Volume 129 — Massachusetts Reports

<p>If a resolution of composition, under the U. S. St. of June 22, 1874, § 17, has been signed by the requisite majority of creditors, and the debtor’s assent to its terms has been manifested by his signature to the petition by which the proceedings for a composition were initiated, and the court has adjudged that the resolution has been duly passed, and has ordered it to be recorded, its operation cannot be impeached collaterally, in an action at law, by a creditor who would otherwise be bound by it, on the ground that it was not confirmed by the signature of the debtor.</p> <p>In order to give effect to a composition under the U. S. St. of June 22,1874, § 17, it is not necessary that the debtor should make a tender to every creditor of the amount due him under the composition; but it is sufficient that such notice of his readiness to pay that amount be given to each creditor as may enable him to demand it at a reasonable place, and at the time when it is payable by the terms of the composition.</p>

<p>A composition in bankruptcy, under the TJ. S. St. of June 22,1874, § 17, cannot be impeached collaterally in an action at law in a state court, by a single creditor who was a party to the proceedings, by showing that the composition was obtained by fraudulent acts of the bankrupt.</p>

<p>Two actions OE CONTRACT upon promissory notes. Writs dated October 6 and October 7,1876. Upon each writ attachments were made of real estate in Middlesex County on Octo ber 7, 1876, and of real estate in Bristol County on October 9, 1876. On February 9, 1877, the bankruptcy of the defendant was suggested. The cases were afterwards submitted to the judgment of the Superior Court upon the following statement of facts:</p> <p>On August 12, 1876, the land in Bristol County was conveyed by the defendant by absolute deed, recorded September 30,1876, to Dexter, Abbott & Co., who, at the same time and as part of the same transaction, signed and gave him the following agreement, which was never recorded: “ Whereas Charles Albro of Taunton has this day conveyed to us all his right, title and interest in and to one undivided third part of certain real estate, known as the City Hotel property in said Taunton: How these presents witness that said property has .been conveyed to us, and is now held by us, as security for the repayment to the firm of Dexter, Abbott & Co. of twenty-two hundred dollars, this day advanced by said firm to said Albro, and as security for all other and further sums that may be hereafter advanced to the said Albro by the said firm, and that, when all such advances to said Albro with interest are fully repaid, said Albro will be entitled to demand, and we will thereupon make to him, a reconveyance of the said property.” On October 14, 1876, the land in Middlesex County was also conveyed by the defendant by absolute deed, recorded October 16, 1876, to Dexter, Abbott & Co., who, at the same time and as part of the same transaction, signed and gave him a similar agreement, which was never recorded. The plaintiff knew of both deeds shortly after they were recorded, but had no knowledge of the agreements until long after the institution of the proceedings in bankruptcy. The real estate attached is more than sufficient to pay the plaintiff’s claims.</p> <p>The petition in bankruptcy was filed February 2, and the defendant was adjudicated a bankrupt on February 5, 1877. At the first meeting of his creditors, George M. Woodward and Elisha T. Jackson were duly chosen his trustees in bankruptcy under the U. S. Rev. Sts. § 5103, and accepted the trust, and have since managed his estate under the direction of the committee of creditors chosen for that purpose; and, by order of the District Court of the United States, the following indenture was executed by the defendant and the trustees: “ This indenture, made this twenty-third day of February, A. D. 1877, between Charles Albro, of said Taunton, and Elisha T. Jackson and George M. Woodward, both of said Taunton, on behalf and with the consent of the creditors of the said Charles Albro, witnesseth, that the said Charles Albro hereby conveys, transfers and delivers all his estate and effects to the said Elisha T. Jackson and George M. Woodward absolutely, to have and to hold the same in the same manner and with the same rights in all respects as the said Charles Albro would have had or held the same, if no proceedings in bankruptcy had been taken against him, to be applied and administered for the benefit of the creditors of said Charles Albro in like manner as if said Charles Albro had been at the date hereof duly adjudged bankrupt, and the said Elisha T. Jackson and George M. Woodward had been appointed assignees in bankruptcy under said act.” This indenture was recorded in the proper registry of deeds for Bristol County on March 6, 1877, and in the proper registry of deeds for Middlesex County on August 8, 1877. No assignee in bankruptcy has been appointed, and the plaintiff has not proved his claims against the defendant’s estate.</p> <p>The trustees, not contesting the demands of the plaintiff against the estate, moved, that the attachments be dissolved. The plaintiff moved for special judgments against the pioperty attached. If the trustees were entitled to a dissolution of the attachments, judgments were to be rendered accordingly; otherwise, special judgment was to be rendered against the property attached in each case for a sum agreed on by the parties.</p> <p>The Superior Court .overruled the motions of the plaintiff for special judgment, and the motions of the trustees for dissolution of the attachments, and, the defendant having pleaded and proved a discharge in bankruptcy, ordered judgment for him in each action. The plaintiff and the trustees appealed to this court.</p>

<p>Libel for divorce for adultery on and since March 18, 1878. Answer, a decree of divorce, obtained by the libellee in the Supreme Judicial Court of the State of Maine, October 4, 1877, after service of process upon and appearance of this libellant; and a release from her of all rights of dower and alimony and other claims upon him. Hearing before Lord, J., who reported the case in substance as follows:</p> <p>The parties were married on November 24, 1870, in Malden in this Commonwealth,- and thereafter lived together as husband and wife in Boston until March 20, 1877, excepting that in the summer of 1872 they went to the libellee’s father’s house at Plymouth in the county of Penobscot and State of Maine, and stayed there a week or ten days, and in the summer of 1874 the libellant went there and stayed three or four months, during which time the libellee came there twice, and stayed two or three days each time, and always while there they lived together as husband and wife. They had three children, one of whom, a boy, is still living. On March 20, 1877, she left her husband’s house in Boston, and filed a libel for divorce against him in this court, in which he appeared, and which, after hearing, was dismissed, without any order as to the custody of the surviving child.</p> <p>The libellee soon afterwards took this child, with the libellant’s consent, and went to his father’s house in said Plymouth, where the libellee was born and lived until of age, and where his parents have ever since lived; and on August 14, 1877, filed against this libellant in the Supreme Judicial Court for the County of Penobscot and State of Maine, the libel which is copied in the margin.*</p> <p>Notice thereof was ordered to be served on her personally, and was served accordingly on August 20, 1877. She employed counsel here, who by her direction employed counsel in Maine to appear for her in that suit, and who did appear for her, as shown by the record and docket, and was present at the hearing and took part in the proceedings as her counsel. That court afterwards entered the following decree: “ And now the libellant appears, and enters his libel, and proves to the satisfaction of the court that notice had been given, as required by the foregoing order; but the said libellee, though called to come into court, fails to appear, but makes default, blow therefore,-after hearing all matters relating to said libel, it is considered by the court that the allegations therein set forth are true; and it is ordered and decreed by the court, on the third day of the term, being the fourth day of October, A. D. 1877, that said Ephraim A. Loud be divorced from the bonds of matrimony heretofore existing between him and the said Elizabeth 0. Loud.”</p> <p>After that libel had been served upon her, she, through the intervention of friends, consented to withdraw opposition thereto; and agreed to execute, upon receipt of the sum of $3000, and on October 14, 1877, with full knowledge of all the facts, upon the payment to her of that sum, (which she has since retained,) did execute, and acknowledge before a justice of the peace in this Commonwealth, the release which is copied in the margin,* and the same was recorded in the registry of deeds for this county. At the time of such negotiation and receipt, she supposed that that court had jurisdiction of the subject-matter of the libel and of the parties; and such belief was not caused by fraud of this libellee; and both parties supposed that that decree was valid everywhere. She testified, on cross-examination at the hearing of the present case, that she then desired that a decree of divorce should be obtained in the suit in Maine.</p> <p>On March 18,1878, this libellee married in the State of Maine another woman, a resident of that state, according tp the law of that state, and this marriage was consummated by sexual intercourse, and a few days afterwards they came to Boston, and have since lived together here as husband and wife.</p> <p>The libellee contended that he did not in 1877 go to the State of Maine to obtain the divorce, or with any purpose to obtain a divorce; and offered evidence- tending to show that, when he left Boston and went to Plymouth, Maine, in May 1877, he was sick, and went to his father’s house intending to remain there permanently, and that at the time of filing his libel he had acquired a domicil in Plymouth.</p> <p>But the judge found, as a fact, that the libellee was, during the whole year 1877, domiciled in and a citizen of this Commonwealth, and did not acquire a domicil in or become a citizen of the State of Maine; and ruled, as matter of law, that this finding rendered wholly immaterial the question whether the libellee, when he went to Maine, had a purpose to obtain a divorce.</p> <p>The judge also found, subject to the libellee’s objection to their competency, the following facts: 1st. The parties to this suit were not married in the State of Maine. 2d. They had not cohabited together as man and wife in that state, within the meaning of the Rev. Sts. of Maine of 1871, c. 60, § 2.* [See Calef v. Calef 54 Maine, 365.] 3d. The husband had not resided in the State of Maine during the year preceding the filing of his libel, nor during any year after their marriage. 4th- The causes of divorce alleged in that libel did not accrue in that state.</p> <p>It was agreed that the acts of the Legislature and the decis ions of the Supreme Judicial Court of Maine might be referred to by either party; that if in the opinion of the full court the judge’s construction of the meaning of cohabitation was not in accordance with the law of Maine, the finding upon that fact should be reversed; and that if, upon the facts and findings above stated, so far as competent, the libellant was entitled to a decree of divorce, such decree should be entered; otherwise, the libel should be dismissed.</p>

<p>Contract by the executor of the will of Lorenzo S. Cragin against the defendant as indorser of a promissory note for $2500, dated August 6, 1875, payable two years after date to the order of the defendant, and signed by Harlan Page. On the back of the note were the following indorsements:</p> <p>“We hereby guarantee the payment of the within noté at maturity, value received, waiving all right of notice and demand.</p> <p>“H. J. Culver.</p> <p>Chas. L. Currier.</p> <p>D. W. Page.</p> <p>C. N. Conkey.</p> <p>William W. Page.”</p> <p>“Received of H. J. Culver, C. L. Currier, D. W. Page and C. N. Conkey, Nov. 12, 1877, two thousand and sixty dollars on the within note, being four fifths of the amount thereof, and they are, in consideration thereof, hereby forever released from any attempt to collect from them or either of them the balance due on this note. Joseph H. Lathrop, executor.”</p> <p>The answer contained a general denial; denied that the defendant indorsed the note, and alleged payment and a release. Trial in the Superior Court, without a jury, before Brigham, C. J., who found that Harlan Page made, and the defendant indorsed, the note declared on; that, at the maturity of the note, legal demand of payment was made on Harlan Page, who failed to make payment, and legal notice of such demand and failure of payment was duly given to the defendant; that the persons, whose names appear on the back of the note as guarantors thereof, were guarantors thereof, and were released, in manner and form as stated on the back of the note, and that the plaintiff and defendant executed an indenture the material parts of which appear in the opinion.</p> <p>Upon these facts, the judge ruled that the plaintiff was not entitled to recover; ordered judgment for the defendant; and reported the case, for the determination of this court, on the question of law arising on the releases. If the ruling was correct, the judgment was to stand; otherwise, a new trial to be had.</p> <p>The case was argued at the bar in November 1879, by S. Albee, for the plaintiff, and B. Avery, for the defendant; and was after-wards submitted on briefs to all the judges.</p>

<p>If the allegations of a bill in equity to enforce an express trust concerning lands clearly imply that the declaration of trust was not in writing, it may be availed of by demurrer.</p> <p>A. bill in equity, against the administrator and heirs of W., alleged that C., an uncle of the plaintiff, who, at the time of his death, was supporting the plaintiff, then an infant and an orphan, in the family of W., his brother-in-law, and who died without making a will, intended to make the plaintiff “ the heir at law of one full half of all his property and estate; ” that on his death-bed he gave direction that one half the same should be the property of the plaintiff; that the plaintiff’s name should be changed; that W. should be appointed his guardian; that, after the settlement of C.'s estate, C.’s father, who was sole heir at law, “ being desirous of carrying into full effect the intentions and wishes of his deceased son in relation to the plaintiff,” at the instance and suggestion of F., who was the owner of one undivided half of certain land in another state, the title to the whole standing in the name of C. alone, and also at the instance of W., who had been appointed guardian of the plaintiff, executed and delivered a deed of this land to F., to C.’s administrator and to W., as copartners; that neither C.’s administrator nor W. paid any consideration for this conveyance, and that it was not the intention of the parties that W. should take any title therein in his own right, but only in his representative capacity; that he “ never claimed any personal interest in said land, but only as the guardian of the plaintiff, and as holding under said deed in trust for the use and benefit of the plaintiff.” Held, on demurrer, that the bill did not set forth any ground upon which to raise an express, implied, resulting or constructive trust for the benefit of the plaintiff; and that the bill could not be maintained.</p>

<p>Land conveyed to a single woman was, after her marriage, attached in an action against her by her maiden name, the creditor being ignorant of the marriage. Judgment was afterwards recovered against her by the same name, and the land was sold on execution. After the attachment and before judgment, the woman, by her married name, and adding her former name, mortgaged the same land to a person who had no actual notice of the attachment. Held, that the attachment took precedence of the mortgage. Held, also, that the fact that, after her marriage and before the. attachment, she made a conveyance of land in the same county by her married name, was not constructive notice to the attaching creditor of the marriage.</p> <p>A writ of entry against a mortgagee of land, to which the plea was nul disseisin, was submitted to the court on agreed facts, which set forth the respective titles of the parties and stated that the mortgagee had never taken possession of the demanded premises, although there had been a breach of condition. Held, that, if the demandant had the better title, he was entitled to judgment.</p>

<p>Tort for personal injuries occasioned to the plaintiff by a fall from a staircase in a dwelling-house in Boston, owned or occupied by the defendant. Trial in this court, before Ames, J., who allowed a bill of exceptions in substance as follows:</p> <p>The defendant was in the habit of letting tenements in the house in question to various tenants. The plaintiff’s husband hired a tenement of the defendant, and began to occupy it on May 11, 1878. There was evidence that, at that time, the defendant pointed out the top of an outbuilding, connected with the house, as the place where the plaintiff was to hang out clothes for drying. There was a staircase in two flights leading from the ground of the back yard to the top of the outbuilding; and the plaintiff, on May 15, while going up the stairs to hang out her clothes for drying upon the roof, received the injuries complained of, in consequence of the giving way of one of the steps of the staircase. It was admitted that the defendant knew that the stairs were greatly decayed and unsafe, and there was no evidence that he cautioned or notified the plaintiff that they were so. The tenants in the building were in the habit of passing through the rooms on the second story occupied by a tenant, when they had occasion to go to said roof. Whether this access to the roof was pointed out to the plaintiff was in dispute, and the evidence on that point was conflicting. There was no other visible external means of access to the roof except by the above-described stairs. It was in evidence that the stairs had been substantially disused for many years. Some of the witnesses testified that two of the steps were broken away, and had wholly disappeared, two years before the accident. The plaintiff testified that only one step was missing, and that she undertook to go up the stairs, not knowing that there was any other access, and, on cross-examination, testified that when she began to go up the steps she heard a crack under her feet, and felt a sort of yielding under her, but made haste to go up without any further examination into the condition of the stairs.</p> <p>The defendant asked the judge to rule as follows: “1. A landlord does not guarantee the soundness of the premises let to his tenants, nor is there any implied warranty or guaranty on his part. 2. If the jury find that the steps in question were not used as a means of access to the shed where clothes were hung to dry, then the plaintiff went upon them at her own risk, and the defendant is not liable for the injuries received thereby.</p> <p>3. The fact that the plaintiff has testified that she hurried up the steps without observing their condition at the time, and that she made no inquiries whether those steps were used for the purpose of access to the shed, is such evidence of the want of due care on her part that she is not entitled to recover.</p> <p>4. If the jury find that two steps were gone at the time of the accident, and the plaintiff attempted to pass over them, she was not then in the exercise of due care, and is not entitled to recover.”</p> <p>The judge declined so to rule, and instructed the jury as follows : “ In the case of landlord and tenant, there is no implied warranty on the part of the former that the demised premises are tenantable or in good condition, the tenant being supposed to examine and judge for himself. This rule, however, does not literally apply to the passageways, staircases and door-steps that are meant for general use by all the tenants;-and no one of the tenants is responsible for the repairs of such places. The land- ’ lord is bound to keep such parts of the premises as are intended for the common use of all the tenants in such a state of repair that they can be safely used, or at least to caution the tenants not to use them if they are not safe. If the stairs were apparently intended to furnish a passage to the roof, and if the plaintiff had not been cautioned not to go that way, and if there was nothing in the appearance of the stairs that would indicate to a prudent person that they were unsafe, she might properly go there; but if they were manifestly in such a ruinous and decayed state that she ought to have seen or known that they were dangerous, she could only go there at her own risk. If she had been cautioned not to go up the stairs, and if another access had been pointed out to her, she cannot hold the defendant responsible for the accident.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>In an action for the price of goods sold and delivered, the defendant contended that he made an entire contract for the purchase of a larger quantity than was delivered, and sought to recoup the damages he had sustained by reason of the delivery of only a part. It appeared that the contract was for the purchase of a certain number of cases of goods, and the kinds, sizes and quality of the goods were specified. The plaintiff contended that the contract was conditional on his having the goods in the stock then on hand. The defendant contended that the contract was for an absolute sale of the number of cases ordered. The evidence upon this question, and upon the question whether the plaintiff had the entire number of cases in stock, was conflicting. The defendant testified that the “ sizes he ordered were the ordinary run of sizes.” He was then asked, against the plaintiff’s objection, “ whether other sizes varying more or less from them would have been equally convenient to him in his business; ” which question he answered in the affirmative. Held, that the admission of the question and answer afforded the plaintiff good ground of exception.</p>

<p>The acceptance of a lease containing a covenant that the lessee will give up the demised premises to the lessor at the end of the term in as good order and condition “ as the same now are or may be put into by the lessor,” is a sufficient consideration for an agreement, executed and delivered by the lessor contemporaneously with the lease, which refers in terms to the lease, and in which the lessor binds himself to make forthwith certain repairs upon the premises.</p> <p>An agreement to submit to arbitration, the effect of which is to oust the courts of jurisdiction, is invalid.</p> <p>An agreement, executed and delivered by a lessor contemporaneously' with a lease of certain greenhouses, recited that the boiler and heating apparatus were not in satisfactory order, and other small repairs were needed in and upon the houses; and, in consideration of the lease, the lessor agreed to put the boilers and heating apparatus in good working order, to furnish the lumber required to repair the benches, and to put the houses “ generally in good working order.” Held, that he was required to do only the work in and upon the greenhouses themselves, necessary to put them in good order; and not to place guards on the roof of an adjacent building on the demised premises to protect the greenhouses from snow and ice which might slide from that roof.</p>

Tobt for false imprisonment. Trial in the Superior Court, before Colburn, J., who reported the case for the determination of this court, in substance as follows: On September 4, 1877, an execution in common form was issued from the Municipal Court of Boston, in favor of the defendant against the plaintiff for $55.33 damage, and $31.93 costs of suit.

<p>Contract on an account annexed. At the trial in the Superior Court, before Putnam, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

Bill in equity by Oscar Iasigi, administrator with the will annexed of Auguste Hilarión Dromel, late of Marseilles in the Republic of France, against the Chicago, Burlington and Quincy Railroad Company and Francis E. Parker.

Contract upon an account annexed for work done for the defendant’s intestate.

Contract in two counts. Writ dated May 13, 1879. The first count was upon the following instrument, declared on as a promissory note: “ The Union Pacific Railroad Company will pay the bearer at its office in the city of Boston on the first day of March, A. D. 1876, forty dollars current money of the United States, or seven pounds British sterling money, at the option of the holder, at the banking-house of Messrs.

<p>Tobt against a constable of the city of Boston, for the conversion of personal property. Trial in the Superior Court, before Putnam, J., who allowed a bill of exceptions in substance as follows:</p> <p>After the commencement of the suit, the defendant filed his petition in bankruptcy, and subsequently obtained his discharge, which is filed in the case in bar of further proceedings. The plaintiff thereupon filed the following replication, and offered to prove the facts alleged in it: “ And now comes the plaintiff and replies that this debt or claim is not discharged by bankruptcy; that the property alleged in the declaration to be converted by the defendant, was attached by him on two writs in his capacity of constable of the city of Boston; that both writs were duly returned to court, and one action was disposed of by the entry of neither party, and in the other a verdict has been obtained for the defendant ,• that the property attached by the defendant in those suits is the property of the plaintiff in the present suit, and that the present plaintiff was not a party to either of the other suits, yet the officer has not released said property, but holds it as against this plaintiff, who is the rightful owner. Wherefore, the plaintiff says this case is not affected by the defendant’s discharge in bankruptcy, the debt being created by the fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in a fiduciary character.” The defendant thereupon requested the court to rule, upon this offer of proof, that the facts, if proved, would not constitute a claim which was exempted from the operation of the discharge. The judge so ruled, and ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Although by the provisions of the TJ. S. St. of March 3, 1873, and of the St. of 1873, c. 189, the title in land taken by the United States for a post-office in Boston did not vest in the United States until the assessment and payment of damages thereby occasioned, yet the title taken was that which existed when the petition for the valuation of the land was filed by the agent of the government ; and the owner is not chargeable with taxes and betterments assessed upon the land while the proceedings upon such petition were pending.</p>

Contract on an account annexed, against the executor of the will of Bernard O’Reilly, for board, tuition, clothing and other necessaries furnished to the testator’s niece, Margaret O’Reilly, from April 13, 1875, to April 13, 1877. Trial in the Superior Court, without a jury, before Brigham, C. J., who found for the plaintiff, and ordered judgment for the full amount claimed; and the defendant alleged exceptions. The facts appear in the opinion.

