saw the defendant several weeks after the fire, and he then said, “ They have not got us yet, and I guess they never will take us,” and that he came near being caught by Munson’s hired man, who went past crying fire just as the defendant got to his house, (about a third of a mile off,) and was going in; that he again spoke to the defendant in the following spring, when he was at work at his pease in the garden, and the defendant asked him if he had heard anything yet; and once more when the defendant and one Warner were working on some railroad ties, but could not remember what was said.</p> <p>In corroboration of this witness, the government called Uriah Burner, (his father,) William Moore, Albert N. Church, Frederick M. Truman, and William Burner, (his brother,) as witnesses. Uriah Burner testified that his son Charles came home to his house at about half past twelve o’clock on the night of September 2, 1876, and he got up from his bed and let him in, and he went to bed. “ The defendant objected to the admission of this evidence as immaterial, incompetent, and not admissible to corroborate young Burner, and as not tending to corroborate him in any. material point. But the judge admitted the evidence, and the defendant excepted. The judge stated, in making the rulings objected to, in the hearing of the jury, that he should admit the testimony offered by the government, tending to show that young Burner arrived at his father’s house that Saturday night about half past twelve o’clock; and that money was seen in his possession at the time stated; especially as it had appeared that he was in 1876 a minor, about eighteen years of age, living with his father, who was apparently entitled to his earnings, and there was no suggestion that the minor had any other means of procuring money; but the jury would be fully instructed that this witness stood in the attitude of an accomplice, upon his own testimony; that it would not be safe or proper for the jury to convict the defendant upon his evidence, unless it was corroborated by other testimony in the case ; that all the testimony admitted would be for the consideration of the jury; and that if the jury should find that the testimony of young Sumer was corroborated in its material parts by other testimony which they believed, and if they were satisfied, upon the whole testimony, of the guilt of the defendant, beyond a reasonable doubt, they were authorized to find a verdict of guilty, otherwise there should be a verdict of acquittal. And the judge so instructed the jury in his charge, to which no objec tian was made.”</p> <p>Moore testified that he was at the lecture in the hall in Housatonic on the evening of September 2, 1876, and after the lecture walked around the square and about the village with young Surner, a part of the time in company with two girls whom they found on the street, and separated from him below the Valley House a little after ten o’clock; and the week after the fire saw young Surner have one ten-dollar bill and some other bills the denominations of which Moore did not know. Church testified that about eight or ten days after the fire he_ saw young Surner have two ten-dollar bills and some other bills, but could not state what they were; that he was with young Surner when the defendant and Warner were at work on railroad ties, and saw the defendant and Surner standing a few feet off, thought they conversed a little, but did not know, nor know what they said. Warner testified that, while he was at work for and with the defendant, near his house, on railroad ties, Church and young Surner passing near by stopped a few minutes, and, after the defendant had scored through one side of a tie, Church hewed it, and the defendant stood a few feet off, and he supposed that the defendant and young Surner spoke together, but did not know anything they said. Truman testified that one or two weeks after the fire he saw young Surner have a ten-dollar bill. William Surner testified that on Sunday, September 10,1876, he saw his brother Charles at their father’s house, and Charles took him to the barn, and there showed him four ten-dollar bills. The defendant objected to the admission of the testimony of each witness, upon the grounds already stated. But the judge admitted the evidence, and the defendant excepted.</p> <p>The defendant testified in his own behalf, and denied young Surner’s statements in regard to the alleged interview on the night of September 2, 1876; denied that he ever saw young Surner at Munson’s barn, as he swore, or that he had any consultation there, or that he ever made any plan to burn Munson’s buildings, or that he ever did burn them or know anything about it until after they were burnt, or that he ever gave young Surner forty dollars or any other sum of money to keep still, or for any other purpose; and generally and specifically denied all the statements made by young Surner connecting him in any way or manner with the fire.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>An indictment on the Gen. Sts. c. 161, § 54, alleged that the defendant, to induce M to sign a lease to C., falsely represented that C. was a liquor-dealer doing busi ness as such in B.; that C. was a man worth ten thousand dollars; and that a certain person whom the defendant pointed out to M. was C. Held, that the first allegation was of a representation of a material fact; that the second was not; and semble that the third was not.</p> <p>It is no ground for quashing an indictment on the Gen. Sts. c. 161, § 54, that it contains some immaterial allegations, or that some one of the pretences charged is not properly charged, if upon its face there is an offence stated with propel precision and formality.</p> <p>It is no objection to an indictment on the Gen. Sts. c. 161, § 54, charging the defendant with inducing another to sign a lease by means of false pretences, that the false pretences are not alleged to have been in writing.</p> <p>An indictment on the Gen. Sts. c. 161, § 54, charging that the defendant falsely represented to A. that he had then and there in his possession a check for the payment of money drawn by him in favor of A., from the proceeds of which he intended to pay certain bills due from A. to other persons, does not set out a false pretence within the statute.</p> <p>At the trial of an indictment on the Gen. Sts. c. 161, § 54, charging the defendant with defrauding A. by means of false pretences, a record of a proceeding for divorce, in which A. was a party and in which the jury found that A. had committed adultery, is not admissible to affect the credibility of A. as a witness.</p>

<p>The Sts. of 1870, c. 359, § 11, and 1872, c. 358, relating to juvenile offenders, so far as they purport to give to inferior tribunals jurisdiction of offences punishable by infamous punishment, are unconstitutional.</p>

<p>The offence, under the St. of 1875, c. 99, of illegally keeping intoxicating liquors for sale, is not a "similar offence” to that, under the Gen. Sts. c. 87, §§ 6, 7, of keeping and maintaining a tenement used for the illegal sale and illegal keeping of intoxicating liquors, within the meaning of that phrase in the St. of 1866, c. 280, § 1, giving a judge, where the punishment provided is fine and imprisonment, the discretion to impose either without the other, if it appears that the offender has not before been convicted of a “similar offence.”</p> <p>Where a judge has discretion to impose a sentence of either a fine or imprisonment or both, and rules that he has no discretion, and sentences a defendant in a criminal case to pay a fine and to be imprisoned, the defendant may, under the Gen. Sts. c. 115, § 7, bring the case to this court on exceptions.</p>

Indictment for the manslaughter of Patrick Cannon by kicking him in the abdomen, at Clinton.

