Volume 132 — Massachusetts Reports

<p>A complaint, alleging that the defendant kept “a certain common nuisance, to wit, a certain house of ill fame,” resorted to for the purpose of prostitution and lewdness, to the common nuisance of all citizens, charges an offence under the Gen. Sts. c. 165, § 13, and not under c. 87, §§ 6, 7.</p>

<p>At the trial of an indictment for manslaughter, a witness for the defendant was - allowed, in answer to a question put by the government, to refresh his memory from a report made by him of the defendant’s statements at the inquest; and the defendant thereupon, without putting any question to the witness, asked to have so much of the report as related to the inquiry of the government read to the jury. The judge excluded it. Held, that the defendant had no ground of exception.</p>

<p>Indictment in one count, charging the defendant, on March 5,1881, at Boston, with an assault with a dangerous weapon, to wit with a knife, with intent to kill and murder. Trial in the Superior Court, before Aldrich, J., who allowed a bill of exceptions in substance as follows :</p> <p>The jury retired to consider their verdict, with the direction, if they did not agree upon a verdict before the court adjourned for the day, to reduce their verdict to writing, seal it up, and return it into court the next morning. The court adjourned for the day before the jury had agreed. Shortly after the adjournment of the court, and before rendering their verdict, the jury separated, and, appearing in court next day, were asked by the clerk in the usual form, if they had agreed upon a verdict. The foreman answered that they had, and handed the clerk a sealed envelope, which, upon being opened, was found to contain the paper which is copied in the margin.*</p> <p>The clerk read this paper in open court, and then inquired of the jury in the usual form, “ What say you, is the defendant guilty or not guilty ? ” to which the foreman replied, “ Guilty of an assault with a knife, without the intent to kill and murder; ” and all the jury assented. The verdict was in that form affirmed in open court, and received and recorded against the objection of the defendant, who also objected to the reception of the above written paper as a verdict. But the judge overruled the defendant’s objections, so far as to allow said paper to be received; ruled that the oral verdict as uttered by the foreman in open court, and assented to by all the jury, was a legal and proper verdict; and ordered the same to be recorded as such.</p> <p>The defendant also filed a motion to set aside the verdict for the following reasons: “ 1. Because no legal, correct or proper verdict was rendered by the jury in said case. 2. Because after said case was given to the jury for the purpose of considering and rendering a verdict thereon, and before said jury had agreed upon and returned a correct and proper verdict into court in said case, said jury, without the knowledge and consent of said defendant, separated. 3. Because said verdict, as orally rendered and recorded, is not substantially in accord with the form sealed up by the jury before their separation. 4. Because the proceedings in regard to the separation of the jury and the rendition of said verdict were illegal and irregular.”</p> <p>The judge overruled the motion; and the defendant alleged exceptions.</p>

<p>A person may be convicted of selling adulterated milk, upon a complaint under the St. of 1880, c. 209, § 3, without allegation or proof that he knew it to be adulterated.</p> <p>The St. of 1880, c. 209, § 7, providing that “ in all prosecutions under this act," for selling adulterated milk, “ if the milk shall be shown upon analysis to contain more than eighty-seven per centum of watery fluid, or to contain less than thirteen per centum of milk solids, it shall be deemed for the purposes of this act to be adulterated,” is constitutional.</p>

<p>The St. of 1864, c. 122, § 2, so far as it authorizes inspectors of milk to enter all carriages used in the conveyance of milk, and, whenever they have reason to believe any milk found therein is adulterated, to take specimens thereof for the purpose of analyzing or otherwise satisfactorily testing the same, is constitutional.</p>

<p>A false statement by the seller, in the negotiations for the sale of a horse, that he is “ sound and kind,” if made as a representation of a fact, and known to the seller to be false, is a false pretence, within the Gen. Sts. c. 161, § 54.</p> <p>At the trial of an indictment, under the Gen. Sts. c. 161, § 54, for obtaining the property of another by false pretences in the sale of a horse, evidence of similar pretences made by the defendant in sales to other persons a short time previously to the sale in question is inadmissible for the purpose of showing the intent with which the defendant made the sale of the horse.</p>

<p>At the trial of an indictment for an attempt to procure thfe miscarriage of a woman, whereby the woman died, the defendant offered to prove that, a short time before the commission of the alleged offence, the woman told the witness that she was pregnant by a person other than the defendant, and that if this person did not perform an operation to procure a miscarriage, or get some one to do so, she should perform the operation on herself. It appeared that said declarations neither accompanied nor were explanatory of any act then done by her. Held, that the evidence was hearsay, and inadmissible.</p>

<p>The duty of maintaining a fence at a place where one is required to be built by the St. of 1879, c. 205, § 1, is not imposed by law upon the owner of land adjoining a railroad constructed prior to the St. of 1841, c. 125,</p> <p>A husband and wife, who were joint tenants of a parcel of land, conveyed by deed a portion of it to a railroad corporation for its road-bed, prior to the St. of 1841, c. 125. As part of the same transaction, they delivered to the corporation a receipt, not under seal, signed by the husband alone, and not recorded, purporting to be a duplicate receipt for the consideration of the deed and to be in full “ for land and land _damages for the track of the road and for fencing the same.” The husband afterwards died, and the wife sold the remainder of the land by a deed making no reference to fences. Held, that there was no contract to fence running with the land, which the railroad corporation could enforce against the purchaser under the St. of 1879, c. 205, § 2.</p>

Tort against the manager of the Troy & Greenfield Railroad and Hoosac Tunnel, for injuries occasioned to the plaintiff’s horse by falling into the openings between the ties of a bridge in Buckland over which the railroad passed.

<p>Contract on four promissory notes, signed by the defendants, and payable to the plaintiff or order. The first note, for $1000, was dated May 14, 1873. The second note, for $1633, was dated October 1, 1874. The third note, for $3367, was dated December 1, 1874. These three notes were payable on demand. The fourth note, for $605.40, was dated December 4, 1874, and was payable three months from date. Writ dated December 4, 1880. Answer, a general denial, and, as to the first three notes, the statute of limitations. Trial in the Superior Court, without a jury, before Brigham, C. J., who allowed a bill of exceptions, in substance as follows:</p> <p>The notes declared on were made by the defendants on the days of their several dates, and were not paid at maturity.</p> <p>On March 16, 1875, the defendants had failed in business, and, upon their being solicited to provide for their large debt to the plaintiff, assigned to him certain book accounts and choses in action, and, in June following, certain other book accounts and choses in action, the plaintiff and the defendants agreeing, on the occasions of the several assignments, that all the moneys collected should be paid to the plaintiff and accepted by him as far as such moneys went upon the defendants’, indebtedness to him upon the promissory notes declared on. There was then no indebtedness of the defendants to the plaintiff besides that upon the notes declared on. At the times of the several assignments there was no agreement or any understanding between the plaintiff and the defendants, or any direction by the defendants, as to how any money received by the plaintiff through said assignments should be specifically applied. Under said assignments and agreement, the plaintiff received, in 1877, the sum of $1011.24.</p> <p>The plaintiff made no application of this sum to the payment in part or in whole of either of the promissory notes declared on, by indorsing such payment thereon, but had the intention to do so, and would, if he had supposed that he had the right to do so, have applied said sum of $1011.24 by indorsing the notes declared on to that effect, as follows: $300 on each of the first three notes, and $111.24 on the last note. The plaintiff, while testifying at the trial to his intention as to the application of said sum of $1011.24, declared his readiness to indorse, and offered to indorse by way of applying this sum as far as it would go in payment of the notes in accordance with said intention. Immediately thereupon the defendants’ counsel, before the judge acted upon the plaintiffs offer, proffered to the judge a paper, which stated that the defendants elected to apply said sum so received in payment of the fourth note, and in payment of the first note, so far as it was sufficient therefor.</p> <p>The court made no order at the trial, or since, upon the plaintiff’s offer to apply said $1011.24 in payment of the notes in accordance with his declared intention, or upon the defendants’ claim to elect and have an application of said sum in accordance with the paper proffered by them.</p> <p>The defendants requested the judge to rule as follows: “ On all the evidence the first three notes are barred by the statute of limitations, and the fourth note is paid. If neither creditor nor debtor can exercise at the time of trial an election as to the manner of application, then the law applies the payment on the debts in the order of time, and it is not competent for the judge to make any other application. If it is competent for the judge to make application, it must b'e made on some one debt until the debt is paid, or the fund to be applied exhausted; and the payment to be applied cannot be divided among all the notes.”</p> <p>The judge refused to rule as requested, and ruled that neither the plaintiff nor the defendants had ever, to the time of the trial of the case, directed or made any specific application of the moneys received by the plaintiff through said assignments to or in payment, in part or in whole, of either of the notes declared on; and that neither the plaintiff nor the defendants had the right to direct or to make with legal effect such application during the trial of the case; that the judge was authorized to make a just and equitable application of said sum of $1011.24, received by the plaintiff through said assignments, to and in the payment, in part or in whole, of either of the notes; and found that it would be a just and equitable application of the sum received by the plaintiff to apply $300 in part payment of each of the first three notes, and $111.24 in part payment of the last note; and ordered judgment for the plaintiff in the sum of $8285.09. The defendants alleged exceptions.</p>

<p>Bill iu equity by the executors of the will of Josiah A. Gridley to obtain the instructions of the court as to the construction of said will, which appointed the plaintiffs his executors and contained the following clauses:</p> <p>“ First. All my personal property of which I may die seised, of every description whatsoever, I give, devise and bequeath in equal proportions to my wife, Phila M. Gridley, and my daughters Electa L. Gridley and Eva M. Gridley, subject to the following conditions, viz.: If the mother should decease before Eva, her share shall revert to the survivors; and in case of Eva’s decease before her majority, her share shall revert likewise to the survivors ; and when only one of the persons herein mentioned and described shall survive, the shares of the two others shall be divided in the proportion of one third to the said survivor, and two parts of the remainder to my daughter Adeline F. Edwards; and one part each to each of my grandchildren; provided, however, that during the lifetime of said daughter Adeline and my son Charles P. Gridley the income of the shares devised to their children shall be paid to them semiannually, in the proportions above specified, for their own sole use and disposal.</p> <p>“ Second. The homestead upon which I reside, I give, devise and bequeath to my wife, Phila M. Gridley, and my daughters Electa L. and Eva M. Gridley, subject tó the following conditions, viz.: Tn case either of the above-named persons should die or should marry, the right, title and interest of the one so dying or marrying shall revert to the two remaining alive or unmarried ,• and in case any two of them shall die or shall marry, their right, title and interest shall revert to the sole use of the survivor during her natural life, and at her decease shall be equally divided among my grandchildren; provided, however, that during the lifetime of my son Charles P. Gridley, and my daughter Adeline F. Edwards, or either of them, they shall enjoy the use or income thereof.</p> <p>“ Third. All my remaining real estate, other than the homestead before mentioned, wheresoever situated, I give, devise and bequeath to my daughter Adeline F. Edwards and all my grandchildren surviving one year from the time of my decease, in the proportion of two parts to my daughter Adeline, and one part each to each of my grandchildren, upon ‘the following conditions, viz.: I direct my executors to sell the said real estate within six years from the time of my decease, and invest the proceeds of the sale thereof in some savings bank or banks in trust for the use and benefit of the following named persons, to whom the income shall be paid during their natural lives ; — to my daughter Adeline F. Edwards, two parts for herself and one part for each of her children, to be at her sole disposal, free from all control of her present or any future husband, and to my son Charles P. Gridley, the parts to which his children may be entitled.</p> <p>“ And I request the Judge of Probate to appoint a suitable person as trustee of the property herein devised and bequeathed to my daughter Adeline F. Edwards, and my grandchildren, who shall receive and pay over to the said Adeline F. Edwards and Charles P. Gridley the income derived therefrom, in the proportions I have named, semiannually. Until the real estate herein devised for the use and benefit of Adeline F. Edwards and my grandchildren shall be sold, I will and direct my executors to pay from my estate sixteen dollars semiannually in dry goods or groceries, or both, to the order of my said daughter Adeline F. Edwards. The grandchildren are not to have any claim until the lands are sold as specified in this instrument.”</p> <p>At the hearing, before Allen, J., it appeared that the testator, who died on April 23, 1876, left a widow and the following children: Electa L. Gridley, Charles P. Gridley, Adeline F. Edwards and Eva M. Gridley, a minor, six grandchildren, four of whom were children of Mrs. Edwards, and two were children of Charles P. Gridley; that Mrs. Edwards and Charles P. Gridley had each another child, bom since the testator’s death; that the testator’s widow, on August 1, 1876, duly waived the provisions of said will; and that the net proceeds of the personal estate in the hands of the executors for distribution amounted to 110,244.78.</p> <p>The judge reserved the case for the determination of the full court.</p>

Contract on a judgment recovered by the plaintiffs against the defendant in the sum of $132.20. The case was submitted ' to the Superior Court upon an agreed statement of facts, in substance as follows: The attachment in the present action was made by trustee process on December 3, 187 9. At the time of the service of the writ upon the trustee, the city of Springfield, there was in its hands the sum of $91.67, due the principal defendant.

<p>If the petition for a writ of certiorari to quash an order of the board of mayor and aldermen of a city sets forth the record and alleges extrinsic facts, the respondents may in their answer controvert such facts or allege other facts which avoid their effect, although the persons composing the board at the time the order was passed and when the answer is made are not the same, if such facts must have been passed upon in passing the order, and are within the knowledge of the persons making the answer.</p> <p>It is no objection to a sewer assessment, which recites that a certain sum was expended in constructing the sewer, that in fact the sewer in question and a sewer in another street were constructed together, if the cost was substantially the same by the linear foot, and the whole cost and the length of the sewer in question appear.-</p> <p>It is no objection to a sewer assessment that a person, residing on another street, whose drain does not enter into the sewer in question, has not been assessed, if it appears that the two sewers, although built together, are distinct, and that no part of the expenses of constructing the one have been assessed upon the persons benefited by the other.</p> <p>It is no objection to a sewer assessment that a person, whose private drain runs into another private drain, which leads to the sewer, is not assessed, if it appears that such use of the sewer is merely by a revocable license.</p> <p>An answer to a petition for a writ of certiorari should state facts, and not matters which the respondents deem will occur; but such an irregularity affords no ground for granting the writ, if, after such averments are struck out, the answer discloses sufficient grounds for dismissing the petition.</p> <p>The record of an order laying a sewer assessment purported to be passed by the board of mayor and aldermen of a city, and was signed by the city clerk. By the charter of the city, the mayor was entitled to preside at the meetings of the aldermen, and the clerk was the recording officer of the board. Held, that the distinct act of the mayor in approval was not required.</p> <p>Under the Gen. Sts. c. 48, § 4, the time within which an assessment upon persons benefited by a common sewer may be made is within the discretion of the board whose duty it is to make the assessment.</p>

<p>In an action against a town for injuries occasioned by a defective railing between a highway and a pond, it appeared that the plaintiff, a woman, was driving in the night-time, on the highway, a horse attached to a wagon, when the horse, being frightened by a lantern used by some boys who were fishing, cramped the wheel of the wagon and backed it against the railing. On the issue whether the plaintiff’s loss of control over the horse was momentary merely, it appeared that the place where one of the boys (the only one who was called as a witness) testified that they were fishing, was more than seventy feet from the place where the wagon struck, the railing, and the plaintiff, on cross-examination, testified that the horse approached within eight or ten feet of the boys before he stopped. The plaintiff also testified that everything happened in a momentary length of time, and there was other evidence to this effect. The place where the boys were fishing was in dispute, and there was evidence that the only marks of wheels, beside the regular ruts, turned sharply from these ruts to the place of the accident, a distance of seven and a half feet. Held, that the defendant had no ground of exception to the submission to the jury of the question whether the plaintiff’s loss of control over the horse w'as momentary only, with an instruction that, if the horse backed sixty feet or more, the plaintiff could not recover.</p> <p>At the trial of an action against a town for injuries caused by a defect in a highway while the plaintiff was driving, his horse along the same, the defendant asked the judge to rule that, if the horse had a defective vision and this contributed to the accident, the plaintiff could not recover. The judge instructed the jury that, if the state of the horse’s vision was such as to make it liable, when exposed to ordinary objects upon and along the highway by a driver of ordinary care and skill, to become unmanageable through fear, and this condition of the horse’s vision contributed to the accident, or if his vision was so defective as to render him unsafe and unsuitable to drive on the highway, the plaintiff could not recover; nor could be, if Ms negligence or the unsafety of the horse in any way contributed to the injury. Held, that the defendant had no ground of exception.</p>

<p>Weit OB' ENTBY to recover a parcel of land in Rehoboth. Plea, nul disseisin. At the trial in the Superior Court, before Allen, J., the jury returned a verdict for' the demandant; and the tenant alleged exceptions. The facts appear in the opinion.</p>

<p>Whether the wages of a seaman on a coasting voyage are subject to attachment by the trustee process — qumre.</p> <p>The owners of a coasting vessel, who, after having been summoned as trustees in foreign attachment of a seaman, are compelled by subsequent process from a court of admiralty upon a libel filed by him against the vessel, and by the judgment of that court in 1ns favor, after disclosure of all the facts relating to the ' trustee process, to pay to him the amount of his wages, will not be charged as trustees for the same sum.</p>

<p>If, on a bill in equity, the full court affirms the decree of a single justice determining the defendant’s liability and ordering the case to be sent to a master to state the account between the parties, it will not, after a petition for a rehearing has been overruled, and after it has declined to amend the rescript, entertain, on appeal from a decree of a single justice ordering judgment in accordance with the master’s report, a motion for a rehearing on the question of the defendant’s liability.</p> <p>B., who held a second mortgage on a parcel of land which had been advertised for sale under a first mortgage, entered into an agreement with A., by the terms of which A. was to buy the land for $10,100 and hold it for the benefit of both; B. was to give A. his note for $5000, to be indorsed by A., towards the payment of the amount due on the first mortgage, and to indorse such other notes as should be given therefor, and the two should share any loss or gain on the estate equally; and A. also agreed to provide for the payment of B.’s notes, and to attend to furnishing all money required for the payment of all the notes given. The estate was subsequently sold by agreement of parties, and bought by A. for $600. On a bill in equity by A. against B. for an account, A. alleged that the estate was in his opinion worth more than $600, and that he was willing that B. should be credited with one half of that sum, or should take a deed of one half of the estate. The court ordered that the estate should be sold under the direction of the master to whom the case was sent to state the account. It was accordingly sold, and brought but $295.75. Held, on exceptions to the master’s report, that B. was properly chargeable with his share of moneys paid by A. for discounts of B.’s notes given in pursuance of the agreement; for stamps on the same and for protests thereof; for discounts of tiie notes of third persons received by A. in payment of personal property of the mortgaged estate sold by him; for interest on the note given by A. to the first mortgagee in part payment for the mortgaged estate; for the expenses of the sale of the estate to A.; and for moneys paid by A. while he was in possession of the estate for repairs, taxes and other expenses necessary for the preservation of the estate.</p>

<p>An order of the hoard of health of a city, under the Gen. Sts. c. 26, § 8, directing the owner of land to remove a nuisance in a specific manner, is void.</p> <p>An order of the board of health of a city, under the St. of 1868, c. 160, directing the owner of land to remove a nuisance, is void, if passed without a previous notice and hearing.</p> <p>The owner of swamp land conveyed to a reservoir company (authorized by its charter to store water, and to drain off the same in such manner as it should deem best, and for this purpose to acquire land by purchase or otherwise) the right of flowing or raising the waters of a pond over his land, by a deed containing full covenants of seisin and warranty. Held, that the deed conveyed an easement in the land, and was not a release of damages for flowing the land; and that the reservoir company might maintain a bill in equity against the owner of the land to restrain him from filling the same.</p>