Contract for money had and received. Writ dated June 11, 1879. The case was submitted to the Superior Court on agreed facts, in substance as follows : On September 15, 1877, the plaintiffs were the owners of a promissory note for $642.79, dated Kalamazoo, Michigan, September 10, 1877, payable five months after date to the order of Patrick Reynolds, signed by John J. Mullen, and indorsed by Reynolds and by the plaintiffs.

<p>The rights of different persons claiming to represent a subordinate lodge of the Order of Good Templars of Massachusetts are to be determined by the constitution of the Grand Lodge, and, although a subordinate lodge has done acts which render it liable to have its charter declared forfeited by the Grand Lodge, yet, until such forfeiture has been declared, it is entitled to possession of the property of the lodge; and a bill in equity cannot be maintained against its members to recover possession of such property by persons claiming to be recognized by the Grand Lodge as the subordinate lodge, until they have exhausted the remedies prescribed in the constitution of the Grand Lodge.</p>

<p>Under the Gen. Sts. c. 57, §§ 137, 138, providing that the trustees oí a savings bank shall be chosen annually, and shall appoint a treasurer who shall hold office during their pleasure, the office of the treasurer is not an annual one; and a bond given by him for the faithful performance of the duties of his office “ while he acts as treasurer ” is a continuing bond.</p>

<p>Con tract against the principal and sureties upon a probate bond given by Emily Harwood as executrix of the will of her husband, John Harwood. She was defaulted, and the action was defended by the sureties. Hearing before Fndicott, J., who found that there was a breach of the bond, ordered judgment for the plaintiff, and sent the case to an assessor to assess the damages; and the defendants alleged exceptions to the above finding. The assessor made and returned his report to the court, and, at the hearing, Lord, J. affirmed the findings of the assessor in matters of fact, and ruled as matter of law that the plaintiff was entitled to nominal damages only; and the plaintiff alleged exceptions. The facts appear in the opinion.</p>

<p>Contract on an account annexed for board and other supplies furnished the defendant at the McLean Asylum for the insane at Somerville, from October 1, 1872, to August 25, 1873.</p> <p>The writ, dated December 19,1876, alleged that the defendant was an insane person, and that Edward A. Caswell was her guardian. Service was made upon Caswell, who appeared and filed an answer, alleging that before October 1, 1872, the defendant was insane, and has since continued to be so; that, about October 15, 1869, the plaintiff made an agreement with William A. Towne and Isaac H. Wright for the defendant’s board and the supplies to be furnished her at the McLean Asylum while she should be there; that, after she had been removed therefrom, the plaintiff brought an action in the Superior Court on this agreement, against Towne and Wright, for the same cause of action for which this action is brought, and at October term 1875, recovered judgment thereon, which judgment is still in force.</p> <p>Trial in the Superior Court, without a jury, before Gardner, J., who found for the plaintiff for the full amount claimed; and reported the case for the determination of this court, in substance as follows:</p> <p>The plaintiff read the pleadings, and rested. The guardian made no objection to the items of the account; but put in evidence, which was admitted against the plaintiff’s objection that it was not admissible under the pleadings, of the following facts:</p> <p>The defendant was received into the McLean Asylum on October 13, 1869, while suffering from an attack of violent and acute mania, on the written request of one of the proprietors of the hotel in Boston where she was boarding, and the certificate of two physicians. On October 15, of the same year, William H. Towne and Isaac H. Wright signed and delivered the following instrument to the plaintiff:</p> <p>“In consideration of Mrs. Caroline Fairbanks being admitted a patient into the McLean Asylum for the insane, at our request, we, the undersigned, jointly and severally promise the Massachusetts General Hospital to pay the treasurer thereof at said asylum quarterly, on the first days of January, April, July and October, with interest after said days respectively, the rate of board which may from time to time be determined by the trustees of said hospital for said patient; to provide or pay for all requisite clothing and other things necessary or proper for the health and comfort of said patient; to pay for all proper expenses incurred for the return of said patient to the asylum in case of elopement; to remove said patient when discharged; to reimburse funeral expenses in case of death; and if removed uncured against the advice and consent of the superintendent, before the expiration of three calendar months, to pay board for thirteen weeks, the rate at which the patient is admitted below, and the trustees may change the same at any time, giving us three weeks’ notice by mail in case the rate is to be raised. Witness our hands this fifteenth day of October, 1869.”</p> <p>On the same paper was the following order of admission, signed by' two of the visiting committee of the plaintiff: “ Receive the above-named patient if brought within two weeks from date, at $30 per week.” By virtue of this order, the defendant, after the obligation of Towne and Wright was given, was retained at the McLean Asylum until August 25,1873, when she was removed to an asylum at Hartford, where she has since remained.</p> <p>Towne was appointed guardian of the defendant soon after October 15, 1869, and paid the defendant’s bills at the asylum until October 1, 1872. Towne resigned his office as guardian on March 10, 1872, and informed the superintendent that he would not be longer liable for the defendant’s bills. No other guardian was appointed until April 25, 1873, when Caswell was appointed.</p> <p>The action set forth in the answer was brought by the plain tiff, and judgment was recovered against Towne and Wright by agreement of parties for the amount due from October 1, 1872, to April 25, 1873.</p> <p>On this evidence, the defendant asked the judge to rule that the action could not be maintained; but the judge refused so to rule.</p> <p>The plaintiff then offered in evidence the testimony of Towne that he went to the asylum with the defendant when she was first taken there from the hotel as above stated; and that the superintendent of the asylum asked him about the defendant’s means and previous condition, and what she could afford to pay, and was told; that the superintendent also gave him the blank form of obligation, and said that the rules of the institution required this to be signed, but that it was a mere matter of form when insane persons had property. The defendant objected to this evidence, but the judge admitted it for the purpose of showing to whom credit had been given. ‘</p> <p>The defendant then renewed his request for a ruling that the action could not be maintained; but the judge refused so to rule.</p> <p>If the rulings were right, judgment was to be entered for the plaintiff; otherwise, such order to be made as the court should deem proper.</p>

<p>Bill in equity, filed November 30, 1878, by a mortgagee of several parcels of land, against the city of Boston, Walter Farnsworth, W. E. Woodward and William H. Piper, to enforce a lien upon money due from the city of Boston for damages for land taken by the city, under the St. of 1873, e. 340. The case was heard by Colt, J., upon a statement of facts, the material parts of which were as follows:</p> <p>On June 2, 1871, Woodward and Piper, who then owned the several parcels of land, executed a mortgage of them to the plaintiff, the condition of the mortgage being that, if the grantors should pay to the plaintiff “ the sum of one hundred thousand dollars in five years from date, with interest semiannually at the rate of seven and a half per cent per annum,” “ then this deed, as also one note of even date herewith signed by the said W. E. Woodward and W. H. Piper, whereby they promise to pay to the said corporation or order the said sum and interest at the times aforesaid, shall be void.” The note referred to was signed by Woodward and Piper, and was as follows: “Boston, June 2, 1871. For value received, we jointly and severally promise to pay to the Union Institution for Savings in the city of Boston or order the sum of one hundred thousand dollars, in five years from this date, with interest, to be paid semiannually, at the rate of seven and a half per centum per annum during said term, and for such further time as said principal sum or any part thereof shall remain unpaid.”</p> <p>On December 2, 1871, Woodward and Piper made a second mortgage of the same parcels of land to the plaintiff, to secure the payment of the further sum of $20,000, in four and a half years from that date. The terms of this mortgage deed and of the promissory note given therewith were the same, so far as they related to the payment of interest and the rate, as in the previous mortgage and note.</p> <p>On October 11, 1873, Woodward and Piper made a third mortgage of the land to William H. Hill, subject to the mortgages to the plaintiff. On October 17, 1874, Hill assigned this mortgage to Farnsworth, who on February 15, 1875, sold the land, for breach of condition, under a power contained in the mortgage, to a person who two days afterwards reconveyed the land to Farnsworth.</p> <p>Farnsworth never saw the mortgage notes given by Woodward and Piper to the plaintiff, nor knew their tenor, except so far as they were described in the mortgages on record. Interest was paid on both notes to June 2,1875, and $5000 was paid oil account of the principal of the second note in 1874.</p> <p>On September 1, 1873, the board of aldermen of Boston passed an order, under the St. of 1873, e. 340, establishing the grade of the Northampton Street District, in which the parcels of land in question were situated, in order to secure complete drainage, to prevent nuisances and to preserve the public health; and on September 5, 1873, an order passed by the city council, directing the owners of lands in that district to raise the grade of their lands, was approved by the mayor. The city entered upon the lands, raised the grade thereof, and assessed the cost to the owners; and on March 8, 1875, Farnsworth notified the city that he was dissatisfied with the assessment on his lands, and offered to surrender them to the city; On March 22, 1875, the committee of the city council to whom was referred this notice reported that no further action was necessary as all the parties having a legal interest had not joined in the surrender. Two days after this, Farnsworth requested the plaintiff to join in the surrender; and the plaintiff, on the same day, gave notice to the city that the plaintiff “ approves of said order of surrender, and desires that said premises may be surrendered to said city, conformably to law; yet not so as to affect or impair the rights or security of this corporation to recover the amount due on the mortgages thereof.” In November 1876, the city council passed an order taking the lands in question, which order was approved by the mayor, and was recorded on December 1, 1876, in the registry of deeds. Farnsworth thereupon, not agreeing with the city upon the damage done to him by such taking, filed several petitions in the Superior Court for a jury to assess his damages. The plaintiff in this action petitioned the Superior Court for leave to join in these petitions of Farnsworth, and for an assessment of its damages by reason of the taking; and this petition was granted. At the trial of one of the petitions, it was agreed between the present plaintiff and Farnsworth that, if the jury found for the petitioner, their verdict up to $131,000 should be for the present plaintiff alone, and that, for any excess above that sum, their verdict should be for Farnsworth; the judge instructed the jury accordingly; and the jury returned a verdict in favor of the present plaintiff for $131,000, and in favor of Farnsworth for $11,000. On exceptions taken by the city, it was held that the present plaintiff, not having taken possession under its mortgages, was not entitled to join in the petition of Farnsworth, and a new trial was ordered. See Farnsworth v. Boston, 126 Mass. 1. At the subsequent trial, the jury assessed the value of the same parcel of land at $112,887.87. In both, trials, the court ruled that the damages should be assessed for the value of the land in March 1875.</p> <p>The plaintiff contended that it was entitled to the principal of the mortgage debt, and to interest at seven and one half per cent from June 2, 1875. Farnsworth admitted the plaintiff’s claim, except as to the amount of interest, which he contended should be but six per cent from that date. Since the filing of the bill the plaintiff had been paid the entire amount of its claim except the difference between the two rates of interest, which amounted to the sum of $6943.12.</p> <p>The judge made a decree for the plaintiff for that sum and costs; and the defendant Farnsworth appealed.</p>

<p>A testator devised certain real estate to trustees in trust to pay the income thereof to- his daughter N. during her life; on her decease, to pay the income of a certain portion of such estate to her daughters A. and M. during their lives, and upon their decease, to convey “ said estate ” in fee to the heirs at law of A. and M.; upon the decease of N., to pay the income of the remaining portion of the estate “ to her children ” during their lives, “ and as the children of N. successively decease,” said remaining portion was “to he conveyed in fee to the heirs at law of all the children of N.” At the death of the testator, N. was fifty-five years of age, and had children living. Held, that the devise of life estates to the children of N. included children horn after the death of the testator-; and, it being conceded that, if such was the case, the limitation over to the heirs of such children was void for remoteness, that the estate thus limited passed under the residuary clause of the will, which devised “ all the rest, residue and remainder of my estate, real and personal, of every nature and description,” although certain other remainders and reversions were therein specified as coming within this general description. -</p>

Indictment on the Gen. Sts. c. 161, § 15, charging the defendant with the larceny of two watches, the property of Thomas S. Davis, in a building also the property of Davis.

<p>Indictment containing seventeen counts, some for larceny, and "some, under the Gen. Sts. c. 161, § 38, for embezzlement. At the trial in the Superior Court, before Pitman, J., a verdict of not guilty was returned on the fifth count, and a nolle prosequi was entered as to all the other counts except those hereinafter stated, on which the defendant was found guilty; and a bill of exceptions, in substance as follows, was allowed:</p> <p>The second count charged the embezzlement of twelve hundred and thirty-one dollars. The fourth count, the larceny of four hundred and twenty gallons of distilled spirits, and of four hundred and twenty gallons of whiskey. The seventh count, the embezzlement of seven hundred and sixty dollars. The tenth count, the embezzlement of eight hundred and sixteen dollars. The twelfth count, the embezzlement of nine hundred and sixty-five dollars. The fifteenth count, the embezzlement of eleven hundred and fifty-nine dollars. The counts for embezzlement alleged the money taken to be the property of Rachel S. Gaff and Oliver Perrin, copartners; and the count for larceny alleged the goods taken to be the property of Oliver Perrin.</p> <p>The defendant had been employed by the firm of J. W. Gaff & Company, of Cincinnati, Ohio, distillers of whiskeys, under a written contract, dated October 10, 1876, by the terms of which he was “to sell our whiskeys and distilled spirits in the New England States; ” and to “ receive in lieu of salary ” certain specified commissions. “All goods to be priced to the said D. Smith at our lowest net cash price; and for any advance that the said D. Smith may be able to obtain from any customers in the said New England States, over and above our net cash prices, the said D. Smith shall receive fifty per cent of any such advance, in addition to the commissions already named above; the said Daniel Smith shall devote his entire time and attention to the sale of our goods, visiting such cities and towns in New England as said Daniel Smith or ourselves shall deem expedient for the proper sale of our goods, and as often as the necessities of the trade demand it; the said Daniel Smith, in consideration of above commissions, shall pay his own travelling and incidental expenses, and shall receive no other salary or pay for his services than the commissions above named; the said D. Smith shall report all sales as fast as they are made directly to us, and no sales shall be considered binding until approved by us; upon all time sales he shall get three cents advance upon our net cash price for sixty days’ time, for thirty days one cent, and for ninety days four cents; also, in consideration of above commissions, he shall guarantee say fifteen per cent of all sales made by him or to his territory; the said Daniel Smith shall put a limit upon what credit each and every customer in said New England States shall be entitled to, and that we shall at no time exceed said limit except upon our own risk, or upon consultation with him.”</p> <p>Thomas T. Gaff, a witness for the government, testified that he was manager of the business of the firm of J. W. Gaff & Company, of which firm Oliver Perrin was a partner ; that the defendant was paid his commissions directly from the firm; that he would draw on them and they would accept his draft, and that this was the only way in which he was paid; that he received no commission for making collections, had no authority to use such collections for himself, was not permitted to deduct a commission for sales out of a collection, and had never done so; that for. some time the defendant had made various collections for the firm, and it had been their practice to receive them and ratify them; that they found no fault with this course of business, but only with his not paying over; that in all these collections the defendant never sent bank-bills by express, but forwarded a check of the amount of the collection, payable to their order, and signed either by himself or the creditor from whom the collection was made.</p> <p>As to the second count, there was evidence that the defendant, on July 25,1879, at Springfield, Massachusetts, collected by á check to his order, which he indorsed and got cashed at a Springfield bank, $1231.23, from Eugene Lynch, in payment for a bill of goods, sold by him on behalf of the firm, and five days afterward wrote a letter from Boston, remitting his own check, on the Columbian National Bank of Boston, payable to the order of J. W. Gaff & Co., for the same amount, and that this check was never paid. The government put this check in evidence, against the objection of the defendant, -who also objected to the evidence of the way in which he was paid his commission. It appeared, further, that the firm, by its letters, had instructed the defendant to make a settlement of this bill and collect the same.</p> <p>As to the seventh count, there was evidence that Joseph Doherty, by a note due April 8, 1879, had settled his bill of goods sold on behalf of the firm by the defendant at Boston, which note the firm had put into a bank for collection, and the same remained unpaid; that on May 30, 1879, they forwarded the note to the defendant, with instructions to collect it, and wrote several letters between that date and July 23,1879, calling upon the defendant to return the note and make a report thereon, bo which no answers were ever given; that Doherty, on April 25, 1879,- paid the defendant, in bank-bills, silver, and, possibly, a small check, the amount of said note, taking a receipt therefor, signed by the defendant as agent of said firm; and that this payment was never remitted to said firm.</p> <p>As to the tenth count, there was evidence that the defendant, on July 9, 1879, was paid by Austin Cannon, in bank-bills, the sum alleged in that count, for goods sold on behalf of said firm, by the defendant, at Boston; and that this sum was never paid over to the firm.</p> <p>As to the twelfth and fifteenth counts, there was evidence that John J. McCormick and Daniel Shea, in July 1879, severally paid to the defendant, by their checks to his order, the several amounts in those counts, in settlement for bills of goods sold to them, on behalf of said firm, by the defendant, at Boston, and took receipts therefor, signed “ D. Smith, for J. W. Graff & Co.; ” and that these collections were never received by the said firm.</p> <p>Upon the tenth, twelfth, and fifteenth counts no special order had been given to the defendant to collect.</p> <p>The government introduced evidence, that about July 30, 1879, the defendant left Boston, abstracting from his safe his journal, ledger, and a book kept in accordance with rules of the United States Internal Revenue, wherein all sales of liquors and the serial numbers of the barrels were required to be entered; that afterwards he was traced to Leadville, Colorado, where he was living under the name of Williams, and was arrested; that he subsequently admitted that he had destroyed his books, had lost ten or twelve thousand dollars in gambling, was sorry for what he had done, and, if he should be imprisoned for five years, would do all in his power to make restitution to the firm.</p> <p>The defendant put in checks upon the First National Bank and Columbian National Bank, both of Boston, for various sums, amounting in all to more than $16,000, having numerous dates, between October 1878, and June 1879, signed by the defendant, and payable to the order of J. W. Graff & Co.; and showed that neither the defendant nor said firm, during the time covered by the indictment, had any license to sell liquors in Boston, where the defendant had his office.</p> <p>The defendant asked the judge to rule, that, if the defendant received from a customer, in payment for a bill for Gaff & Co.’s goods, a check payable to the defendant’s own order, he could not be convicted of embezzling the money of Gaff & Co. But the judge declined so to rule,, and instructed the jury that there was no variance between money and a check; and if the defendant received a check for a bill of said goods, although payable to his own order, he could be convicted on the charge of embezzling the money of Gaff & Co., if the other elements constituting embezzlement were proved.</p> <p>The defendant also requested the judge to give the following, among other instructions, as to embezzlement:</p> <p>“ 1. If by the terms of an agent’s employment he is bound to pay over to his principals the proceeds of sales specifically, and in the same shape as was received, and transmit to them the same identical bank-bills, coin, or checks received by him, without' authority to mix the same with his own funds, a fraudulent conversion of them would be embezzlement. But if, from the terms of his employment, or the understanding between him and his employers, or the previous usage and course of business between them, or the nature of the business itself, or otherwise, Smith had authority to mix the proceeds of the sales and collections made by him with his own funds, his use of them, and not paying over the amount so received by him, would not be embezzlement. 2. The kind of agent meant in the statute against embezzlement is an agent employed in a lawful business; and if the business in which Smith was employed by Gaff & Co. was to sell their whiskey and liquors here, and neither of them had a license to sell the same here pursuant to our law, the business was an unlawful business, and Smith would not be liable to indictment as an agent of Gaff & Co., within the meaning of the statute, for the embezzlement of their property, which came to his hands as their agent here, and was entrusted to him in the course of transacting and carrying on such unlawful business.”</p> <p>The judge gave the last part of the first request, commencing with the words, “ But if,” in the language requested, but omitted the words, “ and in the same shape as was received, and transmit to them the same identical bank-bills, coin, or checks received by him,” in the first part of the first request, and instead thereof instructed the jury that, if it was the defendant’s duty to pay over the specific fund received by him, it would not be affected by a mere change in the form of ihe fund for convenience; that is, if the defendant received gold in payment, be could change it to bills or a check. If the fund retained its identity, so long as it retained its identity it was Gaff & Co.’s ; and a fraudulent conversion of the fund would be embezzlement. But if he was not bound to pay over the specific amount received by him, but had authority to mix it with his own, and account at some future time, then it would not be embezzlement; and that any variance between money and a check was cured by the Gen. Sts. c. 161, § 42.</p> <p>The judge declined to give the second instruction asked for, and instructed the jury on this point, that, even if the business was unlawful, the defendant might be convicted of larceny and embezzlement; that the law was violated whether the business was lawful or unlawful; and, without ruling whether the sales were made in Boston or in Cincinnati, instructed the jury that the question of the lawfulness or unlawfulness of the business was immaterial in a criminal case of this kind. Other and full instructions upon the law of larceny and embezzlement upon points not embraced in defendant’s requests were given, and not excepted to. The defendant alleged exceptions.</p>

