Volume 52 — Massachusetts Reports

<p>When a statute prescribes the terms on which shares in the stock of a rail road company may be sold for the payment of assessments, and the shareholder be held to pay the balance if the shares are not sold for a sum sufficient to pay the assessments, those terms are conditions precedent, and, unless they are strictly complied with, the sale is illegal and the shareholder not chargeable.</p> <p>A statute, incorporating a rail road company, provided that if any ■ subscriber or stockholder should neglect to pay any assessment on his shares, the directors might order the treasurer to sell the shares at public auction, after giving a certain notice, to the highest bidder, and that the same should be transferred to the purchaser, and that such delinquent subscriber or stockholder should he held accountable to the company for the balance, if his shares should sell for less than the assessments due thereon, with the interest and costs of sale: G., a subscriber, neglected to pay assessments, and his shares were advertised for sale, by an auctioneer, without any reference, in the advertisement, to the order of the treasurer, and were bid off, at public auction, by T., for a sum less than the amount of the assessments: T. did not pay for the shares; the sale at auction was abandoned; and the shares were sold to others, at private sale, for the sum bid therefor by T.: The company afterwards brought an action against G. to recover the balance due on the assessments. Held, that the action could not be maintained.</p>

<p>These were actions of assumpsit. In the first of them, the plaintiff Murdock alleged that Henry F. Baker drew a bill of exchange, dated at New Orleans on the 8th of July 1843, addressed to the defendants, a firm doing business in Boston, requesting them to pay to said Murdock the sum of $770, in seventy days after said date ; and that the defendants, in consideration of the said sum of $770 to them paid by the plaintiff, promised him to accept and pay the said bill, accord’ mg to its tenor ; that the said bill was duly presented to the defendants for acceptance and payment, and that they refused to accept and pay it. There was another count upon the bill, as an accepted bill, and there were also the usual money counts.</p> <p>In the second action, the plaintiffs Coolidge and Haskell alleged that Henry F. Baker drew a bill of exchange, dated at New Orleans on the 10th of July 1843, addressed to the defendants, requesting them to pay to the plaintiffs the sum of $2000, in seventy days after said date. There were two counts on this bill, like those on the bill in the first action, and the usual money counts were added.</p> <p>Both actions were submitted to one jury, at the same time. The plaintiffs produced the bills declared on, and the protests for non-payment of them. They also called H. F. Baker, the drawer, as a witness, who testified to the following effect:</p> <p>That he resided at New Orleans, from November 1842 to July, or August 1843; that he received letters while there, from the defendants, authorizing him to procure consignments of cotton from that place to them in Boston, for sale, and to make advances by drawing bills upon them, as he should find opportunity, which bills they therein engaged to accept; that he thereupon procured to be consigned to them various lots of cotton, viz. 1054 bales by the ship Edward Everett, 1090 bales by the Edmund Perkins, and 48 bales by the Isaac Allerton; that he forwarded to the defendants,"by mail, the bills of lading of all cotton so consigned, with directions to insure to about the full value, and also forwarded invoices; that the cotton was shipped in the name of the witness, but for account of various persons, who were the owners thereof, and to whom he made advances, in order to procure the consignment to the defendants; that, to raise funds from which to make such advances, he drew various bills, in his own name, on the defendants, which he sold to persons having funds to be transmitted to the North; that the bills in suit in these actions were drawn by him for that purpose; that Isaac Bridge, having funds of the plaintiffs in these suits, purchased for them these two bills ; that said Bridge called on the witness to ascertain what authority he had to draw; that the witness showed to him the aforesaid letters received from the defendants, and that Bridge then purchased the bills; that, except in two instances, (not those of the bills in suit,) the witness drew his bills generally, and not against any particular shipment or parcel of cotton, and they were not accompanied by bills of lading and orders to insure; that he furnished the funds thus obtained to the several persons who were purchasing the cotton to be shipped, according to their necessities and convenience; that he advanced to each owner'nearly the amount of the invoice price of his cotton — a little short of that amount; that, in the early stages of the business, viz. on the 6th of June 1843, he drew a bill on the defendants for $4500, payable at sixty days’ sight, which was returned to him, at New Orleans, protested for non-acceptance, and which he was obliged to take up; that to enable him to do this, he drew other bills upon the defendants; and that the bill for $2000, in the action of Coolidge & Haskell, was one of those drawn for that purpose ; that he advised the defendants of his drawing these bills for that purpose, and duly advised them of his other bills, as he disposed of them.</p> <p>The witness produced a schedule, showing all the bills drawn by him, as above stated, (except that for $4500, which he took up,) and which of the bills had been protested, and which were unpaid by the defendants. This schedule also showed the amount realized for said bills, the names of the owners of the several parcels of cotton, the number of bales owned by each, and the amount advanced to them respectively. Three of the bills in this schedule were drawn in favor of the plaintiff Murdock, and had been paid by the defendants.</p> <p>The witness produced the letters aforesaid, received by him from the defendants, bearing date April 26th, and May 2d, 10th and 23d, 1843. (The contents of these letters are stated by Hubbard, J. in giving the opinion of the court.)</p> <p>The witness testified that the cotton shipped by him, as above, would average, in quality, what is called “ middling fair.” On his being inquired of, by the plaintiffs’ counsel, what was the value of such cotton in Boston, in July and August 1843, the question was objected to by the ‘defendants’ counsel, and the witness was not permitted to answer it.</p> <p>The defendants put into the case several letters received by them from said Baker, the invoices of the cotton consigned to them, as above stated, and a schedule of the bills drawn by him on them, and which they had paid, showing the times when the same were accepted, and when paid.. They also put into the case the original bills, so accepted and paid by them.</p> <p>The case was taken from the jury, by consent of the parties, to be submitted to the decision of the whole court, under an agreement that the court might direct a nonsuit, default, or trial by jury, as, in their opinion, law and justice might require. It was further agreed that all the letters and papers produced at the trial might be used at the argument, and be exhibited to the court.</p> <p>These cases were argued at the last March term.</p>

<p>A testator, after giving several legacies, and bequeathing an annuity of $500 to his wife, during her life, added the following residuary clause to his will: "After the payment of my just debts, funeral expenses and money legacies, I will and order my executor hereinafter named to vest in stock, or keep at interest, all the rest, residue and remainder of my personal estate, to raise a fund out of which the annuity to my said wife is to be paid during her natural life; and after her decease, should she survive me, I will and order that all the rest, residue and remainder of my estate, real, personal or mixed, shall be divided among my heirs, according to law, excepting the share which will by law descend to my daughter E.": The testator’s wife survived him, and received her annuity while she lived. Held, that the time of distribution only, and not the right to a distributive share, was postponed till after the decease of the wife, and that, upon her decease, those who were the testator’s heirs at law at the time of his decease, or the legal representatives of such of them as died after him and before his wife, were entitled to the property disposed of by the residuary clause in the will.</p>

<p>This was a petition for a writ of mandamus to be directed to the respondent, commanding him to issue a warrant, under St. 1838, c. 163, § 19, appointing a messenger to take possession of the estate of Philena Arnold.</p> <p>The facts of the -case were these: On the 22d of April 1845, the petitioner presented to the respondent, a master in chancery, a petition praying for proceedings against Philena Arnold, as an insolvent debtor. It was alleged in the petition that said Philena was indebted to the petitioner in the sum oí $548-98, on a judgment recovered by him against her, at the October term of the court of common pleas, in 1842; that her goods and estate were attached, for the sum of $100 and upwards, on the 10th of February 1845, on a writ sued out against her by the petitioner, returnable to the court of com mon pleas held on the fourth Monday of said February; that the writ was entered at said court; and that she did not dissolve the attachment on or before the last day of said term of the court..</p> <p>Notice of the aforesaid petition to the respondent was given to said Philena, who appeared and opposed the granting of the prayer thereof. Thereupon the petitioner, to prove the aforesaid attachment, produced a copy of a writ, in which he was plaintiff, and said Philena Arnold and Thomas Carpenter were defendants, dated February 10th 1845, and returnable to the court of common pleas on the fourth Monday of said February, and also a copy of the officer’s return on said writ. The return, dated February 10th 1845, stated that the officer had “ attached all the right, title and interest the within named Carpenter and Arnold have in and to any real estate in the towns of Williamstown and Adams, and in the county of Berkshire,” and that he had given each of them a summons. And the petitioner, to prove his debt against said Philena, produced a copy of the record of the judgment recited in his petition to the respondent, and also a copy of the execution which issued on that judgment, and of the officer’s return thereon. This return stated that the officer, on the 29th of November 1842, “ took the judgment debtor’s interest, right and title in a farm and buildings situated in Adams, known as John Arnold’s farm ; the said debtor’s interest in said real estate for life is one undivided third part thereof; and levied said execution on the rents and profits thereof; ” and the execution was returned wholly satisfied. It was admitted by said Philena and by the petitioner, at the hearing before the respondent, that said Philena’s dower In the real estate, of John Arnold, her deceased husband, was never in any way assigned or set out to her, and that her right to dower in said estate was conveyed by her, subsequently to the aforesaid levy of the petitioner’s execution, and more than two years before said hearing, to H. H. Carpenter and J. A. Arnold.</p> <p>On the foregoing facts, the said Philena’s counsel moved that the petition for proceedings against her, under St. 1838, c. 163, should be dismissed. 1st. Because there was no evidence that she had any real estate in the county of Berkshire, at the time of the attachment. 2d. Because it appeared that the judgment, set forth in the petition, was satisfied by a levy upon her real estate. 3d. Because the attachment, set forth in the petition, was made by the petitioner on a writ sued out in his own name and for his sole benefit. The respondent thereupon dismissed the petition.</p> <p>This case was decided at the last September term.</p>

