Volume 134 — Massachusetts Reports

<p>Contract upon an account annexed for $25, for services in procuring a pension for one Belinda French.</p> <p>At the trial in the Superior Court, before Pitman, J., it appeared that the plaintiff was the attorney of record who prepared the papers and rendered the necessary services in procuring a pension from the United States government for Belinda French; and that the plaintiff had, upon the obtaining of such a pension, received a fee of $10, through the pension agent at Boston, as allowed by the department.</p> <p>The plaintiff offered evidence tending to prove that he was originally employed by the defendant to procure such pension; and that the defendant promised to pay him for such services as much as they were reasonably worth. It was admitted that there was no agreement in writing between the plaintiff and the defendant, or with the pensioner or any other person, as to the amount to be paid the plaintiff for his services.</p> <p>The defendant contended that the provisions of the U. S. Rev. Sts. §§ 4785, 4786, 4768, 4769 and 5485 barred the claim of the plaintiff. The plaintiff contended that, if his contract was made with the defendant, and not with the pensioner, these provisions of the statutes had no application to his case. But the judge ruled otherwise; and instructed the jury that the plaintiff could recover nothing, having already received the fee prescribed by law for such services.</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Tort against the manager of the Troy and Greenfield Railroad and the 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. After the former decision, reported' 132 Mass. 28, the case was tried in the Superior Court, before Knowlton, J. The jury returned a verdict for,the defendant; and the plaintiff alleged exceptions, which appear in the opinion.</p>

<p>Appeal from a decree of the Probate Court, granting to Elisha Wells, the administrator de bonis non, with the will annexed, of the estate of Emily Smith, leave to sell the real estate of the deceased for the payment of debts and legacies, on a petition dated January 21, 1882. The case was submitted to the judgment of this court upon an agreed statement of facts, in" substance as follows:</p> <p>Emily Smith, who was a married woman, died on November 9, 1873, leaving a will, in which her husband was named as executor, and which, after giving several legacies, one of which was a sum of money and all her furniture and wearing apparel, and providing for the erection of a monument to herself, contained the following clause: u I give and bequeath to Roland Smith, my dear husband, all the residue of my estate, both real and personal, except my household furniture and wearing apparel. Said Smith is to keep in good repair all the buildings during his lifetime.” On December 2, 1873, the will was duly proved and allowed, and Roland Smith was appointed executor, and gave bond as required by law. The testatrix, at the time of her decease, was seised and possessed of a certain messuage and buildings, with land adjoining, as a homestead, in which she dwelt with her husband, the value of which, at the time of her decease, exceeded the amount of the legacies and reasonable charges of administration. She was not possessed of, and did not leave, any other property or estate, real or personal, which has come to the possession or knowledge of the appellant or appellee. She left no debts to be paid out of said estate; and her executor never filed an inventory or rendered an account in the Probate Court. Roland Smith continued to occupy said estate until his death, which occurred on November 16, 1881. He never paid the legacies bequeathed by the will, or in any way assented to them; and no demand was at any time made upon him by any of the legatees for the payment of the legacies, or any action or proceeding at law or in equity brought to enforce or obtain them. No monument was ever bought or erected, as provided by the will. Roland Smith, on April 20,1874, was married to the appellant, who has since lived on said homestead. Roland Smith, as directed by the will, kept the buildings in good repair during his lifetime, and paid out, in addition, a certain sum for improvements. He died on November 16,1881, and by his last will, duly executed, devised said estate and his other property in trust for the use of his widow and his sister for life. The will has been filed in the Probate Court, but has not yet been proved. The appellant has not relinquished her right of dower in the premises. Since the death of Roland Smith, administration has been duly granted to the appellee upon the estate of Emily Smith.</p> <p>It is contended by the appellee that said estate and homestead is, by the terms of the will, and on the facts above stated, liable to be taken and sold, and the proceeds applied on such trusts as remain to be discharged under said will.</p> <p>It is contended by the appellant that there are no debts, legacies, or other trusts, remaining to be discharged under said will, which entitle the administrator to sell said estate, or render it liable to be taken and sold to pay the legacies or other charges.</p> <p>If, upon the foregoing facts, there are any legacies, debts or charges of administration due from said estate, for the payment of which the estate and homestead can be lawfully sold by the administrator, the decree of the Probate Court is to be affirmed; otherwise, to be reversed.</p> <p>Hearing before O. Allen, J., who reserved the case for the consideration of the full court.</p>

<p>. U the certificate of a presiding judge, under the Pub. Sts. c. 198, § 6, relating to costs, that an easement is concerned in an action, is based upon a ruling on a question of law, to which exception is taken, such ruling may be revised by this court.</p> <p>In an action against a railroad corporation for diverting surface water and turning it upon the plaintiff’s land, the evidence tended to show that the embankment of the railroad obstructed the flow of the surface water from the hills and down a ravine; and that the defendant had dug a ditch on the upper side of the road, and had thereby conducted said water a distance.of several rods, and discharged it, through a culvert under the road, upon land of the plaintiff, where it had not been accustomed to flow. The defendant claimed the right to do this, on the ground that it was necessary to the proper construction and maintenance of the railroad. The jury returned a verdict of one dollar for the plaintiff. The question then arose as to the right of the plaintiff to costs; and the defendant asked the judge to rule that, “if the right claimed at the trial existed merely as incident to the right to construct and maintain a railroad, it would not constitute an easement.” The judge “ declined so to rule, and ruled to the contrary ”; and thereupon made a certificate that a right to an easement was in fact involved in the action. Held, that no error appeared.</p>

<p>Tort, for breaking and entering the plaintiff’s close in North-field. Writ dated August 6, 1880. Answer: 1. A general denial. 2. That the acts alleged to have been committed by the defendants were done by them, as a committee of a school district in Northfield, in a place laid out by the original proprietors of the town in 1684 as a highway, and that in 1728 the said proprietors made a grant to the plaintiff’s grantor of land abutting upon the highway, no part of which was included within the highway.</p> <p>At the trial in the Superior Court, before Colburn, J., the judge ruled that the action could not be maintained, directed a verdict for the defendants, and reported the case for the determination of this court. If the ruling was right, judgment was to be entered on the verdict; otherwise, the verdict to be set aside, and a new trial granted. The facts appear in the opinion.</p>

Contract upon an account annexed, by the assignee in bankruptcy of John Hood, for goods sold and delivered by the bankrupt to the defendant. Writ dated September 13, 1881. Answer: 1. A general denial. 2. The statute of limitations, U. S. Rev. Sts. § 5057.

<p>Bill in equity, by certain members of the New England Pigeon and Bantam Society, a voluntary association, against Lewis J. Powers and Charles S. Lincoln, to compel the defendants, as members of the society, to contribute their respective proportions of the amount of money lost on account of a public exhibition of the society, which loss the plaintiffs have been obliged to pay, and have paid in full.</p> <p>At the hearing before W. Allen, J., William G. White, one of the plaintiffs and the treasurer of the society, testified substantially as follows: The New England Pigeon and Bantam Society was organized at Springfield on April 4, 1878, and the persons mentioned in the bill were members thereof. The object of the society was to" hold public exhibitions of pigeons and bantams, and the awarding of money premiums thereat, by judges selected for the purpose. The second meeting of the society was held on July 10,1878, at which meeting a constitution and by-laws were adopted, by vote of the members present.* At this meeting, it was also voted that the society give a public exhibition in Springfield on December 10, 11, 12 and 18, 1878, and that the control and management of the same be referred to the board of directors. At a meeting of the society, held on July 31, 1878, a premium list of the exhibition was adopted by vote of the society. This premium list contained an accurate statement of all premiums that were offered and to be awarded at said exhibition, and the amount of money which would be required to pay the same. It also contained the rules which had been adopted for the management of the exhibition, and the constitution and by-laws of the society. At this meeting, the defendant Lincoln was present, and joined the association. A copy of this premium list was sent to every member of the association as soon as printed, which was directly after this meeting. The defendant Lincoln acted as judge at the exhibition referred to, and awarded a part of the premiums offered in said premium list.</p> <p>White also testified that he personally requested the defendant Powers to join the society, informed him that there was to be a public exhibition at the time before stated, and desired his assistance at said exhibition; that he told Powers the amount which had been offered for premiums and the probable expenses of the exhibition, and sent him a copy of the premium list; that Powers objected to joining the society because it was not incorporated, and because he would be personally responsible in case of loss; that the witness told Powers that the society had voted to instruct the president to procure an incorporation of the society, and, after it was incorporated, there would be no personal liability; that Powers consented to become a member of the association, and that no meeting of the society was held after he became a member.</p> <p>White also testified that no record was kept by the secretary of the doings of the society at its various meetings; that the exhibition was held under the management of the board of directors, and resulted in great loss, and the plaintiffs had paid the same; that, previous to the exhibition, a subscription paper to raise a fund to guarantee the society against loss was subscribed by a few members of the society, and by a number of persons who were not members thereof, but the money thus raised was not sufficient to pay the loss; and that the money paid by the plaintiffs was almost entirely in payment of the premiums awarded at said exhibition.</p> <p>Lincoln testified that he received by mail a copy of the premium list referred to after it was printed, but did not read it, and was not familiar with its contents until a few days before the exhibition; that he had no knowledge of the provisions of the constitution and by-laws prior to its reception by mail, and prior to his becoming a member; that he acted as judge at said exhibition at the request of the officers of the society; and that he had before acted in the same capacity at other exhibitions of other societies.</p> <p>Powers testified that he joined the society, if he joined it at all, some time during October or November 1878; that, after the conversation testified to by White, he consented to have him present his name for membership, and paid him the initiation fee of $3; that he had no recollection of receiving the premium list and constitution and by-laws referred to; that he never received any notice of a meeting of the society, and never attended any; that he took no part in the exhibition, but attended it, and paid his admission fee thereto the same as others did.</p> <p>The judge ruled that the evidence was not competent and sufficient to maintain the bill; ordered that the bill be dismissed; and, at the plaintiffs’ request, reported the case for the determination of the full court. If the ruling was correct, the decree was to be affirmed; otherwise, such decree to be entered as the court might direct.</p>

<p>A paroi release of a judgment for money, in consideration of the payment of a less sum, is invalid, although such release is indorsed upon the execution issued in the original action.</p>

<p>At the trial of an action for breach of an agreement to save the plaintiff harmless from all loss by reason of any liens and encumbrances upon a horse, alleged to have been bought by the plaintiff of a third person, an affidavit put in evidence tended to show that the plaintiff bought the horse of the defendant. The judge instructed the jury that, “if the testimony as given in the affidavit is a full and true statement of the contract and arrangement whereby the plaintiff obtained the horse, he cannot recover in this action, because the contract therein stated is materially different from that set out in the declaration.” Held, that the plaintiff had no ground of exception.</p> <p>At the trial of an action for breach of an agreement to save the plaintiff harmless from all loss by reason of any liens and encumbrances upon a horse, alleged to have been bought by the plaintiff of L., and on which the defendant held a mortgage, and of a warranty that the horse was free from all encumbrances, the answer to which set up the statute of frauds, the plaintiff asked the judge to rule that “ if the defendant said to the plaintiff, ‘ I will guarantee the horse to you in case you will buy him of L.,' that contract would not be within the statute of frauds; ”' and that “ if the plaintiff said to the defendant, ‘ I will buy the horse of L. if you will guarantee the title, but not otherwise,” and the defendant said, ‘ All right, I will so guarantee the title if you will pay me $60 of the purchase money,” that contract would not be within the statute of frauds.”' The judge declined so to rule, but gave full general instructions upon the statute of frauds, which were not excepted to, and which did not appear in the bill of exceptions. Held, that the plaintiff had no ground of exception.</p>

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

<p>Contract, upon an account annexed, for the price of a monument. The answer set up, among other things, that the contract was for a monument and two tablets to be made and erected in the defendant's cemetery lot; and that the plaintiff had not performed or offered to perform this contract. At the trial in the Superior Court, before Hnowlton, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>Contract, brought for the benefit of Julius D. Whipple and A. F. Jones, for a sum of money alleged to be due them from the defendant, under an assignment to them by the plaintiff of all claims and demands for money due and to become due for services as a laborer in the employ of the defendant from November 1, 1879, to November 1, 1880. Trial in the Superior Court, without a jury, before Mason, J., who found and ordered judgment for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>A declaration alleged that the parties made a contract, whereby the plaintiff agreed to manufacture roller-skates for the defendant, for an indefinite time, to the extent of the facilities which the plaintiff then had to manufacture them at his factory; that, for that purpose, the defendant ordered the plaintiff to procure and keep on hand for the defendant at all times, during the continuance of the contract, at least two weeks’ supply of stock and parts of skates, so that the plaintiff might be able to keep his said factory running at its full capacity at all times; that, pursuant to said contract, the plaintiff entered upon the manufacture of skates, and, in accordance with said order, procured and kept at all times, during said contract, at his factory, for the purpose of manufacturing skates for the defendant, a large quantity of stock and parts of roller-skates; that, on a day named, while the plaintiff was manufacturing skates under this contract, and had on hand two weeks’ supply of stock and parts of skates, the defendant ordered him to desist from the manufacture of skates and to manufacture no more for him; that the value of the stock and parts of skates on hand was a sum stated; that the defendant directed him not to use said stock and parts of skates in the manufacture of roller-skates, and that he had no right to use the same for any purpose; that the plaintiff asked the defendant to take said stock and parts of skates and pay him therefor, which the defendant refused to do; and that the plaintiff had the same, but they were of no use or value to him, whereby he had sustained damage in a sum named. At the trial, the evidence tended to show that the plaintiff agreed to manufacture at his factory for the defendant, until further- notice, as many skates as his facilities there would enable him to manufacture; that the defendant agreed to take all the skates so manufactured until further notice, and to pay the plaintiff an agreed price therefor; that the plaintiff entered upon the manufacture of skates under this contract, and, while so engaged, the defendant requested him to keep on hand always at least two weeks’ supply of stock, that he might manufacture skates faster; that the plaintiff complied with this request; that afterwards, while the plaintiff was engaged in manufacturing skates, the defendant, without any warning, gave him notice to immediately discontinue manufacturing skates, and forbade him to manufacture into skates the stock on hand, and refused to take and pay for said stock; and that the plaintiff could not manufacture into skates said stock without the defendant’s permission,, because the manufacture of the skates was protected by letters-patent owned by him, whereby the stock on hand, being of great value, became of little or no value to the plaintiff. Held, that the evidence did not support the declaration.</p>

<p>Tort for the conversion of personal property, attached by the defendant, a deputy sheriff, as the property of Franklin W. Orcutt and Abigail Orcutt.</p> <p>At the trial in the Superior Court, before Aldrich, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>A carrier, having a lien for freight upon an entire cargo of coal, delivered a por’ tian of it, on the order of the consignee, to a person who had purchased the whole cargo from the consignee. Subsequently, the carrier, on the arrival of the remainder of the coal, notified the purchaser that he claimed a lien on the remainder for the freight of the entire cargo, and ordered him not to disturb or unload it. The purchaser, without right, appropriated the remainder of the coal to his own use. Held, that the fact of such taking did not, of itself, as matter of law, import a promise on the part of the purchaser to pay to the carrier the freight of the entire cargo."</p>

<p>In an action upon a promissory note given to an insurance company in payment of a premium for a policy of insurance, evidence is admissible that the defendant was induced to make the note by the representations of the plaintiff’s agent that certain persons named and known to the defendant were to be members of a local board of directors to be organized for the management of the plaintiff’s affairs; and that such representations were false and fraudulent.</p> <p>If a contract is sought to be avoided on the ground that it was induced by false and fraudulent representations, the question of the materiality of the representations is for the court, and not for the jury.</p> <p>No exception lies to the admission of evidence which is competent for any purpose, if the excepting party does not ask for an instruction limiting its effect.</p> <p>In an action on a premium note given to a life insurance company, it appeared that the company gave a written receipt for the note, by which it agreed to return the payment if a “local board” was not organized by the company. Held, that evidence was admissible, in defence, of false and fraudulent representations as to who should constitute this board and their qualifications.</p> <p>A question not raised in the court below is not open upon a bill of exceptions.</p> <p>If a negotiable promissory note is given, in payment of a premium for a policy of insurance, to an insurance company, which gives to the maker of the note a receipt acknowledging such payment, and agreeing to return the “ payment ” if the company does not do a certain act, the maker of the note is not obliged, if the company fails to do the act mentioned, to pay the note, and then seek his remedy on the receipt, but may avail himself of the fact of such failure in defence to an action on the note.</p>

<p>A testatrix appointed her eldest son executor of her will, and gave to him all her property, real and personal, he to pay all her debts and also to pay the school and college expenses of her younger son, and made no other provision for the younger son. Her personal property amounted to $20, and her real estate to $1500. Held, that the legacy to the younger son was a charge upon the real estate.</p> <p>If the payment of a legacy is charged upon land devised to a person who is also appointed executor of the will, and the legatee joins in a mortgage of the land given by the devisee to secure a sum of money borrowed for the latter’s personal use, and the mortgagee afterwards sells the land under a power contained in his mortgage and applies the proceeds of the sale to the payment of the mortgage debt, the legatee loses his right to proceed against the land to enforce payment of his legacy, and an action therefor cannot be maintained for his benefit against a surety on the executor’s bond.</p>

Petition to the Superior Court, under the St. of 1880, e. 18, § 5, for the appointment of commissioners to hear the parties and determine certain matters of difference between them. The Superior Court appointed three commissioners, who made their award, which was accepted by the court; and both parties appealed to this court.

<p>The holder of a promissory note, by an arrangement with a solvent surety thereon, proved the note against the insolvent estate of another surety and then assigned the note with his claim against the estate to the solvent surety, who paid the holder in full. Held, on a bill in equity, that this amounted to payment of the note, and that the Court of Insolvency rightly ordered the proof to be expunged, and the surety to prove only one half of the claim, although he would not receive more than half of what he had paid for the note, if allowed to prove to the full amount.</p>

<p>Contract for necessaries furnished to Susan B. Winn, the wife of the defendant, while living apart from him, from October 14, 1881, to February 7, 1882. At the trial in the Superior Court, before Oolburn, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion. x</p>

<p>Writ of entry, dated May 18, 1881, to recover a parcel of land in Fall River. Plea nul disseisin. The tenant also filed a claim for improvements. Trial in the Superior Court, without a jury, before Blodgett, J., who allowed a bill of exceptions in substance as follows:</p> <p>The demandant put in a deed of the land in question from John Jenks and others to himself and Daniel McGowan, dated February 15, 1872, and a deed, dated September 17, 1873, from himself and McGowan to a corporation called the Corbitant Mills, by the terms of which the grantors, in consideration of one dollar, conveyed to said corporation the land in question, and which contained, after the description of the land, and before the habendum, the following clause: “ This conveyance is made by us upon condition that the said Corbitant Mills, or its successors, will erect or cause to be erected upon said premises a cotton-factory of not less than twenty thousand spindles within two years from the date hereof.”</p> <p>The demandant’s evidence further tended to show that the Corbitant Mills, in the fall of 1873, after the delivery of the deed, and in the spring of 1874, put in the foundation of a cotton-mill, but did nothing after the last-named time towards its erection ; and that, in 1877, he entered and took possession for breach of the condition contained in the deed to the corporation, and made a certificate of that fact, which was recorded in the registry of deeds at Taunton, lío notice of such entry was ever given to the tenant, or those under whom he claims. The demandant testified that, after taking possession in 1877, he went on the premises very frequently, and never saw the tenant there. The demandant also put in evidence a conveyance from McGowan to himself, dated February 16, 1880.</p> <p>The tenant put in evidence to show that the city of Fall River, in 1876 and 1877, sold the land in question by public auction, for non-payment of taxes, under proceedings that were regular, and bid it off, and held it until March 1, 1880, when the city gave a quitclaim deed of the land to the Corbitant Mills, the tenant paying the taxes, and that afterwards, on the same day, the Corbitant Mills gave a quitclaim deed of the land to the tenant. The deed from the city of Fall River recited that, on October 12,1877, the city received from its treasurer and collector of taxes a conveyance of a certain parcel of real estate, upon which there was then due the city, for taxes for the year 1875, the sum of $96.03; that the Corbitant Mills, “who claim to be entitled to redeem said real estate, had paid to the city the sum of $354.81 in redemption thereof, the same being the sum due for taxes at the time of sale, together with ten per cent interest per annum thereupon, and all intervening taxes and necessary charges; ” and released to the Corbitant Mills, in consideration of $354, “all the right, title, interest and estate which the said city of Fall River acquired under and by virtue of the said deed and all subsequent deeds of its treasurer and collector of taxes, in and to ” the land in question, describing it by metes and bounds.</p> <p>The tenant testified that the Corbitant Mills had expended the sum of $7500 in putting in a foundation and getting out stone on the land; that it built a blacksmith’s shop and one or two other sheds on the land; that it did nothing in the way of building the mill after the spring of 1875; that, after the last-named date, the witness went there occasionally, and had the tools and fixtures in the sheds and shops cared for until sold; and that, in 1877, he sold for the corporation one of the buildings on the land.</p> <p>No tender was ever made by the demandant, or by any one in his behalf, of the taxes and charges for which the land was sold; and, after the entry in 1877, the demandant did nothing to utilize or improve the premises.</p> <p>The tenant asked the judge to rule that the clause in the deed that the grantee should erect a cotton-mill in two years from the date of the deed was a covenant, if anything; that it could not work a forfeiture of the whole estate; that the demandant could not maintain his action; and that the tenant also had good title by the tax sale and mesne conveyances to him; or, if not, that the title to the land was in the city of Fall River when the demandant sued out his writ, and he could not maintain his action. The tenant also contended that, if judgment was for the demandant, he- was entitled to the improvements made by his grantor. The judge ruled that the clause in the deed was a condition, and, not being complied with, worked a forfeiture of the estate; that the Corbitant Mills by its deed from the city of Fall River acquired no title against the demandant, and that the deed on the part of the city of Fall River conveyed no title; that the demandant could maintain his action, and had title; and found as a fact, upon all the evidence, that neither the tenant nor his grantor had had such possession for six years as to entitle him or his grantor to improvements; and found for the demandant. The tenant alleged exceptions.</p>