<p>Indictment, on the Gen. Sts. e. 165, § 6, for lewd and lascivious cohabitation with Martha A. Eaton.</p> <p>At the trial in the Superior Court, before Grardner, J., the cohabitation with Eaton at the time and place alleged was admitted by the defendant. The defence was that the alleged parties during all the time of such cohabitation were lawfully married to each other.</p> <p>It appeared in evidence, and was not contested by the government, that, at a public religious meeting called by the defendant, held at the Advent Chapel in Worcester, on July 12, 1879, at which about fifty persons were present, and at which no magistrate or minister of the gospel was present, the defendant occupied the pulpit, gave out a text, talked awhile about repentance, then read the first five verses of the twentieth chapter of Matthew, and then stepped down the aisle, and said Eaton came forward and read from the sixth to the tenth verse of the same chapter; that they then joined hands, and the defendant said, “ In the presence of God and of these witnesses, I now take this woman whom I hold by the right hand to be my lawful wedded wife, to love and to cherish, till the coming of our Lord Jesus Christ, or till death do us part; ” that Eaton thereupon said, “ And I now take this man to be my lawfully wedded husband, to love, reverence and obey him until the Lord himself shall descend from heaven with a shout and the voice of the archangel and with the trump of God, or till death shall us sever; ” that the parties then bowed down, and the defendant offered prayer; that there was no other marriage ceremony; that neither parcy was a Friend or Quaker; that the marriage ceremony was not conformable to the usage or practice of any religious sect; that the parties were of full age, the defendant being a resident of Missouri, and Eaton being a resident of Worcester; that the parties performed this ceremony in good faith as a marriage rite, and believed it constituted a valid marriage; that directly after the ceremony, and during the time covered by the indictment, the parties cohabited together as husband and wife under the belief that they were lawfully married; that before the ceremony was performed, the parties caused notice of their intention to be joined in marriage to be entered in the office of the city clerk of Worcester, and the clerk delivered to them the certificate required by the statute; and that the certificate was returned with a statement thereon, signed by the parties, stating that they had been married to each other by mutual public vows.</p> <p>Upon these facts, the judge ruled that no valid or lawful marriage between the parties had taken place; and instructed the jury that they would be warranted in convicting the defendant.</p> <p>The jury returned a verdict of guilty; and the judge, being of opinion that the question of law raised in the case as to the validity of the assumed marriage was so important and doubtful as to require the decision of this court, at the request of the parties, reported the case for its consideration. If the ruling and instruction were right, the verdict was to stand; otherwise, the verdict was to be set aside.</p>

<p>Bill in equity, in the nature of a bill of interpleader, by Andrew J. Sprague, Elizabeth A. Sprague his wife, and their minor child, legatees under the will of Elizabeth R. French, against the administrator with the will annexed of said Elizabeth R., Timothy H. French her husband, and the other legatees under the will, except Hattie Augusta French, the adopted child of the testatrix. The administrator and the husband demurred to the bill for want of equity; the demurrer was sustained; and the plaintiffs appealed to the full court. The material allegations of the bill appear in the opinion.</p>

Contract upon a judgment of a justice of the • peace of the State of Vermont, entered on June 11, 1852. Writ dated February 21, 1877. At the trial in the Superior Court before Gardner, J., without a jury, at October term 1878, the plaintiff contended that the judgment was rendered on a promissory note, upon a confession made by the defendant personally without antecedent process, under the Comp.

<p>If one of several heirs, who orally agrees with his co-heirs to purchase certain shares of stock in a corporation, for their joint benefit, he to take the conveyance to himself, the other heirs to contribute their respective proportions of the purchase money, and the matter to be afterwards adjusted between them, refuses, on his acquiring the title to the shares, to make any adjustment, and informs the others that he has concluded to keep the stock himself, and subsequently receives dividends on the stock, he is accountable to the other heirs severally for their respective shares of the dividends in actions for money had and received; and the provisions of the Gen. Sts. c. 105, §§ 5, 6, do not apply to the case.</p>