<p>Trespass upon the case.</p> <p>The first count in the declaration alleged that the plaintiff was owner and occupant of an ancient mill privilege on a stream of water in Richmond, and a mill thereon, in which he carried on his trade as a tanner and currier, for many years, and that the defendant, at divers times, had washed a large quantity of iron ore in the stream above said mill, and had thrown great quantities of gravel, dirt and rubbish into said stream, whereby the plaintiff ’s pond, raised by his dam, was continually filled up with dirt and gravel, and his troughs, which were used for carrying water upon his water wheel, were worn out, and great quantities of dirt, sand and rubbish were carried upon his hides and skins, so as greatly to injure and disturb him in his aforesaid trade.</p> <p>The second count alleged that the plaintiff was seized in fee of an ancient mill or mill privilege, situated on a stream in Richmond, “ together with an ancient dam to raise a head of water sufficient for the purposes of said mill, and of his business as a tanner and currier of hides, and of having the whole water of said stream flow into his pond, as it would naturally do, without obstruction or defilement, as ancient rights and privileges appurtenant to said mill; and there, by means of his said rights and privileges, was accustomed to carry on the business of tanner and currier, as aforesaid, as he lawfully might: Yet the defendant, well knowing the premises, but contriving,” &c. “unjustly set up, on the stream aforesaid, above the plaintiff’s dam, a place for washing iron ore, and did wash a large quantity, to wit, 10,000 tons of iron ore, at said place, and thereby caused great quantities of gravel, sand, dirt and rubbish to flow down said stream and into the said pond of the plaintiff, and into the troughs used by the plaintiff to carry water upon his wheel, and into the vats and other receptacles of the hides in process of tanning by the plaintiff.” &c.</p> <p>The action was commenced in the court of common pleas, at February term 1844, and at the October term 1844, it was submitted to referees, before whom the parties appeared on the 3d of October 1845. At the hearing before the referees, the defendant objected that by St. 1840, c. 87, § 1, the court of common pleas had no jurisdiction of the action, and consequently that the referees had none. It was agreed, however, that the hearing should proceed, and the question of jurisdiction be referred to the court. An award in favor of the plaintiff was made and returned to the court. The defendant then moved that the action should be dismissed foi want of jurisdiction. Whereupon the court, held by Wells, C. J. ordered the action to be dismissed, with costs to the defendant; and the plaintiff alleged' exceptions.</p>

<p>This was an action of assumpsit, commenced in this court, and the damages, laid in the writ, exceeded §300. The defendant moved to dismiss the action, on the ground that the court had not original jurisdiction thereof, for want of such an affidavit as is required by St. 1840, c. 87, § 1. The affidavit was made by “ Thomas A. Gold,” an attorney of this court, without stating that he made it in behalf of the plaintiff, or as his attorney. It was certified by a justice of the peace, and indorsed on the writ.</p>

<p>An indenture, purporting to be tripartite, contained the following recital, to wit: That D., of South America, was building a steamboat at Boston, and fitting her for sea, to be used in navigating the waters of South America; that he had agreed with H. to employ him to go out in said boat, acting as chief engineer thereof, and taking charge of her engine and machinery, upon the salary of #100 per month, payable monthly, one half in Boston, to H.’s order, and the other half to his order, in South America, or wherever he might be in the employment of D.; that J. had agreed to become responsible for the payment of one half of said salary in Boston, for the time during which H. should be in the service of D.; and that H. had agreed to enter into the service of D. upon the terms aforesaid: The several covenants in the indenture were conformable to the agreements which the recital stated to have been made by H., J. and D. severally: H. and J. executed the indenture, but D. did not execute it: H. went into the service of D., as chief engineer of the boat, and drew, on the back of that part of the indenture held by him, an order, in favor of his wife, on J., for that part of his wages which was payable at Boston: J. made four payments on the order, and refused to make any further payment: H. brought an action of debt against J. to recover the remainder of said monthly wages, and J. defended the action on the ground that D. had not executed the indenture. Reid, that the recital, in the indenture, of the agreement between D. and H., if it did not estop J. to deny it, must, in this action, be taken to be true, in the absence of evidence to the contrary; and that H. was entitled to recover Shaw, C. J. dissenting.</p>

Petition for partition of a tract of land in that part of Princeton which, until recently, was unincorporated, and was called Notown. The petitioners claimed yWV Pai'ts of the tract, under a devise of Andrew Whitney to his daughter, the female petitioner. The trial was before Hubbard, J. whose report thereof was as follows: The will of said Andrew Whitney, who died in 1818, was made on the 27th of October 1817, and was duly proved and allowed in December 1818.

The declaration, in this case, alleged that the plaintiff, “ before and at the time of the committing by the defendant of the grievances hereinafter mentioned, was the editor of a public newspaper, printed in Worcester, in the county ot Worcester, called ‘ The Massachusetts Cataract; ’ and whereas the commandment of scripture, ‘ thou shalt not commit adultery,’ is and is known as the seventh commandment, yet the defendant, wickedly intending to injure the plaintiff, and to…

<p>If A., for whom goods are transported by a rail road company, authorizes B. to receive the delivery thereof, and to do all acts incident to the delivery and transportation thereof to A., and B., instead of receiving the goods at the usual place of delivery, requests the agent of the company to permit the car, which contains the goods, to be hauled to a near depot of another rail road company, and such agent assents thereto, and assists B. in hauling the car to such depot, and B. there requests and obtains leave of that company to use its machinery to remove the goods from the car; then the company that transported the goods is not answerable for the want of care or skill in the persons employed in so removing the goods from the car, nor for the want of strength in the machinery used for the removal of them, and cannot be charged with any loss that may happen in the course of such delivery to A.</p>

Trespass upon the case. The first count in the plain tiff's declaration alleged that he, before the committing of the grievances thereinafter set forth, was seized and possessed of a tract of land in Webster, bounded on the north by a highway ; and that he, “ and those under whom he claimed title, had, from time immemorial, had a right to pass -and repass over that part of the highway adjoining his land on the north, and a right to have the same remain free and unobstructed;…

<p>W., a purser in the navy, on the Boston station, deposited in the Phœnix Bank at Charlestown, the funds furnished to him by the government, and which it was his duty to disburse according to law, and drew a check on that bank, on the 30th of September 1842, in favor of T., a captain in the navy, payable to him or order, for the amount of his pay for the month of September, which was payable on the 1st of October, and enclosed it,1 in a letter directed to T., at Newport, (B-. I.) where T. resided, and where it arrived in the evening of Saturday, October 1st: W. had previously sent to T., at Newport, in a letter, a blank receipt for his said pay, which T. had signed and returned to W. on the same 30th of September; and these transactions were according to a practice which the parties had adopted, every month, for more than a year next before, for the accommodation of T.: On Monday. October 3d, the check was cashed for T. by a bank in Newport, and was given by said bank to its messenger on Tuesday, the next day, to be carried on Wednesday, according to the usual course of said bank in transmitting its funds and securities, to a bank in Providence, to which bank it was carried accordingly, and was by that bank transmitted on Thursday, October 6th, to a bank in Boston, and was, on that day, presented at the Phœnix Bank for pay ment, and payment thereof was refused; said bank having suspended payment and being insolvent on the morning of October 3d.: T. afterwards requested W. to give him back his receipt in exchange for the check, but W. declined so to do, and forwarded T.*s receipt to the treasury department, with his (W.’s) account for the month of September, wherein he had credited himself with the payment to T. Held, that the check was not in itself payment, and was not made such by any laches of T., and that W. was personally liable to T. for the amount thereof.</p>