<p>A statute provided that, in case of the increase of the capital stock in any corporation, the stockholders might take the new stock at par; and that the shares not taken might he sold at auction for the benefit of the corporation, “ but all premiums realized from such sales shall be paid ” to those stockholders in their proper proportions who did not avail themselves of their right to take the new shares. A later statute provided that, whenever any corporation subject to the provisions of the former statute should increase its capital stock, the shares not taken by the stockholders “ may be sold or issued in such manner as the stockholders of the corporation shall by vote direct; ” but that no shares should be sold for less than their par value. While this latter statute was in force, a corporation increased its capital stock. The stockholders voted that all shares not taken at a certain date should be sold by public auction, or in such manner as to the directors might seem advisable; and the directors caused them to be sold by public auction. Held, in an action by a stockholder, to recover the premiums realized from the sale of the shares which he did not avail himself of the right to take, that the case was governed by the provisions of the later statute; and that the action could not be maintained.</p>

<p>A. brought a bill in equity against B. and his wife, who was A.’s daughter, to compel the defendants to transfer to him a parcel of land, the title to which stood in the name of B.’s wife. The answer admitted that the land was bought with A.’s money, and alleged that the conveyance was made to B.’s wife in consideration of support furnished and to be furnished to A. At the hearing, it was found that A. never intended to have the land conveyed to B.’s wife, and a decree was entered in A.’s favor. B. then brought an action against A. for board furnished him and for labor performed upon the land. Held, that the decree in-the suit in equity did not estop B. to show that the board and services were not furnished and rendered gratuitously; and that, on this issue, evidence of declarations made by A., as part of a conversation otherwise relevant, was admissible, even if they tended to show that the consideration of the contract was that the land should belong to B.’s wife, the jury being instructed that the decree in equity was conclusive on the point that such a coutract was not entered into.</p> <p>On the issue whether services were rendered gratuitously by a son in law to his father in law, there was evidence that the parties lived together on the father in law’s land; that the father in law said he expected to live there all his days; that the land was to be his daughter’s when he died; and that the father in law intended to pay his way. Held, that this evidence would warrant a verdict in favor of the son in law. Held, also, that the son in law was not bound by the declarations of his father in law, although put in by himself, to the effect that the services were rendered in consideration that the land was to he his wife’s on the decease of her father, and was entitled to put in evidence the fact that the father had mortgaged the land as soon as the legal title was conveyed to him.</p>

<p>A. induced B. to become a co-surety with him and another on the bond of a third person, by depositing with B. a certain sum of money “ with the agreement that B. should hold the same as collateral securely for his ultimate liability as a surety on said bond, and to indemnify him from any loss or cost arising out of such liability.” There was a breach of the bond, and the obligee brought an action against the principal and sureties, and obtained judgment against all the defendants. Execution issued on the judgment, which was partially satisfied from the proceeds of a sale of A.'s real estate, which had been attached in the action; and the balance due upon the execution, which was more than the sum deposited by A. with B., and amounted to more than one third' of the judgment, was afterwards paid by B. A. then brought an action against B., the declaration in which contained two counts, one for the sum deposited with B. as money lent, and the other for one third of the amount for which A.'s real estate was sold. There was no evidence that the third surety was insolvent. Held, that the action could not be maintained.</p>

<p>A. made an oral contract with B. for the erection of a house for him by B. B. partially performed this contract; and, after sundry modifications of the contract had been made, B., with the assent of A., made a written assignment to C. of “ all my right, title and interest in and to a certain contract with A., which contract was to build for A. a certain house. C. to complete said house in a good and workmanlike manner, and in all respects according to the contract made by me with A." Held, in an action by C. against A., that the assignment was of the contract as it subsisted after the modifications thereof, and not of the contract as originally made.</p>

<p>A lunatic is civilly liable for an injury caused by the defective condition of a place, not in the exclusive occupancy and control of a tenant, upon real estate of which he is the owner, and of which his guardian has the care and management.</p>

<p>It is no objection to the sufficiency of a written protest by a tax-payer against the payment of a tax, under the Gen. Sts. c. 12, § 56, that it was presented to the collector; that it was written across the face of the tax-bill; and that it was not left with the collector, but was taken away by the tax-payer.</p> <p>A person, having his domicil in Boston, left that city in 1876 with his family to reside in Europe for an indefinite length of time, with the fixed purpose never to return to Boston as a place of residence, and to make some place other than Boston his residence when he should return; and, while in Europe, before May 1, 1877, fixed upon a place of residence in another State, but remained in Europe until 1879. Reid, that he retained his domicil in Boston for the purposes of taxation on May 1, 1877.</p>

<p>Tort for the conversion of one hundred barrels of cider. The defendant, a deputy sheriff, justified under a writ against John G. Sleeper, upon which he attached the cider as the property of Sleeper.</p> <p>At the trial in the Superior Court, before Putnam, J., the plaintiff offered evidence tending to show that, on October 14, 1880, he bought the cider of Sleeper, paid him for it and received a bill of sale and delivery of the same on that day; and he produced the bill of sale.</p> <p>Evidence was also introduced tending to show that Sleeper had a verbal lease of the room in which the cider was stored; that the delivery was made in that room; that it remained there until it was sold by the defendant; that the plaintiff notified the lessor of the room, at the time of the delivery, that he had bought the cider and would be responsible for the rent, and the lessor expressed satisfaction and assented to the same ; but there was no evidence of any termination of Sleeper's lease.</p> <p>The defence was that the sale to the plaintiff was in fraud of the creditors of Sleeper. The defendant testified that some days' after the attachment, which was made on October 15,1880, and within a week, Sleeper came to his office, and among other things said, “ I understand you have taken my cider.”</p> <p>The judge, at the request of the plaintiff, ruled that the words, “ I understand you have taken my cider,” were inadmissible in evidence, on the ground that it was a declaration made by Sleeper, after the sale, in disparagement of the plaintiff’s title; and instructed the jury not to consider them as evidence.</p> <p>The jury returned á verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>A receipted bill of parcels of chattels, purporting on its face to be as security for a debt, is a pledge, and not a mortgage; and if the pledgee, after receiving possession of the chattels, permits the pledgor to resume possession of them and to hold them until his death, he cannot by then taking possession of them, defeat the right of the administrator to maintain against him an action for their conversion.</p>

<p>In an action against an executor for the conversion of a chattel, alleged to be the property of the plaintiff, the defendant, after the plaintiff lias made out a prima facie case, may, under an answer denying property in the plaintiff, put in evidence that the chattel belonged to the defendant's testator.</p> <p>The fact that a person, who testifies to the genuineness of the signature of another with which he is familiar, cannot read or write, goes to the weight, but not to the competency, of his testimony.</p> <p>A party to a written agreement, signed by his mark, testified that he could not read or write; that he did not know the contents of the writing, and that it was not read to him or explained to him. There was also evidence that he had made a settlement with the other party to the contract based upon the agreement contained in the paper. Held, in the absence of evidence that his mark was procured by fraud, that the paper was admissible in evidence against him, in an action in which the title to a chattel, the subject matter of the contract, was in issue.</p> <p>Under the Gen. Sts. c. 129, if a former judgment is an adjudication between the same parties to a second action, and against the plaintiff, of issues which tend directly to disprove the allegations contained in the declaration, it is admissible in evidence under an answer denying those allegations.</p> <p>Although a former judgment, if rendered on the merits, is an absolute bar to a subsequent action for the same cause of action, between the same parties, yet if the second action is upon a different cause of action from the first, the judgment in the former action is conclusive only upon those issues which were actually tried and determined; and, if extrinsic evidence is necessary to determine what issues were actually tried and determined, such evidence must be submitted to the jury.</p>

Tort against the sheriff of Essex, for the conversion of the stock of goods in a grocery. Answer, that the goods were attached as the property of Joseph S. Stearns, on a writ in favor of F. H. Marshall, and that whatever title the plaintiff had to said goods was fraudulent as to the creditors of said Joseph.

<p>Tort in two counts. The first count was for expelling the plaintiff from the defendant’s cars at Windham, in the State of New Hampshire. The second count was for refusing to sell the plaintiff a ticket entitling him to be carried over the defendant’s railroad from said Windham to Lawrence, in this Commonwealth. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court on appeal, upon agreed facts, the material parts of which appear in the opinion.</p>

<p>A., claiming title to premises under a deed from B., who was in possession and denied A.’s right and refused to give him possession, succeeded, in attempting to gain possession, in crossing the threshold of the house without actual resistance, but was then resisted and made no further progress, and B. continued his possession uninterrupted. Held, that A. never had such possession as entitled him to maintain an action on the Gen. Sts. c. 137, for forcible entry and detainer.</p>

<p>A., an advertising agent, entered into a written contract with B., by the terms of which A. was to insert for B. an advertisement in a specified position in a certain number of lists of a newspaper union, which embraced a large number of papers, for the term of one year in consecutive weeks for a sum stated, to be paid in advance by B. accepting four drafts of A. of a certain amount, payable in three, six, nine, and twelve months; to furnish B. copies weekly of the different papers; to examine the files of the lists and to make no charge for the advertisement when it was not in the specified position; and in case, from any cause, A. should be unable to carry out the provisions of this agreement, he agreed to return at once to B. either his acceptances or the full amount of the ^ same in money, said money to be held by him until the return of the acceptances. A. failed to insert the advertisement in consecutive weeks, and to furnish B. with all the papers he was required to furnish. The first three drafts were paid by B. Held, in an action against B. on the fourth draft, that the inability to perform the contract, provided for in the clause above stated, meant an absolute inability, and not a mere failure to perform in subordinate details; that the action could be maintained; and that B. was merely entitled to recoup the damages he had sustained by A.'s failure to comply with the terms of the agreement, z</p>

Contract for the non-delivery of 3000 cases of corn. Answer, the statute of frauds. Trial in the Superior Court, without a jury, before Bacon, J., who allowed a bill of exceptions in substance as follows: The defendant is a corporation established in New York, engaged in packing fruits and vegetables. The plaintiff is a broker and dealer having his office in Boston. He had acted as broker for the defendant, and had also dealt with it in his own name.

<p>The Gen. Sts. c. 92, § 25, enacting that, when a testator omits to provide in his will for any of his children, they shall take the same share of his estate that they would have been entitled to if he had died intestate, unless he has provided for them in his lifetime, or unless it appears that the omission was intentional, do not apply to an estate in which he has merely a power of appointment.</p> <p>A testator domiciled in this Commonwealth devised real and personal estate situated here to trustees in trust to the use of his daughter until her arrival at the age of twenty-one years or marriage within that age, and then in trust to convey one half to her discharged of all trusts, and to hold the other half during her life, paying her the income thereof, and, on her death, in trust to convey the same as she should, by deed or writing, or by her last will, or by any writing purporting to be her last will, appoint, and, in default of such appointment, to the use of her children and their heirs. The daughter married a resident of another State, and died there, possessed of property, real and personal, other than that over which she had the power of appointment; and leaving the husband and two children, and a will, which was duly admitted to probate in that State and in this Commonwealth, by which she devised to her husband all the real and personal estate to which she should be entitled in law or equity at the time of her decease, but made no mention of the power of appointment. By the law of the State of her domicil, her will was not a good execution of the power of appointment. Held, on a bill in equity by the trustees under the father’s will to determine to whom they should transfer the property held by them, that by the law of this Commonwealth the daughter’s will was a good execution of the power; and that the power was therefore well executed.</p>

Tort for personal injuries occasioned to the plaintiff, by falling into an excavation on the defendant’s land. Answer, a general denial.

<p>A testator by his will appointed his sister A. his heir, “to the effect that” she should have one fourth of his estate, and directed that her portion should “ fall after her death” to persons named, and “shall be left behind” by A. to these persons. Held, that A. took an estate for life in one fourth of the estate, and that the persons named took a vested remainder in fee.</p> <p>A testator by his will appointed B. and C. his heirs, “ to the effect that ” they should have one fourth of his estate each, and directed that “ B. and C. leave to their legitimate descendants their portions received and to be received out of what I leave, so that if B. or C. should decease before me, their children step in the place of their father as heirs, respectively, of one quarter of what I leave.” Held, that B. and C. each took by the first clause one quarter in fee, and that the words of the last clause were too indefinite to cut down this estate to an estate tail.</p> <p>A testator by his will appointed his niece D. his heir, “ to the effect that ” she should have one fourth of his estate. The will also provided that the half of her portion should fall to two persons named and their descendants in two equal parts, if she deceases without heirs of her body; otherwise she is succeeded by her descendants alone. Held, that as to one half of D/s portion she took an estate in fee, and that as to the other half she took an estate in fee determinable upon the event of her dying without leaving at her death heirs of her body, with an executory devise over in fee to the persons named.</p>

<p>Three actions of contract for money had and received. The cases were tried together in the Superior Court, without a jury, before Putnam, J., who found for the plaintiff in each case; and reported the cases for the determination of this court. If, as matter of law, upon the facts, which appear in the opinion, the plaintiff was not entitled to recover, judgment was to be entered for the defendants; otherwise, judgment upon the finding. The cases were argued in November 1880, and reargued in November 1881.</p>

<p>Contract against the members of a partnership doing business under the firm name of Thayer & Lincoln. The declaration alleged that the defendants entered into a written contract with the plaintiff, a copy whereof was annexed and is printed in the margin,* for the conveyance of certain live sheep and hogs from Boston to London; that, by the terms of the agreement, the defendants were bound to see that the sheep and hogs were supplied with suitable fittings to perform said voyage and with a sufficient quantity of pure water to support life and to keep the sheep and hogs in good health and condition during the voyage ; alleged delivery to the defendants, and a breach of the contract in not supplying sufficient water, whereby a large number of the sheep and hogs died during the voyage. The declaration also contained a count in tort against the defendants as common carriers.</p> <p>At the trial in the Superior Court, before Aldrich, J., the plaintiff put in evidence tending to show a breach of the contract and a loss of sheep and hogs caused thereby. The defendants admitted signing the contract declared on; and put in evidence that the sheep and hogs were shipped under a bill of lading similar in form to that annexed to the contract, which contained the words in writing “ as per contract,” and the words “ shipped on deck at shipper’s risk. All loss or damage arising from any cause whatever to be borne by the shipper.”</p> <p>The defendants asked the judge to rule that the agreement declared on was the agreement of the owners of the steamship, and not that of the defendants. The judge ruled otherwise. The jury returned a verdict for the plaintiff; and the defendants alleged exceptions. The case was argued at the bar in November 1880, and reargued in November 1881.</p>

<p>Contract for money had and received, to recover the amount of a check drawn by the plaintiffs on the defendant, payable to the order of the Revere Sugar Refinery, and paid by the defendant without the order of the payee. At the trial in the Superior Court, before Putnam, J., the jury found for the plaintiffs, and the defendant alleged exceptions, which appear in the opinion.</p>

<p>If in a trustee process the answer of the trustee admits that he owes the principal defendant a certain sum in payment for work and labor, a claimant of the funds in the hands of the trustee may show that the principal defendant acted in the matter merely as the claimant’s agent.</p>

<p>Upon an appeal in equity from a decree of a single justice on a question of fact, the evidence being reported, the full court will not reverse the decree, unless it clearly appears to he erroneous.</p> <p>If a woman on the eve of her marriage is induced by threats of the imprisonment of her intended husband, and by undue influence and fear that her marriage will otherwise be prevented, to sign an agreement to pay the debts of her intended husband, the agreement cannot be enforced in equity; and a part payment by-her, after signing the agreement, on legal proceedings being threatened and in ignorance of her rights, is not in equity a ratification of the agreement.</p> <p>If a woman, induced by undue influence, signs an agreement to pay a debt of her intended husband, the fact that the creditor forbore to sue the original debt and to arrest the debtor and that the woman thereby obtained a husband and a title, will not prevent the woman from setting up the defence of undue influence when the creditor seeks to enforce the contract in equity.</p> <p>Where a contract is sought to be enforced in equity, the defence that the defendant was induced to sign it by undue influence may be set up by answer.</p> <p>Where a single creditor under the Gen. Sts. c. 113, § 2, cl. 11, seeks the aid of a court of equity to prove his debt and to obtain equitable relief out of a trust fund, the equitable defence of undue influence and threats may be set up, and the defendant is not obliged to show duress at law in order to avoid his liability.</p>

<p>An application for a commission to take the deposition in perpetuara of a witness without the State can, if the only persons adversely interested also reside without the State, only be made under the Gen. Sts. c. 131, §§ 52-58; the notices required by those sections should be given, and not those required by §§ 46-51; and the court has no discretionary power to grant an application and issue the notices under the latter sections.</p>

<p>On a complaint under the mill act, the parties submitted the case to the Superior Court, and to this court, on appeal, after a judgment for the respondent, on an agreed statement of facts, which concluded as follo'ws: “ The parties hereto admit the foregoing facts for the purpose of raising the preliminary question of law arising thereon; and the facts so admitted are not to be used by either party, without proof of the same, at any trial of this or any other cause.” Held, that this meant that the facts agreed were to be passed upon by the court as if the. complainant 'had made an offer of proof, and the Superior Court had ruled that, if proved, they would not warrant proceedings for the assessment of damages by a jury; and that, so construed, the court might pass upon the question presented.</p> <p>A judgment of ouster entered by this court, upon an information in the nature of a quo warranto, against a corporation owning a mill privilege, upon which it has erected and maintained a dam, excludes the corporation from the right to exercise its franchises; and a grantee of the corporation, by deed dated prior to the entry of such judgment, acquires a prescriptive right to maintain the dam, as against the owner of land flowed by the dam, by maintaining the same for more than twenty years after the date of the judgment.</p>

<p>Tort for personal injuries. The declaration alleged that the defendant corporation, on May 14, 1879, owned or leased, and maintained and operated, a street railway and the tracks thereof, on and over an unpaved street, called Cambridge Street, in that part of Boston formerly Brighton; that the defendant was bound to keep in repair and free from any defect said tracks and the portion of said street occupied thereby, and eighteen inches on each side thereof; that the same were negligently suffered by the defendant to be defective and out of repair; and that the defendant, by its agents and servants, was careless, negligent, and guilty of misconduct in the construction, management and use of said tracks, whereby the plaintiff, on the day above named, travelling in a carriage drawn by a horse, on said street, and attempting to cross said tracks, and using due care, was violently thrown out of the carriage upon the ground, and received the injuries complained of. Writ dated January 22, 1880, returnable to this court. The defendant filed a plea to the jurisdiction, alleging that the Superior Court, and not this court, had jurisdiction of the cause of action; and also filed an answer containing a general denial.</p> <p>At the trial, before Endicott, J., the plaintiff offered to prove the facts alleged in the declaration. Upon this offer of proof, the defendant asked the judge to rule that this court had no jurisdiction of the action. The case was then taken from the jury by consent, and reported for the consideration of the full court. If the ruling should have been given, the plaintiff was to become nonsuit; otherwise, the case to stand for trial.</p>

Contract for milk sold and delivered. Answer, a general denial. Trial in the Superior Court, before Rockwell, J., who allowed a bill of exceptions, in substance as follows: The only evidence offered was that of the plaintiff, who testified that the milk was delivered by him to the defendant’s wife, a part of it where the defendant had been living with his wife, and a part afterwards at another house where the wife was boarding.

<p>A bill of exceptions tendered by the defendant, in an action upon a promissory note to which the defence was payment by a second note, stated that the judge, who tried the case without a jury, found that the second note was given as collateral security for the first, and not as payment, and that the defendant contended that there was no evidence in the case to sustain such finding, and omitted to state that the plaintiff testified that he did not take the second note in payment of the note in suit. Held, that the exceptions were rightly disallowed. •</p>

<p>In an action on a promissory note secured by a mortgage of land, the defendant cannot recoup the damages he has sustained by the negligence of the mortgagee in procuring insurance' upon a house upon the land under an agreement subsequent to the mortgage.</p>

Contract. Writ dated April 24, 1878, returnable at July term 1878 of the Superior Court. On January 5,1880, the defendant filed an answer setting up a discharge in insolvency in bar. From the discharge it appeared that the defendant filed his petition in insolvency on December 27, 1878, and that the discharge was granted him on July 24,1879.