<p>Tort. The declaration alleged that the plaintiffs were the owners and occupiers of certain buildings used as a machine-shop'; that they carried on the business of machinists therein, and employed a large number of workmen in said business; that the defendant, with knowledge of that fact, on divers days between May 1 and November 1, 1875, carelessly, negligently and unlawfully blasted rocks in the vicinity of said buildings, and by such blastings caused large stones and rocks to be thrown in, upon and against said buildings, “ breaking and causing great damage thereto, and preventing the plaintiffs from occupying or using the same, or pursuing their lawful business therein, and breaking up and ruining the plaintiffs’ business therein.” Answer : 1. A general denial. 2. That the injuries complained of were caused by the defendant while excavating rock, in a proper and lawful manner, under a contract with a railroad corporation, and in execution of that contract, and that he was not liable therefor. 3. Payment to the plaintiffs for all damages to their buildings.</p> <p>At the trial in the Superior Court, before Allen, J., the plaintiffs introduced evidence tending to show that the defendant, while executing a contract made with the Boston, Hoosac Tunnel & Western Railroad Company, blasted rocks within the located limits of the Troy & Greenfield Railroad; that while so blasting, pieces of the rock were frequently thrown upon the plaintiffs’ premises lying adjacent to the railroad and near to the ledge which the defendant was excavating, and their premises were injured to the amount of several hundred dollars by the stones so thrown; that, upon the happening of any such injury, the defendant promptly adjusted and paid the plaintiffs for all damage to their real estate; that the plaintiffs demanded of the defendant payment for damages occasioned by the interruption of their business and the loss of time of workmen in their employ, but the defendant declined to pay this claim; and that the damage to the buildings was paid for with the understanding that plaintiffs waived no rights to recover for such interruption to their business.</p> <p>The plaintiffs then offered evidence tending to show that the workmen employed by them in and about their premises, being reasonably apprehensive of danger from flying stones, voluntarily vacated the premises at the time of each blast, notice of which was given by the blowing of-a horn by some one in the defendant’s employ, to notify travellers upon a highway immediately adjacent to the ledge. This evidence was objected to by the defendant, on the ground that a claim for compensation for loss of time of workmen was too remote to be recovered; and that, under the pleadings, consequential damages alone could not be recovered. The judge admitted the evidence; and the defendant excepted.</p> <p>There was a conflict of evidence upon the question whether the defendant, in excavating the rock, used due care.</p> <p>The plaintiffs testified that the amount of time lost by all their workmen by reason of the defendant’s acts was 2158J hours, the value of which to the plaintiffs was $863.30, being the sum which they would have charged customers for such labor; and that the above number of hours included lost time of workmen employed in and about their works, and loss of time of workmen not employed in the machine-shop.</p> <p>The defendant asked the judge to instruct the jury as follows: “ 1. Great latitude of discretion is to be allowed to those who are entrusted with the construction and maintenance of great public works, in the location and mode of construction which they may adopt to effect the objects and purposes to be accomplished. 2. The plaintiffs cannot recover damages for trespass on the realty, and, failing to recover such damages, they cannot recover for loss of time of workmen. 3. The defendant, having settled the damages to the real estate, is in the same position in this case as though he had not caused any stones to be thrown upon the plaintiffs’ premises; and the voluntary leaving by the plaintiffs’ workmen of the plaintiffs’ premises was an act of pru dence on their part, and the plaintiffs cannot recover compensa tian for loss of time while thus absent. 4. The plaintiffs can recover only the amount actually paid to their workmen, and can only recover for loss of time of the workmen employed in the machine-shop.”</p> <p>The judge declined to give these instructions; “ and instructed the jury in substance, that if the parties settled for damages to the real estate only, and understood that the plaintiffs’ claim for injury to their business was not included, the plaintiffs might recover in this action damages for occasional and temporary interruptions to their business in the machine-shop, occasioned by the want of due care on the part of the defendant; and that the measure of damages would not be the amount which the plaintiffs paid as wages to their workmen, for the time while they were prevented from working, but the value to the plaintiffs of the work which the defendant’s negligence prevented being done.”</p> <p>The jury returned a verdict for the plaintiffs for $1069.77; and the defendant alleged exceptions.</p>

<p>Contract on a promissory note for $333, dated Great Barrington, March 10, 1870, payable to “the trustees of the Methodist Episcopal Church or their collector,” and signed by the defendant. Answer, a denial that the plaintiffs could maintain the action; and want of consideration. The case was submitted to the Superior Court, and, after judgment for the plaintiffs, to this court on appeal, on an agreed statement of facts, which, after stating that the pleadings might be referred to, was in substance as follows:</p> <p>There is and has for a long time been a religious corporation at Great Barrington called the Methodist Episcopal Church, of which the defendant was a member at the time of the giving of the note in suit. The financial and business affairs of the church are entrusted to a board of trustees who are elected annually. The trustees of the church, when the note in suit was given, were five in number including the two plaintiffs, who were of the trustees at the time of bringing this action, and were at the time of bringing this action a collection committee authorized by the board of trustees to collect said note by suit or otherwise. The church for many years has owned and occupied a meetinghouse in Great Barrington, and a few years prior to the date of the note made additions to and repairs upon the meeting-house. After the additions and repairs were completed, the means pi ovided therefor were found to be insufficient, and the church was left in debt. After the debt had stood for some time, and until February 1,1869, it was proposed by persons, who were members of the church or interested therein, to raise money by subscription to pay off the debt, or to obtain the promise of money for that purpose, and a subscription paper was drawn up and different persons subscribed thereto in various sums, some paying their subscriptions in money and some giving notes therefor; and it was the duty of the board of trustees for the time being to pay the money received from the subscriptions and the money from time to time collected on the notes, in discharge of the indebtedness of the church. The defendant subscribed for said purpose the sum of $500, and, having paid a part of that sum in money, gave the note in suit for the balance, upon which she has made payments from time to time of principal and interest, which were indorsed on the note. No other consideration was given or received for the note than is shown by the above facts.</p>