<p>A conviction, on an indictment which charges, in a single count, the breaking and entering of a building, with intent to steal, and stealing therein, is not such a conviction of larceny as requires or authorizes the court, under Rev. Sts. c. 126, § 19, to sentence the convict, as a common and notorious thief, on his being convicted, at the same term, of two or more other larcenies; and if such sentence be awarded in such case, it is erroneous, and will be reversed on a "writ of error. In such case, the conviction is held to be of burglary only—the larceny being merged; and the sentence must be that only which the law prescribes for burglary.</p> <p>When an indictment charges, in one count, a breaking and entering of a building, with intent to steal, and, in another count, a stealing in the same building, on the same day, and the defendant is found guilty generally, the sentence, whether that which is proper for burglary only, or for burglary and larceny also, cannot be reversed on error, because the record does not show whether one offence only, or two, were proved on the trial; and as this must be known by the judge who tried the case, the sentence will be presumed to have been according to the law that was applicable to the facts proved.</p> <p>A sentence to a term of imprisonment, to commence from and after the expiration of a former sentence, is legal; and if the former sentence is shortened by a pardon, or by reversal on a writ of error, it expires, and the subsequent sentence takes effect, as if the former had expired by lapse of time.</p>

<p>The St. of 1845, c. 117, which imposes a penalty on “ any person who shall take, carry away or remove any stones, gravel or sand, from any of the beaches in the town of Chelsea,” was passed for the purpose of protecting the harbor of Boston, and extends as well to the owners of the soil as to strangers; but it is not such a taking of private property and appropriating it to public uses, within the meaning of the Declaration of Rights, art. 10, as to render it unconstitutional and void, although no compensation is therein provided for the owners.</p>

<p>This was an indictment which alleged that the defendant, on the 5th of May 1845, having been before that time appointed, by the selectmen of the town of Chelsea, a weigher and marker of vessels for said town, according to the provisions of the Rev. Sts. c. 31, and being such weigher and marker for said town only, did unlawfully undertake and assume to be a weigher and marker of vessels and lighters in the city of Boston, not having been appointed or licensed by the mayor and aldermen of said city as such weigher, according to the 31st chapter of said statutes, and having no lawful authority under said chapter to weigh and mark vessels and lighters in said city, or elsewhere out of the limits of the town of Chelsea; and, in pursuance of such unlawful undertaking and assumption, did, at said Boston, weigh, examine, and mark with the marks required and specified in said chapter of said statutes, a vessel employed in said Boston, in transporting stone sold by weight, and gravel and sand, called the George & Henry, and without the limits of said town of Chelsea, and did then and there place certain marks on said vessel, contrary to the aforesaid provisions of said chapter of said statutes; whereby, by reason of the premises, and the force of the same chapter of the same statutes, he, the said Thomas J. Woods, then and there, for said offence, so as aforesaid committed, did forfeit a sum not exceeding three hundred dollars, to be appropriated according to law ; against the peace, &c.</p> <p>At the trial in the municipal court, it was admitted that the defendant was legally appointed by the selectmen of Chelsea, to weigh lighters and other vessels, according to Rev. Sts. c. 31; and there was evidence that he, on the day mentioned in the indictment, weighed and marked the vessel therein mentioned, while she was lying at a wharf in Boston, and that he, after so weighing and marking her, gave a certificate thereof to the master, dated Chelsea May 5th 1845. It also appeared that said vessel was registered or enrolled at Dennis, in the county of Barnstable, and was owned by persons residing in Rockport, in the county of Essex.</p> <p>The court instructed the jury, that if the defendant weighed and marked, the vessel at a wharf in Boston, placing such marks on her as are required, by Rev. Sts. c. 31, to be placed on vessels by weighers, and gave a certificate thereof, dated at Chelsea, not having been appointed a weigher of vessels by the mayor and aldermen of the city of Boston, he was guilty of placing marks upon a vessel contrary to the provisions of said 31st chapter of the revised statutes, and that they should find him guilty accordingly. The jury found the defendant guilty, and he alleged exceptions to the instructions of the court.</p>

This was an indictment on the Rev. Sts. c. 126, § 29, which provide (among other things) that “if any agent, clerk, or servant of any private person, or of any copartnership, shall embezzle, or fraudulently convert to his own use, or shall take, or secrete, with intent to embezzle and convert to his own use, without consent of his employer or master, any money or property of another, which shall have come to his possession, or shall be under his care, by virtue of such…

<p>When a person is indicted on the Rev. Sts. c. 47, §§ 1, 2, for presuming to be a com mon seller of spiritous liquor, and also for selling spiritous liquor in a single in stance, to be used in or about his house or other buildings, without being first duly licensed as an innholder or common victualler, and is proved to have done the acts charged in the indictment, he is liable to the penalties imposed by those sections, although he was not the owner nor lessee of the building in which the sales were effected, and was merely a hired agent or bar-tender, without any interest in the profit of the sales, and acted in the presence and under the control of his employer; unless his employer was duly licensed as an innholder or common victualler.</p>

<p>The provision in St. 1842, c. 56, § 1, that a person arrested on mesne process or execution, for any debt, might give notice to the officer having him in custody, or, if he should be then bailed, to the officer who made the arrest, of his desire to take the oath prescribed for poor debtors confined on execution, applied to persons committed on execution, and authorized a debtor, who was thus committed and had given bond for the liberty of the jail limits, to give such notice to the jailer.</p> <p>While St. 1842, c. 56, was in force, a debtor, who was committed on an execution that issued on a judgment recovered by a corporation established by the laws of another State, and which had no place of business or officer in this State, caused his desire to take the poor debtors’ oath to be made known to a justice of the peace, who appointed the jailer’s office and the 9th of May, at 3 o’clock, P. M., as the place and time for the examination of the debtor, and issued a citation, an attested copy of which was delivered by the proper officer to the person who was attorney for said corporation, in the suit in which said judgment was recovered, on the 8th of May, at 11 o’clock, A. M. at his office, which was half a mile from the office of the jailer: The corporation did not appear at the time and place appointed; but two magistrates then and there administered the oath to the debtor, and made the proper certificate thereof, and he never surrendered himself to the jailer, to be held in close confinement. Held, in an action on the bond for the liberty of the jail limits, that the notice to the corporation was according to law, that the debtor was lawfully discharged, and that the action could not be maintained.</p>

<p>Game cocks are not implements of gaming, within the meaning of Rev. Sts. c. 50, § 19, and c. 142, § 2, and cannot be lawfully seized on a warrant commanding the seizure of such implements.</p> <p>The measure of damages, in an action of trespass for taking, carrying away and destroying game cocks, is their actual value 'to the plaintiff, as articles of merchandize or sale, whether the market for them is in this State or elsewhere.</p>

<p>L. conveyed real estate to H., by a deed containing this habendum: “To have and to hold the said granted premises to him the said H., as he is trustee under an indenture tripartite, bearing date 8 July A. D. 1830, made by and between C. of the first part, and B. of the second part, to him the said H., in rust as aforesaid and to his successors and assigns, to his and their sole use and behoof forever. ” By the indenture referred to, C. had conveyed to H., the party thereto of the third part, personal property, with power to convert it into money and invest the proceeds in real estate, and also real estate in fee simple, on certain trusts, with power to sell it or exchange it for other property, to be held by H. “ subject to, and so as not in any way or manner to affect or prejudice the trusts aforesaid, or any of them: ” H. purchased the real estate conveyed to him by L., with the trust fund held by him in trust for O.: The trusts created by the indenture were such that H. could not execute them, unless the estate conveyed to him by L. was a fee simple. Held, that the deed from L. to H. was to be construed by the reference therein made to the indenture, by which he held in fee simple the real estate therein conveyed to him, on certain trusts, which could not be executed unless the trust estate was a fee simple, and therefore that the deed conveyed a fee simple, though the word “ heirs ” was not inserted in the habendum.</p>

Assumpsit to recover a legacy bequeathed to the plaintiff by her father. The case was submitted to the court on the following statement: Jonathan Hunt, late of Brattleborough in the State of Vermont, was an eminent lawyer, and was, for several years immediately preceding his death, extensively engaged in the practice of his profession.

This was an action on the Rev. Sts. c. 104, § 2, commenced in the justices’ court for the county of Suffolk, on the 11th of September 1844, to recover possession of a shop in Franklin Street, in Boston, and carried from that court to the court of common pleas.