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

<p>A corporation brought an action against an administrator upon a contract made with Ills intestate, by which he agreed to cut the hemlock trees on a certain lot of land, to peel the bark from them and deliver it at a certain tannery, and to receive as his compensation the logs or timber after the bark was peeled off. The plaintiff offered no evidence as to who was the agent who acted for the corporation; but relied upon admissions of the intestate before his death that he had made a contract substantially like that declared on. The defendant then offered evidence that, at or about the time when the plaintiff alleged the contract sued on to have been made, his intestate made a contract with T., acting as the plaintiff’s agent, which was identical in its terms with the contract sued on; that he proceeded under the contract to cut and peel trees on the lot described in the declaration; that he did not draw'the bark, because S. claimed the premises; that he notified T. by letter of S.’s claim, and received in reply a letter from T. in which he directed him not to draw the bark until he should come and run the lines. Held, that there was evidence, aside from T.’s acts and declarations, that T. was the agent of the plaintiff; and, this being established, that T.’s acts and declarations were admissible in evidence.</p>

Scire facias upon a judgment of the Police Court of Fitch-burg against the defendant as trustee of John Cain, upon which execution was issued, demand made upon the trustee, and the execution returned unsatisfied. Michael Danahy appeared as claimant of the funds in the hands of the defendant.

<p>A. leased a parcel of land with a building thereon, of which he was the owner, to B. During the term of the lease, the building was destroyed by fire, and the actual use and occupation of the estate were wholly abandoned by B. A. then conveyed the estate to C., who erected a new building thereon and leased it to several tenants. B. contended that he had a right of possession under his lease, and, before the erection of the new building, assigned the lease to D., who several years afterwards, but during the term of the lease; with the assistance of a large number of men, at an unseasonable hour in the morning, forcibly entered the building and took possession thereof, but was ejected therefrom by the tenants upon their arrival. He then brought an action of forcible entry and detainer, under the Gen. Sts. c. 137, against C. Held, that the action could not be maintained.</p>

<p>The reference of a case, after its entry in court, by agreement of parties and by a rule of court in common form, to an arbitrator, is not a discharge of the sureties on a bond given to dissolve the attachment in the action, nor a waiver of the plaintiff’s right to the special judgment provided by the St. of 1875, c. 68, § 1.</p>

<p>A will gave to the testator’s widow the use and improvement of the testator’s real and personal estate during her life; and directed that, at her decease, all his estate should be converted into money, the income to be paid to his daughter, and at her decease the principal to be divided equally among her heirs at law. Held, that the daughter’s children took during her life an interest in the fund which they could assign and which would pass to an assignee in bankruptcy. Held, also, that an assignment by a child of his interest in the fund, although unrecorded and although no notice was given to the person in charge of the fund, took precedence of a subsequent assignment by him which was recorded and of which notice was given.</p> <p>A preexisting debt is a good consideration for an assignment of a chose in action.</p> <p>A voluntary assignment of a chose in action not affecting creditors, made in good faith, is good as against a subsequent assignee for value.</p> <p>If a will provides that, after the decease of the testator’s wife, who is the executrix, and to whom the use and income of his estate is given during her life, all the estate shall be converted into money, and does not in terms specify the person who shall do this, the power to sell the real estate left by the testator is by necessary implication given to the administrator de bonis non with the will annexed.</p> <p>A testator gave the use and income of his estate to his wife, who was appointed executrix of the will, during her life, and directed that, at her decease, all his estate should be converted into money, and invested in a certain manner for the benefit of his daughter, for her life, and on her decease be divided among her heirs. The real estate held by the testator at his death was sold by the executrix under the authority of a resolve of the Legislature; and, as a substitute therefor, other real estate was purchased by her with the proceeds. The resolve provided that she should invest the proceeds in the manner prescribed in the will, for her use during her life, and on her decease for the uses and purposes set forth in the will. Upon making the purchase of the substituted estate, she executed a declaration that she held said estate in the said manner and for said uses and purposes. Held, that she took only a life estate in the land purchased by her; that it was held in the same manner and for the same purposes as the land for which it was substituted; and that the power of the administrator de bonis non to sell attached and applied to it. Held, also, that a deed by one of the heirs of his interest in the land purchased under said resolve, operated in equity as an assignment of his interest in the money received by the administrator de bonis non for the sale of the land.</p>

<p>Contract, with a count in tort, by a judgment debtor and the surety on his recognizance, against the sheriff of Middlesex, for the alleged neglect of one of his deputies to serve a notice of the time and place appointed for the examination of the debtor. At the trial in the Superior Court, before Rockwell, J., the jury returned a verdict for the plaintiffs; and the defendant alleged exceptions, which appear in the opinion.</p>

Contract upon an account annexed for coal sold and delivered. The answer set up a warranty by the plaintiffs that the coal should be first-class coal, and fully equal to the coal sold by one Job, and alleged a breach of the warranty. Trial in the Superior Court, before Staples, J., who allowed a bill of exceptions, in substance as follows: The plaintiffs were wholesale coal-dealers in New York. The defendants were wholesale and retail coal-dealers in Fall River.

<p>A testator bequeathed to a person a legacy of “ one hundred dollars, including money trusteed at ” a certain bank. When the will was made, an action was pending in which the legatee sought to recover from the testator a sum less than one hundred dollars; and the bank named in the will, where the testator had a deposit of several hundred dollars, was summoned therein as trustee. Before the death of the testator, “neither party ” was entered in the action, and the trustee was discharged. Held, that the testator intended a gift to the legatee of one hundred dollars only, which sum was to include the amount claimed by the legatee to be due from the testator.</p>

<p>At the .trial of a libel for divorce, the mother of the libellee was a material witness in her favor. Reid, that the libellant had no ground of exception to the exclusion of evidence that the husband of the mother had previously obtained a divorce from her, and that her daughter was a witness in her behalf.</p> <p>At the trial of a libel for divorce, on the ground of adultery by the wife with a certain person, in whose company she went to a hotel, evidence is inadmissible that the person asked the clerk of the hotel for “ connecting rooms,” in the absence of evidence that they went to the hotel for the purpose of committing adultery, if such request was not made in her hearing.</p> <p>At the trial of a libel for divorce, on the ground of adultery by the wife with G., in whose company she went to a hotel, the libellant offered evidence tending to show that the'libellee and G. were assigned to connecting rooms in the hotel. Held, that evidence that the door between the rooms was generally kept unlocked was inadmissible on the issue whether the door was unlocked on the night in question, in the absence of evidence that it was uniformly so kept.</p> <p>At the trial of a libel for divorce, on the ground of adultery by the wife with G., she testified in her own behalf, but G. was not a witness. It appeared that she had filed interrogatories, and taken out a commission to take G.’s evidence, but the commission had not been returned. Her counsel asked her, “Have you any knowledge or information of G.’s whereabouts; ” to which she answered, “ I have heard that he has gone to Europe.” Held, that the libellant had no ground of exception. 1</p>

<p>Tort for slander. The fourteenth count of the declaration, which is the only count material to be stated, alleged that the defendant publicly, falsely and maliciously accused the plaintiff of the crime of adultery by words spoken of the plaintiff substantially as follows: “Mr. Marble has had intercourse with you, (meaning a certain woman to whom said words were spoken by the defendant, the said person so addressed by said defendant being a married woman, and said Marble being an unmarried man.) ” Trial in the Superior Court, before Brigham, C. J., who allowed a bill of exceptions, in substance as follows: o</p> <p>The only evidence to prove the substantive charge of the fourteenth count was that of Mary Ann Cummings, who testified to a single conversation with the defendant, in which he said to her, “ What do you think of your minister ? ” meaning the plaintiff. “He has had intercourse with you, and I can prove it, for your looks prove it.” It appeared that this conversation was had when no one was present except Cummings and the defendant; she testified, on cross-examination, that she never repeated it to any other person until after this action was brought; and there was no evidence to contradict this testimony. It also appeared that Cummings was a married woman and that the plaintiff was an unmarried man at the time said words were uttered; and that both had been such ever since they were acquainted.</p> <p>The defendant asked the judge to rule that the statement made to Mary Ann Cummings, that the plaintiff had had intercourse with her, was not actionable under the allegations contained in the fourteenth count, unless other parties were present at the time.</p> <p>The judge refused so to rule; the jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>If the holder of a note sends it to an agent for collection, it is sufficient to hold a prior indorser, if the agent gives notice of the dishonor in due time to his principal, and if the latter without delay transmits notice to the prior indorser. And, if the holder is a bank, a writing on the back of the note, “ Pay A. on account of B. Bank,” is a sufficient indorsement, although not signed by any officer, to constitute the B. bank an indorser within this rule.</p>

<p>Contract to recover the value of certain goods consigned by the plaintiff to the defendants, and sold by the latter, to pay their, advances, at a price less than the limit fixed by the consignor. Trial in the Superior Court, before Rockwell, J., who ordered a verdict for the plaintiff in a certain sum, and, by consent of parties, reported the case for the determination of this court. If the rulings, which, together with the facts, appear in the opinion, were correct, judgment was to be entered on the verdict; otherwise, judgment for the plaintiff for a larger sum.</p>

<p>The delivery of a bill of parcels of a chattel to the purchaser, who thereupon gives to the seller a lease of the chattel, if there is no other delivery or change of possession, is not sufficient to pass the title as against a subsequent purchaser in good faith from the original seller.</p>

<p>Appeal from a decree of the Court of Insolvency, refusing the discharge of the appellant. Hearing in the Superior Court, before Colburn, J., who reported the case for the determination of this court, in substance as follows:</p> <p>It appeared in evidence that Nathaniel Phillips, the father of the appellant, made for the accommodation of the appellant a promissory note for $1175, dated August 1, 1878, and payable to the order of the appellant four months after date. The appellant had this note discounted at the Central National Bank.</p> <p>A day or two before December 4, 1878, Nathaniel Phillips .made another accommodation note payable to the order of the appellant for $300, and gave it to him. This note the appellant got discounted at said bank, December 3 or 4, 1878, and the proceeds, $776.52, were carried to his deposit account, he having already on deposit in said bank $719.41, making his whole deposit $1495.93. The appellant then, on said December 4, drew his check on said bank for $1175, and by the check on that day paid to the bank the note of August 1, 1878. On March 17, 1879, the appellant filed his petition in insolvency. The jury found, that at the time of this transaction the appellant “had reasonable and sufficient cause to believe himself insolvent.”</p> <p>The appellant contended that the transaction above stated did not amount to a payment within the meaning of the insolvent law; but the judge ruled otherwise, and refused the discharge of the appellant.</p> <p>At the hearing, the appellant had the opening and close; and after the judge had charged the jury upon the issues submitted to them, and the jury had started to leave their seats, the counsel for the appellant requested him to instruct the jury that the burden of proof was upon the objecting creditor on all the issues to the jury. This the judge refused to do.</p>

Bill in equity, filed October 11,1879, to restain the defendant from obstructing a passageway running from Prescott Street in Lowell to the plaintiff’s land. After the former decision, reported 128 Ma'ss. 571, the case was heard by Soule, J., on the form of the final decree.

<p>Land was conveyed to a person in trust, with full power to manage it and sell off the gravel, loam and wood from time to time at his discretion; to sell and convey the land itself or any part thereof, and for such sums as might seem to him judicious ; and to divide the net proceeds of all sales among the equitable owners of the land according to their respective interests, or at his discretion to expend them in improving the property. He executed declarations of trust, which declared that he was to hold the shares of the equitable owners respectively, or the proceeds thereof, to be managed as set forth in the trusts contained in the deed to him. No specific time was stated for the termination of the trust. Held, that one equitable owner was not entitled to call for a conveyance before the purposes of the trust were accomplished, without showing maladministration on the part of the trustee.</p>

<p>Indictment in two counts, against Franklin E. Barnes and Sylvester A. Stockwell, alleging that, on March 10, 1881, Barnes was the owner of certain goods and chattels of a stated value, contained in a dwelling-house in Sutton occupied by him; that, on that day, he was also the owner of a good and valid policy of insurance issued to him by a certain company, by the terms of which said goods and chattels were insured to him until April 10, 1885, against loss or damage by fire to an amount stated; that, on said March 10, the defendants unlawfully and fraudulently conspired together to remove said goods and chattels from Barnes’s house, and to secrete and conceal the same, so that Barnes might thereafter falsely and fraudulently obtain and acquire to himself from the insurance company the sum of money for which the goods were insured, by causing the house to be destroyed by fire and by thereafter falsely and fraudulently pretending to the insurance company that said goods and chattels had been burned with the house ; and that, in pursuance of and according to said conspiracy, the defendants, on March 14, 1881, removed said goods and chattels from Barnes’s house, and concealed and secreted the same in Stock-well’s barn in Sutton.</p> <p>At the trial in the Superior Court, before Bacon-, J., the defendants seasonably filed a motion to quash the indictment. The judge overruled the motion. The defendants were then tried, and found guilty; and the questions of law arising upon the motion so overruled, being in the opinion of the judge so important and doubtful as to require the decision of this court, were reported, with the consent of the defendants, for its determination.</p>

Complaint alleging that the defendant, on March 9, 1881, at Boston, exposed and kept for sale intoxicating liquors, with intent unlawfully to sell the same in this Commonwealth. At the trial in the Superior Court, before Aldrich, J., the jury returned a verdict of guilty; and the defendant alleged exceptions, which appear in the opinion.

<p>An indictment for larceny by embezzlement must allege that the defendant “ feloniously did steal, take and carry away ” the property which is the subject of the indictment.</p>

<p>Indictment in five counts. The first count was as follows: “ The jurors for the Commonwealth of Massachusetts, on their oaths, present that Sarah E. Howe, of Boston aforesaid, on the fifth day of May, in the year of our Lord one thousand eight hundred and seventy-nine, at Boston aforesaid, being a person of an evil disposition, and devising and intending by unlawful ways and means to obtain and get into her hands and possession the goods, merchandise, chattels and effects of the honest and good citizens of this Commonwealth, and with intent to cheat and defraud, did then and there, unlawfully, knowingly and designedly, falsely pretend and represent to one Emily E. Dad-man that theretofore a fund of fifteen hundred thousand dollars had been left under a legacy directing that said sum should be used to establish and carry on a charitable institution of deposit for the benefit of single women and widows; that, in pursuance of said direction and by virtue of said legacy and fund, an institution had been theretofore originated, established, lawfully organized and thereafterwards carried on under the name of the Ladies’ Deposit; that the same then was, and theretofore had been, a benevolent institution for women who had not income enough to support them; that said fund had been left by certain Quakers who had thereby founded said institution, which had been supported by means of said fund and other bequests left by Quakers; that said Ladies’ Deposit then had a branch department in said Boston, and that said branch department was and theretofore had been similar to those charitable institutions in said Boston that support people; that said Ladies’ Deposit had theretofore paid to all its depositors interest amounting to a sum very many times larger than the principal sum on deposit; that the payment of extraordinarily large rates of interest to deserving needy persons had been, by the founders of said institution, declared to be the medium through which the charitable aims of said institution should be effected, in respect to such deserving needy persons as were unwilling to accept charity, and to be their purpose and object in establishing said Ladies’ Deposit; that said institution from the date of its origin as aforesaid thereto had never admitted as its depositors any but deserving needy persons from a class confined to single women and widows; that she, said Howe, was then and there the acting president of said branch department; that she, said Howe, had been connected with said institution since the year eighteen hundred and fifty-nine. And the said Howe then and there asked and requested said Dadman in consideration thereof to pay and deliver to her, said Howe, the sum of six hundred dollars as and for a deposit to the credit and account of her, said Dadman, in said Ladies’ Deposit. And the said Dadman, then and there believing the said false pretences and representations so made as aforesaid by her, the said Howe, and being deceived thereby, was induced, by reason of the false pretences and representations so made as aforesaid, to pay and deliver as and for a deposit as aforesaid, and did then and there pay and deliver to the said Howe, as and for a deposit as aforesaid, and said Howe did then and there receive from her, said Dadman, the sum of six hundred dollars of the proper moneys, goods, merchandise, chattels and effects of said Dadman. And the said Howe did then and there receive and obtain the said moneys, goods, merchandise, chattels and effects of the said Dadman by means of the false pretences and representations aforesaid, and with intent to cheat and defraud. Whereas, in truth and in fact, said fund had not been left in manner and form aforesaid to be used as aforesaid; and said institution was not originated, established, lawfully organized and carried on in manner and form as aforesaid; and said institution was not a benevolent institution as aforesaid; and said fund was not left by Quakers as aforesaid; and said institution was not supported as aforesaid; and said Ladies’ Deposit did not have a branch department in said Boston as aforesaid; and was not similar to said charitable institutions in said Boston, in manner and form aforesaid; and said Ladies’ Deposit had not theretofore paid all its depositors interest in manner and form as aforesaid ; and the founders of said institution had not declared the purpose and object of their establishing said Ladies’ Deposit to be as aforesaid; and had not declared the payment of extraordinarily large rates of interest, as aforesaid, to be the medium of effecting the charitable aims of said institution, in manner and form as aforesaid; and the persons admitted as depositors to said institution were not confined to single women and widows as aforesaid; and said Howe was not then and there the acting president of said branch department, and said Howe had not been connected with said institution since the year eighteen hundred and fifty-nine, as aforesaid; all of which she, said Howe, then and there well knew. And so the jurors aforesaid, upon their oaths aforesaid, do say, that the said Howe, by means of the false pretences aforesaid, on the said fifth day of May, in the year of our Lord eighteen hundred and seventy-nine, at Boston aforesaid, unlawfully, knowingly and designedly, did receive and obtain from said Dadman the said moneys, goods, merchandise, chattels and effects, of the proper moneys, goods, merchandise, chattels and effects of the said Dadman, with intent to defraud, against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided.”</p> <p>Each of the remaining counts alleged the obtaining by the defendant of different sums of money from another person, by false pretences similar to those set forth in. the first count; the third count stating the sum of $1000 to have been so obtained from Matilda Bailey.</p> <p>In the Superior Court, before the jury were empanelled, the defendant filed a motion to quash the indictment for the following reason: “ There is no averment in each and every count of the purpose for which the said defendant sought to get into her possession the property alleged in the indictment.” Aldrich, J. overruled the motion; and the defendant excepted.</p> <p>The defendant then pleaded not guilty. At the trial, the evidence in support of the third count showed that Matilda Bailey, therein named, paid and delivered to the defendant the sum of $760, and that in the form of a certificate of deposit of a bank in Philadelphia. Thereupon the defendant objected that there was a material variance between the proof and the allegation in said count, namely, that the said Bailey did not pay and deliver to the said defendant the sum of $1000. This objection was overruled, and the defendant excepted.</p> <p>It appeared in evidence that each depositor, at the time she made her deposit of money in what the defendant represented as a charitable institution, called a Ladies’ Deposit, received from the defendant, or her authorized agent, a small deposit-book containing in print what are therein called regulations, and of which the following is a copy : “ The Ladies’ Deposit is a charitable institution for single ladies, old and young. No deposits received for less than two hundred dollars, nor more than one thousand. Interest, at the rate of eight dollars on a hundred per month, is paid every three months in advance. The principal can be withdrawn upon call, any day except Sunday.” With such book each depositor also received at the same time, from the defendant -or her authorized agent, a promissory note for the amount of her deposit, which note was signed by the defendant or by J. A. Gould, her authorized agent to receive deposits in said Ladies’ Deposit for the defendant, to issue such deposit-books, and sign and deliver promissory notes for the defendant to depositors for the amount of their deposits. The defendant introduced evidence, tending to prove that early in October 1880, a few days before she was arrested upon a criminal charge, she paid from $75,000 to $100,000 on notes given as aforesaid, which were not due at the time of payment.</p> <p>The government, in support of its allegations that a fund of fifteen hundred thousand dollars, and other bequests, had not been left to found and support said institution called the Ladies’ Deposit, as set forth in the indictment, offered in evidence the books and notes proved against the estate of the defendant in involuntary proceedings in the insolvency court, and which had been issued and given by her to depositors, amounting to about $250,000, which books and notes were others than those belonging to the persons named in the indictment. To this evidence the defendant objected; but the judge admitted the same, and the defendant excepted. It was admitted by the defendant that the said books and notes proved against her in insolvency correctly represented the sums of money due and unpaid to the several depositors therein named.</p> <p>The defendant, in order to negative the allegation of intent to cheat and defraud, offered to show that the defendant often refused depositors when the applicant did not come within the rules prescribed, and had also kept her agreements with her depositors and paid her obligations as they became due, until she was prevented from doing so by attachment, and arrest and imprisonment. The judge declined to admit the evidence, and the defendant excepted. This evidence was not offered for the purpose of showing that said institution had never admitted as its depositors any but deserving and needy persons from a class confined to single women and widows, nor for the purpose of showing that said institution had paid to all its depositors interest amounting to a sum very many times larger than the principal sum on deposit, prior to the times when the persons named in the several counts of the indictment made their deposits, as set forth in said counts.</p> <p>Augustus Russ, the defendant’s assignee in insolvency, was called by the government, and testified as follows: “ After my appointment as assignee, I had a talk with Mrs. Howe, at the jail, in relation to her estate. The first time I saw her, I made statements to her which would make it improper for me to give her conversation. Afterwards, and about January 13, 1881, I was sent for by Mrs. Howe. I saw her at the jail. I said to her that, unless she had something to say to me which would tend to settle the estate, I did not want to talk. She began to tell me about her case in the criminal court. I told her I did not want to talk about that, for I was then acting in a capacity adverse to her, and her counsel had told her not to talk with me. I said, if she could tell me anything about the property which I ought to get, I would like to hear it. She told me that if -she got out of jail she would pay everybody off, though not all at one time. I several times before this had told her not to tell me anything which she did not wish me to communicate. At this interview I did not tell her that if she wanted to get out of jail she must tell me everything, although I did make some such statement at the first interview, which I have already mentioned.”</p> <p>The defendant objected to any further testimony from Mr. Russ, resting her objection upon the ground that the impression caused by the defendant at the first interview might have lasted and been permanent, and that she still thought and believed that by a free talk with Mr. Russ, he being interested in the case, and her assignee in insolvency, he would use his influence for her. Mr. Russ here remarked that he did say that, if she would surrender to him the books which Mr. Towne had, he would see that they were not used against her; that it was his duty to find out all he could in regard to the estate; but he cautioned her not to say anything to him which she did not wish disclosed. The books were never surrendered to Mr. Russ. The judge admitted the evidence, stating that it seemed to him that the witness had done all he could to disabuse Mrs. Howe of the impression that she could expect any favors from him; and the defendant excepted.</p> <p>Mr. Russ then continued: “ Mrs. Howe would keep saying, that if she was out of jail she could pay all these depositors. I asked her how, and she said she was not at liberty to disclose the means; .that she was only a salaried agent at $100 per month. I asked her, if that were the case, how she was able to buy that house, and pay. $40,000. She answered that they advanced her the money, to be taken out of her salary. I asked her who ‘they’ were. She asked me in return, what would I do if I were under oath not to tell. I replied that I did not believe that she had taken any oath that would be very binding upon her, and pressed her to tell me who ‘ they ’ were. She said, ‘ Why, they ’re all around you now. I have taken an oath of office, and am sworn not to tell.’ I laughed at the idea of any such oath, and urged her to tell me whom she was sworn by. She refused to tell me either that or about the circumstances of the institution. Referring again to the books in Mr. Towne’s possession, I told her that I ought to have those books, in order to check off the claims as they were presented to me. I asked her in regard to any directors of the concern, because, if there were any, I ought to go to them. She would not tell me. I told her that there were about one thousand depositors, and to pay them all would require about $200,000; that to meet these demands I could only find property worth about $25,000, and, if she had any means by which to make up the deficiency, she ought to tell me. She repeated her statement that she was under oath not to tell the means, but that if she could get out of jail they would all be paid off in the end. About the notes, she told me that whatever Mrs. Gould signed was all right.”</p> <p>At the close of the evidence for the government, the defendant requested the judge to rule, that as each count in the indictment alleged that Mrs. Howe then and there asked and requested the injured party named therein, in consideration thereof, to pay and deliver to her, said Howe, the sum named in said count as and for a deposit to the credit and account of said injured party so named in said Ladies’ Deposit, and there being no evidence that said Howe made such request in the express terms set forth in the indictment, there was a fatal variance between the allegation and proof. This request was refused; and the defendant excepted. Full and appropriate instructions, not objected to, were given to the jury by the judge upon all questions arising on the indictment and evidence.</p> <p>The jury returned a verdict of guilty op the first four counts, and not guilty on the fifth count; and the defendant alleged exceptions.</p>