<p>Tort for slander, in accusing the plaintiff, a married woman, of the crime of adultery, “ by words spoken of the plaintiff substantially as follows: ‘She’ (meaning the plaintiff) ‘is a bad woman; she is a damned bitch; she is a God-damned whore ’; ‘ Riddell’s wife ’ (meaning the plaintiff) ‘ is a whore.’ ” Answer, a general denial.</p> <p>At the trial in the Superior Court, before Pitman, J., the plaintiff introduced evidence tending to prove that the slanderous words alleged in the declaration were spoken by the defendant of the plaintiff on April 14, 1877, in the defendant’s house'.</p> <p>The plaintiff also called as a witness Elisha B. Alvord, and, for the purpose of showing malice on the part of the defendant, offered to prove that the defendant, in the fall of 1875, and before the plaintiff was married, uttered to the witness slander*pus words of and concerning the plaintiff. This evidence was objected to by the defendant, and excluded. The defendant testified as a witness, and denied that he mentioned the plaintiff’ s name or used any language about her at the time relied on as the time of the slander; and testified that he did not know her before she was married; and, on cross-examination, testified as follows: “I know Elisha B. Alvord, of Shelburne. I never saw him to speak to him about the plaintiff, in my life. I heard she lived at his house. I did not tell him she was a bad woman. I did not tell him, if Riddell got her, he would take her at second hand. I did not know her.” The plaintiff afterwards recalled Elisha B. Alvord, in rebuttal, who testified as follows: “ I had a conversation with the defendant in the fall of 1875. I was standing on the sidewalk and he came along and spoke to me.” The witness was then asked what the defendant said. The defendant objected to the conversation, but the judge ruled that the testimony was admissible, and the witness was allowed, under the objection of the defendant, to testify as follows : “ Mr. Thayer said to me, ‘You are about to lose your housekeeper. I said, ‘ There seems to be a prospect of it.’ The defendant said, ‘He will have to take her second hand, won’t he?’ I asked what he meant. He said, ‘ Why, has n’t she been living with you three or four months ? ’ That is all. He said nothing about her-being a woman of bad character.”</p> <p>It was not contended that the words, “ she is a damned bitch,” were actionable. The defendant requested the judge to rule that the words, “ she is a bad woman,” were not actionable; and that they should not be taken into consideration by the jury. The judge asked the plaintiff’s counsel if he claimed to include the words, “ she is a bad woman,” as part of the actionable language; if so, he should so rule; and, the counsel signifying that he so desired, the judge ruled that, if those words were such as the jury understood to import the commission of the crime of adultery, they might so consider them, and, on this point, further instructed the jury as follows: “Words complained of as slanderous are to be understood in their natural and obvious sense, and to receive the construction which the persons to whom they were addressed would ordinarily and reasonably attach to them; and, in determining the sense in which the words were used and understood, the jury may take into account the accompanying words and the surrounding facts.’1'</p> <p>The jury returned a verdict for plaintiff; and the defendant alleged exceptions.</p>

<p>A mortgagee of land, although not in possession, may maintain an action of tort in the nature of trover against a person who buys of the mortgagor wood and timber wrongfully cut by the latter from the mortgaged premises.</p> <p>Whether the cutting of timber on mortgaged land is wrongful or not depends upon the nature of the land and the circumstances of the case, and is a question for the jury.</p>

<p>A person, convicted before a trial justice of two distinct offences, and committed to the house of correction under two warrants, one legal and the other illegal, and held in custody under both warrants during the whole time of his imprisonment, is lawfully imprisoned; and the justice, if liable at all for issuing the illegal warrant, is liable for nominal damages only.</p> <p>A question not raised at the trial is not open upon a report of the case.</p>

<p>The surety on a bond given under the St. of 1875, c. 99, § 9, and conditioned that tile licensee “shall pay all damages which shall be recovered from him under ar-'l pursuant to the provisions' of said act,” is liable for the amount of a judgment recovered against the licensee under § 15, which provides that whoever shall sell or give intoxicating liquor to any minor shall forfeit one hundred dollars for each offence, to be recovered by the parent or guardian of the minor in an action of tort.</p>

<p>A mortgagee of land took out a policy of insurance on a building on the land, in-it hich the mortgagor was named as the assured, but payable in case of loss to the mortgagee. By the terms of the policy, if the property was sold, the policy could be assigned to the purchaser with the assent of the company; otherwise, the insurance was to cease. The assured was to have the right to terminate the policy at any time, in which case the company could retain a proportionate rate of premium. After the policy had been in force three months, the mortgagee sold the land under a power contained in the mortgage. The policy was taken to the insurance company by the mortgagee, cancelled, and a new one issued to the purchaser, but the mortgagee gave no directions as to what should be done with the policy, and did not receive any rebate of premium. The mortgagor had knowledge of the policy before the sale. Held, that he could not recover of the mortgagee the amount of the rebate of premium.</p>

<p>By the St. of 1871, c. 298, all highway taxes are abolished, and the assessors of a town are not obliged to levy a separate highway tax; and if they assess upon the polls a sum less than one sixth of the whole tax levied, it is not an illegality which will avoid a sale of land for non-payment of taxes.</p> <p>An article in a warrant for a town meeting, “ to raise such sums of money as may be necessary to defray town charges for the ensuing year,” is sufficient to authorize a vote to raise money for specified town purposes.</p> <p>A tax on land was assessed to “ J. S. & Sou.” J. S. alone was in possession of the land as mortgagor, and his son had no interest in it. Held, that, under the Gen, Sts. c. 12, § 6, the tax could be collected of J. S. if he was the person intended to be taxed, and that paroi evidence was admissible to prove this fact.</p> <p>It is a sufficient compliance with the requirements of the Gen. Sts. c. 11, § 33, that the list of the valuation and the assessment, before the taxes were committed for collection, was left with the chairman of the assessors, in the absence of evidence that the assessors had any office appropriated to their own use.</p> <p>It is not necessary that the warrant committed to a collector of taxes should, in terms, specifically direct the sale of real estate.</p> <p>An assessors' valuation list, under the head of “ Buildings of all kinds described by naming their use,” gave merely “2 houses, 1 bam,” and under the head of “ Description by name or otherwise of each and every lot of land owned by each person," gave the number of acres of mowing, tillage, pasture, wood and unimproved lots. Held, that a more specific compliance with the St. of 1861, c. 167, was unnecessary to render the tax valid.</p>

<p>If private land is taken by the selectmen of a town in laying out a sewer, and the selectmen do not report the laying out to the town, and the sewer is not accepted and established by the town, the laying out is illegal, under the St. of 1869, c. Ill, § 2, which provides that when private land is taken for such purpose “ the proceedings shall be the same in all respects as in the laying out of town ways.”</p>

Tort for the conversion of a quantity of tiirf. Answer, a general denial.