Indictment found at May term 1879 of the Superior Court for the county of Essex, containing nine paragraphs, the first three of which were as follows: “ The jurors for the Commonwealth of Massachusetts, upon their oath present, that Albert E. Pemberton, late of Haverhill in said county of Essex, on the first day of February in the year of our Lord one thousand eight hundred and seventy-nine, and in the night-time of said day, at Haverhill, in the county of Essex aforesaid,…

<p>Indictment for perjury, as follows:</p> <p>“ The jurors for the Commonwealth of Massachusetts on their vath present, that on the eleventh day of January in the year <i>£ our Lord one thousand eight hundred and seventy-nine, at Boston in the county of Suffolk, one Josie Bradley was lawfully apprehended and arrested upon the charge and offence of being a common night-walker, theretofore and then committed by her, said Bradley, in said Boston; and in a convenient place, to wit, the station-house situated on Joy Street in said Boston, duly and legally kept in custody upon the charge aforesaid; that on said eleventh day of said January, and while said Bradley was held in custody in said station-house upon the charge aforesaid, said Bradley made due application to Charles A. Barnard, Esquire, a bail commissioner within and for said county, legally authorized and duly qualified to take bail in criminal cases in said county, to be admitted to bail; that upon due hearing and examination it then and there appeared to said Barnard, as such commissioner, that the Municipal Court of the city of Boston had jurisdiction of the charge and offence upon which said Bradley had been so arrested and apprehended as aforesaid, and of the person of said Bradley; and said Bradley was then and there lawfully ordered by said Barnard, as such commissioner, to recognize, with surety in the sum of two hundred dollars, personally to appear before the Municipal Court of the city of Boston, then next to be holden at said Boston, for the transaction of criminal business, on the tenth day of said January at nine of the clock in the forenoon, there to answer to the charge aforesaid, and also in like manner personally to appear at any subsequent time or term of said court, to which the consideration of said charge might by said court be continued, if not previously surrendered or discharged ; and so from time to time and term to term until the final,decree, sentence or order of said court thereon, and to abide such final decree, sentence or order of said court thereon, and not to depart without leave; that thereafter, to wit, on said eleventh day of said January, and before the expiration of twenty-four hours from the time when said Bradley was so arrested upon the charge and offence as aforesaid, at said Boston, before said Charles A. Barnard, Esquire, a commissioner as aforesaid within and for said county of Suffolk, legally authorized and duly qualified to take bail in criminal cases in said county, one James L. Sargent, of said Boston, offered himself as bail and surety for said Bradley, as required by said order; that said Sargent was then and there lawfully required by said commissioner, pursuant to the course and practice of taking and approving bail, to make a written statement, under oath, of his, said Sargent’s, circumstances and property, the same being material to aid said commissioner in determining whether he would and should take and approve said Sargent as such bail and surety; that said Sargent, being then and there duly sworn by said commissioner to the requirement aforesaid, did then and there, in pursuance of said requirement, make said statement, and did then and there, being so sworn as aforesaid, falsely, wilfully, knowingly and corruptly say, depose and swear in and by said written statement as follows, that is to say: ‘ Commonwealth of Massachusetts. Suffolk, ss. Before Charles A. Barnard, commissioner to take bail in criminal cases in said county, I, James L. Sargent, of Cambridge, in the county of Middlesex and Commonwealth of Massachusetts, offer myself as surety in the sum of two hundred dollars for Josie Bradley. And I on oath depose and say that I am more than twenty-one years of age; that I reside in Cambridge in the county of Middlesex and Commonwealth aforesaid; that my residence is situated on Union Street in said Cambridge, and is numbered 24 (meaning twenty-four) on said street, and that I have personal estate in said Cambridge; that its value is not less than two thousand dollars; that it consists of five horses and divers carriages and harnesses, three of said horses being kept by me in a stable adjoining my said residence, No. 24 (meaning number twenty-four) Union Street, and two of said horses being kept at a stable in Broadway, all in said Cambridge, and that it is subject to no incumbrance; and that the amount of my debts and liabilities of every kind, absolute and conditional, .does not exceed one hundred dollars, and that there are no unsatisfied judgments or executions standing against me, and that I am under no recognizance; that my credit is good, and that I am worth in good property not less than two thousand dollars, over and above all debts, liabilities and lawful claims against me, and all liens, incumbrances and lawful claims upon my property. James L. Sargent.’ Whereas, in truth and in fact, said Sargent did not then have personal estate in said Cambridge of the value of not less than two thousand dollars, consisting of five horses and divers carriages and harnesses, and did not then and there own three horses, then being kept by him in a stable adjoining said residence, and did not then keep any horses in a stable adjoining said residence, and did not then keep or own any horses in any stable on Broadway in said Cambridge, and was not worth in good property not less than two thousand dollars; all of which he, said Sargent, at the said time when he so deposed and swore as aforesaid, then and there well knew. And so the jurors aforesaid, on their oath aforesaid, do present and say, that said James L. Sargent, on said eleventh day of January, before said Charles A. Barnard, Esquire, then and there having such power and authority as aforesaid, in manner and form aforesaid, did knowingly and wilfully commit wicked and wilful perjury; 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 filed a motion to quash the indictment, for the following reasons: “ It sets forth no offence against the law of the land. It sets forth no offence in due form of law. It wants due precision and certainty. It does not allege that the defendant falsely, wilfully, knowingly and corruptly committed, the supposed offence. It does not allege that the testimony given by the defendant was material to the issue to which it is supposed to refer. No good and sufficient assignments are therein contained. It does not charge plainly and clearly the false oath, nor the oath itself. It does not allege and specify, with requisite distinctness, the particulars of the supposed false statement or statements.” Dewey, J. overruled the motion; and the defendant excepted.</p> <p>The defendant then pleaded not guilty. At the trial Charles A. Barnard, bail commissioner, testified that, on January 11,1879, he was called upon late at night by the defendant, to go with him to a police station and bail out one Josie Bradley, who had been arrested that same night; that on arriving at the station-house he filled out, from the statements made to him by the defendant, in answer to his questions, a printed blank as contained in the indictment; that after he had filled out the blank, it was read to the defendant, and then signed and sworn to by the defendant; that he did not swear the defendant prior to the filling out and signing of said statements, to make true answers under oath to such questions as might be put to him touching his, said. Sargent’s, circumstances and property; that the only oath administered to the defendant was that above de scribed. The defendant excepted to the admission of evidence that the oath had been administered after the defendant had signed the written statement, and to the admission of all of, this evidence and contended that there was a fatal variance between the oath as set forth in the indictment and that proved.</p> <p>John L. Howard, a police officer of Boston, and other witnesses for the government, testified as to their knowledge and investigations of the residence and property of the defendant, and that there was no such house, or number, or stable, at 24 Union Street, or any stable at the corner of Elm and Broadway, or on Broadway, where the defendant on January 11 stated that he had horses, and that the defendant had no horses in his possession. ' The government offered no further evidence as to the property described in the said written statement and indictment, or any further evidence on the point of ownership or the value of the property.</p> <p>After all the evidence for the government was in, the defendant asked the judge to rule that the precise location was not material, and that a falsity in this respect alone would not sustain the charge; that there was no sufficient evidence to be submitted to the jury, or require the defendant to answer, as there were not two sufficient witnesses, or the equivalent thereof, to the falsity of the alleged statements, or the material points of these assignments of perjury. The judge gave the first ruling requested, and declined to give the others, unless the defendant would rest his case.</p> <p>The defendant then testified that he formerly resided, and still claimed a residence, in Cambridge, at the house of his brother, though for the last year and a half he had lodged and boarded in Boston; that this residence was, in May last, at No. 19 Union Street, afterwards at his brother’s house, corner of Elm Street and Hampshire Street, which was but a short distance from Union Street, or the corner of Elm Street and Broadway; that there was a stable ■ connected with both houses, No. 19 Union Street and that on the corner of Elm Street and Hampshire Street; that he and his brother together owned the horses mentioned in the defendant’s statement, and kept the same at these stables; that at the time he made this statement he thought the" house was on the corner of Elm Street and Broadway; that he stated his qualified interest in this, property to the commissioner ; that he did not intend to falsify, and believed his statement to be true; that the same was made in good faith, and under the explanations and qualifying circumstances given to the commissioner; and that he honestly believed the value of the property to be as given.</p> <p>The defendant was asked by his counsel whether or not he had, a short time prior to this statement, told several persons that he owned or had an interest in the horses, and what it was. The question was objected to, and excluded.</p> <p>The defendant’s brother testified that he and the defendant owned the horses; and there was other evidence that they were kept as the defendant testified, and as to the value of the horses.</p> <p>The government contended that the defendant did not own any of the property set forth by him, and that, if he did own any portion of it, the portion owned by him was well known to him to be of much less value than stated by him, and that the testimony of the defendant and his brother, that the defendant was a joint owner with his brother of said property, was false; and these questions were argued to the jury.</p> <p>After the evidence was in, the defendant asked the judge to instruct the jury as follows : “ 1. That, while it may be according to the practice and not unlawful to take the written statement of the party justifying as bail, there is no law requiring this course to be pursued, and perjury does not consist in the falsity of the written statement, but, on the whole' testimony, on the material assignments. 2. That, unless the government proves that the written statement is in substance the defendant’s whole testimony on the material assignments, there can be no conviction. 8. That, even if the defendant swore rashly, hastily, inconsiderately and ignorantly, and without any reasonable cause, if he believed his statement to be true, it would not constitute the offence charged, and all this must be weighed from the standpoint of the defendant, and not of the jury; and that there was no evidence of two witnesses, or the equivalent thereof, to warrant a conviction.”</p> <p>The judge declined to give these instructions, but instructed the jury as follows: “If the jury are satisfied, beyond a reasonable doubt, that the defendant wilfully, corruptly and falsely swore to the truth of the material statements as to property set forth in the written statement signed by him, knowing well at the time that the same was untrue, they should convict; and that the evidence should be considered from the standpoint of the defendant, and not that of the jury or court. To convict the defendant, the government must introduce the testimony of two witnesses showing the falsity of the material statements, or of one witness and facts equivalent to the evidence of a second witness.</p> <p>“ If the defendant believed at the time that the property was of great value, the same being in Cambridge, at or near the place described, the precise location not being material, although he may have fixed the value too high by mistake, inadvertency or error of judgment, or carelessly; yet, unless it was so fixed designedly and with a corrupt and wilful intent to mislead the commissioner and induce him to accept the defendant as bail, the jury were not justified in adjudging him guilty. But if the defendant intentionally or recklessly, with gross carelessness,, well knowing the value to be much less, placed the value of the property with the said intent at the sum stated, that would be sufficient to convict him of having wilfully, corruptly and falsely sworn to the truth of the statement signed by him, and would warrant their finding him guilty of the crime.” Other rulings were given as to the question of ownership, which were not excepted to.</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>An indictment, under the Gen. Sts. c. 162, § 1, charging the defendant with the forgery of an accountable receipt for money, is sustained by proof that he inserted additional words and figures in a genuine receipt for money, by which the amount originally named therein was increased.</p>

Tort. The declaration alleged that the plaintiffs were co-partners with one Robert Breck, and, as such, joint owners with him of a large stock of merchandise, kept and exposed for sale in the store occupied by said firm in Springfield; that on July 18, 1878, the defendant, a deputy sheriff, attached said merchandise in a suit duly commenced against Robert Breck; that the plaintiffs notified the defendant that they were part-owners thereof, and requested him to have the same…

<p>The record of a Court of Insolvency, as made up or amended by direction of the judge, cannot be contradicted by parol evidence upon a petition to this court, under the Gen. Sts. c. 118, § 16, to vacate the proceedings.</p> <p>A person, against whom and his partner proceedings in insolvency have been instituted, cannot avoid them on the ground that his partner was an infant when the proceedings were begun, if the infant was then represented by a guardian ad litem, and has ratified the proceedings after coming of age.</p> <p>If the judge of the Court of Insolvency declines to entertain an application of the petitioning creditor to vacate proceedings in insolvency, because not presented at a regular meeting, and the application is withdrawn, without asking for an order of notice thereon, or giving opportunity to other creditors to come in and prosecute the proceedings, the refusal of the judge affords no ground for this court to vacate the proceedings, under the Gen. Sts. c. 118, § 16.</p> <p>A judge of the Court of Insolvency should not be joined as a defendant in a bill in equity, under the Gen. Sts. c. 118, § 16, to vacate proceedings in insol vency.</p>

<p>A landowner, who has applied, under the St. of 1873, c. 261, to the Superior Court for a jury to assess his damages sustained by a change of grade of a highway, and has obtained a verdict in his favor, is not entitled to costs.</p>

Tort against a deputy sheriff, for the conversion of a quan tity of hay. The answer contained a general denial; and alleged that the defendant, under a writ against George R. Carpenter, attached the hay as the property of Carpenter.

Contract by the treasurer of the city of Boston, for the benefit of John Hamilton, upon a constable’s bond, executed by Lebbeus W. Smith as principal, and by the other defendants as sureties, and containing the condition that Smith should “ faithfully perform all the duties of a constable in the service of all civil processes which may be committed to him.” At the trial in the Superior Court, before Wilkinson, J., it appeared that, in February 1876, a schooner belonging to…

Contract upon an account annexed for the price of a lot of “ spiral economizers ” placed in the defendant’s boiler.

Contract for breach of a promise of marriage. Trial in the Superior Court, before Putnam, J., who allowed a bill of exceptions in substance as follows : The plaintiff put in evidence tending to prove that, in May 1875, she and the defendant mutually promised to marry each other; that she went to the expense of preparing certain articles of underclothing, in preparation for their marriage; and that the defendant’s attentions continued up to September 2, 1878, when he suddenly…

<p>If a person, acting as trustee for others, makes a contract in his own name, his cestuis que trust are not liable thereon, although the fact that he is a trustee is not known to the person with whom he makes the contract at the time it is made.</p> <p>If a declaration alleges that a contract was made by A., as agent for the defendant, and sets forth facts which show that A. was not an agent, a demurrer to the declaration does not admit the fact of agency.</p>

<p>A testatrix, whose property consisted principally of land, devised to one of her three daughters, “ her heirs and assigns,” one third of the residue of her estate, “ provided, however, that there shall be set apart from her share ” a certain legacy to each of her children, to be kept at interest “ until the youngest child becomes twenty-one years of age, the interest meanwhile to be paid to said legatees specifically.” The will contained similar provisions for the other daughters and their children. Held, that the legacies to the grandchildren were a charge upon each parent’s share; and that an action would not lie against the executor therefor.</p>

<p>The provision of the Gen. Sts. c. 124, § 8, that “ no arrest shall be made after sunset, unless specially authorized by the magistrate making the certificate,” does not apply to an arrest upon an execution for costs only.</p>

<p>Appeal from an order of the Superior Court for judgment on an award made and returned into that court in pursuance of a submission under the Gen. Sts. c. 147, §§ 1, 2.</p> <p>The record showed that the appellant, on October 27, 1879, entered with the appellee into a submission, under the statute, of the appellant’s claim for damages sustained by reason of personal injuries alleged to have been caused by the negligence of the appellee on August 29,1879, while the appellant was a passenger on the railroad of the appellee, to the determination of three arbitrators, the award of whom, or of the majority of whom, being made and reported to the Superior Court for the county of Suffolk, the judgment thereon was to be final; that, under date of November 3, 1879, the arbitrators reported to the court their award, which set forth that the arbitrators, in pursuance of the submission, had duly notified the parties, and, having heard and considered their several allegations, proofs and arguments, awarded and determined that the appellee should pay to the appellant the sum of $1200, and should also pay certain bills.</p> <p>The record further showed, that the appellant filed a motion to set aside and vacate the award, assigning certain reasons therefor which it is now unnecessary to state; that the appellee filed a motion, setting forth that the bills referred to in the award had been paid, and moving that judgment be entered on the award for $1200 and interest from the date of the award; and that the court accepted the award, and ordered judgment accordingly.</p> <p>The copies from the Superior Court included this memorandum, signed by Pitman, J., following the appellant’s motion to set aside and vacate the award: “ Jan. 13, 1880. Motion overruled. I hold that the matters set forth in the within motion, if proved, are not sufficient in law to authorize setting aside the award.”</p>

<p>A testator, by his will, gave an equitable life estate in one fourth part of the residue of his estate to each of his two surviving sons with a limitation over to his issue, a life estate in one fourth to the children of his deceased son H. with a like limitation over to their issue, and a life estate in the remaining fourth to his daughter S. with a limitation of a life estate to her children and a further limitation over to her grandchildren. He then provided as follows : “ And if either of my said children shall die without children or grandchildren, I direct the share of income of such child or children to be paid to my surviving child or children and to the children of my son H. in the manner above provided during the natural life or lives of such surviving child or children and grandchildren. It is my intention that my grandchildren shall take by representation, and, on the failure of issue of either of my children, the share of such child shall vest in the issue of my surviving children and the issue of my son H., and be paid whenever the same is distributable agreeably to the provisions of this will.” The testator’s son W. died without issue. Before the death of W., the other son of the testator and his daughter S. had died, each leaving issue. Held, that the income of W.'s share should be divided equally among the issue of each of the testator’s three children who left issue.</p> <p>A testator devised property in trust to pay the income to A. for life, with remainder to his children for life, and, on their death, to pay the principal to A.’s grandchildren on their respectively coming of age. At the death of the testator A. had one child living, who was then unmarried. At the death of A., this child had children living. Held, that the trustee could not ask the instruction of the court on the question whether the devise to the grandchildren was void for remoteness, until the death of the child of A.</p>

<p>A testator devised the residue of his estate to a trustee upon the following trusts : “ In ease my daughter shall be left a widow, to pay over to her, during her widowhood, all the interest on such sums as may be in his hands at the time she shall become a widow; and in case my said daughter shall leave any child or children, the amount in said trustee’s hands shall be paid over to such child or children at their maturity, or when of full age of twenty-one years; ” in case she should leave no child or children, the trustee was to pay over the amount in his hands to the testator’s brother. The daughter survived the testator, and died leaving a husband and two children, one of whom subsequently died unmarried before either child came of age. Held, that the grandchildren took interests in the nature of remainders, which vested in them at least upon the death of their mother; and that the interest of the child who died passed upon his death to his father as his heir</p>

<p>A mere reference to a plan, in the descriptive part of a deed of a lot of land, does not import a stipulation by the grantor that the plan shall not, in any respect, be subsequently changed in parts not adjacent to the land sold.</p>

<p>By the terms of a mortgage made by a railroad corporation to trustees, to secure the payment of certain bonds with interest coupons attached, in case of default in payment of principal or interest, the trustees were to take possession of the property mortgaged for the purposes of foreclosure, and on the foreclosure becoming absolute, by such possession continuing a certain time, the bondholders might form themselves into a new corporation, with a capital stock equal to the outstanding mortgage debt, at a meeting at which each bondholder Was entitled to cast one vote for “ every one thousand dollars principal sum of such bonded debt held by him.” It was further provided that the new corpora tion should consist of the holders of the mortgage bonds, “ at the rate of ten shares for every bond of one thousand dollars, as said bonds shall be surrendered to said new corporation to be exchanged for certificates of stock at the rate aforesaid.” While this mortgage was in force, the railroad corporation made a contract with A., by which the latter agreed that the interest maturing on a portion of the mortgage bonds should be paid at maturity; that an agreement to that effect should be indorsed on these bonds; and that any interest which A. should be obliged to pay should be and remain a valid lien on all the property secured by the mortgage. Held, that, upon foreclosure of the mortgage, the capital stock of the new corporation was to be determined by the principal sum of the mortgage debt, without regard to the unpaid interest; and that a holder of bonds, issued under the contract between the corporation and A., and who had received payment of interest from A., was entitled to ten shares of stock for each bond, without redeeming the coupons paid; that A. was not entitled to any stock; and that a person to whom A. had sold interest coupons when overdue had no greater fights than A.</p>

<p>Contract to recover the amount of a tax assessed on May 1, 1876, by the defendant city, upon a lot of land owned by the plaintiff corporation on the west side of Bumstead Lane in Boston, and paid by the plaintiff under protest. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court on appeal, upon the following agreed facts :</p> <p>The plaintiff was organized in 1871, under the Gen. Sts. c. 32, and was authorized by the St. of 1875, c. 92, to hold real and personal estate, for the purpose of its organization, to the amount of $100,000, in' addition to the amount allowed by the General Statutes. The articles of association stated the purpose of the corporation to be “to promote Christian principles, and to reclaim the destitute, ignorant and vicious classes of the community from the evils under which they labor; ” and provided that “no person shall be eligible to be elected a member of said corporation, unless he be a member of the congregation of the Most Holy Redeemer.”</p> <p>In April 1871, after its articles of association were recorded, the plaintiff purchased, for the purposes for which it was organized, a large parcel of land on Tremont Street in Boston, which was divided into two lots of unequal size by a private way called Bumstead Lane, the fee in the soil of which way was owned by the plaintiff, and over which the owners of certain other estates had a right of passage.</p> <p>At the time of the conveyance there was a house on the lot east of Bumstead Lane, which house was at once occupied by the plaintiff for the purposes set forth in its articles of association. This house was afterwards enlarged, and new buildings, consisting of a clergy-house, school and church, were erected. No tax has been assessed on this lot, it being conceded that it was exempt from taxation under the General Statutes.</p> <p>The lot on the west side of Bumstead Lane was not, at the time of the purchase, occupied by any building, and has remained vacant to the present time. The plaintiff intended to place one of its new structures on this lot, and surveys and plans were made, but it was discovered that the cost of obtaining a secure foundation for a large building would be much greater upon this lot than on the easterly lot, and the location of the buildings was accordingly changed. The plaintiff intends to construct one or more light buildings of wood on the westerly lot for school purposes. The land of this lot is loamy, and suited to cultivation, while that of the easterly lot is chiefly a solid ledge of rock; but such parts of each as are suited for cultivation are cultivated, and are and have been occupied by grass, vegetables and fruit-trees. The vegetable products are small, and are consumed by the officers and servants of the plaintiff, or given away in charity.</p> <p>The plaintiff has leased no part of the premises, and has derived no profit from them; and no part of the premises has been occupied by other than the plaintiff’s officers and servants. The entire parcel of real estate on the east and west sides adjoins lands with numerous buildings thereon, some of them tenement houses, densely populated, and the plaintiff contends that the lands are of value to the plaintiff for light and air, and to prevent the tod near proximity of causes of sickness.</p> <p>The chief business of the members of the congregation of the Most Holy Redeemer is preaching and religious exhortation and teaching. The entire front of the east parcel on Tremont Street is occupied by the buildings of the corporation, whose officers contend that both the east and west parcels are necessary to the purposes set forth in their articles of association, which claim the defendant denies.</p> <p>If the court should find for the plaintiff, judgment was to be entered for 1355.60, with interest from December 21,1876; other wise, for the defendant.</p>

Contract upon a promissory note for $3000, dated March 29, 1870, payable to the plaintiff or order five years after date, and signed by the defendant. Writ dated November 2, 1878. The answer admitted the making of the note, but averred that it was a mortgage note, and that the mortgage had merged.