<p>Contract for money lent in 1872. Writ dated September 20, 1880. Answer: 1. A general denial. 2. The statute of limitations. Trial in the Superior Court, without a jury, before Wilkinson, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The defendant, on September 13, 1872, commenced voluntary proceedings in bankruptcy in the United States District Court of Massachusetts. The bankruptcy proceedings were pending in said court until January 21, 1881, when, the defendant having failed to proceed in the matter of his discharge as ordered by the court, the proceedings were ordered to be stayed.</p> <p>The plaintiff contended that the statute of limitations did not run against his claim while the proceedings in bankruptcy wero pending; and that the time during which said proceedings were pending was to be excluded in computing the period of limitation in this action; and asked the judge so to rule. But the judge declined so to rule, and ruled otherwise; and found and ordered judgment for the defendant. The plaintiff alleged exceptions.</p>

<p>Tort for assault and battery. Answer, a general denial.</p> <p>In the Superior Court, before Rockwell, J., .two days before the trial began, the defendant’s attorney moved for a continuance, on the ground of the absence and sickness of the defendant’s wife, an important witness; and the attorney made and filed an affidavit, signed by himself, alleging that the defendant’s wife was a material witness, that she was sick and unable to attend the trial, and that, if present, she would testify to certain facts set forth, as he had been informed by the defendant. The plaintiff, under the 26th rule of the Superior Court, admitted that the witness would, if present, testify to the facts stated in the affidavit, and agreed that the same should be received and considered as evidence on the trial, in like manner as if the witness was present and had testified thereto; and a continuance was refused.</p> <p>At the trial, the defendant’s wife appeared as a witness, and testified materially differently from what it was stated she would testify to in the affidavit. The plaintiff then offered the affidavit in evidence; and it was objected «to by the defendant, and excluded by the judge, against the plaintiff’s exception.</p> <p>The jury returned a verdict for the plaintiff in the sum of one cent; and he alleged exceptions.</p>

<p>A purchaser in possession of property bought of a debtor, an assignment of whose estate has been made under the insolvent law, part of which property so sold belonged to him before his insolvency, and part of which was acquired after-wards, may maintain an action of tort in the nature of trover against a person who attaches the property as that of the insolvent.</p>

<p>If a person sails for pleasure in his yacht on the Lord’s day, in violation of the Gen. Sts. c. 84, § 2, and if, while he is so sailing, his yacht is injured by being negligently run into by a steamboat, his unlawful act necessarily contributes to the injury, and he cannot maintain an action therefor against the owner of the steamboat; but if the act of those in charge of the steamboat, in running against the plaintiff's yacht, was wanton and malicious, he can maintain such action, if they were acting within the general scope of their employment, and were executing their master’s business.</p>

<p>Petition for the assessment of damages caused by the taking of the petitioner’s land for a town way. Trial in the Superior Court, before Wilkinson, J., who allowed a bill of exceptions, in substance as follows:</p> <p>There was evidence tending to show that the petitioner was the owner of a tract of land bounding on Lathrop Street in the respondent town, extending back from said street three hundred feet or more in a northerly direction to land of one John Pickett ; that over and across the petitioner’s land and the land of Pickett the selectmen of the respondent town, in 1880, laid out a town way extending from Bartlett Street to Lathrop Street, for which damages were sought in this action; that, prior to the laying out of said town way, Pickett, in 1867, opened and dedicated a private way, forty feet in width, over his said land, extending back from Bartlett Street as far as the petitioner’s land, and called the same a continuation or extension of Stone Street, which was a public street extending northerly from the opposite side of Bartlett Street; that Pickett sold lots upon said private way, and dwellings were erected upon said lots; that, in 1871, the selectmen of the respondent town, while laying through the streets the main pipes for the distribution of water, carried one of such pipes through the private way laid out by Pickett, and extended and continued the same across the petitioner’s land, (which up to this time he had occupied as a flake-yard in his own business,) to connect with the main pipe on Lathrop Street, for the purpose of getting a better supply of water in that section of the town for household uses, and of equalizing the pressure; that in laying the pipes across the petitioner’s land, in which he was not consulted nor his assent thereto obtained, except so far as his assent might be inferred from after knowledge and acquiescence therein, the selectmen removed the flakes therefrom, and were obliged to grade the land, to the width of about forty feet, in order to lay the_ pipes; that, after it was graded and the pipes laid, carriages and persons on foot passed over the petitioner’s land, thus graded, from Lathrop Street, to and over the private way laid out by Pickett, to Bartlett Street, as over any public way, until the laying out of the street in 1880, which street was laid out over the same land graded by the selectmen for water pipes; that upon the petitioner’s land, on Lathrop Street, which was about four feet above the grade of said street and had never been fenced, the selectmen, where they cut through and graded, at one time placed a sign, “ Private way, dangerous passing.”</p> <p>1 For the purpose of showing that the land in question was encumbered by a right of way, and that the value of the same was thereby diminished, the respondent offered in evidence a deed from the petitioner to one Alden C. Stevens, executed in 1879, of a parcel of land, one of the boundaries of which was as follows: “ Beginning at a corner at the east, thence running westerly fifty-three feet by a way called Stone Street.” It was admitted that the petitioner did not own at the time of the conveyance, and never owned, the land lying south of the lot, and over which land said way extended, but that it was the property of Pickett; and that the portion of the lot which was sold to Stevens bounded on said way, and was purchased of Pickett in 1874 by the petitioner, the deed bounding it “ southerly and westerly by my own land,” and describing it as a strip five feet wide. It was also admitted that the petitioner never had any right of way or easement over Pickett’s land, unless the deed from Pickett gave him such right or easement.</p> <p>The petitioner asked the judge to rule that the deed to Stevens did not estop the petitioner from denying that there was such a way, called Stone Street, as described therein; that the petitioner not owning the land lying southerly of the premises sold to Stevens, described in his deed “ as a way called Stone Street,” there was no implied covenant that there was such a way, even if carriages and persons on foot passed over the same from Bartlett Street to Lathrop Street; and that no one except Stevens and those claiming under him had any right to take advantage of the covenant in the deed. But the judge declined to rule as requested, and instructed the jury that, if they should find upon all the evidence that, at the time of the conveyance to Stevens, there was a well-defined and graded way or street known as Stone Street, running from Bartlett Street to Lathrop Street and over the petitioner’s land, upon which Stevens’s lot bounded, then the description in the petitioner’s deed to Stevens estopped him, so far as Stevens was concerned, from denying the existence of such way, and the description in the deed to Stevens was a covenant that there was such a way, and Stevens would have a right to go over the whole length, and the petitioner would be unable, as against Stevens, to shut up the portion of the street or way which was upon his own premises; that this would constitute an encumbrance upon the land when taken by the respondent; and that the jury might take it into consideration in estimating the value of the land, and might consider and determine how far such value was thereby diminished.</p> <p>The jury returned a verdict for the respondent; and the petitioner alleged exceptions.</p>

<p>In an action for the price of a horse alleged to have been purchased by the defendant through an agent, there was evidence that the horse at the time of the alleged sale had been in the possession of the defendant for some days, and a horse of the defendant, which was part of the consideration of the trade, was in the possession of the agent; that on the morning of the alleged sale the horse was severely injured while being driven by the defendant; that the agent before this had bought horses for the defendant; that, on the day of the alleged sale, the defendant wrote a letter to the plaintiff, dating it at an early hour in the morning, in which he objected to the price asked, which letter there was evidence tending to show was in fact written after the horse was injured; and that, two days later, the defendant sent a telegram to the plaintiff, saying that he had disposed of his own horse and could not exchange, when in fact he had given the horse to the alleged agent. Held, that this evidence would not warrant a finding that the defendant had authorized the purchase of the horse by the alleged agent.</p>

<p>A deed to an aqueduct corporation, after reciting that the corporation proposed sinking an aqueduct from one point to another named, “ to accomplish which it will be convenient to dig and lay logs through lands ” of the grantors, provided that the grantors “ bargain and agree that the above-mentioned aqueduct company or their agents shall have liberty to enter upon said lands for the purpose of digging and completing said aqueduct, and at all times thereafter to enter upon said lands when necessary to repair the same.” Held, that the corporation might enter upon the land, and increase the size of its pipes or relay its pipes upon the line originally adopted, but that it could not lay or relay its pipes upon a new line differing from the original location, and was liable in tort for so doing. Held, also, that if by inadvertence or mistake, or under the belief that it had the right to do so, the corporation dug a new trench in a line differing from the former one, it did- not thefeby abandon or lose its easement, but, upon discovering its mistake, might relay its pipes upon the original line.</p> <p>If an aqueduct company has the right to exercise certain rights in the land of a person by deed, and a statute is passed authorizing it to take land by the right of eminent domain, and it then does acts on the land in excess of the powers granted it by deed, a finding, in an action of tort brought against it by the owner of the land, that it did not act under the statute, renders the question of the constitutionality of the statute immaterial.</p>

<p>If A. and B. make an oral contract, by which A. is to buy land by auction upon the joint account of both in equal shares, the contract is within the Gen. Sts. c. 100, § 19; c. 105, § 1; and, after the land has been conveyed to A., B. cannot maintain an action for a breach of the contract.</p> <p>If a declaration alleges that the defendant agreed to bid for a parcel of land at a sale by auction, and buy one undivided half of the land in behalf of, and as agent for, the plaintiff, and the evidence is that the defendant agreed with the plaintiff to buy the land on their joint account, there is a variance.</p>

<p>A testator provided in his will for the erection of a monument in memory of himself and his wife, at a cost named. His wife left a will, which, after -giving several specific legacies, contained the following residuary clause: “ My house and furniture, silver plate, fixtures and everything to be sold, if there should not be enough from my husband’s estate for a monument, I wish to have my money expended for a monument of granite, .... if there should be money enough left from my husband's estate. I want a memento of Hope, Faith and Charity, the expenses to be taken from my own estate, and his name cut on the steps, the remainder left I wish it to be kept in trust to beautify and keep the it in good order. I wish this to be carried strictly through.” Held, that the testatrix intended to direct that her house and other property should be sold for the purpose of erecting the monument provided for by her husband’s will with the proceeds, in case his estate should not be sufficient for that purpose ; that, in case there was money enough for that purpose from his estate, a memento was to be erected, at the expense of her own estate, which was to be a design of Hope, Faith and Charity, upon which her husband’s name was to be cut; and that the remainder of her property was to be held in trust to beautify and keep in order the monument.</p> <p>A provision in a will, establishing a fund for the preservation, adornment and repair of a private monumental structure, creates a perpetuity for a use not charitable, and is void.</p> <p>A right, given by a will, to sell property for an object which cannot be accomplished, cannot itself be exercised.</p>

<p>A creditor, who recovers a judgment against an executor, in an action upon a debt due from the testator, brought within the two years limited by the Gen. Sts. c. 97, § 5, is not entitled, the execution issued on the judgment not being satisfied, to bring an action upon the judgment after the expiration of the two years, although the bond given by the executor, who is also residuary legatee, is one conditioned to pay debts and legacies.</p>

Tort for personal injuries. Answer, a general denial. Trial in the Superior Court, before Rockwell, J., who allowed a bill of exceptions, in substance as follows: The plaintiff testified that she was sixty-seven years old; that on November 24, 1881, about three o’clock in the afternoon, she passed down the southerly side of Granite Street in Haverhill to certain flagstones, which were shown by a plan put in evidence to be located' at a point where Granite Street, Essex…

<p>A bill in equity, for an account, alleged that the plaintiff and the defendant were administrators of an estate, and had given a joint bond; that they, with a third person, were the only next of kin of the intestate; that the estate had been settled in the Probate Court, and the defendant had failed to include in the inventory and account certain assets of the estate in his possession; that the plaintiff had assented to the final account, and had receipted for his interest, upon the defendant’s agreeing that this should not prejudice the plaintiff’s right to his share of the assets in question; and that the third person had been paid his share. Held, on demurrer, that the bill could not be maintained.</p>

<p>A husband may maintain an action for the loss of the consortium with his wife, against a person who has criminal conversation with her, whether such conversation is with or without her consent, and although the act caused no actual loss of her service to him.</p>

<p>Contract for the refusal of the defendant to perforin his part of the following contract in writing, dated February 7,1879, signed by the defendant, and accepted by the plaintiffs:</p> <p>“I héreby agree to ship you balance of twelve cars sheet-iron which we owe you on a previous arrangement, same to be agreed upon at prices and terms as below and specification not to exceed one car of heavy sizes heavier than twenty-one gouge and not more than one car of thirty gouge. Balance of specification to be No. 21 to No. 26 gouge, all specifications to be sent us at rate of one car-load per month. Specification for each car to be sent from 1st to 10th day of each month, commencing from above date.</p> <p>“No. 10 to No. 16 Common Annealed Sheet Iron . 2 30 per 100 lbs.</p> <p>No. 17 to No. 20 tt ft tt . 2 40 tt tt</p> <p>No. 21 to No. 24 tt . <t tt . 2 50 ft tt</p> <p>No. 25 to No. 26 it tt tt . 2 70 tt it</p> <p>No. 30 tt tt tt . 3 70 tt tt</p> <p>o [¶] o «H</p> <p>“ Terms net cash subject to sight draft on receipt of each invoice and bill of lading by mail. Above to be shipped in your name. Should you refuse to pay any or either of our sight drafts made for any of above shipments then we should consider above contract null and void.”</p> <p>Answer, the statute of frauds. Trial in the Superior Court, before Colburn, J., who reported the case for the determination of this court, in substance as follows:</p> <p>The plaintiffs were dealers in gheet-iron, in Boston, and the defendant was a manufacturer of such iron, in the State of Ohio. It was agreed at the trial that the iron, to which the contract relates, was of greater value than $50. The plaintiffs offered to show, by the conversation that occurred at the time this contract was made, that the contract related to six cars; but the judge ruled that it was not competent to show this by paroi. They then contended that the contract should be construed as an agreement to furnish twelve cars of iron, or two or three cars of iron. But the judge ruled that the contract did not require the defendant to furnish twelve, or any other definite number of cars of iron; and ordered a verdict for the defendant.</p> <p>If the ruling was right, judgment was to be entered on the verdict; otherwise, the verdict to be set aside, and a new trial ordered.</p>

<p>Contract for breach of the following agreement, under seal, dated July 1, 1871, and executed by the plaintiff, as the party of the first part, and by the defendant, as the party of the second part: “ Whereas the party of the first part is about to loan to H. F. Rice and J. Q. Hanson the sum of fifty-eight thousand dollars, upon eleven different mortgages of eleven different lots of land and buildings in process of erection and to .be erected thereon; and whereas it is proposed that a large part of said sum is to be advanced on said mortgages before the completion of said houses; and whereas the said Rice and Hanson have given to said Moors an order for the payments of the amounts so to be paid by said corporation as the same shall become due: How, therefore, in consideration of the premises and the covenants of said Moors hereinafter contained, said party of the first part covenants and agrees with said Moors and his assigns, that it will, upon his request, advance and pay to him, the said Moors, from time to time, according to the schedule of payments hereto annexed, such amounts as he shall require on account, of said loan of fifty-eight thousand dollars, until the whole sum of .fifty-eight thousand dollars shall have been paid to him; and said Moors, in consideration thereof, covenants and agrees with said party of the first part, that said Rice and Hanson shall complete and finish, as soon as may be, in good, workmanlike manner, and with -all reasonable diligence, said eleven houses, three of which, mortgaged each for six thousand dollars, shall cost not less than ten thousand each, and the other eight, mortgaged each for five thousand dollars, shall cost not less than nine thousand dollars each, and that all mechanics’ or other liens shall be discharged within forty days after the same are completed; and said Moors further guarantees said corporation that said houses shall be completed within one year from the date hereof. It is further agreed by and between the parties, that if said Moors should deem it necessary to his own security to take an assignment of said notes and mortgages, or any of them, the said corporation will, upon his request and at his own proper cost, assign and transfer to him any or all of said mortgages and the several notes for the security of which they were given, upon receiving from him, the said Moors, full payment of the several sums advanced thereon, with all accrued interest. Said land is situated on West Clarendon Street and a court or street leading southerly therefrom in said Boston. Said houses are to be insured, payable in case of loss to said corporation as mortgagees, and the whole amount of each of said mortgages shall be upon interest from and after the time of making, the first payment thereon.”</p> <p>Annexed to the contract was a schedule of four payments to be made on each lot, the first payment to be when the roof should be boarded in, and the last when the house should be finished. Writ dated December 3, 1875.</p> <p>The case was tried in this court, without a jury, upon the report of an auditor, before W. Allen, J., who found for the plaintiff in the sum of $19,119.72. Both parties alleged exceptions, and the judge reported the case for the determination of the full court. The facts appear in the opinion.</p>

Contract, on the Gen. Sts. o. 101, § 32, 'against the sole legatee under the will of P. F. Lyndon, a surety on the bond of James D. Judge, as guardian of Joseph O’Rourke, an insane person, for whose benefit the action is brought, for breach of one of the conditions of said bond. Writ dated June 11, 1881. The case was submitted to this court on agreed facts, which appear in the opinion.

<p>A husband may make a gift of personal property to Ms wife, wMch, if not revoked by him, will, after his death, give her a valid title to the property against his heirs, if, with the intention on his part to give it to her, the property is actually delivered to and retained by her, and no rights of the creditors of the husband are impaired.</p>

<p>An oral guaranty of the payment of the note of a third person, given in payment of a debt of the guarantor, is within the statute of frauds, even if the principal object of the transaction is the payment of the guarantor’s own debt.</p>

Contract, against John B. Simpson and Lucy Simpson, upon the following instrument in writing, signed by the defendants: “$500. Boston, April 2, 1878.

Tout for personal injuries occasioned to the plaintiff on January 29, 1881, by a defect in Porter Street in the defendant city. At the trial in the Superior Court, before Pitman, J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions. The facts appear in the opinion.

<p>Under the Gen. Sts. c. 85, §§ 1,2, the amount of money lost as the net result of continuous gaming at one sitting, of mixed losses and gains or continuous losses, may be declared for in one count as a single loss.</p>

Contract to recover the price of milk, alleged to have been supplied to the defendant daily between February 20 and April 23, 1881. Answer, a general denial, and payment.

Contract, upon an account annexed, for the expenses of the funeral of the defendant’s intestate. Writ dated July 19, 1881. Answer: 1. A general denial. 2. That the action was prematurely brought.

<p>J., who did business in wool as a broker, as a commission merchant and as a warehouseman, applied to the plaintiff to take a consignment of wool from F., and to make advances thereon. The plaintiff agreed to take the wool, and J. subsequently delivered to him a railroad receipt, in which the wool was stated to have been received of F. and to be consigned to the plaintiff, and also an invoice, signed by F., which stated that the wool was consigned to the plaintiff for sale on account of F. On the arrival of the wool, the plaintiff gave the carrier an order to deliver it to J., and received from J. a receipt stating that he received the wool for the plaintiff’s account, F. consignment; and the plaintiff paid drafts on the wool to the amount he had agreed to advance, some of the drafts being payable to the order of J. The plaintiff gave J. no authority to sell the wool as a factor or consignee, but entrusted it to him as a warehouseman, for the purposes of sale, and with authority as broker to receive offers for it and to negotiate sales, to be reported to and settled by the plaintiff. While the wool was thus in J.’s possession, J. stated to the defendant, who knew that J. was a warehouseman, broker and merchant, that he owned the wool, and pledged it to him for a valuable consideration. The defendant acted in good faith; and,before lending money upon the wool, J. had the wool put in the warehouse of a third person, who gave a warehouse receipt for it. Held, in an action of tort for the conversion of the wool, that J. was not a factor or other agent entrusted with the possession of merchandise for sale, within the Gen. Sts. c. 54, § 2, nor a person entrusted with merchandise, and having authority to sell or consign the same, within § 3, nor a consignee or factor having possession of merchandise with authority to sell the same, within § 4; and that the plaintiff was entitled to maintain the action. Held, also, that the fact that J. and if. were jointly interested in the wool, J. having the right to dispose of it, and that the plaintiff, in ignorance of this fact, placed the wool in J.’s possession, did not affect his right to maintain the action.</p> <p>A warehouseman, with whom goods were stored on A.’s account, pledged them to B., who removed them to another warehouse, and subsequently sold them, as pledgee. Held, that B. converted the goods when he removed them under a claim of right of property in them.</p>

<p>That a person knew, when he entered into a contract in writing not under seal, purporting on its face to be made on the other part by A. and signed by “A., agent,” that A. was in fact contracting as agent for B., will not prevent him from maintaining an action against B. on the contract.</p>

<p>Under the St. of 36 & 37 Viet. c. 85, § 7, a seaman is bound by shipping articles, which describe the contemplated voyages of the vessel as follows: “Erom Cardiff to Point de Galle, “a any other ports or places, trading in any direction or rotation, calling for orders when required, and not to extend beyond the 60th degree north latitude; and not south of 60 degrees south latitude, until the ship’s arrival at a final port of discharge on the continent of Europe ™a the United Kingdom at the master’s option, the voyage not to exceed three years.”</p>

<p>Under a policy of insurance against accident, providing that no claim shall be made under it when the death or injury may have happened in consequence of exposure to any obvious or unnecessary danger, and containing a condition that the assured is required to use all due diligence for personal safety and protection, no recovery can be had for the death of the assured, which is caused by his being struck by a railroad train, while running along the tracks in front of it in the night-time, for the purpose of getting on a train approaching in an opposite'direction on a parallel track.</p>

Bill in equity, filed January 8, 1880, by the receivers of the Reading Savings Bank, to restrain the defendant from prosecuting actions at law upon, and to compel the delivery to the plaintiffs of, certain promissory notes in the defendant’s possession. The answer, among other things, alleged carelessness and negligence on the part of the trustees of the bank in the performance of their duties.

<p>A corporation is not bound, as to third persons, by interpolations fraudulently inserted in its records, if such third persons have not acted on or seen or known of the existence of the matters so interpolated and appearing to be a part of the records.</p> <p>A bill in equity may be maintained, by the owner of a promissory note and a mortgage securing it, to restrain a sale of the property covered by the mortgage, and to compel the surrender of the note and mortgage, by a person claiming to hold them under a transfer fraudulently made to him by an agent of the owner.</p>

<p>The builder of a vessel made an agreement with A., who had worked on the vessel for wages, that, when she was finished, A. should furnish sails, which were to remain A.’s property; and that A. should use her and give the builder a portion of her earnings. A., falsely representing that he owned the hull, made a contract with a sailmaker, under which the sails were furnished, and A. used the vessel under the agreement with the builder. Held, that the sail-maker could not maintain a petition, under the Gen. Sts. c. 151, §§ 12, 13, to enforce a lien against the vessel.</p>

Complaint alleging that the defendant, on June 5, 1881, and on divers other days and times between that day and October 24, 1881, at Rockland, unlawfully exposed and kept for sale intoxicating liquors. Trial in the Superior Court, before Gf-ardner, J., who allowed a bill of exceptions, in substance as follows: The government introduced evidence of sales of intoxicating liquors by the defendant on several occasions during the time covered by the complaint.