<p>E. mortgaged two parcels of land to I., and then conveyed one of the parcels, subject to this mortgage, to A., who mortgaged the parcel to E. to secure A.’s note for a part of the purchase money, and agreed therein to pay one half of the mortgage to I. E. indorsed the note of A. to M., and handed him the mortgage of A., intending that the title to it should vest in him, but did not then formally assign the mortgage to him. After this, E. mortgaged to H. the other parcel of land, the deed containing full covenants of warranty; and H. took an assignment from L of the mortgage on both parcels. M. then obtained a formal assignment from E. of the mortgage given by A. All of the conveyances were seasonably recorded. Subsequently, H. sold both parcels, under a power of sale contained in the mortgage to I., for more than enough to pay that mortgage and the expenses of sale. At the time of the sale, the parcel described in the mortgage from E. to H. was worth more than the other parcel. Held, on a bill in equity by M. against H. for an account of the surplus proceeds of the sale, that M. stood in the same position as if the mortgage given by A. had been assigned to him when A.’s note was indorsed to him; that from the surplus proceeds of the sale should be deducted the excess in value which one parcel had over the other, and that M. was entitled to recover of H. one half of the remainder.</p>

Trustee process. S. A. Bemis and others, summoned as trustees, answered that, prior to service upon them, they had contracted with the principal defendant to paint a house for them; that the defendant painted the house, and in so doing employed a number of men to assist him; that the trustees paid the defendant money on account of the contract, but not to an amount equal to the contract price, and would have been indebted to him at the time of said service but for the fact…

Contract on a promissory note, dated May 1, 1872, signed by the defendant society, and payable to the plaintiff or order, on demand. Answer, payment.

<p>It is within the power of the Superior Court to provide by rule that a notice, within the time limited by the Gen. Sts. c. 115, § 7, of the filing of a bill of exceptions, may be proved by affidavit that it was delivered personally to the adverse party or his attorney, or deposited in the post-office, directed to him; and under such a rule a notice deposited, within the time limited, in the post-office of the town in which the attorney of the excepting party resides, and within the county in which the court allowing the exceptions is held, and addressed to the attorney of the adverse party at the place of liis residence in the same county, is sufficient.</p> <p>In an action for breach of a contract, by which the plaintiff was employed by the defendant as general superintendent of the latter’s works, and to sell the goods manufactured by the defendant, evidence that the plaintiff, in order to procure the execution of the contract, falsely represented to the defendant that he was a “ first-rate salesman,” is immaterial, in the absence of evidence that such statement was accompanied by the affirmation of any specific fact, or that the words used had acquired a precise and definite meaning among men of business.</p> <p>In an action for breach of a contract, by which the plaintiff was employed by the defendant for one year as general superintendent of the latter’s works, including the appointment of agents to sell the goods manufactured by the defendant, and was also to make such sales, and was to receive a fixed salary and a certain commission “ on the gross amount of all sales made for ” the defendant, to be paid semiannually, the plaintiff is entitled to commission on the sales made for the defendant by other agents, as well as on those made by the plaintiff Mm-self; and if the plaintiff is wrongfully discharged from the defendant's employment before the expiration of the year, commissions on all the sales during the year may be considered by the jury in estimating the damages sustained by the plaintiff, although the action is brought before the expiration of the year.</p>

Tort for injuries to the plaintiff’s house and fence, alleged to have been caused by the fumes, vapors and gases, escaping from tile defendants’ copperas works, and discoloring the paint on the house and fence.

<p>Tort for breaking and entering the plaintiffs’ close in North-bridge. The answer set up a right of way across the plaintiffs’ land, by necessity and by grant. Trial in the Superior Court, without a jury, before Dewey, J., who found for the plaintiffs, and reported the case for the determination of this court, in substance as follows:</p> <p>The plaintiffs were the' owners of the estate described in the declaration, and the defendant was the owner of an adjoining estate, and the defendant had driven his horse and carriage across the plaintiffs’ land to and from a barn on the defendant’s land. Samuel Fletcher formerly owned a large farm in North-bridge, situated upon a highway, upon which he had erected three tenement-houses. In 1858, he conveyed to his son and wife all of his farm, excepting only the three tenement-houses and land connected with the same, which tenements he continued to own until his decease in 1866. After his death, commissioners were appointed by the Probate Court, to set off and divide his estate among his heirs, and by the commissioners’ report it appears that the premises now owned and occupied by the plaintiffs were set off to one daughter, and the adjoining premises, being the middle tenement-house above referred to, were set off to another daughter, under whom the defendant holds. In the report of the commissioners, the following language is used in connection with the setting off to the latter daughter: “ Together with all water and other rights of way and travel enjoyed by Samuel Fletcher in connection with said premises; ” and in connection with the setting off to the plaintiffs’ grantor, the following language: “ With all the rights and privileges for water, &c., usually enjoyed by Samuel Fletcher.” The commissioners make no reservation in connection with the setting off, to either heir, but, at the close of their report, which also set off several other tracts of land to other heirs, the commissioners say, “In all cases, when we have set off to any of the persons before named a right to cross over or enjoy a right of way over any land which we have set off to any other heir, we intend to reserve said right of way in setting off land to said other heirs.” No other language concerning rights of way or other easements is used in said report, in connection with the estates now owned by the plaintiffs and the defendant. The several deeds from the above heirs to their grantees contain the same language as in the report of the commissioners, but no reservation is made in either deed.</p> <p>The tenants of the estate now owned by the defendant had been for many years in the habit of carting wood and other merchandise over the land now owned by the plaintiffs, Fletcher being then the owner of both estates". For many years while Fletcher was the owner of the whole of the farm, grocers’ wagons and occasionally a light wagon passed without objection over the lot now owned by the plaintiffs to the lot now owned by the defendant. Both light and heavy wagons sometimes passed from the highway over Fletcher’s land in front of the defendant’s house to the rear thereof, and turned round upon the plaintiffs’ lot without crossing it, and sometimes they were backed out and off of the defendant’s lot. There was also evidence that wagons passed to the defendant’s lot in other ways than over the land now owned by the plaintiffs. The barn, to and from which it was admitted that the defendant drove across the plaintiffs’ land, was built after the defendant bought his lot, and there never was a barn there before.</p> <p>The defendant asked the judge to rule, as matter of law, that a right of way existed by grant, authorizing the defendant to pass over the plaintiff’s land as he had done. But the judge declined so to rule; ruled that the defendant had not such right of way by grant; and found on the evidence that there was no way of necessity. If the defendant had a right of way by grant, the finding was to be set aside, and judgment entered for the defendant; otherwise, judgment for the plaintiff.</p>

Contract for breach of warranty in the sale of a cow. The declaration alleged that the defendant undertook and promised that the cow was “ well, sound and all right.” Answer, a general denial.