<p>Three actions oe contract upon policies of marine insurance. At the trial in this court, before Morton, J., the jury returned a verdict for the plaintiffs; the case was reported for the consideration of the full court, and appears in the opinion.</p>

<p>l widower devised tlie residue of his estate to his brother, in trust, to take from the income what he should deem necessary for the support and education of the testator’s only son during his minority; to add the excess of income over the sum expended to the principal of the fund; and, upon the son’s coming of age, to pay over to him, for his own use, one half of the principal with accumulations, the other half to be held in trust to pay over the entire income to the son during his life, and, at his death leaving issue, to transfer the principal to such issue as he should by will direct, or, in default of such issue, to the son’s children in equal shares; in case of the son’s death before coming of age, or of his subsequent death leaving no issue, the property then held in trust was to go to the trustee. The testator subsequently made a codicil to his will, which, after reciting that he was about to marry C., and making provision for her, proceeded as follows: “In case I shall leave any child, or children, or posthumous child, born of C., then, and in such case, I give to each and every such child the sum of $250,000, the same to be held in trust by my brother until such child attains the age of twenty-one years, and if daughter or daughters, the same is to be held in trust so long as they shall live, and the income only to be paid to them for their own sole and separate use, and if son or sons, one half, with the accumulated income, to be paid over to them, and the other half to be held in trust, on the same terms as the property I have left my son in my will.” Held, that the reference to the will in the codicil governed the provisions for daughters as well as those relating to sons; that the trustee could devote such portion of the income as was needed for the support and education of a daughter during her minority; that the residue should be added to the principal; that, after a daughter came of age, she was not entitled to any portion of the accumulated income, or to have the trust terminated, but only to the income during life of the principal and accumulated income, with a power of disposal by will among her issue, if any.</p>

<p>The U. S. St. of March 1, 1847, § 2, which provides that “ moneys taken from the mails ” by theft or robbery, which come into the possession of any of the agents of the post-office department, shall be paid to the order of the Postmaster General, for the benefit of the rightful owner, applies to the proceeds of such moneys; and this court will not entertain a bill in equity brought by a person who had stolen money from the mails against a postmaster, to enforce a trust deed executed by the thief, by which he conveyed to the defendant the proceeds of such moneys, in trust to pay claims arising out of the theft, and to return the balance to the plaintiff.</p>

<p>If A. brings an action upon a promissory note against B., who sets up in defence that he has paid the note and that he has a claim in set-off against A. larger than the amount of the note, and the jury return a verdict for B. under his declaration in set-off, the verdict is conclusive that A. had a cause of action against B., and the latter cannot maintain an action against A. for malicious prosecution founded upon such cause of action.</p>

Petition, under the Gen. Sts. e. 150, to enforce a mechanic’s hen for materials furnished in the erection of a building in Cambridge.

<p>Writ of entry, dated November 16,1877, to recover a parcel of land in Watertown. Plea, nul disseisin. Trial in the Superior Court, before Allen, J., by whose direction the jury returned a verdict for the tenant; and the demandant alleged exceptions. The facts appear in the opinion.</p>

<p>A testator devised his estate to trustees, in trust to pay the income of $4000 to his son for life; to his son’s wife for life, if she should survive him; and, on their death, the income and principal to go with the residue of his estate. The will also contained many provisions for the income of different portions of his estate, and included in the remainder “ the income of any of the aforegoing principal sums that may lapse thereinto.” By a codicil, which recited that he had given his son the income of $4000 for life, he declared that he altered the legacy by adding to the same the income of $2000 additional “ to be paid in the same way and manner.” By a subsequent codicil he directed his trustees to pay the in come of $4000, in addition to the income of $6000, to his son, “ so that he shall have the income of $10,000 during his life; the principal sum on his decease to lapse into the residue of my estate.” Held, that the bequest to the wife of his son was revoked by this codicil.</p>

<p>The owners of letters patent of the United States for a certain invention formed an association for the purpose of introducing the invention in Europe and obtaining patents therefor; and executed a declaration of trust, which declared that they held the property for the use of the association; and provided that no member of the association should receive any money on behalf of the association, except as authorized by the declaration of trust; that an executive committee should have the general management and control of the business; and that all votes of the association, not inconsistent with the declaration of trust, should be binding upon the trustees, the association and the executive committee. On the day this was executed, an indenture (referred to in the declaration of trust) was made between the trustees and A., a member of the association, by which A. was to sell the invention in Europe and pay over the proceeds to the trustees. No sale having been made under this indenture, the executive committee authorized one of the trustees to go to Europe and sell the letters patent for not less than a certain sum. After he had left this country in pursuance of this authority, the association, at a meeting at which the other trustee was present and acting, passed a vote authorizing the absent trustee to sell the letters patent for such sum as he should deem best, and directing the proceeds to be deposited in a bank in England to the credit of A. for the use of the shareholders. The executive committee passed a similar vote. The absent trustee, acting under these votes, made a sale in England of the letters patent, and the money therefor was paid to A. in this country by the agent of the purchaser. On the return of the trustee to this country, he demanded the money of A., who refused to pay it. This trustee subsequently made a contract with A., by the terms of which certain sums were to be paid by A. out of this money, and the ° balance distributed among the shareholders. Held, in an action for money had and received, by the trustees against A., to recover the proceeds of the sale, that, even if the votes of the association were inconsistent with the declaration of trust, the trustees had waived their right to take this objection; and that the action could not be maintained.</p>

<p>If the estate of a deceased person is represented insolvent, and commissioners are appointed by the Probate Court to adjudicate upon the claims of creditors against the estate, and no appeal is taken from the decision of the commissioners upon the claims presented, the neglect of the administrator of the estate to render his account within six months after the return of the commissioners, if no further time is allowed him by the court, is a breach of his administration bond, under the Gen. Sts. c. 99, § 26; the return of the commissioners, without any appeal, is “ the final liquidation of the demands of the creditors,” within the meaning of the statute; and the fact that a creditor presents a contingent claim against the estate, upon which no action is taken, is immaterial.</p> <p>If the sureties upon an administration bond are discharged by the Probate Court, and a new bond is given to and accepted by the court, with other sureties, and there is a breach of the bond before such discharge, caused by the failure of the administrator to render his account within the time required by law, the original sureties are not liable for the full value of the property in the hands of the administrator, if he has not misappropriated it before their discharge, but only for nominal damages, or such damages as are caused by his delay in filing sn account; and if such property is lying idle and unproductive, there being no misappropriation, interest during the period of the administrator’s delay to file his account is the measure of damages.</p>

<p>Contract for breach of the covenant of seisin contained in a deed of land from the defendant to the plaintiff. Trial in the Superior Court, without a jury, before Dewey, J., who found for the plaintiff; and reported the case for the determination of this court. The facts appear in the opinion.</p>

<p>In an action against the executor of the maker of a promissory note, not negotiable, which had been assigned to a third person before maturity, for whose benefit the action was brought, it appeared that the defendant’s testator had indorsed another promissory note for the accommodation of the nominal plain tiff, which note was due at the time the note in suit was given, but was not paid by the defendant until after notice to the testator of the assignment of the note in suit. Held, that the defendant could not, under the Gen. Sts. c. 180, set off this note, although the plaintiff in interest knew when he took the note in suit that the payee was insolvent. Held also, that these facts, together with the facts that the assignee of the note was warned by the defendant not to take the note, and that the nominal plaintiff was not called as a witness at the trial, would not warrant the jury in finding that the parties to the note in suit agreed that the amount which the testator might be called on to pay on the accommo. dation note should be in part payment of the note in suit.</p>

<p>If a policy of life insurance contains the provision that the policy “ shall not take effect until the advance premium hereon shall have been paid during the lifetime of the person whose life is hereby insured,” a payment of such premium by a third person, without the knowledge of the assured, is of no effect, although made with his money; and Ms administrator cannot ratify the act.</p>

<p>Writ oe entry brought by an infant, by his next friend, to recover a parcel of land in Springfield. The case was submitted to the Superior Court upon the following statement of facts;</p> <p>In May 1871, and for several years previous, James M. Ross and Cynthia B. Ross resided in the county of Erie and State of Pennsylvania. On March 13, 1871, James M. Ross presented to the Court of Common Pleas for said county of Erie his petition representing “that he is desirous of adopting Walter H. Smith ” (the present demandant), “ an infant son, of the age of five months, of John Wesley Smith, and Mary Smith, now deceased, of said county, as one of his heirs, and for that purpose he herein declares his said desire, and also that he will perform all the duties of a parent to said Walter H. Smith; ” and therefore praying the court to decree that said Walter H. Smith might assume his name, and have all the rights of a child and heir of said James M. Ross, and be subject to the duties of such child. The petition was signed and sworn to by James M. Ross, and was also signed by John Wesley Smith, the surviving parent of the child, for the purpose of giving his consent to such adoption. After due proceedings had upon the petition, that court, at May term 1871, as appears by its records, “ being satisfied that the welfare of said minor, Walter H. Smith, will be promoted by the adoption prayed for, and further that the surviving parent of said child consents to said adoption, ordered, adjudged and decreed that the said child shall assume the name Walter H. Ross, and have all the rights of a child and heir of the said James M. Ross, and be subject to all the duties of said child.” At that time the statute of Pennsylvania of 1855, c. 456, which is copied in the margin,* was the law in force in that State relating to the adoption of children; and under the law of that State the demandant became the adopted child of James M. Ross.</p> <p>Afterwards, in the year 1871, James M. Ross with his wife and the demandant came to reside in Springfield in this Commonwealth, and continued to reside in Springfield until May 1873, when James M. Ross died intestate, the owner in fee of the demanded premises, and leaving no other child than the demandant.</p> <p>Both parties claim title to the demanded premises; the demandant as the child and heir of James M. Ross, and the tenant as brother of James M. Ross.</p> <p>Allen, J. ruled pro forma that the demandant had not maintained his ease; ordered judgment for the tenant; and reported the case to this court. If, upon this statement of facts, the demandant was not entitled to be recognized as a child and heir of James M. Ross under the laws of this Commonwealth, the judgment was to stand; otherwise, judgment to be entered for the demandant.</p>

<p>Tort for personal injuries sustained by the plaintiff while in the employ of the defendant corporation as a brakeman.</p> <p>At the trial in the Superior Court at November term 1877, before Wilkinson, J., the plaintiff offered to prove the following facts:</p> <p>Prior to June 1876, a public street in Fitchburg had crossed the defendant’s railroad by a bridge resting on stone abutments, the railroad at that point passing through a deep cut. In June 1876, upon the petition of the defendant and others, the city council of Fitchburg discontinued a part of this street, including the part which crossed the railroad, and also laid out and extended another public street on the southerly side of the railroad as a substitute for' the discontinued portion of the old street. This action of the city council was taken upon an agreement with the defendant that the latter would do all the necessary work in constructing the extended street, and effecting the discontinuance of the old street, and would pay all damages caused by the extending and discontinuance. In pursuance of this agreement, the defendant employed workmen, and proceeded to execute the work, some of which was within and some without the located limits of the railroad. The object of the defendant was to widen its railroad at and near the crossing, and to lay additional tracks.</p> <p>At the time of the plaintiff’s injury the defendant was engaged in widening its railroad at a point where it was crossed by the old street in Fitchburg, for the purpose of laying additional tracks. In the execution of the work, the defendant’s workmen had occasion to use a derrick owned and furnished to them by the defendant, for the purpose of removing the abutments of the bridge, and for building a supporting wall to the newly extended street, and for building other walls partly within and partly without the located limits of the railroad. At the time of the injury, a portion of the abutments of the bridge had been removed, leaving the bank, consisting of earth and stones, on the north side of the track, and in plain view thereof, overhanging and projecting, and of a height of. about seventeen feet. Several days before the accident, the workmen, in pursuance of the work, had set up the derrick on the north side of the track about on a level therewith, within four or five feet of the overhanging bank and within the located limits of the railroad. One guy was stretched across the track to the south side and there fastened, being of sufficient height when the derrick was upright to clear the passing trains. The other guys were fastened on the north side. The derrick was carelessly and negligently set up, the guys not being taut, and it was placed dangerously near the overhanging bank. The plaintiff did not contend that the derrick was not suitable for the work for which it was designed.</p> <p>The day before the injury was warm, and the bank thawed, and it was obvious to any one who looked at it that a large mass of the bank was loosened, and liable to fall upon the derrick. The derrick had remained in the manner and position above described for a fortnight or more, and for ten days at least before the injury had not been used. The weather had been alternately thawing and freezing during that time. On December 15, 1876, a short time before the train on which the plaintiff was at work came along, a great mass of the bank broke off and fell on to the derrick, breaking it and knocking it down, and bringing the guy stretching across the railroad down in such a position that, when the train came along, it tore off the smoke-stack of the engine and swept over the tops of the ears, striking the plaintiff and causing the injury complained of.</p> <p>The defendant employed a road-master who had charge of that portion and other portions of the railroad, and the general charge and supervision of the repairs and maintenance of the road-bed and tracks; but he had no charge of the work of altering this street, or removing these stone abutments, or digging for the additional tracks, and the men who were doing that work were not under his control. Within ten days before the injury, he passed over the railroad frequently, and knew or had reasonable cause to know the situation of the bank and derrick.</p> <p>The defendant contended that, if these facts were proved, there was no evidence of negligence on its part; and that the negligence, if any, was that of fellow-servants of the plaintiff. The judge reported the case, by consent of the parties, before verdict, for the determination of this court. If, upon the above offer of proof, the plaintiff was entitled to go to the jury, the case was to stand for trial; otherwise, judgment was to be entered for the defendant.</p>

<p>Tort by the assignee in bankruptcy of Lucius W. Pond against a bank organized under the laws of the United Statesi for the conversion of ten shares of its capital stock. Trial in the Superior Court, without a jury, before Allen, J., who allowed a bill of exceptions, in substance as follows:</p> <p>On April 13, 1866, Pond became owner of the ten shares; and the bank issued to him a certificate on that day which contained the clause that the shares were “ transferable only on the books of the bank by the said Pond or his attorney, on the surrender of this certificate.”</p> <p>On April 11, 1871, Pond signed and delivered a promissory note to the firm of A. Gr. Coes & Co. for $1500, payable on demand, with interest, at the rate of ten per cent per annum, payable semiannually. At the same time he delivered to the firm, as collateral security for the note, the certificate above mentioned, and executed on a separate paper a power of attorney, authorizing the firm to transfer the ten shares of stock to any person, and to make and execute the necessary acts of assignment.</p> <p>On October 22,1875, Pond became a bankrupt, and on November 10 of the same year the plaintiff was appointed his assignee.</p> <p>Interest was paid on the note to April 11, 1875 ; and on December 18 of.that year John H. Coes, the surviving partner of the firm, the note being due and unpaid, served a notice on Pond and the plaintiff, which, after reciting the debt and the collateral security, stated that the shares of stock would be sold by public auction on February 21, 1876. This notice and an affidavit of its service were recorded in the city clerk’s office in Worcester, where all the parties lived.</p> <p>On February 15, 1876, the plaintiff, as assignee of Pond, demanded of the defendant a transfer of the shares to himself; but the defendant refused to make the transfer; and on July 19, 1877, transferred the shares on the books of the bank to one Lovell, who purchased the shares at the sale made by Coes on February 21, 1876, Lovell giving the bank a bond of indemnity.</p> <p>The by-laws of the bank relating to the transfers of stock were as follows:</p> <p>“ The stock of this bank shall be assignable only on the books of this bank, subject to the restrictions and provisions of the act, and a transfer book shall be kept, in which all assignments and transfers of stock shall be made. Transfers of stock shall not be suspended preparatory to a declaration of dividends, and, except in cases of agreement to the contrary expressed in the assignments, dividends shall be paid to the stockholders, in whose name the stock shall stand on the day on which the dividends are declared.”</p> <p>“The form of certificates of stock shall be prescribed by the directors, and shall be signed by the president and cashier, and shall state upon the face thereof that the stock is transferable only upon the books of the bank, and when stock is transferred the certificates thereof shall be returned to the bank and cancelled, and new certificates issued.”</p> <p>The plaintiff also offered to show, that, from April 13, 1866, down to the time of his bankruptcy, Pond acted as a director of the defendant bank; that Coes & Co. and Pond, at the time of the delivery of the certificate and of the execution of the power of attorney, agreed to keep the same a secret, and agreed that the stock should not be transferred, in order that Pond might obtain a false credit by being the ostensible owner of the stock, and by remaining a director of the bank, and might thereby be enabled to induce the defendant to discount his notes, and other persons to give him credit; and that he did thereby obtain a credit which induced many persons, whose claims have been proved in bankruptcy, to trust him for the debts so proved. It was not contended that substantially all the creditors of Pond knew of his apparent ownership of this stock, and of his acting as director.</p> <p>The judge excluded the evidence offered; and found for the defendant. The plaintiff alleged exceptions.</p>

Appeal by William T. Soule from a decree of the Probate Court, appointing George H. Dunbar one of the trustees under the will of William W. Swain.

<p>Writ of entry, against Emily A. Jaques and John Harriman. to foreclose a mortgage of land in Haverhill. Plea, nul disseisin. Trial in the Superior Court, without a jury, before Pitman, J., who ruled, as matter of law, that the tenants were entitled to judgment, and reported the case for the determination of this court. If the ruling was incorrect, the case was to stand for trial; otherwise, judgment to be entered for the tenants. The facts appear in the opinion.</p>

<p>A purchaser of land, under a power of sale contained in a mortgage, who, after he has taken possession of the land, pays a tax, assessed upon the land to a subsequent mortgagee while the latter was in possession under his mortgage, cannot maintain an action against the subsequent mortgagee to recover the amount of the tax so paid.</p>

Tort for unlawfully and injuriously holding back and letting down water upon and flowing the plaintiffs’ land. Writ dated February 10, 1875.

<p>Contract for goods sold and delivered to the defendant’s wife. The case was referred to an auditor, who found the following facts:</p> <p>The defendant’s wife commenced the business of keeping a boarding-house in Lawrence on September 29, 1871, and continued in that business until October 8, 1872, on her own separate account, with the knowledge of her husband, who knew she was trading on credit with the plaintiff. The goods bought of the plaintiff were sometimes ordered by the defendant’s wife, and sometimes by her son and daughter, who lived with and assisted her in the business; and the goods so ordered were charged on a pass-book to the defendant’s wife. On October 8, 1872, she sold out the business to her daughter, who, some time in 1873, sold the business to her brother, without any written bill of sale; and he, on April 4, 1877, conveyed back the business to his said sister. The defendant’s wife remained at the house where the business was carried on about half the time from October 8, 1872, to May 26, 1877, spending the rest of the time with her husband in the State of Maine, where he resided.</p> <p>The plaintiff* contended that these conveyances from Mrs. Wright to the daughter, from the daughter to the son, and from the son back to the daughter again, were only colorable and intended as a fraud upon creditors; but the auditor did not so find.</p> <p>The plaintiff was not notified of the change, and continued to deliver and charge goods to the defendant’s wife under such circumstances as to make her liable up to May 26, 1877.</p> <p>The defendant never has been a resident of this Commonwealth, but during the whole time covered by these transactions was a resident of the State of Maine, although he made frequent visits to Lawrence; and he was not in fact carrying on the business himself, lío certificate was filed by the defendant or his wife under the St. of 1862, c. 198.</p> <p>Upon these facts, the auditor ruled that the plaintiff could not maintain his action.</p> <p>The case was submitted to the Superior Court upon the findings of the auditor; and Bacon, J. ruled, as matter of law, that the action could not be maintained, and ordered judgment for the defendant. The plaintiff alleged exceptions.</p>

Contract on an account annexed for wood sold and delivered to Charles Dustin, the defendant’s testator. After the former trial, reported 123 Mass. 541, the case was tried in the Superior Court, before Brigham, C. J., and the plaintiff put in evidence the report of an auditor in his favor, and rested his case.

