Volume 130 — Massachusetts Reports

<p>Libel, filed by the inspector of lime of the city of Boston, praying that the lime might be seized and sold, for violation of the provisions of the Gen. Sts. c. 49, §§ 118-125. An order of notice was issued, and Horatio B. Emerson appeared as claimant.</p> <p>At the trial in the Superior Court, before Rockwell, J., it was agreed that the lime was manufactured in the State of Maine, and was imported into this Commonwealth. Evidence was introduced bearing on the questions whether the casks containing the lime were of the size and had the number of hoops required by law, and whether they had been exposed for sale, which evidence it is now unnecessary to state.</p> <p>The judge ruled that the libellant could not maintain his libel, and ordered a verdict for the claimant; and reported the case for the determination of this court. If the ruling was right, the verdict was to stand; otherwise, a new trial to be ordered.</p>

<p>The decision of a judge of the Superior Court upon a question of foreign law, depending upon the construction of statutes and decisions, cannot be revised by this court upon a bill of exceptions which fails to show what statutes or decisions were before the court below.</p>

Petition under the Gen. Sts. c. 115, § 11, to establish the truth of exceptions alleged at the trial of a civil action in the Superior Court, before Bacon, J., without a jury, and which, as the judge stated in his certificate upon the bill of exceptions, were “ disallowed for the reason that no notice appeared to have been duly given of the filing of these exceptions to the adverse party.” The petition alleged that the attorney of the petitioners gave due notice of the…

<p>In an action on a promissory note to which the defence was payment, it appeared that the plaintiff held certain railroad bonds as collateral security for another note, of which the note in suit was a renewal; that he sold these bonds by auction, and they were bought by his agent for twenty per cent of their face value. There was also evidence that the plaintiff made an agreement with the assignee in bankruptcy of another party to the first note to allow twenty per cent on the face value of the bonds as their real value, and it was agreed between them that the bonds should be sold by auction for any price above that percentage, and if they sold for less the plaintiff should keep the bonds and allow the percentage agreed upon. The plaintiff contended that the sale made was in pursuance of this agreement, and was not an actual sale of the bonds of which the defendant was entitled to avail himself. Held, that a ruling that there was no sale of the bonds by the plaintiff was erroneous; and that the question should have been submitted to the jury.</p>

Contract to recover $479.03, paid by the plaintiff for the support of the defendant at the State Lunatic Hospital, at Worcester, at different times since 1873. Writ dated October 15, 1877. Trial in the Superior Court, without a jury, before Col-burn, J., who found the following facts: The defendant is, and has been for many years, a married woman, living with her husband, when out of the hospital, at Newton.

<p>If a debtor, after obtaining a discharge in insolvency, performs work for his creditor, under an oral agreement that the value of the work shall be applied in payment of the old debt, he cannot maintain an action for such work; and the Gen. Sts. c. 105, § 3, do not apply to the case.</p>

<p>A court of chancery will restrain by injunction a threatened levy of execution upon real estate which is not legally subject to such a levy.</p> <p>Allegations in a bill in equity to restrain a levy of execution upon real estate, that a bond to dissolve the attachment in the action in which the execution was issued was given with sureties approved by a master in chancery, and was filed with the clerk of the court, and dissolved the attachment, imply notice to the plaintiff in the original action of a hearing before the master in chancery upon the sufficiency of the sureties on the bond, as required by the Gen. Sts. c. 123, § 105.</p> <p>Under the Gen. Sts. c. 123, § 104, and the St. of 1870, c. 291, § 5, upon the approval by a master in chancery, and the filing with the clerk of the court, of a l>and given to dissolve an attachment, the attachment is by law dissolved, without any order of the court to that effect.</p> <p>If the St. of 1873, c. 297, § 2, (requiring the clerk of the court in which a suit is pending, where it appears of record that an attachment of real estate in Suffolk county has been dissolved, to forward to the register of deeds a certificate of that fact,) applies to the case of an attachment made before the act took effect, and dissolved afterwards, the failure of the clerk to forward such certificate to the register does not continue the attachment in force in favor of the attaching • creditor.</p> <p>If an answer to a bill in equity is filed with a demurrer, and the demurrer is overruled, no order to answer over is necessary.</p> <p>A general replication puts in issue all the facts alleged in the answer to a bill in equity; and a hearing upon the bill, answer and replication necessarily involves the trial of those facts, and the consideration of any evidence thereon offered by either party.</p> <p>If a final decree of a single justice of this court, sitting in equity, is appealed from, without a report of the evidence upon which the decree was made, the only question upon the appeal is whether the decree conforms to the allegations and prayer of the bill.</p>

<p>A city caused open paved gutters to be constructed on the sides of a street, and similar gutters to be constructed on other streets leading into it. At the end of the gutters on the principal street were underground drains leading into a culvert through which flowed a natural watercourse. In consequence of this construction, quantities of sand and filth were carried into the watercourse, causing it to overflow upon the plaintiff’s land below the culvert, and obstructing the passage of water from a drain which ran from the plaintiff’s house to the watercourse. Held, that, if the city had diverted the water from its natural course, and had accumulated it in such quantities as to create a private nuisance to the plaintiff, he could maintain an action' of tort against the city for the injury caused thereby.</p>

<p>Under the Gen. Sts. c. 103, § 41, providing that, in sales on execution of the right of redeeming mortgaged lands, “ the officer shall give notice in writing of the time and place of sale to the debtor, if found within his precinct,” a notice left by the officer at the last and usual place of abode of the debtor is insufficient.</p>

<p>Complaint, under the St. of 1876, e. 162, to Francis M. Thompson, a trial justice for the county of Franklin, alleging that certain intoxicating liquors' were kept and deposited by James Pickard of Northfield for sale contrary to law. Upon this complaint, Thompson issued a warrant to search the premises described in the complaint, and in the warrant the officer was directed to “ make due return of this warrant and of your doings thereon.” The warrant was in fact returned before William S. Dana, another trial justice for the county, who certified that the liquors seized, and the vessels containing them, exceeded $50 in value, and issued a notice to Pickard to appear before the Superior Court at August term 1880. In that court, before the jury were empanelled, Pickard, who appeared as claimant, moved that the proceedings be quashed for the following reasons : “ 1. Because the officer did not return his warrant, according to the order thereof, to the magistrate who issued it. 2. Because the magistrate to whom the warrant was returned had no jurisdiction in the case.” Allen, J. overruled this motion; and judgment was rendered for a forfeiture of the liquors. The claimant alleged exceptions.</p>

<p>Indictment against Isaac O. Pierce and Maria E. Harris, alleging that the defendants on April 7, 1880, at New Bedford, unlawfully, knowingly and falsely pretended to the officers of a national bank that Maria E. Harris was Sarah Harris, and was the owner of certain bonds of the United States, and was the Sarah Harris named in said bonds; by means of which false pretences, the defendants fraudulently obtained from said bank the sum of $1400, with intent to cheat and defraud the same.</p> <p>At the trial in the Superior Court, before Colburn, J., the government put in evidence tending to show that the defendants came together to the bank on the day named in the indictment, and Pierce asked the cashier to make a loan to Harris of $1400, on five United States bonds, registered in the name of Sarah Harris, and told him that the woman with him was Sarah Harris ; that the defendant Harris signed the name of Sarah Harris on the back of the bonds, and signed a note for $1400</p> <p>The cashier of the bank testified, on cross-examination, that the loan was made to the defendant Harris alone, under the name of Sarah Harris, and not to Pierce at all, and it was so entered on the books of the bank; that he looked to her alone for payment, and made the loan to her, upon the security of the bonds presented by her, and should not have made the loan except for the bonds which were presented as security.</p> <p>The defendants asked the judge to rule that there was a fatal variance between the allegations of the indictment and the proof, as to whom the loan was made, and to direct a verdict for the defendants. The judge refused so to rule; the jury returned a verdict of guilty; and the defendants alleged exceptions.</p>

Complaint to the justice of the district court in Fall River, alleging that “the Osborn Mill, a manufacturing company, a corporation duly and legally established, organized and existing as a corporation under and by virtue of the laws of the Commonwealth in said Fall River, in the county of Bristol, did on the twentieth day of July in the year of our Lord eighteen hundred and eighty, at Fall River aforesaid, in the county aforesaid, employ one Julia Hurley, a woman, in said…

<p>The clause of the St. of 1880, c. 221, § 2, providing that it shall not be necessary, in complaints under it for drunkenness, to allege the two previous convictions of a like offence within the next preceding twelve months, upon which the extent of the punishment depends, is in conflict with the twelfth article of the Declaration of Rights, and void.</p>

<p>If there is evidence that several persons are together for a common illegal enterprise, the declarations of one of them are admissible, at the trial of an indictment against another of them, as part of the res gestee.</p>

Indictment in four counts, charging the defendants with four separate assaults upon Etta Wood.

<p>Complaint charging the defendant with the larceny, on March 6, 1880, at Gloucester, of some “trawl gear,” the property of certain persons named. Trial in the Superior Court, before Putnam, J., who allowed a bill of exceptions in substance as follows:</p> <p>There was evidence tending to show that the trawls were feloniously taken by the defendant, but there was some doubt, upon the evidence, whether or not the place from which they were taken was within three miles of the shore. The owners testified that they placed them, for the purpose of taking fish, off Thacher’s Island, which was within this county; and one witness testified that this place was between three or four miles from the shore. The trawls, when taken by the defendant, were brought by him to the shore, into Gloucester, within the county, and were found there in his possession.</p> <p>The defendant asked the judge to instruct the jury, that, if they were not satisfied that the trawls were taken within three miles from the shore of Thacher’s Island, they must acquit the defendant. The judge, for the purpose of settling the questions of fact in the case, declined so to rule; but instructed the jury, if they found the defendant guilty, to find, specially, whether the trawls were taken at a spot which was more or less than three miles from the shore of Thacher’s Island at low-water mark. The jury returned a verdict of guilty, and found specially that the trawls were not taken within three miles from the shore.</p> <p>The defendant alleged exceptions, which were allowed, and which were afterwards amended as follows; “ I desire to amend the foregoing bill of exceptions by stating that by the words ‘ three miles ’ 1 one marine league ’ was intended. It was so understood at the trial by all parties. The only question reserved and the only one intended to be reserved for the adjudication of the Supreme Judicial Court was, whether, if the jury found that the ‘ trawl gear ’ were feloniously taken at a place without the territorial limits of the Commonwealth and brought by the thief within the county of Essex (it being conceded that Thacher’s Island was within that county), it was a continuing larceny in said county. John P. Putnam, Presiding Justice.”</p>

<p>Indictment on the St. of 1880, c. 209, alleging that the defendant, on June 8, 1880, at Lawrence, “had in his custody and possession 'one pint of adulterated milk, to which milk water had been added, with intent to sell the same in said Lawrence.”</p> <p>At the trial in the Superior Court, before Brigham, C. J., there was no question as to the possession of the milk by the defendant, and his intention to sell the same, as set forth in the indictment.</p> <p>To show that the milk was adulterated, the government relied upon the evidence of a chemist, who testified that he had analyzed the milk, and found it to contain nine and four tenths per centum of milk solids and ninety and six tenths per centum of watery fluids; and that the adulteration was produced by adding water to pure milk, and there was no adulteration with any other foreign substance but water. This testimony was all the evidence introduced by the government to show the adulteration.</p> <p>The defendant asked the judge to rule that there was a variance between the allegations of the indictment and the proof; and that the government was bound to prove, in order to sustain the indictment, that water had been added to milk already adul terated. But the judge refused so to rule; and the defendant excepted.</p> <p>The defendant was then allowed to introduce evidence that the chemist had analyzed samples of milk taken from the same cow as the milk in question, and had found the milk to contain less than thirteen per centum of milk solids; and there was other evidence upon the question whether the milk was natural milk. The defendant contended that, if the milk in question was natural milk, he could not be convicted, even if it contained less than thirteen per centum of milk solids. But the judge ruled otherwise; and submitted the case to the jury, who returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>An indictment alleging that the defendant broke and entered the building of A. “ with intent then and therein to commit the crime of larceny, and the property, goods and chattels of said A. in said building then being found, then and there in said building feloniously to steal, take and carry away,” charges but one intent, the allegation of which is descriptive, and is not supported by proof of an intent to steal the property of B., in or of which A. had no title, custody or possession.</p>

Contract by Mary E. Ellison and Elizabeth A. Ellison to recover $142.61 and interest, being the amount of certain, deposits made in the defendant bank by William Ellison, the father of the plaintiffs.

<p>A. borrowed $300 of B, and, as collateral security, transferred and delivered to him a note and mortgage for $1500. The assignment of the mortgage was absolute in form, and recited the consideration to be $800. B. transferred the note, before it came due, and assigned the mortgage to C. as collateral security for a loan of $1200. Held, on a bill in equity brought by A. against B. and C. to redeem the note and mortgage, that the recital of the consideration in the assignment of the mortgage to B. was not alone sufficient to put C. on inquiry, or to prove fraud on his part; and that A. could redeem only on payment of the amount for which C. held the note and mortgage as collateral security.</p>

<p>Land was conveyed, by a deed duly recorded, to a person m trust, with powei to sell the estate, provided it be for the benefit of the cestui que trust so to do and to reinvest tho proceeds. The trustee made a deed, purporting to convey the land, in consideration of one dollar and other valuable considerations, his grantee mortgaged the land and reconveyéd it to the trustee, subject to the mortgage', and the mortgagee, after these deeds were recorded, assigned the . mortgage. Held, that the recital in the deed from the trustee was not sufficient notice to the assignee that the trustee was not acting in accordance with the power conferred upon him; and that the assignee was not bound to ascertain whether the trustee had reinvested the proceeds derived from the transaction.</p>

<p>Bill in equity, by the owner of two mortgages on twenty-two twenty-fourths of a steamboat, to redeem a prior mortgage thereon. The case was referred to a master, whose report stated the following facts:</p> <p>On July 18, 1878, H. L. Bachelder, the owner of twenty-two twenty-fourth parts of the steamboat James A. Gary, being indebted to the defendant for a boiler put into the steamboat, delivered to him, in part payment therefor, two promissory notes, one for $1370.25, payable in three months, and the other for $1377, payable in four months; and, as security therefor, executed and delivered to him a mortgage on his interest in the steamboat, containing the following condition: “Now the condition of this obligation is, that if the said H. L. Bachelder shall pay, or cause to be paid, to the said Ebenezer Hodge, the sum of $2747.25, and interest thereon, on or before the expiration of four months from the date hereof, then this obligation to be void; otherwise, to be and remain in full force and virtue.” The mortgage also contained the following clause: “ And it is hereby further agreed and understood, that insurance shall be made at some office in on the said twenty-two twenty-fourths for the security of the said loan to an amount not less than the sum loaned as aforesaid; and the said Ebenezer Hodge is hereby authorized to piocure such insurance at the expense of the said H. L. Bachelder, if not seasonably obtained by the said H. L. Bachelder.” This mortgage was duly recorded.</p> <p>At the time of the delivery of the notes and mortgage, and as part of the same transaction, the defendant signed and delivered to Bachelder the following paper writing: “Boston, July 18, 1878. This is to certify that H. L. Bachelder has given to me this day a mortgage on the steamer James A. Gary for $2747.25, as collateral for two notes given me by him; and said mortgage to be null and void when said notes, aggregating $2747.25, are paid. Ebenezer Hodge.” This paper was given for identifying the notes secured by the mortgage.</p> <p>Bachelder, being unable, or finding it difficult, to obtain in surance, so stated to the defendant’s agent, who introduced him to an insurance agent, and the latter procured insurance on the vessel, payable in case of loss to the defendant, by a policy dated July 17, 1878. In payment of the premium, Bachelder gave his own note, indorsed by the defendant. This note was paid by the defendant at maturity, after protest.</p> <p>There is now due on the notes given by Bachelder to the defendant the sum of $100.10; and the defendant paid, on account of the premium note, $422.54, amounting in all with interest to $550.90.</p> <p>The case was heard on the master’s report, before Morton, J., who ordered a decree to be entered that, on the plaintiff paying, within thirty days, $550.90, together with interest from the date of the master’s report, and costs, the defendant should discharge the mortgage.</p>

Indictment alleging that the defendant on July 25,1879, at Malden, “ with force and arms, feloniously and maliciously did verbally threaten one Leonard C. Gatcomb, in a certain conversation which the said Robert Philpot then and there had of, with and concerning the said Leonard C. Gatcomb, to accuse said Leonard C. Gatcomb of having theretofore committed the crime of attempting to obtain money from him, said Robert Philpot, by false pretences, to wit, by falsely pretending…

<p>It is no bar to an indictment against several persons .jointly, that, at a previous term of court, after a jury was empanelled and the trial begun, the judge, without the consent of the defendants, stopped the trial, and took the case from the jury, because one of the jurors was found to be surety upon a recognizance entered into by one of the defendants before the trial.</p>

<p>A witness may be allowed, for the purpose of refreshing his recollection of what was said at a particular time, to look at a printed copy of his own written report of the proceedings at that time, although the absence of the written report is not accounted for.</p>

<p>The keeping without a license of intoxicating liquors, only for the purposes of mixing them with other ingredients, according to the prescriptions of physicians, to he used as medicine, and of manufacturing such compounds as are commonly used by druggists for medicinal purposes, is not a violation of the St. of 1875, c. 99.</p>

<p>Writ of entry to foreclose a mortgage upon the entire tract of land shown on the plan, a copy of which is printed in the margin,* and marked A and B. Plea nul disseisin, and a disclaimer of title as to lot B. The case was submitted to the Superior Court, and, after judgment for the tenant, to this court on appeal, on agreed facts, the material parts of which appear in the opinion.</p> <p> </p>

<p>In an action upon an award of arbitrators, under a submission to them of all matters in dispute between the parties, evidence is admissible in defence to show that the arbitrators refused to consider and pass upon a claim submitted to them by the defendant.</p>

Tort in five counts, for slander, in accusing the plaintiff oi the crimes of adultery and fornication. Answer, a general denial. After the former decision, reported 126 Mass. 329, the case was tried in the Superior Court, before Brigham, C. J., who allowed a bill of exceptions in substance as follows: The evidence was conflicting as to whether the alleged slan derous words were spoken or not.