<p>This was an action to recover damages for an alleged breach of a covenant in a deed executed by the defendants (Fitzhenry Homer and Philo S. Shelton) on the 14th of June 1844, whereby they conveyed to the plaintiff, for the consideration of $50,000, a parcel of land, with the buildings thereon, situate at the corner of Beacon and Walnut Streets, in Boston, to hold to him and his heirs and assigns forever. In this deed the defendants covenanted that they had good right to sell and convey said premises to the plaintiff, having lawful authority, and being duly empowered thereto, under the last will of Benjamin P. Homer. The case was submitted to the court on the statement of facts which follows:</p> <p>Benjamin P. Homer died in April 1838, leaving a will, m which he authorized and empowered his executors, or such of them as should take upon themselves the probate of the will, to sell and convey, and to execute good and sufficient deed or deeds to convey, all or any part of his real estate, (except such as was in said will specifically devised,) either by public auction or private contract, at the discretion of said executors, for the best price they could obtain, and at such times as they might think proper. The defendants were appointed executors of said will, and proved it in the probate court for the county of Suffolk, took upon themselves the execution thereof, and gave bond. On the 16th of June 1838, said Fitzhenry Homer presented to the judge of probate a writing, in which he stated that a question had arisen upon the proper construction of said wiF, whether he (the said Fitzhenry) might and could take and hold his share of the estate of the testator, under said will, absolutely and in his own right, or whether the same was subject to certain limitations and trusts; and that, in order that said question might be considered and determined, it would be necessary to institute legal proceedings, in which the said Fitzhenry’s claim, in his individual capacity, would conflict with his duties as one of the executors under said will : He therefore prayed that he might be permitted to resign his said trust as executor, and that he might be discharged therefrom, so far as respected all further proceedings. The devisee? of said Benjamin P. Homer were his two daughters and the said Fitzhenry; and the husbands of his daughters, viz. the defendant Shelton and Thomas Dixon, certified to the judge of probate that they had received notice of said Fitzhenry’s petition to be discharged from his trust as executor, and requested that the petition might be granted. On the 18th of said June, the judge of probate decreed “ that the said Fitzhenry be removed from his office of executor as1 aforesaid ; ’ averring, as a reason for the decree, that upon examination of the circumstances set forth in said Fitzhenry’s petition, it appeared that he had become unsuitable to discharge said trust.</p> <p>The said Benjamin P. Homer, at the time of making his said will, and at the time of his death, was seized and possessed of the premises described in the deed declared on, and they were not specifically devised by said will.</p> <p>On these facts, it was agreed by the parties, that if the court should be of opinion that the defendants had authority, in their capacity of executors, to convey the said premises, the plaintiff should become nonsuit; otherwise, that the defendants should be defaulted.</p>

<p>Writ of entry, dated October 24th 1845, to recover land, with a store on it, in Blackstone Street, Boston. At the trial before Shaw, C. J. the following facts were proved or admitted :</p> <p>The tenant claimed to hold the demanded premises undei a lease of them made to him by the demandant, dated December 30th 1841, for the term of eleven years from January 1st 1842. The rent, by the terms of the lease, was payable quarterly, on the 1st of April, July, October and January, every year during the term. The lease contained the following clause : “ And the said Chilson, for himself and his representatives, hereby covenants and agrees to and with the said Atkins, his representatives and assigns, that he will, during the said term, pay unto the said lessor, his heirs or assigns, the said yearly rent, upon the days hereinbefore appointed for the payment thereof, except only' in case of fire or other casualty. Provided always, and these presents are upon this condition, that if the said lessee, or his representatives or assigns, do or shall neglect or fail to perform and observe any or either of the above covenants hereinbefore contained, which on his or their part are to be performed, then and in either of said cases, the said lessor, or those having his estate in the premises, lawfully may immediately, or at any time thereafter, and whilst such neglect or default continues, and without further notice or demand, enter into and upon the said premises, or any part thereof in the name of the whole, and repossess the same as of his former estate, and expel the lessee and those claiming under him, and remove his or their effects, forcibly if necessary, without being deemed guilty of any trespass.”</p> <p>The demandant claimed to recover the demised premises, on the ground that the tenant had forfeited his estate by nonpayment of a quarter’s rent due October 1st 1843, upon which the demandant, on the 3d of October 1843, whilst the default continued, made an entry into and upon said premises in presence of witnesses, for breach of the conditions of said lease. The tenant, protesting that no forfeiture had accrued, moved the court that all further proceedings be stayed, in the case, on his paying the rent and costs. The chief justice passed an order (subject to the opinion of the whole court 1 that it be referred to an auditor to ascertain the amount of rent, and damages for its non-payment, due to the demandant from the tenant, and that, on payment of the same into court, for the demandant, with the costs to be taxed by the clerk, all further proceedings in the case should be stayed.</p>

Assumpsit for money had and received, and for breach of a contract by the defendants in not carrying the plaintiff, upon their road, from Durham (N. H.) to Boston. The case was submitted to the court of common pleas, upon the following statement of facts: “ The plaintiff, in May 1844, purchased. tickets at the depot of the defendants’ road, at Durham, for a passage fot himself and his wife, from Durham to Boston, and paid for said tickets f>l-87-¿ each.

<p>This was an action of assumpsit, in which the plaintiffs, as receivers of the Phœnix Bank, sought to recover of the defendants the sum of $4644-92, alleged to have been overdrawn by their treasurer, on the 30th of September 1842, and also interest on that sum from the same date.</p> <p>The defendants filed a specification of their defence, in which "they stated, 1st, that no demand for the amount claimed had been made upon them, except at a time when they were summoned as trustees of said bank, in a process of foreign attachment; 2d, that the amount claimed was not lent or advanced by said bank, at the request nor with the knowledge of the defendants, nor at the request of any one authorized by them ; 3d, that said bank, at the time of the alleged over-draft, was indebted to the defendants in the sum of $7200, being the amount of assessments due on one hundred and sixty shares in the defendants’ capital stock; and 4th, that the defendants were always ready to allow the amount of said over-draft, in part payment of said assessments.</p> <p>It appeared at the trial in the court of common pleas, before Merrick, J. that the amount sued for was overdrawn by William Wyman, the defendants’ treasurer, in his account, as such treasurer, with the Phœnix Bank, on the 30th of September 1842; that said Wyman was also president of said bank, and often acted as teller and cashier, and at all times had free access to the vaults and drawers of the bank ; that the clerk or book-keeper of the bank had general directions from said president to give him notice of all over-drafts; with which directions he complied.</p> <p>It also appeared that Wyman, as the defendants’ treasurer, kept no account in the defendants’ books with the bank, but only a cash account, and that there was no correspondence between the cash balances in the books of the company (the defendants) and his treasurer’s account with the bank; and that, at the time of over-draft, there was, according to the company’s books, a cash balance more than sufficient to meet said over-draft.</p> <p>It also appeared, by inspection of the account of Wyman, as treasurer, with the bank, that there had been previously an over-draft, to the amount of $188T9, which remained unpaid for more than twenty days, and that no interest was charged thereon.</p> <p>The defendants offered to put into the case, as evidence, a petition in equity, by the plaintiffs, for an injunction on the defendants to restrain them from selling one hundred and sixty shares of their capital stock, claimed by the plaintiffs as having been paid in full; and also the answer of the defendants to said petition. But the court refused to admit them.</p> <p>The defendants also offered to put in copies of certain writs served upon them in April 1843, as trustees of the Phœnix Bank. But the court refused to admit them, and ruled, that if the jury should find that the amount sued for was actually paid to the defendants, then the jury should add interest thereto from the time of the over-draft. The jury added interest from the date of the over-draft, and the defendants alleged exceptions to the judge’s ruling.</p>

This was a process, instituted by the bank commissioners, under St. 1838, c. 14, § 5.

This was a bill in equity, in which the plaintiffs alleged that Sir Isaac Coffin, an admiral in the British navy, executed the following instrument in 1827: “ Codicil 1st. I request my executors and trustees will, after my decease, pay to Mrs. Mary C. Coffin, wife of Mr. Hector Coffin, one hundred pounds sterling, annually, in quarterly payments, during her life time.

<p>A. daughter indorsed and delivered to her father, at his request, promissory notes owned by her, on his declaring to her that this was necessary in order to secure the property for her, and upon no other consideration: The father made a will, by which, after several bequests, he gave the residue of his property to his executor, and ordered the said notes to be delivered to him in trust to invest said property and notes in stock, and to receive and pay over the income thereof to his daughter, during her life, and to pay the principal, at her decease, to such person as she might by her last will direct, and in default of such will and direction, to pay the same to her heir or heirs at law, to have and to hold the same forever; and by a codicil he gave several legacies, to be paid after the decease of his daughter: He died insolvent, and the money due on the said notes was claimed for his creditors. Held> on a bill in equity brought by the daughter against the father’s executor, that the notes were holden by the father in trust for her use and benefit; that his creditors had no claim upon them; and that the daughter had a right to terminate the trust, if she so elected, and to have the trust property restored to her by the executor.</p>

Assumpsit on the money counts, and on the following order: “ Boston, March 21st 1842. Mr. Sherman. Sir, please let the bearer have such goods as he may order on our account, not to exceed forty five dollars. J. D. Carlton & Co.” Upon the back of this order the defendant wrote these words : “I accept the order, but must have time to make the work, if I have not it on hand.