<p>If a factor, under an entire contract for a gross sum, sells goods, some of which belong to himself and some to his principal, the principal cannot maintain an action against the purchaser for the value of his goods.</p>

<p>Contract by the assignee in bankruptcy of George A. Foster, to recover the surplus of the money received upon a sale under a power contained in a mortgage, from Foster to the defendants, of land in Somerville, deducting the amount of the mortgage and the interest due thereon, and the expenses of sale.</p> <p>At the trial in the Superior Court, before Pitman, J., the plaintiff offered in evidence the following:</p> <p>1st. The mortgage, executed on July 13, 1875, containing full covenants of warranty and against incumbrances; a condition for the payment of $6000 in two years from that date, with interest at the rate of eight per cent a year, and all taxes and assessments levied or assessed upon or on account of the premises; a power, in case of any breach of condition, to sell the premises by public auction, giving notice by publication in a newspaper three successive weeks, and to convey the same absolutely and in fee simple to the purchaser, “ and, out of the money arising from such sale, to retain all sums then secured by this deed (whether then or thereafter payable) together with interest, and all costs and expenses, including all sums paid by said grantees or their assigns for insurance of the premises, paying the surplus, if any, to the said grantor or his assigns; ” and an agreement that the grantees or their assigns might purchase at such sale.</p> <p>2d. The defendants’ affidavit of sale, dated September 12, 1877, setting forth the breach of condition; the notice, which described the mortgage and the land, and concluded thus : “ The above-described premises will be sold subject to all taxes and betterments due to the city of Somerville. Terms of sale, $500 cash at time of sale, balance in ten days thereafter; ” and the sale by auction on September 11, and conveyance on September 12 to Edwin C. Dolliver for the sum of $7800, being the highest sum bid at the sale.</p> <p>3d. A statement of sale, made in a letter from the defendants tc the plaintiff, charging the amount of the mortgage and interest, $6843.66, the amount “ paid William H. Ireland for back taxes, &c.” $972.35, and the sum paid the auctioneer for selling and expenses, $41; crediting the sum obtained at the sale, $7800; and thereby showing a balance due the mortgagees of $57.01.</p> <p>4th. The deed of conveyance, dated September 24, 1877, from the defendants to Dolliver, reciting the sale, and containing this clause: “ The above-described premises are subject to all taxes and betterments due the city of Somerville.”</p> <p>It appeared, and was admitted, that on June 21,1876, and June 13, 1877, the premises had been sold and conveyed to Ireland by the collector of taxes of the city of Somerville, for the nonpayment of taxes assessed thereon on May 1 of 1874 and 1875 respectively; that the taxes for 1876 and 1877 were also due and unpaid; and that the defendants first knew of such sales for taxes just before the sale under the power in the mortgage, and after that sale had paid to Ireland, to redeem the premises from the sale for taxes, the sum of $972.35, mentioned in their letter to the plaintiff. The right so to apply that sum was claimed by the defendants, and denied by the plaintiff, at the trial.</p> <p>The auctioneer was called as a witness by the defendants, and testified as follows: “ I read the printed notice, and then said that the mortgagees were ready to take another mortgage from the purchaser. I do not think anything was said as to title. Ten days were given to examine it. A gentleman present asked if there were any other incumbrances. I told him there were some outstanding tax titles. I laid stress that the sale was subject to all taxes due the city of Somerville. The plaintiff bid $7750, the defendant James W. Roberts bid $7800, and that was the highest bid, and I said ‘ sold ’ to Dolliver; that was the understanding.”</p> <p>There was also evidence tending to show that Dolliver was not present at the sale; that he had no interest therein; that he paid nothing, and that his name was merely used as a conduit to pass title to the defendants, to whom a deed from Dolliver was thereupon made; and that the whole transaction was in substance a purchase by the defendants, and they actually received no money.</p> <p>The defendants offered to show by previous conversations with the auctioneer, not at the time and place of sale, that it was understood between them that the bid of the defendants was to be in the name of Dolliver, but for their benefit, and that the amount of the outstanding tax titles referred to was to be deducted from their bid. The defendants also offered to show what the defendants understood and intended by their bid. The judge excluded these offers of proof; and the defendants excepted.</p> <p>The defendants asked the judge to rule that, upon the fore going evidence and facts, the plaintiff could not maintain his action. But the judge refused so to rule, and directed a verdict for the plaintiff, as a matter of law, for the amount claimed and interest, which was accordingly rendered; and, at the request of the defendants, the case was reported for the determination of this court.</p> <p>If the exclusion of the evidence offered or the ruling and direction were erroneous, the verdict was to be set aside; otherwise, judgment to be entered thereon.</p>

<p>In an action against a street railway corporation, a declaration alleging that the plaintiff was injured by a car of the defendant being carelessly driven upon and over him, is not supported by proof that the plaintiff was injured by another car, not carelessly driven, in attempting to escape from a car which was carelessly driven.</p> <p>In an action against a street railway corporation, for an injury caused by a car being carelessly driven upon and over the plaintiff, the fact that, at the time of the injury, the car was being driven at a rate of speed prohibited by a city ordinance, although evidence of negligence on the part of the corporation, is not conclusive evidence of such negligence.</p>

<p>A deed of land was executed by a man and his wife to a third person, who, at the same time and as part of the same transaction, executed a deed of reconveyance of the land to the wife. Held, that the declarations of this third person, made after the deeds were executed, but before they were delivered, to the effect that the deeds were executed because the husband and wife feared that the land would be attached by a creditor of the husband, were inadmissible in a writ of entry against the wife by this creditor, to whom the land was subsequently sold on execution.</p>

<p>A voluntary assignment by a debtor in another State of all Ms property situated in this Commonwealth, in trust for Ms creditors, the only consideration for which is the acceptance of the trust by the assignee, although valid in the State where made, is invalid as against a subsequent attachment of his personal property by a creditor in this Commonwealth not assenting to the assignment; and a subsequent assent to the assignment by creditors in the other State, by proving their claims under it, cannot defeat the title acquired by the attachment here.</p>

<p>If a merchant, who is under no obligation to procure insurance against fire upon goods which he has sold and which have not been removed from his shop, but who is obliged to procure insurance upon goods consigned to him for sale, procures a general policy of instirance upon his own goods, those consigned to him for sale, and those sold but not removed, and, upon a loss taking place, includes these three classes in his statement of loss, he is not responsible to the pur. chaser of goods sold hut not removed for a proportionate part of the money received upon his policy of insurance, if such amount is not greater than he would have received if he had included in his statement of loss merely his own goods and those consigned to him.</p>

<p>Tort for personal injuries occasioned to the plaintiff, a minor under five years of age, by the inhalation of gas, which escaped from the defendant’s pipes. Trial in this court, before Ames, J., who, after a verdict for the plaintiff, reported the case for the determination of the full court. If, upon the facts, which appear in the opinion, there was any evidence to be submitted to the jury upon the questions of due care on the part of the plaintiff or those in charge of him, and of any negligence on the part of the defendant which caused the injury, and if the rulings were correct, judgment was to be entered on the verdict; otherwise, judgment for the defendant, or a new trial ordered.</p>

<p>A contract for the erection of a building provided that the work should be done in all respects according to the plan and specifications which had been furnished by the architect. One clause in the specifications required “all walls to be vaulted.” By the plan, the walls of the building appeared to be sixteen inches in width, without the appearance of any vault or space intended to be left in them. Held, that, by the contract, the walls were to be only sixteen inches including the vault; and that parol evidence was inad missible to explain the contract.</p> <p>If A. contracts with B. to do certain work, and makes a sub-contract with C. for certain materials which B. by his contract with A. is required to furnish, and, after 0. has begun to make the materials, the contract is abandoned by A., the liability of B. to C. for loss of materials and profits is a proper element of damage in an action by B. against A.</p> <p>If a person summoned as trustee is indebted to the principal defendant upon a demand where interest would be recoverable by the latter only as damages for breach of contract, interest will not be deemed to accrue during the pendency of the trustee process.</p>

<p>Numerals, arbitrarily selected, and used on goods in combination with other devices to denote the origin of the goods, and not their quality, are a valid trade-mark; and a person who uses them, in combination with other devices which he has a right to use, may be restrained by a bill in equity from so using them, if he does so for the purpose of imitating the trade-mark, and his use is calculated to deceive, and does deceive, persons buying his goods.</p>

<p>A bill in equity alleged that the plaintiff mortgaged a tract of land with a house thereon to A., and, as additional security, obtained a policy of insurance against fire, payable to the mortgagee in case of loss; that the plaintiff made a second mortgage to B., and subsequently conveyed the estate in fee to C., who assumed and agreed to pay the two mortgages; that C. afterwards conveyed the estate to D., who also assumed and agreed to pay both mortgages; that A., on receiving the amount of his note and mortgage, assigned the same, when overdue, to a bank, to hold as collateral security for the joint note of D. and E. to the bank, upon the payment of which the mortgage was assigned by the bank to E.; that the building insured was destroyed by fire, and D. and E. received a certain sum in settlement of the loss; that E. assigned the note and mortgage to E. after the plaintiff was entitled to have the insurance money indorsed on the note; and that the estate was not sufficient for the paymen of the mortgages, unless the money so received was applied in payment. The only persons named in the bill as defendants were D. and E. The prayer of the bill was that “ the defendants ” be ordered to indorse the insurance money on the note secured by the first mortgage, and to cancel the mortgage to that extent; and for general relief. Held, on demurrer, that the bill could not be maintained.</p>

Contract, stated in the writ, dated June 8, 1877, to be brought for the benefit of Lewis Coleman. At the trial in the Superior Court, before Pitman, J., the plaintiff introduced evidence tending to prove the following facts: On March 10, 1873, Mayhew paid the sum of $176.34, and on November 19, 1873, the sum of $231.25, for the benefit of the defendant, and at his request.

<p>Writ of entry, dated March 18, 1875, brought to recover a parcel of land in that part of Boston formerly Charlestown. The case was submitted to the Superior Court, and, after judgment for the tenants, to this court on appeal, upon the following statement of facts:</p> <p>The demandants are the heirs at law of James W. Steams, late of Somerville, in the county of Middlesex, who died in 1863, and was a son of Sarah W. Steams. The tenants are the heirs at law of Freeman Peacock, deceased.</p> <p>Both parties claim title under the will of Sarah W. Stearns, late of Salem, in the county of Essex, which will was admitted to probate in that county on February 20, 1844, and by which she directed the residue of her estate to be divided among her children in nine equal shares, and made the following provisions :</p> <p>“ I give and bequeath one share thereof to my daughter Caroline, in trust for my son James W. Stearns, and his heirs; the income thereof, and such part of the principal as shall be judged necessary by said trustee, to be applied for the support of said James W. and his family. This trust is to continue during the natural life of said James; and the estate herein bequeathed for his use, remaining at the time of his decease, if any, shall descend to his heirs at law; or, if said trustee should otherwise determine, said trust may be terminated at any time, at the discretion of said trustee. Said trust to be held and executed by my daughter Caroline as aforesaid, her heirs and assigns, the directions of my said son James W. to be regarded in all things relating to the trust property and the disposition of the same, so far as said trustee shall consider said directions reasonable and judicious. It is my will that none of the trustees herein named and appointed shall be required to give bonds at the Probate Office for the faithful performance of their respective trusts. It is my will that my estate shall be divided among my children, as far as the same can be judiciously done, provided my children can agree among themselves as to the distribution and division thereof. The trustees herein named are fully authorized to convey, by a good and sufficient deed, any portion of the real estate by them respectively held in trust: provided they shall deem a sale thereof for the interest of those for whose benefit and use said trusts are respectively created.”</p> <p>Caroline accepted the trust, and acted as trustee until her death in 1851, unmarried, and leaving her brothers and sisters her heirs. Sarah W. Stearns’s estate was duly divided, and the demanded premises were duly assigned and set off to Caroline, as part of the share so devised to her in trust.</p> <p>No further proceedings were had in relation to the trust until, at October term 1860 of the Supreme Judicial Court for the county of Middlesex, James W. Stearns filed and presented a petition for the appointment of a new trustee, which is copied in the margin.* The record of that case did not show that any notice was given, but, after reciting the substance of the petition, stated that, “ upon hearing, it is ordered and decreed by the court here that George W. Emery, Esq., of Medford, in said county of Middlesex, be and hereby is appointed trustee under the will of Sarah W. Stearns aforesaid, in place of Caroline Stearns, late of Salem, deceased, with all the powers and duties conferred upon said trustee appointed by the will, with power to take, hold, manage, alien and convey said trust estate as fully as is given by the will to said Caroline.”</p> <p>Emery never gave any bond as trustee, and no persons interested in the trust estate certified their consent that.such bond should not be required. He was not the heir or assign of Caroline. In January and February, 1861, Emery, as such trustee, in consideration of the sum of $1188 to him paid by Peacock, executed, acknowledged'and delivered to Peacock deeds of the demanded premises; and Peacock immediately thereafter entered into possession of the premises, and made improvements thereon, and such possession has been continued by him and his heirs to the present time.</p> <p>If the demandants were entitled to recover, judgment was to be rendered for them, with no damages for rents and profits, and the tenants were to have the right to remove the improvements ; otherwise, judgment for the tenants.</p>

Contract upon a policy of insurance against fire, in the sum of $4500, for three years from October 80, 1877, upon certain buildings in the town of Norfolk, which were destroyed by fire on September 27, 1878. Writ dated February 27, 1879, and served on March 6 following.

Contract for money paid. Trial in the Superior Court, without a jury, before Brigham, C. J., who allowed a bill of exceptions in substance as follows; On July 3, 1876, the plaintiff executed and delivered to the Cambridge Savings Bank a mortgage deed of certain premises in Cambridge, to secure Ms note of $1300, with interest; and, on August 22, 1876, he executed and delivered to the defendant a quitclaim deed of the same premises, containing the following clause: “ This…

<p>A passenger, who receives an injury by falling from the front platform of a street railway car while in motion, upon which he occupies a sitting position, against the rules of the corporation and the warning of the driver of the car, and without any reasonable excuse therefor, is not in the exercise of such care as will entitle him to maintain an action against the corporation.</p> <p>It is a reasonable regulation of a street railway corporation, which it has the right to make, that passengers shall not be on the front platform of a car.</p>

<p>A passageway was laid out in the rear of lots of land which fronted on two streets, and ran in an easterly direction to another street, called S. Street; and it was subsequently extended by other owners of land in a westerly direction to the land of a third person. After this the owner of a lot of land, the rear of which was bounded partly by the passageway as first laid out, and partly by the passageway as extended, conveyed the lot, bounding it on the “passageway which runs to S. Street, with a right to the free use in common with others having rights therein of the said passageway leading to S. Street.” Held, that the grantee had a right of way only to S. Street, and had no rights in the extended passageway westerly of his land, even if his grantor had rights therein at the time of the conveyance.</p>

<p>Contract for money had and received, to recover the amount collected upon a promissory note, dated August 7, 1874, signed by F. Guss, payable in nine months after date t.o the order of A. B. Savage & Co., and by them indorsed. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court on appeal, upon agreed facts, which appear in the opinion.</p>

<p>Contract upon a promissory note for $26, dated September 13, 1878, signed by the defendant and payable in four weeks after date to the order of the plaintiff. Writ dated October 12, 1878.</p> <p>At the trial in the Superior Court, before Colburn, J., the plaintiff put in the note, and rested his case. The note exhibited at the trial corresponded with the copy in the declaration, except that there was a memorandum at the bottom of the note at the left of the signature, as follows: “ Due Oct. 12, Oct. 11,” in ink.</p> <p>The defendant requested the judge to nonsuit the plaintiff for the variance between the note exhibited and the copy in the declaration. But the judge ruled that the memorandum was immaterial, and no part of the note.</p> <p>The defendant then offered to prove that the memorandum had been altered since the execution and delivery of the note, it having been originally as follows: “Due Oct. 11, Oct. 12,” in pencil; that the parties had intended to date the note September</p> <p>14, and discovered the error simultaneously with the signing, and after the first part of the memorandum, “ Due Oct. 11,” had been written; and that the plaintiff, before the delivery of the note, at his own suggestion and with the assent of the defendant, wrote after the words “ Due Oct. 11 ” the words “ Oct. 12," for the purpose of correcting the error in the date, and of signifying the agreement of the parties that the note should not become due and payable until October 12.</p> <p>The judge ruled that this evidence was incompetent; and directed a verdict for the plaintiff. The defendant alleged exceptions.</p>

<p>At the trial of a writ of entry, the demandant claimed under A. and the tenant under B., between whom a partition had been made in 1720, by a deed which described the dividing line as established “ at two heaps of stones made on the sand near the beach bars;” the land north of that line being assigned to A., and the land south of the line to B. The monuments determining the location of the line having wholly disappeared or become uncertain, the demandant, in order to show where the “beach bars” had been, put in evidence a portion of a plan made use of by the commissioners upon a petition for partition filed in court, in 1805, by persons under whom the tenant claimed, and who were admitted by the demandant to have been the owners in fee of the land set off to B. in 1720. Upon this petition due proceedings were had, and the report of the commissioners who were appointed to make partition was accepted and confirmed by the court. Seld, that the tenant might put in evidence the entire plan and record of the partition proceedings, and also the various deeds of the persons under whom he claimed, made after the partition in 1805 and before the year 1832, and referring to the partition.</p>

<p>In an action against a railroad corporation, under a declaration alleging that the plaintiff, while travelling on the highway, was injured at a grade crossing “ by reason of the carelessness and negligence of the agents and servants of the defendant,” the jury may consider whether, under all the circumstances of the case, the defendant was guilty of negligence in not having a gate or a flagman at the crossing, although never requested by the selectmen of the town, nor ordered by the county commissioners, to do so, under the St. of 1874, c. 372, §126.</p>