<p>Contract upon an account annexed for goods sold and delivered to the defendant by Bussell Briggs, the plaintiff’s intestate. Answer, a general denial.</p> <p>In the Superior Court, the case was referred to an auditor, at the hearing before whom the plaintiff offered in evidence certain books purporting to be books of account of the intestate. The defendant objected to their admission, and, at his request, the auditor reported all the evidence introduced before him bearing on the question of their admissibility. The auditor in his report stated that, upon this evidence, and upon an inspection of the books, he deemed them admissible, and admitted them in evidence ; that the plaintiff also introduced other evidence tending to show a sale and delivery of the goods; that the defendant offered no evidence; and that the auditor therefore found for the plaintiff in a certain sum.</p> <p>At the trial, the defendant objected tq the admission of the auditor’s report, on the ground therein stated. But Dewey, J., admitted it in evidence to establish the plaintiff’s case; the jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

Tort for the conversion of eight hundred bushels of ashes. The defendant, a deputy sheriff, justified under a writ against Charles A. Irons, by virtue of which he attached the ashes as his property.

<p>A deed granting a parcel of land on a river, and describing it as containing a certain number of acres, more or less, with the mills, water-power, and all the rights, privileges and appurtenances thereto belonging, passes a right which the grantor had acquired by prescription to keep his dam at a certain height; and such grant is not impaired by a subsequent reference in the deed, “for a full description of the said parcel of land, water-rights and privileges intended to be conveyed,” to certain deeds, the last of which was executed thirty-four years before, and all of which contained a restriction as to the height of the dam.</p> <p>If a person has the right to keep his dam at a certain height, it is no ground of complaint under the mill acts, that, owing to his mill not being used, the water stands higher on the complainant’s land than it otherwise would.</p>

<p>Bill in equity, filed January 30, 1879, to reform the location of the defendant’s railroad through the land of the plaintiff in the town of Southbridge. The case was heard by Colt, J., and reported for the determination of the full court, upon certain facts bearing upon the question of the liability of the defendant corporation as the successor of the Boston, Hartford and Erie Railroad Company, the corporation filing the location, which it is unnecessary now to state, and upon the following facts:</p> <p>“ The plaintiff made an agreement with Thomas E. Graves, the attorney and agent of the Boston, Hartford and Erie Railroad Company authorized to settle land damages, by which the location of the road through the plaintiff’s land was to be twenty feet in width, ten feet on each side of the.centre line, which centre line was to be located ten feet south of the southerly house of a row of brick houses belonging to the plaintiff, and extending southerly from the plaintiff’s factory, excepting in such places as were to be filled, and in such places to the base of the filling. This agreement was reported to the managing officers and agents of said railroad company, and was ratified by them. Neither the railroad company nor any of its successors or assigns, including the defendant, ever occupied the land of the plaintiff outside of said twenty feet, except so far as the filing of the location hereinafter stated may be considered occupation. -</p> <p>“ Graves attended a meeting of the directors of the railroad company, in New York city, on January 23, 1866, at which meeting the engineer’s plan and laying out of said road, showing a location five rods wide throughout the line, was produced for adoption. Graves prepared a vote of acceptance of the plan and location before the directors assembled, and afterward at the meeting stated to the president, in presence of the directors, referring to the engineer’s plan and laying out: ‘This will not do. I have made several agreements for narrowing in the location in Southbridge and other towns along the line.’ There was no evidence that this statement was actually heard by any of the directors except the president, although there was some evidence that most of them were in the room. The president, without any interference or objection on the part of the directors, told Graves to ‘fix the plan as it should be.’ Graves thereupon, in the presence of the directors, made several alterations in said plan and laying out, and in the written location, indicating narrow locations ; but unintentionally, by inadvertence, accident and mistake, did not indicate on the plan and alter the same, or the written location over the plaintiff’s land, so as to conform with the agreement made with the plaintiff, but left the plan and location five rods in width at that point. Thereupon the plan and location were adopted by vote of the directors as the location of the railroad, and were duly filed in the office of the clerk for the county of Worcester, on March 30, 1866.</p> <p>“ One Parker, the superintendent of the railroad company, being instructed by the officers of the company to negotiate a settlement of certain matters of difference regarding the use of a spur track at the point in question with the plaintiff, negotiated with the plaintiff for the purchase of a tract of land contiguous to the twenty-foot strip and within the location as filed, and reported his negotiations to the officers of the railroad company. No agreement was reached as a result of said negotiatians, and no claim was made to the land contiguous to said twenty-foot strip as within the location.</p> <p>“ The plaintiff supposed that the location filed in the clerk’s office was in accordance with its agreement with Graves for a twenty-foot location until 1875, and there was no supposition to the contrary until the same time on the part of the railroad company. Parts of two houses belonging to the plaintiff are within the five rods’ location, and the plaintiff has always been in undisturbed occupation of them as tenement-houses.”</p>