<p>On an indictment against A. and B. for fraudulently concealing leased personal property, there was evidence that A. took a mortgage upon the property from the lessee, in the name of C., and assigned the mortgage to B., who took possession of the property and concealed it. The government contended that the transaction between A. and B. was merely colorable; and called 0. as a witness, who testified that A. had no written authority to assign the mortgage, but had verbal authority. Held, that the government could, under the Pub. Sts. c. 169, § 22, contradict the witness by showing that he had made inconsistent statements.</p> <p>Merely asking a witness, whom it is sought to contradict, on reexamination, whether he has made a certain statement to a particular person, with no attempt to designate the time or place, and no suggestion of any reason for not specifying them, or of circumstances which rendered them unnecessary, is not mentioning "the circumstances of the supposed statement sufficient to designate the particular occasion,” within the Pub. Sts. c. 169, § 22.</p>

Complaint to the Municipal Court of Boston, on the Pub. Sts. a. 100, § 12, alleging that the defendant, on August 6, 1882, at Boston, was duly licensed to sell spirituous and intoxicating liquors in a certain building on Carver Street in said city, which was then and there used by him for the sale of such liquors under the provisions of his license; and that he then and there placed and maintained on said premises, so used by him, “ a certain screen, blind, shutter, curtain…

<p>A complaint for selling intoxicating liquors to a minor, without having “ any license, authority, or appointment, according to law, to make such sale to said minor,” need not allege that the defendant was licensed under the Pub. Sts. c. 100.</p> <p>At the trial of a complaint for selling intoxicating liquors to a minor, a witness, who testifies to the fact of the sale and the general appearance of the person to whom the sale was made, may give his opinion as to the age of such person.</p>

Indictment in two counts: the first count charged the defendant, under the Pub. Sts. c. 101, §§ 6, 7, with keeping and maintaining a certain common nuisance, to wit, a tenement used as a house of ill-fame; and the second count, at common law, charged her with maintaining a disorderly house, during the same times charged in the first count.

<p>At the trial of a complaint for an unlawful sale of intoxicating liquors, the evidence for the government tended to show a sale by the defendant of lager beer. The defendant testified that, at the time of the alleged sale, he had no intoxicating liquors on his premises; that the only beer he bad was Bavarian hop beer; and that he bought all of his beer of a certain brewer; and he produced and identified a label as the label which was on the barrel from which the alleged lager beer was drawn. He then offered the label in evidence for the purpose of identifying the barrel and its contents; but it was excluded. Held, that it should have been admitted.</p> <p>At the trial of a complaint for an unlawful sale of intoxicating liquors, a witness testified for the government that he tasted liquor sold by the defendant; that it was lager beer; and that he could tell by the taste alone whether it contained three per cent of alcohol. Held, that the defendant was not entitled to ask a witness, an expert in the manufacture and taste of beer, whether a person could determine from the taste alone the proportion of alcohol contained in a given sample of beer.</p> <p>At the trial of a complaint for an unlawful sale of intoxicating liquors, it appeared that the defendant’s saloon was fitted up with a bar, beer-pump, glasses and • bottles; that on the exterior wall was the sign, “ Ale and Lager Beer; ” that, at the time of the alleged sale, the defendant had no license to sell intoxicating liquors, but that he had previously had a license. He testified that the interior arrangements of the saloon and the sign on the exterior were the same on the day of the alleged sale as they were when he had Ms license. He then asked the judge to instruct the jury, that, if they believed that the interior arrangement of the saloon, and the sign on the exterior, were in the same condition and position on the day of the alleged sale as they were in during the time he had his license, “ no inference adverse to the defendant can be drawn therefrom.” The judge declined to give this instruction. Held, that the defendant had no ground of exception.</p>

<p>At the trial of a complaint for an unlawful sale of intoxicating liquors, it appeared that the buildmg in which the sale was made was bounded on one side by 0. Street and on another side by S. Street, the two streets intersecting each other at the corner of the building; that the only entrance to the building and the only windows of the premises were on C. Street, the entrance being numbered "28 C. Street; ” that a former entrance and a former window on S. Street had been permanently closed by boarding up, to meet the requirements of the authorities in granting a license to the defendant; that upon the wall of the building on S. Street there were two signs on which the defendant’s name appeared, and upon the same wall a sign on which were the words, “ Entrance 28 C. Street;” and that the whole building was within four hundred feet of a building on S. Street, then occupied by a public school. Held, that the defendant’s building was on S. Street, within the meaning of the St. of 1882, c. 220.</p> <p>At the trial of a complaint for an unlawful sale of intoxicating liquors, the government contended that the place in which the sale was made was within four hundred feet of a building on the same street, then occupied by a public school. The superintendent of public buildings.testiiied that he had charge of said building, and had repaired the same under appropriations for public schools by the school board of the city; that he had seen schools in session there, but had no further personal knowledge that it was a public school. The superintendent of schools testified that said building was occupied by a certain primary school, and that it was under his charge as such superintendent; and that he had no personal knowledge of its establishment as a public school. The clerk of the school board produced a printed manual of all the public schools in the city, which he testified was issued by him under the direction of the school board; and produced from the records of said board the order for its preparation by him, and stated that this was the manual prepared under that order. The manual was then admitted in evidence, by which it appeared that said primary school was a public school, and located in said building. Held, that all the evidence was competent, and was sufficient to prove that the building was in fact occupied by a public school, within the St. of 1882, c. 220.</p> <p>A license to sell intoxicating liquors, granted to a person whose premises are within four hundred feet of a building on the same street occupied by a public school, is void, under the St. of 1882, c. 220.</p> <p>A complaint for an unlawful sale of intoxicating liquors is sustained by proof of an unlawful sale of lager beer, under the Pub. Sts. c. 100, § 27.</p>

<p>It is no defence to an indictment against a railroad corporation, under the St. of 1874, c. 372, § 163, for causing the death of a passenger, that the passenger was not in the exercise of due care.</p>

<p>At the trial of an indictment for manslaughter, in which the evidence shows that the deceased made an attack upon the defendant, on the issue whether the defendant acted in self-defence and under a reasonable apprehension of bodily harm, evidence is admissible in defence that the deceased was a larger and more . powerful man than the defendant.</p>

Indictment, under the Gen. Sts. c. 165, § 9, for unlawfully using an instrument upon Margaret Coughlin, on September 26, 1881, with intent to procure a miscarriage, and thereby causing the death of said Coughlin.

Complaint to the District Court of East Norfolk, charging the defendant, on July 5, 1882, at Randolph, with an unlawful sale of intoxicating liquor to Richard Uniac.

Indictment for an assault upon a female child under the age of ten years, with intent to carnally know and abuse her.

<p>At the trial of an indictment for the murder of a woman by poison, there was evidence that the life of licentiousness and debauchery which she had led would account for her death and the symptoms attending her last sickness; and that her reputation for sobriety was not good. The defendant then offered to show particular occasions when the woman had been seen drunk. This evidence was excluded. Held, that, as it did not appear that the particular acts of drunkenness were connected with the death of the woman, or were near the time of her death, the defendant had no ground of exception.</p> <p>The magistrate presiding at an inquest, under the Pub. Sts. c. 26, is only required, by § 16, to file his report with the records of the Superior Court; and if he files, with the report, his minutes of the testimony taken at the inquest, one indicted for killing the person on whose body the inquest is held is not entitled to put in evidence the fact that the testimony was so filed, and that it was after-wards suppressed by the government.</p>

<p>Since, by the Pub. Sts. c. 155, § 7, no one but a justice of the peace can be a trial justice, and, by § 9, a justice of the peace duly appointed trial justice ceases to be such if his commission as justice of the peace expires before his commission as trial justice, a signature to the jurat annexed to a complaint, and to a warrant, as trial justice, involves a signature as justice of the peace, and no separate designation of the inferior office is necessary.</p>

Contract. The declaration alleged that the plaintiff, on July 31, 1880, was the owner in fee and occupant of a certain tract of improved land in Greenfield; that the defendant was the owner in fee and occupant of an adjoining tract of improved land; that both of these tracts of land were formerly one undivided lot, of which one Harding G. Woodard was seised in fee; that Woodard, on July 18, 1868, conveyed to one Jesse A. Coombs the defendant’s land, by a deed duly recorded…

<p>Upon the dissolution of a partnership existing between A. and B., all matters between them were settled with the following exceptions: after the death of B. a sum of money due to the partnership was held by a third person, and the proper distribution of this money was submitted by A. and the administrator of B. to an arbitrator, under whose award one half was paid to each party. Subsequently A. learned that B. received, during the continuance of the partnership, a sum of money on partnership business, which had not been entered on the books or accounted for by him, one half of which belonged to A. B.’s estate had been represented insolvent, a partial distribution to creditors was made under order of court, and the balance in the administrator’s hands was less than the amount remaining due to creditors; and no debts wore due to or from the firm. Held, that A. could not maintain a bill in equity against B. ’s administrator and C., who held the sum so received and unaccounted for by B., to enforce payment of the share of said sum belonging to A.</p>

Scire facias upon a judgment in a trustee process. At the trial in the Superior Court, before Pitman, J., without a jury, the plaintiff asked the judge to rule that the defendant should be charged. The judge refused so to rule, and found that the defendant was entitled to be discharged; and the plaintiff alleged exceptions. The facts appear in the opinion.

<p>Tort for the conversion of four boxes of tobacco. Answer, a general denial. Trial in the Superior Court, without a jury, before Staples, J., who allowed a bill of exceptions, in substance as follows:</p> <p>In 1875, Moses 0. Porter, who owned a farm, a part of which was used for raising tobacco, and a part for various other crops, mortgaged the tobacco land to Samuel H. Dickinson. On March 1, 1876, the equity of redemption of Moses was attached by Augusta A. Porter. On August 15, 1876, Dickinson made an entry for breach of the condition of his mortgage, and a certificate of entry was duly executed and recorded, which recited that such entry was “ for breach of condition of the mortgage, and for the purpose of foreclosing the same, and of taking the rents and profits thereof.” At the time of this entry, Moses was notified by the defendant, who acted as agent for Dickinson, and also as a subsequent mortgagee who had entered for breach of condition on the same day as Dickinson, that the crops would belong to the mortgagee, and that he, Moses, would be entitled to reasonable compensation for raising them. On November 11, 1876, the equity of redemption of Moses was sold on execution to Augusta, and a deed thereof to her was duly made and recorded. Moses, up to the last-named day, and after that Augusta, occupied the dwelling-house and other buildings on the farm, and carried on the farm as they severally thought proper, hiring the help, determining what crops should be raised, and raising the same, and, in general, deciding all questions relative to carrying on the farm. After November 11, 1876, Moses acted as agent for Augusta.</p> <p>After August 15, 1876, Dickinson declined to be responsible for payment of hired help, or for seed purchased for raising crops; and, while claiming the crops, left the payment of help, of taxes, and of what might be required for fertilizers, to Moses; and there was no agreement to repay either Moses or Augusta for what they paid for labor, taxes, fertilizers and other expenses, except as above stated. In the fall of 1877, Moses having sold broom corn to pay taxes, the defendant denied his right to do so, and claimed that the crop belonged to the mortgagees. There was no notice to the defendant, or to Dickinson, till June 1878, that Augusta was carrying on the farm. At that time, in a conversation between the defendant and Augusta, she asked what the mortgagees claimed. The defendant informed her of the mortgages; that the mortgagees had taken possession for the purpose of foreclosure, and to take the rents and profits; that the crops raised belonged to the mortgagees, and that those who raised them would be entitled to a reasonable compensation for the labor. She said she must have enough of. the crops to pay the plaintiff. The defendant replied, that the mortgagees objected to her taking any of the crops to pay him. She said she had borrowed $150 of him to raise crops. The defendant said the mortgagees expected to pay her what was just and reasonable for raising the crops, and, when they settled with her, she could pay the plaintiff..</p> <p>In May 1877, after the tobacco crop was sown and had come up, Augusta borrowed of the plaintiff $150, of which she used $50 to pay the taxes for 1876, about. $50 for hired men then working on the farm, and the balance for seed corn used thereon. At the time of this loan, and as part of the transaction, Augusta agreed to repay the same out of the. first crops she should raise, and such agreement was the inducement to, the loan.</p> <p>The tobacco crop of 1877 was severed from the land in September, and hung on poles till about December 1, and, in March 1878, was packed in forty boxes procured by Moses, and paid for by the defendant, and placed in a, barn in charge of Augusta. In July 1878, Augusta delivered to the plaintiff four of these boxes, in payment of the loan, and made a bill of sale thereof; and these are the- boxes in controversy in this action. At the time of this delivery, the plaintiff was informed by Augusta that the mortgagees claimed the tobacco crop of 1877, and that it should not be disposed of by her.</p> <p>On December 11, 1878, the forty boxes of tobacco and other crops were replevied by Dickinson and the defendant, against the protest of Augusta. A few days afterwards, a settlement of the replevin suits was effected between Augusta and Dickinson and the defendant, in which there was a reckoning of what was her due; and it was considered what crops Moses and Augusta had had, and what timber they or either of them had cut and sold. Allowance was made for all the property either of them had. taken or used, not before' accounted for, and the expenses of carrying on the farm were put in. The plaintiff took no part in this settlement, but, after the sale of the forty boxes of tobacco and the application of the proceeds upon the mortgage notes, brought the present action.</p> <p>After the taking possession on August 15, 1876, the defendant made advances from time to time to Moses in aid of expenses of carrying on the farm, insurance, &c. All of these payments were made by the defendant for Dickinson, who reimbursed him therefor.</p> <p>Until the fall of 1878, nothing was said, either to Moses or Augusta, by Dickinson or the defendant, about their leaving the farm, and it was not insisted that they should leave until the spring of 1879.</p> <p>On these facts the defendant asked the judge to rule that the plaintiff was not entitled to recover. The judge declined so to rule; and found specially, “ that the possession taken and maintained by Dickinson and the defendant, the respective mortgagees, was not a personal occupation of the farm, or the actual appropriation of the rents and profits thereof, including the tobacco in question, except in special cases where it was done by mutual agreement, the case of said tobacco not being one of said special cases; that after November 11, 1876, Augusta A. Porter occupied the farm until the spring of 1879, by permission of said mortgagees, as a matter of mutual convenience, thus becoming a tenant at will of said mortgagees, and holding the farm in subordination to their rights of possession.”</p> <p>The defendant excepted to said finding, and asked the judge to rule that it was not warranted by the facts in the case. The judge declined so to rule.</p> <p>The judge found for the plaintiff; and the defendant alleged exceptions.</p>

<p>While the Gen. Sts. c. 63, § 11, (which provided that no conveyance of shares in the capital stock of a railroad corporation should be valid against any other persons than the grantors and their representatives, unless recorded within ten days,) were in force, A., the owner of stock in a railroad corporation, caused a certificate to be issued to B., who executed an assignment in blank on the back thereof, and the certificate thus assigned was delivered to a bank “ for the protection of the parties and as collateral security ” for a promissory note payable to the bank, and signed by A. as principal and by B. as surety. Subsequently, the railroad corporation consolidated with another, under an agreement by which the stockholders were entitled to receive for each share of stock a bond for a certain amount. A., with the consent of the bank, obtained the certificate of stock and received the bonds, and they were paid in full, and the bank received no benefit from them. Held, in an action by the bank on the note against A. and B., that such consent of the bank was a good defence to B., so far as he was injured by the giving up of the stock by the bank.</p>

Contract upon the following instrument, signed by the defendant, and witnessed: “$85.00. Rutland, April 5th, 1874. Received of T. S. Sloan, this day, roan horse known as A. M. Brown horse for which I promise to pay T. S. Sloan or order eighty-five dollars one month from date, at the Leicester-, said horse to be and remain the entire and absolute property of the said Sloan until paid for in full by me.” Writ dated July 15, 1881.

<p>The right to use trade-marks, in connection with a manufacturing business, which are not personal in their character, but designate merely the place or establishment at which the goods are manufactured, passes to the assignee in insolvency of the owner, under the Gen. Sts. c. 118, § 44.</p>

<p>Under the Pub. Sts. c. 156, § 35, this court has no power, in contested probate cases, to award counsel fees or other expenses, as “ costs," in addition to the taxable costs; and such power does not exist independently of the statutes.</p>

<p>If a will, which was duly executed, and which contained a clause expressly revoking former wills, is cancelled, it is a question of intention, to be collected from all the circumstances of the case, whether an earlier will, which has not been destroyed, is revived by such cancellation; and, in the absence of affirmative evidence that the testator intended to revive the earlier will by the cancellation of the second, the earlier will will be held not to be revived.</p> <p>Oral declarations of a testator, made after the cancellation of a will, are admissible in evidence for the purpose of showing whether he thereby intended to revive a former will which has not been destroyed.</p>

Action on the St. of 1879, e. 237, to recover possession of a parcel of land in New Bedford.

<p>In an action by E. against the executor of the will of M., for money had and received, there was evidence tending to show that a deposit was made by a third person in a savings bank, and a deposit-book was taken in the name of “ E. or M., or the survivor of them; ” that M. drew the money from the bank during the life of E.; and that the amount so drawn out was put in the bank by the depositor as a perfected gift to the uses declared by the terms of the deposit-book, and that M. appropriated the money to her own use. E. admitted that she put no money of her own in the bank, and that she never had any exclusive possession or control of the deposit-book, and had no knowledge of the existence of such deposit until about the time it was withdrawn by M., which was after the death of the depositor. The evidence showed that M. had possession of the deposit-book when she withdrew the money. The judge instructed the jury, “ that if they found the money was deposited by some third person in the name and to the use of ' E. or M. or the survivor of them,' and that such gift was completed by a transfer and delivery, and by a surrender of all control on his part over the fund, then the legal effect of such deposit would be the same as if in the name of 1E. and M. and the survivor of them;' and that during their joint lives they would be entitled each to one half the dividends, and upon the decease of either the fund would go to the survivor.” Held, that the evidence did not establish a trust; that it was for the jury to determine what were the terms of the gift; and that the instruction given was misleading.</p> <p>If the books of a corporation are admissible in evidence, and are not within the jurisdiction of the court, copies of them properly verified are admissible.</p> <p>The treasurer of a foreign savings bank, having answered, to an interrogatory in a deposition, that the books of the bank, which were in his custody, showed that the bank had had business with a certain person, was asked to give an exact transcript of the entries in the books relating to the business. His answer was, " See statement annexed.” What purported to be a transcript of the books relating to the business was annexed to the deposition. Held, that it sufficiently appeared that the transcript had been compared with the originals, and was a true copy.</p>

<p>Tort. Trial in the Superior Court, before Oolburn, J., who allowed a bill of exceptions, in substance as follows:</p> <p>It appeared that on Sunday, August 14, 1881, the plaintiff, with one or more loads of fruit, stationed himself in Westport, within half a mile of a camp-meeting, on land, the owner of which had given his consent, for the purpose of then and there selling such fruit.</p> <p>The plaintiff introduced evidence tending to prove that the defendant took under his control, and in his custody and charge, all of said fruit, and kept the same under such control from about nine o’clock in the morning until about two o’clock in the afternoon of that day, when they were returned to the plaintiff under the conditions that they were to be taken from there and stored in a barn near by, and that he was not to come on the grounds again for one year.</p> <p>The defendant introduced evidence tending to prove that, during the time he had charge and control of the plaintiff’s goods, the plaintiff, at his request, gave some directions as to the loading and handling the goods, and assisted therein; that when they were returned to the plaintiff, it was with the understanding and under the agreement that, if the defendant would remove the fruit to a barn some distance off and deliver it to the plaintiff there, he would accept it and not return to the grounds, and would make the defendant no trouble on account of the taking; and that the fruit-was so delivered and accepted.</p> <p>The plaintiff asked the judge to rule that any taking or handling or exercising control of the plaintiff’s goods by the defendant, without the plaintiff’s previous consent, was an act of trespass for which he was liable to the plaintiff; and the fact that the plaintiff afterwards consented to, and in fact did, receive back the goods, did not release the defendant for the taking, and he was liable therefor, notwithstanding such consent and release.</p> <p>The judge instructed the jury that, upon the evidence, there could be little doubt that the defendant did take charge and control of the plaintiff’s goods; that, upon the evidence, he had no right to do so; and that, if nothing else appeared, the plaintiff was entitled to recover such damages as he had sustained in consequence of such taking and detention until he received them back; but that, if the parties entered into an agreement, by which the plaintiff agreed that, if the defendant would take the goods and carry them and store them in a certain barn designated by the plaintiff, the plaintiff would accept the goods and not return to the grounds, and release the defendant from any claim he had against him for the taking and detention, and the defendant assented to the agreement and did deliver and store the goods as agreed, and the plaintiff accepted them under the agreement, he was not entitled to recover in this action.</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>The St. of 1871, c. 133, authorized a city to take the waters of a great pond for the purpose of supplying its inhabitants with pure water; and provided that the city should be liable to pay all damages that should be sustained by any person in his property by the taking of said .waters, or by the taking of any land or water rights. Under the authority of this statute, the city passed an order taking a certain quantity per day of the waters of the pond. Held, that an owner of a mill privilege on a river half a mile long, which was the outlet of the pond, could maintain a petition, under the statute, for an assessment of the damages to his privilege by the taking by the city of the waters of the pond.</p> <p>The St.- of 1871, c. 133, authorized a city to take the waters of a great pond for the purpose of supplying its inhabitants with pure water; and provided that the city should be liable to pay all damages that should be sustained by any person in his property by the taking of said waters, or by the taking of any land or water rights. Under the authority of this statute, the city passed an order taking a certain quantity per day of the waters of the pond. A company had been previously incorporated “ for the purpose of constructing a reservoir of water in ” the pond, “ for the benefit of the manufacturing establishments on ” a river which was the outlet of the pond; and it had power to build a dam so as to raise the water in the pond to a certain height. Its capital stock had always been owned, and it had been managed, by the mill-owners on the river, each of whom owned the privilege attached to his mill. Held, that the corporation could maintain a petition for any damage to its dam or other property caused by the taking by the city of the waters of the pond; and that each mill-owner was the proper party to bring a petition for damages to his privilege by such taking. Held, also, that the city was liable for depriving the petitioners of water used for other purposes, as well as for power. Held, also, that a corporation, whose lands did not border on the stream, but to whose mill water was conveyed by a canal running through the land of a riparian owner, under a deed giving the right to the flow of water from the stream, had the same rights against the city as the riparian owners.</p>