This was an action of assumpsit for money paid, commenced on the 1st of October 1844. The plaintiffs annexed to their writ an account, in which the defendant was charged with divers sums paid for him, between the 9th of May 1844, and the day of the' date of the writ, amounting to $5470-55, and was credited with $2920, received of him on the 11th of May 1844, and $29-25, received of him on the 18th of July following ; leaving a balance against him of $2521-26.

Assumpsit for money had and received. The new trial, granted at March term 1843, (5 Met. 452 - 462,) was had before Wilde, J. whose report thereof was as follows : There was evidence tending to prove the following facts : Un the 21st of September 1841, the defendant was the owner of the schooner Shylock, then lying in Boston, and of a cargo of com on board of said schooner; and the plaintiff, on that day, purchased the said cargo of the defendant, agreeing to pay 76| cents…

This case was argued by J. M. Williams, for the plain tiffs, and by Dorr, for the defendant. The opinion of the court was delivered March 15th 1847.

<p>There is no other rule of damages, in an action on a policy of insurance against fire, where the insured building is totally destroyed, except that of an indemnity to the assured for Ms actual loss; and in estimating that loss, there is no settled rule of deduction from the estimated cost of a new building, for the difference between the value of the new and the old one, analogous to the deduction of new for old in adjusting losses on marine policies; but the jury are to decide what sum will be an indemnity to the assured.</p> <p>On the trial of an action upon a policy of insurance against fire, where the insured building had been totally destroyed, and a new one had been erected by the assured, the jury were instructed that no deduction was to be made from the expense of rebuilding, although the new building might be more durable than the old one would have been, and for some purposes more valuable. Held, that this instruction was erroneous.</p>

<p>D. and H. made an oral agreement for the purchase and shipment by D. of a cargo for H.: After the cargo was purchased and shipped by D., and the vessel had saiVd, D.’s clerk, for the purpose of having something “ to show the character of the transaction,’* wrote a letter to D., dated before the purchase and shipment were made, and procured H. to sign it, requesting D. to purchase and ship a cargo for H., and giving directions as to the disposal of the same: D. gave no written assent to the terms of this letter. Held, that the letter was not a com mitting to writing of the agreement between D. and H., but was a mere memorandum, intended by the clerk to preserve, in substance, the outline of the agreement which had been made; and that parol evidence was admissible to show the agreement, and the relation of the parties thereto before the sailing of the vessel.</p> <p>The stowing on deck of all the water on board a vessel, contrary to the requisition of the United States St. 1790, c. 56, § 9, does not, of itself, render the vessel unseaworthy, nor shift upon the assured the burden of proving her seaworthy.</p> <p>A witness cannot be allowed, for the purpose of strengthening his testimony, to state, on his examination in chief, that he had previously communicated to others the same facts to which he has testified, or other particular facts.</p>

<p>This was an action of assumpsit, commenced on the 22d of October 1844, and the case was submitted to the court on the agreed statement which follows :</p> <p>“ This action is brought by the surviving partner of a mercantile firm or house in Amsterdam, in the kingdom of Holland, to recover the sum of two thousand guilders due from the defendant to said house in March 1820, and also one hundred and thirty seven guilders, due to the plaintiff’s house, as the balance of an adventure shipped on account of the defendant’s wife, with his consent, on the 31st of January 1821.</p> <p>“ The plaintiff’s firm have, from time to time, rendered accounts of these items, stating the account annually, according to the custom of merchants in Amsterdam, and claim a balance, as due at the date of the writ, of $2836-64, computing interest at five per cent., which is the legal rate of interest in Holland, from February 28th 1820, and January 31st 1821, and making annual rests.</p> <p>“ The defendant has addressed several letters to the plaintiff ’s house, in relation to this demand, some of which bear date, respectively, as follows : February 28th 1820, May 16th 1821, July 24th 1825; which are to form part of this case. The plaintiff and his counsel have, from time to time, written letters to the defendant, since July 1825, to the date of the writ; but no replies have been returned.</p> <p>“ The plaintiff and his deceased partners were ever subjects of the king of Holland, and neither of them has been within either of the United States, since the commencement of the dealings which cause this suit.</p> <p>“ The defendant admits that the plaintiff’s account is correctly stated, and that the items comprised in it are correct j and that, at some period of time since February 28th 1820, and before the commencement of this action, he has been of sufficient pecuniary ability to pay the balance due to the plaintiff; but he denies his indebtedness, on the ground that the debt is barred by the statute of limitations ; and alleges, if it is not so barred, that the mode of computing interest adopted by the plaintiff is not conformable' to law and the rights of the party defendant, and that the plaintiff is not entitled to interest on this account.</p> <p>“ The parties agree that the court may draw any conclusions respecting the assent of the defendant to the plaintiff’s charge of interest, calculated with annual rests, which are warranted by the preceding agreement.”</p> <p>The contents of the three letters of the defendant, which were made part of the case, so far as they affect the questions submitted to the court, were as follows :</p> <p>“Newburyport, 28th February 1820. Dear Sirs: I expressed surprise at the additional charge of 2000, but I did not mean to convey the smallest insinuation that I doubted your correctness, and I have no hesitation in again acknowledging myself your debtor in the above named sum of 2000. I am obliged renewedly to ask your indulgence, and to again inform you that my situation is such as to preclude the possibility of remitting you the amount at this time, or of making any arrangement for you to receive it here. I am still poor ; but of this you may rest assured, that the moment I find myself in a situation to discharge your just and honorable debt, it will be done with as much pleasure as I ever performed any act of my life.”</p> <p>“ Newburyport, May 16th 1821. Gentlemen : Your kind favor of 8th September last was duly received, and my only excuse for not answering it is the mortification I felt in not being able to liquidate your demand on me. I am sorry, truly sorry, that I am obliged again to repeat that I am still very poor. I now further inform you that I have again been honored by the receipt of yours of 10 March last, enclosing a prr,3 current and my account with you, which last I have examined and find correct, and acknowledge a balance due you of 2194-5. I thank you for the polite and generous manner in which you have offered me a further indulgence, and positively assure you I will remit you the full amount of the debt, the moment I have it in my power.”</p> <p>“ Newburyport, 24th July 1825. Gentlemen : I now have the pleasure of acknowledging your favor of 3d ult. I exceedingly regret that I am not in a situation to give you a more favorable answer, and that I am still obliged to request your indulgence. I can now only repeat the assurance, that the moment I am able, I wih promptly remit you the amount I owe you, accompanied by my thanks for your indulgence.” To all these letters the defendant signed his name.</p>

Assumpsit for goods sold and delivered; also for goods bargained and sold, which the defendant refused to receive and pay for. Writ dated November 22d 1843.