<p>It is not necessary to the maintenance of an indictment under the Gen. Sts. c. 165, § 9, for an attempt to procure the miscarriage of a woman, that she should be pregnant with child.</p> <p>The testimony of a medical examiner, who is conceded to be qualified as a medical expert, as to what he found upon making an autopsy, is not rendered incompetent by the fact that, in making the autopsy, he proceeded without authority, and did not in other respects follow the course prescribed by the St. of 1877, c. 200, for medical examiners in such cases.</p>

<p>Where an indictment contains several counts charging the same offence by different descriptions, it is not necessary to allege that they are different descriptions of the same act; and the St, of 1861, c. 181, does not apply.</p> <p>An indictment against a man and a woman alleged that they falsely and maliciously conspired- “ to charge and accuse ” one F. that he had committed the crime of adultery with the woman, “ with intent thereby then and there unjustly and unlawfully to obtain and acquire to them ” divers sums of money of said F., “ for compounding the said pretended adultery so falsely and maliciously charged on him as aforesaid.” Held, that the indictment charged an offence with sufficient certainty.</p> <p>An indictment charging a conspiracy to extort money, without alleging from whom the money was sought to be extorted, cannot be sustained.</p> <p>It is no defence to an indictment that the evidence shows that the defendant committed a higher offence than that charged.</p> <p>If, at the trial of an indictment containing two counts, the second of which is- insufficient, no evidence was admitted which was particularly applicable to the second count and not competent under the first count, and the defendant, was convicted upon the first count on competent evidence, and no error is shown affecting his trial upon that count, he is not prejudiced as to his trial upon that count by a refusal of the judge to quash the second count, and the conviction should stand.</p>

Indictment under the Gen. Sts. o. 87, §§ 6, 7, for keeping and maintaining a common nuisance, to wit, a certain tenement in Provincetown used for the illegal sale and illegal keeping of intoxicating liquors, on January 1, 1881, and on divers other days and times between that day and September 1,1881.

Tort for personal injuries occasioned to the plaintiff while attempting to cross the tracks of the defendant’s railroad in Springfield. Answer, a general denial. Trial in the Superior Court, before Allen, J., who allowed a bill of exceptions, in substance as follows: The accident happened at a point where Wason Avenue, a private way, crossed at grade the tracks of the defendant’s railroad at a right angle.

<p>After a debt from B. to A. was barred by the statute of limitations, A. became indebted to B. in a less amount, and B. orally agreed that this debt should be applied to his debt to A. so far as it would go; A. then brought an action to recover the amount due him from B., and, in an account annexed to Ms declaration, filed after the date of the writ, gave credit to B. for the amount which he owed him. Held, under the Gen. Sts. c. 166, § 18, that the action could not be maintained.</p>

<p>A testator, who died possessed of both real and personal estate, bequeathed to his wife certain personal property, “ to hold for her own benefit as long as she lives (and waive all dowery) in a manner that shall be divided equal among the heirs at her decease.” The widow accepted the provisions of the will in her favor. Held, that the word “ dowery ” was used in the sense of dower; and that there was nothing in the will wliich excluded the widow from receiving her share of the personal estate not disposed of by the will.</p>

Trustee process. The Milford Savings Bank, summoned as trustee, answered that, at the time of the service of the writ, December 15, 1879, there stood on its books to the credit of the defendant the sum of $292.95. James F. Sawin appeared as claimant of the funds in the hands of the trustee.

<p>At the trial of an action for the maintenance of a fence upon the plaintiff's land, a judgment for the plaintiff for nominal damages in a former action between the same parties for building the fence, entered by agreement of counsel with the consent of the defendant, is competent evidence, but is not conclusive of any other fact than that the plaintiff was at that time under his declaration entitled to recover such damages.</p>

<p>All the persons interested in an estate, the administrator of which was a defaulter, released him and his sureties from all claims against them. In consideration of this, two of the sureties gave separate notes payable at a certain time to a person as trustee for those interested in the estate, each for one half of the amount of the defalcation; at the same time the administrator gave his obligation under seal to repay the sureties the sums they paid as such; and the third surety agreed to pay to each of them one third of the sum paid as surety, which he afterwards did, and then brought an action against the administrator for the sum so paid. Held, that- the plaintiff's claim was not a debt created by the defendant’s defalcation while acting in a fiduciary character within the provision of the U. S. Rev. Sts. § 5117, and was barred by the defendant’s discharge in bankruptcy.</p>

<p>In an action by an administrator upon several promissory notes given for sums of money lent to the defendant by the intestate, it appeared that the intestate, who was a partner with S., requested the defendant to sign a certain note as surety for them, saying that, if he would do so, “the defendant should never, lose anything by so doing, and that he should not be called upon for the money which the intestate had and should thereafter put into the defendant’s hands until the defendant should be relieved from all responsibility on said note, and that the intestate would protect him from all loss on account of said note.” Some of the sums of money expressed by the defendant’s notes were lent to him before, and some of them after, this promise; and, relying upon it, the defendant signed, as surety for the intestate and S., a note at a certain bank upon which a certain sum was due at the intestate’s death. S. was appointed administrator of his estate, and, the bank desiring a living surety in place of the intestate, S. asked the defendant to sign a new note for the amount due on the old note, if the intestate’s heirs would sign; and said that the defendant would stand in the same relation as on the old note. Such a note was made, signed by S. as principal, and by the defendant and the widow and daughter of the intestate as sureties, and transmitted to the bank. The presiding judge found that the amount due on the old note “ was paid by S. by said new note.” The new note was afterwards paid by the defendant, who claimed to set off so much of the sums lent him by the intestate as would reimburse him for this payment. Held, that such application could not be made.</p> <p>An administrator cannot bind the estate by a promise that it shall continue liable to indemnify a surety on a promissory note given by the intestate’s partner and heirs in payment of a former note made by the intestate and his partner and signed by the surety upon the intestate’s promise of indemnity.</p>

<p>A notice to the inhabitants of a town of the meeting for the annual state election called upon them to meet on a certain day at a designated place, “ to vote for government officers; ” was signed by a majority only of the selectmen, without the addition of the name of their office to their signatures; was not directed to or served by a constable or other person appointed by the selectmen for that purpose; but was posted more than seven days before the day of the election in a public place, according to the usual custom of the town, there being no by-law or vote of the town prescribing how warrants for meetings should be served. All but eight of the registered voters of the town were present at the meeting, and of those all voted for the office of county commissioner but one. Of the eight who were not present, five had actual notice of the time and place of the meeting and that a county commissioner was to be voted for, two had been absent at sea more than two weeks prior to the meeting, and one was confined to his bed by sickness. One of the candidates for county commissioner had a plurality of eight votes in all the towns of the county including the town in question. Held, upon an information in the nature of a quo warranto, that the election in the town in question was valid; and that the defendant was duly elected to the office of county commissioner.</p>

Tort under the Gen. Sts. e. 83, § 18. Trial in the Superior Court, before Rockwell, J., who reported the case for the determination of this court, in substance as follows : The plaintiff put in evidence the following license, dated October 19, 1874: “ The selectmen of the town of Swanzey have licensed, and do hereby.license, James R. Mitchell, of said Swanzey, to plant, grow and dig oysters in and upon the following described flats and channel situated in Coles River in said…

<p>A notice to a city that a person has been injured by a defect in a highway sufficiently describes the “time” of the accident, within the St. of 1877, c. 234, § 3, by naming the day, in the absence of evidence that anything depended upon the nature of the defect or upon the particular hour of the accident.</p> <p>In an action against a city for personal injuries occasioned to the plaintiff by falling over a gas-pipe in a highway, a witness for the defendant, who was present at the time of the accident and made a measurement of the pipe, testified that he had been in the employ of a gas company for several years, and that he had charge of this particular pipe. He was asked on cross-examination, “ What became of the pipe over which the plaintiff fell 1 ” The judge, against the defendant’s exception, admitted the question and answer, ruling “ that the acts of the witness were not competent by way of admission or otherwise upon the issue whether or not the gas-pipe was an obstruction, but that the plaintiff was only entitled to the evidence to show what had become of the pipe, and to explain the plaintiff’s failure to produce more accurate measurements of the height of the pipe above the ground, concerning which the estimates of the witnesses were variant.” Held, that the defendant had no ground of exception.</p>

<p>No exception lies to the refusal of a judge to allow a witness to answer a hypothetical question, not based on the evidence in the case.</p> <p>In an action by a father to recover compensation for the services of his minor son rendered to the child’s grandfather, there was evidence that the child lived with his grandfather during the period covered by the claim, attending school part of the time and working on the defendant’s farm during vacations and after he left school; and that, a few months before the period covered by the claim, the plaintiff notified the defendant that, if the child should thereafter perform services for the defendant, the plaintiff would exact full pay for such services. Held, that the plaintiff was not entitled to a ruling that, if this notification were proved, the plaintiff was entitled to recover the value of such services to him, irrespective of their value to the defendant.</p>

<p>On the issue whether the gift of a promissory note was made, statements of the alleged donor, who died before the trial of an action on the note, at different times before and after the alleged gift and inconsistent therewith, are admissible to contradict the testimony of the donee, although not made in the donee’s presence.</p>

<p>The St. of 1789, c. 35, § 3, by which a part of a town was incorporated into a separate town, provided that the inhabitants of the new town should thereafter support and keep in good repair their proportionable part of a bridge known by the name of M. bridge in the same proportion that the towns now pay in the present valuation. The bridge referred to crossed a river, and from each end of the bridge a causeway was built of earth and stones. In 1878, a new bridge was built, higher and wider than the old, and it became necessary to raise and widen the causeways accordingly. Held, that the word “ bridge ” in the statute meant the structure which crossed the stream and its approaches, and did not include the causeways, in the absence of any custom, usage or agreement existing between the two towns which fixed the construction to be given to the word.</p>

<p>A bank, which held the note of a bankrupt corporation, proved the note in bankruptcy against the corporation, and, before it received any dividend, brought an action on the note against a surety thereon, and obtained judgment. The surety did not pay or tender to the bank the full amount due on the note. Under a resolution of the creditors, confirmed by the bankruptcy court, the estate of the corporation was transferred to trustees, of whom the surety was one, for the purpose of being wound up. The trustees obtained leave from the court to sell the property by public sale, and it was bid off in behalf of the creditors for a sum which was its fair market value at that time, and was after-wards conveyed to a new corporation which was formed by the creditors of the old corporation. The stockholders actually paid in a large amount of the capital stock at its par value in cash, and the balance of the stock was sold by public auction. The money so received was paid to the trustees in bankruptcy, and distributed among the creditors of the old corporation according to their respective interests. The bank paid a certain sum for a number of shares in the new corporation, and received dividends in bankruptcy to an equal amount. This sum was indorsed on the note, and the surety paid the balance due on the note in cash. At the time of payment, the bank assigned and delivered to the surety all the property which it held as security for the payment of the note, but declined to transfer the stock in the new corporation. The surety then brought a bill in equity against the bank to compel such transfer. Held, that the stock in question was never held by the bank as collateral security for its claim against the old corporation; and that the bill could not be maintained.</p>

Contract against James M. Brightman and William H. Clay, to recover $2400 for the charter of the steamer Border City.

<p>Bill in equity, filed June 2, 1877, by Henry T. Willcox and Charles Hawes, against Ellen A. Foster, Jenks Follett, the Providence County Savings Bank, Herbert E. Foster and Mars-den J. Perry, for the restoration of a mortgage given by Ellen A. Foster to the plaintiff Willcox, and by him assigned to the plaintiff Hawes, and alleged to have been discharged on the record by Willcox by mistake. The case was referred to a master, who reported the following facts:</p> <p>On October 6, 1873, Ellen A. Foster made and delivered to the plaintiff Willcox, for a valuable consideration, a mortgage for $3800 of a parcel of land in Freetown, which was recorded on December 8, 1873.</p> <p>On November 6,1874, Ellen A. made and delivered, for a valuable consideration, a second mortgage of the same premises to Willcox, which was recorded on November 14, 1874. When this mortgage was delivered, the first mortgage had been paid, but was not discharged or cancelled on the record. On June 19, 1875, the second mortgage was assigned for a valuable consideration to the plaintiff Hawes. This assignment had not been recorded on the first day of the hearing, August 31, 1880.</p> <p>On November 14, 1874, Ellen A. made and delivered, for a valuable consideration, a third mortgage for $1500 of the same premises to the defendant Follett, which was recorded on November 24, 1874. This mortgage was, in terms, subject to the second mortgage for $2800.</p> <p>On April 17, 1876, the plaintiff Willcox cancelled and discharged on the margin of the record both the first and the second of the above-described mortgages. Some months after the assignment of the second mortgage to the plaintiff Hawes, Herbert E. Foster requested Willcox, both in conversation and by letters, to discharge the first mortgage on the record. The master found that Willcox, at the request of Ellen A. Foster, and in the discharge of his duty as a mortgagee who had been paid in full, went tó the registry of deeds for the purpose of discharging the first mortgage of $3800 and no other; that he did not know whether the assignment of the second mortgage had been recorded, and made no inquiry about it; that he did not intend to do a wrongful act or to injure any one; that he discharged the first mortgage on one book, and the second mortgage on another book, and in so doing did not use ordinary care.</p> <p>On September 16,1876, the Providence County Savings Bank sued out a writ against Ellen A. Foster, and, on the 30th of the same month, made an attachment of all her real estate situated in the county of Bristol. There was no evidence that Ellen A. had any real estate in this county, except what was subject to the mortgages before named. At this time the claim of the bank was about $2000, the precise amount not appearing. Said action has since been dismissed for want of prosecution.</p> <p>On January 26, 1877, Ellen A. made and delivered, for a valuable consideration, to the defendant Herbert E. Foster, her brother and agent, a fourth mortgage for $300 of the same premises, as security for a promissory note payable in thirty days from said January 26. This mortgage was recorded. The mortgagee knew that the first mortgage had been paid, and that no part of the principal of the second mortgage had been paid, when he took his mortgage. He also knew that the first and second mortgages were discharged and cancelled on the record, and he had been informed by counsel that the second mortgage could not be reinstated.</p> <p>■ On October 1, 1877, Herbert E. Foster assigned this fourth mortgage to the defendant Perry. This assignment was in fact as collateral security in part for a preexisting debt, and in part for money lent at the time of the assignment. Before taking the assignment, Perry was informed by Herbert E. of the true record state of the title. But Herbert E. did not inform Perry that he, Foster, knew that no part of the principal of the $2800 mortgage had been paid when he took the fourth mortgage. Perry relied on the statements of Herbert E., and made no personal examination of the records.</p> <p>Hearing before W. Allen, J., who reserved the case for the consideration of the full court; such decree to be entered as justice and equity might require.</p>

Tort, for personal injuries occasioned to the plaintiff by an alleged defect in a highway in the defendant city. Writ dated April 30,1880.