<p>Whether a nolle prosequi is or is not such a termination of a criminal proceeding as is necessary to sustain an action for a malicious prosecution, depends upon the other facts of the case.</p> <p>The discharge, upon the failure to find an indictment, of an accused person, bound over on a complaint to await the action of the grand jury, is such a termination of the proceedings against him as is necessary to sustain an action for a malicious prosecution, without regard to the fact that a nolle prosequi is subsequently entered.</p>

<p>Under the Gen. Sts. c. 94, §§ 3,4, providing that original administration may be granted, more than twenty years after the death of an intestate, on any property belonging to the estate which thereafter first comes to the knowledge of a person interested therein, if administration is applied for within five years after the property becomes known, knowledge is not necessarily to be imputed to the person applying for letters of administration from the fact that lie was the brother of the intestate and knew of his death, nor from the fact that the property consisted of a mortgage of land and a note secured thereby, which mortgage was duly recorded.</p> <p>It is no objection to the granting of original administration, under the Gen. Sts. c. 94, §§ 3, 4, that the only property to be affected thereby consisted of a promissory note secured by a mortgage of land, and that the land had been for more than twenty years in the adverse possession of the person opposing the granting of the administration.</p>

Trustee process. Writ dated February 14, 1879, and served the next day.

Contract, under the Gen. Sts. e. 140, § 80, to recover $2700, alleged to have been paid the defendants in excess of what was due, under protest, and after a threat to foreclose a mortgage of land, held by the defendants, unless such payment was made. At the trial in the Superior Court, before Wilkinson, J., without a jury, it appeared that, in January 1877, the defendants conveyed the land to Ebenezer G. Lamson, who the same day mortgaged it to the defendants.

<p>Appeal from a decree of the Probate Court, admitting to probate a book as part of the will of Alexander De Witt.</p> <p>On February 4, 1879, his will and four codicils were admitted to probate, and William Newton and Charles A. Angelí were appointed executors. On June 3, 1879, they presented a petition to the judge of probate, setting forth that the second clause of the third codicil of the will was as follows: “I revoke that part of my will which gives directions for the payment of my legacies, and order and direct my executors or the survivor of them to pay the several legacies mentioned in my wills and codicils, as near as possibly convenient, according to the directions written in a book by Melvin W. Pierce, signed by me, Alexander De Witt, and witnessed by said Melvin W. Pierce; ” that the petitioners had the book referred to in their possession, but end not offer it for probate with the will because they did not think it necessary to have it admitted to probate ; that the book filed with the petition was the book referred to in said codicil, and was in existence at the time of the making of said codicil; and praying that the same might be admitted to probate as part of the will of Alexander De Witt.</p> <p>On this petition, after due notice to all parties interested, the judge of probate ordered a decree to be entered, which, after reciting that it appeared that a part of the directions in said book, to wit, the writing on the cover and on certain specified pages thereof, with the exception of certain specified words and figures on two of those pages, were a part of the will of the deceased, namely, of the third codicil thereto, and that the same, being written and signed by the deceased and witnessed by Melvin W. Pierce at the time of the execution of said codicil, was legally executed, ordered that the aforesaid parts of the book, and the directions written therein and signed by the deceased, be allowed as part of the third codicil and of the last will of the deceased.</p> <p>From this decree two of the legatees appealed to this court, assigning as reasons of appeal that the book was not a part of the will and codicils; and that it was offered for probate too late.</p> <p>At the hearing of the appeal, the parties agreed that the facts set forth in the petition of the executors were true; and that the only other facts material to the determination of the case were as follows: On the cover of the book were written the following words, signed by the testator, and witnessed by Melvin W. Pierce: “ Directions to my executors in the way and manner I wish all the legacies to be paid as near as possibly convenient. Should I dispose of any of the property herein named before my decease, I order and direct my executors to make up the legacies in stocks or other securities or cash, as they may think best.” The book contained several pages of instructions as to paying, in specific property, legacies given in the will and codicils, comprising twelve classes or divisions of instruction, each division being signed by the testator and witnessed by Pierce. The book further contained two entries, by way of marginal note and interlineation by the testator after the execution of the third codicil, which consisted of the words and figures excepted in the decree of the Probate Court; and also a list of property not disposed of on the testator’s eightieth birthday, at the end of the book and wholly distinct from the instructions, which was not offered for probate nor mentioned in that decree. With these exceptions, the whole book was admitted to probate in the court below, and was in its present form at the times of the making of the codicil and of the testator’s death.</p> <p>The case was reserved by Gr'ray, C. J., at the request of both parties, for the consideration of the full court, and for the entry of such decree as law and justice might require.</p>

Coxtract upon an account annexed for coal sold and delivered, and for weighing coal for the defendant.

Tort. Writ dated September 23, 1878. The declaration alleged that the defendant, on January 1, 1877, and on other days and times from that day to the date of the writ, with force and arms, broke and entered the plaintiff’s close in Fitchburg, “ and trampled down the grass and herbage growing thereon, and took and carried away the same, and occupied said close with cars, tracks, structures and materials, and hath prevented the plaintiff from using the same as he otherwise…

<p>One servant is liable to an action by another servant in the employment of the same master for damages occasioned by the negligence of the first in such employment.</p>

<p>Under the St. of 1878, c. 190, § 1, cl. 10, providing that any person “ duly enlisted and mustered” into the military service of the United States, as part of the quota of a city or town, under any call of the President during the late civil war, and who fulfils the other requirements of that act, shall be deemed to have acquired a settlement in such city or town, the fact that a person has been enlisted and mustered by a false name does not prevent his acquiring a settlement ; and, in an action by one town against another for his support as a pauper, his identity may be shown by paroi evidence.</p> <p>In an action by a town against another town for the support of a pauper, the defence was that the pauper had acquired a settlement in a third town by reason of his military service in the army of the United States as part of the quota of that town. The pauper testified that he heard that he was drafted, and went into another State to avoid the draft, and there enlisted, but was not mustered into the service; and that he then left that State, and enlisted and served as part of the quota of the town in question. Held, that this evidence did not show that he had been “ proved guilty of wilful desertion,” within the meaning of the St. of 1878, c. 190, § 1, cl. 10.</p>

<p>A mortgagee of land, to correct a mistake in his mortgage, discharged it of record, and took a new mortgage, in ignorance that an intervening mortgage had been given and recorded. After knowing the facts he sold the land under the power contained in his mortgage, bought it himself, brought an action against the mortgagor to recover the balance remaining unpaid on the mortgage note, obtained judgment, and, on execution, sold all the property of the mortgagor. Held, that he could not, after this, maintain a bill in equity against the mortgagor and the other mortgagee to have the discharge of the first mortgage cancelled.</p>

Tort against the sheriff of the county of Dukes County for the act of Jason L. Dexter, his deputy, in entering the plaintiff’s close in Edgartown and tearing down and removing a fence standing thereon. At the trial in the Superior Court, before Allen, J., without a jury, the plaintiffs offered to prove that the title of the locus where the alleged trespass was committed was in them; and that said locus was not within a town way or private way.

<p>A notice to a city that a person has been injured by striking his foot against a gas pipe, marked in a particular manner, and projecting two inches above the sidewalk on a certain street in the city, does not sufficiently designate the place of the injury, under the St. of 1877, c. 284, § 3, if it appears that the street is two miles long.</p>

Tort for breaking and entering the plaintiff’s close in Fall River, and erecting certain structures and depositing rubbish thereon. Trial in the Superior Court, before Putnam, J.., who ruled that the defendant had no right to do the acts complained of; ordered a verdict for the plaintiffs; and reported the case for the determination of this court.

<p>6. bill in equity alleged that the plaintiff, acting as the agent of the defendant, sold certain personal property of the latter to a third person, and gave his own negotiable promissory note to the defendant for a part of the purchase-money, taking at the same time from the purchaser a note for the same amount payable to himself; that this was an arrangement made by all parties for the convenience of the purchaser in paying his note; that the plaintiff gave his own note to the defendant without consideration, and only as a memorandum that the purchaser’s note belonged to the defendant, and was held by the plaintiff only for him; and that the defendant agreed that he would make no other use of the note signed by the plaintiff. The prayer of the bill was that the defendant might be restrained from prosecuting a suit at law commenced for the collection of this note; and that the same might be surrendered to the plaintiff; and for other and further relief. Held, on demurrer, that the bill could not be maintained.</p>

<p>An entry on land by a person disseised, merely for the purpose of seeing if there is any evidence of an adverse occupation, is not, as matter of law, conclusive evidence of an interruption of the disseisor’s adverse possession.</p>

<p>The holder of a mortgage, in which the wife of the mortgagor did not join, of land in a city, foreclosed the same, and sold the land under the power therein contained, took a deed to himself, and afterwards conveyed the land to another. Before the mortgage was foreclosed, the land was sold for non-payment of taxes and conveyed to the city. The mortgagee, before he conveyed the land, paid to the city the amount due for the taxes, with all interest and expenses of the sale, and took a deed of release and quitclaim from the city. Held, that the widow of the mortgagor was not barred of dower in the land.</p>

<p>If the holder of a promissory note enters into an agreement, not under seal, with the maker, by which the time of payment is to be extended, the interest then due is to be paid at the original rate, and the holder is afterwards to apply a portion of the interest towards the extinguishment of the principal, the agreement is without consideration and not binding upon the holder, and does not operate to discharge a surety on the note.</p>

<p>A trust in personal property may be shown by paroi evidence.</p> <p>If personal property is transferred by a conveyance absolute in form, it may be shown to have been in trust by the subsequent declarations of the transferror assented to and acted upon by the transferee.</p> <p>If a trust is once established, the acts of the trustee in using the property as his own, without the knowledge of the cestui que trust, do not affect the rights of the latter.</p> <p>Neither an assignee under a voluntary assignment, nor an assignee in bankruptcy, takes any greater rights in property, the legal title to which is in the assignor or bankrupt, than he himself has.</p>

<p>A corporation made an assignment to trustees of all its property for the benefit of its creditors, which was executed by each of the creditors, and by which they severally “agree” to accept “and do hereby accept” in full payment, satisfaction and discharge of their respective debts, demands and causes of action, against the corporation then existing, “ whether payable now or at some future time or times, except as hereinafter otherwise provided, what shall be payable to us, under the provisions of this instrument, out of the proceeds of the estates and property hereinbefore assigned and conveyed,” “ and we do and each and every one of us doth hereby absolutely release, acquit and forever discharge ” the corporation from all such demands and causes of action, “and these presents shall be pleadable in bar thereof, except as hereinafter otherwise provided.” The instrument further provided that the execution of it should not have the effect of releasing or impairing any mortgage, pledge or other security held by the creditors; and that it should not release or discharge any person who was liable as surety, guarantor or indorser upon notes or hills held by the creditors. It also provided that, in case a petition under the insolvent laws of the Commonwealth should be filed by or against the corporation, and a warrant should be issued thereon, the operation of the instrument should cease, the trustees should deliver the property in their hands to the assignees, and in that event “ the said parties of the third part do not accept what shall be payable to them, under the provisions of this instrument, in full payment, satisfaction and discharge of their respective debts, demands, claims, actions and causes of action against said party of the first part, or release, acquit or discharge said party of the first part of and from the same, but in that event accept what shall be paid to them under the provisions of this instrument, and release, acquit and discharge said party of the first part only to the extent of the amount actually paid on said debts, demands and claims, and no further.” No dividends or payments to the creditors have been made by the trustees under the assignment. Held, that the assignment did not operate as a present payment and extinguishment of the debts of the creditors, but was an executory agreement by the creditors, substantially a covenant not to sue; and that they had a right to prove their debts against the estate in insolvency of a surety upon the notes of the corporation. Held, also, that the creditors did not hold any property of the insolvent debtor or of the corporation in mortgage, pledge or otherwise, as collateral security for their debts, within the meaning of the Gen. Sts. c. 118, §27.</p>

<p>A sale of land, under a power contained in a second mortgage, of the entire estate, free from incumbrances, is invalid.</p>

Appeal, by the administratrix of the estate of Elisha Perkins, an insane person, from a decree of the Probate Court, allowing the account of the appellee as guardian of Perkins.

<p>An action to recover back the amount of a tax paid under protest cannot be maintained, unless the plaintiff shows that the tax was wholly illegal.</p> <p>The amount of a tax assessed upon the property of a firm after its dissolution, and paid under protest by one partner, cannot be recovered back by him, if the statement of facts upon which the case is submitted to the court does not show that, at the time the tax was assessed, the affairs of the firm had been wound up, or that there was no taxable property of the firm remaining undisposed of.</p>

<p>Three actions oe contract. The first was to recover a balance alleged to be due the plaintiffs by reason of the defendant overdrawing his account while in the plaintiffs’ service. The second and third were to recover a balance alleged to be due the plaintiff for services rendered the defendants as surviving members of the firm of M. C. Reynolds & Co.; and the second action contained counts on certain promissory notes against the defendant as surviving member of said firm. The three actions were tried together in the Superior Court, before Brigham, C. J., who allowed a bill of exceptions in substance as follows :</p> <p>Andrews, the plaintiff in the last two actions, offered evidence tending to show that, on February 19, 1872, he was employed by the firm of M. C. Reynolds & Co., consisting at that time of M. C. Reynolds and the defendant Abbott, at an agreed price of $18 per week; that, on May 1, 1872, his wages were increased to $24 per week, and continued at that price until August 1,1875, when they were reduced to the former price of $18, and remained so until October 22, 1877, when he left their employ; that on March 20, 1878, Moses C. Reynolds, the senior member of the firm, died; that, in his first action, there was a balance in his favor for services, after deducting payments made by said firm, of $477.47; and that in his second action there was a balance in his favor for services, after deducting payments made by the firm, of $87.60.</p> <p>The defendants offered evidence tending to show that the wages of Andrews were $18 per week from February 19,1872, until August 1, 1875; that his wages were reduced from that date to $15 per week, and so remained until he left their employ, on October 22, 1877; that the notes declared on had been paid; and, to prove payment, relied upon the fact that, in conversations between the parties in relation to settlement, Andrews did not mention any claim that the defendants owed him the amount of any promissory notes.-</p> <p>Henry E. Reynolds, one of the defendants, testified that the plaintiff called at their counting-room in February 1878, for the purpose of settling with them; that the plaintiff was asked if he would settle by their books, to which he replied that he would not; that their books were not correct; that the salary was not correct; that he had been having $18 per week; that Abbott replied, “No, I reduced your salary in August 1875 to $15 per week,” which the plaintiff denied; and that Abbott then said, that he would not settle except by the firm’s books, and if the plaintiff would not settle by them, they should sue him.</p> <p>The defendants further offered in evidence the following statement made by the plaintiff, against his objection and exception : “ Andrews said, I am willing to settle if you will call my salary $18 per week up to the time I left; there will not be much difference any way, a trifle in my favor, but I am willing on those terms to pass receipts and call it square; ” that Abbott replied that he would not do it, and unless settled by their books they would sue at once.</p> <p>The jury returned a verdict for the plaintiffs in the first case for the plaintiff in the second case; and for the defendants in the third case. Andrews alleged exceptions to the admission of the evidence objected to.</p>

Contract upon a judgment recovered by the plaintiff against the defendants in the Supreme Judicial Court of Maine. Held: upon the whole evidence, that that court had jurisdiction of the defendants, and that this action could be maintained. The defendants alleged exceptions.

Tort for slander in accusing the plaintiff of the crimes of larceny and embezzlement. At the trial in the Superior Court, before Aldrich, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions to the exclusion of certain evidence, which appears in the opinion.

Contract upon a promissory note for $126.53, dated January 81, 1877, payable in twelve months from date to the Trustees of the Marblehead Reform Club, signed by the first-named defendant and indorsed by the other defendants. The declaration contained three counts, the first two being upon the note, and the third for money had and received.