<p>Replevin of divers goods attached by the defendant on a writ sued out by Israel Billings against the Ashuelot Manufacturing Company. At the trial in the court of common pleas, before Washburn J. the plaintiffs claimed a part of said goods, viz. to the amount of $2374-49, by virtue of a mortgage ; and the residue, viz. to the amount of $1993-59, by virtue of a written agreement and oral arrangement. The mortgage (which was recorded on the 28th of June 1842) and the written agreement were made at the same time, and were as follows: “ Know all men by these presents, that the Ashuelot Manufacturing Company have this day turned out all the personal property which we have in and about the factory in Dalton, and in the store, and all other personal chattels in our possession whatever, and we do hereby convey and deliver the same to Varnum Holden, Asahel Buck, jr., John Chamberlin, Henry Chamberlin, Granville Weston, Austin Flint, M. R. Lanckton, J. D. Whitney, Francis Whitney, Riley Watkins, Francis Watkins, Asa Hall, Samuel Williston, William L. Brown, Clark Baker, Lovet R. Mellen, Zenas Crane, Benjamin F. Kittredge, Israel Billings, George W. Branch, and William Barnes: To be held by them, as their security and indemnity against all liabilities, which they have assumed, or may assume and incur, as indorsers, sureties, receiptors, or promisors, for the Ashuelot Manufacturing Company aforesaid. In witness whereof, we have hereto set 3ur hands and the seal of said company, this 13th June 1842.</p> <p>Henry Marsh, Treasurer, (seal.)</p> <p>Bushrod Buck, President, (seal.)</p> <p>Abel Whitney, Agent, (seal.) ”</p> <p>“ In consideration of an assignment this day made to us, we agree to see the factory hands paid, and to aid the Ashuelot Manufacturing Company in getting materials to work up their present stock of wool.</p> <p>“ June 13, 1842. Also such other stock as we, or either of us, may aid them in purchasing. The debt to Stephen Warren for soap to be paid. Henry Marsh, attorney for Chamberlins, Weston, Flint, Lanckton, Whitneys, Watkins, Hall, Williston, Brown, Baker, Mellen, Crane, Kittredge, Billings and Branch. V. Holden.</p> <p>B. Buck, Agent to William Barnes.</p> <p>Asahel Buck, jr.”</p> <p>The evidence introduced by the plaintiffs tended to prove that, at the time of making said mortgage and written agreement, all the property therein referred to was delivered to Buck and Holden, the plaintiffs, for themselves and the other mortgagees; that it was understood and agreed that Holden should retain possession thereof; and that, as the property was wrought up and changed, and new property acquired by the proceeds of the mortgaged property, or- by new purchase made from other means, whether stock for the factory or goods for the store, the same went into the possession of Holden, who retained so much thereof as was not disposed of, as hereinafter stated, until it was attached by the defendant.</p> <p>Henry Marsh, called as a witness by the plaintiffs, testified that, on the 11th of June 1842, the personal property of the Ashuelot Company was attached, for more than ¡$3000, upon a debt due to Henry Warren; that the members of the company, a day or two afterwards, agreed with the plaintiffs to give, the attaching officer a receipt for said property; that the plaintiffs were unwilling so to do, unless they could have security, and they were told that the company could n ot give them security without including the other sureties of the company, and were willing that the plaintiffs should take possession; that the plaintiffs were also told that the factory hands and Stephen Warren must be provided for; that when he (the witness) delivered the property to the plaintiffs, it was on condition that said hands and said Warren should be paid before the property should b? appropriated to the company’s sureties and indorsers.</p> <p>The witness further testified, that he had no authority to sign the agreement aforesaid, as attorney for the persons therein named, except the relation of their being his sureties ; that, about a fortnight after said agreement was made, Billings, who is named therein, and at whose suit the defendant attached the goods in question, expressed satisfaction at what had been done, said the paper was a good mortgage, and advised that it should be put on record; but the witness did not recollect that he showed or mentioned to Billings the agreement of the same date with the mortgage; that Billings applied to the witness, in the autumn of 1842, for money which he had been called on to pay as surety for the company; that the witness thereupon took cloths to New York, and left them there, in Billings’s name, which were sold, and $800 of the proceeds paid to him; that other cloths were afterwards left in New York, for which the witness received $500 worth of wool, which he delivered to Billings, who also received more than $1300 dollars from goods consigned by the company, in his name, to houses in New York and Boston.</p> <p>The witness further testified, that the company was aided by its sureties, in the purchase of wool, upon the condition that, when purchased, it should go into Holden’s possession, to be held by him and Buck for the benefit of the persons named in the aforesaid agreement; that they allowed the company to go on, as before, in the purchase of property; that the understanding with Buck and Holden (the plaintiffs) was, that whatever property should be thus purchased should go into Holden’s possession, for the benefit of the mortgagees, so as to keep the pledge good.</p> <p>The witness further testified, that, after the aforesaid mortgage was given, he continued to act as treasurer of the company, and to buy wool for the factory and goods for the store; that all the property, so purchased, went into Holden’s possession ; that, at different times, some of the mortgagees became sureties for property so purchased; that the witness made payments for the property, from time to time, out of the proceeds of cloth made at the factory and disposed of by him; and that this was done, on consultation with Holden, who was willing, and Buck also, that the company debts, thus contracted, should be paid by the proceeds of the company property; that in almost every instance the property was paid for, by the witness, out of the funds of the company, or by the sureties themselves; that it was the understanding that the property was to be held by Holden and Buck, according to the terms of the mortgage, for those concerned ; and that the property all went into their hands, under the agreement that they should pay Stephen Warren and the factory hands.</p> <p>Upon this evidence, the defendant contended that the plaintiffs could not recover, because they had made no demand on him, and stated no account of their claims, pursuant to the Rev. Sts. c. 90, §§ 78, 79, before service of their writ.</p> <p>The plaintiffs then offered to prove that the persons who gave to the officer a receipt for the company’s property, that was attached on Henry Warren’s suit, had paid the judgment recovered by him in that suit, more than sixty days before the commencement of the present action; and they contended that so much of the property replevied by them, as was embraced in the mortgage, had become theirs absolutely, or, it not, yet as Billings was himself the attaching creditor and one of the mortgagees, no demand of payment, or notice oí the plaintiff’s claim, was necessary; and that, as to the rest of the replevied property, which was acquired after the making of the mortgage, the plaintiffs held it in trust, having the legal title thereto and the right of possession, and therefore no demand or statement of claim was necessary, before bringing this action.</p> <p>The judge, being of opinion that if the property in the replevied goods was in the plaintiffs, it was such a property that a demand and statement of their claim were necessary, under the provisions of Rev. Sts. c. 90, before commencing the action, sustained the defendant’s objection, and ruled accordingly. A verdict was taken for the defendant, and the plaintiffs alleged exceptions to the judge’s ruling.</p> <p>This case was decided at the last September term.</p>

This was an action of assumpsit, on the money counts, and was tried in the court of common pleas, before Wells, C. J. whose report thereof was as follows : The plaintiff gave in evidence the following paper: “ Received of Jeremiah Colegrove one hundred and one dollars and fifty cents on a note I hold against the estate of Jeremiah Colegrove, late of Adams, deceased. Received above of J. Colegrove, executor of the will of the late J. C. deceased. April 1840. Th.

Tbespass for breaking and entering the plaintiff’s close in Sheffield. The defendant filed a specification of defence, claiming a right of way across said close, the use of which right, as he averred, was the alleged trespass.

<p>Writ of entry to recover forty three acres of land In Hancock. At the trial before Shaw, C. J. both . parties claimed title to the demanded premises under Hiram Chapman. The demandant claimed under a levy upon the premises, made on the 8th of November 1842, upon an execution against said Chapman, in pursuance of an attachment alleged to have been made on the 6th of December 1841. The tenant claimed under a deed of the premises, made to him by said Chapman, on the 4th day of February 1839, acknowledged on the same day, and recorded on the 10th of December 1842.</p> <p>Several objections (which need not be here stated) were made to the legality and sufficiency of the demandant’s said levy, which were overruled by the judge.</p> <p>An objection was then made to the demandant’s attachment of the demanded premises, on the ground of a discrepancy between the officer’s return thereof on the original writ and his return on the copy deposited in the clerk’s office and entered in the clerk’s book, pursuant to Rev. Sts. c. 90, §§ 28—30. The attachment on the writ purported to be made on the 7th of December 1841, whereas, on said copy, it was stated to be on the 6th of said December. The judge ruled, first, that this slight misdescription of the attachment did not raise a doubt of its identity, nor affect any one’s rights; and secondly, that, as the tenant did not claim under any subsequent conveyance or attachment, by the terms of the statute he could not take advantage of such misdescription.</p> <p>The defence was, that the demandant, when he made his levy, and when he made his attachment, had actual notice of the tenant’s prior unrecorded deed. In support of this defence, the tenant offered evidence to show that he was in the open occupation and possession of the demanded premises; that he pastured part thereof, and cultivated other parts thereof; and that this was so open and visible as to warrant a belief that the demandant knew it. This evidence was objected to as incompetent, having no tendency to prove knowledge of a preexisting title by deed, rather than a tenancy for years or at will. Whereupon the judge ruled, that such acts of occupation and improvement were not competent evidence, unless connected with some admission or declaration of the demandant, showing that he attributed such acts to the existence of a previous conveyance.</p> <p>The tenant then proposed to prove some improvements of a more expensive and permanent character, such as an owner only would be likely to make; and for this purpose he offered to prove that he joined with a neighbor who had purchased another part of said Hiram Chapman’s land, and put his deed on record, in building a partition rail fence, of considerable extent. But the judge ruled, that such fencing fell under the rule before stated, in regard to possession, occupation and improvement, and had no tendency to prove a preexisting deed.</p> <p>The tenant’s counsel declined going to the jury upon the question of fact, and consented to a verdict for the demand-ant, subject to the opinion of the whole court upon the rulings at the trial.</p>

Assumpsit to recover $709-89, money had and received by the defendants to the use of the plaintiff. At the trial before Dewey, J. the following facts appeared in evidence : The defendants, in 1840, recovered judgment, in the court of common pleas, against Stephen Stevens, for damages and costs of suit, on a complaint against him for flowing their lands by means of a mill dam.