<p>Tort for personal injuries sustained by the plaintiff, by falling over a wall on the defendant’s premises. Trial in the Superior Court, before Gardner, J., who directed a verdict for the defendant, and reported the case for the determination of this court, in substance as follows:</p> <p>On October 15, 1873, the defendant,. a duly incorporated religious society, was the owner of a lot of land, with a meetinghouse thereon, bounded northeasterly by Seaverns Avenue, and southeasterly by Elm Street, both public streets in Boston. A circular driveway or path, about eighteen feet wide, ran from near the corner of said street and avenue to the front doors of the meeting-house, and round to the street. This path was covered with concrete, and was smooth and level, and was the only means provided for access to and from Elm Street and the front doors of the meeting-house. The society maintained religious worship according to the usages of Congregational societies and churches. The church worshipping in the meeting-house was a voluntary association, united together by a covenant and articles of belief, and was a distinct body from the society, and had no control of the premises. Joseph B. Clark was the settled pastor over the society and church, but was not a member of the society. The care and control of the premises were intrusted to a prudential committee of five, chosen by the society. The pastor and deacons of the church had the right to grant the use of the meeting-house for religious meetings and services not inconsistent with the rights and purposes of the society.</p> <p>The plaintiff, in order to show that she was invited to attend a meeting held at the meeting-house, offered evidence tending to prove that a meeting of the Suffolk South Conference of Churches was held on the afternoon and evening of October 15, 1873, in the defendant’s meeting-house; that this conference was a voluntary association of thirty or thirty-four Congregational churches in Boston and vicinity, including the church worshipping with the defendant society, and the church in Brighton, of which the plaintiff was a member; that this conference was a distinct organization from the several churches composing it, having its clerk, or scribe, and other officers; that, by the usages of this association, its meetings were held once in six months with the different churches composing it, each church taking its turn, the place of the next meeting being determined at the conference last held; that the meeting of the conference to be held in October 1873 should, by said usages, have been held with one of the other churches, and was actually appointed to be held at some other church, and not with the church worshipping with the defendant, but, the church at which the meeting was to be held being unable to have the conference, Joseph B. Clark, without consultation with the prudential committee or other officers of the defendant society, or with the deacons of the church, and without any consent on the part of the defendant, except such as may be inferred from the facts herein stated, gave permission to the scribe or other proper officers of the conference to hold the conference meeting at the defendant’s meeting-house during the afternoon and evening of October 15,1873, and the scribe, acting upon this permission, sent notices of the meeting to the several churches; that, in accordance with the usages of the conference, the notice contained a request that each church should choose two delegates to attend the meeting, and also contained a general invitation for the other members of the said several churches to attend; that this notice was given from the pulpit of the church in Brighton, of which the plaintiff was a member, and in like manner in the defendant’s meeting-house on the Sunday next before the meeting.</p> <p>Evidence was also offered tending to prove that it was the custom for members other than delegates to attend such meetings; that the delegates and officers of the conference when assembled had charge of the meeting, voted, and transacted such business and conducted such services as came before the meeting; and that the plaintiff was not a delegate to the meeting. There was evidence tending to show that some of the members of the defendant’s prudential committee, and some or all of the deacons, were present when the notice of the meeting was given in the defendant’s meeting-house, and that no action was ever taken by the defendant society or its officers as to objecting or consenting to the meeting being held according to said notice.</p> <p>The plaintiff testified that on October 15, 1873, in pursuance of the invitation or notice aforesaid, and the custom aforesaid, she went from her house in Brighton to attend the meeting; that she had no business with the defendant society or its officers, and was not a delegate; that she attended for her own benefit and as a visitor, and that she had been in the habit of attending conference meetings with which her church was connected for forty years; that she was never before at the defendant’s meeting-house, and in going had to inquire the way there; that at about three o’clock that afternoon she entered the circular path at the corner of said avenue and street, and passed through the same and entered the front door of the meeting-house; that there was no difficulty in passing over the walk safely in the daytime; that she did not notice the wall or embankment in the afternoon, though there was nothing to prevent her seeing the same if she had looked, and that she remained within the meeting-house throughout the entire services, until the close thereof, at nine o’clock in the evening; that, at the close of the meeting in the evening, the plaintiff passed out of the front door, and as she was walking along the path towards the street, in the manner in which she usually walked, “ not fast,” she struck her right foot or leg against the wall, at a point where it was seven or eight inches high, and fell over the wall on to the sidewalk, and was injured; that said path at the time was filled with people passing out, and there were many persons before and behind her, and on her right hand; that she did not see the wall before she fell. Three friends who were with her, testified that they did not see the wall, and neither of them hit or walked against it.</p> <p>The plaintiff, in order to show that the defendant was guilty of negligence in the construction and maintenance of the path, and that the same was dangerous, offered evidence tending to prove that there was a bank wall two and one half feet high, extending the whole length of the northeasterly side of the defendant’s land, the face of which wall formed the boundary line between the land and Seaverns Avenue; that the top of the wall was eighteen inches wide, and level; that the northeasterly line of the path, from the front door of the meeting-house to the point of its conjunction with said wall, was a curved line; that at the point of conjunction the walk and top of the wall formed a level surface; that from that point to the entrance to the premises the line of the path was a straight and descending line along the inner side of the wall, and formed an inclined plane; that at the point at which the plaintiff fell over the wall, the top of the wall was seven or eight inches higher than the path; that, at the time of the accident, there was no railing or other fence than the wall between the pathway and the avenue; that a railing or fence had been put there by the defendant since the accident; that the path was not lighted, except as far as it might be lighted from the gas-lights in the vestibule of the meeting-house, and a street gas-light, on the opposite side of Elm Street, about seventy feet distant, which has, since the accident, been moved by the city to the corner of said street and avenue.</p> <p>The judge directed a verdict for the defendant. If the ruling was correct, judgment was to be entered on the verdict; otherwise, the verdict was to be set aside, and a new trial ordered.</p>

<p>A. held three mortgages on a parcel of land, and there was a fourth mortgage on the same, owned one third by B. and two thirds by C. B. assigned his one third to C., who agreed that he would account to B. for one third of the profits arising out of the sale of the estate. C. then foreclosed the mortgage, and became owner of the equity of redemption. Neither B. nor C. was liable for the payment of the notes secured by the three prior mortgages held by A. On a settlement of accounts between A. and B. arising out of other transactions, B. allowed A. to charge him with one third of the interest due on the three mortgage notes, thereby reducing A.’s debt to B. A. died, leaving a will in which his wife was appointed executrix and was the residuary legatee. She gave bond in common form, and not to pay debts and legacies. After A.’s death, B. charged in his books the balance of A.’s debt to A.’s estate, and, in 1874, so informed A.’s wife, and also told her that he would allow, as a set-off against this debt, one third of the interest falling due on the three mortgage notes, so long as C. continued to pay his two thirds of the same. This arrangement was carried out, and the interest was so indorsed on the notes until 1877, leaving a considerable balance then due B. from A.’s estate. A.’s wife rendered her final account as executrix in 1874, by which it appeared that the balance was paid to her as residuary legatee, and in this balance were included the three mortgage notes. Held, that she was not liable in equity to B. for her husband’s debt.</p>

Bill in equity, filed June 20, 1879, to quiet the plaintiff’s title to land in Boston. At the hearing before Ames, J., the following facts appeared: On July 1, 1871, Nathaniel Winsor, then the owner of a wharf, in Boston, mortgaged the same by deed of that date, duly recorded, to Francis Curtis and others, for $95,000; and, on January 1,1875, he made a second mortgage of the same estate, by deed duly recorded, to the plaintiff, for $30,000.

<p>A. conveyed land to B. and took an agreement from him by which he was to reconvey the land on the performance by A. of certain ^conditions in a certain time. B., after this time had expired, sold the land to C., who made expensive improvements on the land. C. did not have actual knowledge of the agreement between A. and B.; and A., though he knew of the sale, did not disclose his interest in the land, and by his conduct and statements induced C. to believe that B. had a right to sell. Held, that, even if the relation between A. and B. was that of mortgagor and mortgagee, A. was not entitled to the aid of a court of equity to enable him to redeem.</p>

<p>If A. sells goods to B., who sells them to C., the fact that A. supposed he was selling the goods to C. through B. as his agent, and would not have sold them to B. on liis sole credit, will not entitle A. to maintain an action against C. for the conversion of the goods.</p>

<p>The first case was an action of tort for breaking and entering the plaintiff’s close in Boston. Writ dated May 28, 1878. Trial in the Superior Court, before Colburn, J., who reported the case for the determination of this court, in substance as follows:</p> <p>The plaintiff and the defendant are owners of adjoining estates on Rutland Street, on each of which is a brick house covering the entire width of the lot, with a partition wall between them eight inches thick. The plaintiff contended that the division line between the two estates was the centre of this partition wall. The trespass complained of was a wall built by the defendant, in January 1878, on this partition wall, which covered the entire space of eight inches in front, and ran at an acute angle towards the rear, and there extended a little beyond the centre line.</p> <p>The city of Boston, before 1858, owned a tract of land on the northeasterly side of Rutland Street, and divided it up into eighteen lots, which were shown on a plan, and numbered from 1 to 18. On January 1, 1858, the city conveyed the lot now occupied by the plaintiff to William E. Blanchard, by deed as follows: “ Beginning at the southerly corner of the said land, being a point in the northeasterly line of Rutland Street, distant two hundred and thirty feet northwestwardly from the westerly corner of the brick fence of the primary school-house lot, thence running northwestwardly, bounded by Rutland Street, twenty-one feet; thence northeastwardly, parallel to Newland Street, ninety feet; thence southeastwardly, bounded by a passageway twenty feet wide running parallel to Rutland Street, twenty-one feet; and thence southwestwardly, parallel to New-land Street, ninety feet, to the point of beginning; containing eighteen hundred and ninety square feet, more or less. Being lot numbered 12 on a plan recorded with plans of city lands sold, book 2, leaf 79, in the office of the superintendent of public lands. It is understood that this conveyance is given and accepted in full performance of a certain agreement, dated May 1, 1857, given by the said city of Boston to' the said William E. Blanchard. And this conveyance is also subject to the following conditions: 1. All taxes and assessments which have been laid or assessed upon the said premises previous to the execution of this conveyance shall be paid by the said William E. Blanchard, his heirs and assigns. 2. The front line of the building which may be erected on the said lot shall be placed on a line parallel with and fifteen feet back from the said Rutland Street. 3. The building which may be erected on the said lot shall be of a width equal to the width of the front of the said lot. 4. No dwelling-house or other building except the necessary outbuildings shall be erected or placed on the rear of the said lot. 5. No building which may be erected on the said lot shall be less than three stories in height exclusive of the basement and attic, íor have exterior walls of any other material than brick, stone )r iron, nor be used or occupied for any other purpose or in an) )ther way than as a dwelling-house during the term of twenty years from October 1, 1857. It is understood that the building at present erected upon the said lot is constructed in conformity with the above conditions, and is satisfactory to the said city of Boston.”</p> <p>In June 1858, Blanchard conveyed this lot of land “ with the new brick dwelling-house thereon standing ” to Richard C. Cabot, through whom by inesne conveyances it came to the plaintiff in 1873. All of these deeds used the same language, in describing the boundaries of the land, as the deed to Blanchard, and conveyed the land subject to the conditions contained in that deed, but did not more specifically set them forth.</p> <p>The defendant derived title to his lot through a deed from the city of Boston to William E. Blanchard, dated May 14, 1858, which bounded and described it as follows : “ Beginning at the southerly corner of the said land, being a point in the northeasterly line of Rutland Street, distant two hundred and fifty one feet northwestwardly from the westerly corner of the brick fence at the primary school-house lot; thence running northwestwardly, bounded by Rutland Street, twenty-one feet; thence northeasterly, parallel to Newland Street, ninety feet; thence southeastwardly, bounded by a passageway twenty feet wide, running parallel to Rutland Street, twenty-one feet; and thence southwestwardly, parallel to Newland Street, ninety feet, to the point of beginning; containing eighteen hundred and ninety square feet, more or less. Being lot numbered 13 on a plan recorded with the plans of city lands sold, lib. 2, fol. 79, in the office of the superintendent of public lands.” The deed also stated that the conveyance was given and accepted in full performance of an agreement, dated May 1, 1857, of the city of Boston with Blanchard; and that the conveyance was also subject to certain conditions, which were set forth at length, and were the same as in the" preceding deed to Blanchard, and contained the same recitals.</p> <p>On September 28, 1858, Blanchard conveyed lot 13 to Owen Bearse, by deed which described the two side lines as running “to and through the centre of the brick partition wall”; and the description was the same in the subsequent deeds through which the defendant claimed title.</p> <p>The plaintiff put in evidence the plan of the land referred to in the deeds of the plaintiff and of the defendant. The house of the plaintiff was occupied by him from September 10,1873; and he was in occupancy of the same at the time when the acts complained of were done. The house, as constructed and existing at this time, occupied the ground to the centre of the partition wall, and was numbered 67, and the defendant’s house, as constructed and existing at the same time, occupied the land to the same centre line, and was numbered 69; each of them as thus located measuring twenty-one feet as the width of the houses respectively, including one half of the partition wall.</p> <p>A surveyor called.by the plaintiff testified that all of the lots shown on the plan are now covered with brick houses, contained in one block of the width indicated by the plan, the plan being made upon a scale shown thereon; that the house 67 stood on lot 12, as shown by said plan; that to fix the line between lots 12 and 13, he commenced at the line of Shawmut Avenue, as given to him by the city surveyor, and measured off five hundred and thirty-one feet and six inches, and this brought the centre of the wall of the houses on lots 12 and 13 into lot 12. On cross-examination, he stated that two hundred and fifty-one feet from the southwest corner of the school-house fence falls short of the side of the wall, between lots 12 and 13, by one and three fourths inches; that the school-house fence is six and three fourths inches inside of the school-house lot, as shown on the city plan; that from the brick fence of the school-house lot to the nearest house on the northwesterly side is three feet eleven and one half inches; that there was nothing on the ground to show the line of the school-house lot except the brick fence; that he could not locate the plaintiff’s lot satisfactorily by the city plan; that he located it by information from other sources ; that he did not know of the brick wall of the school-house lot ever being changed in location, since it was first named or referred to in any of the deeds in evidence; but it did not appear that he was acquainted with the premises until quite recently, when this controversy arose, and there was no other evidence as to where it stood at the time referred to in said deeds, except so far as this may appear from the deeds and plan. It did not appear that the defendant had occupied the one half of said partition wall next to the plaintiff’s house before the acts complained of, or that his house or the timbers of the same entered it or rested upon it at all.</p> <p>The defendant contended, among other things, that, even if the plaintiff owned one half of the partition wall and the land on which it stood, he had a right to raise the partition wall in order to put another story upon his own part; that the plaintiff had only an easement in the partition wall at most, if any title whatever.</p> <p>The plaintiff contended that there was evidence for the jury, under proper instructions from the court, tending to show that he was the owner of one half of the partition wall and the land covered by it; that, if not the owner in fee, he was in actual possession of the same, claiming title, when the defendant entered upon it and did the acts complained of; and that the defendant, by his deeds, had no title whatever to the land in dispute, and that he was a stranger; that, if he had any right to raise the partition wall for the purpose claimed, he had not done it either on his half exclusively, nor on the whole, so as to be of any use to the plaintiff.</p> <p>At the request of the defendant the judge ruled, as matter of law, that the plaintiff could not recover, and directed a verdict for the defendant. If the ruling was correct, judgment was to be entered on the verdict; otherwise, the verdict to be set aside, and a new trial granted.</p>

Bill in equity, filed January 6, 1876, against William C. Thompson, William A. Bacheller and Samuel Atherton, alleging that the plaintiff was the owner of certain parcels of land in Revere; that, in 1872, the former owner of the land mortgaged it for $5000 to Lyman B. Frazier, who subsequently assigned one undivided half of his interest in the mortgage and note secured thereby to the defendant Bacheller, who subsequently got possession of the' mortgage and note, and…

<p>Bill in equity, filed April 22, 1879, against Charles L. Heywood and Augustus N. Loring, alleging that, on November 20, 1874, Sarah W. Worster mortgaged to the plaintiff certain parcels of land in Revere, to secure the payment of $5000 and interest in three years from that date, which mortgage was still unsatisfied ; that, when the plaintiff took his mortgage, the land was subject to three prior mortgages, the first of which was for $3000 to Elijah A. Shaw, which was assigned to the defendant Loring on October 10, 1874; that the defendant Heywood was the owner of the equity of redemption in said land, having acquired title thereto by two conveyances, one in January 1875, and the other in March 1876, both of which conveyances referred to the mortgages, including the plaintiff’s, as still outstanding, and recited that Heywood agreed to pay the same.</p> <p>The bill further alleged that, on May 25, 1878, Loring executed a deed of the premises to Heywood, purporting to convey the land absolutely to Heywood, as the purchaser of the same by public auction, in execution of the power of sale contained in the first mortgage, of which Loring was the assignee; that the only public notice of the sale was by an advertisement in a paper called the Boston Home Journal, published in that part of Boston formerly Roxbury, having a very limited circulation, and no circulation in Revere, or in Lynn, where the plaintiff lived; that the sale took place at eight o’clock in the morning, and no one was present except Heywood, the auctioneer and one Rufus A. Johnson, the person who conveyed the equity of redemption in the land to Heywood; that the land was struck off to Heywood for $3028, when in fact its value was from $10,000 to $15,000; that Loring had nothing to do with conducting the sale or with giving the notices of it, which matters were attended to by Heywood; that the plaintiff had no knowledge of the sale until April 8, 1879; and that Heywood was not a purchaser in good faith.</p> <p>The prayer of the bill was that the sale and conveyance to Heywood might be set aside; that the defendants be ordered to assign the first mortgage to the plaintiff upon his paying what, if- anything, might be due thereon; and for further relief.</p> <p>Heywood filed an answer denying that he had anything to do with conducting the sale, and averring that he was a purchaser at the sale in good faith. Loring also filed an answer averring that he sold his mortgage to Heywood for the amount of the principal and interest due thereon; that he knew nothing about any sale under the power contained in his mortgage; and that he acted in good faith.</p> <p>At the hearing, before Ames, J., it appeared that the record title of the parties to the land in question was as set forth in the bill; that Johnson, while he held the equity of redemption under a deed in which he assumed to pay the mortgages then outstanding, purchased the second and third mortgages; that the sale was in literal compliance with the terms of the power contained in the mortgage held by Loring, and was made soon after eight o’clock in the morning of May 25, 1878; and that the circulation of the paper in which the advertisements of the sale were made was as stated in the bill. There was also evidence that the hour fixed for the sale was an unseasonable one; and that there was but one person present at the sale besides those named in the bill; that Johnson caused the notices of the sale to be advertised with Heywood’s knowledge ; that Heywood paid for the advertisements; and that the plaintiff’s knowledge of the sale was as stated in the bill. Loring testified that he knew nothing about the sale, did not authorize Johnson to advertise the land for sale, and supposed, when he signed the deed purporting to convey the land in execution of the power contained in his mortgage, that he was merely assigning his mortgage. Johnson testified that he acted with Loring’s knowledge, and as his agent, and that there was no collusion between Heywood and himself. Heywood testified that Johnson did not act as his agent, and that he bought the land in good faith. It also appeared in evidence that Heywood was removing gravel from the land.</p> <p>The judge ordered a decree to be entered that the power of sale under the mortgage held by Loring was not duly executed, and was of no validity as against the plaintiff; that the payment by Heywood to Loring of the amount secured by the mortgage extinguished the same; and that the defendants discharge the mortgage upon the record, or by deed or release; that Heywood was not entitled to set up the second and third mortgages by reason of the conveyances to him from Johnson; and that Heywood be enjoined from removing gravel from the land. Heywood appealed to the full court, where the case was heard on the bill, answer, and a full report of the evidence.</p>

<p>The plaintiff bought of a member of a firm shares of stock in a corporation, and took from the firm a power of attorney authorizing him to procure a transfer of the shares on the books of the corporation. The firm had at the time a large number of shares standing to its credit on the books of the corporation. The plaintiff delayed for some months to present his power of attorney to the corporation, and in the mean time the firm sold all of its shares to other persons, who obtained certificates from the corporation. Held, that the plaintiff was not entitled in equity, as against a partner who had no knowledge of the transactions, to a decree for the delivery to him of a certificate of the shares of stock, which had risen in value; but was entitled to a decree for the money which he had paid, with interest.</p>

<p>Since the St. of 1871, c. 312, a married woman may maintain an action of tort on the Gen. Sts. c. 85, §§ 1, 2, to recover treble the amount of money lost by her husband at gaming, he not having sued for the same within three months of the loss.</p>

<p>The costs of the proceedings of commissioners, appointed under the St. of 1871, c. 338, to make division of flats, are to be apportioned among the several owners thereof, according to the market value of their respective shares or interests, and not according to the area of the flats.</p> <p>If, upon a petition under the St. of 1871, c. 338, for a division of flats, commissioners are appointed, who notify and hear all parties interested, make their surveys and plan, and report to the court, and the report and plan are approved and ordered to be recorded, and no exception is taken to the report, the objection is not open, upon the apportionment of costs of the proceedings, that the commissioners have failed to fix the boundaries of the flats wholly below mean high-water mark and not adjacent to upland held by the same owner.</p>

<p>Under the Gen. Sts. c. 135, damages for the detention of dower cannot he recot ered prior to the demand on which the action is founded.</p>

<p>The defendant made an oral agreement with the plaintiff for the purchase of a specific lot of skins, at an agreed price per pound for merchantable skins and another price for damaged skins, and directed a third person to see them put up, and not to take them away before a certain day, because the defendant wished to ascertain in regard to his insurance. The third person agreed to take them away on the day named, and assorted part of the skins, and then left, saying he would risk the plaintiff doing it all right. The plaintiff then assorted the rest of the skins, ascertained their weights in the usual manner, entered the weights in his books, and put all the skins apart in bundles, marked with the defendant’s initials. The third person did not take them away on the day named, and they were destroyed by fire the following night. Held, that there was not an acceptance and receipt of the skins, within the statute of frauds.</p>

Bill in equity by the executors of the will of Samuel Batchelder against Nathan Morse and Maude A. Batchelder, a minor granddaughter of the testator, for whom a guardian ad litem was appointed.