<p>Contract, by the administrator de bonis non, with the will annexed, of the estate of Epes Tarr, for money had and received, with a special count to recover the proceeds of certain shares' of bank stock, sold by the defendants. At the trial in the Superior Court, before Allen, J., the plaintiff offered to prove the following facts:</p> <p>Epes Tarr died in 1867, leaving a will, which was duly admitted to probate, appointing his wife executrix, and containing the following clause: “I devise to my wife, Martha Tarr, all my real estate and personal property, so long as she shall remain my widow, and on her decease or marriage to be equally divided between her and my legal heirs.”</p> <p>Martha Tarr was qualified as executrix, and returned an inventory, but never filed any account. She died in August 1876, leaving a will, of which the defendants are executors. In April 1876, Martha Tarr purchased four shares of the capital stock of the First National Bank of Gloucester, using therefor money which belonged to the estate of her deceased husband. This stock she purchased in her own name, and a certificate thereof was issued to her in her own name without any designation of “ executrix,” “ trustee,” or otherwise. The amount of money used for this purpose was $560.</p> <p>At her death the defendants returned an inventory of her estate, containing only one item, namely, these four shares of stock. She had no estate of her own, and it was known to one of the defendants, with whom she lived and by whom the purchase was made for her, that the shares were bought with money which belonged to her husband’s estate. The defendants sold these shares at public auction, and they were bid off by them, two by each of them, for $569 in all, and transferred in accordance with the bids, and new certificates for two shares respectively were issued to and taken by them. The defendants have never undertaken to render any account of their testatrix’s administration of her husband’s estate, nor have they ever rendered any account as executors of her will. The plaintiff duly demanded a transfer of the shares, and subsequently payment of the proceeds, of the defendants.</p> <p>Upon this offer of proof, the judge ruled that this auction could not be maintained, directed a verdict for the defendants, and reported the case for the determination of this court. If .the ruling was wrong, the verdict was to be set aside and a new trial granted; otherwise, judgment on the verdict.</p> <p>The case was argued at the bar in November 1880; and was afterwards submitted on briefs.</p>

<p>A promise by a husband to pay for necessaries which have been furnished to his wife upon his credit, if they are such as he is bound to supply her with, although accompanied by a direction to sell no more goods to her on his credit, amounts to a ratification of her contract, upon which an action may be maintained, even if she had no previous authority to purchase them.</p>

<p>If land of a debtor, unincumbered by mortgage, is attached on mesne process, and afterwards seized under the Gen. Sts. c. 103, upon an execution issued on a judgment, and the officer suspends proceedings for more than two months on account of a prior attachment existing on the land, and, after the dissolution of the attachment, gives notice to the debtor of a sale of the land, under the St. of 1874, c. 188, the levy will be deemed to have been made at the time of such notice, and is ineffectual as against a title acquired by deed from the debtor recorded after the judgment, and before the notice of sale is given.</p>

Contract for the price of a book called “ History of Essex County.” The answer set up that the defendant’s agreement to accept and pay for the book was obtained by certain false representations.

<p>A promissory note payable “on demand after date” is not a note “payable on time,” within the meaning of the St. of 1874, c. 404.</p>

<p>Contract upon an account annexed for work and materials. Answer, a general denial. Trial in the Superior Court, before-Putnam, J., who reported the case for the determination of this court, in substance as follows:</p> <p>It appeared in evidence that the defendant made a written contract with J. F. Tilley, by which the latter was to erect a building for him in Hyde Park, the contract including the roofing ; that Tilley informed the defendant that he was going to employ the plaintiffs to do the roofing, and the defendant said that he thought Tilley could get it done as well by others as by the plaintiffs, but Tilley employed the plaintiffs, telling them that the defendant “ had money to pay the bills; ” that the building was begun about October 1, 1878, and was completed in March 1879, and the roofing was done by the plaintiffs in December 1878; that the defendant took possession of the building in February 1879, and has had the use and occupation of it since that time; that on April 1, 1879, Tilley gave the plaintiffs an order on the defendant for the amount of then* bill, which he refused to accept, saying that “he preferred to wait and see how the roof proved before paying,” and the order was returned to the plaintiffs; that on May 17, 1879, Tilley and the defendant met for a settlement, and the defendant said “ he was ready to settle as soon as the roof was made tight,” complaining that it leaked; that it was thereupon agreed between them that the defendant should pay Tilley all that was due him under the contract except the amount due for roofing, and should give a due-bill for the latter amount, saying that “ he would pay the due-bill when the roofing was tight; ” that on that day he signed the following due-bill: “Due Farquar’s Sons two hundred and three and dollars, payable when tin roof on Neponset Block is made satisfactory and on surrender of J. F. Tilley’s order for this sum;” that Tilley gave the due-bill to the plaintiffs, and after that had nothing to do with the due-bill or the building.</p> <p>The plaintiffs testified that, after receiving the due-bill, they did some work for the purpose of making the roof satisfactory, and then sent a bill to the defendant for the whole work, which he refused to pay, on the ground that the work was not done according to the contract; that they made no contract with the defendant, but were employed by Tilley, who told them at the time that the defendant would pay the bills.</p> <p>Upon this evidence, the defendant contended, and asked the judge to rule, that there was no evidence upon which the jury could find that the defendant was liable. The judge so ruled, and directed a verdict for the defendant. If the ruling was correct, judgment was to be entered on the verdict; otherwise, a new trial to be ordered.</p>

<p>A surety on a bond, who has been discharged from "further responsibility ” thereon by the judge of probate, is liable, under the Gen. Sts. c. 101, § 18, for any breaches of the condition of the bond by the principal during the entire time he was his surety.</p>

<p>Contract for use and occupation of a building on Commercial Street in Boston, from January 1 to April 1, 1880. Trial in the Superior Court, before Staples, J., who reported the case for the determination of this court, in substance as follows :</p> <p>On April 7, 1878, the plaintiff demised the premises by written lease to the defendant for one year, at a rent of $50 per month, payable monthly. After the expiration of the term, the defendant continued in possession of the premises until April 1, 1880, and paid the same rent as was reserved by the lease until July 1, 1879, after which day the rent was reduced by agreement of the parties to $44 per month, payable on the first day of each month ; and afterwards it was further reduced to $40 per month, payable at the same time. In September</p> <p>1879, the city of Boston passed an order, taking about two thirds of the land on which the building was erected, in order to widen Commercial Street, with the right to the plaintiff to remove the building from the land so taken. The city never actually entered on or took possession of the part so taken until after April 1, 1880. The defendant, by agreement with the plaintiff, continued to occupy the whole premises as one tenement, the same as before said order was passed, and paid rent therefor at the rate of $40 per month on the first day of each month up to December 1, 1879, and, at a slightly reduced rate, on January 1,1880, for the month of December 1879. On January 23, 1880, the plaintiff sold and conveyed to the city the land before that time taken by the city.</p> <p>The defendant was not disturbed by the city in his occupation up to April 1, 1880. He did not have actual notice of the taking by the city until after January 1, 1880; and, on being informed of that fact, refused to pay rent, but continued to occupy the building, and did not attorn to the city then or after-wards. On February 5, 1880, the city notified the owner and occupants of said building to remove it by the first of March, 1880.</p> <p>On the foregoing facts the defendant contended that the plaintiff was not entitled to recover. The plaintiff contended that he was entitled to recover the full amount of the rental value of the premises for January, February and March 1880, at $35 per month.</p> <p>The judge ruled that, by reason of the deed of the plaintiff to the city, of January 23, 1880, the plaintiff could not recover for use and occupation of the entire premises for either or all of said months, but might recover, for the use and occupation of the unconveyed portion for January, February and March 1880, the proportion of the whole rent which such unconveyed portion bore to the entire estate.</p> <p>The jury returned a verdict for the plaintiff for $35. If the ruling was correct, judgment was to be entered on the verdict. If the plaintiff was not entitled to recover, judgment was to be entered for the defendant. If the plaintiff was entitled to recover the rental value of the entire premises, the verdict was to be amended so as to be a verdict for the plaintiff for $105, and judgment entered thereon.</p>

Contract. The first count was upon an account annexed for $318.26. The second count alleged a promise of the defendant to pay for building materials delivered to the firm of Tully Brothers & W-alker.

<p>The Sts. of 1874, c. 248, § 1, and 1875, c. 212, § 1, providing that in civil actions a party shall not be entitled to a trial by jury, unless he files, within the time therein prescribed, a notice that he desires such trial, are constitutional.</p>

<p>By consent of counsel, an answer was filed in which was reserved the right to file an amended answer. Subsequently the defendant gave notice to the plaintiff that he should not file an amended answer. Held, that the parties were then “at issue” within the St! of 1874, c. 248, § 1, and the 16th rule of the Superior Court, requiring a party desiring a jury trial to file a notice to that effect within ten days after the parties are “ at issue; ” and that the plaintiff, by not filing a notice within the time required, had waived a right to a trial by jury.</p> <p>A. and B. entered into a contract, by which A. agreed to sell B. a tract of land, and B. was to build ten houses upon it. A. was to advance a certain sum upon each house as the work progressed. B. was to give a power of sale mortgage of a certain amount upon each house, and when the houses were finished, A. was to sell the mortgages, and, after taking out such amounts as were due him for the land and for advances, insurance and other expenses, to pay over the balance to B. The mortgages were made and placed in the hands of A.’s agent. Afterwards, but before the mortgages were recorded, B. gave C. an order on A.’s agent, directing the latter to pay C. the amount of his bill for certain materials furnished for the houses, not exceeding a sum named, “ to be paid when mortgages are placed, and from the amounts realized from said mortgages above the amount due A. for land and advances.” On the hack of this order, A.’s agent indorsed the following: “Received from C. the original of which the within is a duplicate, and which I hold for the purpose within named, and which will he reserved in accordance with bills presented, approved by B., and on conditions within named.” B. failed to perform his contract. A. disposed of two of the mortgages at their full value; and, by transferring the others as collateral security, he realized a sum which was not enough to pay him for his land and advances. Held, in an action by 0. against A. on the order accepted by him, that by the words “ when mortgages are placed,” the parties meant sold or realized; and that the action could not be maintained.</p>

<p>An oral agreement to execute an ante-nuptial contract is within the statute of frauds; and if an oral agreement to marry is dependent upon such an agreement, and a part of it, no action can be maintained upon it.</p> <p>If an action for the breach of a promise of marriage will survive against the executor of the promisor, where special damage is alleged, an allegation of special damage for not executing an ante-nuptial contract which is within the statute of frauds is not sufficient to bring the case within the rule.</p>

<p>If wrongful acts of a lessor upon the demised premises are such as to permanently deprive the lessee of the beneficial enjoyment of them, and the lessee, in consequence thereof, abandons the premises, it is an eviction; and the intent to evict is conclusively presumed.</p>

<p>A bill in equity alleged that the defendant demised by an indenture of lease to the plaintiff, for a term of years, a parcel of land with the buildings thereon, bounding on a passageway, together with a free and uninterrupted right of way over the passageway, and with a covenant that the lessee, paying the rent and performing his covenants, should peaceably enjoy and hold the premises without hindrance or interruption by the lessor or any other person; that the plaintiff covenanted to erect a new building on the premises within a time named, and deposited with the defendant a certain sum as security, which was to be repaid to him, or applied on the rent at his option, when he should have expended a certain amount on the new building within the time named; that the plaintiff entered under the lease and removed the old buildings, and then first discovered that the passageway was cut off from the land by a brick wall built upon it before the lease and maintained adversely to the lessor, but not by right; that the passageway was an essential part of the property demised, and a substantial inducement, without which the plaintiff would not have entered into the indenture ; that when the plaintiff discovered the existence of the wall, he applied to the defendant to be put into possession of the right of way, and the defendant promised immediately to put him into possession, and, relying upon that promise, the plaintiff proceeded to erect the building at a cost named; that the plaintiff afterwards made two demands, at times stated, upon the defendant to be put inlo possession of the passageway, and the defendant promised to do so, but had never fulfilled his promise; and that the defendant had always demanded the rent, and the plaintiff had paid it in full and occupied the premises upon the defendant’s representations that he would arrange the matter as to the passageway. The bill offered to surrender the plaintiff’s part of the indenture and the premises with all improvements; and prayed for a decree that the defendant give up his part of the indenture, and that the same be annulled, and that the defendant pay back all rents paid by the plaintiff, and the cost of all outlays upon the land. Held, on demurrer, that the bill could not be maintained.</p>

<p>Contract upon a policy of insurance, by which the defendant insured the plaintiffs for one year from August 8, 1879, “ against all such immediate loss or damage as may occur by fire ” to merchandise on board either of the steamboats of the Providence and Stonington Steamship Company. At the trial in the Superior Court, before Hockwell, J., the plaintiffs offered to prove the following facts :</p> <p>On the night of June 11, 1880, the steamboat Narragansett, belonging to the Providence and Stonington Steamship Company, came into collision with the steamboat Stonington on Long Island Sound, about three fourths of a mile southwest of Long Sand Shoal. There were at that time upon the main deck of the Narragansett three crates or small cars, each mounted upon four iron wheels for their easier handling. These crates, containing goods and merchandise, the property of the plaintiffs, for the damage to which this suit is brought, were carried down and sunk in the water with the steamboat, and were subsequently raised and removed, and delivered to the plaintiffs unopened. The contents were found to be injured by water, but had not been actually touched by fire.</p> <p>When the vessels came into collision, the stem of the Stoning-ton penetrated the side of the Narragansett on her starboard bow, and aft of her starboard gangway, in close proximity to her coal-bunkers and fire-room. With the collision, fire instantaneously broke out on the Narragansett in the engine-room. It spread rapidly, and within eight minutes raged with such violence as to drive the engineer, the fireman and all their assistants from the engine-room and fire-room. The officers and crew, on account of the fire, were obliged to abandon their duties, and were wholly engaged in getting out and lowering the small boats to save the lives of themselves and the passengers, of whom there were a great number on board. The machinery continued after the collision to do its work until it was stopped by the engineer. The wheels were uninjured, and the engines and the entire running apparatus were unaffected by the collision, excepting that a hole was pierced in the bottom of the starboard boiler, which would not have prevented, however, the successful use of that boiler for some considerable time. There were two boilers capable of being disconnected, either of which would drive the vessel.</p> <p>The Narragansett was furnished with pumping apparatus, which, if it could have been used, would have cleared the steamboat of water at the rate of fourteen hundred gallons per minute. This apparatus was in good order, but any use thereof was prevented by the fire. One pump, however, was used in putting out the fire that first broke out, and substantially got it under in less than one minute, when a fire immediately afterward broke out on the other side of the engine-room. The other two pumps were connected with the main engine, and could be used only when it was in motion. Its working was stopped by the engineer, under the belief that its running would tear the wheels to pieces.</p> <p>The Narragansett lay afloat and burning for half an hour or upwards after the collision. Practically, the steamboat was burned off to the flooring above the main deck. During this time she lay motionless, slowly filling, without a drop of water being pumped out of her, on account of the fire, and finally she sank in from four to five fathoms of water.</p> <p>There would have been no loss of life, and no loss of the cargo or freight, had it not been for the fire, which drove from their posts all those whose duty it was to run the steamboat, thereby preventing any use of the bilge and other pumps for clearing the vessel of water, as well as any use of the machinery for guiding or controlling the conduct and course of the steamboat, or the adoption of any expedients whatever for closing the gap or hole in the side of the steamer.</p> <p>There were three independent ways in which the safety of the plaintiffs property would have been secured: First. Even if nothing was done to stop the leak caused by the collision, the Narragansett might, within the time that she actually floated after the collision, had it not been for the fire, have been run upon Long Sand Shoal, and grounded in nine feet of water on a good, firm, sandy bottom, leaving her main deck high and dry seven or eight feet above the water. This shoal was only three fourths of a mile distant from where the Narragansett sank, was five miles long and one quarter of a mile in width, and had a government light vessel and fog signal station at a point equally distant from the two ends of the shoal. The Narragansett had a broad, flat bottom nearly forty feet wide. She drew ten feet of water, and her main deck stood eight feet above the water line. Second. Had it not been for the fire, the hole in the side of the Narragansett might have been stopped by throwing canvas heavily weighted over the side, which would have been sucked into the space and been held there by the pressure of the outside water, as has been repeatedly and successfully done under similar circumstances. Planks properly lowered would be pressed against such a gap in the ship’s side, with such force as to furnish great protection against incoming water. With this hole stopped, even partially, and the pumps at work, she would have floated till towed into port, had her own motive power failed. Third. The Narragansett was a side-wheel steamboat, such as are ordinarily used for lake and river navigation. The steamboat City of New York, similar in construction to the Narragansett, was in the vicinity at the time of the collision. The steamboat Stonington, a steamer of the same line and belonging to the same owners as the. Narragansett, and which was also similar in construction to the Narragansett, was substantially uninjured by the collision. These two steamboats remained as close at hand as the fire would permit, and rendered what assistance they could. Had it not been for the raging fire, either or both of these steamboats might have laid alongside of the Narragansett, whether the hole caused by the collision were stopped or not; and, vpth the vessel in that condition, the passengers and these crates would have been transferred to them and saved, without loss or damage. These crates were so placed on the main deck, that, to have saved any of the other freight on the Narragansett, they must have been taken off first. They went on last and came off first, by an invariable custom. They were on the centre of the main deck, directly in front of both of the forward gangways, with nothing between them and the gangways. The steamboats City of New York and Stonington were lightly loaded on that night, and had plenty of room to receive said passengers and freight. They were willing and able to do it.</p> <p>A special agent of the plaintiff was on board the Narragansett, and it was his sole duty to go every night with these crates, see them on and off the boat, and do anything requisite for their safety. On that night the sea was quiet and smooth, and the night was calm. At the time of the collision there was a fog prevailing on the Sound, which remained until the boat sank.</p> <p>The judge ruled, against the plaintiffs’ objection, that the action could not be sustained on these facts, if proved, directed a verdict for the defendant, and reported the case for the determination of this court.</p>

Contract by Bridget Williams and Andrew Williams, her husband, upon the promise contained in a deed of real estate to the defendants, made by Andrew Williams and Bridget Williams, in her right, dated November 13, 1874, wherein they covenant that the “ granted premises are free from all incumbrances excepting a mortgage thereof for three thousand dollars, which, with the interest therein, the grantees assume and agree to pay, the same forming a part of the consideration…

<p>Contract on a poor debtor’s recognizance. The bill of exceptions and a copy of the pleadings and docket entries showed the following facts:</p> <p>At January term 1880 of the Superior Court, judgment was entered for the plaintiff on the defendant’s default, and the defendant alleged exceptions, which were allowed. At July term 1880, the exceptions were waived, and the parties to the case signed an agreement that the case should be entered “neither party.” This agreement was filed in court and entered of record, but “ without any order of court.” At January term 1881, namely, on February 23, the plaintiff’s attorney filed a motion that the entry of “ neither party ” be stricken from the docket, and the agreement be stricken from the files of the court, assigning two grounds for his motion: 1st. That there was no order of court for the entry of “ neither party ; ” and 2d. That the agreement to make this entry was obtained by fraud. The defendant contended, at the hearing upon this motion, that no such motion was admissible, and that the court had no power to grant the motion. Allen, J. ruled otherwise, ordered the entry of “ neither party ” to be stricken off and the action brought forward; and the defendant alleged exceptions.</p>

<p>In an action of slander, in accusing the plaintiff of having stolen from a former employer, evidence of the plaintiff’s general reputation as to his having stolen from his employer, both at the time he was in his employ and at the time of the alleged slander, is inadmissible in mitigation of damages.</p> <p>In an action of slander, in accusing the plaintiff of having stolen from his employer, during an angry dispute at an election in the presence of from twenty to sixty persons, the mental suffering of the plaintiff is an element of damage.</p>

Contract for money had and received, with a count alleging that the defendant issued a policy of insurance on the life of Warren Fisher; that the policy was assigned to the plaintiff, who became the legal holder thereof, with the consent of the defendant; that the defendant agreed with the plaintiff that, in consideration of the plaintiff’s surrendering the policy, the defendant would pay the plaintiff the value thereof; that the plaintiff thereupon surrendered the policy to…

<p>A testator by his will devised all his estate, real and personal, to two persons, one of whom was his son, in trust to convert the personal estate into money and to manage the real estate, repairing, leasing, and, if necessary, rebuilding, and receiving the income thereof; directed them to apply the net income of the real estate and the proceeds of the personal estate to the payment of certain annuities, and to divide the remainder of the income of his estate between his wife and children; and further directed, on the decease of all the children, “my trustee or trustees for the time being-” to convey the estate to his grandchildren; and also provided as follows: “ And I authorize my trustees, if they think best, to sell and convey such of my lands as are in B., or any part of such land, and to reinvest the proceeds of such estate or lands with the proceeds of the sales of my personal estate.” The lands in B. were unimproved. Held, that the power to sell the lands in B. was not restricted to the trustees named in the will, but might be exercised by their successors in the trusts.</p>

Bill in equity, under the Gen. Sts. c.J.13, § 2, cl. 11, against Gilbert A. Sargent, Lucinda S. Sargent, his wife, and the John Hancock Mutual Life Insurance Company and the Berkshire Life Insurance Company, two corporations established by law in this Commonwealth, to reach and apply to the payment of a joint debt of Sargent and his wife to the plaintiff their interest in two policies of insurance issued by the defendant corporations respectively upon the life of Sargent for…

<p>A bill of interpleader will not lie by a debtor against Ms creditor and a third person, who claims the debt, not through any privity with the creditor, but by a title paramount and adverse to his.</p>

Bill in equity by the administrator de bonis non, with the will annexed, of the estate of John Foster, for the instructions of the court upon the question whether a valid trust was created by a residuary devise to trustees named and their successors, in trust to appropriate the. net income, according to their best judgment and soundest discretion, to the following purposes : “ First.