<p>The plaintiffs alleged, in a bill in equity, that Jonathan C. Stevens, one of the defendants, in 1836, entered upon certain land in Sheffield, then owned by Stephen Stevens, since deceased, said Jonathan C. having no estate, right or interest in said land; and under a pretence of a parol license from said Stephen, said Jonathan C. erected a dam across a stream of water running through said land, and thereby raised the water of said stream for the alleged purpose of working certain mills which said Jonathan C. afterwards erected on his own land, below said dam; that said Stephen, on the 8th oí March 1840, by his deed of that date, conveyed all his land in Sheffield, including that on which said dam was erected as aforesaid, to Mary Sumner, one of the plaintiffs, to hold in fee simple, without any reservation whatsoever touching ur concerning said dam; that after said conveyance to said Mary, the said dam became ruinous, and was in part torn away whereupon the said Jonathan C., without leave or license, and without any right whatever, wrongfully went upon said land, and wrongfully constructed an addition or wing to said dam, thereby stopping the water of said stream, creating a nuisance, and doing great mischief to said Mary’s land: That said Jonathan C. afterwards conveyed all his real estate in Sheffield, including the mills aforesaid, and all the incidents and appurtenances thereto, to Augustus E. Fuller, Ephraim Dixon and Hubbell Smith, the other defendants, by deed dated April 21st 1843 : That said Mary, on the 29th of April 1843, gave written notice to said Jonathan 0., who was then wrongfully maintaining said dam, that she objected to his maintaining or having a dam on said land, and made written request to him to take down said dam; and afterwards, in May 1843, caused said written notice and request to be served on said Fuller, Dixon and Smith, the other defendants, and also gave them notice that she objected to their continuing or having any ditch from such dam, across her land to their saw mill, (being one of the mills aforesaid,) and furthermore requested them to take down said dam and to fill up the ditch through which they conducted water across her land to said mill: That said Mary, on the 30th of May 1843, by her deed of that date, released, quitclaimed and conveyed one undivided half of the land, so as aforesaid conveyed to her by Stephen Stevens, to William S. Stevens and Hiram C. Stevens, the other plaintiffs; and that the said Hiram, on the 3lst of said May, entered upon that part of said land on which said dam was erected as aforesaid, and abated a part of said wing or addition thereto; and that, while he was so abating said dam as a nuisance, the said Jonathan C. and said Fuller, with divers other persons, entered upon said land, and violently assaulted and beat said Hiram C., and wrongfully drove him from said dam; and that said Jonathan C. afterwards, with divers of his workmen, and with the aid and encouragement of the other defendants, went upon said land and reconstructed that part of said wing which had been abated as tiforesaid, and caused said dam, with all its wings and additions, to exist from that time to the time of the filing of this bill, working a nuisance and annoyance to the plaintiffs; and that said Fuller, on the 20th of August 1843, and on divers subsequent days, with the aid and encouragement of the other defendants, wrought on said dam, repairing, rebuilding and reconstructing the same, without any lawful right or claim. Wherefore the plaintiffs prayed that the defendants should be enjoined and prohibited from any longer keeping up and continuing said dam and the nuisance thereby occasioned to the plaintiffs, and that the same might be ordered to te abated and removed, and that the court would make and award all such judgments, orders and decrees, and do all such other acts, as might be necessary in the premises.</p> <p>The answer of Jonathan C. Stevens alleged, that on and before the 6th of May 1836, and for a long time after the erection of said dam and the making of said ditch, Stephen Stevens was the owner of a part of the land over which said ditch was afterwards made, and of the principal part of the land on which said dam was erected, and that said Jonathan C. was the owner of the land immediately adjoining, to which said ditch was afterwards made: That said Stephen proposed to said Jonathan C., that the said Jonathan C. should erect on his said land a saw mill and other mills, and, to induce him to erect the said mills, and especially a saw mill, “said Stephen stated to and assured said Jonathan C., that he should, at all times, have the full liberty and entire right to enter upon said Stephen’s premises, to dig and make a ditch, and to erect said dam, to repair and keep the same in good condition for the operation of his said mill and machinery; and that the said Jonathan C., relying on the good faith, honor and integrity of the said Stephen, did thereupon enter upon the said premises of said Stephen, with said Stephen’s full knowledge, consent and approbation, and, by the leave and license of the said Stephen to him for that purpose first given and granted, dug and made said ditch, and erected said dam, and also after-wards, from time to time, during the life of the said Stephen, and before the plaintiffs had or claimed to have any interest in said premises, entered on said premises, to repair said ditch and dam, with the same full and entire knowledge, consent, approbation, leave and license of the said Stephen; ” and afterwards erected on his, the said Jonathan C.’s, said land, the saw mill contemplated by said Stephen, as well as other machinery to be propelled by the water diverted to the same by means of said ditch and dam, at an expense of four thousand dollars; all which would be wholly lost, if the prayer of the plaintiffs’ bill should be granted: That said Jonathan C. continued in the peaceable occupancy of said ditch, dam and mill, until the death of said Stephen, with his full consent and approbation, and in pursuance of their original understanding and agreement, and of the said leave and license of said Stephen, and until the plaintiffs entered upon, and in part destroyed, said dam ; when the said Jonathan C., at great expense, repaired the same, as he well might: That the defendants, and especially the said Mary, \yere at all times fully cognizant of the aforesaid arrangement between said Jonathan C. and said Stephen, respecting said dam, ditch, and mill, and of all that was done under it, and of the rights of the parties therefrom arising ; and that neither said dam noi ditch worked either hurt, damage or annoyance to the plaintiffs’ said premises, or to the plaintiffs, or was a nuisance.</p> <p>Two issues were framed, by order of the court, and were submitted to a jury; and by their verdict it was found, first, that the said dam had been erected and continued without any license in writing from the owner or owners of the land on which the same was erected; and secondly, that the said dam was a nuisance.</p>

This was an action of trespass for taking and carrying away mill stones, logs, timber and wood, which had been attached by the plaintiff, a deputy sheriff, on four writs against Jonathan C. Stevens, one of the defendants. At the trial in the court of common pleas, before Wells, C. J. the taking and carrying away of the articles described in the plaintiff’s declaration were proved or admitted. The defence was, that there was no valid attachment thereof by the plaintiff.

<p>Oounty commissioners laid out a road over land owned by A., B. and C., as tenants in common, estimated their damages at $108, and ordered that sum to be paid to them from the county treasury: A. and B. drew an order on the county treasurer, directing him to pay to K., who was their agent, “ whatever amount was allowed to them ” by the commissioners, as damages done to their lands: & presented the order, received §108, gave a receipt therefor to the treasurer, as for damages allowed to A., B. and C., and paid the money to A. and B, before C. claimed of him any part thereof: C. sued K.’s executor, in an action for money had and received, to recover his portion of the §108. Held, that the action could not be maintained; that if A. and B. had not authority to demand and receive the whole sum of the treasurer, or if their order was not for the whole sum, yet they, by receiving the whole sum from K., had ratified his act in taking it from the treasurer; and that K-’s payment to them discharged him from any liability to C.</p>

<p>Writ of review. The facts of the case appear in the opinion of the court, delivered by</p>

<p>R. gave to H. a receipt for “ one hundred and fifty dollars, in full for contract for fifteen tons of hay, to be delivered to order.” Heldj in the absence of other evidence, that this was an acknowledgment by R. that he had #150 of H/s money, upon an executory contract for the delivery to him of a given quantity of hay, at a fixed price per ton; and that, upon R.’s delivery of thirteen tons only of the hay, and his refusal to deliver the residue, H. might recover of him, in an action for money had and received, the price of the other two tons, namely, twenty dollars.</p> <p>In an action by H. against R. for money had and received, H. gave in evidence a due bill, signed by R., of this tenor: “ Due H. thirty three hundred and fourteen pounds of hay, at my bam, on demand; ” and also gave in evidence, to prove the eonsideration of said due bill, a receipt, of a previous date, signed by R., in these words: "Received of H. one hundred and fifty dollars, in full for contract for fifteen tons of hay; the hay to be delivered to order, or, if sold, to be accounted for with H.: ” H. also gave evidence that he had received part of the hay mentioned in the receipt, and that, when the due bill was given, there was due to nim the quantity of hay therein mentioned, which he had demanded of R., and which R. had refused to deliver. Held, that R. might give parol evidence, that before he gave the receipt to H., H. agreed with him for the purchase of more than fifteen tons of hay, at ten dollars per ton, and that when the receipt was given, H. agreed not to require the delivery of more than fifteen tons, if R. would then pay $150; that H. then paid R. that sum, and took the receipt; that H. was to take the hay at R.’s barn, and that R. was to sell the hay, as he might have opportunity ; that H. took part of the hay, and R. sold a part of it, and accounted with H. for the proceeds; that when the due bill was given, the quantity of hay therein mentioned remained m R.’s barn, and R. requested H. to take it away; that H. thereupon requested R. to take it, and R. did take it, and gave the due bill therefor. Held also, that on proof of these facts, H. could not maintain his action for money had and received.</p>

Assumpsit on a promissory note for $100, dated June 19th 1839, signed by the defendant, and payable to Williams A. Royce, or bearer, in one year from date. The defendant pleaded the general issue, and filed a specification of his defence. He also filed in offset an account against Williams A. Royce.