<p>The first case was an action of contract brought by Martin A. Munroe, in the name of the administrator of the estate of William Green, Jr., to recover deposits in the defendant bank made by Green to the amount of $600. Writ dated June 19, 1877. The bank defended the action at the request of the administrator. Trial in the Superior Court, without a jury, before Gardner, J., who allowed a bill of exceptions, in substance as follows:</p> <p>There was evidence tending to show that the intestate delivered the bank book, issued to him by the defendant, to Munroe, for his own use, as a donatio mortis causa, but there was no assignment of the bank book by Green. Upon making the first deposit, Green subscribed to the by-laws of the defendant bank. Printed on the outside of the bank book was the direction, “ If you lose this book, give immediate information to the treasurer; ” and inside, among the printed by-laws, were the following: “ Art. 8. It shall be the duty of the treasurer to enter all deposits and payments made to depositors in the books of the bank, and a duplicate of such entry in the book of the depositor, which shall be his voucher and the evidence of the amount deposited.” “Art. 9. ISTo person shall receive any part of his principal or interest without producing the original book.”</p> <p>It appeared that the estate of Green, including said deposits, amounted to $1242.87, and that the debts were $25.40, of which last sum $25 was for the services of the doctor during Green’s last illness, and forty cents for some tobacco, both of which items had been paid, and that the funeral and other expenses did not exceed $150, unless the alleged donee, Munroe, was to be considered a creditor. Munroe testified that he had a legal claim against Green’s estate of $1300, for board furnished, and some expenses paid for Green; and on January 20, 1879, he commenced a suit against the administrator to recover said amount, which suit is now pending. Pierce was appointed administrator of Green’s estate on January 29, 1877, and the estate was represented insolvent in October, 1879, and commissioners were appointed by the Probate Court.</p> <p>The defendant requested the judge to rule, as matter of law, as follows: “ 1. The delivery of the bank book to Munroe by the deceased in his last illness, even if made when he did not expect to recover, and if intended by the deceased as a donatio mortis causa, did not pass to Munroe any right to the deposit in the bank. 2. It appearing, from the testimony in the case, that the only property left by the deceased, including the bank deposit, amounted to $1242.87, and that the deceased, at the time of the alleged gift, owed Munroe $1800 in addition to debts to other persons; that the deceased was insolvent at the time of the alleged gift, and of his death, and the gift of the bank deposit, if good in other respects, as donatio mortis causa was void, because in fraud of creditors.”</p> <p>The judge declined so to rule, and found for the plaintiff for the amount of the deposits and the interest accumulated thereon, according to the terms of the deposits, down to the date of the writ, with simple interest at six per cent from the date of the writ, against the objection of the defendant, who contended that by the terms of the deposit the interest from the date of the writ should be, if anything, only at the rate of two per cent semiannually, being the rate payable according to the terms of the contract of deposit.</p> <p>To the above refusals to rule, and to the allowance of interest at six per cent from the date of the writ, the defendant alleged exceptions.</p>

<p>A decree of a single justice of this court sitting in equity, in a cause heard before him on oral evidence, and which is heard in tills court on appeal upon a report of the same evidence only, will not be reversed on a question of fact, unless it clearly appears to be erroneous.</p> <p>A sale of stock in a corporation is valid against a subsequent attaching creditor of the seller, although no transfer of the stock is made on the books of the corporation, in the absence of an express provision of statute, or of the charter of the corporation, requiring such transfer to be made.</p>

<p>In an action against the indorser of a promissory note, payable at the plaintiff bank and discounted by another bank, it appeared that, when the note became due, the last-named bank charged it to the plaintiff bank and sent it through the clearing-house for payment; that the plaintiff’s teller by mistake, thinking that the maker of the note was in funds at the plaintiff bank, stamped the word “ paid ” on the face of the note; that the mistake was soon discovered, and, before the close of banking hours on the same day, both the other bank and the indorser were notified of it, and the note was duly protested; and that a dispute between the two banks, as to whether the rules of the clearing-house had been complied with, was terminated by a payment of the amount of the note to the other bank by the plaintiff, without any waiver of its legal rights, and, at the trial, the other bank disclaimed all title or interest in the note. The judge, who tried the case without a jury, found that the note was stamped by mistake as paid; that this act did not amount to a payment of the note, and was not intended as such; that the money paid by the plaintiff to the other bank was not intended and did not operate as a payment of the note; and that the plaintiff had sufficient title and ownership of the note to enable it to bring this action. Held, that the defendant had no ground of exception. Held, also, that the defendant could not avail himself of the rules of the clearing-house, to which he was not a party, in defence of the action.</p>

<p>Tort. The declaration contained two counts. The first count was as follows : “ The plaintiff says that while he was travelling on Cambridge Street in the city of Somerville, in the exercise of due and ordinary care, the defendant, by its agents and servants, grossly and carelessly ran and drove an engine, attached to a long train of cars, upon and over him, wounding him in his head, breaking his legs and arms, and greatly injuring him in his person.” The second count was for an injury received while on the premises of the defendant.</p> <p>Trial in this court, before Ames, J., who withdrew the case from the jury, and reported it for the consideration of the full court. The facts appear in the opinion.</p>

<p>A railroad corporation, created by the laws of another State, which has an office in this Commonwealth for the convenience of its stockholders and for the better management of .its finances and other business, where its principal officers are to be found, and where it carries on such business as is usually carried on in the office of the president and treasurer of a railroad corporation, has a usual place of business in this Commonwealth, within the meaning of the St. of 1870, c. 194, and may be summoned as trustee by process served upon its treasurer.</p>

Contract upon a poor debtor’s recognizance entered into, under the Gen. Sts. c. 124, § 10, by the first-named defendant as principal and the other defendant as surety, and containing the usual conditions. The case was submitted to the Superior Court, and, after judgment for the plaintiffs, to this court on appeal, on agreed facts, in substance as follows: On November 13, 1875, Toomey was arrested on mesne process, and on November 17 entered into the recognizance declared on.

Bill in equity, filed April 9, 1879, by a creditor of the estate of Cyrus Brooks, against Jacob A. Barbey, the executor of the will of Brooks, and Silas Carleton, praying that a certain parcel of land in Cambridge should be declared to be assets of the estate of Brooks, and subject to his debts, and that Carleton, in whom was the record title, should convey the same. The bill was taken for confessed against Carleton. Barbey appeared and filed an answer.

<p>A., the guardian of a minor, at the time of his death, held the promissory note of B., payable on demand to his order as guardian. B. and C. were appointed executors of A.’s will, but no mention of the note was made in their inventory or accounts. C. was also appointed guardian in place of A., and several payments were subsequently indorsed upon the note, leaving a balance due- C. died and D. was appointed guardian in his stead, and he refused to receive the note as the property of his ward. B. resigned his office as executor, and E. was appointed administrator with the will annexed of the estate of A., brought an action against B. on the note, obtained judgment and levied execution on land which B. had conveyed in fraud of his creditors. Held, on a writ of entry by the purchaser at the sale on execution to recover possession of the land, that the note was extinguished as a contract; that the amount due thereon having become assets in the hands of B. as executor of A., no action could be maintained upon it by E.; and that the tenant, not being a party or privy to the action by E., was not concluded by the judgment therein.</p>

<p>The deed of an Indian proprietor of land in the district of Marshpee, made after the passage of the St. of 1834, c. 166, to a person not a proprietor, is void, and is not made valid by the admission of the grantee to proprietorship by the St. of 1842, c. 72, nor by the removal of all disabilities from Indians by the St. of 1869, c. 463; and the heirs of the grantor are not estopped, in a writ of entry, to set up title in the land against such deed.</p> <p>An authenticated copy of a return, purporting to be an enumeration by the overseers of the proprietors of Marshpee, made nearly fifty years ago, under the St. of 1818, c. 105, which is taken from the files of the Governor and Council, is admissible in evidence in a writ of entry, to prove that a person, under whom the tenant claims, and whose name does not appear on the return, was not a proprietor at the time the return was made, although the return is signed by one only of the three overseers.</p>

<p>At the trial of an indictment for adultery, evidence of the reputation for chastity of the woman with whom the defendant is alleged to have committed adultery is competent.</p>

Indictment, found at March term 1880 of the Superior Court, alleging in the first count that the defendants, on February 10, 1880, at Greenfield, tortured a horse by pulling off its tongue; and, in the second count, that the defendants, on the same day and at the same place, cruelly mutilated a horse by pulling off its tongue. Hamilton pleaded in bar of the indictment a former acquittal upon a complaint to a trial justice charging him alone with the same offence.

<p>An indictment for abortion alleged that the act was committed on the 7th of a certain month. The principal witness for the government testified that the act was committed on the day alleged, and that the woman died on the next day; and gave a circumstantial account of all that took place between the commission of the act and the death. Several witnesses, including the medical attendant, testified that the death occurred on the 9th of the month. The defendant put in evidence tending to prove that he was out of the State during the whole of the 7th. Held, that the attorney for the government was properly allowed to argue to the jury that the act was committed on a day other than the 7th.</p>

Complaint to the First District Court of Eastern Worcester, under the Gen. Sts. e. 87, § 6, charging the defendant with keeping, from September 1, 1879, to February 9, 1880, at Westborough, a tenement used for the illegal sale and illegal keeping of intoxicating liquor, the same being a common nuisance.

Complaint, under the St. of 1875, c. 99, to the First District Court of Eastern Worcester, charging the defendant, on March 9, 1880, at Westborough, with unlawfully keeping intoxicating liquors, with intent to sell the same unlawfully.

<p>Indictment for murder, consisting, besides the usual caption and signatures, of the following allegations:</p> <p>“ The jurors for the Commonwealth of Massachusetts on their oath present, that Nicolo Infantino, otherwise called Nick, otherwise called the boy, and Antonio Ardito, otherwise called the Greek, on the fourteenth day of August in the year of our Lord one thousand eight hundred and seventy-nine, at Boston aforesaid, in and upon one Joseph F. Frye, feloniously, wilfully and of their malice aforethought did make an assault; and that the said Infantino and the said Antonio a certain pistol, then and there charged with gunpowder and one leaden bullet, then and there feloniously, wilfully and of their malice aforethought did discharge and shoot off to, against and upon the said Frye; and that the said Infantino and the said Antonio, with the leaden bullet aforesaid out of the pistol aforesaid then and there by the force of the gunpowder aforesaid by the said Infantino and the said Antonio discharged and shot off as aforesaid, then and there feloniously, wilfully and of their malice aforethought did strike, penetrate and wound the said Frye, in and upon the left side of the said Frye, giving to the said Frye then and there, with the leaden bullet aforesaid so as aforesaid discharged and shot out of the pistol aforesaid by the said Infantino and the said Antonio, in and upon the left side of the said Frye, one mortal wound, of which said mortal wound the said Frye then and there instantly died.</p> <p>“And so the jurors aforesaid, upon their oath aforesaid, do say, that the said Infantino and the said Ardito the said Frye, in manner and form aforesaid, then and there feloniously, wilfully and of their malice aforethought did kill and murder:</p> <p>“ Against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided.</p> <p>“ And the jurors aforesaid for the Commonwealth of Massachusetts, on their oath aforesaid, do further present, that Nicolo Infantino, otherwise called Nick, otherwise called the boy, and Antonio Ardito, otherwise called the Greek, on the fourteenth day of August in the year of our Lord one thousand eight hun dred and seventy-nine, at Boston aforesaid, in and upon one Joseph F. Frye, feloniously, wilfully and of their malice aforethought did make an assault; and that the said Infantino and the said Ardito a certain pistol, then and there charged with gunpowder and one leaden bullet, then and there feloniously, wilfully and of their malice aforethought did discharge and shoot off, to, against and upon the said Frye; and that the said Infantino and the said Ardito, with the leaden bullet aforesaid out of the pistol aforesaid then and there by the force of the gunpowder aforesaid by the said Infantino and the said Ardito discharged and shot off as aforesaid, then and there feloniously, wilfully and of their malice aforethought did strike, penetrate and wound the said Frye, in and upon the left side of the said Frye, giving to the said Frye then and there, with the leaden bullet aforesaid so as aforesaid discharged and shot out of the pistol aforesaid by the said Infantino and the said Ardito, in and upon the left side of the said Frye, one mortal wound, of which said mortal wound the said Frye then and there instantly died.</p> <p>“ And the jurors aforesaid, upon their oath aforesaid, do further present, that Saro Chiovaro, otherwise called Nino Antonio, otherwise called Larry O’Neil, Vincenzo Bandiera, otherwise called Charley Frost, and Giuseppe Donato, otherwise called Joseph Donato, before the said felony and murder was committed in manner and form aforesaid, to wit, on the fourteenth day of August in the year aforesaid, were accessories thereto before the fact, and then and there feloniously, wilfully and of their malice aforethought did counsel, hire and procure the said Infantino and the said Ardito the felony and murder aforesaid, in manner and form aforesaid, to do and commit:</p> <p>“ Against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided.”</p> <p>To this indictment the principals pleaded guilty of murder in the second degree. The present defendant pleaded guilty as accessory before the fact of murder in the second degree, and afterwards moved in arrest of judgment “ that no offence known to the law is fully and plainly, substantially and formally, set forth and described to him in and by said indictment, as required by law.”</p> <p>This motion was argued before Gray, C. J. and Endicott, J., who were of opinion that it should be overruled, but, at the request of the defendant, reserved the questions of law arising thereon for the determination of the full court, and for the entry of such judgment as law and justice might require.</p>

<p>Indictment in nine counts, on the St. of 1874, c. 872, § 163, for causing the death of John H. R. Hill. Some of the counts charged that Hill was a passenger; and others that he was not a passenger, nor in the employment of the defendant corporation, and that he was in the exercise of due care.</p> <p>At the trial in the Superior Court, before Rockwell, J., there was evidence tending to show that Hill left Boston on October 22, 1878, as a passenger on a train of cars of the defendant for Oak Grove; that, before reaching the station, the conductor called out “ Oak Grove,” and the train slowed up, and, when opposite the station, almost stopped, but started again as the engineer saw a train approaching on a parallel track between the track his train was on and the station; that Hill stepped off of the platform of a car, which had passed the station, just before the train started, reached the ground in safety, and was killed by the approaching train while crossing to the station; that, if he had remained on the car, he would not have been injured; that, if he had looked before getting off, he would have seen the approaching train; and that the defendant was negligent in the management of this train.</p> <p>The defendant asked the judge to rule that Hill, by voluntarily leaving the train while it was in motion, ceased to be a passenger; and that there was no evidence to support any of the counts of the indictment. The judge declined so to rule; and instructed the jury that, if the train had arrived at the station, although it had not entirely stopped, and Hill stepped off, without injury from the train he had been on, and, while on his way to the platform by the way provided, was injured by the gross negligence of the defendant, they might return a verdict of guilty, although Hill was not in the exercise of due care. The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Contract to recover $25,000 under a special agreement. Writ dated August 17, 1877, and returnable at October term 1877 of the Superior Court. At June term 1878, the defendant having filed his answer, the case was referred by agreement of parties and rule of court to an auditor. A hearing was had before the auditor, and his report was made and returned to the court, and was among the papers in the case, but no note of its having been filed appeared in the report or on the docket. At June term 1879 the case was upon the trial list.</p> <p>At October term 1879, and before any trial by the court or the jury, the defendant filed a petition for the removal of the case into the Circuit Court of the United States, alleging that he was a citizen of New York and the plaintiff a citizen of this Commonwealth, and that the amount in dispute, exclusive of costs, exceeded the sum and value of $500; and supported by his affidavit that he had reason to believe and did believe that from prejudice and undue influence he should not be able to obtain justice in the Superior Court. To that petition the plaintiff filed an answer, admitting the citizenship of the parties and the amount in dispute, but alleging that any right which the defendant might have had to remove the case into the Circuit Court had been waived: 1st. By omitting to file his petition before or at the term at which the case might have been tried; 2d. By consenting that the case should be referred to the auditor, and by the proceedings before him.</p> <p>At the same term of the Superior Court, before Brigham, C. J., the plaintiff offered evidence that the auditor read his report to the attorneys of the parties on the Saturday before June term 1879, and that it was then expressly understood and agreed that neither party should object that the auditor’s report was not on file before the first day of that term. But the judge excluded the evidence as immaterial on the question of removal, and ordered the case to be removed as prayed for. To this ruling and order exceptions were alleged by the plaintiff, and allowed by the judge.</p> <p>The defendant now moved this court to dismiss the bill of exceptions for want of jurisdiction, because, as appeared by copies which he produced, attested by the clerk of the Circuit Court, the case had been entered in that court, and the plaintiff had there appeared and filed a motion to remand the case to the State court for the same reasons stated in his answer to the petition for removal.</p>

<p>By a marriage settlement made in another State, personal property was conveyed to two trustees, “ and the survivor of them, his heirs, executors, administrators and assigns,” on certain trusts during the joint lives of the husband and wife, with power of nomination by them in case of a vacancy in the office of trustee, and, on the death of both the husband and wife, in trust for the use of the issue of the marriage. Held, on the death of both trustees, and of the husband and wife leaving issue, that the Probate Court of a county in this Commonwealth, where the property then was, and where some of the issue lived, had jurisdiction to appoint a new trustee.</p> <p>If a Probate Court, having jurisdiction of the subject matter, appoints a trustee, under the Gen. Sts. c. 100, § 9, without notice to all the parties interested, the sureties on the trustee’s bond cannot, in an action against them on the bond, impeach the validity of the appointment.</p>

<p>A partner who advances money for the use of his firm is entitled to interest upon it.</p> <p>The fact that one partner deposits, in Ms own name, in a hank the funds of the firm and his own funds, and draws checks thereon in payment of Ms private debts and the firm debts, does not preclude a finding that he is entitled to interest on money advanced by Mm for the use of the firm, in the absence of evidence that the firm was injured by his manner of depositing money.</p> <p>Under a general exception to a master’s report to the allowance of interest, the excepting party is not entitled to object to the rate of interest allowed.</p>

<p>Contract upon an account annexed for work and materials. Writ dated December 7, 1875. Answer, a general denial, with a suggestion of the bankruptcy of the defendant. At October term 1879, the defendant was allowed to file a supplemental answer, setting up a composition in bankruptcy. The case had been referred to an auditor, who found that there was due the plaintiff $1030.60, with interest from the date of the writ, $204.12, and that there was due the defendant, upon a declaration in set-off, the sum of $252.29, leaving a balance due the plaintiff of $981.93.</p> <p>At the trial in the Superior Court, before Pitman, J., without a jury, the plaintiff put in evidence the auditor’s report. The defendant introduced the record of the District Court of the United States for the District of Massachusetts, by which it appeared that, after the bringing of the plaintiff’s action, he was adjudged a bankrupt upon a petition filed May 4, 1876; that an assignee was appointed, and that subsequently, at a meeting duly held, to see whether the defendant’s creditors would accept the terms of a resolution of composition of ten per cent in settlement of their unsecured claims, a statement, purporting to show the whole of his assets and debts, and the names and addresses of the creditors, was produced by the defendant, in which the debt due the plaintiff was stated as follows: “ D. D. Hewes, amount $750, notes and unsettled account.” Afterward, upon due notice to all the creditors, a hearing was had before the District Court, to inquire whether said resolution had been passed in the manner directed by the statute, at which the plaintiff appeared and objected to the recording of the resolution, and filed the following specification among others: “ Because said bankrupt did not, nor did any one in his behalf, at the meeting of said creditors called for the purpose of passing said resolution, produce to said meeting a statement showing the whole of his assets and debts, and the names and addresses of the creditors to whom said debts respectively are due.” Thereupon-the matter was referred to the register to take testimony, and testimony was taken, but none was offered bearing upon said specification; but, in that particular, the case was left upon the record evidence previously returned to the court by the register, and upon that evidence and the testimony so taken the resolution was approved by the court, and adjudged to be for the best interest of all concerned, and ordered to be recorded; and the statement of assets and debts was ordered to be filed. It further appeared that the amounts due the several creditors of the defendant, according to his statement filed, and according to the terms of the composition, were duly paid or tendered to them, and those which were tendered and not accepted were deposited with the register in bankruptcy. Upon representation of these facts to the District Court, the bankruptcy case was ordered dismissed, and the property in the hands of the assignee returned to the defendant. It also appeared that the plaintiff was tendered the sum of $76.25, which he declined to receive, on the ground that it was not ten per cent of his debt.</p> <p>The plaintiff contended that, because in the statement cf the debtor the amount of the .plaintiff’s debt was stated at less than the true amount due at that time, the composition was not binding upon him. The defendant contended that, although the amount was not stated with perfect accuracy according to the subsequent finding of the auditor, it was sufficiently stated to make the composition binding upon the plaintiff; that, making proper allowance for interest, the discrepancy was only $27.81, and that an accidental error of that amount in the statement of a claim like the plaintiff’s would not defeat the composition; that the plaintiff’s remedy for such an inaccuracy was in the bankruptcy court, and not upon a trial in this court. He also contended that the plaintiff, having appeared and objected to the approval and record of the resolution of composition, and having by the specification expressly put in issue the question whether the whole of the debtor’s assets and debts, and the names of and addresses of all the creditors to whom such debts were due, were given in the statement presented by the debtor, was bound by the adjudication thereon, and was estopped from objecting to the composition on that ground. No evidence was offered to explain or account for the difference between the debt entered by the defendant on his statement and the real debt.</p> <p>The judge, having found as a fact, upon the foregoing evidence, that the debtor did not present a true and correct statement of his debt to the plaintiff in his statement, and did not tender ten per cent of his real debt, ruled as matter of law, and without considering or attempting to determine by way of inference from the foregoing facts whether or not the misstatement as to the plaintiff’s claim arose from mistake, misapprehension or otherwise, that the composition proceedings were not a bar to this action; ordered judgment for the plaintiff on the auditor’s report; and reported the case for the determination of this court If there was no error, judgment was to be entered for the plaintiff ; otherwise, a new trial to be ordered.</p>

Tort for personal injuries, occasioned to the plaintiff, on November 21, 1878, by a defect in a sidewalk in the defendant city. Trial in the Superior Court, before Dewey, J., who reported the case for the determination of this court in substance as follows: No notice of the injury was given to the defendant until February 13, 1879, when it was given by the plaintiff’s attorney.