Trustee process. The Old Colony Steamboat Company, a corporation established by law in this Commonwealth, and having a place of business in Fall River, summoned as trustee of the principal defendant, answered that, at the time of the service of the writ upon it, it was a common carrier of freight and passengers between the port of Fall River in this Commonwealth and the port of New York in the State of New York, its course being through the waters of Mount Hope Bay,…

<p>Contract. The declaration was as follows: “ And the plaintiff says that the defendant, on or about October 30, 1879, in consideration of certain services rendered by the plaintiff to the defendant, executed an agreement in writing and delivered the same to the plaintiff, of which agreement the following is a true copy, viz.:</p> <p>“ ‘ Boston, October 30th, 1879. In consideration of certain services rendered by Charles C. Hanson of Lynn, I hereby agree to pay said Hanson, within ten days from the time that I shall have sold and received pay therefor three Dodge Edge Trimming Machines, the sum of two hundred and fifty dollars, also an additional sum of two hundred and fifty dollars within ten days from the time when I shall have sold and received pay for six of said machines. J. W. Dodge.’</p> <p>“ And the plaintiff says, that although the defendant had, on or about January 1, 1880, sold and received pay for more machines than the number mentioned in said agreement, and that on or about January 1, 1880, more than ten days had elapsed since the defendant had sold and received pay for said machines, and although the plaintiff on or about said January 1, 1880, demanded of the defendant payment of said sums mentioned in said agreement, amounting together to the sum of five hundred dollars, yet the defendant neglected and refused, and still neglects and refuses, to pay the plaintiff said sum of five hundred dollars, or any part thereof.”</p> <p>Trial in the Superior Court, before Wilkinson, J., who allowed a bill of exceptions, in substance as follows :</p> <p>The machine mentioned in the contract was invented by the defendant, and secured by letters-patent, which were owned by the defendant at the time the contract was made, he being then alone in business; subsequently he entered into partnership with one Fifield in the manufacture and sale of said machines.</p> <p>The plaintiff, to prove the sale of six machines, according to the terms of said contract, introduced evidence tending to show that, more than ten days before the commencement of the action, the defendant, together with Fifield as his partner in business, had sold and received pay for more than six machines. The defendant objected to this evidence; but the judge ruled that a sale made by the defendant would be a sale within the meaning of the contract, whether the same was made for the sole benefit of the defendant, or in behalf of himself and his partner in business.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>A corporation conveyed all its property to trustees to secure the payment of certain bonds issued by it and payable to bearer. One of the bonds, duly executed, and payable in five years, with interest coupons attached, was lost before issue. Receivers of the corporation were subsequently appointed by this court, with power to collect the assets of the corporation, pay the debts, and divide the balance among the stockholders. The trustees, at the request of the receivers, released to the receivers the property held in trust, and accepted from the receivers a sum of money as security for the lost bond, until such time as the lost bond and coupons should be paid, or the rights of any holder thereof be extinguished. The receivers paid all the debts of the corporation and the bonds which had been issued. Nine years after these bonds were paid, the lost bond not having been presented for payment, the receivers, being ready to close their trust, brought a bill in equity against the trustees to compel a transfer of the sum of money deposited as security for the lost bond, but did not offer to give security which might avail the bondholder if one should appear. The court ordered notice by publication to any one having an interest in the bond, which order was complied with, and no such person appeared. Held, that the bill could not be maintained.</p>

<p>If an action is brought against an administrator on a promissory note made by his intestate, by an indorsee thereof, and this court sustains the defendant’s exceptions on the ground that the note is not a negotiable note, it is within the discretion of the Superior Court to allow the writ to be amended by striking out the name of the plaintiff and inserting that of the payee of the note, although such amendment is after the expiration of two years from the appointment of the administrator.</p> <p>B. gave A. his promissory note, payable in five years, and declared on its face to be given as collateral security for a certain agreement. On the same day, and as part of the same transaction, the parties entered into an agreement, by which it appeared that A. advanced to B. the amount stated in the note, which amount was used by B. in the purchase of a parcel of land, B. giving his promissory note, secured by a mortgage of the land, to his grantor. B. also agreed to save A. harmless from all losses which might occur “ in the decrease or sale of the land,” and to pay the sum advanced by A. towards the purchase, and also to pay a certain amount in one year on the mortgage, and the balance of it in five years. B. was to have full control of the land, was to pay all taxes and interest on the mortgage, and to sell the land for the joint benefit of A. and B., the proceeds of the sale, after paying the mortgage, to be divided equally between them. Held, that A. could, after the expiration of five years, and after breach of the agreement by B., maintain an action against him on the note.</p>

Tort. The- first count alleged that the plaintiffs, on April 6, 1881, delivered to the defendant, a transportation company carrying goods for hire, three cases of shoes, to be carried from Boston to Covington, Kentucky; and that the defendant, before delivering said cases to the consignees, converted the same to its own use.

<p>The owner of a parcel of land mortgaged it, subsequently conveyed his equity of redemption, and several years afterwards went into insolvency. The mortgagee sold the land under a power of sale contained in his mortgage, without obtaining any order of the insolvency court, and applied the proceeds' in part satisfaction of his debt. Held, that he was entitled to prove the balance of his claim against the estate of the insolvent; and that the Gen. Sts. c. 118, § 27, did not apply.</p> <p>A., owning land subject to a mortgage, conveyed his equity to B., who agreed with A. to assume and pay the mortgage. On the mortgage becoming due, neither A. nor B. paid the same. The mortgagee subsequently indorsed the note secured by the mortgage in blank, without recourse, and delivered it to the wife of A., who paid for it out of her separate estate, and the mortgagee at the same time assigned the mortgage to her. B. afterwards became insolvent. Held, that A. could not prove, against B.’s estate in insolvency, a claim for the amount remaining unpaid on the mortgage.</p>

<p>A bailee brought an action of tort for the conversion of goods. His bailor subsequently brought an action of replevin and obtained possession of the goods. In the replevin suit a finding was made for the defendant, for want of a demand before bringing the action, and the case was continued to await the determination of the action in tort. Held, that these facts showed no ground of defence to the recovery of full damages by the plaintiff in the action of tort.</p> <p>At a new trial, granted upon motion of the defendant, in an action for the conversion of goods, on the issue of the value of the goods alone, no other question than their value is open to the defendant.</p>

<p>A count in tort for deceit in the sale of stock may he joined with a count in contract to recover back the price paid.</p> <p>At the trial of an action1 for deceit in the sale of the stock of a corporation, the defendant called as a witness the treasurer of the corporation, who produced his cash-book, and testified that he showed it to the plaintiff before he bought his stock of the defendant. Held, that it was competent for the plaintiff to cross-examine the witness as to the manner of keeping this hook, and to show that it was not fairly kept, and did not contain a correct statement of the affairs of the corporation.</p> <p>No exception lies to the admission of evidence to rebut immaterial evidence.</p> <p>If a bill of exceptions states that the defendant introduced evidence of a conversation between the plaintiff and a third person in a certain month, and that, in reply, the plaintiff testified to a conversation with this third person in the same month and relating to the same subject matter, the defendant shows no ground of exception, although the hill of exceptions does not distinctly state that the plaintiff’s testimony related to the same conversation, and it would otherwise be immaterial.</p>

Petition to the Superior Court, filed December 23, 1879, alleging that the petitioner was the owner of a certain mill in Watertown, with the privilege and right, as appurtenant thereto, to draw and use the waters of Charles River to run the mill; that within three years last past the respondent had taken the waters of said river, as authorized by chapter 125 of the Acts of 1874, by the construction of dams, galleries and other works; and that the petitioner had thereby…

Bill in equity, filed November 29, 1880, alleging that, on August 7, 1873, Elijah Hale conveyed to the plaintiff by warranty deed a certain parcel of land in Stow, and on that day delivered the deed in trust to Edwin Whitney, one of the defendants, for the benefit and use of the plaintiff, as an escrow, and upon the express condition, and under the direction given by the grantor to Whitney, that, upon the grantor’s decease, Whitney should forthwith deliver the deed to the…

<p>Certiorari does not lie to quash the proceedings of a police court in issuing a warrant for the seizure of intoxicating liquors.</p>

<p>Information, m the nature of a quo warranta, filed, June 28, 1882, by the Attorney General in behalf .of the Commonwealth, at the request and upon the relation of Joseph M. Day, alleging that the defendant was usurping the office of Judge of Probate and Insolvency for the county of Barnstable. The case as it appeared from the pleadings, and the report of 0. Allen, J., before whom it was heard, was as follows :</p> <p>The relator was appointed Judge of Probate and Insolvency for the county of Barnstable, on May 19, 1858, by the Governor of the Commonwealth, with the advice and consent of the Council, and a commission was issued to him, by the terms of which he was “to hold the said office during the term of his good behavior therein, unless he shall be sooner removed in the manner prescribed by our Constitution.” He took the oaths of office, and continued to do its duties until May 26, 1882, when he was removed from his office by the Governor, with the consent of the Council, upon the address of both houses of the Legislature. On June 7, 1882, the Governor nominated the defendant to fill the vacancy created by such removal, and his appointment was, on June 14, 1882, consented to by the Council,- a commission was issued to him, he took the oaths prescribed by law, and entered upon the duties of his office.</p> <p>The relator, to support the averments of his replication to the answer of the defendant, that he had been removed for alleged misconduct or maladministration in office, and not for any disability or infirmity, moral or physical, offered in evidence the report of a joint special committee of the Legislature, which set forth the charges against the relator, on which a hearing was had before the committee. This report, being objected to, was excluded.</p> <p>The relator also offered in evidence a certificate of the Secretary of the Commonwealth, that the address of the Legislature to the Governor was in these words: “ The two branches of the Legislature in General Court assembled respectfully request that your Excellency would be pleased, with the consent of the Council, to remove Joseph M. Day from the office' of Judge of Probate and Insolvency for the county of Barnstable; ” and that no other communication from the Legislature, or either branch thereof, to the Governor, or to the Council, in said matter, was or had been in the custody of the Secretary. This certificate was admitted, no objection being made to it. The judge reported the evidence excluded, and reserved the case for the determination of the full court.</p> <p>If the evidence so excluded was incompetent, such judgment was to be entered as to law might appertain; otherwise, judgment to be entered on the case as reserved, with the evidence excluded.</p> <p>T. H. Talbot & J. F. Botume, for the relator. 1. The principal question in this case is as to the true construction of this clause of our Constitution: “All judicial officers, duly appointed, commissioned and sworn, shall hold their offices during good behavior, excepting such concerning whom there is different provision made in this Constitution: provided nevertheless, the Governor, with consent of the Council, may remove them upon the address of both houses of the Legislature.” Const. Mass. o. 3, art. 1. A previous provision of the Constitution declares the Senate to be “ a court with full authority to hear and determine all impeachments made by the House of Representatives, against any officer or officers of the Commonwealth, for misconduct and maladministration in their offices.” It further provides, that “ previous to the trial of every impeachment the members of the Senate shall respectively be sworn, truly and impartially to try and determine the charge in question, according to evidence.” Const. Mass. e. 1, § 2, art. 8.</p> <p>The question then is whether a judicial officer may be removed by address for misconduct and maladministration in office, notwithstanding the Constitution has made special provision for the trial of such offences, one penalty for which is declared to be his “ removal from office,” or whether the power of removal by address applies only to cases of physical or mental inability to perform the duties of his office, and to cases where he has already been convicted by a court of justice.</p> <p>The clause giving the power of removal by address establishes a tenure of office during good behavior; and it is taken from the English Settlement Act of 1700. This act provides, that “ judges’ commissions be made quamdiu se bene gesserint, and their salaries ascertained and established; but upon the address of both houses of Parliament it may be lawful to remove them.” St. 12 & 13 Wm. III. e. 2, § 3.</p> <p>Although, before 1700, the tenure of a judicial office depended on the pleasure of the Crown, yet the Crown by the act of removal did not determine the behavior of a judge as good or bad. That could be determined only by due process of law. Bacon’s ease, 2 How. St. Tr. 1087. Scroggs’s case, 8 How. St. Tr. 163, 193, 216. Clarendon!s case, 6 How. St. Tr. 291, 330, 334, 350. In the enactment of 1700, “good behavior ” meant something the opposite of which could only be ascertained judicially; and Parliament, by enacting that judicial officers should hold office during good behavior, intended that they should hold until the opposite of good behavior should be judicially established. Such was the construction put by the House of Lords upon the English statutes in 1806, in the only case in which, in that country, so far as we know, an attempt has been made to remove a judge by address. In that case, a proceeding to remove by address a judge for misconduct in office was ended upon the ground, as the debates show, that it was not within the intent of the statutes.*</p> <p>The practice in this Commonwealth conforms to our view of the law. Prior to the case at bar, no one has been removed from a judicial office for misconduct in office, except upon a judicial ascertainment of such misconduct. In 1803, Paul D. Sargent and William Vinal, judges of the Court of Common Pleas were removed from office by address. But the address states the cause as follows: “ Having been duly convicted before the Supreme Judicial Court, of the crime of wilful extortion in their offices of justices of the-Court of Sessions.” * In 1821, James Prescott was removed from the office of Judge of Probate for the county of Middlesex; but he was formally tried by the Senate as a court of impeachment. See Prescott's case. In 1858, Edward G. Loring was removed by address from the office of Judge of Probate for the county of Suffolk; but his was not a case of official misconduct. See Special Message of the Governor to the Legislature, of March 19, 1858.</p> <p>2. The clause of the Constitution declaring that “ the Senate shall be a court with full authority to hear and determine all impeachments .... for misconduct and maladministration ” in office, further provides that “ the party so convicted shall be, nevertheless, liable to indictment, trial, judgment and punishment, according to the laws of the land.” It was stated by Mr. Lemuel Shaw, one of the managers in the trial of Judge Prescott, that the Senate in such a case, sits as “ a court of justice, of criminal jurisdiction, possessing all the attributes and incidents of such a court.” Prescott’s case, 182. Jurisdiction therefore being given to the Senate, as a court, of the offence of judicial misconduct, such jurisdiction must be exclusive, except so far as concurrent jurisdiction is given to some other tribunal. The Constitution states one express exception, namely, the right of the appropriate tribunal to proceed by indictment, but it states no other. This clause of the Constitution makes judicial misconduct a crime, and designates the Senate as the tribunal to try it. Being a crime, it falls within the 12th article of the Declaration of Rights, which declares that “ No subject shall be held to answer for any crimes or offence, until the same is fully and plainly, substantially and formally, described to him.” It also gives him the right “ to meet the witnesses against him face to face, and to be fully heard in his defence by himself, or his counsel, at his election.” Whereas, if the contention of the defendant is correct, that the power of removal by address exists for misconduct in office, no cause need be assigned, no trial need be had, and, if the wills of the Governor and Council and of both branches of the Legislature are in unison, a judge may be removed because such is their pleasure, and the provision that “judicial officers shall hold their offices during good behavior” becomes of no effect. No inference can be drawn from the general phraseology of the clause relating to removal by address, that it was intended to cover a matter before specially provided for. Field v. People, 2 Scam. 79, 83. Warner v. People, 2 Denio, 272. Page v. Hardin, 8 B. Mon. 648, 672. Lowe v. Commonwealth, 3 Met. (Ky.) 237, 242.</p> <p>3. The phraseology of the clause of the Constitution in question indicates that it was not intended to apply to the case of maladministration in office. It declares that “all judicial officers shall hold their offices during good behavior: provided, nevertheless, the Governor, with consent of the Council, may remove them.” The natural meaning of this is, that, notwithstanding good behavior, they may be removed, not that they may be removed for bad behavior. That was already provided for by impeachment. A proviso cannot by implication repeal the enacting clause. It merely excepts something therefrom. It may except the case of physical disability out of the tenure of good behavior; it can do no more. It cannot reach the subject of bad behavior, which is not in the enacting clause. In Minis v. United States, 15 Pet. 423, 445, it is said by Mr. Justice Story, “ The office of a proviso, generally, is either to except something from the enacting clause, or to qualify or restrain its generality, or to exclude some possible ground of misinterpretation of it, as extending to cases not intended by the Legislature to be brought within its purview.”</p> <p>It was generally admitted in the Constitutional Convention of 1820, that the intent of the framers of the Constitution of 1780 was to limit the power of removal by address to the case of physical and mental disability, and some of those who opposed the amendments then proposed did so upon the ground-that they were unnecessary, as the power of removal by address applied to cases where a trial would be ineffectual, or where it ought not to be had.* [The counsel then proceeded to discuss the admissibility of the evidence offered to show that the removal was for acts of official misconduct, admitting that the question was immaterial, if the power of removal by address applied to impeachable offences. This portion of the argument is omitted.]</p>

<p>If a member of a copartnership, the articles of which provide that each partner is to give bis time to the business of the firm, and is not to engage in any other speculation or business in his own name and on his own account to the detriment of the firm, uses bis time, and labor and materials belonging to the firm, in making improvements in machines manufactured and sold by the firm, with the knowledge and without the objection of the other partners, they can claim no interest in letters patent procured by him, at Ms expense and in Ms name, for such improvements.</p>

Contract against the members of a firm, doing business under the name of Robins and Bullens, as acceptors of a draft for $2386.63, dated Worcester, July 13, 1880, drawn upon the defendants by the “ Adriatic Woollen Mills, James A. Smith, Agt.,” and payable five days after sight.

Tort for false and fraudulent representations, with a count in contract for money had and received. Answer, a general denial.

<p>Tort against a corporation alleged in the writ to be established "under the laws of the United States, for an injury sustained by the plaintiff’s intestate, an employee of the corporation, by the defective condition of its road-bed. The writ was dated April 1, 1882, and returnable to the Superior Court next to be holden on the first Monday of June. The ad damnum wa' stated in the writ at $25,000.</p> <p>On June 14, 1882, the defendant filed a petition for the removal of the case into the Circuit Court of the United States “next to be holden within and for the District of Massachusetts,” alleging that the defendant was a corporation incorporated under a law of the United States, and was not a banking corporation, and that the plaintiff resided in Hew Bedford in the county of Bristol; that the matter in dispute, exclusive of costs, exceeded the sum of $500; that the defendant had a good and valid defence to said action under and by virtue of a la" • of the United States, namely, its act of incorporation of July 27, 1866, and other laws of the United States relating to said corporation. The petition,was verified by the oath of the president of the corporation. On the same day the defendant filed a bond, with two sureties, in the sum of $500, which contained the following condition: “ The condition of this obligation is such, that whereas heretofore, to wit, on the first day of April last, said Clara E. Ellis, administratrix, commenced an action at law against said Atlantic and Pacific Railroad Company, which action is returnable to the Superior Court of the Commonwealth of Massachusetts for the county of Bristol, at the June term thereof A. D. 1882, and said defendant being a corporation incorporated and organized under the laws of the United States, and having a defence to said action arising under and by virtue of a law of the United States, as it has duly declared under oath as required by law of the United States, desires and has petitioned the court for the removal of said action to the Circuit Court of the United States for the District of Massachusetts: Now therefore, if the above bounden party defendant in said action shall enter in such Circuit Court, on the first day of its session next after the granting of said petition, a copy of the record in said suit, and shall pay all costs that may be awarded by said Circuit Court, if said court shall hold that said suit was wrongfully or improperly removed thereto, and shall appear, in said suit, then this obligation shall be void, otherwise shall remain in full force and virtue.”</p> <p>On July 11, 1882, the Superior Court granted the petition; and the plaintiff appealed to this court.</p>

CONTBAOT, against Isaiah B. Winslow and Frederick Wins-low, upon the following instrument, signed by the first-named defendant and indorsed by the other defendant: “Fall River, June 29, 1872. For value received I promise to pay to Elijah Pierce or bearer five hundred dollars with interest the same as savings banks pay.” Writ dated August 7,1877.

The eirst case was an action of tort against the sheriff of Bristol for the acts of his deputy, Thomas S. Butman, in attaching and keeping possession of the plaintiff’s goods. At the trial in the Superior Court, before Brigham, C. J., the jury returned a verdict for the defendant; and the plaintiff alleged exceptions. The facts, so far as material to the point decided, appear in the opinion. The second case was an action of replevin of certain personal property.

Tort. The declaration was as follows: “And the plaintiff says that he was employed by the defendant to assist in digging a trench in one of the public streets in said city, to wit, in Dodge Street, which trench was opened by said defendant, in the exercise of its rights and in pursuance of its duty, for public and municipal purposes.

<p>Scire facias, issued by this court, is an appropriate process to obtain execution against the estate of a deceased person in the hands of his executor, for arrears of alimony awarded by a decree of this court to the plaintiff against the testator in his lifetime.</p> <p>The provision of the Gen. Sts. c. 155, § 23, that decrees of courts of record “ shall be presumed to be paid and satisfied at the expiration of twenty years ” after the rendition thereof, does not operate as an absolute bar to a writ of scire facias on such a decree; but the presumption may be rebutted by evidence showing that the decree has not in fact been satisfied.</p> <p>On a writ of scire facias against the executor of the estate of a person to recover arrears of alimony, execution does not necessarily issue for the full amount found to be due and unpaid at the time of the death of the testator; but the court has discretion, on the facts proved, to determine for what sum the decree for alimony shall be enforced by an execution against his estate.</p>

Tout for personal injuries. Answer, a general denial. Trial in the Superior Court, before Wilkinson, J., who allowed a bill of exceptions, in substance as follows : The defendant admitted that, on February 26, 1879, it was the owner of a certain tenement house in Salem.