<p>Tout, by the executor of the will of Thomas M. Saunders, for the. conversion of a furnace and pipes, four iron registers, and the soapstone foundations in which the registers were fixed. Answer, a general denial. Trial in the Superior Court, without a jury, before Allen, J., who allowed a bill of exceptions in substance as follows:</p> <p>It appeared in evidence that the plaintiff’s testator held two mortgages upon certain real estate in Salem, consisting of a dwelling-house with the land under and adjoining the same, the first mortgage being dated October 14, 1874, and the second May 24, 1876; and that, in October 1876, A. S. Dudley, the owner of the real estate subject to the mortgages, purchased of the defendants a furnace of the kind commonly known as a “ portable furnace,” with the pipes and registers connected therewith. The articles were sold on credit at first, and afterwards a note was given by Dudley to the defendants in payment.</p> <p>The furnace, with the pipes and registers, was placed in the house standing on the premises, the house being a part of the premises when the mortgages were given. An excavation a foot in depth was made in the cellar of the house and a brick foundar tian built therein with mortar. The top of this brick foundation was covered with mortar and the furnace placed thereon.</p> <p>The evidence was conflicting upon the question whether or not the furnace was in any way attached to the brick foundation by the mortar; but the judge found as a fact that it was not so attached, and that the mortar was placed on the top of the foundation, not for the purpose of fixing the furnace to the foundation, but in order to make a level surface for the furnace to rest upon, and to prevent the entrance of air underneath.</p> <p>Four pipes extended from the furnace to the lower floor, and other pipes through closets to the upper part of the house, and registers were placed in the floor in the lower story, and in the floor and partitions in the upper part of the house.</p> <p>The note given in payment for the furnace and other articles not being paid at maturity, the defendants, without the authority or knowledge of the mortgagee, but with the consent and by the authority of Dudley, who occupied the premises, entered thereon, took the furnace off the brick foundation, and carried away the furnace, the four pipes leading to the first floor, and the four registers, with the soapstone in which they were set on the lower floor, leaving the foundation, the remaining pipes and registers, and everything else connected with the furnace, in the house.</p> <p>Upon this evidence, the defendants requested the judge to rule that, as between the parties to this action, the articles taken were not a part of the realty; and that no conversion of the plaintiff’s property had' been shown. But the judge refused so to rule; ruled that the evidence was sufficient to sustain the plaintiff’s claim; and ordered judgment for the plaintiff. The defendants alleged exceptions.</p>

<p>A husband may maintain 'an action, under the St. of 1879, c. 297, for injury to liis “ means of support” by the intoxication of his wife, caused by intoxicating liquors sold to her by the defendant.</p> <p>It is no ground of objection to the constitutionality of the St. of 1879, c. 297, that the defendant in an action, under that statute, to recover for injuries caused by the intoxication of a person to whom he sold intoxicating liquors, had a license to sell such liquors, and had not violated his license.</p>

<p>A notice to a city that a person has been injured on a street named, by "the defective and dangerous condition of the way, which the city negligently permitted to be out of repair,” does not sufficiently designate the cause of the injury, within the St. of 1877, c. 234, § 3.</p>

Writ oe entry, dated February 17, 1879, brought by the trustee of Bridget Walsh, to recover an undivided one-third interest in two lots of land in Methuen. Plea, nul disseisin.

<p>A person may be liable to the several penalties prescribed by the St. of 1875, c. 99, § 15, for selling intoxicating liquor to a minor, giving such liquor to him, and allowing him to loiter upon his premises on the same occasion.</p> <p>The action given by the St. of 1875, c. 99, § 15, to the “parent” of a minor to whom intoxicating liquor has been sold, may be maintained by the mother of the minor, without proof that he has no father.</p>

<p>At the trial of a petition for the assessment of damages caused to the petitioner’s estate by the construction of a public urinal, under the St. of 1876, c. 65, evi dence is not admissible that offensive smells came from the building after it was used as a -urinal, causing a nuisance and injuriously affecting the petitioner’s tenants.</p>

<p>A lease of a tenement for the term of two years contained the following provision: “And it is hereby mutually agreed that if, before the end of said term, neither of the parties shall give to the other three months’ notice in writing of his intention to terminate this lease at the end of said term, said lease shall continue in force for another term of one year, and in the same manner from year to year, until one of said parties shall determine this lease by notice in writing, in the manner aforesaid, which notice shall terminate with the end of the year for which the premises are then held; and provided that either party may terminate this lease by notice in writing given three months before the termination of any one year.” Held, that, upon the failure of the lessee to give notice, three months before the end of the second year, of his intention to terminate the lease, it continued in force for another term of one year.</p> <p>In an action for one quarter’s rent of a tenement, upon the covenants of a written lease providing that, unless three months’ notice of an intention to terminate the lease is given, the lease shall continue in force for another term of one year, evidence that the plaintifE let or occupied the tenement after the quarter in question is immaterial.</p>

<p>Contract for breach of the covenants of a written lease of a tenement in Boston. Trial in the Superior Court, without a jury, before Roclcwell, J., who allowed a bill of exceptions in substance as follows:</p> <p>The defendant admitted that there had been a breach of the conditions of the lease, and agreed that judgment might be entered for the plaintiff in the sum of $2168.22, unless the facts herein stated constituted a defence to this action.</p> <p>The judge found that the defendant, who was a resident of Hew York in the year 1868, was, during the summer of that year, temporarily residing and practising his profession as a physician at Cape May, in the State of Hew Jersey, and that the plaintiff and her husband, Dr. Dio Lewis, residents of Boston at that time, were temporarily residing at Oakland, in the State of California; that, on June 10, 1878, Lewis, who was and still is the authorized agent of his wife, the plaintiff, wrote the defendant a letter, which was received by him, in which he requested the defendant to make him an offer for a new lease of said premises. The defendant replied, making such offer, by-letter dated June 22,1878. In this letter the defendant gave, as a reason for desiring to make the new contract, his anxiety to be released from all claim by the plaintiff.</p> <p>On July 8, 1878, Lewis wrote the defendant a letter, which he received on July 17, 1878, at Cape May, in which Lewis accepted the defendant’s offer, with slight modifications, and which contained the following: “ If you agree to this plan, and will telegraph me on receipt of this, I will forward power of attorney to Mr. Ware. Telegraph me ‘yes’ or ‘no.’ If ‘no’ I will go on at once to Boston with my wife, and between us we will try to recover our lost ground. If I do not hear from you by the 18th or 20th, I shall conclude ‘ no.’ ”</p> <p>The defendant, on said July 17, went to the telegraph office of the Western Union Telegraph Company in Cape May, wrote a telegraphic despatch directed to Dio Lewis, Oakland, Cal., delivered it to the telegraphic agent and operator of said company, and paid the full price for its transmission to Oakland, and gave directions to have it forwarded at once. The defendant did not keep a copy of the telegram. He gave notice to the plaintiff to produce the telegram, and testified that he had exhausted all the means in his power in Boston, New York and New Jersey, in his endeavors to produce the telegram; that he had been to the Cape May office of the company, and had learned that the operator to whom he gave his despatch was not in charge of that office; that he had made diligent search for him without being able to learn his whereabouts; and that in this search he had had the aid of the superintendent and other officers of the company in Boston. He also offered to prove, by an officer of the company in Boston, that both by rule and custom of the company, so far as he knew the custom, the despatches received and sent from all the offices of the company were destroyed after they had been iri the possession of the company six months. If, under these circumstances, it was competent to prove the contents of said despatch by oral testimony, the judge found that the word telegraphed was “ yes.”</p> <p>The judge also found that Lewis never received said telegram; that the new lease to be made, as stipulated in the letters of Lewis and the defendant, was to be like the former lease in form, with the various modifications and changes contamed in said letters, and was to be delivered in Boston, and the consideration then paid; and that the Mr. Ware mentioned in Lewis’s letter was the plaintiff’s attorney, residing in Boston.</p> <p>The defendant contended that a contract was completed by said letters and telegram on July 17, under, the law of the State of New Jersey; and that this case was controlled by the law of New Jersey. The judge found that the law of New Jersey is as stated in Halloch v. Commercial Ins. Co. 2 Butcher, 268; ruled, &s matter of law, that the facts as above set forth did not show d new contract, and constituted'no defence to this action; and found for the plaintiff in the sum agreed upon. The defendant alleged exceptions.</p>

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

Trustee process. Writ dated February 18, 1879. Alexander S. Wheeler, administrator of the estate of Jane P. Bartlett, was summoned as trustee of the principal defendant, and answered that, at the date of the service of the writ upon him, he had not, as such administrator, any of the goods, effects or credits of the defendant in his hands.

<p>Land, bounded on one side by a street and on another side by a railroad, was conveyed “ subject to the condition that no building shall ever be placed on that part of the same lying within twenty-five feet of said street, and also that the present occupant of a part of the premises near said railroad for a lumberyard shall be allowed the time until the first day of October next after the date hereof to remove his lumber and evacuate the premises, but no longer without the consent of said grantee.” Held, that both clauses of the provision took effect only by way of restriction; and that the restriction as to building, in the absence of evidence that it was imposed for the benefit of other land, must be construed as a personal covenant merely with the grantor, which his heirs could not enforce after his death.</p>

<p>Writ of entry, dated December 17, 1879, to recover a parcel of land in Revere. Plea, nul disseisin. The case was submitted to the Superior Court, and, after judgment for the demandants, to this court, on appeal, on agreed facts which ap pear in the opinion.</p>

<p>Trustee process. Israel T. Hunt, summoned as trustee of the principal defendant, answered that, at the time of the service of the writ upon him, he had no money in his hands or possession due the defendant from him on any contract or account whatever; that, at that time, there was due the defendant a certain sum from the trustee jointly with Frank W. Hunt and Katharine H. W. Hunt on a contract in writing; that these co-contractors resided in the State of New Hampshire; that, on the day of the service of the writ in this case, all the moneys and credits due the defendant on said contract in the hands of the co-contractors were trusteed by a writ dated the same day issuing out of and returnable to the Supreme Court of New Hampshire in the suit of Pliny F. Morgan against John H. Gigie, the defendant in this case, and the co-contractors, upon whom ser vice was made that day, were all summoned as trustees; and that “since the service of the writ herein, all of said co-contractors have been charged as trustees upon said writ in New Hampshire.”</p> <p>The case was submitted to the judgment of the Superior Court, and, after a judgment against the defendant and discharging the trustee, to this court, on the plaintiff’s appeal, upon agreed facts, in substance as follows:</p> <p>The writs in both actions were dated November 19, 1877. The officer’s return of service upon the writ in the suit in New Hampshire was as follows : “ Hillsborough, ss. Nov. 19, 1877 I this day attached all moneys, goods, chattels, rights and credits of the within-named defendant, in the hands and possession of Catherine H. W. Hunt, Israel T. Hunt and Frank W. Hunt, and summoned said Catherine H. W., Israel T. and Frank W. Hunt, by giving to each of them a true and attested copy of this writ, and the within-named defendant not being an inhabitant of this State, I made no further service of this writ.” Service was afterwards made on the defendant by publication. The service of said writ was made upon all the trustees therein named in the forenoon of November 19, and the service upon Israel T. Hunt was made by leaving at his place of abode in New Hampshire a true and attested copy of the writ about ten o’clock in the forenoon of said day, during his absence in this Commonwealth, which copy first came to his hands and notice about four o’clock in the afternoon of the same day, upon his return to New Hampshire. The service of the writ in the case at bar upon Israel T. Hunt was made by giving to him in hand, at Boston, a true and attested copy of the writ at one o’clock in the afternoon of said November 19, as shown by the officer’s return. In the suit in New Hampshire, the trustees summoned including Israel T. Hunt, appeared by counsel, answered and were charged by the court, after argument, for the amount due Gigie under the contract referred to in the answer of the trustee in this case, and have paid over to Morgan the amount due, upon execution issuing out of the Supreme Court of New Hampshire in that suit; and Israel T. Hunt, in his answer as trustee in that suit, disclosed all the facts respecting the pendency of this suit and service of this writ upon him as trustee of Gigie, and annexed a copy of this writ to his answer.</p> <p>The statutes of New Hampshire provide that “ writs of summons, scire facias and review shall be served by reading the same to the defendant, or by giving him an attested copy thereof, or leaving such copy at his abode; ” and that “ the trustee writ shall be an attachment and summons, and shall be served upon the defendant and trustee like a writ of summons.”</p>

<p>On the issue whether a contract in writing, by the terms of which the plaintiff was to pay a certain sum each month, had become operative, the plaintiff testified to facts showing that it had not, and also testified that no demand had been made upon him by the defendant for the sums to be paid monthly, until the commencement of this action, a period of eight months. Held, that the defendant might rebut this evidence by proof that letters containing demands had been deposited in the post-office, properly addressed to the plaintiff, with the postage prepaid.</p> <p>The depositing in the post-office of a letter properly addressed, with the postage "prepaid, is prima fade evidence that the person to whom it was addressed received it.</p> <p>If a p'.rty to an action, for whom a letter properly addressed, with the postage prepaid, is deposited in the post-office, denies the receipt of the letter, it is no objection to proof of the contents of the letter that notice was not given him to produce the letter.</p>

Appeal by a creditor from the findings of a magistrate upon charges of fraud filed against a debtor under the Gen. Sts. c. 124, upon his application to take the oath for the relief of poor debtors.

<p>Contract against the defendants as copartners doing business under the firm name of the New England Express Company. The case was disposed of as to all the defendants except Pearson; at the trial in the Superior Court, before Dewey, J., on the issue whether Pearson was a member of said firm, the jury returned a verdict for the defendant; and the plaintiffs alleged exceptions, which appear in the opinion.</p>

<p>A bill in equity by creditors of a railroad corporation alleged that the corporation was insolvent; that all its property was mortgaged to trustees for the benefit of one class of creditors; that it owed large amounts to other creditors, one of whom had attached all its property; that it was about to execute a lease to the attaching creditor for a long term of years, at a rental which would no.t pay the interest upon its indebtedness; and that the execution of the lease would be injurious to the interest of its creditors and stockholders. The prayer of the bill was for an injunction to restrain the corporation from further prosecuting its business, and for the appointment of receivers. Held, that the bill did not state a case within the equity jurisdiction of the court.</p>

<p>The owner of letters patent made an agreement with the defendants, under seal, by the terms of which, in consideration of $10,000 paid to him by the defendants, “in the manner herein set forth,” he assigned to them his letters patent, and they agreed with him to form a corporation or corporations in the District of Columbia or elsewhere to put the inventions into use; to convey to him fifteen thirty-seconds of the capital stock of said corporations as fully paid up stock; to pay to him, as soon as said corporations, or either of them, should be organized, seventeen thirty-seconds of $10,000; that he should put in fifteen thirty-seconds of said §10,000, “the remainder of the consideration aforesaid,” towards the working capital; and that they should put in seventeen thirty-seconds of §10,000 as their share of the working capital. Held, that this agreement contemplated the formation of a corporation of which the real capital stock should consist of $10,000 in money, and of the patents estimated at §10,000. Held, also, if the law of the place where the parties attempted to organize a corporation provided that a corporation should be dissolved unless the capital stock should be paid in within a certain time, and that nothing but money should be considered as payment of any part of the capital stock, that the scheme contemplated by the agreement was illegal; and that the owner of the letters patent could not maintain an action on the agreement for the failure of the defendants to complete the organization of the corporations and to convey to him his proportion of the capital stock.</p>

<p>If the assignee of a mortgage of real estate containing a power of sale sells the mortgaged premises, and, after paying the expenses of the sale, applies the balance to the mortgage debt, this does not operate as a part payment on the note, so as to take it out of the operation of the statute of limitations as to the mortgagor, who, at the time of the sale, had conveyed the premises to a third person, who agreed to pay the note.</p>

Bill in equity, filed June 21, 1878, to redeem land in Boston from a sale and conveyance, on June 23, 1877, to the defendant, by Benjamin F. Bayley, a deputy sheriff, upon an execution against Charles H. Sewall.

<p>Bill in equity to restrain the defendant corporation from erecting a wall upon its land, alleged to, be a violation of the restrictions in the deed under which the defendant holds the land. Hearing before Colt, J., who ordered the bill dismissed with costs; and, at the plaintiff’s request, reported the case for the consideration of the full court, such judgment to be entered as law and equity might require. The facts appear in the opinion.</p>

Bill in equity, alleging that the plaintiff was the first cousin and next of kin of Eliza Powers, whose will, which was duly admitted to probate, after making pecuniary bequests to sundry persons, amounting to $54,000, and to various charitable corporations, amounting to $100,000, contained the following clauses: “ After the payment of the foregoing legacies, and all expenses and charges in the settlement of my estate, should there be any surplus, I give and bequeath the…

<p>A testator devised the residue of his estate to A. “ to distribute the same in such manner as in his discretion shall appear best calculated to carry' out wishes which I have expressed to him or may express to him; ” and appointed A. his executor. Held, that the devisee took no beneficial interest in the devise; that the trust on its face was too indefinite to be carried out; that it could not be established against the heirs or next of kin of the testator by evidence of oral communications made to A. by the testator, whether before or after the execution of the will, showing that the trust was for charitable purposes; but that the heirs or next of kin took by way of resulting trust.</p>

Bill in equity to redeem a mortgage of land in Boston. The case was heard by Ames, J., and reserved for the consideration of the full court, upon the following agreed facts: On October 7, 1874, Michael O’Connor, who was seised in fee of the estate in question, mortgaged the same to William B. Tyler to secure the payment of $5000 in one year; and that mortgage was subsequently assigned to Lorin L. Fuller, who assigned the same to William W. Gass, one of the defendants, on…

Bill of interpleader, filed May 27, 1876, against James W. Rice and Augustus E. Scott, the assignees in bankruptcy of Ezra D. Winslow, and against Sarah J. Winslow and Julia E. Ayres, alleging that the plaintiff, in his capacity of Mayor of the city of Boston, on March 5, 1876, received from the Consul oi the United States at Rotterdam, Holland, certain personal property consisting of bonds of the United States, certificates of shares of the capital stock of several mining…

Contract on a judgment recovered January 23, 1879, for 12497.32. Answer, a certificate of discharge granted by the Court of Insolvency, October 9, 1879, under proceedings commenced February 21, 1879. Writ dated November 5, 1879.