<p>In an action against the city of S. for aid furnished to a pauper, it appeared that the pauper lived in S. from 1862 to 1867, and paid taxes duly assessed to him for three years within that time; that the father of the pauper, a native of Ireland, came to this country in 1852, being then over the age of twenty-one years, and lived in the town of W. with his family including the pauper until 1861, when the pauper became of age; and that, between 1852 and 1861, the father lived upon an estate of freehold owned by him in W. for more than three yt ars successively. Held, that, under the Gen. Sts. c. 69, § 1, cl. 4, and the St. of 1868, c. 328, § 1, as amended by the St. of 1871, c. 379, the father of the pauper gained a settlement in W.; and that the pauper gained a derivative settlement from his father, which continued and was an “ existing settlement” within the St. of 1874, c. 274, § 3, and was not changed by his residence in S.</p>

Bill in equity, filed October 17, 1878, to restrain the defendant from removing a boiler from a parcel of land in Brook-field. Hearing before Colt, J., who allowed a bill of exceptions in substance as follows : The defendant, in July 1877, delivered to one Stevens, to be used on trial at his machine-shop in Brookfield, an Exeter sectional boiler, which by agreement between them was to remain the personal property of the defendant until paid for.

Contract on an account annexed for goods sold and work done. Answer: 1. A general denial. 2. That all the items charged in the plaintiff’s account were covered by a special contract, by the terms of which the plaintiff was to furnish the goods and labor for a round sum.

Contract by the collector of the city of Boston against the administratrix of the estate of Andrew C. Mudge, deceased, for the amount of a tax assessed on May 1, 1875, on a stock of merchandise. 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 : Mudge died on March 20, 1875, and the defendant was duly-appointed administratrix of his estate on March 22, 1875.

<p>The St. of 1877, c. 250, applies only to cases where application is made for a certificate authorizing the arrest of a poor debtor upon the first charge specified in the Gen. Sts. c. 124, § 5.</p> <p>If a magistrate has refused to grant a certificate for the arrest of a poor debtor, upon an application based upon the first charge specified in the Gen. Sts. c. 124, § 5, the creditor is not prevented by § 4 of the St. of 1877, c. 250, from immediately applying for a certificate of arrest based upon any of the other charges specified in the above section of the Gen. Sts.; and, if in his application he joins the first charge with one of the other charges, the first charge may be rejected as surplusage.</p> <p>The affidavit and proof required by the Gen. Sts. c. 124, § 5, before a person can be arrested in a civil action, is not a charge of an “ offence ” to which the debtor is “held to answer,” within the twelfth article of the Declaration of Rights.</p>

Contract upon a policy of insurance against loss by fire, issued by the defendant to the plaintiffs as copartners under the firm name of Johnson & Lee, for one year from September 7, 1875, as follows: “ $900 on three billiard tables, balls and cues; $500 on bar and saloon fixtures, furniture and pictures; $100 on stock in trade, chiefly liquors and cigars, including glass and other wares contained in frame building known as the Franklin Billiard Hall, in Quincy, Mass.” At…

<p>Contract upon a policy dated September 1, 1877, by which the defendant insured the plaintiff “ $400 on his saloon, furniture and fixtures, and $100 on his stock in trade, consisting principally of wines, liquors and cigars, all contained in basement of brick building, situate No. 16 Elm Street and 77¿ Hanover Street, Boston.”</p> <p>At the trial in the Superior Court, the plaintiff testified that he bought the place, with the stock and fixtures, in August 1877, and took possession and commenced business September 1, 1877; that his stock consisted only of liquors and cigars; that his fixtures were the general fixtures of the building, and he had a bar, tables and crockery; that his business was selling liquors and lunch; that immediately after September 1 he made an application for a license, and received one in October, dated October 1, 1877.</p> <p>The defendant contended that the plaintiff could not recover, because the building was intended to be used by the plaintiff for an unlawful purpose at the time when the policy was taken out. A verdict was ordered for the defendant, and the case reported for the determination of this court, according to whose opinion judgment was to be entered on the verdict, or a new trial ordered.</p>

Bill in equity, filed January 17, 1878, against Charles W. Abbott and the Massachusetts Loan and Trust Company, a corporation established under the laws of this Commonwealth, alleging, that, on September 20, 1875, the plaintiff issued to Abbott a policy of insurance in the sum of $2500, on .wool in a certain building, against loss by fire, payable in case of loss to the trust company; that the policy contained this clause, “ all fraud or false swearing on the part of the…

The eirst case was a bill in equity filed March 8, 1877, brought by twenty judgment creditors, under the St. of 1870, o. 224, § 42, “in behalf of themselves and all other creditors of the Hingham Manufacturing Company,” a corporation established under the laws of the Commonwealth, against said corporation, and David Whiton, Andrew C. Cushing, Eleazer P. Dunbar, Richard Harrison and Charles M. Strauss, its directors, to enforce the personal liability of the latter, on the…