<p>Tort for obstructing a right of way. Trial in the Superior Court, before Rockwell, J., who reported the case for the determination of this court, in substance as follows:</p> <p>The suit was originally brought by Lucy S. Kimball and the present plaintiff. Lucy S. died before trial, and her administrator declined to prosecute.</p> <p>It was proved or admitted that Charles Kimball, the father of the plaintiff, owned a parcel of land in West Newbury, on which were two dwelling-houses, a barn, shed, and other buildings. At his death, dower was set off to Lucy S., his widow, on April 20, 1859, in one dwelling-house, with “ the privilege to it and around it, to pass and repass as may be necessary in order to the full use and enjoyment of the same, and a right to the well by the house for water.”</p> <p>The heirs of Charles Kimball were the plaintiff and John R. Kimball. On June 24, 1859, John R. quitclaimed to the plaintiff all said parcel of land, subject to the dower as set off. On March 16, 1860, the plaintiff conveyed to John R. “ one half interest undivided in the property set off as dower.” On March 17, 1863, the guardian of the plaintiff petitioned the Probate Court for leave to sell all his ward’s real estate. On April 7,1863, a decree was made granting leave to sell the same; and on May 8, 1863, the guardian conveyed to one Chase the whole of said land, with the following reservations, “reserving the house occupied by Mrs. Kimball, with the privilege for the owners of said house to use the yard around said house equally with said grantee, also the same privilege in the yard front of the barn, also reserving the shed with the land under it on the easterly end of the barn, with the hennery near it.” These are the yards over which the plaintiff claimed a right of way. On March 24, 1865, the guardian made return to the Probate Court that he had published notice of the sale on April 10, 1863. The description in the notice was as follows: “A farm situate on the main road in West Newbury, about one •half-mile from Artichoke River and same distance from church. The farm contains about twenty-five acres of good land, good house, barn and other out-buildings. It was formerly owned by Charles Kimball, and is now owned by Charles J. Kimball. For further particulars apply to Newell Ordway, guardian.” On September 11, 1869, Chase conveyed to the defendant all said parcel, without any reservation.</p> <p>The plaintiff, after his father’s death, lived in the house with his mother, Lucy S., for some years, and then moved into the other house, now that of the defendant, and lived there until the sale to Chase. He then moved into the house with his mother again, without any express agreement as to his occupation thereof, and has lived there ever since, occupying one half the house, and his mother occupying the other half. Some seven years before this action, he talked about going elsewhere to live, but his mother said ■ she wanted him to remain there and take care of her as long as she lived. From the time of the deed to Chase until Chase sold to the defendant, the other house was unoccupied. When the defendant came into possession, or shortly after, he put up the obstructions complained of.</p> <p>The plaintiff testified that his mother used the part of the yard around the house, now separated from the rest of the yard by a fence across the southerly part and a small building, (two of the obstructions complained of,) to lay wood upon and the like, whenever she had occasion, after the death of his father, as that part of the yard had before been used, but he could not remember whether she used it after the conveyance to Chase or not; and that she always occupied the shed and the hennery as long as it stood.</p> <p>Upon these facts, the judge ruled that the plaintiff could not maintain this action; and directed a verdict for the defendant. If the ruling was correct, the verdict was to stand; otherwise, a new trial to be ordered.</p>

<p>Bill in equity to redeem land from a mortgage. At the hearing, the bill was dismissed, with costs; and the plaintiff appealed to the full court. The facts appear in the opinion.</p>

<p>Petition to establish the truth of exceptions alleged by Frederick R. Leyland in an action of tort brought against him by Henry E. Pingree, and disallowed by Aldrich, J.</p> <p>The petition alleged, among other things, that, upon the trial of the case, the petitioner requested the presiding judge to instruct the jury that, upon all the evidence, the plaintiff could not maintain his action, and also presented to the judge certain requests in writing for rulings and instructions to the jury (which were set forth); that the said requests were handed to the judge by one of the petitioner’s counsel, while the other was making his closing argument to the jury; that they were not shown to the plaintiff’s counsel; that nothing was said about them to the counsel or to the jury by the judge; that the judge did not otherwise refuse to instruct the jury in accordance with said requests, than is to be implied from his omission, in the instructions actually given, to give the instructions requested or equivalent instructions; that no exception was otherwise saved in relation to said requests before the charge to the jury, or otherwise alleged before verdict, in respect to any omission to instruct the jury in accordance with said written requests.</p> <p>The certificate of the judge attached to the bill of exceptions was as follows:</p> <p>“ The foregoing written requests for rulings were handed to the court by one of the defendant’s counsel, while the other was making the closing argument to the jury; but they were not shown to the plaintiff’s counsel, and they had no knowledge of them until after verdict. The court instructed the jury as stated in the defendant’s bill of exceptions, but made no allusion to the defendant’s written requests for rulings. No exceptions were taken to the instructions given, or to the omission to give others; nor were any questions or exceptions saved in relation to the defendant’s written requests for rulings previous to the charge to the jury, or alleged before the jury were sent out, nor until after the rendition of the verdict. Upon this state of facts, I allow the defendant’s exceptions to the refusal of the court to rule that the plaintiff could not, upon the evidence, maintain his action, and disallow all his other exceptions.”</p>

<p>An action for money had and received, to recover money paid under a mistake of fact, in which there is no claim of fraudulent concealment, is barred by the statute of limitations, unless brought within six years from the date of the payment of the money; and no demand before bringing the action is necessary.</p>

<p>It is no defence to an action against a person, into whose coal-hole in a sidewalk on a street in a city the plaintiff stepped and was injured, that the notice of the time, place and cause of the injury, required by the St. of 1877, c. 234, § 3, to be given by a person injured by a defect in a highway to the “ persons by law obliged to keep said highway in repair,” was not given to the defendant.</p>

Contract, on an account annexed, for the price of goods sold on May 20, 1881, brought in the Municipal Court of Boston. Writ dated June 11, 1881. The only answer filed in that court was a general denial. The defendants were defaulted and appealed.

Contract. Writ dated June 3, 1881. The declaration was as follows: The plaintiff says the defendant owes him $57.10, with interest thereon from the 8th day of February, 1881, for 1400 cigars sold and delivered to him.

<p>Replevin of a lot of household furniture, against Cadis B. Boyce and William Boyce, copartners doing business under the name of Boyce Brothers, and John A. Clark. Writ dated December 22,1879. Trial in the Superior Court, without a jury, before Pitman, J., who reported the case for the determination of this court, in substance as follows:</p> <p>The plaintiff obtained a lot of goods to the amount of $745.79, on March 8, 1875, under an agreement signed by her, which, after setting forth a schedule of the goods, the price of each article and the aggregate price, proceeded as follows:</p> <p>“I have this day received of Boyce Bros, the merchandise named in the foregoing schedule, upon a conditional contract of sale, the condition being, that if I pay said Boyce Bros, nothing dollars on the day of the date hereof, and fifty dollars on or before the eighth day of April, and the same sum on or before the same day in each and every of the following months, from the date hereof, until the whole amount shall have been paid, then said merchandise is to become my property. I am to retain said merchandise for my own use, in the premises now occupied by me, at No. 10 Davis Street, Boston, Massachusetts, and it is not to be removed therefrom without the written consent of said Boyce Bros. In case said merchandise is attached, seized on execution, or liable to be disturbed from any other cause, I agree to give said Boyce Bros, immediate notice. If default is made in the payment of any of the sums above specified, or in the performance of any agreement herein contained, said Boyce Bros., or their agents, may without notice, immediately or at any time thereafter, enter upon my premises, and take possession of said merchandise, and thereupon all claim or right on my part under this contract shall cease and determine; and I agree to deliver said merchandise to said Boyce Bros, in as good order and condition as the same now is, reasonable use and wear thereof excepted.”</p> <p>On March 23, the plaintiff obtained of the Boyces goods to the amount of $140;° on April 9, goods to the amount of $400.78; on August 6, goods to the amount of $48; and on January 1, 1876, goods to the amount of $250.99. At each of these times a schedule of the goods was made on the original instrument, and the plaintiff at each time signed an indorsement upon said instrument as follows: “ I hereby authorize the additions to the within, of this date, upon the same terms, conditions and agreements as within contained.”</p> <p>Payments were made by the plaintiff to Boyce Brothers from time to time. The first payment was on April 8, 1875, of $50; the second payment was on May 10, of $52; and prior to August 6, the plaintiff had made various payments, amounting in all to $610. The payments during the year 1875 amounted to $711, and those during the year 1876 to $531.50. Receipts were given for the sums of money paid “ as per lease.” There was no evidence as to the appropriation of any of the payments, by either party, to any particular portion of said articles.</p> <p>On April 29,1878, the plaintiff executed the following assignment on the back of the contract of sale: “ For value received, I hereby assign to Mrs. Julia A. Gould all my interest in the within contract.” At the same time she received from Gould a written agreement, signed by Gould, as follows: “ This is to certify that Miss O. S. Swett has this day made an assignment to me of a certain lease held by Boyce Brothers, on household furniture now in house No. 10 Davis Street, Boston, with the understanding that the said C. S. Swett is to have said goods after she shall have paid me the amount I have advanced her.” There was no evidence of any formal reassignment to the plaintiff by Gould; but it appeared that the plaintiff had repaid Gould all the money which said assignment was made to secure, prior to September 1, 1878.</p> <p>In April 1879, Boyce Brothers contended that the plaintiff was in arrears over $600 in her payments, and notified her that they would take possession of said furniture, unless some satisfactory arrangement was made at once, whereby prompt payment of the balance due them should be secured; and at the same time offered to accept $400 in settlement of said balance if paid immediately. The plaintiff appealed to the defendant Clark, then her landlord, to assume her indebtedness to Boyce Brothers for the furniture, which she represented to be $400, and to allow her to repay him by increased payments of house rent and otherwise, as they might arrange. Nothing was said as to the $400 being due upon any particular part of the furniture. After some negotiations, the defendant Clark refused to accede to the plaintiff’s proposal, and told the defendants Boyce Brothers that he would have nothing to do with her in the premises; but, early in May following, he entered into a verbal agreement with Boyce Brothers, upon his own account and for his own benefit, and not in behalf of the plaintiff, whereby he undertook to pay to Boyce Brothers $400 in equal monthly instalments of $50 each, in consideration that they should assign all their interest in the premises to him. It appeared that the plaintiff knew that some arrangement had been made between Clark and Boyce Brothers, but not that she knew what it was. No demand was thereafter made upon her by Boyce Brothers for payments on account of the furniture, and no further payments were made by her. Clark continued to make said monthly payments of $50 regularly to said Boyce Brothers, and the plaintiff remained in the possession and use of the house and furniture.</p> <p>On or about September 15, 1879, William Boyce, one of the defendants, in behalf of Boyce Brothers, entered the plaintiff’s house with the defendant Clark, and Clark asked him to take possession of the furniture in question; and Boyce thereupon took possession of all the furniture scheduled on the conditional bill of sale and the several additions thereto, claiming the right so to do on account of the failure of the plaintiff to make payment, and thereupon put the same into the possession and custody of the defendant Clark. The plaintiff was at the same time ejected from the house, as a tenant, by legal process, and deprived of all further use of the furniture. No demand had been made by her before the service of this writ for said furniture, or for any portion thereof.</p> <p>The defendant Clark continued to make said monthly payments to Boyce Brothers, until the whole sum of $400 had been paid by him, the last of these payments being made on December 18, 1879, on which day Boyce Brothers made a written assignment of all their right, title and interest in the furniture to Clark; and thereafter Boyce Brothers neither had, nor claimed to have, any right, interest or title in, or custody or control of, said furniture, or any portion thereof.</p> <p>The plaintiff’s counsel requested the judge to rule as follows: “1. Boyce Brothers having agreed, in May 1879, to accept from Clark $400, in equal monthly instalments of $50, for the balance that they claimed to be due them on the bill of sale, and thereafter receiving such instalments without having repossessed themselves of the furniture, thereby waived and became devested of their right to take possession on account of any prior breach of condition; and, there being no evidence of any subsequent breach, the taking possession by Boyce was wholly tortious. 2. The Boyces, having taken possession of the furniture with the knowledge and complicity of Clark, if such taking was tortious, could not avoid a joint liability with Clark to the action, by a subsequent assignment to him of all their right, title and interest in the furniture.”</p> <p>The judge declined so to rule, holding that the first request was based upon an erroneous view of the evidence; that the second request was based upon an erroneous assumption of the tortious character of the taking, and, even upon that assumption, was not correct law as applied to the action of replevin.</p> <p>The defendant Clark requested the judge to rule as follows: “ 1. If the defendant Clark paid Boyce Brothers $400, upon or by reason of representations made by the plaintiff to him that that amount was due Boyce Brothers, she is estopped to deny it now, and is estopped, as to him, to deny that that amount did not apply to any particular goods. The additions to the lease subsequent to March 8, 1875, under the agreements and payments in respect to the same, were not independent and distinct purchases, but the goods so added became a part of and subject to the original contract, and to the conditions expressed in that contract so far as applicable, and did not become the property of the plaintiff unless the total amount of said lease agreement was fully paid by her. 2. The goods obtained on March 8 and March 23, 1875, did not become the absolute property of the plaintiff on the payments by her, made generally on the contract or lease, of a sum equal to the price named for said goods. 3. Even if the plaintiff could or might have maintained an action for a part or some of the articles, yet if they were all mingled together, and she, before service of the action, made no demand for any particular goods, and did not point out or designate or specify the goods which she then might have replevied, this action will not lie even as to such goods. 4. If the defendant Clark acquired or had a lien on the goods, and possession of them, by or in consequence of his payment of $400, on the plaintiff’s statements or representations that that sum was due on them, he (Clark) could hold all. the goods until all that sum was repaid Mm. 5. If, upon the facts, the plaintiff cannot maintain the action as to all articles, she cannot as to any part of them. If there was not a reassignment of the lease agreement to the plaintiff by Julia A. Gould, the plaintiff cannot maintain this action.”</p> <p>The judge refused so to rule, and ruled and held, in relation to the points covered by the above requests, that, upon the facts found, no estoppel arose between the plaintiff and Clark; that the successive purchases were upon separate contracts, though identical in nature, and that, as matter of law, the payments of cash made by the plaintiff should be applied to the earliest indebtedness, and when they equalled the aggregate price of any such separate lot, it operated as a payment for such lot, and vested the property in the plaintiff; that the defendant Clark had no lien upon the goods so paid for, to secure his payments to Boyce Brothers; and that, under the facts proved, no formal reassignment was necessary from Mrs. Gould, nor any demand prior to suit. And upon the whole case, the judge, having found, upon this view of the law, that the goods purchased on March 8 and 23 had been fully paid for by the plaintiff, ordered a judgment for the plaintiff as to those, and a judgment for the defendant Clark as to the residue of the replevied property.</p> <p>A general judgment for the other defendants was ordered, upon the ground that no action would lie against them, because at the date of the writ and at the time of its service they neither had nor claimed to have any possession of any of the property.</p> <p>The plaintiff and the defendant Clark duly excepted to the refusal to rule as they requested, and to the adverse rulings.</p>

<p>A bill of interpleader, brought by a citizen of another State against two citizens of this State, cannot be removed, on the petition of one of the defendants, to the Circuit Court of the United States, under the U. S. St. of March 3, 1875, § 2.</p>

<p>' Under the St. of 1877, c. 250, § 1, providing that the notice to be issued by a magistrate, to whom application has been made for a certificate authorizing the arrest of a debtor upon the first charge specified in the Gen. Sts. c. 124, § 5, to the debtor to appear and submit himself to an examination touching his estate, may be served on the debtor by “ leaving the same at his last and usual place of abode not less than three days before the time fixed for the examination, and one day additional for every twenty-four miles travel,” a notice to a debtor to appear on the eighth day of a month at nine o’clock in the morning, left at his abode, a little over a mile from the place of examination, on the fourth day of the month at seven o’clock in the evening, is sufficient.</p> <p>In an action upon a poor debtor’s recognizance, entered into under the Gen. Sts. c. 124, § 10, oral evidence is inadmissible to show that the debtor’s last and usual place of abode is different from that recited in the return of the officer who served the notice upon the debtor to appear for examination, issued by a magistrate under the St. of 1877, c. 250, § 1. ■</p> <p>A certificate of a magistrate, under the St. of 1877, c. 250, § 1, reciting that “ I hereby authorize the arrest of the said debtor, if his arrest is authorized by law, to be made after sunset,” is sufficient.</p>

Bill in equity, filed February 27, 1882, by the surviving trustees under an indenture executed by William Appleton on January 25, 1862, to determine whether a provision made, in the third article of the indenture, for the benefit of the first-named defendant, was still in force. The indenture, a copy of which was annexed to the bill, conveyed to trustees named certain shares of corporate stock, upon certain trusts, as therein set forth.

<p>Tort, by the administrator of the estate of John D. Philbrook, for the conversion of certain household furniture. Answer, a general denial. Trial in the Superior Court without a jury, before Wilkinson, J., who allowed a bill of exceptions in substance as follows:</p> <p>The plaintiff, as administrator, made a demand upon the defendant for said furniture before bringing this action, but the defendant did not deliver it, having previously, in July 1879, sold it to one Sawyer; The defendant was allowed to put in evidence, subject to the plaintiff’s exception, that he borrowed of the plaintiff’s intestate $250, and gave as security therefor a mortgage of a parcel of real estate in Beverly, and, as additional security, a bill of sale of said furniture, dated January 17, 1874, in which the consideration was expressed to be $250, the receipt of which was acknowledged; that no money was paid except the sum of $250 so lent; that the intestate never took possession ■ of said furniture, but it had always remained in the possession of the defendant until he sold it to Sawyer, as above stated. The bill of sale was not recorded. There was no evidence of value except the bill of sale, and the fact of the sale of the furniture to Sawyer.</p> <p>The defendant asked the judge to rule as follows : “ 1. If the instrument relied on was a bill of sale, it was without consideration, and no title passed to the vendee. 2. The goods named in the bill of sale were pledged, and, the goods never having been in possession of the pledgee, no title passed, and this action cannot be maintained. 3. An administrator is not a party so as to come within the Gen Sts. o. 151, § 2. 4. The amount recoverable in an action for conversion is the value of the goods at the time they were converted. No value having been proven, and the existence of the goods not having been proven, nothing can be recovered in this action. 5. This action cannot be maintained against the defendant, as at the time of the alleged conversion he had not possession, nor any control over or interest in the goods.”</p> <p>The judge declined so to rule, but ruled that, as between the original parties, the action could be maintained, whether the goods were mortgaged, pledged or sold, and that, on the evidence of the consideration of the amount named in the bill of sale, and the nature of the goods, he found the damages to be $75. The defendant alleged exceptions.</p>

Tort, for taking and carrying away the following articles, alleged to be the property of the plaintiff: one dark-colored cow, one farm-cart, one tip-cart, one cart harness, one whip, one farm-pung, and one buffalo-robe.

<p>In an action of tort for fraudulent representations in the sale of a business, a letter from the plaintiff to the defendant, suggesting charges of false representations, and attempting to obtain a settlement, is inadmissible in evidence in favor of the plaintiff.</p>

<p>The plaintiffs in a bill in equity were the members of an association, and trustees for it of a patent, which was sold to a third person for a certain sum, and the defendants were authorized to receive the money for the use of the shareholders. The defendants accepted the money on the terms of a receipt or covenant, by which they agreed to hold it until certain documents and the great seal of the patent were delivered to the purchaser, and to repay the money to him if all the things mentioned were not done as agreed. These things were not, done, and the purchaser notified the defendants to retain the money. Held, that the defendants accepted the money as stakeholders for both parties until the conditions were fulfilled; and that the bill could not be maintained.</p>

<p>A deed described a parcel of land in a city as bounded and described according to a certain plan, and gave the metes and bounds, the front line being on a street named, one of the side lines being on a street described as a street forty feet wide, and the rear line being on land of a railroad corporation. The plan showed that part of the rear line was a curved line; that on the other side of the street forty feet wide was a lot of land with a frontage of two hundred and sixty feet; that in front of this lot was an open triangular space formed by the street in front of the lot and another street approaching at an acute angle, the side lines of the streets next to this space not being shown. These streets and the open space were owned by the grantor. The streets and the land were then only in part filled and graded. Held, that the grantee did not have the right to have the triangular piece kept open.</p>

<p>A declaration for the price of milk delivered to the defendant, at his request, is supported by proof of a delivery to the defendant’s wife, while living apart from him, without means of support, by reason of his cruelty.</p>

<p>Contract by the treasurer of the Commonwealth against the trustee of the McKay Sewing Machine Association, to recover a tax assessed upon said association for the year 1879, in pursuance of the St. of 1878, c. 275. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, on agreed facts, in substance as follows:</p> <p>Previously to May 10, 1866, Gordon McKay had acquired, by invention, assignment or license, interests in letters patent of the United States for improvements in machinery for sewing the soles of boots and shoes to the vamps, and had been carrying on the business of manufacturing machines under these letters patent, and licensing shoe manufacturers to use them. From the proceeds of the business, he had purchased land in Lawrence, and built a machine-shop on it for the manufacture of such machines, and accumulated some personal property. The legal title in the business and in all the property, both real and personal, including the interests in the letters patent, was and has continued to be in himself; but other persons were and are equitably interested in various proportions.</p> <p>On May 10,1866, McKay executed an instrument under seal,* in which, after reciting the foregoing facts, he declared that he had held and should continue to hold the business and property in trust for the benefit of all persons who were or might become interested therein, upon the terms and conditions therein set forth.</p> <p>Upon the execution of this instrument by McKay, all the persons then interested in the property or business signed an agreement in the following terms: “ In consideration that the said Gordon McKay has agreed and does hereby bind himself and agree to deliver to each and every party having an interest in the property set forth in the foregoing certificate and declaration of trust, a certificate and declaration similar to the foregoing, expressing the several interests of each party, in case all of the persons interested in said property shall sign this agreement, we do hereby severally bind ourselves and agree to receive from said McKay such certificate and declaration of trust, as the sole evidence of our respective interests in the above-described property; and upon the receipt thereof, any other certificate or evidence of title which we may hold to said property shall become cancelled and void, and the same shall be surrendered to him, the said McKay.”</p> <p>Each person then interested received a certificate, signed by the trustee, certifying that he was the owner of a certain number of shares “ in the property of the McKay Sewing Machine Association,” and that the “ shares are transferable by an assignment in writing on this certificate, and a surrender of this certificate to the trustee.”</p> <p>After the execution of the papers, and issue of the certificates, the shareholders, on May 28, 1866, held a meeting, as provided for by the declaration of trust, and chose an executive committee and adopted by-laws for the regulation of the business of the association.</p> <p>Since said date, the business of the association has been conducted by its executive committee under the provisions of said declaration and by-laws, McKay holding the legal title of all its property as trustee, under said declaration, the title of the property never having passed from him. The place of business of the association is and always has been in Boston, except that it has a factory in Lawrence for the manufacture of machines and tools. Except its machine-shop in Lawrence, and the tools and machinery connected therewith, the property of the association and the value of its shares consist chiefly of its interests in the letters patent.</p> <p>Its income is chiefly derived from license fees received from licensees of its machines, and the net amount of this income is divided from time to time, generally quarterly, among its members, in proportion to their respective shares or interests.</p> <p>Its machines are all leased under a form of lease, the legal title to them remaining in McKay as trustee. On May 1, 1879, there were 1216 of these machines in the hands of licensees, distributed throughout the United States; and the interest of McKay, trustee, and of said association therein, exclusive of the interest of the lessees, was taxed to said trustee for that year, in Boston, at the rate of $1 per machine. The total value of the machines at that date, May 1, 1879, was, on an average, $100 for each machine, which had been paid by each lessee on the delivery of the machine to him. By a provision in all of said leases, the lessee upon the termination of the lease, if he has complied with its terms, is entitled to the machine absolutely, upon the payment of $1 to the trustee.</p> <p>Whenever a member sells his shares, or any of them, new certificates are issued to the purchaser, and such purchasers thereupon become members of the association. Said shares are frequently sold, and such sales reported at auction sales in Boston, and are subject of transfer upon assignment of certificates of shares, as set forth in said certificates; and, upon such assignment, the assignee is entitled to receive new certificates, and to demand and receive of the association his proportionate share of the net profits of the association, under said declaration and by-laws. Such shares are held by the person holding the certificate thereof, free from the control of any other person, and are subject to no restrictions or conditions whatever, except such as are set forth in said certificate and declaration of trust.</p> <p>McKay, as trustee of said association, was taxed for its real estate, machinery and tools in Lawrence for the year 1879, as well as in all previous years, and the tax was duly paid; said real estate was assessed at $63,500, and said machinery and tools at $71,216. He was also taxed in said year, as in all previous years, in Boston for the personal property held by him for said association, consisting of office furniture, money on hand, book accounts and interest in said machines in the hands of licensees, all valued at $52,291.99, and upon which he duly paid the assessed tax, amounting to $653.75. This valuation did not include the interests in the letters-patent held by him, it being contended by the trustee that letters patent of the United States were not subject to taxation.</p> <p>The tax sought to be recovered in this action, $14,253.33 was assessed upon the aggregate value of the shares of the association on May 1, 1879, as ascertained by the tax commissioner in pursuance of the provisions of the St. of 1865, c. 283, after deducting therefrom only the value of said real estate, machinery and tools taxed at Lawrence, said assessed valuation being $1,115,284.</p> <p>Upon notice of said taxation, the said trustee, in behalf of the association, duly applied to the board of appeal for a correction of said tax, upon the ground that said valuation and assessment included the interest in said letters patent, and also the personal property taxed in Boston, as it did in fact, at the same time claiming that no tax whatever was assessable against said trustee or association. Upon the hearing, the foregoing facts appeared; but the board of appeal declined to reduce or alter the amount of said valuation or assessment.</p>