<p>Tort. The declaration alleged that the defendant forcibly entered the plaintiff’s close in Lowell, tore down the fences, dug up the soil, erected a building thereon, and took and carried away the soil and converted it to her own use. Writ dated August 14, 1879. Trial in the Superior Court, without a jury, before Pitman, J., who allowed a bill of exceptions in substance as follows:</p> <p>The trespass complained of was committed in April 1879, in the yard in the rear of the plaintiff’s house. The plaintiff testified that she had owned the premises since 1866, and had occupied them exclusively from that time until 1874, when she rented them to one Judkins, as tenant at will, reserving to herself one chamber, with the privilege of using the attic, the back yard and the privy; that, soon after the renting to Judkins, she was called by the sickness of her daughter to New Jersey, where she had remained most of the time since, returning to Lowell as often as once a year, sometimes twice, and remaining there on such occasions several weeks; that she always recognized the premises as her home, had a key to the front door of the house, passed in and out of the house when in Lowell, and kept all her personal property in her chamber and in the attic, except what she had in her trunk in New Jersey; that in 1878 she was in Lowell in the spring and in the fall, remaining each time several weeks; that in 1879 she was in Lowell in the spring, remaining several weeks, and in 1880 she was in- Lowell for several weeks; but during these times she had not slept in her chamber, or cooked or stopped in the house, but visited at the houses of her friends, though she frequently used the premises and exercised her usual privileges. It was also in evidence that the privy in the yard was torn down in April 1878, but after that the plaintiff placed a water-closet in the cellar of the building, and thereafterwards used it.</p> <p>On cross-examination she testified that, after the removal of the privy, she could not state any particular purpose for which she had used the yard, nor did she state any occasion on which she had used it except in going to and from the privy.</p> <p>Judkins substantially corroborated the testimony of the plaintiff; and, in answer to a question by the judge, testified that, at the time he rented the premises of the plaintiff, nothing was said about the reservation of the use of the yard and privy to the plaintiff, but he supposed it was understood, and nothing was said about it at any time.</p> <p>The plaintiff asked the judge to rule that, upon the above facts, she was a tenant in possession of the premises, and could maintain this action. But the judge found that the plaintiff had not established the fact that she was in possession of the close where the trespass was committed; and ruled that she could not maintain this action. The plaintiff alleged exceptions.</p>

Contract, against the executrix of the will of Caleb Thurs-ton, to recover a legacy of $1000. Writ dated July 29, 1879. The defendant filed a declaration in set-off for hoard and lodging furnished, the plaintiff from October 1, 1875, to April 1. 1878, at $5 a week.

<p>A fund was left by will, for a charitable purpose, to be managed by trustees to be chosen once in three years. The trustees were incorporated by an act which gave the corporation power to appoint officers, and provided that the then officers should hold their offices until others were chosen in their places. The person who had been treasurer of the trustees was chosen treasurer for the term of three years, and gave a bond, conditioned that he would gmrcint for the funds of the corporation deposited in his hands, and which shonH come to his hands as treasurer, and would faithfully perform the duties of his office. Held, that the bond was not a continuing bond.</p>

<p>If a married woman, owning separate property, permits her husband to use it in a business carried on by him, she is not “doing business on her separate account,” within the meaning of the St. of 1862, c. 198, so as to make it necessary for her to file the certificate required by that statute, in order to exempt the property from liability for her husband's debts.</p> <p>If an officer attaches personal property on a writ in favor of A., and then makes a second attachment of the same property on a writ in favor of B., and is afterwards requested by A. to have the property appraised and sold, by a written request signed by A., “ by B., his attorney,” B. being the same person who was plaintiff in the second action, B. must be deemed to have waived the notice required by the Gen. Sts. c. 123, § 74, to be given by the officer; and the failure of the officer to give such notice does not render him a trespasser ab initia, either as to B. or as to the owner of the attached property.</p> <p>The appraisement of several articles of attached property, under the Gen. Sts. c. 123, § 77, is not invalid because the appraisers do not state in their certificate the separate value of each article in the schedule prepared by the attaching officer, but appraise the whole property at a round sum.</p> <p>If an officer, who has attached several articles of personal property, which have been appraised, under the Gen. Sts. c. 123, § 77, at a round sum, dissolves the attachment on one of the articles before the sale, it does not render the sale of the remaining articles illegal, if the debtor did not offer to deposit the money or give the bond permitted by the Gen. Sts. c. 123, § 78, to prevent the sale.</p> <p>The fact that an officer, who has attached several articles of personal property, which have been appraised under the Gen. Sts. c. 123, § 77, sells more than enough to realize the amount called for by his precept, will not render the sale illegal, if the last article sold was indivisible, and the requisite amount has not been realized previous to its sale.</p> <p>The charging by an officer of unlawful fees upon the writ on which he attaches personal property does not avoid a sale of the property, or make him a trespasser ab initia as to the debtor.</p> <p>If, after the sale of attached property, the officer illegally attaches the funds in his hands on a writ in favor of another creditor, it will not vitiate the sale.</p>

<p>A. ordered of B. a car-load of flour at an agreed price delivered on board the cars, authorized B. to draw upon him for the amount at ten days’ sight, and gave references as to his pecuniary ability. B. made inquiries of the persons named, placed the flour on board the cars of a railroad company, directed to A., taking a receipt in which A. was named as consignee, and sent a draft for the amount with the receipt to a bank for collection, with directions to deliver the receipt to A. on his accepting the draft. The draft was not accepted, and was returned to B. with the receipt. Held, in an action by B. for the conversion of the flour against a person who purchased it from A. in good faith, and who obtained possession of it, that these facts would warrant a finding that the property in the flour passed to A. when it was delivered to the railroad company for transportation; and, on such finding, that the action could not be maintained.</p>

Tort in three counts. The first count alleged a conversion by the defendant of a baker’s oven, the property of the plaintiff. Held: and agreed to give the plaintiff a lease for five years. Thereupon the plaintiff took from Kent a bill of sale of all the bakery property, including the bake-house and oven, and entered into possession as tenant at will, and continued therein until October 1878.

<p>A party to an oral agreement, who was unable to read or write, affixed his mark to a paper, without its contents being read or explained to him, supposing that it contained the terms of the oral agreement, although no representation as to its contents was made. Held, that evidence was admissible to show that the terms of the written contract differed from those orally agreed upon; and that a finding that the writing was fraudulently obtained would be justified.</p>

<p>An agreement made by a trustee with his cestui que trust, in regard to the amount of compensation 'he shall receive for his care of the trust property, is not invalid, if the cestui que trust is sui juris and competent to act, and no fraud is practised or undue advantage taken; and such agreement should be taken into consideration by the Probate Court in determining the amount the trustee is entitled to charge.</p> <p>A trustee under a will, who, in good faith and in the exercise of a sound discretion, decides to retain an investment made by the testator in stock of a railroad corporation, when it is gradually falling in value in the market, is not responsible for the depreciation, although the stock becomes worthless.</p>

Contract upon a promissory note for $450, dated April 22, 1875, payable on demand to the order of the plaintiff, and signed by Bernard O’Reilly, the defendant’s testator. The writ described- the plaintiff as a corporation duly established and organized under the laws of the State of Missouri.

Contract for beef sold and delivered, according to an account annexed. The answer denied every allegation in the declaration and every item of debit in the account; and alleged that the meat therein charged for was tainted and unwholesome, and known by the plaintiff to be such at the time of the sale and delivery.

<p>Under articles in a warrant for a town meeting, “to choose all necessary town officers for the year ensuing,” and “to see if the town will accept the provisions of ” the St. of 1871, c. 158, as amended by the St. of 1873, c. 61, in regard to the election of road commissioners, “ or do or act anything thereon,” the town, after having accepted the provisions of the statute, may proceed to elect road commissioners.</p>

<p>A town may vote to pay a person who has performed work on its highways, although the work was done merely under the direction of one of the selectmen, who was also surveyor of highways, and not under the direction of the board of selectmen, as required by the St. of 1877, c. 68.</p>

Tort for personal injuries occasioned to the plaintiff, on January 26, 1879, by a defect in a highway in the defendant city. Answer, a general denial. Trial in the Superior Court, before Pitman, J., who reported the case for the determination of this court, in substance as follows: The plaintiff fell on the ice, and broke his leg.

<p>Contract upon an account annexed to recover a dollar and a half for repairing a carriage shaft, and forty cents for shoeing a horse. The action was commenced, and a general denial orally pleaded, before a trial justice, who gave judgment for the plaintiff for ninety cents damages, and $38.66 costs.</p> <p>The defendant appealed to the Superior Court, and there filed this answer: “ Now comes the defendant, and denies each and every allegation in the plaintiff’s declaration.</p> <p>“ How comes the defendant, and brings into court forty cents, the amount claimed for shoeing the defendant’s horse, and says that heretofore, and before action brought, he tendered to the plaintiff said forty cents, and at the trial in the court a quo he also tendered said forty cents to the plaintiff.”</p> <p>The court gave judgment for the plaintiff for forty cents, being the amount of the tender; and the defendant paid that sum to the plaintiff’s attorney. Costs were taxed by the'plaintiff in the sum of $181.33, and by the defendant in the sum of $53.17, and both taxations were disallowed by the clerk. From the decision of the clerk the defendant appealed to the court, which ordered his appeal to be dismissed; and from that order he appealed to this court.</p>

Indictment on the Gen. Sts. c. 161, § 34, charging the defendants, on October 6, 1880, at Boston, with feloniously and knowingly having in their possession certain implements designed and adapted for breaking open buildings, in order to steal therefrom, and with the intent to use said implements for the purpose of such breaking and stealing.

Complaint to the Police Court of Lowell, alleging that the defendant, on June 7, 1880, at Lowell, “ unlawfully did sell intoxicating liquors to one Margaret Baxter, not to be drunk on the premises of said Donahoe, and said intoxicating liquors were not then and there drunk on the premises of him, said Donahoe, by her, said Baxter, but were then and there carried away from said premises, he, said Donahoe, not having then and there any license, appointment or authority…

<p>If a venire is under the seal of the court, and directs the drawing, selecting and summoning of a grand juror from a particular town, and the return upon the venire is signed by a constable of the town, and shows that the person named in the return was so drawn and selected and was summoned to attend at the time specified in the venire, and such person attends and serves as a grand juror, and there is no question of his identity and qualifications in point o"f fact, neither an inconsistency in the description in the return of the time for which he was summoned, nor the want of an indorsement of his name by the town clerk, nor the omission of the name of the town in the address of the venire, nor the absence of a statement of his qualifications in the venire and return, affects the validity of an indictment found by the grand jury on which he serves.</p> <p>At the trial of a criminal case, the legal competency of the defendant as a witness is not affected by the fact that he does not offer himself as such.</p>

Indictment in two counts, under the Gen. Sts. c. 161, § 38, for embezzlement.

<p>Writ of entry to foreclose a mortgage of land in Plainfield. Plea, nul disseisin. After the former decision, reported 128 Mass. 269, the case was tried in the Superior Court, without a jury, before Aldrich, J., who allowed a bill of exceptions in substance as follows:</p> <p>The demandant claimed title under a deed of mortgage to her from Sarah Wetherbee, whose name alone appeared as grantor. The attestation clause was as follows: “ In witness whereof, we, the said Sarah Wetherbee and Nehemiah A. Wetherbee, husband of said Sarah Wetherbee, in token of his relinquishment of his right in the above-named premises, have hereunto set our hands and seals, this fourteenth day of June, in the year of our Lord one thousand eight hundred and fifty-eight.” The deed was signed and sealed by the grantor and her husband.</p> <p>The land in question had been conveyed by deed from Nehemiah A. Wetherbee (in which his wife Sarah joined in release of dower) to their son, James A. Wetherbee, dated March 1,1858, and James A. conveyed the land to his mother, by deed dated March 2, 1858, which was duly recorded. He paid no consideration to his father and received none from his mother, although in each deed the consideration was stated to be- $500, and no consideration passed between Sarah and Nehemiah A. James A. took the deed from his father under an agreement to transfer the property by deed to his mother, and for the sole purpose of so transferring it.</p> <p>The tenant asked the judge to rule that the demandant did not take a valid title by the deed to her from Sarah Wetherbee, and could not recover. But the judge declined so to rule; ruled, as matter of law, that the deed to the demandant conveyed a good title; and ordered judgment for the demandant. The tenant alleged exceptions.</p>

Contract against Laban S. Bond and John N. Grout upon a joint and several promissory note for $1000, dated May 13,1873, payable on demand to the order of the plaintiff, and signed by the defendants. Grout alone defended.

Tort in several counts for slander and libel. The counts for slander alleged that the defendant falsely said that the plaintiff, a Congregational minister, was not connected with any association of ministers, and was sent away from societies, of which he had formerly been the pastor, without the usual recommendations.

Contract upon a poor debtor’s recognizance, entered into on December 31, 1878, under the Gen. Sts. c. 124, § 10, by Charles A. Kendall as principal, and the defendant as surety, and containing the usual conditions.

Petition in equity, under the Gen. Sts. c. 118, § 16, by creditors of Rolfe Eldredge, an insolvent debtor, against Joel W. Harris, the assignee of the insolvent, and Amariah A. Taft, the owner of a mortgage upon the insolvent’s estate, to set aside a decree of the Court of Insolvency allowing the account of the assignee.

<p>A railroad corporation mortgaged its property and franchise to trustees to secure the payment of certain bonds, by an instrument which provided that, until default, the corporation should remain in possession; that if the bonds were paid the conveyance should be void; and that, on default of the payment of the principal and interest on any bond, and on request of one half in amount of the holders of the bonds, the trustees should sell the property and apply the proceeds to the payment of the bonds. Held, that, on default in the payment of interest, the trustees had the power to foreclose and take possession of the property, although not requested so to do by one half in amount of the bondholders.</p> <p>A bill in equity, brought by less than one sixth in amount of the holders of bonds secured by a mortgage given by a railroad corporation, against the trustees under said mortgage, to compel them to take possession of the property mortgaged, alleged that there had been a default in the payment of interest on the bonds; that the corporation had signified a purpose not to pay interest on the bonds unless the holders thereof would take a less rate of interest than the bonds called for; that the net income of the corporation was sufficient to enable it to pay interest; that the corporation was applying the income to unsecured debts; and that there was danger that, if this course continued, the property would be inadequate security for the payment of the mortgage. Held, on demurrer, that the bill could be maintained.</p> <p>It is no defence to a bill in equity to compel trustees, under a mortgage given by a railroad corporation, to take possession, on default of the corporation to pay the debt secured by the mortgage, that litigation may be necessary to ascertain what property is covered by the mortgage; or that a great burden and personal liability for injuries done and debts subsequently incurred will thereby be imposed upon them.</p> <p>If a railroad corporation executes a mortgage to trustees to secure the payment of certain bonds, and afterwards executes a second mortgage to the same trustees to secure other bonds, the bondholders under the second mortgage are not necessary parties to a bill in equity by the bondholders under the first mortgage to compel the trustees to take possession of the mortgaged prop erty.</p> <p>If a bill in equity is brought by one sixth of the holders of bonds, issued by a railroad corporation and secured by a mortgage, against the trustees named in the mortgage, the other holders of bonds secured by the same mortgage will be allowed to come in as plaintiffs. •</p>

<p>Land was conveyed to a trustee in trust to allow A. to occupy the land during the life of the grantor, A. to support the grantor during his life, and, in case A. should he unable or neglect to fulfil his obligations, the trustee to appoint arbitrators to pass upon the matters submitted to them, with power to determine the trust, if requested by either party, in which case the trustee should hold the land for the benefit of the grantor. Held, on a writ of entry by the trustee against A., after an award of arbitrators determining the trust, that paroi evidence was inadmissible to show that A. had fulfilled the obligations imposed on him by the deed.</p>

<p>Trustee process. Writ dated October 10, 1877. Virgil H. Wilde, summoned as trustee, was defaulted. Horatio L. Lin coin appeared as claimant of the funds in the hands of the trustee by virtue of the following order: “ Taunton, March 27,1877. L. H. Francis. Please pay PI. L. Lincoln, or order, all the moneys which may become due me from the Virgil H. Wilde ease, and this shall be your receipt for the same. Charles F. Coleman.” After the former decision, reported 127 Mass. 34, the case was tried in the Superior Court, without a jury, before Putnam, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The defendant was defaulted, and the trial proceeded between the plaintiff and the claimant. The claimant produced the above order, proved its execution, and that, at the date thereof, Coleman was indebted to him. Ho question was raised as to the consideration of the order. It was also proved or admitted that, at the date of the order, an action was pending in the Superior Court, in which Coleman was plaintiff and Wilde was defendant, and that Francis was the plaintiff’s attorney; that at September term 1877 of that court, a verdict was returned for the plaintiff in that action; and that the same, by order of court, was continued for judgment, by reason of the present trustee process.</p> <p>The claimant also offered to prove that there was a delivery of said order to Lincoln, and an oral acceptance of the same by Francis in Coleman’s presence at the time of the date of the order; and that the action above referred to was on a promis spry note, which was in the hands of Francis when the order was accepted. This was all the material evidence in the case.</p> <p>The judge ruled that all the facts, both those proved and those offered for proof, taken together, would not authorize a judgment for the claimant; found for the plaintiff; and ordered the trustee to be charged. The claimant alleged exceptions.</p>

<p>It seems, that the provision of the laws of the Colony and Province, that any one building on his own land in Boston might set half his partition wall on his neighbor’s land, and that the neighbor, when he should build, should pay for half of so much of the wall as he should build against, is still in force.</p> <p>A. owned two lots of land, one of which was occupied by him as a homestead, and was covered by a building several stories high except for a space of seventeen feet in the rear, where it was but one story high, and the other was vacant except that it had on.it one half the side wall of the building. A. agreed to sell the vacant lot to B., the latter to pay what arbitrators should determine the wall on the land sold was worth “ in building a store; ” and it was further agreed that B. might build a “ partition wall" in the rear of A.’s homestead lot, one half on A.’s land, for the use of both parties in common. B. assigned this agreement to C., to whom A. conveyed the vacant lot by a deed in which the boundary line between this lot and the homestead lot was described as running “through the centre of the brick partition wrall.” C. afterwards became the owner of the lot in the rear of A.’s homestead lot. The value of the side wall on C.’s land was appraised by arbitrators, who in their award described it as “ the party wall owned by A. and C., assignee of an agreement made between A. and B.” The sum appraised was paid by C. to A., and A. executed to him a formal release in full for the wall and all walls mentioned in the agreement. Held, that the effect of these agreements was to make both the side wall and the rear wall party walls, upon which C. might build, placing one half the wall upon the land of A.</p>

Bill in equity, filed March 24,1880, to restrain the defendants from obtaining or enforcing judgment upon a verdict in their favor in an action at law against the plaintiffs.