<p>Contract on an account annexed for board and other supplies furnished the defendant at the McLean Asylum for the insane at Somerville, from October 1, 1872, to August 25, 1873.</p> <p>The writ, dated December 19, 1876, alleged that the defendant was an insane person, and that Edward A. Caswell was her guardian. Service was made upon Caswell, who appeared and filed an answer, alleging that before October 1, 1872, the defendant was insane, and has since continued to be so; that about October 15, 1869, the plaintiff made an agreement with William H. Towne and Isaac H. Wright for the defendant’s board and the supplies to be furnished her at the McLean Asylum while she should be there; that, after she had been removed therefrom, the plaintiff brought an action in the Superior Court on this agreement, against Towne and Wright, for the same cause of action for which this action is brought, and at October term 1875 recovered judgment thereon, which judgment is still in force.</p> <p>After the former decision, reported 129 Mass, 78, the case was tried 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>The plaintiff read the pleadings, and rested. There was no dispute as to the items of the plaintiff’s account. The guardian -put in evidence of the following facts:</p> <p>On October 15,1869, William H. Towne and Isaac H. Wright signed and delivered the following instrument to the plaintiff: “ In consideration of Mrs. Caroline Fairbanks being admitted a patient into the McLean Asylum for the insane, at our request, we, the undersigned, jointly and severally promise the Massachusetts General Hospital to pay the treasurer thereof at said asylum, quarterly, on the first days of January, April, July and October, with interest after said days respectively, the rate of board which may from time to time be determined by the trustees of said hospital for said patient; to provide or pay for all requisite clothing and other things necessary or proper for the health and comfort of said patient; to pay for all proper expenses incurred for the return of said patient to the asylum in case of elopement; to remove said patient when discharged; to reimburse funeral expenses in case of death; and if removed uncured against the advice and consent of the superintendent, before the expiration of three calendar months, to pay board for thirteen weeks, the rate at which the patient is admitted below, and the trustees .may change the same at any time, giving us three weeks’ notice by mail in case the rate is to be raised. Witness our hands this fifteenth day of October, 1869.”</p> <p>On the same paper was the following order of admission, signed by two of the visiting committee of the plaintiff: “ Receive the above-named patient if brought within two weeks from date, at $30 per week.” By virtue of this order, the defendant, after the obligation of Towne and Wright was given, was retained at the McLean Asylum until August 25, 1873.</p> <p>The plaintiff then put in evidence tending to prove the following facts:</p> <p>The agreement of Towne and Wright was not executed until Mrs. Fairbanks had been in the hospital about a fortnight, but bore date of the time of her admission, October 15, 1869. On her admission to the hospital, upon the certificate of two physicians, under an application of one of the proprietors of a hotel in Boston, where she was boarding, she was suffering from an attack of acute mania. The price to be paid for board was arranged by the committee of the hospital, after consultation between the superintendent and Towne, who was, and for some time had been, her attorney at law, and it was fixed with reference to what was stated by Towne as to the amount of her property and income. After she had been at the asylum about a fortnight, the superintendent called Towne’s attention to the requirement of the hospital, that two persons should sign an agreement in the form of that signed by Towne and Wright, dated October 15, 1869. Towne, being told by the superintendent that when a patient was a person of responsibility this agreement was a mere matter of form, and that it did not matter if the persons signing were not persons of pecuniary responsibility, signed the agreement, expecting to be appointed guardian of the defendant, his application therefor in the Probate Court being on October 16,1869, and his appointment on November 1, 1869; "and, for Towne’s accommodation, as the superintendent of the asylum was informed at the time, Wright also signed it, neither Towne nor Wright being related to Mrs. Fairbanks. From October 15, 1869, to August 25, 1873, all the board and supplies furnished Mrs. Fairbanks by the plaintiff were charged by the plaintiff in its regular books of account to Mrs. Fairbanks ; but this was the usual course as to patients to identify them, and did not show to whom credit was given. The plaintiff’s bills for board and supplies were rendered quarterly to whomsoever was the guardian at the time. Some of them were made out in the name of the defendant and the rest in the name of the guardian, none to Towne and Wright, and they were paid by Towne, while guardian, out of the defendant’s money received by him as guardian, so far as they were paid. Those in charge at the hospital, when the defendant wanted anything, came and saw Towne, who dealt with them in the capacity of guardian. The board was first fixed at $30 a week, until the superintendent said she could go into the Appleton Ward on payment of $50 a week, as the price of the board. Towne talked with her about it, and she wished to go into this ward, and did. The defendant, in the years 1872 and 1873, although an insane person, was competent to understand and did understand that the board and supplies furnished her were to be paid to the plaintiff out of her money, through her guardian. Her bills from October 1, 1872, were unpaid when Towne resigned his guardianship, on March 10,1873; and Caswell was appointed his successor, on April 25, 1873, and at once, on his appointment, began to make payments to the plaintiff on account of these arrears.</p> <p>In July 1873, the plaintiff sent Caswell a bill for all the charges in the account annexed to the plaintiff’s declaration up to July 1, 1873, including those accruing while Towne was guardian. The bill was made out to Caswell as guardian, and in reply Caswell wrote to the plaintiff’s superintendent, “ I shall begin immediately to pay off your bill and liquidate the indebtedness as fast as possible,” and afterwards, on July 8, 1873, wrote said superintendent, signing as guardian, a letter contain^ ing this language: “ I shall send you a check of $50 this week and a much larger one by the 15th, and so continue to pay off the ward’s indebtedness as soon as possible.” x As guardian, the said Caswell made payments on account of the same.</p> <p>Another bill was sent by the plaintiff to Caswell, made out to him as guardian, after the defendant left the plaintiff’s asylum, covering all the items of the plaintiff’s account; and, in reply, Caswell, in October 1873, sent to the plaintiff’s superintendent a letter containing these words: “ Enclosed is a check for $300, and I shall send on every month an equal amount, if possible, something always; ” — and at the same time sent to the plaintiff’s attorney at law a letter containing the following language: “ I have received a note from Mr. Towne to-day, enclosing one from yourself to him, regarding Mrs. Fairbanks’s bill. Mr. Towne, as you may know, resigned .the guardianship to me some six months ago, when the property of Mrs. Fairbanks in Boston (her main support) was paying nothing; since then I have leased it at $2400 per annum. I acknowledge her indebtedness to the asylum, and am paying $100 or $200 every month, and after February 1, when the stores are rented, shall pay faster.”</p> <p>The defendant contended that, the plaintiff having made an express written contract with Towne and Wright, the evidence was not competent to show an implied contract with the defendant, and could not control the written contract. The judge ruled that the plaintiff’s evidence, or such portions of it as were competent, could not, as matter of law, control the legal effect of the agreement of October 15, 1869, as evidence that Towne and Wright were alone liable for the board and supplies included in .the plaintiff’s demand sued upon, and that the defendant was not liable therefor. To this ruling the plaintiff excepted.</p> <p>The plaintiff further contended that the liability of Towne and Wright under the agreement of October 15, 1869, was terminated on April 25, 1873; and that thereafter the defendant was solely liable for the board and supplies furnished her and charged after that date; and put in evidence, in connection with the previous evidence of the plaintiff, of the following facts:</p> <p>It was understood between the plaintiff and Towne, when he signed the agreement dated October 15, 1869, that he did so because he had been appointed, or expected to be or was on the point of being immediately appointed, guardian of the defendant, and was to have charge of her property. Towne, on March 10, 1873, resigned his office as guardian; and, upon the appointment of Caswell as guardian, on April 25, 1873, Towne, in writing, in behalf of himself and Wright, notified Dr. Jelly, the superintendent, that they then terminated their liability to the plaintiff under the agreement of October 15, 1869. Before Towne resigned as guardian he told the superintendent that he was going to resign, that Caswell, who had married the defendant’s daughter, was to be appointed in his place, and that he wanted to terminate any liability to the plaintiff under his agreement. The superintendent made no objection. The judge found that the superintendent had no authority to waive any rights of the plaintiff, nor to release Towne and Wright from their obligation, and that there was no release; and ruled that the plaintiff’s evidence did not show that the liability of Towne and Wright under the agreement of October 15, 1869, was terminated on or before April 25, 1873, or that the defendant was liable for the board and supplies furnished after April 25, 1873, or before her removal from the asylum; and that, on the evidence, the judge did not find any assent by the plaintiff to the termination of said liability; and found for the defendant.</p> <p>If the plaintiff’s evidence showed a liability on the part of the defendant for the board and supplies furnished her by the plaintiff, notwithstanding the agreement of Towne and Wright, the plaintiff was to have judgment for the whole amount of its demand and interest. If the liability of Towne and Wright was terminated on or before April 25, 1873, judgment was to be entered for the plaintiff for $1255.45. If the plaintiff was not entitled to recover anything, judgment was to be entered for the defendant.</p>

<p>An agreement between two railroad corporations, that any injury to persons or goods shall be paid for by the corporation on whose road it may occur, and that, when the damage cannot be traced to either of the corporations, it shall be paid for by each in the proportion it shares in the through price of carriage, does not make the two corporations partners; if one corporation has made a contract for the carriage of goods over the roads of both corporations, an action for breach of such contract cannot be maintained against the other corporation, if the loss is not proved to have taken place while the goods were in its custody; and the contract between the two corporations is inadmissible in evidence.</p> <p>In an action against a railroad corporation for injury to goods, in which the evidence was conflicting on the question of the defendant’s negligence, the judge refused to rule that certain facts, if proved, would constitute negligence, and submitted the question of negligence to the jury. Held, that the plaintiff had no ground of exception.</p>

<p>In a trustee process, the trustee may set off, against the debt due the principal defendant, the amount of a non-negotiable chose in action against the latter, assigned .by the trustee, before the service upon him, to a third person, who executes an instrument to the trustee, by which the assignee agrees to hold the claim for the joint benefit of the two parties, and not to dispose of the claim without the consent of the trustee, and that “ any and all benefits and emoluments and advantages at any time directly or indirectly derived from said claim ” shall enure to the joint benefit of the two parties.</p>

<p>Contract. The writ, returnable to the Superior Court, described the plaintiff as of Wilmington in the county of Newcastle in the State of Delaware, and the defendant as a corporation duly established by law in Camden in the State of New Jersey, having a usual place of business in Boston in this Commonwealth. The declaration alleged that the defendant issued a policy of insurance against loss by fire to James E. Price on property situated in the State of Delaware, payable to the plaintiff as mortgagee; that a loss had occurred to the amount of SI 250, and that the defendant refused to pay the same. The return of the officer set forth that he had summoned the defendant to appear and answer “ by delivering to J. L. Clarke, insurance commissioner and the duly appointed attorney to accept service for said company, a summons, together with an attested copy of this writ.”</p> <p>The defendant appeared specially and moved that the process against it be quashed, the service thereof annulled, and the writ be dismissed for want of legal service upon it, and for want of jurisdiction in the court to entertain the process.</p> <p>Putnam, J. overruled the motion; and the defendant alleged exceptions, which, in addition to the matters appearing on the face of the papers and above set forth, stated that the defendant had complied with the laws of this Commonwealth in reference to foreign insurance companies, and was doing business in Boston as a foreign insurance company.</p> <p>The defendant was subsequently defaulted, and judgment rendered against it.</p>

<p>Under the Gen. Sts. c. 18, § 10, providing that towns may grant and vote such sums as they judge necessary for certain specified purposes, and “for all other necessary charges arising therein,” towns are not limited to the purposes specifically enumerated in the section, or to others of the same kind, but may vote to raise money whenever it is required to enable them to exercise the powers or to perform the duties conferred and imposed upon them by law.</p> <p>A town may vote to appropriate money for the enforcement of the liquor law, and to employ agents and counsel to suppress the sale of intoxicating liquors.</p>

<p>The statement by a patient to his physician of the cause of an injury from which he is suffering, is inadmissible as evidence of that cause in an action for the injury.</p>

Tort for personal injuries occasioned to the plaintiff by a defect in a highway in the defendant town. Answer, a general denial. At the trial in the Superior Court, before Brigham, C. J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.

Tort, with a count in contract, against a physician and surgeon, for malpractice in the treatment of the plaintiff’s broken arm.

Replevin of “ one large engine lathe, one small engine lathe, one Ames iron planer and one upright drill.” The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court on appeal,, upon agreed facts in substance as follows: The articles replevied, at the time the mortgage hereinafter named was made, and at the time this action was brought, were in a building in Somerville, owned and used by the American Art Foundry Company in the business…

Contract for breach of the covenant against incumbrances in a deed of three lots of land from the defendant to the plaintiff, the alleged incumbrance being an assessment upon the land for the cost of constructing a sewer. At the trial in the Superior Court, before Gardner, J., without a jury, the defendant asked for a ruling that, if the plaintiff was entitled to recover, he was entitled to recover nominal damages only.

<p>If a person residing in this Commonwealth is appointed executor of a will in another State, and ancillary letters testamentary are also granted to him here', and his final account, showing that the balance in his hands has been paid to him as executor under his appointment in the other State, is allowed by the Probate Court here, this court has no jurisdiction of a bill in equity to construe the will and marshal and distribute the estate.</p>

<p>Writ of entry, dated August 20, 1881, by the heirs at law of George W. Perry, to recover a parcel of land in Malden. Plea, nul disseisin. The case was submitted to the Superior Court, and, after judgment for the tenants, to this court, on appeal, on agreed facts, which appear in the opinion.</p>

<p>A court of record has no authority to allow an amendment to the return of a levy of an execution issued by it, by inserting a new and material fact, without proof of the truth of that fact.</p> <p>The truth of an amendment to the return of a lev)-- of an execution, that the officer, “having made diligent search for” the debtor, “but not finding him in my precinct,” could make no personal service upon him, is not sustained by proof that tile officer, upon hearing at the debtor’s residence that he was probably not in, left for him a written notice of the time and place of sale under the execution, and made no further inquiry or search.</p>

<p>A bill in equity, by the administrator of A. against B., alleged that C., who owned a parcel of land, subject to a mortgage to B., in consideration that B. would discharge the mortgage, quitclaimed it to B ; that, on the following day, B. gave to A., who was C.’s father, a bond to convey the land, within a certain time, on payment of a certain sum and interest, together with all sums expended by B. in making improvements and removing incumbrances; that, at the time the bond and deed were given, C. was indebted to A., and that the bond was given to A. on account of "some equitable consideration moving from C. to A.; that the plaintiff had been licensed by the Probate Court to sell the real estate of A. for the payment of his debts; and that the mortgage constituted a cloud upon the title. The prayer of the bill was that the mortgage might be cancelled; that B. should be ordered to convey the land to the plaintiff, on payment of what was due, or pay for damages for breach of the contract to convey. Held, on demurrer, that the bond given by B. to A. could not operate as a defeasance of the deed given by C. to B.; and that the bill could not be maintained either as a bill to redeem a mortgage, or as a bill for the specific performance of a contract to convey land.</p>

<p>This court has no jurisdiction, under the Gen. Sts. c. 118, § 16, of a petition in the nature of an appeal by a creditor from the decision of the Court of Insolvency granting a discharge to a debtor, although since the St. of 1879, c. 245, § 4, the creditor cannot impeach the validity of the discharge in an action at law.</p>

Bill in equity to have certain real and personal estate, purchased in the name of the defendant, decreed to belong to a firm composed of the plaintiff and the defendant, and to be held in trust by the defendant for the benefit of the firm. Hearing before Devens, J., who found for the plaintiff ,• and the defendant alleged exceptions, which appear in the opinion.

The first case was an action of contract, under the Gen. Sts. c. 12, § 51, to recover of the defendant, as collector of taxes of the plaintiff town, the amount of the town tax for the year 1875. The second case was in tort, to recover of the defendant, as assessor of taxes of the plaintiff town, for neglecting to commit the tax list to the proper collector of taxes, whereby taxes to the amount of more than $500 were lost.

<p>A testator gave the sum of one thousand dollars in trust to pay the principal and accrued interest to his son when he should arrive at the age of twenty-one years; and gave to his wife the use, income and improvement of all the remainder of his estate, real or personal. His real estate consisted of an interest as tenant in common of an equity of redemption in a parcel of land. Held, on a petition by the executor for the instruction of the court as to the construction of the will, that the testator intended to give only one thousand dollars for the direct benefit of his son, and his wife took absolutely the rest of the personal estate; and that, under the petition, the court could not decide as to the real estate.</p>

Tort for injuries occasioned to the plaintiff’s premises in Randolph, by the negligence of the defendant’s servants in removing a ledge of rocks in the construction and alteration of a highway.