<p>A testator by his will authorized a person named to withdraw the contents of the testator’s bank-book from a certain bank after his death, “said money to be disposed of as follows, part for my burial and funeral expenses and the residue for charitable purposes, masses, &c.” Held, that the nominee was not to take the money for his own use; that the will created a valid trust “for charitable purposes, masses or other charitable uses; ” and that, the nominee having died without qualifying as trustee, the court might appoint a successor, who should administer the trust according to the directions of the will.</p>

<p>In an action against the indorser of a promissory note, payable at a certain bank, it appeared that the bank lent the maker of the note a sum less than the face of the note on the pledge of it; that subsequently the maker, while indebted to the bank in that sum, failed, and the bank procured from him a note for the amount of the loan, payable on demand, containing a clause declaring that the note in suit was held as collateral security for it, and that the bank might sell the collateral note on the non-performance of the promise, either at public or private sale; and that the second note was afterwards sold and transferred to the plaintiff, the note in suit, held as collateral security for it, being delivered with it to him. The plaintiff, who was called by the defendant, testified that he paid the full face value of the note thus bought, knew that the note in suit was collateral’ security for it, and received it as such. It also appeared that the plaintiff afterwards sold the note in suit for its full face value to a person who sought to collect its full amount, and who subsequently re-transferred it to the plaintiS. The plaintiS, who now sought to recover only the amount of the loan, asked the judge to instruct the jury that there was no evidence that the bank sold to the plaintiS absolutely the collateral security, or did anything more than to sell to the plaintiS the debt for which it held this security, and the interest of the bank in the collateral security, as such. Held, that this instruction should have been given.</p>

<p>Under the Gen. Sts. c. 11, § 25, after a person has seasonably filed a schedule purporting to be a true list of all his property liable to taxation, and has made oath to the same, the assessors have no right to add to such list other property for which they consider him taxable, and assess him thereon, without making any inquiries of him in relation thereto.</p>

<p>The fact that, at the time of making a contract of insurance, by an agent of the insured with an agent of an insurance company, a prior insurance by the same company existed on the same property, which was a material fact, and which was not known to either contracting party, will not avoid the contract, although the contract would not have been made if the existence of such prior insurance had been known at the time.</p> <p>If, at the time of making a verbal application for insurance, the applicant produces a list of the existing insurance on the property sought to be insured, and states his honest belief that it is correct, and the insurance company has the means of verifying the statement, but fails to do so, and the list proves to be incorrect, this is not a misrepresentation of fact which will avoid a policy subsequently issued, containing an express warranty that all the facts and circumstances have been truly stated in the application, and a condition that, “ if any material fact or circumstance shall not have been fairly represented,” the policy shall be null and void.</p>

Petition under the St. of 1872, c. 343, for the assessment of damages caused by the taking by the respondent of the waters of Charles River. At the trial in the Superior Court, before Pitman, J., the jury returned a verdict for the petitioners; and the respondent alleged exceptions. The facts appear in the opinion.

<p>Bill in equity, filed November 15,1880, under the Gen. Sts. e. 113, § 2, el. 11, against T. H. Perkins, Edward W. Mussey and Julia Higgins, to reach and apply, in satisfaction of an execution for alimony held by the plaintiff against the defendant Perkins, her former husband, certain shares of stock, standing in the name of the defendant Mussey, and claimed by the defendant Higgins to be held by Mussey in trust for her benefit. The case was heard by Devens, J., and reported for the consideration of the full court, in substance as follows:</p> <p>There was due from the defendant Perkins to the plaintiff the sum of $11,198.95, being the balance due on an execution against him in her favor, dated November 12, 1880, for alimony in a divorce proceeding begun on January 28, 1880.</p> <p>In 1870, certain shares of stock in various corporations were set off to Higgins, with other property, in the division of the estates of her brother and sister. At the request of Higgins, the shares of stock were transferred to Perkins, that she might be able to sell them without the consent of her husband, from whom she was separated. Certificates, each of which was numbered, were issued to Perkins in his own name alone. Perkins in fact took the shares in trust for Higgins, but improperly, though without any fraudulent purpose, mixed them with his own shares in the same corporations, and sold them as his own. During the nine years following, he parted with all the shares of stock which he had had from Higgins, and it did not appear what became of them or their proceeds. During the same time he purchased and sold shares of stock, so that, in each of the cor porations, he sometimes had certificates in his name for a larger number of shares than he received from Higgins, sometimes for a smaller number, sometimes for the same number, and sometimes for none at all. He never accounted to Higgins for the sales of the shares he received from her, but paid her sums of money equivalent to the dividends declared from time to time by the various corporations on the respective number of shares in each, which he had received from her.</p> <p>Prior to December 15, 1879, Perkins had from time to time acquired, by purchase or otherwise, and then held standing in his name, shares of stock in each corporation in amounts corresponding to those he had received from Higgins, and he then held no other shares in any of these corporations.</p> <p>On December 15, 1879, Higgins asked Perkins for the names of the stocks belonging to her, saying she intended to make her will, and he gave her a paper with merely a list of stocks upon it, which list included those the subject of this action.</p> <p>On March 2, 1880, he transferred sixteen shares in one of the corporations, and on the 13th of the same month there were transferred to him the same number of shares in the same corporation, which are among those now in controversy.</p> <p>On May 15, 1880, Perkins transferred the stocks now in controversy to Mussey, and took out new certificates in Mussey’s name, without disclosing to him or to any one a purpose to protect Mrs. Higgins or to create a trust, and without making any memorandum to that effect. He testified that he made this transfer “ to protect the identity of these shares as belonging to Julia Higgins, and not to connect them with any other part of my property.” Mussey transferred the certificates in blank to Perkins, and handed them to him. Subsequently, Perkins gave them back to Mussey, but without disclosing to him or to any one a purpose to protect Higgins or to create a trust. There was no evidence that the shares held by Perkins in December 1879 were purchased with the proceeds of the shares belonging to Higgins which had been sold.</p> <p>The judge found that Perkins purchased these shares for the purpose of guarding the trust, and intending to set them aside and use them as the trust fund; that the giving of the memorandum of December 15, 1879, was a declaration of such intent; and that, in putting the stocks into the hands of Mussey, he intended to set them apart for the protection of Higgins.</p> <p>The judge also reported the evidence bearing upon the principal questions in issue. If the facts found and the evidence reported were sufficient to support the conclusion that a trust in favor of Higgins existed as to the shares originally transferred to the defendant Perkins, and attached to the shares subsequently transferred to Hussey, a decree was to be entered accordingly; otherwise, a decree to be entered for the plaintiff.</p>

<p>A testator bequeathed a residuary fund to trustees, in trust “ to hold the said property as they may receive the same, or at their discretion to sell the same or any part or parts thereof,” and to invest the proceeds of such sales according to their best judgment, and, whenever they might deem it expedient, to sell any substituted property at any time held on the trusts, and to invest the proceeds according to their best judgment, with power to convert real estate into personal estate and personal estate into real estate, and to prefer a lower interest and gain to a larger one which might involve risk of loss, and, subject to the payment of certain annuities out of the income, “to pay all the remaining net rents and income during the continuance of this trust” to such of four persons, the testator’s wife and three children, as might be living at the time of payment, and to the lawful issue of any then deceased child, such issue taking by representation. Twenty years after the death of the survivor of said four persons, the trust property was to be conveyed to the testator’s issue then living, they, taking by representation according to the stocks. At the testator's death, he left bonds which were worth more than par, and which have since fallen due. Since his death, the trustees had bought other bonds, some at a price slightly above par and some at par and accrued interest. Held, as between the life tenants and the remaindermen, that the former were entitled to all the net interest on the bonds received from the testator or bought by the trustees when worth more than par; and that the amount paid for accrued interest on the bonds bought should be retained from the interest subsequently received.</p>

<p>If a cashier of a bank receives securities on a loan from the bank to a trustee, with knowledge that the securities belong to a trust, the bank is affected with the knowledge of its cashier, and is put upon inquiry as to whether the trustee has authority to pledge the securities.</p> <p>If a promissory note to a bank is signed by the maker, as trustee, and a portion of the securities deposited as collateral therefor is clearly marked as trust property, it must be inferred that the other securities, consisting of bonds capable of manual delivery, are also trust property.</p> <p>A power in a trustee to sell trust property, and change investments, gives him no authority to pledge the property.</p> <p>If a bank receives as collateral security for a loan bonds capable of manual delivery, and is affected by the knowledge of its then cashier that the bonds are trust property, it continues to be affected by such knowledge, so long as the transaction continues, although its form is changed by new notes given in renewal, from time to time, after the cashier had ceased to be connected with the bank.</p> <p>If a bank makes a loan on certificates of stocks, which show on their face that they belong to a trust estate, the bank is affected with knowledge of this fact, whether the certificates are read by the officers of the bank or not.</p> <p>If bonds are unlawfully pledged to a bank by a trustee, and the bank, with knowledge of this, sells them, it is liable for the value of the bonds, together with interest from the time of the sale, and such interest as it may have received on them before the sale.</p> <p>An indenture of trust, executed in this State, gave the trustee power to manage and improve the trust estate, and receive the income and profits from time to time, and also to sell or exchange the whole or any part of the trust estate, and the proceeds to invest in any other real or personal estate. The trustee applied to a bank here for an advance on cotton to be shipped from a distant State, proposing to forward to the bank drafts on the consignee of the cotton, and, to further protect the bank, offered to pledge personal securities belonging to the trust estate. He also falsely represented that the cotton was grown on plantations belonging to the trust. The bank, without further inquiry, accepted the proposal, and took the securities, knowing that they formed part of the trust estate. Held, that the bank was liable for the value of the securities to the trust estate.</p> <p>H a cashier of a bank is also acting as agent of a person, an account rendered by him as agent to his principal of moneys deposited in the bank and drawn out by him, as agent, is not admissible as primary evidence as against the bank.</p> <p>If a bank, in which a trustee has an account, permits him to overdraw his account, and to pay the overdraft with the proceeds of trust property, which he had a right to sell, the bank is not responsible to the trust estate, if the money overdrawn is misused by the trustee, in the absence of evidence that the money was overdrawn under such circumstances that the bank was fairly put upon inquiry, whether the money was to be used for other purposes than those of the trust.</p>

Tort. Writ dated September 19, 1881. The declaration contained three counts.

Tort for a malicious arrest of the plaintiff by the defendant, on an execution issued out of the Municipal Court of Boston, in favor of the defendant, as administrator of the estate of one Jones deceased.

Contract on a promissory note for $400. The defendants in their answer sought to recoup damages occasioned by the alleged conversion, by the holder of the note at the time of its maturity, of a certificate of stock which the defendants had deposited with the holder of the note as collateral security for the payment of the same at maturity, claiming that said damages amounted to $552.

<p>■Tort for an alleged nuisance to the plaintiff’s estate. At. the trial in this court, before Devens, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.</p>

Tort for personal injuries occasioned to the plaintiff by being thrown from a horse-car belonging to the defendant. Answer, a general denial.

<p>Bill in equity, filed March 28, 1881, by Anna D. Guernsey and her husband, for an injunction to restrain the defendant from removing certain buildings from a parcel of land in Winchester. Hearing before Field, J., who reported for the consideration of the full court the following case:</p> <p>The land described in the bill was the property of the first-named plaintiff, who acquired the same from the receivers of the Mercantile Institution for Savings. The defendant, who previously owned the land, mortgaged it to one Judkins, who assigned the mortgage to the Mercantile Institution for Savings. The receivers thereof foreclosed the mortgage for breach of the conditions, and after the foreclosure had become complete, and after knowledge thereof on the part of the defendant, he without the consent, express or implied, of the receivers, in the fall of 1880, built upon the land a wooden house, fitted and intended for a dwelling, to be used in connection with the land. The house was thirteen feet by twenty-four feet, and rested upon posts sunk into the ground, with the earth banked up above the sills of the house on all sides thereof. The defendant, in the fall of 1879, also built on the land a wooden barn twenty-five feet by thirty-six feet, the main entrance to which was upon land belonging to his wife, the barn extending into the land of the defendant’s wife not more than eighteen inches at any point. It rested on posts sunk into the ground, with the space between the barn and the ground boarded up, the upper boards being nailed to the posts and to the sills of the barn, and the earth being banked up on three sides around the barn. ■ Both house and barn were built after the foreclosure became complete, and after the defendant knew this; but he had continued in occupation of the land, it being vacant, without either the consent or the express prohibition of the owners of the land. The defendant thought that he might perhaps at some time buy the land, and his immediate intention was to use the house for a farmer to occupy, who should be employed on this land and the adjoining land of his wife, and the barn was intended to be used in connection with both lots of land. The house and barn could be removed without doing any great injury to the land, or to the vines, trees and shrubs upon it. The plaintiffs were neighbors of the defendant, and knew that he erected the house and barn, but did not know the state of the title or his relations to the land when he erected the same, and the first-named plaintiff bought the land without that knowledge. After the foreclosure and the conveyance of the land, the defendant made daily use of the barn, although notified by the plaintiffs to desist from passing upon the land; and, before this bill was brought, the defendant threatened and was preparing to remove the house and barn from the land, and claimed the right to do so.</p> <p>On these facts, the judge entered a decree for the plaintiffs, from which the defendant appealed. Such decree was to be entered as justice might require.</p>

Tort for personal injuries occasioned to the plaintiff, on October 1, 1880, by a defect in a highway in the defendant city.

<p>An action upon a judgment recovered in this State against a resident thereof, on a debt due to a resident of another State, is not barred by a discharge in insolvency granted here on proceedings begun after the judgment was rendered, if the original debt would not have been discharged.</p>

<p>A contract was made by a city with several persons, by the terms of which the latter were to perform certain work for the city, and, in case of a breach on their part, the city had the right to order them to discontinue work, and to place such persons, and obtain by purchase or hire such animals, carts, implements and tools, as the city engineer might deem necessary, “by contract or otherwise,” and to charge the expense thereof to the contractors. A breach took place, the contractors were notified to stop work, the city, intending to act in pursuance of the powers conferred upon it by the original contract, in good faith, and in the exercise of a reasonable discretion, made a new contract with one of the former contractors, in precisely the same terms as those contained in the first contract, he committed a breach of the new contract, and the city took possession of the work, hired men and implements, and completed the work. Held, in an action by the city against a surety on the bond of the first contractors, given for the faithful performance of their contract, that the defendant was not released from liability by the notice given to the original contractors to discontinue the work; and that the city had the right to act as it did after the breach of the first contract.</p> <p>If a person contracts to do certain work for another, and commits a breach, and the other, as he has a right to do under the contract, finishes the work at the expense of the contractor, he is bound to keep an accurate account of the money expended; yet, if by accident a book containing the account is lost, so that the amount cannot be ascertained with exact precision, recovery may be had against a surety on the bond of the contractor for such amount as can be ascertained with reasonable certainty.</p> <p>A city entered into a contract with certain persons to perform a public work. The contractors committed a breach of the contract, and the city, as it had a right to do under the contract, completed the work. Held, in an action against a surety on a bond of the contractors, that the city had a right to charge him for services of men who took the place of men whom the contractors would have been obliged to employ, if they had gone on with the work, although the city had employed these men, as inspectors, before the breach. Held, also, that the surety was liable for sums paid in settlement of claims for injuries accidentally done to the property of third persons by the blasting of rocks, although no notice of such claims was given to the contractors. Held, also, that the surety was not liable for surgical assistance rendered to the workmen who were injured during the progress of the work, nor for sums which the city had paid, after the breach by the contractor^ for the wages of workmen hired by the contractors, for services rendered by them before such breach.</p>

<p>Tort, for personal injuries occasioned to the plaintiff’s intestate, John Tully, by being struck by a locomotive engine belonging to the defendant, at a footpath crossing in Somerville. At the trial in the Superior Court, before Rockwell, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.</p>

<p>If A. makes a contract with B., by the terms of which B. is to cultivate A.’s farm on shares for one year from a certain date, and, before the end of the year, A. orders B. off the premises, refuses to allow him to go on under the contract, and lets the land to a third person by a written lease for a year, B. is entitled to maintain an action at once against A., and to recover as damages the value of the contract.</p> <p>On the issue of the value to the plaintiff of a contract which the defendant has broken, a hypothetical question to an expert which does not accurately state the terms of the contract is inadmissible.</p>