<p>The repeal of a general corporation law by a statute substantially reenacting and extending its provisions does not terminate the existence of corporations organized under it.</p> <p>The constitution of a charitable corporation provided that any person could apply for admission by paying an admittance fee, and, when declared elected, could, after signing the constitution, vote at all meetings, and be eligible to office; and that each member should pay a certain amount yearly to the corporation. Held, that signing the constitution was not a prerequisite to membership; and that an action would lie by the corporation against a member, who had not signed, for his yearly dues.</p>

Contract to recover the balance due upon a promissory note, signed by the, defendant, payable to the plaintiff, and secured by a mortgage of real estate.

<p>In an action for personal injuries occasioned to a boy under seven years of age, by being run over by the defendant’s wagon, while sitting on the sidewalk of a street, the evidence was conflicting as to the character and condition of the sidewalk, and whether it was clearly separated from the rest of the street. The judge instructed the jury fully as to the rights of travellers with wagons and travellers on foot in public highways; and that the plaintiff could not recover, unless, at the time of the injury, he was in that part of the highway where it was then proper for him to he, and was in the exercise of due care. The defendant then asked the judge to rule that, if the plaintiff was sitting on the sidewalk, and the sidewalk was a part of the street over which both wagons and foot-passengers passed, he was negligent, and could not recover. The judge declined so to rule; and ruled as follows: “If the boy was sitting on a sidewalk which was clearly defined and distinguishable from the travelled way, which was sufficient for persons passing with teams, he had a right to be there, that was a proper use of the sidewalk, and the defendant would have no right to drive his horse on the sidewalk against him.” Held, that the defendant had no ground of exception.</p>

Tobt, under the St. of 1877, c. 234, for personal injuries occasioned to the plaintiff by a defect in a highway in the defendant city. Writ dated September 27, 1878, and returnable at December term 1878 of the Superior Court for the county of Middlesex. Answer, a general denial. The case was tried at March term 1879, when the jury returned a verdict for the plaintiff.

<p>Three actions oe contract, each for money had and received by the defendant to the plaintiff’s use. Trial in the Superior Court, without a jury, before Pitman, J., who found for the defendant in each case, and reported the cases for the determination of this court. If the actions could be maintained, new trials were to be had; otherwise, judgments for the defendants. The facts appear in the opinion.</p>

Tort for breaking and entering the plaintiff’s close in Framingham, and flowing the same with water, on September 22, 1873. Writ dated July 23,1879. Answer, that the acts alleged were done in pursuance of the power conferred upon the defendant by the St. of 1872, c. 177, and that the plaintiff had recovered full damages for the defendant’s acts in the manner provided by said statute.

Bill in equity, filed September 7, 1878, to settle the affairs of a partnership. The case was referred to a master, who reported the” following facts: On July 1, 1873, Alfred Livingston, the plaintiff’s testator, and the defendant entered into articles of partnership, for the purpose of carrying on the drug and apothecary business in Lowell.

<p>In an action brought by a lessor against a lessee, after the termination of the lease and the surrender of the premises, on the covenant to deliver up the premises in as good condition as they were in at the inception of the lease, the defendant is not aggrieved by a ruling that the measure of damages for the removal of fixtures is the sum required to restore the fixtures, allowing for reasonable use and wear and for the increase in value by substituting new material for old.</p>

<p>Evidence that a husband, who had the management of a parcel of land of his wife, ordered materials for building a house on the land, and that the wife knew that the house was building, and occupied it when finished, will warrant the jury, in an action against her for the price of the materials, in finding that the husband acted as her agent.</p>

<p>Contract, brought for the benefit of Eliza F. Sweetser against the executor of the will of Minerva H. Gerry, to recover $100, alleged to have been given to the plaintiff by the "testatrix in her lifetime for the use of Eliza. Trial in the Superior Court, before Pitman, J., who reported the case for the determination of this court in substance as follows:</p> <p>The plaintiff offered to prove that she and Eliza were sisters; that, a few days before the transaction in question, Minerva gave an order for $300, signed by her, which was presented to the defendant, who had charge of the funds standing in her name in the Stoneham Five Cents Savings Bank, amounting to $2000, and he thereupon drew the $300 from the bank and handed it to her son, Elbridge Gerry, as requested by her, for Eliza; that, on August 4, 1878, the following paper was written by the nurse of Minerva, on the day of its date and signed by the latter: “ Mr. Howe, I want you to take one hundred dollars out of the bank for me, and not let Abby know it, and hand it to Susan; ” that it was then presented to the defendant, who declined to draw the money; that the defendant afterwards saw Minerva, who told him that she wanted him to draw the money and pay it to Susan; that he tried to have her change the gift, but she refused and wanted him to pay it to Susan at once; that the $300 and the $100 were to be held in trust for Eliza by Susan and her husband, Elbridge Gerry; that the defendant never obeyed said direction; that Minerva died in September 1878, and the defendant was named and appointed executor; and that, after his appointment, he was again requested to pay over the $100, which he refused to do.</p> <p>The judge ruled that these facts, if proved, would not support the action; and directed a verdict for the defendant. If there was a case for the jury, the verdict was to be set aside and a new trial had; otherwise, judgment on the verdict.</p>

Contract upon a bond to. dissolve an attachment, signed by Henry M. Beals as principal, and Henry F. Woods and Luke W. Fowle as sureties, in an action in favor of the plaintiff against Beals, and in which judgment was recovered, on December 12, 1878, for $800 damages and $61.21 costs of suit.

Tobt for the conversion of certain personal property. Trial in the Superior Court, before Putnam, J., who allowed a bill of exceptions in substance as follows : The property in question, which was attached by the defendant, a deputy sheriff, on May 24,1880, as the property of Mary A. Snow, was mortgaged by her to the plaintiff by a deed, dated in the in testimonium clause the “ sixteenth day of June in the year one thousand eight hundred and seventy-nine,” and pur ported to…

<p>Contract for money expended, in December 1879, by the plaintiff, for the relief of Bridget Nolan, a pauper, whose settlement was alleged to be in the defendant city. Answer, a general denial. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, on agreed facts in substance as follows:</p> <p>The plaintiff is entitled to recover the amount claimed if Bridget Nolan had a settlement in Boston in December 1879 and January 1880. Upon that question the material facts are as follows: Bridget Nolan married Hugh Nolan on August 11, 1861, in Boston, and they have lived together as husband and wife ever since. They so lived in Boston from May 1864 until June 1871, during which time neither he nor she received aid as a pauper. The husband never has had a settlement in this Commonwealth, nor did Bridget at the time of her marriage have any settlement in this Commonwealth, nor has she ever had a settlement in this Commonwealth, unless, by her residence in Boston as aforesaid, she gained a settlement in that city.</p>

<p>A town is not liable for an injury caused by a defect in a bridge or its approaches, which a railroad corporation is bound by law to keep in repair, although the bridge is part of a highway, and the town has made a contract with the railroad corporation to keep the same in repair, has made repairs upon it within six years prior to the injury, and, with knowledge of the defect in question, has suffered it to remain without warning to the public.</p>

<p>A wife cannot maintain an action, under the St. of 1879, c. 297, for the death ol her husband, caused by intoxication resulting from the use of intoxicating liquors sold or given to him by the defendant.</p>

<p>Under the Gen. Sts. c. 118, § 47, an assignment in insolvency, made by the judge to the assignee, is conclusive evidence of the latter’s authority to sue; and, in a suit by him, it is not open to the adverse party to contest the regularity and validity of the proceedings in insolvency.</p> <p>The failure of the register, and of the assignee, to record an assignment in insolvency, as directed by the Gen. Sts. c. 118, §§ 6,43, does not invalidate the assignment, or defeat the assignee’s right to sue.</p> <p>If a person, having a right of homestead, executes a deed to another of an undivided half of the land, this bars the right of homestead, and he cannot acquire a new right of homestead by continuing to occupy the premises in common with the grantee; and it makes no difference that the wife of the grantor does not join in the deed until just before it is recorded, nearly five years after it was made, if the deed was delivered to the grantee with the understanding that she was to sign it, and she signed it in pursuance of the original agreement.</p>

Contract upon an account annexed for money expended by the plaintiff for the support of Abigail Taylor, a pauper. Answer, a general denial. Trial in the Superior Court, without a jury, before Dewey, J., who allowed a bill of exceptions, in substance as follows: There was evidence that the pauper was the lawful wife of Edwin Taylor, to whom she was married on August 2,1854.

Contract to recover $125 and interest thereon, as a bounty which the defendant town voted, on April 19,1864, and May 28, 1864, to pay the plaintiff, in consideration of his enlisting on the quota of the town in the military service of the United States. Writ dated December 30, 1878. Answer, the statute of limitations.

<p>A master, who uses reasonable care .in selecting his servants, is not liable to one servant for an injury caused by the negligence of a fellow-servant.</p> <p>If a boy between fourteen and fifteen years of age, while cleaning machinery in a mill, is injured by the negligence of a fellow-servant in starting the machinery, he cannot maintain an action against his employer, if it appears that he has done such work for two years and a half.</p>

Contract upon an account annexed, by the administrator de bonis non with the will annexed of the estate of J. M. Smith, to recover $293, alleged to have been collected by the defendant, the widow of Smith, before his death.

Tort, by the administrator with the will annexed of the estate of J. M. Smith, for the conversion by the defendant, the widow of Smith, of certain personal property. Writ dated August 25, 1877.

<p>Bill in equity, by one partner, Jones, against his copartner, Dexter, and two other persons, to settle the affairs of a partnership.</p> <p>The bill alleged that the partnership, at the time of its dissolution in 1861, owned a share in the whaling barque Ocean Rover, then at sea, and in her outfits and catchings, and that in 1862, upon the voyage, the vessel and her cargo were destroyed by the insurgent cruiser Alabama, and this share was not insured ; and that pursuant to a decision of the Court of Commissioners of Alabama Claims, the sum of $1564 had been paid to Dexter in respect of his and the plaintiff’s share in the vessel and outfits, and the sum of $55,068 to the other two defendants in respect of her total earnings and catchings, to be by them distributed among her owners; and praying for an injunction, an account and further relief.</p> <p>After the former decision, reported 125 Mass. 469, overruling the defendant Dexter’s plea that the plaintiff’s interest became vested in his assignee in insolvency in 1864, the defendants filed answers. That of the defendant Dexter alleged that the partnership was dissolved in 1861; that in 1865, after the plaintiff's insolvency, Dexter, in order to close up all the outstanding accounts of the firm, as the solvent partner, advertised for sale by auction all the remaining assets of the firm, consisting of the interest of the firm hi the barque Ocean Rover, and all other notes and accounts; that the plaintiff and his assignee were present at the sale, and the plaintiff made a bid for said interest in the Ocean Rover, and that the same was struck off to one LeBaron as the highest bidder; “that subsequently, at the request of said defendant, who had previously requested said LeBaron to bid on said interest at said sale, the said LeBaron agreed to transfer said interest to the said defendant, at the price at which it had been knocked off to him; ” and that transfers of said interest were made by the firm to LeBaron, and by him to the defendant..</p> <p>The other defendants filed an answer, admitting the receipt of the sum alleged in the bill, and averring their readiness to pay it over to such person as the court should direct.</p> <p>The case was then submitted to the court on agreed facts, and evidence, which so far as they bore upon the question whether the defendant Dexter was entitled to the whole of the fund, or whether the plaintiff was entitled to one half thereof, were as follows:</p> <p>It was agreed that, in July 1865, Dexter, as solvent partner of the firm, but without notice to or consent of Jones or his assignee, except as hereinafter appears, in order to close up all outstanding accounts of the firm, advertised for sale by auction all the assets remaining of the firm, employed an auctioneer, and caused a sale to take place on or about July 20,1865 ; that the sale was advertised by written notices posted in several places in Mattapoisett, the residence of the partners, stating the time and place at which would be sold the remaining assets of the firm of Jones & Dexter, consisting of their interest in the barque Ocean Rover, its outfits and caterings, and all other outstanding notes and accounts.</p> <p>Dexter’s evidence was, that the firm’s interest in the vessel, outfits and catching was sold to LeBaron, and was repurchased by himself. On cross-examination, in answer to the question, “ Before the sale was made, was not an arrangement made with LeBaron that he should purchase this interest for you ? ” he testified, “ I think there was,” and, on the direct resumed, testified, when asked what took place between him and LeBaron, before the sale: “ As near as I can recollect, I said to him that I wanted him to bid off the interest if it did not go too high. I can’t recollect the exact conversation.” In answer to the question what took place on the repurchase, he testified: “ I merely said to LeBaron, that I did not want to lose my interest in that ship for $12, and that, if he was willing, I would take the ship back. He said I might have it, as he did not consider it worth anything.”</p> <p>LeBaron, in answer to the question under what circumstances the assignment to him was made, testified, “ The interest of Jones & Dexter was sold at auction, and at Dexter’s request I bid it off, and he then gave me an assignment of it. Dexter afterwards took it off my hands at the same price I paid for it.”</p> <p>It was further agreed that neither the plaintiff nor his assignee knew of any arrangement, at the time of the sale, between Dexter and LeBaron; that LeBaron bid $12 at the sale, but paid nothing, and never considered the interest of the firm in the vessel as worth anything; that the transfer to LeBaron and that from him were written on or about September 11, 1865, and the first one was dated July 20, 1865, and signed by Dexter with the firm name.</p> <p>If, on these facts and evidence, the plaintiff was entitled to share in the sums received from the Court of Commissioners, judgment was to be entered for him in a certain sum; otherwise, for the defendants. Morton, J. ordered a decree to be entered for the plaintiff; and Dexter appealed to the full court.</p>

<p>At the trial of a writ of entry by a judgment creditor, claiming under the levy of an execution, of a person to whom the demanded premises were devised by Ilia father, who, some time after the will was executed, conveyed the premises by deed to the tenant, the demandant may show that the grantor was insane at the time he made the deed, and that he died without being restored to sanity, although no entry has been made, or any other act done to avoid the deed.</p>

Contract for money had and received. Writ dated February 15, 1879. Answer, a general denial. The case was submitted to the Superior Court, and, after judgment for the defendants, to this court on the plaintiff’s appeal, on agreed facts in substance as follows: John G. Mayo was duly appointed and qualified as administrator of the estate of Mary S. Dame, who formerly kept a boarding-house in Andover, and died intestate on October 5, 1876, leaving children.

<p>An oral agreement by a railroad corporation to release to a person one of two parcels of land included in its location and owned by him at the time the location was filed, upon the consideration that he should not demand or collect damages for taking the land so released, is an agreement for the transfer of an interest in lands within the statute of frauds; and neither the building of fences by the corporation, after the making of the agreement, dividing the land released from the land used by the corporation for its railroad, and the digging of a new channel for a brook along the dividing line between the land, nor the refraining by the owner from collecting compensation for the taking of the land covered by the agreement, and the continued occupation by him of the land, constitute such part performance as to warrant a decree in equity for the specific performance of the agreement.</p>

Contract upon an account annexed, the first item being “ for services attending repairs, $300,” and the second, “ for six months’ services to July 1, 1875, $750.” Answer, a general denial as to the first item, and, to the second, that only $200 were due, and a tender of that amount.