<p>Contbact upon an account annexed for goods sold and delivered to the defendant by the plaintiff’s intestate. Answer, a general denial.</p> <p>At the trial in the Superior Court, before Putnam, J., the plaintiff offered in evidence the book of original entries kept by his intestate, with his own oath and that of the intestate’s clerk. The defendant objected to its admissibility, on the ground that no measure, weight or quantity was given in connection with the several items charged. The judge ruled that this did not make the book incompetent evidence to be submitted to the jury, and admitted it.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions, of which the book was made a part.</p>

<p>Bill in equity, filed October 29, 1880, to redeem land from a mortgage.</p> <p>The bill alleged that, on August 1, 1879, the defendant corporation, through its agent in Newton, issued to John Schools, on payment of a certain premium, a policy of insurance against fire in the sum of $1600 upon certain premises in Medway, owned by Schools and subject to a mortgage" of $1500 to Margaret Houghton, dated July 19, 1876, payable in case of loss to the mortgagee as her interest might appear; that the policy provided that it should be void if the insured premises should become vacated without the consent of the company, and further that the insurance, “as to the interest of the mortgagee only therein,” should not be invalidated by any act or neglect of the mortgagor, and that, when a loss after a forfeiture is paid to the mortgagee, the company should be subrogated to the rights of the mortgagee under the mortgage to the extent of such payment, and might pay the full amount of the debt to the mortgagee, and should thereupon receive an assignment of the mortgage; that, on June 5, 1880, the buildings insured were destroyed by fire, and at the time were vacant and unoccupied; that Schools duly proved his loss, and his proofs of loss were accepted by the defendant, and it was afterwards agreed between them that the amount of the loss was $1200; that, on September 25, 1880, Houghton executed and delivered to the defendant an assignment of her mortgage, and the defendant paid to her the amount of the same, with interest, amounting to $1690; that, on June 17, 1879, the plaintiff lent Schools $700, and he executed and delivered to the plaintiff a mortgage of said premises, and, on October 27, 1880, Schools executed and delivered to the plaintiff a deed of his equity in the premises, and the mortgage and equity are now owned by the plaintiff; that the plaintiff tendered to the defendant the difference between the amount of its mortgage and interest accrued and any legal charges thereon, and the amount agreed upon as the loss by. fire under the policy, and requested the defendant to discharge and cancel the mortgage, and surrender the note secured thereby, and release and discharge its claim thereunder; and that the defendant refused so to do, unless the plaintiff would pay the full sum of its mortgage and interest accrued, and any legal charges thereon.</p> <p>The prayer of the bill was for an account; that the plaintiff might be permitted to redeem the premises by paying the amount tendered; that the defendant might be ordered to cancel and discharge its mortgage and release the claim thereby secured; and for further relief. The defendant demurred to the bill for want of equity.</p> <p>Hearing before JEndicott, J., who entered a decree sustaining the demurrer and dismissing the bill; and the plaintiff appealed to the full court.</p>

Writ of entry to recover a parcel of land in Brookline. Plea, nnl disseisin. At the trial in the Superior Court, before Colburn, J., the jury returned a verdict for the tenant; and the demandant alleged exceptions to the exclusion of certain evidence, the nature of which appears in the opinion.

<p>Two petitions for partition of certain lands in Dedham, owned at the time of her decease by Mary Fairbanks. The case was submitted to the Superior Court on agreed facts, from which it appeared that the question in dispute between the parties was as to what portions the residuary devisees took under the will of Mary Fairbanks. The clauses of her will material to this question were as follows:</p> <p>“ I give and devise to my three daughters, Prudence, Sarah and Nancy, and to their heirs forever, the dwelling-house in which I now live, and the furniture therein, and the lot of land on which said house stands, as said lot is now enclosed, containing about two acres, and the pew in the meeting-house.</p> <p>“ I give and devise to my daughter Prudence two fifths of all the residue of my estate, real and personal, to hold to. her and her heirs forever.</p> <p>“ I give and devise to each of my daughters Sarah and Nancy one fifth of all the residue remaining after the first devise above made to my said three daughters, to hold to them and their heirs forever.</p> <p>“ The remaining two fifths of my estate, real and personal, I give and devise to John Baker, 2d, of Dedham, sheriff of the county of Norfolk, to hold the same in trust for my son Joshua Fairbanks and his heirs.”</p> <p>The Superior Court ruled, in accordance with the contention of the petitioners, that, by the true construction of the will, Prudence took two fifths of the residue of said estate, Sarah and Nancy one fifth each, and Baker, as trustee, - one fifth; and ordered judgments accordingly. The first-named respondent, one of the heirs of Joshua Fairbanks, who died about 1864, appealed to this court.</p>

<p>Two actions OF contract, each containing a count in tort, to recover damages alleged to have been caused to the plaintiff’s mill by reason of the defendant’s dam setting the water back upon the same. Writs dated May 28, 1878. The cases were tried together in the Superior Court, before Aldrich, J., who directed a verdict for the plaintiff in each case; and reported the cases for the determination of this court. If the direction was right, judgments were to be entered upon the verdicts; otherwise, the verdicts were to be set aside; or, if erroneous in one case and not in the other, the verdict was to be set aside in that case, and judgment entered on the verdict in the other case. The facts appear in the opinion.</p>

<p>The declaration in an action against an insurance company alleged that the defendant made to the plaintiff a policy of insurance, and set out its legal effect; that the defendant was “ bound by the terms of said policy to pay the plaintiff a proportionate share as hereinafter set forth of said loss; ” that at the time of the loss the plaintiff held certain other policies of insurance upon the property destroyed, (naming the several companies which issued the policies,) “ amounting in the aggregate, including the policy issued by the defendant corporation,” to a sum stated, " and the said insurance companies were liable to the plaintiff under said policies for such portion of the loss sustained as the sum insured by each of said companies bore to the whole amount insured by all of said companies thereon, and the defendant corporation was liable for and bound to pay the plaintiff its said proportionate share, to wit” (naming a sum equal to the whole amount insured by the defendant). Held, on demurrer, that the declaration was sufficient.</p> <p>A motion to recommit an auditor’s report is addressed to the discretion of the court, and the decision thereon is not open to exception.</p> <p>In an action against an insurance company upon a policy of insurance against loss by fire, it appeared that proofs of loss were sent to the defendant in the same month in which the loss occurred, and no objection was made to their sufficiency; that during the same month the plaintiff and the agent of the defendant met and agreed upon an adjustment of the loss; that the defendant afterwards repudiated this adjustment, on the ground that the agent had no authority to make it, and wrote to the plaintiff refusing to pay “your claim at the maturity of the sixty days from the presentation of your formal proofs of loss,” and offering to meet the plaintiff with a view “ to explain our position and to have any explanation from you.” Held, that the defendant had waived the right to object at the trial that the proofs of loss were insufficient.</p> <p>Under a declaration on a policy of insurance against loss by fire, alleging that the plaintiff has performed the condition of the policy by giving proofs of loss, the plaintiff may show that the defendant has waived any informality in the proofs of loss furnished.</p> <p>If an action in two counts is properly tried on the second count, no exception lies to a refusal of the presiding judge to rule that there was a variance between the allegations of the first count and the proof.</p> <p>The question whether there was a variance between the allegations of a declaration and the proof, if not raised at the trial, is not open upon a report of the case.</p> <p>In actions against insurance companies upon policies of insurance against loss by fire, it appeared that, after insurance had been effected in several companies, the plaintiff made an addition to the building in which was the property insured, and that at the time of the loss a part of the property destroyed was in the addition; that, before this was done, permission was obtained from all the companies except one, whereby the insurance was extended to the property contained in the addition after its completion. In the case of one company, permission was given to erect the addition, “all policies concurrent.” It appeared that, at the time this permission was given, it was known to the agent who signed it that the other companies had given permission to erect the addition ; and that, by the terms of the permission, the other policies attached to the property in the addition when completed. Held, that the property in the addition at the time of the loss was covered by all the policies.</p>

<p>In an action by one town against another for the support of a pauper, it appeared that the pauper had no settlement in this Commonwealth, except one acquired under the St. of 1874, c. 274; that prior to 1865, being twenty-one years of age, he resided five years in the town of G., and paid the taxes assessed on him for three years within that time; that in 1865 he removed to the town of A., and continued to reside there for five years, and paid taxes assessed upon him for three years within that time ; and that he had since then gained no settlement elsewhere. Held, that, upon these facts, the pauper acquired a settlement in G., under the St. of 1874, c. 274, and that the town of A. was not liable for his support. Field, J., dissenting.</p>

<p>A person was mastered into the military service of the United States during the civil war as part of the quota of a town in this Commonwealth; and became a deserter from such service with no intention of returning thereto. Subsequently he surrendered himself as a deserter under a proclamation of the President of the United States, and was honorably discharged as a surrendered deserter. Held, on the issue whether he had “ duly served ” one year, within the St. of 1878, c. 190, § 1, cl. 10, so as to entitle him to a settlement in the town of whose quota he was a part, that the time he was absent as a deserter was to be excluded.</p>

<p>Bill in equity, filed June 21, 1880, by Charles W. Morse, and Hannah Gr. Morse, his wife, and Dwight Smith and others, trustees of the Methodist Episcopal Church of Athol, to obtain the cancellation of two mortgages on land in Athol, or, if the mortgages should be declared to be existing incumbrances on the land, to redeem the same. The case was referred to a master, who found the following facts:</p> <p>On July 6, 1846, Sumner R. Morse, who owned the premises in question, consisting of a lot of land with a house thereon, which he occupied as his homestead, made a mortgage of the same to Joseph Estabrook to secure the payment of $600 on demand with interest. On January 11,1863, Estabrook assigned the mortgage to Harriet A. Clark. Both the mortgage and the assignment were duly recorded. On December 11, 1870, Sumner R. Morse died, leaving a will, of which he appointed his wife, Mary T. Morse, executrix, and by which he gave to her in fee the rest and residue of his estate real and personal, and his homestead estate during her life, and, at her death, the homestead estate to Charles W. Morse and Hannah T. Morse, his wife, for their lives or the life of the survivor of them, and, after their death, to the Methodist Episcopal Church in Athol. At the time of his death, he was the owner of said homestead estate and occupied it as such, and it was subject to no incumbrance except the mortgage held by Clark, upon which the principal and interest for less than six months at six per cent per annum was then due. The will was not proved and allowed until November 6,1877. Sumner R. Morse left real and personal estate, and also owed several debts. Immediately after his death, his wife, acting as executrix, although she had not been regularly appointed as such, took possession of all his real and personal estate, sold portions of the real and all of the personal property, and paid his debts, and substantially settled his estate according to the provisions of the will. She received from his estate property more than sufficient to pay his debts and the amount due on said mortgage.</p> <p>For the purpose of acquiring the mortgage held by Clark upon said homestead estate, with a view to foreclose the same and thereby to acquire in his own name an absolute title to said estate for the benefit of Mary T. Morse, and to cut off and extinguish the interest of the plaintiffs for her benefit, Abner G. Stratton, the brother of Mary T. Morse, borrowed of his brother, Amos T. Stratton, the sum of $630, and with said money, on May 11, 1871, purchased and took an assignment of said mortgage from Clark; and on May 15, 1871, with the same purpose and intent, Abner G. Stratton, in the presence of two witnesses, made an entry under said mortgage upon said homestead estate for the purpose by him declared of foreclosing said mortgage for breach of the condition thereof; and afterwards said witnesses made a certificate under oath, as provided in the Gen. Sts. o. 140, § 2, which certificate, together with said assignment, was duly recorded in the registry of deeds, on May 17, 1871. After said entry Mary T. continued to occupy said estate, as she had done before, as her place of residence, except, however, that it was agreed between her and Abner G. that she should pay him the sum of S100 per annum, which was called by the parties rent for the use of the premises.</p> <p>Mary T. Morse knew of the purpose and intent of Abner G., as before stated, and after said entry and during the three years then next ensuing, upon inquiry being made of her by the plaintiff Charles W. Morse, whether she had paid the interest upon said mortgage, she fraudulently stated to him that she had, and fraudulently kept from him the fact that said mortgage had been purchased and an entry made as aforesaid.</p> <p>In purchasing said mortgage, making said entry, and allowing three years to expire without redeeming said mortgage, and keeping secret the fact of said entry from the plaintiffs, Abner G. and Mary T. acted in collusion, and with a fraudulent intent and purpose thereby to cut off and extinguish the interests of the plaintiffs in said estate under the will, and to secure the same for the benefit of Mary T.</p> <p>On June 27, 1874, Abner G. conveyed all his interest in said homestead estate to Mary T. On March 19, 1875, Mary T., acting individually and not as executrix, executed and delivered to the defendant Amos T. Stratton a mortgage upon said homestead estate to secure the payment of $600 and interest at six per cent per annum. Interest has been paid thereon to March 19, 1879, and said $600 and interest thereon from that date is now unpaid.</p> <p>Amos T. knew of the possession taken by Abner G. Stratton under said first-named mortgage, as he was one of the witnesses thereto and subscribed the certificate thereof; but the master did not find that he participated in the fraudulent intent and purpose of Mary T. and Abner G., or had knowledge of the collusion between them as above stated.</p> <p>Mary T. Morse died on March 2, 1880, leaving a will, which has been duly proved and alloAved, and by which said homestead estate was devised to the defendant Abigail Bassett as residuary devisee; Abigail was appointed executrix of said will, and gave a bond as provided by law; and the estate of Mary T. was more than sufficient to pay all her debts, including the mortgage note to Amos T. Stratton aforesaid.</p> <p>Until after the death of Mary T. Morse, the plaintiffs never knew or heard of the purchase of said mortgage by Abner G. Stratton from Clark, or of the possession of Abner G. taken thereunder; and they failed to make inquiries concerning said mortgage, and were misled in respect thereto by reason of the statements made by Mary T. to the plaintiff Charles W. Morse, at several different times after said certificate was recorded, that she was keeping the interest on said mortgage paid up. After the death of Sumner R. Morse, Mary T. had possession of said estate until her decease; and, immediately after her decease, Abigail Bassett entered into possession of the premises, and has retained the same ever since, and she has no other or greater interest in the property than Mary T. had at the time of her death.</p> <p>After the death of Mary T. Morse, and before the filing of this bill, the plaintiffs demanded of Abigail Bassett the possession of said homestead estate, which she refused to give them, or either of them, and claimed to hold the same under the will of Mary T. Morse.</p> <p>Upon the foregoing facts, the master found that the entry under the mortgage was not followed by any such possession as to effect the foreclosure of the mortgage, and that the mortgage had never been foreclosed; that the conveyance from Abner G. Stratton to Mary T. Morse operated as an assignment of the mortgage; that it was the duty of Mary T. Morse to apply the property of her husband to the payment of the mortgage, and that she and all parties claiming under her were estopped, as against the plaintiffs, from claiming any title to said land under the mortgage, or under any conveyance made by her; and that nothing was due from the plaintiffs to the defendants, or any of them, on account of said mortgage; that, by the mortgage made by Mary T. Morse to Amos T. Stratton, no interest passed which was valid as against the plaintiffs; and that the plaintiffs were entitled to a decree giving them possession of the homestead estate, and setting aside the two mortgages.</p> <p>Hearing before Devens, J., who reserved the case for the consideration of the full court, such decree to be entered as justice might require.</p>

<p>A., having his settlement in the city of N., entered the naval service of the United States, as part of the quota of the town of W., in 1864, and served until September 1866, when he was honorably discharged. His minor daughter was married in May 1866. Held, in an action by the city of N. against the town of W. for aid furnished the daughter in 1879, as an insane pauper, that, under the St. of 1878, c. 190, § 1, cl. 10, A. had acquired a settlement in W. for himself, his wife, and his minor children, at the end of one year’s service; and that the action could be maintained.</p>

<p>Bill oe interpleader by the executors of the will of Nathaniel Weston. The case as it appeared by the bill and answers, on which it was heard by Undieott, J., was as follows:</p> <p>Nathaniel Weston died on February 15, 1881, leaving, a will dated May 8, 1877, and a codicil dated September 5, 1878, both of which were duly admitted to probate.</p> <p>The will, after giving certain legacies, devised and bequeathed the rest and residue of the testator’s estate to trustees in trust to invest $6500, and pay over the income to persons named, and proceeded as follows: “ The residue to be invested and the income to be paid to my nephews Edward S. Weston, Henry E. Weston, William H. Weston and Lawrence W. Jenkins, during their lives. As each nephew dies, the share in the principal from which he derived his income shall be paid over to his issue if any, and, in default of issue, to whomsoever he may by will devise and bequeath the same or order it to be paid. And in default of issue and a testamentary disposal of the same, to my heirs at law. If issue take, they take in the same manner as if the deceased had died intestate possessed of the same.”</p> <p>The codicil was as follows: “In consequence of the decision of the court in relation to my father’s will, I revoke so much of my will as relates to my nephew Lawrence W. Jenkins, and make no provision for him.”</p> <p>The nephews named in the will are, and were at the testator’s death, the only heirs at law of said testator; and the residue left by the will for'the benefit of the testator’s nephews is large in amount, and consists almost entirely of personal estate.</p> <p>Lawrence W. Jenkins is the only son of Charles T. Jenkins and Lucy D. Jenkins, the sister of the testator. Nathaniel Weston, the father of the testator, died, leaving a will, which became the subject of litigation between his son Nathaniel, Edward S. Weston, Henry E. Weston, William H. Weston, Lawrence W. Jenkins, and Charles T. Jenkins as administrator of his wife’s estate. The case was heard before the Supreme Judicial Court of this Commonwealth, and was decided on August 31, 1878. The result of the decision was that about $40,000 remained in the hands of trustees for the benefit of Edward S., Henry E. and William H. Weston, and the residue of the estate was divided between Nathaniel Weston, the son, and Charles T. Jenkins, the share of each being about $200,000.</p> <p>On these facts, JEndicott, J. ordered a decree to be entered that the executors pay over to the trustees named in the will the residue of the estate, to be held in trust for the benefit of Edward S. Weston, Henry E. Weston and William H. Weston. The guardian ad litem of Lawrence W. Jenkins appealed from this decree; and the judge reported the case for the determination of the full court, such decree to be entered as law and justice might require.</p>

Contract for aid furnished to Dennis Lowney, a pauper. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court on appeal, upon an agreed statement of facts, in substance as follows: In December 1864, Dennis Lowney, having no settlement in this Commonwealth, was duly enlisted and mustered into the naval service of the United States as a part of the quota of the town of Warwick, under a call of the President of the United States…

<p>A policy of insurance against fire, upon personal property, contained the following provisions: “ If the property be sold or transferred, or upon the passing or entry of a decree of foreclosure, or upon a sale under a deed of trust, or any change take place in title or possession (except in case of succession by reason of the death of the assured), whether by legal process or judicial decree or voluntary transfer or conveyance, or if the interest of the assured in the property, whether as owner, trustee, consignee, factor, agent, mortgagee, lessee or otherwise, he not truly stated in this policy, then and in every such case this policy shall he void.” “If the interest of the assured be any other than the entire, unconditional and sole ownership of the property, for the use and benefit of the assured," the policy shall be void. After the policy was issued, the assured made a mortgage on the insured property, under which no possession had been taken by the mortgagee, and the sum secured by which was not due, at the time of a loss by fire. Held, that the policy was not thereby avoided.</p>

<p>An action by an assignee in bankruptcy against an officer holding the proceeds of a sale of goods of the bankrupt, “ to be disposed of according to law,” under an attachment made within four months of the commencement of the proceedings in bankruptcy, is not barred by the TJ. S. Rev. Sts. § 5057, if begun within two years after demand and refusal, although not begun until eleven years after the attachment, in consequence of the negligence of the assignee in ascertaining the existence of such attachment.</p>

<p>A testator gave specific legacies to his widow and to his brother; and devised the remainder of his property, real and personal, to his widow for life, and, at her death, “ to my legal heirs as the law provides, other than those hereinbefore mentioned.” The testator left surviving him his widow, his brother before mentioned, a niece, the daughter of the same brother, and certain uncles and aunts. Held, that, after the death of the widow, the niece was entitled to the remainder.</p>

<p>In an action against a city for personal injuries occasioned to a woman by a defect in a highway, the evidence showed that after the injury, which consisted of a broken limb, she was taken to her home, one of her daughters assisting her; that while there she told her husband about the accident and the place of it, and he went to see the place; that afterwards she was- taken to a hospital, and, while there, was of clear mind, and was visited occasionally by different members of her family during the thirty days which followed the accident. Held, that there was no evidence that, from physical or mental incapacity, it was impossible for her to have given notice of the injury within thirty days, within the St. of 1877, c. 234, § 4.</p>

<p>The first case is an appeal by a creditor from the decision of commissioners appointed by the judge of probate, under the Gen. Sts. c. 99, § 2, to examine and allow claims against the insolvent estate of Jonathan Russell, deceased, allowing a claim of Edward H. Green, one of the executors of the will of said Russell.</p> <p>The second case is an appeal by a creditor from a decree of the Judge of Probate, under the Gen. Sts. e. 97, §§ 26, 27, allowing the same claim.</p> <p>The cases were heard together, by Colt, J., who found that the claim of Green should be allowed against the individual estate of Jonathan Russell, and that a proper judgment or decree should be entered to that effect, in the first or second case, as the full court should determine; and reported the cases with the evidence for the determination of this court; such judgment or decree to be entered as justice might require. The facts appear in the opinion.</p> <p>The cases were argued in January 1881, by R. B. Smith C. A. Prince, ,for Green, and by J. A. Grillis L. S. Tuclcerman, for Garcia; and reargued in March 1882, by Smith, (Prince with him,) for Green, and by A. L. Huntington, (Tuckerman with him,) for Garcia.</p>

<p>The St. of 1867, c. 59, so far as it prohibits a person, during the time of holding a camp or field meeting for religious purposes, and within one mile of the place thereof, from establishing or maintaining a building for vending provisions or refreshments, without permission from the authorities or officers having the charge or direction of the meeting, provided, that a person having a regular, usual and established place of business within such limits is not required to suspend his business, is constitutional.</p> <p>It is not necessary to the maintenance of an indictment under the St. of 1867, c. 59, for establishing and maintaining a building for vending provisions and refreshments, during the time and within one mile of the place of holding a camp-meeting for religious purposes, without obtaining permission from the authorities or officers having the charge of the meeting, to show that there was a formal organization of the meeting, or that notice of the meeting was given to the defendant.</p>

<p>A complaint by Charles J. Rock alleged that the defendant, at a time and place named, “unlawfully did sell intoxicating liquors to Charles Rock aforesaid.” At the trial, the complainant testified to a sale to himself by the defendant of intoxicating liquor at the time and place alleged; and further testified that his proper name was Charles J. Rock; that he was so baptized; and that he was called Charles Rock, and was as well known by that name as by the name of Charles J. Rock. Held, that there was no variance between the allegations of the complaint and the proof.</p>

Indictment, under the Gen. Sts. o. 160, § 34, in two counts.