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

<p>Tort, for breaking and entering the plaintiff’s close in Chelmsford, in October 1881. Trial in the Superior Court, before Aldrich, J., who allowed a bill of exceptions, in substance as follows:</p> <p>The plaintiff’s evidence tended to show that he found the cows of the defendant in one of his fields, doing damage; that he drove or caused the cows to be driven from the field into the highway, and immediately notified the defendant of what had occurred; that the defendant, who lived within. half a mile of the plaintiff’s land, went at once to the place where the plaintiff had the cows in the highway; that the plaintiff then demanded of the defendant five dollars for the damage done by his cows upon the plaintiff’s premises, and said to him that, if he did not pay the five dollars, he would sue him for the same; that the defendant refused to pay the five dollars, and thereupon took possession of his cows, without any objection on the part of the plaintiff, and drove them back to his own premises; and that the plaintiff did not attempt, or make any claim of a right, to distrain the defendant’s cows until the defendant should pay the sum demanded.</p> <p>The judge instructed the jury, that, if the plaintiff found the cows of the defendant doing damage on his land, he might recover his damages in an action of tort against the defendant, or he might distrain the cows; and that if the plaintiff distrained or undertook to distrain the defendant’s cows, and by that means to enforce the payment of the five dollars demanded by him, he could not now maintain this action for the recovery of the sum so demanded.</p> <p>No objections were made to the instructions given to the jury; but, after the instructions had been given, the defendant requested the judge to instruct the jury that, if the plaintiff took the cows of the defendant from the plaintiff’s premises, drove them away and detained them, and kept them under his control until the arrival of the defendant, whom the plaintiff had sent for, and, when the defendant came, demanded of him five dollars as damages done by the cows on the plaintiff’s premises, such act of the plaintiff was an impounding of the cows, and the plaintiff could not recover such damages in this action. The judge declined to give this instruction.</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Petition to establish the truth of exceptions alleged by the petitioners in fourteen actions severally brought by them against James G. Lowery and John Bleakie, and disallowed by Bacon, J., who presided at the trial of the cases in the Superior Court.</p> <p>The petition was referred by this court to a commissioner, to hear the parties and report his findings. The commissioner reported that the bill of exceptions as tendered by the petitioners would be conformable to the truth, if certain words were added, and certain other words were stricken out. The bill of exceptions so altered was as follows, the words printed in italics being those which the commissioner reported should be stricken out, and the words in brackets being those which the commissioner reported should be inserted:</p> <p>“ These are actions of tort, and by agreement of parties were tried together in the Superior Court, by which each of the several plaintiffs sought to recover for the alleged conversion of a permanent sign bearing his name placed in an advertising case in the post-office room-in Hyde Park, Massachusetts, and being there kept by him for the purpose of advertising his business. The pleadings in one case, and the photograph of the bulletin board used at the trial, may be referred to.* The defendant Lowery, in the summer of 1877, sold to one Gr. Henry Perkins a large bulletin board, the central portion of which contained a large perpendicular mirror, surrounded by a black-walnut frame, and the board at either side of said mirror and frame comprised eight equal compartments, each of which was twelve inches in length, eight and one half inches in width, and at either end of the mirror was a compartment of a larger size than the ones at the side of the mirror, all of which were enclosed within a heavy black-walnut frame, the said compartments being separated from each other by a horizontal black-walnut bar, which extended from the frame which surrounded the glass mirror to the frame which enclosed the whole board, and forming right angles with both frames, [that part of the bulletin board herein designated as 1 compartment ’ being of wood, with a board back, except so much thereof as is shown on the photograph as a glass plate set in each, with the name and business of a plaintiff thereon. No evidence was offered in the case, or at the trial, as to the manner in which said plates were attached to said frame or separable therefrom. Nor as to the question whether or not, or how, any part of the woodwork of the board or compartments could be separated from other parts of the board, or of the compartments, squares or spaces (as they were variously styled). But it appeared that said entire board, including the compartments, was at the time of the alleged sale of said spaces or compartments hereinafter named, by one Perkins, to these several plaintiffs, fully constructed and completed, ready for the reception of said plates.]</p> <p>“ It appears from the testimony in behalf of the plaintiffs at the trial of said cases [tended to show] that, after Perkins became the owner of the property in question, he sold to each plaintiff, except the plaintiff Pollard, (to whom he made a present, which was accepted,) one of said compartments, with, a glass plate fitting and secured therein, [and that he then agreed to furnish and insert therein a glass plate,] lettered in the same manner as the sign or business card of the person purchasing as aforesaid, and a right in common with the other plaintiffs and like purchasers and owners in the mirror and frame, or the parts of the'bulletin board not included within said compartments ; that Perkins, according to agreement with the plaintiffs, [furnished and affixed the glass plates, and] placed said board in the corridor of the post-office, after the glass plates had been placed therein as aforesaid; that it was to be there kept for the purpose of advertising the business of the plaintiffs till such time as they (the plaintiffs) would agree between themselves to have it removed to some other place; [there was some evidence tending to show] that Perkins retained no interest whatever in said board, or in anything thereon or connected therewith, and, at the time of the alleged conversion, that these plaintiffs owned the [portions of] property [bulletin board,] which they [claimed to have] bought, as hereinbefore stated. Each plaintiff offered to show the value of what he claimed to be his permanent sign, which [saying that this] included the plate aforesaid, and the said compartment, or the part of the board on which the glass was placed and secured, as aforesaid, for the purpose intended by him, and the plaintiffs claimed they sought to recover the value of this property, and that these actions were commenced for that purpose; but the court excluded this testimony, and ruled ‘ that the plaintiffs could recover on their declarations only for the glass and lettering thereon.’</p> <p>“ It also appeared from the testimony [there was evidence tending to show,] in behalf of plaintiffs, that one John M. Twichell, who is a deputy sheriff for said county of Norfolk, advertised said bulletin board, and on the 29th day of June, 1878, he went through the form of selling [sold the interest of said Perkins in] the same, in the office of the town clerk in said Hyde Park, as the property of said Perkins, who was present at the sale, and then and there stated publicly, in the presence of the defendant Bleakie, ‘ that the bulletin board was not his, and that he had no interest in it; ’ that the defendant Bleakie bid twice on said board afterward, and it was knocked off to him by said Twichell, who acted as auctioneer; that immediately after said sale one of the plaintiffs warned the defendant Bleakie against touching or in any way interfering with said board; that Bleakie stated to Perkins, a few days after the said sale to him, Bleakie, ‘ that he bought the bulletin board and would take it away;’ that, on the 12th day of July, 1878, the defendant Lowery came into the post-office and said, ‘ I come to take the bulletin board. It belongs to me. I have a bill of sale of it.’ Charles P. Vaughan, the person to whom these remarks were addressed, and whose place of business was then in the post-office room, protested, in behalf of one of the plaintiffs, against the removal of said board; that, as the defendant Lowery commenced to take said board from its assigned place and position in the post-office room, Vaughan went off to look for and report to the plaintiff, who directed him to prevent the removal of said board; that when Vaughan and this plaintiff returned to the post-office, the said bulletin board had been placed in an express wagon in front of the post-office, but the glass plates had been taken therefrom [by the defendants, who exercised reasonable care, doing them no damage, and placed them on his counter,] while Vaughan was absent, as aforesaid; both defendants, and the expressman who was in charge of the team, were then near the said wagon, and the defendants went off together, after the said wagon and board, which has never been returned. Vaughan then returned to his place of business, and he testified, on cross-examination, ‘ that he there found, on the corner of his counter, after the defendants and said team had departed, the glass plates bearing the names of the plaintiffs, and which belonged in the bulletin board, as aforesaid; that he put the glass plates away into a closet, where they were at the time of the trial without instructions from any one; that, in doing this, he acted on his own responsibility, and that no person called for said plates up to that time ; that the majority of the plaintiffs were not aware that the glass plates, bearing the names of the plaintiffs aforesaid, were left in the post-office room, or in Hyde Park, and they believed that all parts of said board, including said glass, had been taken away from said room by the defendants, or either of them, till they heard the testimony of Vaughan as aforesaid, [except as appears from the fact that he was left in charge of the board and forbade its removal, or the other foregoing statements, and that no one of the plaintiffs had taken possession of them; nor did it appear that all of the plaintiffs knew they had been left there.] The plaintiffs did not in any way admit that Twichell had any right to sell any part of the property in question, but they claimed that the sale by him was unauthorized and irregular. At the conclusion of the testimony for the plaintiffs, the court ruled, by request of the defendants’ counsel, that there was no evidence of a conversion, and instructed the jury to return a verdict for the defendants in each case; whereupon verdicts were so returned. To the rulings and instructions aforesaid the plaintiffs except, and they respectfully pray that their exceptions may be allowed.”</p> <p>The judge who presided at the trial made, upon the bill of exceptions tendered to him, the following certificate:</p> <p>“ At the trial I ruled that the plaintiffs could not, under their several pleadings, recover for anything except the value of the letters, glass signs secured in and to the bulletin board or advertising case, and also that there was no evidence for the jury of any conversion of said glass signs by the defendants, to which ruling the plaintiffs duly excepted. The plaintiffs not having presented these exceptions in this bill with reasonable fairness and precision, and having neglected so to amend this bill of exceptions as properly to present said exceptions for allowance, I return this bill of exceptions to the files disallowed.”</p> <p>The commissioner also reported that the judge who presided at the trial prepared a bill of exceptions, which he was willing to allow, and which was a substantially true statement of the facts in the case, unless certain words should have been inserted. The judge’s draft, with the words which the commissioner suggested might be material printed in brackets, was as follows:</p> <p>“ These are actions of tort, and by agreement of parties were tried together, by which each of the several plaintiffs sought to recover for the alleged conversion of a permanent sign bearing his name, placed in an advertising frame or case, in the room of the post-office, in Hyde Park, and being kept there for the purpose of advertising his business. The pleading in one case may be referred to as being the same in substance in each of the other cases, and also a photograph of said frame or bulletin board used at the trial. The evidence tended to show that said bulletin board, placed as aforesaid, containing in the several compartments glass plates fitted and secured therein, lettered like a sign or business card of each of said plaintiffs, as shown in said photograph, and the plaintiffs claimed to recover, in these actions, the value of the plate-glass sign aforesaid, and also the value of that part of the frame on which the sign was placed and secured, and that the word ‘ sign ’ in the declaration included not only the glass plate, but also that part or compartment of the frame or case to which the plate was secured and which held it in place.</p> <p>“ [And there was evidence in the case tending to show that the plaintiffs had severally purchased of one Perkins, and so owned, at the time of the alleged conversions of that part of the woodwork or frame, claimed as aforesaid, or some part of said frame other than the glass plate.]</p> <p>“ But the court ruled that the plaintiffs could only recover under their several declarations for the glass plates and lettering thereon, and' excluded evidence of the value of any part of the frame or case to which said glass plates were secured, to which rulings and exclusions of evidence the plaintiffs excepted. There was another action of tort for the conversion of the frame or case to which these glass plates were secured, brought by these plaintiffs and others, which was tried at the same time, but in this last-named case the jury disagreed. The declaration in said case may be referred to, and is annexed hereto. The only evidence that tended to show a conversion of said glass plates or signs was that the said frame, case or bulletin board having been sold as the property of one Perkins (and whether rightfully so sold was one of the questions tried in the case in which the jury disagreed) to the defendant Bleakie, the defendants under such sale (and) claiming to hold said bulletin board thereunder, took from said case in the post-office room aforesaid said glass signs, and, placing them carefully upon the counter in said room, left them there, and carried away said bulletin board, frame or case, and did no other act or thing tending to show a conversion thereof. The court, at request of defendant, ruled that this did not prove a conversion, and instructed the jury to return a verdict for the defendants in all of said cases, and said verdicts were so returned, and to said ruling and direction of the court the plaintiffs severally excepted.”</p>

Tort for obstructing an easement. Trial in the Superior Court, without a jury, before Gardner, J., who found for the defendant ; and the plaintiff alleged exceptions. The facts appear in the opinion.

<p>Tort, for breaking and entering the plaintiff’s close in Med-field, and doing certain acts thereon. The defendant justified as a surveyor of highways in that town. Trial in the Superior Court, before Staples, J., who allowed a bill of exceptions, in substance as follows:</p> <p>An ancient watercourse, which flowed across and under the highway adjoining the plaintiff’s land, and through her land, had become so obstructed by ice and snow in the plaintiff’s land that the water was thereby set back and overflowed the highway and obstructed the same, rendering it inconvenient and unsafe for travel.</p> <p>Complaint of the condition of said highway was made to the chairman of the board of selectmen of the town, and he requested the defendant, in whose district, as surveyor of highways, this place was, to remedy said defect in the highway. The defendant, acting as such surveyor, entered upon the plaintiff’s land and removed the obstructions of ice and snow from said watercourse, thereby causing the accumulated water to overflow the banks of the watercourse, and wash away some of the soil of a piece of ploughed land of the plaintiff lying near the watercourse, but at a considerable distance below, and not in sight from the place where the defendant worked in clearing out the same.</p> <p>The judge instructed the jury, that, if the highway was unlawfully obstructed by water, by reason of the negligence of the plaintiff in not clearing out and keeping open the watercourse on her land, or by her suffering the same to be filled up with snow and ice, whereby the water had set back upon the highway, the defendant had the authority, he deeming the obstruction to the highway to be a public nuisance, which the safety and convenience of public travel required him to remove, to enter on the plaintiff’s land for the purpose of opening the watercourse, and to clear out the ice and snow therefrom in a proper manner, and so as to let the water upon the highway flow off through the same; the' acts of the defendant being necessary means for the removal of the nuisance, and he doing as little damage as possible to the plaintiff’s land, and having due regard in whatever he did to the safety and protection of the plaintiff’s land lower down on the stream from needless injury by reason of his acts.</p> <p>The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Tort, against a deputy of the sheriff of Barnstable, for releasing and discharging, within thirty days after judgment for the plaintiffs in an action brought by them against Isaac H. Fish, certain goods from an attachment made by the defendant on the writ in said action. Trial in the Superior Court, without a jury, before Brigham, C. J., who found and ordered judgment for the plaintiffs; and the defendant alleged exceptions. The facts appear in the opinion.</p>

<p>An indictment under the Gen, Sts. c. 161, § 2, which prescribes a penalty for wilfully and maliciously burning in the night-time the manufactory of another, “being, with the property therein contained, of the value of one thousand dollars,” alleged that the defendant, at a time and place named, in the nighttime, “feloniously, wilfully and maliciously did burn a certain manufactory, used for the manufacture of fishpoles, the same being, with the property therein contained, of the value of one thousand dollars, of the property of one P.” It appeared at the trial that the building burned was the property of P., and was of the value of four hundred dollars; that the personal property contained in the building belonged to one B., excepting property of a small amount in value, which belonged to the defendant; and that the property belonging to B. was of the value of one thousand dollars. Held, that there was not a fatal variance between the allegations and the proof.</p> <p>At the trial of an indictment for arson, the defendant’s son testified that, at the fire or soon after, he asked the defendant, “ What did you want to set this afire for 1 ” and that the defendant made no reply. The judge instructed the jury that, if the defendant did not hear the question, he was not bound to answer; if he did, the jury would consider whether or not, under the circumstances, he was bound to answer, and how far any inference was to be drawn against him for not answering. Held, that the defendant had no ground of exception.</p>

<p>Indictment, as follows: “The jurors of the Commonwealth of Massachusetts, on their oath present, that John F. Nichols, of Fall River in the county of Bristol, and Almon Ingalls, of Malden in the county of Middlesex, at Fall River in the county of Bristol, on the 'thirtieth day of January in the year of our Lord one thousand eight hundred and seventy-eight, wickedly "and maliciously devising and intending unjustly, fraudulently and maliciously to deprive one Mary A. C. Nichols of her good name and character, and to subject her without any just cause to the punishment by law prescribed for the crime of adultery, did then and there falsely, unlawfully, wickedly and maliciously combine, conspire, confederate and agree together to entrap and ensnare the said Mary A. C. Nichols, and falsely to charge and accuse her of the crime of adultery with the said Almon Ingalls; and that the said John F. Nichols and Almon Ingalls, in pursuance of said agreement, conspiracy, combination and confederacy, did unlawfully plot, contrive and arrange among themselves, at said Fall River, on said thirtieth day of January in the year eighteen hundred and seventy-eight, that said Almon Ingalls should then and there be found by said John F. Nichols in bed alone with the said Mary A. C. Nichols in the night-time in her bed, she, the said Mary A. C. Nichols, being then and there a married woman, and the lawful wife of the said John F. Nichols; and in further pursuance of said agreement, conspiracy, combination and confederacy, the said Almon Ingalls was then and there found by the said John F. Nichols in bed alone with the said Mary A.' C. Nichols in the night-time in her bed, she, the said Mary A. C. Nichols, being then and there a married woman, and the lawful wife of the said John F. Nichols: against the peace of the said Commonwealth, and contrary to the form of the statute in such case made and provided.</p> <p>“ And the jurors aforesaid, on their oath aforesaid, do further present that John F. Nichols, of Fall River in the county of Bristol, and Almon Ingalls, of Malden in the county of Middle-sex, at Fall River in the county of Bristol, on the thirtieth day of January in the year eighteen hundred and seventy-eight, wickedly and maliciously devising and intending unjustly, fraudulently and maliciously to injure one Mary A. C. Nichols, and to deprive her of her good name and character, did then and there, amongst themselves, falsely, unlawfully, wickedly and maliciously combine, conspire, confederate and agree together, falsely, fraudulently and. unlawfully to entrap and ensnare the said Mary A. C. Nichols, and falsely, fraudulently and unlawfully to charge and accuse her, the said Mary A. C. Nichols, of the crime of adultery with the said Almon Ingalls, the said Mary A. C. Nichols being then and there a married woman, and the lawful wife of the said John F. Nichols, with the intent then and there, thereby and by the means aforesaid, to induce her, the said Mary A. C. Nichols, through fear of being publicly charged with said crime of adultery, and prosecuted and arrested therefor, to release, against her will, all rights of property and support to which she was and would be entitled as the wife of said John F. Nichols, including a release of all claim or right of dower in and to the real estate of the said John F. Nichols; and further, with the intent then and there to induce her, the said Mary A. C. Nichols, through the fear and by the means aforesaid, against her will to surrender, give up and release all claims under or upon a certain promissory note signed by the said John F. Nichols, whereby, for value received, he promised to pay the sum of three thousand dollars, on demand, to one Lafayette Nichols, or order, which note was indorsed by said Lafayette Nichols and delivered to her, the said Mary A. C. Nichols, and was then and there held and possessed by the said Mary A. C. Nichols as her sole and separate property; and further, with the intent then and there, by the means aforesaid, that the said John F. Nichols might unjustly and wrongfully procure a divorce from the bonds of matrimony between him and the said Mary A. C. Nichols, against her will, for the crime of adultery falsely and fraudulently charged. And the jurors aforesaid, on their oath aforesaid, do further present, that in pursuance of said agreement, conspiracy, combination and confederacy, the said John F. Nichols and Almon Ingalls did, at said Fall River, on said thirtieth day of January, plot, contrive and arrange among themselves that the said Almon Ingalls should lodge in the dwelling-house occupied by the said Mary A. C. Nichols as a residence at said Fall River, and that the said Almon Ingalls should then and there, unlawfully and against the will of the said Mary A. C. Nichols and without her consent, get in bed alone with her, and should be so found therein with her; and in further pursuance of said plotting, contriving and arranging amongst themselves, the said Almon Ingalls, on said thirtieth day of January, at said Fall River, in the night-time of said day, did, unlawfully, against the will of the said Mary A. C. Nichols, and without her consent, get into bed alone with her, the said Mary A. C. Nichols, therein, at the dwelling-house aforesaid, and was then and there found in bed alone with her therein by the said John F. Nichols: against the peace of the said Commonwealth, and contrary to the form of the statute in such ease made and provided.</p> <p>“ And the jurors aforesaid, on their oath aforesaid, do further present, that John F. Nichols, of Fall River in the county of Bristol, and Almon Ingalls, of Malden in the county of Middlesex, at Fall River in the county of Bristol, on the thirtieth day of January in the year eighteen hundred and seventy-eight, wickedly devising and intending to injure and defraud one Mary A. C. Nichols, and to deprive her of her good name and character, and to subject her without any just cause to the punishment by law prescribed for the crime of adultery, did then and there, amongst themselves, falsely, unlawfully, wickedly and maliciously conspire, combine, confederate and agree together falsely and fraudulently to entrap and ensnare the said Mary A. 0. Nichols, and falsely and fraudulently to charge and accuse her, the said Mary A. C. Nichols, of the crime of adultery with the said Almon Ingalls, she, the said Mary A. C. Nichols, being then and there a married woman, and the lawful wife of the said John F. Nichols: against the peace of the said Commonwealth, and contrary to the form of the statute in such case made and provided.”</p> <p>In the Superior Court, the defendants filed a special plea to the indictment, alleging that the charge of conspiracy contained therein was fully heard and tried in a libel for divorce brought by the defendant Nichols against the said Mary A. 0. Nichols for adultery with the defendant Ingalls, the said charge of conspiracy being set up as a defence by her; and that the court granted a divorce to the defendant Nichols. The government demurred to the plea. Colburn, J., sustained the demurrer, and overruled the plea; and the defendants excepted. The defendants then filed motions to quash the indictment, which were also overruled against the defendants’ exception. The jury returned a verdict of guilty against both defendants; and they alleged exceptions.</p>

<p>Under the St. of 1867, c. 130, § 1, requiring the owner or keeper of a dog to cause it to he registered and licensed for one year “ in the office of the clerk of the city or town wherein said dog is kept,” and § 5, providing that “ a license from the clerk of any city or town shall be valid in any part of the Commonwealth, and may be transferred with the dog licensed, provided said license be recorded by the clerk of the city or town where such dog is kept,” if the keeping of a dog is transferred from the city or town in which it is registered and licensed, the license must be recorded in the city or town where, after such transfer, the dog is kept.</p> <p>If the owner of a dog takes it to a town other than that in which it is registered and licensed, and keeps it there for four months, although he goes there for no definite period and with the intention only of remaining there temporarily for rest and recreation, and leaves his home ready for occupancy upon his return, and comes to the place in which it is situated every day to his business, the dog is “ kept ” in the town to which it is so taken, within the meaning of the St. of 1867, c. 130, §§ 1, 5.</p>

<p>Bill in equity, against the executors of, and the legatees under, the will of Austin-Smith, alleging the following facts: Austin Smith died on September 5,1871, seised of a tract of pasture land in Conway. He left a will, which was duly proved and allowed, and by which he devised to his son, John M. Smith, one of the defendants, said pasture land, “provided, and it is a condition of this bequest, that the said John M. shall, at the expiration of two years from my decease, pay to my granddaughter Mary B. Smith, daughter of Elihu Smith, the sum of one thousand dollars; and shall also pay to my son, Elihu Smith, the sum of four thousand dollars, to be held by said Elihu in trust, as hereinafter provided.” The will also contained the following clause: “ To my son, Elihu Smith, I give and bequeath the sum of four thousand dollars, to be paid to him by my son, John M. Smith, at the expiration of three years from my decease; to have and to hold the same until the expiration of eight years from my decease in trust, for the following purposes: the yearly income, until the expiration of the eight years aforesaid, to be divided equally between my said sons, Elihu and John M., and the principal (four thousand dollars) at the expiration of the said eight years, to be paid over in equal portions, share and share alike, to my grandchildren who may be then living, excepting Mary B. Smith, daughter of Elihu Smith, whom I have otherwise provided for. The foregoing legacies to my grandchildren, including that to my granddaughter Mary B. Smith, are subject to this condition, that in case any one of my said grandchildren shall die before arriving at the age of twenty-one years, his or her portion shall be divided equally among the survivors, share and share alike.”</p> <p>The defendants John M. Smith, N. A. Smith and Elihu Smith were made residuary devisees and legatees of the estate of the testator, and were appointed executors of his will. They accepted the trust, qualified as executors, and gave their joint and several bond, with sureties, to the judge of probate, conditioned to pay all the debts and legacies of the testator. John M. entered into possession of the land devised to him, and has ever since continued in the occupation of the same. On July 1,1874, he mortgaged said land to the plaintiffs, with full covenants of warranty, to secure the payment of a sum of money lent to him by the plaintiffs. The mortgage debt and interest thereon are still unpaid. The plaintiffs made the loan in good faith, supposing that the same was rightfully obtained by John M. as such executor and devisee. The defendants have declared to the plaintiffs that the legacies so charged upon said land have never been paid by John M. to the legatees; that the executors have no funds to pay the same; and that the defendants intend to enforce the lien on said land for the legacies, as a lien thereon prior to the rights of the plaintiffs under their mortgage. The defendants, other than the executors, have brought a writ of entry against the plaintiffs to recover said land, although the plaintiffs have never entered and taken actual possession of the land under their mortgage. The land is not now of sufficient value to satisfy both the defendants’ demand for the legacies- and the plaintiffs’ mortgage lien.</p> <p>The prayer of the bill was that the legatees might be restrained from proceeding against said land for payment of their legacies until they had exhausted their remedies against the assets in the hands of John M. Smith, or their remedy on the probate bond, and for general relief. The defendants demurred for want of equity.</p> <p>The case was heard on the bill and demurrer, by W. Allen, J., and reserved for the consideration of the full court.</p>

<p>A statute authorized the extension of a railroad, and provided that it should not cross any existing railroads at grade, and that all necessary structures for crossing under grade should be subject to the approval of the railroad commissioners. A plan for the proposed structure by which a railroad was to be crossed was prepared and submitted to the railroad commissioners, and, a hearing being had, was approved by them. After the hearing, and before being notified of the approval, the railroad company whose location was to be crossed extended a siding so as to make a second track at the point of crossing. The other railroad company tore up this siding, and removed the embankment supporting the same. The track of the railroad, as it existed at the time of the hearing, was not disturbed, and the extension of the railroad was constructed under the same, in accordance with the plan proposed to, and approved of by, the commissioners. Held, that the railroad company whose location was thus interfered with could not maintain a bill in equity against the other railroad company to restrain it from tearing up the siding and removing the embankment, and to recover damages for such acts.</p>

Replevin of a building. Trial in the Superior Court, without a jury, before Knowlton, J., who allowed a bill of exceptions, in substance as follows: In 1862, James Estabrook, senior, the father of the defendants, and Arthur E. Estabrook, one of the defendants, were the owners of an estate, consisting of a tract of land, with a large building between four hundred and five hundred feet long, used for manufacturing purposes, and occupied by various persons, to whom the…

Contract to recover $500, alleged to have been voted to the plaintiff by the defendant town.