<p>Tort for personal injuries occasioned to the plaintiff by an alleged defect in a sidewalk of one of the streets in the defendant' city. Answer, a general denial. Trial in the Superior Court, before Gtardner, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The plaintiff testified that on Saturday, January 25, 1879, at about nine o’clock in the evening, he fell on the sidewalk of Monroe Street, in Lynn, opposite one Kelly’s store, upon a ridge of ice, or snow and ice, which extended across the entire sidewalk ; that he tripped on the ridge of ice, fell down, and broke both the bones near the ankle joint. There was evidence tending to show that he was in the exercise of due care. On the question of notice to the city the evidence was as follows:</p> <p>The plaintiff testified: “ On the Thursday next after the accident, John A. Thurston and Isaiah Stone, police officers, came to see me when I was sick in bed.” (Stone was a private watchman, appointed police officer by the city, but paid by individuals, and Thurston a captain of the night police.) “ I then knew what the law was, and that I could give notice to a police officer. They came in, asked how I did, how I got hurt. I told them I fell front of Kelly’s sidewalk on Monroe Street. I said I was walking along front of Kelly’s store. I stepped into a hole in the ice on the sidewalk. I told him it was on Saturday evening, January 25th. Thurston said, ‘I suppose you know you have a remedy.’ I said, 6 Yes, I know it. I intend to sue the city.’ I then intended to claim damages.” On cross-examination, the plaintiff testified: “I learned after I was hurt that it was necessary to give notice; did not know it before. I knew it when the officers came there. I understood I was talking with the officers in an official character; they were there on a friendly call. I did n’t say, in any form of words, I give you notice, or gave you that as a notice. I did n’t tell them I wanted them to understand this as notice. I did n’t say that I intended this as notice. It occurred to me to be a proper time to give notice. When Captain Thurston asked me, ‘You know you have a redress ? ’ then it occurred to me to be a proper time to give notice. When they came in, they first asked me how I was; then, how I got hurt. We first talked about the police force and the new appointments, and we had a casual conversation. I said nothing or did nothing to indicate any change from the previous conversation when we began to talk about the injury.”</p> <p>Isaiah H. Stone, called by the plaintiff, testified: “ I am a police officer of Lynn. I have been for the last twelve years. I am appointed by the city, but am hired and paid by persons whose buildings I watch. Captain Thurston is not a special officer, but an active one, and is paid by the city. On Wednesday or Thursday after the accident I called on the plaintiff. We had been friends; he had been on the police force; Thurston was there; we had agreed the night before to call down. Stacy and I went together. Thurston came in after us. The plaintiff told Thurston about going through the street; that against Kelly’s the ice was cut down, that he slipped, stubbed his toe on the ice, fell and was hurt. He said it was on the Saturday night before. Captain Thurston said it was a good chance to get something out of the city. The plaintiff said, ‘ Yes, if they did n’t settle, it was his- intention to sue the city.’ ” On cross-examination, he testified: “We went down on a friendly call, not official, had a friendly conversation, afterwards inquired about his health, had a casual conversation about the accident, this was all.”</p> <p>George Stacy, called by the plaintiff, testified: “ I went with Stone to the plaintiff’s. Captain Thurston came in afterwards. We had a conversation. The plaintiff told Thurston how he was injured. After conversing, Thurston said something about getting satisfaction from the city. The plaintiff said he should, as soon as he got well enough or strong enough.” On cross-examination, he testified, “It was a friendly call, general conversation, a general, friendly, casual conversation; by casual I mean usual conversation.”</p> <p>The plaintiff also put in a written notice, given to the mayor of the defendant city on February 17, 1879, which was signed by his counsel, and was as follows: “ To Geo. P. Sanderson, Mayor of Lynn: In compliance with the provisions of the St. of 1877, e. 284, you are hereby notified that, on the evening of Saturday, the 25th day of January last, I met with an injury on Monroe Street by reason of a defect in the street, and that I shall claim damages of the.city for the same. Feb. 17,1879.”</p> <p>The plaintiff also offered to prove, by Isaiah Stone, that he understood the conversation, at the time of the interview between himself, Thurston and the plaintiff, to be intended as a notice to' the city, and that the only reason why he did not report it to the mayor was that he supposed Captain Thurs-ton, being a regular officer, would do so. The judge, upon the defendant’s objection, excluded the evidence.</p> <p>The defendant asked the judge to rule that the plaintiff had failed to show any legal notice, as is required by statute, to the defendant. The plaintiff contended that he was entitled to go to the jury upon the evidence.</p> <p>The judge ruled that there was no sufficient evidence of notice to the city to entitle the plaintiff to go to the jury, and directed a verdict for the defendant. The plaintiff alleged exceptions.</p>

Tort for personal injuries occasioned to the plaintiff, on February 28, 1879, by a defect in a highway in the defendant city. Answer, a general denial.

Contract on a joint and several probate bond, dated June 10, 1850, executed by Ozias Morse as principal, by William Lowry as surety in the sum of $5000, by Robert W. Lord as surety in the sum of $2000, and by the defendant as surety in the sum of $3000, and conditioned for the faithful performance by the principal of the duties of trustee under the will of Hannah Morse.

<p>Writ of entry to recover a parcel of land in Boston. Plea, nul disseisin.</p> <p>At the trial in the Superior Court, before Brigham, C. J., the demandant proved that it discounted two notes in 1873, amounting to $560.71, upon which Bragdon, Tavener & Company, of which firm the tenant Tavener was a member, were indorsers; that it brought suit on these notes against the members of said firm, and the land in question was, on July 23, 1874, duly attached as the property of Tavener, standing in the name of his wife; that judgment was entered in that action against Tavener, on January 9, 1877, for $688.82; and that execution duly issued on the judgment, upon which all the right in equity which Tavener had, on July 23,1874, of redeeming said land, was duly seized and sold by public auction, and conveyed to the demand-ant by sheriff’s deed, dated March 17, 1877, and recorded June 12, 1877.</p> <p>The tenant, William Tavener, testified that his firm failed m November 1873, and its creditors then agreed to accept a composition of sixty cents on the dollar; that forty per cent of its indebtedness was then paid to all creditors except the demand-ant, whose debt was not paid because said notes were indorsed by the firm for the accommodation of the maker, and the firm thought they ought not to be paid; that, in April 1874, he sold all his interest in the property and accounts of the firm to one Guernsey, for his notes for $2000; that, on June 23, 1874, having no property besides said notes and the land in question, he conveyed the land to his wife through a third person; that, prior to this time, the second payment due to the creditors o* his firm had been paid by Bragdon & Guernsey, excepting the debt due to the demandant; that there was then still due to the creditors of Bragdon, Tavener & Company about $9000; that, in July 1874, the affairs of Bragdon & Guernsey were put into the hands of a receiver, and nothing more was paid to the creditors of Bragdon, Tavener & Company; that the notes of Guernsey were dishonored, and all that the witness ever realized on the notes was $200 worth of flour; that his wife had lent him of her sole and separate money $1800 in 1868, $600 in 1869, and $1000 in 1872, upon his promise to repay her, with six per cent interest; that said land, on June 23, 1874, was worth $5000 or $6000, and was subject to a mortgage for $2000, and he conveyed it to his wife to repay her loans with interest; and that he never gave her a written obligation for these' lbans, and he had never paid her any interest.</p> <p>It appeared that his wife died a year or two after the conveyance; and that the other tenants, _who were her children and heirs, had occupied the land ever since that date.</p> <p>The demandant requested the judge to rule as follows: “ 1. The husband did not, as a matter of law, owe the wife at the date of the conveyance to her, and it was therefore voluntary. 2. If the money was given to Tavener by his wife, the conveyance was voluntary; and if he was insolvent, it is presumptive evidence that the conveyance was to hinder, delay and defraud his creditors. 3. If the money was lent to Tavener by his wife, the conveyance was voluntary; and if he was insolvent, it is presumptive evidence that the conveyance was to hinder, delay and defraud his creditors.”</p> <p>The judge gave the second instruction requested, declined to give the third, and further instructed the jury that, if the husband’s purpose in making the conveyance was to remove the land from the reach of process by his creditors, and if his wife participated in that purpose, then it was to hinder, delay and defraud his creditors; but that he had a right to repay a loan to a creditor, and if that was his purpose, or if his wife did not participate in his purpose to remove the land from the reach of process by his creditors, the conveyance was not to hinder, delay or defraud his creditors.</p> <p>The jury found specially, that the money delivered by the wife to her husband was a loan; that the husband did not convey the land in question to his wife with the purpose thereby to hinder, delay or defraud the creditors of himself or of his firm and that, if he had such fraudulent purpose in that conveyance, his wife did not know or have reasonable cause to believe it, and did not take the conveyance in order to further that purpose.</p> <p>The judge thereupon directed a general verdict for the tenants ; and reported the case for the determination of this court, upon the question whether, upon the facts in evidence and the findings of the jury, this direction to the jury was erroneous. If it was, a new trial was to be ordered; otherwise, judgment to be entered on the verdict.</p>

<p>Trustee process. The writ, dated September 13, 1876, described the plaintiff and defendant as of the State of New York. William B. Craft, of Boston, summoned as trustee of the defendant, admitted funds in his hands in the form of a balance of account due the defendant. Percy E. Young, of the State of New York, appeared as claimant of this fund. The defendant was defaulted.</p> <p>At the trial between the plaintiff and the claimant in the Superior Court, before Pitman, J., without a jury, the claimant introduced evidence tending to show that, during the transactions out of which the claim of the defendant against the trustee resulted, the claimant was a copartner of the defendant, and as such was entitled to a share of the fund in the hands of the trustee ; and that he was entitled to the fund by reason of the following assignment, executed by Rice, and dated April 15, 1876. “For a valuable consideration to me in hand paid by Percy E. Young of the city and county of Oswego and State of New York, I do hereby sell, assign, transfer and convey all my right, title, interest and claim to the account which I hold against Wm. B. Craft, of Boston, Mass.” There was evidence tending to show that the claimant gave a valuable consideration for this assignment. The plaintiff contended, and offered evidence tending to show, that no partnership existed between the claimant and the defendant; and that the above assignment was in fraud of creditors, and void.</p> <p>It appeared that, under the law of New York, choses in action cannot be attached or levied upon, but, after issue of execution on a judgment at common law, can be reached by proceedings before a magistrate in the nature of proceedings under the poor debtor law of Massachusetts, and the appointment of a receiver to take and dispose of the debtor’s property. It was agreed that the law of New York respecting fraudulent conveyances was the same as the common law and the law of Massachusetts.</p> <p>The claimant asked the judge to rule “ that, as a matter of law, a verdict could not be rendered for the plaintiff, because, 1st, the interest of the. claimant was such that he was entitled as a partner, or as joint owner of this claim, to the whole fund to the extent of his interest in the same, even if the assignment was fraudulent; 2d, this court could not sit for the purpose of distributing that fund to the several parties; 3d, as a matter of law, upon the whole evidence, a verdict should be given for the claimant.”</p> <p>The court refused so to rule; found as matters of fact that the claimant had not sustained the burden of proof as to the alleged partnership, and that the plaintiff had sustained the burden of proving the assignment to be fraudulent against him as a creditor; and ordered judgment for the plaintiff. The (¡laimant alleged exceptions.</p>

<p>If a person employs a contractor to construct a drain from his cellar into the common sewer in the street, through a plank barrier which surrounds, beneath the surface of the street, the block of buildings in which the cellar is situated, and the work is so negligently and improperly done that, after it is finished, tide water flows through the opening made in the barrier and through the cellar into an adjoining cellar, the person employing the contractor is liable for the damage caused to the owner of the adjoining cellar.</p>

<p>A negotiable promissory note was indorsed by the payee for the accommodation of the maker. On the back of the note was the following, signed by the de fendants: “ We hereby guarantee the payment of the within note.” Held, that their contract was not with the payee, but with the first holder for value who took the note with the guaranty upon it. Held, also, that paroi evidence was admissible to show the consideration of the contract, and the time when it first . took effect by delivery; but not to vary or control its terms.</p>

Tort, by the administratrix of John Gumming, for injuries sustained by the plaintiff’s intestate, by reason of the explosion of a boiler owned and used by defendant. Writ dated May 28, 1878. Answer, the statute of limitations. Replication, that a previous action for the same cause was duly commenced within the time allowed by law, and was defeated for matter of form.

<p>If a final decree of a single justice of this court, sitting in equity, is appealed from by the defendant, without a report of the evidence upon which the decree was' made, the only question upon the appeal is whether the decree is warranted by the frame of the bill.</p> <p>If a husband has not freely consented to the burial of his wife in a lot of land owned by another person, with the intention or understanding that it should be her final resting-place, a court of equity may permit him, after such burial, to remove her body, coffin and tombstones to his own land, and restrain that person from interfering with such removal.</p>

<p>If A. performs work and furnishes materials for B. under a special contract, which is afterwards broken by B. under such circumstances that A. is justified in abandoning it before completion, he may maintain an action for the value of the work done and materials furnished; and may set off such a claim, under the Gen. Sts. c. 130, §§ 1-3, in an action of contract against him by B..</p> <p>A declaration in set-off alleged that the plaintiff and defendant entered into a written contract, a copy of which was annexed; that the plaintiff broke the contract; that the defendant was thereby prevented from performing it; that, by reason thereof, the defendant had the right to recover the value of the materials furnished and work done by him; that the defendant furnished labor and materials to the plaintiff, as set forth in an account annexed; and that the plaintiff owed him a certain sum, according to said account. Held, that this was not a declaration for unliquidated damages for a breach of contract; that the unnecessary averments might be rejected as surplusage; and that it was a good declaration on an account annexed for labor and materials furnished, and set out a claim of which the defendant was entitled to avail himself in set-off, under the Gen. Sts. c. 130. „</p> <p>The report of an auditor is prima facie evidence of the facts and findings therein stated.</p> <p>A. and B. entered into a contract, by which A., in consideration of $2600 to be paid by B., agreed to build a house for B. The contract further provided that “the lumber-dealer is to have reserved $600 for bill," and provided for payments by B. to A. as the work progressed, and on the completion of the house, amounting in all to $1900. Held, that the $600 was to be reserved from the balance due after the completion of the work; and that B. could not apply liabilities incurred by him for-lumber in payment of the sums agreed to bo paid during the work.</p>

Tort for the conversion of two wooden houses and a stable, situate upon land belonging to the defendant as trustee under the will of Cyrus Alger.

<p>A., a citizen of this Commonwealth, brought a bill in equity against B., a citizen of another State, and C., a citizen of this Commonwealth, which alleged that B. owed him a certain sum, and had no property subject to attachment, and that C. held, as trustee under a will, certain property, in trust to pay the income to B. for life. The prayer of the bill was that this income might be applied to the payment of A.’s claim, or C. ordered to pay A. the income, while B. lived, until the debt should be paid. Held, that neither B. alone, nor B. and C. jointly, could remove the case into the Circuit Court of the United States, under the act of Congress of March 3, 1875, § 2.</p>

<p>Under the Gen. Sts. c. 130, §§ 3, 7, a plaintiS’s demand for unliquidated damage* is not the subject of set-off.</p>

Contract upon an account annexed for goods delivered to the firm of Tully Brothers & Walker, upon a promise of the defendant to pay for them, and to accept an order for their amount. Answer: 1. A general denial. 2. The statute of frauds. At the trial in the Superior Court, before Rockwell, J., the jury returned a verdict for thé plaintiffs; and the defendant alleged exceptions, which appear in the opinion.

Contract, for the benefit of Maurice Dugan, upon a bond, made on August 22, 1870, to the Judge of Probate for the county of Suffolk, by Christopher A. Connor as principal, and the defendants as sureties, and conditioned that Connor, who, as guardian of Dugan, a minor, had been licensed by the Probate Court to sell certain real estate of his ward for maintenance, “ shall sell the same in the manner prescribed for sales of real estate by executors and administrators, and…

Bill in equity by a. trustee under a deed to obtain the instructions of the court.

<p>The Superior Court has authority to report for the determination of this court, after verdict and before judgment, a ruling in matter of law excepted to at the trial, although a bill of exceptions has been disallowed; and, if the case is continued nisi from the term at which the verdict was returned, a report filed on the first day of the next term is seasonable.</p> <p>An action for malicious prosecution will lie against a savings bank.</p>

The record showed the following facts: The action, which was in contract, was brought for the benefit of William W. Aylwood, the plaintiff’s assignee. The defendant answered with a general denial, and also filed a declaration in set-off upon two judgments in its favor against the plaintiff.