<p>By the law of this Commonwealth, a person, whose land is taken by a railroad corporation under the right of eminent domain, has a right to compensation, which, if not strictly a lien, is at least in the nature of a lien or incumbrance upon the land; and this right may be enforced against a corporation which is the successor of the corporation taking the land.</p> <p>A railroad corporation took a parcel of land under the right of eminent domain. Subsequently it mortgaged its property to trustees to secure bonds to a certain amount, which stated that “ the mortgage was the first and only lien on the property and franchises of the company, when the existing mortgage debt is retired.” The making of this mortgage was ratified by the Legislature. The mortgage was afterwards foreclosed, and the bondholders formed a new corporation ; and their acts in so doing were confirmed by the Legislature, and the new corporation was vested with all the franchises, powers and privileges of the old corporation, and made subject to all the restrictions, duties and liabili ties, set forth in the general law relating to railroad corporations, then or therer after in force. Held, that the new corporation might properly be made a party respondent to a petition for damages, originally filed by the person whose land had been taken against the old corporation, and might be restrained from using or occupying the land, unless the damages were paid or secured to the landowner.</p> <p>On the issue whether land taken by a railroad corporation was in the county of Norfolk or in the county of Suffolk, ancient deeds, maps, plans and perambulations were put in evidence, and there was conflicting evidence as to the location of an ancient creek flowing through flats, which one party contended was the boundary line between the two counties. It was agreed that the question might be determined by the judge presiding at the trial, without submitting any question of fact to the jury. The judge ruled that the land was in Norfolk County. Held, on exceptions to his ruling, that it did not appear that the ruling was not based on facts not reported, and therefore not the subject of exception.</p> <p>Before the St. of 1869, c. 349, (which annexed a portion of Norfolk County to Suffolk County, and provided that the courts in Norfolk County should retain jurisdiction of all actions, proceedings and matters rightfully commenced therein prior to that time,) took effect, land in Norfolk County was taken by a railroad corporation by the right of eminent domain, and the owner filed a petition to the county commissioners of Norfolk to have his damages for such taking assessed. After the St. of 1869 took effect, the commissioners made their award, and the petitioner filed a petition to the Superior Court in Norfolk for a jury, under the St. of 1873, c. 261. Held, that that court had jurisdiction.</p> <p>If a person, whose land has been taken by a railroad corporation under the right of eminent domain, subsequently conveys a portion of the land by a deed containing covenants of warranty, his grantee is not a necessary party to a petition for the assessment of his damages for such taking; and the Gen. Sts. c. 43, § 53, do not apply.</p> <p>A railroad corporation filed a plan entitled “location” of its road, on a scale of 2000 feet to the inch. Annexed to the plan, when filed, was a paper containing a table of curves, courses and distances of the railroad, and also a paper containing the boundaries of the railroad. On a petition for damages for land alleged to have been taken under this location, there was evidence that it was difficult to apply the plan with the accompanying descriptions to the land of the petitioner; but it appeared that, before the location was filed, the line of the railroad over the petitioner’s land was surveyed and pointed out to him, and that the road was afterwards built in substantial conformity to the line pointed out. Held, that a ruling, that, the corporation having taken the land under the location and built their road, the location must be treated as valid and sufficient as against the corporation, was correct.</p> <p>Ancient deeds and plans are admissible in evidence to prove the location of a creek or arm of the sea, filled up since the deeds were executed and the plans made.</p> <p>A petition for damages for land taken by a railroad corporation under the right of eminent domain described a parcel of land part of which had been taken, leaving land of the petitioner on each side of the location, and prayed for damages for the land taken and for the injury to the remaining land, and for consequential damages for the injury done to the land on one side of the land taken. Held, that the petitioner was not precluded from claiming consequential damages for the injury to the land on the other side of the location.</p> <p>If a railroad corporation takes a part of a lot of land under the right of eminent domain, the owner, for the purpose of showing the injury to the remaining part, may prove the uses to which it might profitably be applied before and after the taking; but evidence that eleven years after the taking a person was ready to purchase the land is inadmissible in defence, although the petitioner contended that the remaining part was worthless after the taking.</p> <p>If a railroad corporation takes a part of a lot of flats, under the right of eminent domain, and, on the issue of the damage done to the remaining part, the corporation puts in evidence as to the feasibility of putting in side tracks for the purpose of filling the flats, the owner may put in evidence that filling the land would require the erection of expensive retaining walls.</p> <p>If a railroad corportion takes by the right of eminent domain a part of a lot of flats, and thereby cuts off access from tide-water to the remaining portion, the value of such access is an element proper to be considered by the jury in esti mating the injury to the landowner.</p> <p>If a railroad corporation takes by its location the exclusive use of a parcel of flats, and thereby injures the remaining flats of the owner, the jury, in estimating the damages sustained by such owner, should not take into consideration the possibility that the corporation might be willing to allow spur tracks to be built on the remaining flats for the purpose of filling the same, or for purposes of business.</p> <p>If a railroad corporation by its location takes land, interest is to be allowed from the time of the taking; and the fact that there has been a delay for many years in bringing a petition for damages, seasonably filed, to a hearing, is immaterial.</p>

<p>After the shares of stock in a corporation have been distributed among the members, they are not, under the St. of 1870, c. 224, §§ 39, 43, jointly liable for the debts of the corporation, but only severally in proportion to the shares held by them respectively.</p> <p>If a bill in equity is brought, under the St. of 1870, c. 224, § 42, to enforce the personal liability of the stockholders for money due operatives, it is no ground of defence to one of the defendants that he has paid some of the operatives other sums due them, and has a claim for contribution upon the other defendants.</p> <p>Stockholders, defendants to a bill in equity under the St. of 1870, c. 224, § 42, in which a decree is rendered against them, are jointly and severally liable for costs.</p>

<p>A creditor, who is also a member of a corporation, cannot maintain a bill in equity to enforce the personal liability of the stockholders under the St. of 1862, c. 218; and a person, to whom a stockholder has transferred a promissory note of the corporation, for the sole purpose of enabling him to obtain judgment upon it in his own name, and to bring a bill in equity to enforce the personal liability of the stockholders, stands in no better position than his assignor.</p>

Bill in equity, under the St. of 1870, c. 224, § 42, by a judgment creditor, in behalf of himself and all other creditors of the Bemis Paper Company,, against said corporation and Daniel D. Warren, Boswell P. Crafts, Pliny J. Crafts and C. G. Buttrick, stockholders in the corporation, to enforce the personal liability of the latter, on the ground that the capital of the corporation had been withdrawn and paid to the stockholders. St. 1870, c. 224, § 39, el. 2.

Contract against the sureties on a bond given to dissolve an attachment. Writ dated September 8, 1877. The case was submitted to the Superior Court, and, after judgment for the defendants, to this court on appeal, on an agreed statement of facts in substance as follows: By writ dated December 20, 1875, and served the same day, S. H. Barrett, the principal in said bond, sued the plaintiff Prince for a merchandise account of $507.30.