Tort for personal injuries occasioned to the plaintiff while in the defendant’s employ.

<p>Contract, against ‘William Edwards, Stephen K. Edwards' and Frank Edwards. The writ described the defendants as “late copartners as Wm. Edwards & Sons.” The declaration contained three counts. The first count was on a promissory note, dated July 1, 1879, for $3217, payable to the order of the plaintiff, on demand, after date, with interest at the rate of seven per cent per annum, alleged to be signed “ Wm. Edwards & Sons.” The second count was for money had and received, according to an account annexed, the first item of which was as follows: “1879, July 1. To amount found due from the defendants to the plaintiff, and to be paid over, but retained at that date in their hands, $3217.” The second item was for interest. The third count was as follows: “And the plaintiff says the defendants owe him $3217, for balance found due to the plaintiff by the parties on accounting together, on July 1, 1879, with interest thereon.” All the counts were alleged to be for the same cause of action.</p> <p>The answer of William Edwards, who alone defended, contained a general denial to all the counts, denied the genuineness of the signature to the note, and that he was ever a member of the firm of Wm. Edwards & Sons; and set up the statute of limitations as to the cause of action in the second and third counts; alleged that, if he was ever indebted, it was upon a note dated July 1, 1873,- and such note was paid by a note dated July 1, 1879, signed by the other defendants. Trial in the Superior Court before Knowlton, J., who allowed a bill of exceptions, which, after stating that the pleadings might be referred to, was in substance as follows:</p> <p>The plaintiff was the son of Orren A. Buxton, who acted for him and was his agent in all the transactions hereinafter referred to.</p> <p>Stephen K. Edwards and Frank Edwards were sons of William Edwards; and the evidence tended to show that, in 1865, William and Stephen K. formed a copartnership to carry on business in Southbridge under the name of Wm. Edwards & Son, and kept a store there, selling various kinds of merchandise in that firm name until the spring of 1873, when Frank Edwards joined them as a copartner, and their firm became Wm. Edwards & Sons; that said firm was dissolved by mutual consent on January 1, 1875, and was succeeded in the same business by a new firm, in which Stephen K. and Frank were the only members, under the name of Wm. Edwards Sons; that on July 1, 1873, the firm of Wm. Edwards & Sons was indebted to Orren A. Buxton in different sums, which, with the interest upon them, amounted in the aggregate to $2432.55, for which amount said firm gave their note payable, with interest at eight per cent, to the plaintiff; that payments were made upon that note as follows: August 15, 1876, $40; March 3, 1877, $210; October 30, 1878, $75; October 9, 1879, $200; that all these payments were made with their own check and moneys by the firm of Wm. Edwards Sons, and that they were the only payments ever made thereon; that, in December 1879, Frank Edwards computed the amount due upon said note up to July 1, 1879, reckoning interest in annual rests upon the principal, and also upon the payments which had been made upon it, part of the interest being reckoned at seven per cent and part at eight per cent, in accordance with an agreement made with Orren A. Buxton; and the same day Stephen K. Edwards signed the note in suit for the amount so ascertained, dating it back to July 1, 1879, and delivered it to Orren A. Buxton for the plaintiff; that the former note was taken by Stephen K. Edwards, part of the signature was torn off, and it has been kept by him since. The defendants testified that William Edwards had no knowledge of this transaction, or of the making of the payments upon the former note.</p> <p>It was in dispute between the parties whether the signature upon the note in suit was “Wm. Edwards & Sons” or “Wm. Edwards Sons.” There was a curved line or loop after the word “Edwards,” which was continuous with the lines of the letter “ S ” in the word “ Sons,” which the plaintiff contended was the character “ & ” and the defendant contended was a part of the letter “ S.” It appeared that William Edwards was not present at the time this note was made and delivered.</p> <p>Orren A. Buxton was asked by the plaintiff’s counsel, “ What was said at the time the note was delivered?” The defendant objected, but the witness was allowed to answer, against such objection, in substance as follows: “We had an-accounting in 1879 about that note (meaning the note of 1873). At the time of that accounting, I had no idea of a dissolution of the firm of Wm. Edwards & Sons. Frank Edwards was there at the store, and I asked him if he knew how long that note had run that I held against him. He said he did not know. I said I thought it had run about six years, and that it ought to be looked after. I took it out and we figured it up. Stephen said eight per cent was rather too much for the whole time, and I said, 1 Call it eight per cent for two years and seven per cent for the balance.’ Frank said, ‘You had better have a new note.’ I said I guessed we had. Stephen said we had, but they could not afford to pay but seven per cent. Frank wrote it. I think Stephen signed it, but am not certain.” In response to another question the witness said, “I know the signature of Wm. Edwards & Sons; I have had it times enough, I ought to know it.” Being shown the signature upon the note in suit, he said, “ I should think this was their signature.” Having said, “ There was no talk whose note it was,” he was asked, “ Whose note did you receive it as ? ” and was allowed to answer, against the defendant’s objection, “ I took it as the note of Wm. Edwards & Sons. It is the signature of that firm; I never knew anything different.”</p> <p>On May 30, 1878, Orren A. Buxton, in a letter addressed upon the outside to Stephen Edwards & Co. and upon the inside to Mr. Edwards, sent a draft for $275, requesting a note for the same, and Wm. Edwards Sons sent him their note, dated May 22, 1878, therefor, by letter. Buxton testified that he supposed that was the note of Wm. Edwards & Sons.</p> <p>In the fall of 1880, the firm of Wm. Edwards Sons went into insolvency; and, at the solicitation of Stephen K. Edwards, the plaintiff signed and made oath to a certificate in the usual form for the proof in the insolvency court of the note in suit, and Orren A. Buxton signed and swore to a like certificate for the proof of his note of $275; and both said claims were proved and allowed. Both these affidavits for proof were prepared by the attorney of Stephen K. Edwards, and there was evidence that Orren A. Buxton was consulted about it before the plaintiff’s proof was made, that he was present when it was made, and that the plaintiff did not read it over or hear it read. It was not shown that William Edwards was present, nor was it contended that any deceit was practised upon or false representations made to the plaintiff, or the said Orren A. Buxton, to procure said proofs. In the direct examination, Orren A. Buxton testified, without objection, regarding the proof of the plaintiff’s claim in insolvency and some of the attending circumstances, but the affidavit for proof was not formally put in evidence.</p> <p>The defendant’s counsel, in connection with the cross-examination of Buxton, put in evidence the proof in insolvency, made at or about the same time, of his note for $275, above named, and cross-examined him about it. In reexamination the plaintiff’s counsel put in evidence, without objection, the affidavit upon which the plaintiff’s claim was proved, and asked the witness, “Who did you understand had then gone into insolvency?” The defendant objected, but the witness was allowed to answer, “I understood it was Wm. Edwards & Sons.” The plaintiff was afterward called as a witness, and was allowed, against the defendant’s objection, to answer the same question in the same way.</p> <p>It appeared that the plaintiff, acting under the advice of his counsel, on April 5, 1881, upon his petition to the insolvency court, was permitted to withdraw his said proof against Wm. Edwards Sons, but it did not appear whether any objection was made thereto.</p> <p>There was no evidence offered to show that, at the time the note in suit was made, Frank Edwards or Stephen K. Edwards did any act or made any statements or representations calculated to deceive ; and the plaintiff did not contend that any fraud was practised upon him in connection with the making or delivery thereof.</p> <p>There was evidence that the firm of Wm. Edwards & Sons published notice of the dissolution of their firm for three weeks successively in the Southbridge Journal, the plaintiff and his father living in North Brookfield at the time; and that the firm of Wm. Edwards Sons, for a long time afterward, published in said paper an advertisement of their business, and procured and used printed billheads and letter-paper with printed headings showing the firm name and the names of the copartners, and that they marked their bags with their firm name, and that letters were written to the plaintiff’s agent, Orren A. Buxton, upon said printed letter-paper, and that he received a note and some checks signed with their firm name; and this and other evidence tended to show that Orren A. Buxton had actual knowledge of the dissolution of said firm at the time the note declared on was made, and, prior to December 1879, was in possession of such documents, checks, letters sent to him, and other facts, as would reasonably put him upon inquiry regarding such dissolution, and of such information derived from the documents, letters, checks, and other facts, that, as a man of reasonable intelligence and understanding, he ought to have known that such dissolution had taken place; but there was no evidence that any documents, letters or checks were sent to the plaintiff, or his agent, as notices, or for the purpose of giving notice, of the dissolution of said firm, or that any of them contained words of express notification or information of such dissolution, unless the signature “ Wm. Edwards Sons ” to letters and checks, and the printed letter-heads of Wm. Edwards Sons with the printed names of the two sons as members of the firm, can be so considered.</p> <p>The plaintiff introduced evidence tending to show that he had no knowledge of the dissolution of the firm of Wm. Edwards & Sons at the time the note declared on was made, and that he and his father, Orren A. Buxton, believed said firm continued in existence until some weeks after the failure of Wm. Edwards Sons, in the fall of 1880.</p> <p>The defendant requested the judge to instruct the jury as follows : “ 1. If the jury are satisfied that the firm of Wm. Edwards & Sons was dissolved on January 1,1875, by mutual consent, and that a new firm was formed composed of Frank Edwards and Stephen K. Edwards, who subsequently carried on the business under the firm name of Wm. Edwards Sons, and no payment was made upon the note dated July 1, 1873, previous to January 1, 1875, and that all payments after January 1,1875, on said note or on account of the debt represented by it, were made by said new firm of Wm. Edwards Sons, on account of said new firm, then the note dated July 1, 1873, and the debt represented by it, would be barred by the statute of limitations, and the plaintiff cannot recover thereon against the defendant William Edwards. 2. Ho payment upon the note dated July 1, 1873, or on account of the debt represented by such note, made by said S. K. Edwards and Frank Edwards, either separately or jointly as members of the new firm of Wm. Edwards Sons, to the plaintiff or his agent, after the plaintiff or his agent in the transaction had notice of such dissolution of the firm of Wm. Edwards & Sons, would operate to take the claim out of the operation of the statute of limitations as against William Edwards, or entitle the plaintiff to recover as against him on the note, or upon the debt or claim in any other form. 3. If the jury find that the note in suit is the note of Wm. Edwards Sons, and S. K. Edwards and Frank Edwards gave it as their note, and the plaintiff accepted it in payment of the note of July 1, 1873, he cannot recover now as against William Edwards, upon the counts contained in the amended declaration, although he supposed it to be the note of Wm. Edwards & Sons, if the jury find that no fraud was practised upon him at the time said note was given. And fraud must be proved; it cannot be presumed; and in this case the burden of proof is upon the plaintiff, who charges it, to satisfy the jury that some act was done at the time the note was signed, or some deception practised with the intent to mislead or deceive, that did in fact deceive or mislead the plaintiff. The mere mistake of the plaintiff or his agent in his knowledge as to what persons were bound by the signature which he obtained to the note when it was signed, or his mere supposition that William Edwards was bound by it, would not be sufficient to prove fraud, unless the jury find that S. K. and Frank Edwards at the time intended to mislead and deceive, and in pursuance of such intent did some act or made some statement which did in fact mislead and deceive him. The plaintiff must adduce stronger proof to establish fraud than would be required to prove the signing of the note or the existence of a debt; the presumption that persons act honestly and without fraud is so strong, that when fraud is charged the proof must be not only sufficient to establish an innocent act, but to overcome this presumption of honesty also. 4. If the plaintiff or his agent met S. K. Edwards and Frank Edwards, and agreed with them as to the amount due upon the note of July 1, 1873, and S. K. and Frank agreed to pay the same, the plaintiff cannot recover upon that contract against William Edwards, if the jury find that the firm of Wm. Edwards & Sons was dissolved on January 1, 1875, although the plaintiff did not know of such dissolution. 5. If the plaintiff or his agent knew of the dissolution of the firm of Wm. Edwards & Sons before the note in suit was given, or if he or his agent was in possession of such facts that he or said agent ought to have known of such dissolution, by the exercise of reasonable diligence, and those facts were such as to put him upon inquiry, then he cannot recover upon either count of his declaration against William Edwards. 6. If the plaintiff or his agent knew, when the note in suit was made, that the firm of Wm. Edwards & Sons had been dissolved, and that William Edwards was no longer carrying on business with the other defendants, and, having such knowledge, dealt with the other defendants aforesaid,- then William Edwards would not be liable on either count of the declaration. 7. Upon the question of notice of the dissolution of the firm of Wm. Edwards & Sons, it is not necessary, to bind the plaintiff, to show that he or his agent was told that such firm had been dissolved, or that he saw the published notice thereof; but if he or his agent was in the possession of such documents, checks, letters and other facts as to reasonably put him upon inquiry, and he failed to make such inquiry or investigation as a reasonable man would make under such circumstances, and negligently failed to make such inquiry or investigation, he cannot now avail himself of the position that he had no notice of the dissolution. If, under the circumstances above stated, he or his agent failed to make inquiry or investigation, he cannot now avail himself of the position that he had no notice of the dissolution. FTor is it necessary to show that he or his agent in fact knew the terms of the dissolution contract, and who was authorized to settle the affairs of the firm of Wm. Edwards & Sons, if he or his agent knew that such dissolution had taken place in fact, or if, having taken place in fact, he or his agent was in possession of such information derived from the documents, letters, checks and other facts, that, as a man of reasonable intelligence and understanding, he ought to have known that such dissolution had taken place. It is enough if it is shown that he or his agent actually knew, or should have known, for the reasons stated above, the fact simply of the dissolution, if one was in fact made, without stating the terms thereof. (Upon the question of notice, the dealings of the plaintiff or his agent with S. K. and Frank Edwards, the letters, receipts, checks, and their contents and statements, as well as the evidence of the witnesses as to conversations had with the plaintiff’s father, are competent evidence to be considered by the jury, if he was acting as the agent of the plaintiff.) If the jury find that the documents, letters and checks sent the plaintiff or his agent were of such a character as to lead a person of ordinary intelligence and understanding to suppose and believe that a change had taken place in the name of the parties actually carrying on the business formerly carried on by Wm. Edwards & Sons, and that William Edwards was no longer interested therein, and that previous to giving the note in suit, that would be notice such as would prevent the plaintiff from recovering in this action against William Edwards. 8. Upon the question of payment, the fact that the plaintiff or his agent surrendered the note of July 1, 1873, to the defendants, and that the same was given up and cancelled, is competent proof of payment.”</p> <p>The judge gave the second, sixth and eighth instructions requested, and so much of the seventh as is enclosed in parentheses, and declined to give any of the others in the form in which they were presented, and gave no equivalent ones except as hereinafter stated, and, among other things, instructed the jury that upon the first count the plaintiff could not recover, unless they found that the signature upon the note was the real and genuine signature of the firm of “ Wm. Edwards & Sons ” and not the signature of Wm. Edwards Sons; that, if they so found, they would consider the question of the dissolution of the firm ; and, after giving the jury the general rule that constructive notice of dissolution terminates the liability of a member of a firm as to persons dealing with another member of it, if they had never dealt with it before, said that a different rule prevailed as to those who had formerly been dealers with it; and that, in this case, inasmuch as no question was made but that the plaintiff was a former dealer with the firm of Wm. Edwards & Sons, if they found that firm had been dissolved before the making of the note declared on, they would inquire whether he had actual notice or actual knowledge of such dissolution, either personally or through Orren A. Buxton, his agent; that, if he had such notice or knowledge that said firm had been dissolved, he could not recover, otherwise he could; that, in determining the question, they would consider as evidence all the letters, receipts, checks, documents and other things tending to show notice or knowledge, and that from this evidence they might properly infer knowledge; and that upon this question they might properly presume that known facts and trustworthy information produced upon his mind such effects as they ordinarily produce in like cases upon the minds of persons of common intelligence.</p> <p>As to the second and third counts, the jury were instructed, among other things, that if the note on which suit was brought bore a signature which resembled the genuine signature of Wm. Edwards & Sons to such a degree that it might properly be read as that signature, and that a person of ordinary skill and experience in reading manuscript, familiar with that signature, would be likely to take it for that, and if the plaintiff received the note in the mistaken belief that it was signed in the firm name of Wm. Edwards & Sons, when it was in fact the note of Wm. Edwards Sons, and he never received or had held it as the note of Wm. Edwards Sons, such receipt of the note by the plaintiff would not be a payment of the debt due him; that, if the plaintiff did not receive the note under such a mistake of facts as to leave his former debt unpaid, he could not recover; that if he did receive it under such a mistake, they would inquire further what that debt was; that if the occurrence relied on by the plaintiff constituted a single transaction made up of the giving up of the old note and the delivery of a new one, such a mistake would leave the old note unpaid, and the plaintiff’s remedy would be upon that, and he could not recover in this action, but if those occurrences constituted two separate transactions, first the reckoning up of the amount due upon the old note and giving that up, and the creating a new form of indebtedness and afterward the giving of a new note for that indebtedness in its new form, if through mistake such new note was not payment, the plaintiff could go back to the indebtedness in that new form, if in that case the plaintiff dealt with the parties as members of the old firm of Wm. Edwards & Sons and had no actual notice or actual knowledge that said firm had been dissolved, he could recover; that if said firm had been dissolved, and the plaintiff had such notice or knowledge of it, he was bound to know that these two persons had no right to receive the old note and fix an amount which should create a new kind of obligation for money had and received, or úpon an accounting together; and that the transaction, so far as it created a new liability, was binding only upon the two who participated in it, and he could not recover against William Edwards; that, in determining whether he had such notice or knowledge, the same rules applied upon this branch of the case as upon the other.</p> <p>The judge submitted to the jury the following questions: 1. Is the signature appended to the note in suit that of Wm. Edwards & Sons ? 2. Did the plaintiff at the time the note in suit was made have actual notice or actual knowledge, either personally or through his agent, that the firm of Wm. Edwards & Sons had been dissolved ?</p> <p>The jury answered each question in the negative; and returned a verdict for the plaintiff for $3579.76 against all the defendants.</p> <p>To the admission of testimony against the defendant’s objection, and to the refusal of the judge to give the instructions requested, the defendant alleged exceptions.</p>

<p>A. mortgaged a parcel of land to B., and subsequently mortgaged the same land to 0. by a deed which was signed and sealed by B. as well as by A., but B.’s name did not appear in the deed except in the in testimonium, clause, as “ mortgagee named in a mortgage on said premises, for the purpose of discharging said mortgage.” This deed was acknowledged by A. but not by B., and was recorded. No reference was made on the margin of the record of the first mortgage to the second. After this B. died, and his administrator assigned the first mortgage to D., who purchased it in good faith and for a valuable consideration. G. and D. then foreclosed their mortgages. Held, that D. could not maintain a writ of entry against C. to obtain possession of the land.</p>

<p>A gave a mortgage of real estate to B. and C. to secure them against liability as sureties on a promissory note of even date given by A. to a bank for money lent. It contained a power of sale upon default for breach of the condition, included in which was the payment of the note by the principal to the holder, which power was to be exercised by the mortgagees or the survivor or the executor or administrator of the survivor of them. Afterwards, A., who occupied the mortgaged premises, executed a quitclaim deed of the same to B. and C., who gave a bond to reconvey them, within a time named, upon certain terms and conditions. The quitclaim deed was recorded, but the bond was not, and A. never complied with its terms. The mortgage when made was delivered to the hank, in pursuance of the original agreement between the parties, and was recorded; the loan was then made to A., and the mortgage has since remained in the custody of the bank. Sales, with warranty, of portions of the mortgaged premises were subsequently made, some of which were assented to by the bank after they were made, and others were previously authorized by the bank, payment of sums satisfactory in amount upon the mortgage being made in all cases, and receipts therefor given by the bank. One half of the amount then due on the note was afterwards paid to the bank by the administrator of C., who survived B. , upon the agreement that it was to be “ in full payment of claim on said note, provided the balance due on the note be paid by estate of B., or by any one for said estate or for themselves.” Such balance was not paid to the bank. A creditor of the residuary devisee of B. filed a bill in equity to have the mortgage declared of no validity and to restrain the administrator of C. from selling the mortgaged premises to satisfy the balance claimed to be due the bank upon the note. C.’s administrator, the residuary devisee of B. and the bank filed a cross bill, asserting the existence of the debt to the bank, the validity of the mortgage, and the right of C.’s administrator to sell the real estate to satisfy the debt still due the bank and to reimburse the sureties for the sums paid by them. It was found as a fact, that, when the quitclaim deed was made by A. to B. and C. , it was not intended by the parties to operate as a merger of the mortgage title. Held, that the original bill should be dismissed; and that the cross bill could be maintained.</p>

Petition for partition of certain land in Lynn. The case was submitted to the Superior Court, and, after judgment for the respondent, to this court on appeal, upon agreed facts, in substance as follows: The petitioners and the respondent are the heirs at law and next of kin of Joseph Davis, who died on June 3, 1871, seised of the premises described in the petition, and leaving a will, which was duly admitted to probate, and which provided as follows: “I give and devise to my…

<p>A promissory note, signed with the name of a corporation by its treasurer, and indorsed with its name by its directors, was delivered to a person, under a written agreement between him and the corporation, by which he sold property to the corporation and the corporation was to give the note as the price, and in pursuance of a contemporaneous oral agreement, made in a talk with the directors, " that there should be no personal liability on the note referred to ” in the written agreement. He afterwards recovered judgment against the corporation in an action at law upon the note. Held, on a bill in equity against the stockholders of the corporation, to enforce payment of the judgment, under the Sts. of 1870, c. 224, §§ 39 fr seq., 1875, c. 177, § 1, and 1876, c. 1, § 1, that the oral agreement meant that there should be no statutory liability on the part of the stockholders; and that this agreement was admissible in defence, and was not merged in the judgment.</p>

<p>If a promissory note and a mortgage given to secure it, executed at the same time, do not correspond as to interest, extrinsic evidence is admissible in an action at law to show which paper expresses the real intention and agreement of the parties.</p> <p>This court will not entertain a bill in equity to restrain the prosecution of an action at law, when the defence to it can be made as well at law as in equity.</p>