<p>Bill in equity, filed December 11, 1879, to restrain the defendant from putting up a building on his land, situated on the east corner of Main Street and Trowbridge Street in Cambridge. The case was heard, on the pleadings and proofs, by Morton, J., who reported the following case for the consideration of the full court:</p> <p>All the parties to the suit derive their title, by mesne conveyances from Charles C. Little and James Brown, to whom, in 1850, Richard H. Dana conveyed four lots of land, including the lands now owned by the plaintiffs and the defendant, bounded on Main Street about three hundred and fifty feet, and extending from Ellery Street on the east to Trowbridge Street on the west, which lots were one hundred and fifty feet in depth, and also fifteen other lots in the neighborhood, by a deed describing each lot by metes and bounds, and as numbered on a plan, and containing these clauses, following the habendum: “Provided, nevertheless, and the grant hereby made is subject to the following restrictions and conditions, viz.: that the said grantees, their heirs or assigns, shall never erect any building or part thereof which shall be used for the trade or calling of a butcher, currier, tanner, varnish-maker, ink-maker, tallow-chandler, soap-boiler, brewer, distiller, sugar-baker, dyer, tin-man, working brazier, founder, smith, or brickmaker, or for any nauseous or offensive trade whatsoever; nor occupy such lots for these or any other purposes which shall tend to disturb the quiet or comfort of the neighborhood; and that no building or part of any, and no fence over six feet high, shall be erected within eight feet of said streets; and that no steam-engine shall be used on the premises, and no livery stable be kept thereon. But the erection or use of any such building, or the occupation of the land hereby conveyed, contrary to these provisos or any of them, shall not subject the said grantees or their heirs or assigns to a forfeiture of their estate in said land; but such erection or occupation- shall be conclusively deemed a nuisance, for which the grantor, his heirs, representatives or assigns, may have remedy by due process of law; or may, at their option, enter or send agents on said land, and remove and abate such nuisance at the expense of the grantees, their heirs or assigns, without being held responsible for any manner of trespass therefor.”</p> <p>All the deeds through which the parties respectively claim title from Little and Brown are expressed to be subject to these conditions and restrictions. And the deeds made by Dana to other persons of many other lots of land in the neighborhood, and shown upon the same plan, contain similar clauses.</p> <p>The defendant is now erecting a building, intended for shops for the sale of groceries and provisions, within less than eight feet of the line of Trowbridge Street, and within less than eight feet of the line of Main Street as now located and used. In 1868, the city council of Cambridge, for the purpose of widening Main Street, took a strip from the southerly side of the defendant’s land, twelve and feet wide at the corner of Trowbridge Street, and one and -¡--jig- feet wide at the southeasterly corner of the lot.</p> <p>There was also evidence reported tending to show that the restrictions were imposed in pursuance of a general scheme of improvement, which it is now unnecessary to state.</p> <p>The judge reserved for the consideration of the full court the questions whether the bill could be maintained to restrain the defendant from putting up any building on his land nearer than eight feet from the line of Main Street as widened, and nearer than eight feet from the line of Trowbridge Street; and from putting up any building on the land to be used and occupied for the purposes named. If it could be maintained for all or any of these purposes, a decree was to be entered accordingly; otherwise, the bill to be dismissed.</p>

<p>By the St. of 1872, c. 177, §§ 1, 4, authorizing the city of Boston to take, hold and convey into the city all the water of Sudbury River, and the water of Farm Pond, and the waters that may flow into and from said river and pond, and to take any water rights in or upon said river or pond in or above a certain town, or connected therewith; and providing that nothing contained in the act shall be construed to prevent the inhabitants of certain towns "from taking from the Sudbury or Assabet Rivers or Farm Pond so much of the water hereby granted as shall be necessary for extinguishing fires and for all ordinary domestic and household purposes,” the owner of land in one of the towns named, through which a tributary of the Sudbury River flows, is not deprived of the right to use the water of such tributary stream for domestic purposes.</p> <p>At the trial of a petition for the assessment of damages for land taken by a city for a storage reservoir, under the St. of 1872, c. 177, evidence is admissible to show that the use of the land taken as a storage basin will necessarily render the petitioner’s dwelling-house on his remaining land unhealthy as a residence.</p>

Petition to the county commissioners for a jury to assess damages for the taking of land for the construction of the respondent’s railroad. The county commissioners, at the time of issuing their warrant for a jury, at the request of the parties, under the Gen. Sts. a. 43, § 32, appointed Benjamin F. Thomas, Esquire, as a suitable person to preside at the trial.

<p>Contract upon a promissory note for $90, dated July 12, 1875, payable in one year after date to the order of J. P. Mc-Vey, signed by the defendant, and indorsed by McVey to the plaintiff. 'The answer set up, among other defences, that, at the time McVey indorsed the note, he was under guardianship as a spendthrift.</p> <p>At the trial in the Superior Court, before Pitman, J., it appeared from the testimony of the plaintiff that he took the note in suit for the purpose of suing on it for the benefit of McVey, the indorser, who was proved to have been under guardianship as a spendthrift at the time of the indorsement; but no copy of the complaint was ever filed in the registry of deeds.</p> <p>The defendant requested the judge to instruct the jury that, upon this state of facts, the plaintiff could not maintain his action. -But the judge declined so to rule. The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>A deed of land contained a clause that the Conveyance was made subject to a mortgage of a certain amount from A. to B., recorded in a certain book and page in the registry, and a covenant that the premises “ are free from all incumbrances except as aforesaid.” At the time of the conveyance, interest was due on the mortgage, which the grantee was afterwards obliged to pay to prevent foreclosure of the mortgage. Held, that the principal and interest constituted a single incumbrance, which was excepted out of the grantor’s covenant.</p>

Bill ir equity by the minor children of the defendant, alleging that Ellery T. Grant by his will, which was duly admitted to probate, devised certain property to the defendant, to be held by her for certain purposes, and among others in trust for said minor children; that letters testamentary were issued to the defendant, the executrix named therein; that the defendant had advertised certain land, included in the will, for sale, and threatened to sell the same, and was…

<p>Actual knowledge, by a debtor, of the filing of a petition in insolvency against him, is not sufficient to support an indictment against him, on the Gen. Sts. c. 118, § 106, for secreting a portion of his estate, after “notice” of such filing.</p>

<p>Complaint on the St. of 1869, c. 384, § 19, to the First District Court of Essex, for illegally fishing in Humphrey’s Pond, a great pond which is partly in Lynnfield and partly in Peabody. At the trial in the Superior Court, on appeal, Wilkinson, J. directed the jury to return a verdict of guilty; and the defendant alleged exceptions, which, so far as material to the point decided, appear in the opinion.</p>

<p>At the trial of an indictment for the murder of a woman in 1880 at G., there was evidence that her reputation for chastity, while living in L. from 1873 to 1877, was bad; but there was no evidence affecting her reputation in that respect after she left L. in 1877. It appeared that, while living in G. from 1879 until the time of her death, a period of eight months, her reputation was unquestioned ; and that she and her husband lived together as husband and wife until her death. The defendant, for the purpose of showing that the husband of the woman committed the crime, offered evidence that the husband and wife quarrelled between 1873 and 1877, while living in L.; that, in 1874, the husband was seen entering his own house through a window with an axe in his hand, and immediately after, with the axe in his hand, uttered threats against his wife and a man; that the same man continued to frequent his house as late as 1877, and he complained of it; and that, in 1874 and 1877, he applied to a constable to come to his house and remove a man, who, as he alleged, was there foi improper purposes with his wife. The defendant also offered to prove the ill feeling of the husband towards his wife by statements, not in the nature of threats, made to a witness in 1874 and 1877. All the evidence offered was excluded. Held, that the defendant had no ground of exception.</p>

<p>Tort for conversion of property attached by the defendant, a deputy sheriff, on a writ against Charles W. Soule. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court on appeal, upon an agreed statement of facts, the material parts of which appear in the opinion.</p>

<p>A non-resident, who is taxed as a resident on all his personal property, cannot maintain an action to recover back the amount of the tax paid by him under protest, if he had horses and cattle kept in the town assessing the tax, and liable to taxation there under the Gen. Sts. c. 11, § 12, cl. 3.</p>

<p>An executor who gives a separate bond is not liable for a loss caused, without negligence on his part, by the default of his co-executor.</p> <p>A joint receipt, or a joint release of a mortgage, signed by two executors, is only prima facie evidence that the money derived therefrom came into the possession or under the control of both, and this presumption may he rebutted by proof that the money was in fact received by one, and that the other joined only as matter of form.</p>

Contract on an account annexed for goods sold and delivered. Answer, a general denial, and payment. Trial in the Superior Court, without a jury, before Wilkinson, J., who allowed a bill of exceptions, in substance as follows: The defendant contended that the goods in question were furnished to his sons. This the plaintiffs denied, and produced their books, in which the goods were charged to the defendant.

Petition for a writ» of mandamus against the auditor of Suffolk County and the board of aldermen, acting as county commissioners, to compel the respondents to audit a bill of the petitioner for services in the commitment of insane persons to lunatic hospitals after the St. of 1879, c. 195, took effect, and before the passage of the St. of 1880, o. 250.

<p>Contract upon a promissory note for $100, payable on demand to the order of the plaintiff, and signed by Samuel Floyd, the defendant’s intestate. The writ, which was dated March 8, 1880, described the plaintiff as “ of Lynn in the county of Essex.” Trial in the Superior Court, before Pitman, J., who allowed the following bill of exceptions:</p> <p>“ The plaintiff called upon the defendant to produce the original letters of administration granted her by the Probate Court, notice to produce which had been given; which she refused to do. He then put in evidence a certificate of the administration under the seal of the Probate Court. He also offered evidence tending to prove the signature to the note declared on; and put the note in evidence, and rested? Hone of this evidence was objected to by the defendant at the time it was offered. It appeared in evidence that the plaintiff was a resident of the State of Hew Hampshire, and had been for more than a year previous to the date of the writ.</p> <p>“ At the close of the evidence the defendant asked the court to rule that said certified copy was not competent evidence to prove the fact that the defendant was administratrix, as alleged, and was no proof of death; also to rule that, inasmuch as the plaintiff was described as of Lynn, in this Commonwealth, if as a matter of fact he was a resident of another State, and the plaintiff and his counsel knew the same, the plaintiff could not recover. The judge refused so to rule. The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.”</p>

Bill in equity, filed September 14, 1880, by a corporation doing business in Danvers in this Commonwealth, against Edward Thompson of Charlestown in the State of New Hampshire, and Edward Tufts of Boston in this Commonwealth. The material allegations of the bill appear in the opinion.

<p>Tort for loss of services and society of and expense of curing the plaintiff’s wife, who was injured by an alleged defective construction of the defendant’s tracks in Lynn. Answer, a general denial. At the trial in the Superior Court, before Colburn, J., the jury returned a verdict for the plaintiff in the sum of $750; and the defendant alleged exceptions to the rulings and refusals to rule of the judge, which appear in the opinion.</p>

<p>If the notice, required by the St. of 1877, c. 234, § 3, to be given of an injury occasioned' by a defect in a highway, is given to one of the selectmen of a town, it is immaterial that the selectman did not communicate such notice to the board of selectmen.</p> <p>Under the provision of the St. of 1877, c. 234, § 3, that the notice to a city or town that a person has been injured by a defect in a highway, "maybe given by the person injured or by any other person in his behalf,” a father may give such notice for his minor daughter.</p> <p>A father, who lias the right of administration of the estate of his son, whose death is caused by a defect in a highway in a town, may give to the town the notice required by the St. of 1877, c. 234, § 3, before his appointment as administrator.</p> <p>A notice to a selectman of a town that a person was injured on “ Christmas morning ” on a certain street by a post, the person being told by the selectman that the latter had been to the spot and seen the post, and that it was not a defect, but was rightfully there, is a sufficient notice as to time, place and cause, within the St. of 1877, c. 234, § 3.</p> <p>The statement of the defect in a highway which occasions an injury to a person is a sufficient designation of the “ cause ” of the injury, required by the St. of 1877, c. 234, § 3.</p> <p>Tt is not necessary in a notice, under the St. of 1877, c. 234, § 3, that a person has been injured by a defect in a highway in a town, to state that the injured person intends to hold the town responsible therefor.</p> <p>A person, whose son was killed and two minor daughters injured by a collision with a post in a highway in a town, testified, in actions against the town, by himself as administrator of his son and by his daughters, that he went to one of the selectmen in behalf of his daughters and himself, and notified him of the accident; and that he told him “ it was hard to have a son killed and daughters almost killed by such a post.” Held, that the question was properly submitted to the jury how far such interview was in behalf of the persons injured.</p> <p>Tn an action against a town for personal injuries caused by a defect in S. Street, it appeared that S. Street, which had been long open to and used by the public, was laid out by the road commissioners of the town as a town way; that the report of the laying out was filed by them in the town clerk’s office; that this report was accepted by the town at a town meeting, and the way was built by the town; and that the notice of this meeting was not in accordance with a by-law of the town. The judge ruled “ that S. Street had not been laid out in accordance with law, and that, to prove it to be a dedicated way, the jury must be satisfied that it had been used by the public for twenty years before 1846; but that, if the public was not cautioned against travelling upon it, the town would be liable .for an accident to persons coming out of such way, as well as those entering thereon.” Held, that the defendant had no ground of exception.</p> <p>In an action against a town for personal injuries caused by a defect in a street, it appeared that work had been done to facilitate travel on the street, within six years prior to the accident, by a servant of the town who was paid by the town for doing it; and that he performed the work with the town’s horses and implements. Held, that the question whether the town had made repairs on the street within six years was properly submitted to the jury.</p> <p>In an action against a town for personal injuries caused by a post in a highway, if the evidence is conflicting as to the situation of the post in relation to travel, the question whether the post is or is not a defect is one of fact for the jury.</p> <p>In an action against a town for personal injuries caused by a vehicle coming into collision with a post in a highway, if no instruction is asked or exception taken upon the question whether the driver of the vehicle was in the exercise of due care, the point is not open in this court.</p> <p>At the close of the plaintiff's case, the defendant is not entitled to ask for the ruling, that there is not sufficient evidence to support the action, unless he elects to rest his case there.</p>

<p>Contract for goods sold and delivered by a citizen of Pennsylvania, doing business in this Commonwealth under the style of the Somerville Flour Mills, against a citizen of this Commonwealth. Answer, a certificate of discharge under the insolvent law of this Commonwealth.</p> <p>At the trial in the Superior Court, there was evidence that the plaintiff was never a citizen of this Commonwealth; that the goods were sold to the defendant by the plaintiff’s brother, who was a citizen of this Commonwealth, was in the sole charge of the business carried on by the plaintiff in this Commonwealth, never informed the defendant of his agency, and was supposed by the defendant to be the principal, carrying on business on his own account under the style of the Somerville Flour Mills.</p> <p>The defendant contended that, as he and the person of whom he bought the goods were citizens of this Commonwealth, and the contract between them was made and to be performed here, the contract was subject to the insolvent law of the Common wealth, and the certificate of discharge would have barred an action thereon by that person, and was likewise a bar to this action by the undisclosed principal. But Brigham, C. J. ruled that the certificate of discharge was not a bar to this action; the jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Contract for expenses incurred in the support of Ellen Coughlin, a pauper. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, upon an agreed statement of facts, in substance as follows :</p> <p>Ellen Coughlin, whose maiden name was Ellen Roach, contracted a valid marriage with William Lovell of West Rutland, in the State of Vermont, of which place she was also a resident, at said West Rutland, on June 9,1867, and they lived together as husband and wife at West'Rutland until June 1870, when he left his home and family, and has not been heard from by Ellen since. In July 1870, Ellen removed to Canton, in this Commonwealth, where she had a child by her said husband, born on February 13,1871, having previously had two children by him, who are now living with her.</p> <p>There has never been any divorce or separation by process of law between William and Ellen; and there is no evidence of his death, except such as may be inferred from the facts above stated.</p> <p>On March 19, 1876, Ellen married Jeremiah Coughlin, who then had and now has a legal settlement in Canton, and they lived together as husband and wife in Hyde Park, where they had a child born; but whether this marriage was valid or not is to be determined by the court. Coughlin soon after deserted Ellen at Hyde Park, and removed out of this Commonwealth.</p> <p>Ellen was in need of relief as a pauper, and proper relief was furnished her by the plaintiff town, while she was residing in that town, of which the defendant town had legal notice, but denied its liability.</p> <p>Lovell never had any legal or other settlement in Canton, or in this Commonwealth, and Ellen never had any settlement in Canton except such, if any, as she acquired by her marriage with Coughlin.</p> <p>If the settlement of Ellen was to follow that of Jeremiah Coughlin, under the facts above set forth, judgment was to be entered for the plaintiff for the amount claimed in its declaration, and interest from the date of the writ; otherwise, judgment for the defendant.</p>

<p>Tort for the conversion of an iron table used in the manufacture of plate glass. Writ dated January 15, 1880. Answer: 1. A general denial. 2. That the defendant was the owner of a parcel of land with a factory thereon, to which the table was annexed as part of the realty.</p> <p>Trial in the Superior Court, before Rockwell, J., who ruled that the plaintiff was entitled to maintain its action, directed a verdict accprdingly, and reported the case for the determination of this court. If the ruling was correct, judgment was to be entered on the verdict; otherwise, the parties agreed that such entry was to be made as law and justice might require. The facts appear in the opinion.</p>

Writ op ertry to foreclose a mortgage of land in Sheffield. Plea, nul disseisin. Trial in the Superior Court, before Rockwell, J., who allowed a bill of exceptions, in substance as follows : The only question in issue was the amount which had been paid on the mortgage note. It appeared that the mortgage and note were given to the demandant on January 6, 1873, by Harvey Holcomb.