Appeal by an administrator from a decree of the Probate Court, by which, after his final account, showing a balance in his hands of $319.75, had been presented for allowance, and had been objected to by one of the heirs at law because the administrator had failed to collect the amount of $1952.50 and interest, due at the time of the death of the intestate, and secured by a mortgage held and owned by him at that time, it was decreed that the account “ be not allowed and…

<p>Contract on four promissory notes, the first of which was for #3000, and was signed by the defendant as principal, and the rest were signed by him as surety for the firm of Porter & Southworth.. Writ dated November 30, 1877. Answer, payment. The defendant also filed a declaration in set-off, alleging that on March 28, 1877, one Patrick Fitzgerald had a deposit in the plaintiff bank of $1030, with interest and dividends thereon; that, on that day, Fitzgerald, for a valuable consideration, assigned the deposit to the defendant; and that before proceedings in equity to restrain the plaintiff from doing its usual business, the defendant held and owned said deposit.</p> <p>Trial in this court, before Lord, J., who reported the case for the consideration of the full court, in substance as follows :</p> <p>The defendant admitted his liability upon the first note; and offered evidence tending to prove that the other notes were signed by him for the accommodation of Porter & Southworth, a firm consisting of Lewis Porter, the son-in-law of the defendant, and George Southworth, the son of Edward Southworth ; that Edward Southworth was, and had been for many years, the treasurer of the plaintiff bank, and was the only officer attending to its business; that, at some time in 1875, the firm of Porter & Southworth failed; and at the time of their failure the defendant and Edward Southworth were jointly liable, as sureties on a note for $3000, given for the accommodation of Porter & Southworth, and held by the Randolph National Bank; that the defendant paid this note; that the firm of Porter & Southworth went into bankruptcy, and a meeting of their creditors was held in September 1875, before a register in bankruptcy ; that on the day of this meeting, and prior thereto, the defendant went to the plaintiff bank, and there saw Edward Southworth, and stated to him that he was advised that he had no right to prove the notes held by the bank against Porter & Southworth, unless he had paid the same, but that it was inconvenient for him to pay them that day, and' that, if Southworth would pay them, he would transfer to him the note paid by the defendant at the Randolph Bank, and would pay him afterwards whatever amount the defendant on final settlement should owe him; that Southworth agreed to do this, and subsequently came to the creditors’ meeting, and delivered the three notes to the defendant, stating that he had paid the same, and the defendant thereupon delivered to him the note paid by the defendant at the Randolph Bank; that Southworth made proof of the note for 13000, as a debt due himself, and the defendant made proof of the three notes as a debt due to himself, which proofs were made in the presence of the defendant and South-worth respectively; that the defendant never consented to the notes in suit being taken from ©the office of the register, and had no knowledge that they had been so taken until this action was brought.</p> <p>Rufus P. Kingman, one of the receivers of the plaintiff bank, testified that shortly after the decease of Edward Southworth, in March 1877, he examined the papers and securities of the bank, and found the three notes in question in the regular place of deposit of personal securities due to said bank, No question arose that the notes were received by the defendant in good faith, and with the belief that the title of the bank to the same was passed to him, and with the belief that Southworth had paid them at the bank.</p> <p>The defendant further offered to prove that, at the creditors* meeting, the register inquired of Southworth whether the bank had been paid for the notes, and that Southworth replied that it had been. The court excluded this evidence, against the defendant’s objection.</p> <p>The defendant admitted that Southworth had not paid the bank for these notes.</p> <p>In support of the claim in set-off, the defendant proved the facts therein set up. It appeared that the proceedings to restrain the bank from doing business were brought in November 1877; and that no notice of the assignment was ever given to the bank.</p> <p>If there was any question of fact to be submitted to a jury, the case was to be so submitted; otherwise, such judgment to be entered as to the court should seem proper.</p>

Tort. The declaration alleged that there were in the city of New Bedford two public streets, called Pearl Street and Purchase Street, which crossed each other at right angles, and which the city was bound to keep' in repair and reasonably safe and convenient for travellers with their horses; teams and carriages at all seasons of the year; that for several days previous to January 11, 1879, boys had been and were in the habit of coasting and sliding with sleds upon Pearl…

<p>Contract by Joseph C. Terry against James M. Brightman and William H. Clay, to recover $3600 for the charter of the steamer Border City. Trial in the Superior Court, before Putnam, J., who made the following report thereof:</p> <p>“The case was heard by the court without a jury, and the court found the following- facts: The plaintiff was the agent of the owners of said steamer, and on September 6, 1877, as such agent, entered into an indenture with the defendants for the chartering of said steamer, a copy of which indenture is annexed.* At the time of the making of this indenture, and at the time this action was brought, there were nineteen part'Owners of said steamer. The plaintiff was the owner of two thirty-second parts, and the defendant Brightman was the owner of thirteen sixty-fourth parts. The other defendant, Clay, was not an owner. Clay was defaulted; and Brightman alone defended this suit, and contended that, upon the foregoing facts, the plaintiff could not recover in this action in his own name.</p> <p>“ I find upon the facts that the amount which the plaintiff is entitled to recover, if the action can be maintained, is the sum of $1906. And now, by agreement of parties, and before the finding of the court is entered, the case is reported for the determination of the Supreme Judicial Court upon the questions of law arising upon the foregoing facts. If the action can be maintained by the plaintiff, he is entitled to recover the sum of $1906, with interest from the date of the writ, and judgment is to be entered for him for that sum. If the plaintiff is not entitled to maintain this action, judgment is to be entered for the defendant.”</p>

<p>If the record, on which an appeal is taken from a decree of a justice of this court, affirming a decree of the Probate Court, states a fact essential to the jurisdiction of the Probate Court, the appellant cannot contend in this court that the fact is otherwise, and move to dismiss the proceeding in the Probate Court.</p>

<p>A statute enacted that four persons named “ are hereby made a corporation,” and fixed the capital stock at $60,000, with liberty to increase it by vote of the corporation to $150,000. The persons named in the statute met, organized by the choice of a chairman and clerk, accepted the act of incorporation, appointed a committee to receive subscriptions, and voted that, when subscriptions were received to the amount of $50,000, the clerk should call a meeting of the subscribers. A subscription paper was drawn up reciting the act of incorporation, stating the capital stock to be $50,000, that the signers associated themselves together to form said corporation, and agreed with the corporation to take the number of shares affixed to their respective names, and to pay therefor $100 a share at such times as should be determined on the organization of the corporation. The paper was signed by a number of persons, and the number of shares set opposite their names represented nearly $100,000. At a meeting of the subscribers, a committee appointed for the purpose reported the names of fourteen persons whose subscriptions aggregated $50,000. These names were taken promiscuously, and not in the order of their subscriptions. By-laws were then adopted. On the motion of a subscriber, not one of the fourteen, the capital stock was increased to $100,000; all the subscribers were admitted with the rights and privileges of stockholders; directors were chosen, and an assessment was levied on the capital stock, which was paid. At a subsequent meeting another assessment was levied. Held, in an action against one of the fourteen persons whose names were reported by the committee as above stated, to recover his proportion of this assessment, that the corporation was nevel legally organized, and that the action could not be maintained.</p>

<p>The holder of a mortgage of land assigned it as security for his own promissory note. There being a breach of the condition of the mortgage and of the assignment, the assignee brought an action to foreclose the mortgage, obtained conditional judgment for the amount of the debt due from the assignor, and on an execution obtained seisin and possession of the land. After retaining possession for three years, the assignee sold the land. Held, that a bill in equity by the assignor to redeem the land, brought within twenty years from such sale, but more than twenty years after possession was obtained, could not be maintained.</p>

<p>The first case was an action of contract to recover the amount of a betterment tax assessed by the board of aldermen of the city of Boston upon the real estate of the plaintiff, on October 7, 1872, for the widening and extension of Shawmut Avenue in said city, and alleged to have been paid by the plaintiff after a protest by him in writing. Trial in the Superior Court, without a jury, before Pitman, J.,'who found the following facts:</p> <p>In September 1873, the following notice in writing was sent to the plaintiff by the treasurer of the defendant city: “Having duly made demand for the payment of the assessment made upon your estate, numbered 283 Shawmut Avenue, by the board of aldermen, for the benefit and advantage accruing to your said estate, for widening and extending of Shawmut Avenue, and the same remaining unpaid, it becomes my duty to enforce payment by sale of your said real estate if not paid forthwith.</p> <p>“ F. U. Tracy, City Treasurer.”</p> <p>The plaintiff soon after went to the treasurer’s office, and paid the assessment, saying to the clerk that he paid it under protest, and receiving from him the treasurer’s receipt, having upon it the words “ paid under protest ” written by the clerk at the time of payment. The plaintiff put in evidence an account-book of the city treasurer, in which were entered payments of betterments as made from time to time, and among them an entry of this payment with the word “ protest ” written over and in connection with the name of the plaintiff. He also called S. A. Cushing, a former clerk of the city treasurer, who testified that the treasurer had instructed him to make a note of all protests, whether written or oral, made when taxes were paid; that pursuant to this instruction he wrote the word “ protest ” in said book, as above stated, at the time of payment, and the words •“ paid under protest ” on the receipt which he returned to the plaintiff; that he did mot remember any of the circumstances attending this particular payment, but he should not have written the word “ protest ” in the book, nor the words “ paid under protest ” upon the receipt, unless the party paying had protested either orally or in writing.</p> <p>The second case differed from the first only in the fact that the plaintiff, at the time he paid the tax and told the clerk that he paid it under protest, added that he wished him to make a note of it.</p> <p>In each case, the judge found for the plaintiff, and reported the case for the determination of this court; judgment to be entered accordingly, or for the defendant, as law and justice might require.</p>

Contract for breach of an agreement to pay a mortgage existing upon a parcel of land conveyed by the plaintiffs to the defendant. Trial in the Superior Court, without a jury, before Pitman, J., who reported the case for the determination of this court, in substance as follows: On May 18, 1872, the plaintiffs, who owned a large tract of vacant land in Dedham, mortgaged it to Martha C. Bullard, trustee, to secure their note of even date for $6000, payable in five years.

<p>After a decision of this court that a tax sale of real estate was void on account of a defect in the notice thereof, a statute was passed enacting that no such sale previously made should be held to be invalid by reason of such defect, provided that the act should not apply to any case wherein proceedings at law or in equity had been begun involving the validity of such sale, nor to any real estate which had been alienated between a certain date (which was the date of the decision) and the passage of the act. Held, that the statute was unconstitutional.</p> <p>A tax on real estate may be assessed to a person who appears by the records to . be the owner, if the municipality assessing the tax has no notice that he has previously conveyed the land.</p> <p>Under the St. of 1862, c. 183, § 6, which provides that a collector’s deed of land sold for taxes shall contain a special warranty that the sale has been conducted according to the provisions of law, and gives the purchaser the right, if it subsequently appears that he has no claim to the property sold, by reason of informality in the proceedings, upon surrender of his deed, to the amount paid by him “ together with ten per cent interest per annum on the same,” “ in full satisfaction of all claims for damages,” interest, in an action on the covenant of warranty, may be recovered at that rate to the time of judgment.</p> <p>On a petition against a city to recover damages for the taking of land for a highway, the petitioner claimed title under a deed from the collector on a sale for taxes, and also under a deed from the collector to the city on another sale for taxes, and a release from the city of its title and interest under the collector’s deed. Held, that the city was not estopped to deny that the petitioner had no title by reason of the invalidity of the notices of the sales.</p>

<p>Petition, under the Gen. Sts. o. 150, to enforce a mechanic’s lien for labor performed in building the cellar of a dwelling-house on land of the respondent in Melrose. Trial in the Superior Court, without a jury, before Wilkinson, J., who allowed a bill of exceptions, in substance as follows:</p> <p>On May 15, 1876, the petitioner filed his lien statement in the office of the town clerk of Melrose; and on July 15,1876, filed his petition in the clerk’s office of the Superior Court, in vacation. On October 28,1876, an order of notice was issued returnable at December term following. The respondent contended that the order of notice should have been issued in season to be returnable at September term, and that the petitioner by his delay had lost his lien, if he ever had one. This objection was overruled.</p> <p>On October 4, 1875, the respondent executed an indenture with John B. Canfield, by which he agreed to convey the land on which the lien was claimed to Canfield, upon the performance by the latter of certain conditions, one of which was to erect a dwelling-house thereon on or before January 1, 1876, and another was that Canfield should repay to the respondent all moneys advanced by him for the erection of the building. The time of performance was afterwards extended to April 1, 1876.</p> <p>After the making of this indenture, in the same month, the petitioner made a contract with Canfield to furnish the materials and build a concrete cellar for a dwelling-house upon the land for the sum of $200. The cellar was to be built so as to stand, and was warranted to stand. The cellar was finished in the latter part of November 1875, except its liability to fall down from the action of the frost, but there was no acceptance of the work. In the course of the following winter, portions of the concrete fell down, and the walls were damaged by the action of the frost. In February and April 1876, this fallen concrete and the damaged walls were remedied. The last work done by the petitioner on the cellar in restoring it to the condition called f®r by his contract, after the action of the frost, was on April 17, 1876.</p> <p>The respondent asked the judge to rule that the contract of the petitioner was completed in November 1875: that the alleged warranty of the cellar wall would not entitle him to keep alive his lien, if any, by any subsequent labor on it; and that, therefore, he did not file his statement in the town clerk’s office within the time required by law. The judge declined so to rule.</p> <p>One of the issues framed was, “Did the petitioner file his certificate of claim within the time specified by law?” The answer to this was, “Yes.” The respondent then asked the judge to rule that the petitioner was not entitled to recover. The judge declined so to rule; and found for the petitioner. The respondent alleged exceptions.</p>

<p>Trustee process. The town of Natick, summoned as trustee of the principal defendant, answered that, -at the time of the service of process upon it, it had not in its hands or possession any goods, credits or effects of the defendant, and was not liable to be summoned or chargeable as trustee, unless the court should find otherwise on the following facts: At the annual March meeting of the town of Natick, the defendant was duly elected to the office of assessor of taxes for the current year. He accepted the office, was duly qualified, and entered upon and performed the duties of such office. Before the service of the plaintiff's writ, the assessors had completed their annual assessments, and the warrant for the collection of taxes had been committed to the collector for collection, but no account had been rendered to the town of the number of days the defendant was employed in making the assessments. The defendant, before the service of this process, had been paid on account for his services the sum of $75, and no more; and the sum which he is entitled to receive for his services, under the statutes fixing the pay of assessors, exceeds that sum and any sum which may be claimed for exemptions and costs of trustee. There was no vote of the town to pay the defendant for his services, and no contract made in relation thereto, except such as may be inferred from the above facts. The defendant was also elected and served as an assessor of the town the previous year.</p> <p>The Superior Court, after a verdict for the plaintiff, ordered the trustee to be charged; and the trustee appealed to this court.</p>

<p>Section 6 of the Gen. Sts. c. 78, providing that “no person shall cause or permit to be driven or floated down Connecticut River, any masts, spars, logs or other timber, unless the same are formed and bound into rafts and placed under the care of a sufficient number of persons to govern and manage the same so as to prevent damage thereby,” is constitutional, even in the case of logs coming from one State and passing through this Commonwealth on their way to another State.</p>

Contract upon a bond given under the St. of 1877, e. 97, for the dissolution of an attachment by trustee process. Trial with out a jury in the Superior Court, before Putnam, J., who found the following facts: The plaintiff brought an action against Alford Greenough and against the King Philip Mill as his trustee.

Trustee process, dated February 5, 1878, and served on the trustee on February 8, 1878, who in his answer admitted funds of the defendant in his hands. On April 20, 1880, judgment was rendered in the Superior Court for the plaintiff against the defendant; but no judgment was entered as to the trustee, and no execution issued against the defendant.

Tort for damages alleged to have been caused by the detention of the plaintiff’s schooner by the superintendent of the draw in Warren Bridge.

<p>Tort. The declaration alleged that the owners of a certain animal, known as the Sacred Ox, were licensed by the defendant to erect a booth in a public square of the city, and to occupy the same for the use and exhibition of the said animal for the consideration of $2.50 per day; that the ox then and there emitted an offensive odor in its nature obnoxious to horses and cattle, frightening them, and causing them to become unmanageable ; that the ox was also of an uncouth and strange shape and appearance, and was caparisoned in a gaudy and strange manner, so that he was an object of terror to horses and cattle: all of which the defendant well knew; that, while the owners of the ox were so licensed, the plaintiff, with his bread-cart and horse, was lawfully travelling upon the public highway, the horse being well broken and kind, and being driven by a safe and experienced driver, and when near the booth met the ox, which was being led back and forth for his usual exercise, which the defendant well knew; that the horse was then and there frightened by the said odor, and the said frightful appearance and caparison of the ox, and ran away, to the injury of the said horse and cart; that the plaintiff and his driver used due caution, but the defendant did not use due caution.</p> <p>The defendant demurred to the declaration, assigning as cause of demurrer that it did not set forth a legal cause of action.</p> <p>The Superior Court sustained the demurrer; and ordered judgment for the defendant. The plaintiff appealed to this court.</p>

<p>Contract upon the following promissory note: “ Gloucester, Mass., Not. 14, 1878. Four months after date I promise to pay to the order of H. Rosenburg one hundred and seventy-four dollars at Gloucester National Bank, value received. $174. J. J. Burns.”</p> <p>The answer denied that the defendant made the note declared on, and denied that he signed the same.</p> <p>At the trial in the Superior Court, before Allen, J., the genuineness of the defendant’s signature was expressly admitted; and the plaintiff produced" the note and rested. The defence relied upon was that the note was fraudulently altered, after it was made, by the insertion of the words “ one hundred and ” before the words “ seventy-four,” and the insertion of a figure “ 1 ” before the figures “ 74.”</p> <p>The plaintiff contended that this defence was not open under the answer; but the judge ruled otherwise, and admitted evidence, against the plaintiff’s exception, that, when the note was signed and delivered to the payee, it was a note for seventy-four dollars only. It was not disputed that the note was discounted by the plaintiff in the regular course of business, before maturity ; and that it was then in its present condition, the plaintiff being a bona fide holder for value.</p> <p>The plaintiff also contended that, upon the question of alteration, the burden of proof was upon the defendant; but the judge ruled otherwise, and instructed the jury that the burden was upon the plaintiff to prove that, when the note was signed and delivered to the payee, it was in its present condition, to wit, a note for one hundred and seventy-four dollars, and that, unless the plaintiff established this fact by a fair preponderance of evidence, the defendant was entitled to a verdict.</p> <p>The plaintiff further contended that, as the note was negotiated before maturity, the plaintiff would be entitled to a verdict, if the jury should be of opinion that the defendant negligently signed a note for seventy-four dollars, in such a condition, and with such opportunities for a fraudulent alteration, as to enable the payee to make such alteration in such manner as to show no indication to a careful observer that any such alteration had been made. But the judge ruled otherwise; and declined to submit any question to the jury except that of fraudulent alteration.</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Contract. Writ dated February 4, 1879. The declaration, as originally filed, was upon a promissory note for $130, dated September 3, 1863, signed by the defendant, and payable to ■ the plaintiff or order. Answer, the statute of limitations. At March term 1880, the plaintiff was allowed to file an amended declaration upon a judgment recovered on October 19, 1869, by the plaintiff against the defendant, in the Superior Court of this county, in the sum of $177.79, damages, and $14.48, costs.</p> <p>At the trial in the Superior Court, before Gardner, J., without a jury, the plaintiff put in an authenticated copy of a record of a judgment obtained by the plaintiff against the defendant, as stated in the declaration, on default, upon a promissory note of like tenor with the one declared on in this action.</p> <p>It appeared by the records of the court that the judgment in the former action was not made up or entered, for the reason that the note declared on was not filed in the clerk’s office within six months after judgment was ordered; that, in June 1879, the plaintiff brought a petition under the rules of the Superior Court, copies of which are printed in the margin,* setting forth the. facts in the former action, and the default of the defendant, and that the record in that action had not been completed on account of the note not having been filed with the clerk; and asking that the record might be fully completed and judgment made up and entered by the clerk on filing a copy of the note (the original being lost) with the clerk, first giving the bond required in such cases; that an order of notice, with the petition annexed, issued to the defendant by order of court, and was duly served on the defendant; and after hearing at December term 1879, the prayer of the petition was granted, a copy of the note was filed with the clerk, with a duly approved bond, and the record in the former action was completed and judgment made up and entered'in the manner aforesaid; that, thereupon, the plaintiff moved for leave to file an amended declaration in this action, declaring on said judgment, which motion, after hearing, the court allowed.</p> <p>The defendant asked the judge to rule that, at the time this action was begun, there was no judgment on which the plaintiff could maintain an action; and that the plaintiff could not recover on his amended declaration. But the judge refused so to rule; and ordered judgment for the plaintiff. The defendant alleged exceptions.</p>

Contract. The declaration was as follows : “ And the plaintiff says that, by the consideration of the justices of the Supreme Judicial Court of the county of Kennebec, and State of Maine, at the August term thereof, A. D. 1866, to wit August 21, 1866, he recovered judgment against the defendant in the sum of $218, debt or damage, and $11.64, costs of suit, which judgment is in full force and not impaired, annulled or satisfied: whereupon the plaintiff is entitled to have and…