<p>Indictment for conspiracy. The second count, upon which the defendants were tried, was as follows:</p> <p>“ And the jurors for the Commonwealth of Massachusetts, on their aforesaid oath, do further present, that Gardner F. Fuller, otherwise called Gardner A. Fuller, E. Frank Mosher and Abiel W. K. Newton, all of said Boston, wickedly devising and intending to cheat and defraud one Daniel Goodnow, on the eighteenth day of July, in the year aforesaid, at said Boston, did unlawfully conspire, confederate, combine and agree together, falsely, knowingly, designedly and fraudulently, to cheat and defraud the said Goodnow out of a large quantity of goods, wares and merchandise, and one vessel called the Barque Western Sea, of the property of him, said Goodnow, that is to say: three hundred bales of cotton, each of the value of forty dollars; one hundred and twenty-two bags of wool, each of the value of eighty dollars; eight hundred and seventy-three pounds of tea, each of the value of fifty cents; eight hundred and fifty-three gallons of punch, each of the value of two dollars; fifty kegs of pickles, each keg the value of three dollars; one machine, called a ‘picker,’ of the value of fifty dollars; sixty bottles, each of the value of one dollar; twenty-three cases of wine, each case of the value of twenty dollars; one vessel, called the Barque Western Sea, of the value of four thousand eight hundred dollars; by means of the false and fraudulent pretences thereafter to be made to said Goodnow by him, said Fuller, that he, said Fuller, had lately theretofore received an order from the Pepperell Manufacturing Company, in Biddeford, in the State of Maine, to buy for and on the account of said company, for its use in its mills there in said Biddeford, the cotton hereinbefore described; that he, said Fuller, had lately theretofore received an order from said company, and said company had given him, said Fuller, the authority to buy for said company, and on its account, the wool hereinbefore described, and that said company was in the habit of using said wool in its mills in said Biddeford, and in the manufacture of cloth there in its said mills; that said company, there in said Biddeford, had a shop and store in which it commonly sold groceries, teas and wines, and that said company had given him, said Fuller, an order and the authority to buy for it, and on its account, the tea, and wine, and bottles hereinbefore described, for sale by it, said company, there in its pretended shop in said Biddeford; that said company had given him, said Fuller, an order, and the authority to buy for it, and on its account, the machine and picker hereinbefore described, for use in its mills there in said Biddeford; that said company, because it was in difficulty about the rates of freight upon the railroads between said Boston and said Biddeford, and because it needed for use in its business in said Biddeford a vessel, had authorized him, said Fuller, to buy for it, and on its account, a vessel, in which to ship and carry all the goods and articles hereinbefore described, from said Boston to said Biddeford, and had given him, said Fuller, such authority to buy for its account the vessel there called the Barque Western Sea; that said Abiel W. K. Newton, whom he, said Fuller, should introduce and present to said Goodnow, and who, said Newton, should, in the presence of him, said Goodnow and said Fuller, examine said cotton, and said wool, and said wine, and said punch, and said tea, and said machine, was the agent of said Pepperell Manufacturing Company, and was the person, on its behalf, who had given him, said Fuller, all the aforesaid orders and authority, and was examining all 'said articles, wares, and merchandise for the purpose of confirming such authority and orders to him, said Fuller, so to be falsely pretended to said Goodnow; that said E. Frank Mosher, whom said Fuller should take to, and introduce and present to, said Goodnow, and who should say to said Goodnow, that the statements of said Fuller to said Good-now about him, said Mosher, were true, was the person who had just then been sent by said company, from said Biddeford, to take command of and charge of said vessel, and all the goods and articles aforesaid, for and on behalf of said company, and that said company had just then paid to said Mosher a month’s salary for such service, in advance, and that he, said Mosher, had just come in to said Boston from said Biddeford; that said company desired him, said Goodnow, to make a delivery of all said goods, wares, and vessel, upon a credit of ten days, and to deliver the same to said Mosher, as and for a delivery to said company, by him, said Goodnow, upon such credit to it, said company: to the great damage of said Goodnow, and against the law, peace, and dignity of said Commonwealth.”</p> <p>In the Superior Court, before the jury were empanelled, the defendants jointly moved to quash the indictment for the following reasons: “ 1. The first count of said indictment is insufficient in law, uncertain, and indefinite. 2. The same is true of the second count; and neither count sets forth any act constituting the offence charged. 3. The second count sets forth no overt acts constituting the offence charged. 4. Neither count sets forth any act done by either Mosher or Newton; it charges no act done by Fuller, except by inference and implication; it nowhere appears that the acts done by any one were knowingly assented to by either of the other defendants.”</p> <p>The defendant Mosher separately moved to quash the indictment, for the following reasons: “ 1. In neither of the counts in said indictment does it appear that the acts alleged, or any of them, were unlawful or criminal acts, and no unlawful or criminal act is alleged. 2. The indictment does not aver that the defendants performed the acts alleged for the purpose of effecting any wrong or injury to Goodnow, or for the purpose of effecting any wrong or injury whatever. 3. It does not aver that the acts alleged to have been performed did result in any wrong or injury to Goodnow. 4. The purpose alleged, and the acts alleged, and as alleged, are insufficient to sustain any charge of conspiracy cognizable by the laws of this Commonwealth. 5. The indictment sets forth no illegal means agreed upon,, or consented to, by the parties, and does not charge a conspiracy to do a criminal act, or effect an object by any criminal means; and the allegations, respecting the purpose and object and means, are insufficient and insufficiently stated.”</p> <p>Staples, J. sustained the motions as to the first count, and overruled them as to the second count. The jury returned a verdict of guilty against Fuller and Mosher, and not guilty against Newton; and Mosher alleged exceptions.</p>

Tort, under the St. of 1879, c. 297, in two counts. The first count alleged that, on February 26, 1880, the defendant, in a building occupied by him in Holyoke, sold and gave to Jeremiah Harrington, the plaintiff’s husband, intoxicating liquor, which caused his intoxication, in whole or in part; and that, in consequence of such intoxication, the plaintiff was injured in her means of support.

<p>Bill in equity, filed January 9, 1879, under the Gen. Sts. c. 113, § 2, cl. 11, against Isaac R. Clark and Julia E. Ranney, to reach and apply to the defendants’ debts to the plaintiff, his equitable interest in real estate conveyed in mortgage by said Clark to Ranney, alleged to be for the benefit of the plaintiff, and to have a trust declared for his benefit in the mortgaged property.</p> <p>Hearing, on the report of a master and exceptions thereto, before Lord, J., who ordered a decree to be entered in favor of the plaintiff, and reported the case, which appears in the opinion, for the consideration of the full court.</p>

<p>Writ or entry, dated June 28, 1880, to recover a parcel of land in Lancaster. Plea, nul disseisin. Trial in the Superior Court, before Aldrich, J., who reported the case for the determination of this court, in substance as follows:</p> <p>The demandant duly attached the demanded premises on April 23, 1878, as the property of Elias W. Smith, the husband of the tenant, upon a writ against Elias W., alleging the title to fraudulently stand in the name of his wife; and on January 24, 1880, upon the execution obtained in this action against Elias W., and the levy thereunder, the premises were duly sold, and the demandant became the purchaser at the sale, and received a deed from the officer, dated January 24, 1880. Said execution and levy and deed were duly recorded, and this writ of entry was brought to recover the premises, on the ground that they were purchased and directly or indirectly paid for by Elias W. Smith, and conveyed to the tenant-with the intent to defeat, delay and defraud the creditors of Elias W.</p> <p>The premises had been conveyed to the tenant by Sewell Day, by deed dated May 7, 1873, and the demandant contended, and offered to show, that said conveyance was fraudulent as to the creditors of Elias W. Smith, who was insolvent at the time.</p> <p>It appeared that one George Oliver had, on September 11, 1877, caused said premises to be duly attached in an action brought by him against Elias W. Smith, on the ground that the title fraudulently stood in the name of the tenant. Oliver duly recovered judgment in said action, and duly levied his execution thereon, June 6, 1878, and himself became the purchaser under the levy of said execution, and received a deed from the officer as such purchaser on July 13, 1878, and on August 14, 1878, brought a writ of entry against the tenant and her husband to recover said premises. On February 1, 1879, Oliver made an assignment to Drusilla J. Lunt of all his right, title, interest, claim, demand or estate in or to said writ of entry, and also all his interest in or to the land covered by said writ, which he then had or which might accrue to him by virtue of any judgment thereafter entered or obtained, with full authority to prosecute said writ to final judgment in his name, or otherwise to dispose of the same; and upon the same day, and as a part of the same transaction, Oliver gave to Lunt a quitclaim deed of said premises, with special covenant of warranty against all persons claiming by, through or under him. On the same day, Lunt gave to the tenant an agreement under seal to convey to the tenant, her heirs or assigns, or to such persons as might be entitled by will to her real estate, said premises, upon request made, with the proviso that the tenant was to retain possession of said premises, and receive rents and profits, and pay all taxes and assessments, and indemnify Lunt in reference thereto; and on July 22, 1879, Lunt gave to the tenant a quitclaim deed of said premises. Said assignment, agreement and deeds were recorded.</p> <p>At December term 1879 of the Superior Court, the tenants were defaulted in the writ of entry brought by Oliver, and judgment entered upon the default, and execution issued for possession.</p> <p>On January 6, 1880, the officer delivered seisin of said premises to Oliver, 'through F. P. Goulding, Esq., acting as his attorney. Said execution was duly returned and recorded. Goulding was attorney for the tenant in the writ of entry brought by Oliver, and, under the assignment from Oliver to Lunt and the agreement given by Lunt to the tenant, and under verbal instructions from Lunt, acted for Oliver in said writ of entry after February 1, 1879, in obtaining said judgment and receiving seisin of said premises.</p> <p>The demandant contended, and offered to show, that said assignment and deed from Oliver to Lunt, and said agreement and deed from Lunt to the tenant, were all parts of the same transaction ; that the same were done by the tenant and her husband with the fraudulent intent of delaying, defeating and defrauding the creditors of the husband ; that the writ of entry of Oliver was carried on fraudulently by the tenant, after February 1, 1879, for the purpose of attempting to perfect the title to said premises in herself, in order to prevent the creditors of her husband from attaching and levying upon the same; and that said writ of entry of Oliver was fraudulently brought by the tenant and her husband with such fraudulent intent.</p> <p>The demandant admitted that the said attachment and levy and writ of entry of said Oliver were valid and regular, and that all the proceedings of said Oliver against said tenant and said E. W. Smith were regular and valid up to February 1, 1879, when said assignment and agreement were made.</p> <p>The tenant asked the judge to rule that the alleged fraudulent intent of the tenant and E. W. Smith in taking the assignment and deed from Oliver, and in the subsequent proceedings, was immaterial; and that, on the facts above stated and agreed, the tenant was entitled to a verdict.</p> <p>Upon the above facts and offer of evidence, the judge ordered a verdict for the tenant. If the order was correct, judgment was to be entered on the verdict; otherwise, the verdict to be set aside, and a new trial ordered.</p>

Bill in equity, by Frederick A. Funck and William H. Haskell against John Haskell, to settle the affairs of a partnership, which was alleged to have been carried on from March 23, 1874, to January 3, 1876, under the following articles: “We the undersigned Frederick A. Funck and William H. Haskell of Fall River in the county of Bristol and State of Massachusetts, do hereby agree to enter into copartnership for the purpose of doing roofing business and such other business as…

<p>Tort for breaking and entering the plaintiff’s close in Dighton, and trampling upon and destroying corn, potatoes and grass growing thereon. The defendant Perry justified under a right of way by necessity across the plaintiff’s land to and from his own land, and the other defendants justified as servants of Perry. Trial in the Superior Court, before Allen, J., who allowed a bill of exceptions, in substance as follows :</p> <p>A plan was introduced at the trial for the purpose of showing the relative position of the plaintiff’s and Perry’s lot, the way as claimed by the defendants, and the highway.</p> <p>Perry’s lot was a salt marsh containing about an acre and a half. Its annual crop was from one to two tons; and a portion of the lot was woodland.</p> <p>The defendants offered evidence tending to show the existence of an ancient cartway leading from Perry’s premises across the plaintiff’s premises in a certain line.</p> <p>The defendants contended that the way had been anciently located in this line of travel, and that they were travelling in this way at the time of the alleged trespass; and offered evidence tending to show that the owners of the Perry lot and their servants and employees, from the earliest recollection of the witness down to the present time, had always passed and repassed between said highway and lot in this particular way, whenever they had occasion to go or come from said lot; there was no evidence that any one of them ever went in any other direction.</p> <p>The defendants’ evidence tended to show that this way was used nearly every year by the owners of the Perry lot from about 1824 to 1834; and, after that, only occasionally, they generally selling the grass to different persons.</p> <p>The plaintiff contended, that there was no ancient cartway; that if the defendants had any way by necessity through his lot, it had never been defined or located, and was only a right to go in such place and direction as the plaintiff might point out, whenever there was occasion to cross said premises; and he called several witnesses, who testified that they had for several years purchased the standing grass on Perry’s lot, and that there was no visible cartway leading across the plaintiff’s lot; and they were also permitted to testify, against the defendants’ objection, that, in carting hay from said lot, they had crossed the plaintiff’s lot in different places and directions, from year to year, in such way and manner as the plaintiff requested, and that they had paid the plaintiff certain sums of money for crossing said premises. The evidence tended to show that this had been the course of things for twenty-five years prior to about 1876. There was no evidence that any of these acts were done by the direction or with the knowledge or consent of any of the owners of the Perry lot. To the admission of this evidence the defendants excepted.</p> <p>The defendants, on cross-examination of the plaintiff, and before the introduction of the testimony excepted to, asked him how the grass had been taken off of the Perry lot during the thirty or more years that he had known the premises, and asked him to ñamé the persons who had carted it off from time to time, and to tell what way they took it off. The plaintiff, in reply to these questions, named the persons who had taken it off, and told in what directions and by what ways they took it, which were usually across the plaintiff’s lot. The testimony afterwards admitted and excepted to was in referenee to the persons named in this answer of the plaintiff.</p> <p>The jury returned a verdict for the plaintiff; and the defendants alleged exceptions.</p>

<p>Underwriters issued an open policy of insurance to their agents on account of whom it might concern, “ as per certificates ” issued, on merchandise from A. to B. by railroad and from B. to C. by steamer; and to cover such other risks as might be indorsed thereon. The policy contained this clause : “Beginning the adventure upon the said goods and merchandises from and immediately following the loading thereof on board the said vessel at as aforesaid, and shall continue and endure until the said goods and merchandises shall be safely landed at as aforesaid.” The agents issued a certificate to a person, which stated that they had entered on an open policy, referring to it by its number, and it being the one above set forth, a certain risk on cargo by a schooner from D. to E., “ loss to be adjusted in conformity with the conditions of said policy.” The insured had no knowledge of the existence in the policy of the clause above set forth. Held, in an action for the loss of the cargo by a peril insured against, that there was no warranty that the cargo should be loaded at D.</p>

Tort, by Charles H. Sanborn and Charles H. Packard, co-partners doing business under the firm name of Sanborn and Packard, for breaking and entering the plaintiffs’ close in Boston, and taking and carrying away certain articles of personal property belonging to them, with a count in tort for the conversion of the same. The defendant, a constable of the city of Boston, justified under a writ against Packard, by virtue of which he attached the property in question. .

<p>Certain promissory notes, secured by a mortgage of land, the property of R., the mortgagee, were deposited by him in a bank, of which he was a director, in a package with other securities, under an agreement that they were all to be held as collateral security for his' liability to the bank. R. was accustomed to add securities to this package, and to take securities away from it, with the consent of the officers of the bank; and, in January 1876, he took away these notes, with the permission of the cashier, and assigned them and the mortgage to W. for their full value; but the assignment of the mortgage was not recorded until May 1877. W. requested R. to take charge of the notes for him, and R. placed them in his package at the bank, and collected the interest as W.’s agent. The mortgage was never in the bank, and no inquiry was made there in relation to it until May 1877, when the credit of R. had become bad. Neither the president, nor any director, except R., knew that the notes had been taken from the bank, and no one connected with the bank knew that he had disposed of them, until he was asked to assign to the bank the several mortgages held by it as collateral security. At the time the notes were first left at the bank, and up to the time of his failure, R.’s debt to the bank had been much greater than the amount of these notes, but much less than the value of all his securities left with the bank. The notes had been relied on as part of the collateral security in making loans to R.; and, prior to January 1876, R. had spoken of them as valuable, but they were not alluded to between R. and the other directors after that time. In July 1876, the bank lent R. a certain sum, relying upon his package of securities as collateral security. At that time the package contained W.’s notes, and other securities, including some bonds, which were worth more than the amount of the loan. These bonds R. was allowed, after that time, to take away and dispose of for his own benefit. The directors and officers of the bank had no actual knowledge of the return of W.’s notes, and did not rely upon them as security for any loan afterwards made to R. R. acted in good faith in selling the notes and mortgage to W., believing his debt to the bank to be much less than the value of his other securities deposited there, and having forgotten that he had given the agreement as to collateral security. W. had no knowledge of this agreement. Held, that these facts warranted a finding that R. never intended that the notes, after they were again put in the bank, should form part of the collateral security, and that the bank did not hold them as such, nor rely upon them in making loans to R.</p>

<p>On December 21, 1881, tbe following order was adopted by the Governor and Council, and transmitted by the Governor on December 28 to the Justices of the Supreme Judicial Court.</p> <p>Ordered, That the opinion of the Justices of the Supreme Judicial Court be asked on the following important question of law:</p> <p>Does an officer of the militia, elected and commissioned after the passage of chapter 204 of the acts of the year 1876, and before the passage of chapter 265 of the acts of the year 1878, continue to hold office after the expiration of five years ? .</p>