<p>The forfeiture provided by the U. S. Rev. Sts. § 5198, where a national bank has received a greater rate of interest on a promissory note than is allowed by the laws of the State where the note was made, in violation of § 6197, may be availed of in defence of an action in a State court by the bank upon the note, although the suit is brought in a State other than that of the discount of the note; and such defence is not limited to two years after the unlawful receiving of interest.</p>

<p>Contract for money had and received. Answer, a general denial. Trial in the Superior Court, before Wilkinson, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The plaintiff’s evidence tended to show that she was servant and housekeeper for the defendant for two or three years; that, on February 19,1877, he made her an unconditional gift of $500 in money, delivering it to her, and she accepted it; that, afterward, on the same day, he took it to a savings bank to deposit for her, and brought back an ordinary savings-bank book from the Springfield Institution for Savings, by which it appeared that he had deposited there the sum of $500 in the name of “ Orrin Hall, in trust for Annie M. Delaney,” and handed her the book, which she took and kept in her possession to the time of the trial. There was no evidence that she ever made any objection to the form in which the deposit was made, or that any question arose about the matter until the following May, after the plaintiff had left the defendant’s service, except the plaintiff’s testimony that, the same day of the deposit, when the book was handed to her by the defendant, she asked him why the money was deposited in trust, as the book said, instead of in her name, and he said he did it because the treasurer of the bank said it was the best way, and that it would make no difference. She also testified that she was unfamiliar with that kind of business.</p> <p>The defendant testified that he never gave the plaintiff the money in question, but that he made the deposit in the form shown by the book, with a view to keep the control of the deposit, and to hold it as his own as long as he lived, but that he told the clerk at the bank, at the time, that he desired, if the plaintiff continued to live with him and take care of him as long as he lived, that after his death the deposit should be hers; and that he made the deposit with the desire and purpose so expressed to the clerk; that he afterward told the plaintiff of his having made the deposit, and said that, if she continued to take care of him and live with him like a daughter as long as he lived, she should have the money after his death. The bank clerk corroborated the defendant’s statement of what was said at the time the deposit was made. The defendant further testified that he never delivered the book to the plaintiff, but that she had access to the place where he kept his books and papers; and that, when she left his service, in May 1877, she carried away the book with her, and that he was never able to obtain it afterwards.</p> <p>It was proved, and not disputed, that the plaintiff, soon after she left the service of the defendant, notified the" savings bank that she claimed the money deposited as her own, and that she forbade the bank paying the money to the defendant, or to any one but herself; and she testified that she then intended to terminate all rights of the defendant to draw said money, or to deal with it in any way.</p> <p>It was also in evidence, and undisputed, that, in the following August, the defendant obtained the money from the savings bank under a claim of right to draw it as his own property, and gave the bank a bond of indemnity against the claims of other parties.</p> <p>The defendant contended that the action could not be maintained, and that the plaintiff’s remedy, if any, was against the bank; and requested the judge to instruct the jury as follows: “ If the plaintiff took and received the bank book in the form in which it appears, and kept it without objection, that would be evidence which would warrant the jury in finding a ratification of the defendant’s act in making the deposit. If the jury believe that the plaintiff took and kept possession of the book, and ratified the defendant’s act of deposit, and notified the savings bank not to pay the money to the defendant, with a view to prevent its coming to his hands, and to terminate his right to receive it for her, and the defendant afterward obtained it under a claim of right, solely in his own behalf, she cannot maintain this action.”</p> <p>The judge declined to give these instructions: but instructed the jury, that, if the plaintiff proved that the defendant made her an absolute unconditional gift of the money completed by delivery before the deposit, she could recover in this action, unless they believed that she knew that the defendant had deposited the money in the bank to be kept in his control and ownership . during his life, and that she consented to and ratified such a deposit.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>The Legislature may authorize and require a county or a town to raise and appropriate money for any public use within its limits, or for the reimbursement of money already paid for such a use.</p> <p>A statute authorized county commissioners to lay out and build a bridge across a river between a city and a town, and to file a report of the cost in the office of the clerk of this court; directed the court to appoint commissioners to determine what cities and towns in the county were or would be specially benefited by the bridge, and what proportions of the cost should be paid by those cities and towns respectively; and provided that their award, when returned to the court, and judgment entered thereon, should be binding upon all parties interested. After the bridge was built, and a report of the cost filed, commissioners were appointed, and made an award, upon which judgment was entered, determining that the city and town between which the bridge was built should pay the county the whole cost of the bridge in certain proportions. A subsequent statute provided that this court should appoint commissioners to determine and report the amount of special benefit which the said city and town received from the bridge, and, if they should find that such special benefit did not equal the cost of the bridge, as appearing by the report on file, to determine that the county should pay to the city and town the amount that each had paid in excess of the benefit received therefrom. Held, that this statute was constitutional.</p> <p>If a statute authorizes a court, upon application being made, to appoint commissioners within a certain time from the passage of the act, the appointment may be made after that time, nunc pro tune, upon an application made and entertained by the court within the time limited.</p>

<p>Action on the St. of 1879, c. 237,* to recover possession of a parcel of land in Worcester. Writ dated May 21, 1879.</p> <p>At the trial in the Superior Court, before Deivey, J., it appeared that, on December 22, 1863, the defendant made a mortgage of the premises in question to the Worcester Mechanics’ Savings Bank to secure the payment of a promissory note for $10,000; that, on January 6, 1879, the bank assigned the mortgage and note to Nichols, Dupee and Company, who, on January 9, advertised the premises for sale, by virtue of the power of sale contained in the mortgage, for breach of the conditions thereof, and, on April 8, 1879, sold the same to Robert Ruddy, and conveyed them to him on May 5, 1879; that, on May 6, Ruddy conveyed the premises to the plaintiff; and that, after the conveyance to him, and before the date of the writ, the plaintiff made an open and peaceable entry upon the premises for the purpose of obtaining possession of them and of bringing this action.</p> <p>Upon these facts, the judge ordered a verdict for the defendant ; and reported the case for the determination of this court. If the plaintiff was entitled to recover, the verdict was to be set aside and judgment was to be entered for Mm for possession of the premises; otherwise, the verdict was to stand.</p>

<p>Tort for the conversion of fifty tons of iron rails. The defendant, a deputy sheriff, justified under a writ in favor of the Boston and Albany Railroad Company, upon which he attached the rails as the property of the Boston, Barre and Gardner Railroad Company. Trial in the Superior Court, without a jury, before Dewey, J., who reported the case for the determination of this court, in substance as follows:</p> <p>It appeared in evidence that the plaintiff, a manufacturer of iron rails, had a verbal contract with the Boston, Barre and Gardner Railroad Company to furnish the latter with re-rolled iron rails, receiving in pay thereof the same number of tons of old iron rails and a certain sum of money per ton, and that under this contract the plaintiff had furnished re-rolled rails for which it had not been paid. In the night of March 5, 1879, five cars belonging to the Boston, Barre and Gardner Railroad Company having each ten tons of old iron rails intended to be delivered to the plaintiff under the contract, arrived over that railroad at its freight depot in Worcester, and remained there over night.</p> <p>The next morning the freight train of said railroad company started with the ears and drew them over the track of that corporation on to a circular railway track on the land of the Boston and Albany Railroad Company, used and known as a transfer track, for the exchange of freight between the Boston and Albany Railroad Company, the Worcester and Nashua Railroad Company, and the Boston, Barre and Gardner Railroad Company. All cars coming over these last-named railroads, and to be delivered to the Boston and Albany Railroad Company, were left on said track, and all cars to be delivered by the Boston and Albany Railroad Company to either of the other corporations were likewise left on said track, and the delivering corporation did no further act with respect to the cars so delivered, but the receiving corporation took such cars from said track at its own convenience, except when, as hereafter stated, they were switched into the plaintiff’s yard.</p> <p>The plaintiff’s mill was about eighty rods southerly of this track, and iron intended for the plaintiff and left on the transfer track was drawn therefrom by engines of the Boston and Albany Railroad Company to the plaintiff’s mill, the plaintiff paying that corporation for making the transfer. The course of business was, and the intention on the present occasion was, to have the cars switched in the manner hereafter stated, with the iron on them, into the plaintiff’s yard, and when unloaded they would be switched back to the transfer track, where they would be taken again by the Boston, Barre and Gardner Railroad Company.</p> <p>On the morning of March 6, shortly before the arrival of the cars, S. D. Nye, the general agent of the plaintiffs, went to the office of the Boston, Barre and Gardner Railroad Company, which is in sight of the tracks, to inquire as to the arrival of this iron, when the superintendent of the Boston, Barre and Gardner Railroad, looking out of the window, saw the cars with the iron coming, and said to Nye, There is your iron now coming. Nye immediately went, to the tracks, and, when the cars had reached the transfer track, took a memorandum of the number on each of the five cars, and went to get a switchman to switch the cars over to the plaintiff’s mill. The switchman started at his request with an engine for that purpose, but before the switchman arrived with the engine, and after the cars were on the transfer track, the cars and iron were both attached on suits against the Boston, Barre and Gardner Railroad Company.</p> <p>It was the ordinary course tif business, when cars for the Boston and Albany Railroad Company were left on the transfer track, for a switchman, who had the charge of the switching on the north side of the Boston and Albany yard, to take them at his convenience, and place them on a track in that yard, and another switchman, who had charge of the switching on the south side of the yard, would then, at his convenience, take them thence and make up the trains with them if they were going farther, or, if they were destined to the plaintiff’s premises or other premises adjacent to the yard, switch them to said premises. But it appeared that frequently, when cars containing iron for the plaintiff reached the transfer track, Nye was in the habit of giving directions to the switchmen of the Boston and Albany Railroad Company as to what he wanted done with them, and the switchmen were in the habit of complying with said directions and switching them directly into the plaintiff’s yard, but it was not contended that Nye had any authority over the switchmen of the Boston and Albany Railroad Company, except from this implied assent.</p> <p>On March 11, 1879, the plaintiff made a demand on the defendant for said iron, which he refused to deliver.</p> <p>The defendant asked the judge to rule as follows: “1. There is no evidence in this case to justify a finding that the property in question was so delivered to the plaintiff as to pass title as against the attaching creditors of the Boston, Barre and Gardner Railroad Corporation. 2. There is no evidence to authorize a finding that the place where the cars were left by the Boston, Barre and Gardner Railroad was a place where the plaintiff had a right to go or be for the purpose of receiving cars or other property, and the only finding authorized in respect to the place as a place of delivery is that it was the common place of delivery between the railroad companies, and on the evidence the only delivery that can be in law inferred from leaving the cars at that place is a delivery to the Boston and Albany Railroad Company.”</p> <p>The judge declined so to rule, and found that there was an intent on the part of the Boston, Barre and Gardner Railroad Company and of the plaintiff to make a delivery to the plaintiff of the iron on the transfer track, and that there was a delivery before any attachment; and found for the plaintiff.</p> <p>If the finding was warranted by the evidence, judgment was to be entered thereon; otherwise, judgment for the defendant.</p>

Bill in equity to restrain the defendant from removing a drill from a machine-shop in Brookfield. At the hearing before Ames, J., the following facts appeared: Prior to July 1, 1877, William X. Stevens was the owner of a tract of land in Brookfield on which he had erected a brick shop one hundred feet in length and forty-two feet in width, fitted with boiler, engine and shafting, and adapted and designed for a machine-shop or other manufacturing purposes.

Bill in equity, filed January 17, 1879, against Curtis Newton and William Damon, to restrain the defendants from diverting water from an aqueduct. The case was heard by Ames, J., on the pleadings, the report of a master and exceptions thereto, and reserved for the consideration of the full court. The facts appear in the opinion.

<p>The provision of a recognizance entered into by a poor debtor, under the Gen. Sts. c. 124, § 10, that within thirty days from the day of his arrest he will “ deliver himself up for examination before some magistrate authorized to act,” does not require him to deliver himself up at such time that the examination may be commenced within the thirty days; but it is sufficient if the notice to the creditor is issued by the magistrate before the expiration of the thirty days.</p>

<p>Contract to recover $250, the amount of a tax assessed by the defendant town upon personal property of the plaintiff, and paid by him under protest.</p> <p>At the trial in the Superior Court, before Wilkinson, J., without a jury, the plaintiff offered evidence tending to show that, in the year 1878, he was an inhabitant of the defendant town, and taxable therein for real and personal estate; that he did not file with its assessors a list subscribed by him of his estate liable to taxation, although such list was required by the assessors under the Gen. Sts. e. 11, §§ 22, 23; that the amount of his tax for that year was estimated by the assessors, assessed by them and committed with their warrant to the collector; that subsequently, and prior to September 15, 1878, a further assessment upon the plaintiff of $250 was made by the assessors for alleged personal property, exceeding in amount $100, by them discovered after issuing the warrant and omitted therefrom, and that amount was entered in the collector’s list, and collected of the plaintiff by compulsion of law, and paid into the defendant’s treasury; and that said personal property was never in fact owned by him, or subject to taxation as his property.</p> <p>But the judge excluded the evidence offered, and ordered judgment for the defendant. The plaintiff alleged exceptions.</p>

Contract, by the assignees in insolvency of Albert E. Smith, and of the firm of Smith and Collier, for money had and received. Answer, a general denial.

<p>The mortgagee of a large parcel of land, pending negotiations with the mortgagor for a release of the equity of redemption, conveyed, by warranty deed, a portion of the land to the plaintiffs, who knew the state of the title, and who took possession of the land conveyed to them. The negotiations for the release of the equity of redemption having failed, the mortgagee entered to foreclose his mortgage. A few months afterwards, H., who had full knowledge of these facts, agreed with L., one of the plaintiffs, to furnish him with money to buy the mortgage from the mortgagee, L. to take an assignment of the mortgage to himself, release the mortgage on the plaintiffs’ land to the mortgagee, and then assign the mortgage, excepting the release, to H., it being supposed that this would perfect the plaintiffs’ title. This arrangement was carried out except that L. quitclaimed the plaintiffs’ land to the mortgagee, and then executed a release or discharge of the mortgage to H. instead of an assignment. H. in the mean time procured a deed of the entire land from the mortgagor, which fact was known to L. when he executed the discharge of the mortgage. Held, on a bill in equity to restrain H. from prosecuting a writ of entry to obtain possession of the land conveyed to the plaintiffs, and to compel him to transfer his interest in the land to the plaintiffs, that the conveyance by the mortgagee to them operated as an equitable assignment of the mortgage held by their grantor, and that the plaintiffs were entitled to no other relief than that H. be restrained from prosecuting the writ of entry until payment to them of the amount they had paid for the land.</p>

<p>Petition for a writ of mandamus to order the city of Worcester, and the city council of said city, to construct and maintain railroad tracks, as required by the St. of 1877, c. 152,* connecting with one or more of the 'railroads of said city, for the benefit of the business establishments on the line of the extension of Foster Street, which were formerly accommodated by the tracks of the Boston and Albany Railroad at the time of the passage of the St. of 1871, c. 343. The answer averred that the statutes were unconstitutional, and alleged that the city had complied with their requirements.</p> <p>The case was heard by Ames, J., and reserved for the consideration of the full court. The facts sufficiently appear in the opinion.</p>

<p>A debtor, with intent to defraud his creditors, conveyed land, and afterwards caused his grantee to convey it to B., who did not participate in the fraud, in consideration of a debt due him, and that any amount above that sum realized by him from a sale of the land should be paid to the debtor. Before the conveyance to B. was recorded, and while the record title stood in his grantor’s name, A. made a general attachment of the debtor’s real estate in the county, but the officer did not make the addition to the return required by the Gen. Sts. c. 123, § 55; and the land in question was afterwards taken on execution, and conveyed by the officer to A. Held, that he could not maintain a writ of entry against B.</p>

Contract, in two counts. The first count alleged that the plaintiffs were the assignees in bankruptcy of a corporation named the Wood and Light Machine Company; that, before the bankruptcy, Buchanan, Ware and Company made an order upon the defendant, a copy of which was annexed, directing it to deliver certain goods, therein specified, to the Wood' and Light Machine Company; that the defendant duly accepted said order, and thereby became liable to deliver to said company…

<p>In an action against two persons as partners on a promissory note signed by one of them in the firm name, a verdict may properly be returned against both jointly, if it appears that the one who signed was an agent with authority to sign the note, and held himself out to the payee of the note as a partner, and that the other defendant was the only member of the firm.</p>

<p>If partners, after a voluntary dissolution of the partnership, of which no notice is given, continue business in the same manner as before, and hold themselves out to the world as partners, the rights of persons dealing with them in good faith are to be determined as if the partnership still existed.</p> <p>It is within the general scope, of the authority of a member of a trading partnership, engaged in the buying and selling of merchandise, to give or indorse a promissory note in the name of the firm; and a clause in the articles of copartnership, forbidding such an act without the assent of the other partners, does not affect the rights of a person taking a note so signed or indorsed in good faith and in ignorance of such a restriction.</p> <p>A member of the firm of B. & Co. made a promissory note in the firm name payable to the order of W. & Co., and gave it to W., a member of both firms, who indorsed the firm name of W. & Co. upon it in fraud of that firm, and negotiated it. Held, in an action upon the note against the members of the firm of W. & Co., that there was nothing upon the face of the note, which, as matter' of law, was conclusive notice to the plaintiff that the indorsement of W. & Co. was invalid, or that their indorsement was for the accommodation of B. & Co., although the plaintiff knew that W. was a member of both firms.</p>

<p>A promise will not be implied against the express declaration of a person upon whom no duty is imposed by law.</p>