Assumpsit by the indorsee of a joint and several promissory note for $1560, signed by Bushrod Buck, as principal, and Asahel Buck, jr. and Seymour Wilcox, as sureties, dated December 5th 1842, and payable, on the 1st of August 1843, to the order of Henry Marsh.

Assumpsit on the following note : “ Pittsfield, 16th October 1837. One year from date, for value received, we jointly and severally promise to pay to James Wilson, or bearer, five hundred dollars and interest. Lemuel Green. Henry Root. James Foot.

The plaintiff was an infant, and brought this action by Abram Anthony, his next friend.

<p>A., who had agreed with a town to support, for a specified time and for a fixed sum, all the town paupers, in sickness and in health, brought an action against S. for assaulting and beating one of the paupers, whereby A. was put to increased expense for the pauper’s cure and support. Meld, that the action could not be maintained.</p>

This was an appeal from a decree of the judge of probate, proving and allowing the last will of Liberty Bowker, late of Savoy.

<p>Trespass for an assault and false imprisonment. Trial before Dewey, J. who made the following report thereof:</p> <p>It appeared in evidence that the defendant had forcibly arrested the plaintiff, at his dwelling-house, and committed him to the jail in Lenox. The defendant justified under a writ of execution against the plaintiff, served by the defendant, as a deputy sheriff. The plaintiff insisted that the arrest was illegal, and was effected by forcibly entering his dwelling-house.</p> <p>It was in evidence that the building in which the plaintiff" lived was occupied by two families, viz. the plaintiff’s, and that of his son in law Cone, under whom the plaintiff was tenant of certain rooms, by virtue of a verbal lease from Cone. The plaintiff was to occupy the kitchen, the hall and the close-press, and to have a privilege, in common with Cone, in the square room. To the part occupied by the plaintiff there was an outer door, being the front door of the house. . Said Cone occupied the residue of the house, and there was another outer door, being the back door, which he used for the entrance, from the yard or street, into his part of the house. The evidence tended to show that the defendant entered peaceably, and without breaking, into the part of the house occupied by Cone, through his outer door; that being thus within Cone’s part of the house, he requested to have the room shown to him which was occupied by the plaintiff; that he entered the plaintiff’s room by forcibly opening a door leading into it from the room occupied by Cone, after due notice and request to be admitted.</p> <p>There was evidence tending to show that the door, which the defendant forcibly opened, was occasionally used, by the plaintiff and his family, to pass into Cone’s room, for various purposes; that the plaintiff, in several instances, had invited visitors, who were in Cone’s room, to visit him, and conducted them to his room, through this door; and that such use was made of this door, both by the plaintiff and his wife. It also appeared that on the evening of the arrest, and previously thereto, certain visitors, who were in Cone’s room, passed into the plaintiff’s room, opening the said door for that purpose.</p> <p>On this evidence the defendant contended that this was an inner door. And the court instructed the jury, that “ if the house was so constructed as to be capable of being used as a double house, or a distinct residence for two separate families, each family having an outer door, and if the same was in fact actually thus used, then an entry into Cone’s room, through his outer door, though peaceably and with the assent of Cone, would not authorize the breaking open of a door, connecting the rooms of the two different tenants, but kept closed as to actual use and occupation by the parties ; and that if such was the state of things, the defendant was a trespasser in entering the room of the plaintiff. But if the door through which the defendant entered the plaintiff’s room was a door of common use and passage by the two families passing from time to time, at the pleasure of the different residents, either to go out of the house through the outer door, called Cone’s, or as a passage-way to the interior part of the house, then the door was not such a one as would be privi leged as an outer door, and the officer, t eing peaceably in the room of Cone, adjacent to the plaintiff’s room, after due notice of the purpose of his entry, and refusal to admit him, would be justified in opening the plaintiff’s room, and making the arrest.”</p> <p>Upon all the evidence in the case, under these instructions, the jury found a verdict for the defendant. New trial to be ordered, if these instructions were not sufficiently favorable to the plaintiff.</p>

This was an action of assumpsit, on the money counts, brought by the administrator of the estate of Stephen Stevens. The plaintiff filed a bill of particulars, which included and described several promissory notes given by the defendant to the plaintiff’s intestate.

Assumpsit for money paid for the defendants. The action was commenced on the 24th of January 1845. At the trial in the court of common pleas, before Colby, J. the plaintiff gave in evidence the following note, signed by the plaintiff on the back thereof: “ Granville, March 28th 1838. One year from date, we, the subscribers, jointly or severally promise to pay William Chickley, or order, one hundred dollars with interest.

<p>A conviction of the offence of obtaining goods by false pretences does not render the party an incompetent witness; nor can the record of such conviction be given in evidence for the purpose of affecting his credibility.</p>

<p>A tenant for years demised to the remainderman, to have and to hold during the term, reserving to the lessor the right to erect buildings on the demised premises, without molestation, the lessee yielding and paying a yearly rent, and engaging to keep the fences in repair and to pay all taxes; “ it being understood that in case the lessor should use any part of the land for buildings and their appendages, a proportionate amount shall be deducted from the rent which the lessee is to pay.” Held, that the term merged in the remainder, and that the lessee could not maintain an action of waste against the lessor.</p> <p>In this country, no act of a tenant amounts to waste, unless it is or may be prejudicial to the inheritance, or to those who are entitled to the reversion or remainder.</p> <p>A tenant does not commit waste by opening a way over meadow land, for his convenience, and digging drains by the side thereof, and carrying on earth for the purpose of making the way passable; or by erecting houses on such land, where there were none before, and digging cellars for them, and raising the ground about them; or by carrying quantities of earth upon the low and wet parts of such) and; if the occasional breaking up of such land is a judicious and suitable mode of cultivating it, and if the cost of levelling would be small, and if, after deducting such cost, the land over which the way was made, and on which the houses were built, would, in case of their removal, be equally (or more) valuable for agricultural purposes, including ploughing and laying it down to grass, as if it had not thus been changed and built upon.</p>

Writ of entry to recover a parcel of land in Springfield, formerly called Pond Meadow.

The plaintiffs alleged, in a bill in equity, that Amos Chase, on the 15th of December 1841, mortgaged to them certain real estate in Springfield, to secure a debt due from him to them, “ meaning to convey the interest which said Chase had in said real estate, and buildings situate thereon, in common with Sarah A. Chase, and Mary C. Chase, minor children of said Amos: ” That said Chase was then in possession of said estate, under a title derived from the defendant Stearns,…

Julius Day and. twelve others presented to the court of common pleas, at June term 1843, a representation and petition, in substance as follows: That at the February term of «aid court, in 1842, Asaph Hulburt and others presented to said court a petition, representing themselves to be proprietors of certain (described) meadow or low land, in West Springfield, which it would be useful to drain, by opening a ditch upon and across the same, and praying the court, after duo…

<p>Assumpsit for work and labor done for the defendants, by the plaintiff’s daughter, from June 27th 1843 to July 18th 1844. The case was submitted to the court of common pleas, on the following statement of facts :</p> <p>“ The plaintiff’s minor daughter, Ann Adams, worked in the factory of the defendants, in Rhode Island, during the time mentioned in the plaintiff’s writ; and the amount paid in the manner hereafter mentioned was what was allowed by the defendants to other persons for similar services. In August 1843, the plaintiff sent his son to forbid the defendants to employ his daughter, and they were accordingly forbidden, but continued to employ her, and refused to let her go. The son, by order of the father, also requested her to return home, but she declined. On the 5th of February 1844, the plaintiff gave to the defendants the following paper: ‘ Mr. Samuel Green, agent of the Woonsocket Company. Sir: You are hereby forbid further to employ, harbor, intrust, or in any manner to contract with my daughter, Ann Adams, a minor, under the age of 21 years: and I further notify you that 1 shall demand pay for her time, labor and services, if you continue, after this date, to keep or employ her in the manufacturing establishment of which you are agent, at the rate of $3-50 per week, for each and every week she so remains with you, without deduction on any account whatever, and payment of said Green to be ’made on Saturday night of each week, after this date, to my attorney, Simon Lynch, at his place of business in Woonsocket Village ; and you are further notified not to advance, pay, or allow to my said daughter, any thing, either goods or money, on account of her said work, or in payment thereof; as I have a home and every thing necessary of life provided for her. John Adams.’</p> <p>“ Lynch, mentioned in said paper, authorized the defendants to procure suitable board and clothing for the said Ann ; and when she left .the defendants’ employment, she received the balance due to her. The settleméht was made thus : The defendants allowed said Ann $3-50 per week from February 5th to July 18th 1844, amounting to $81-66; and they charged her for board and clothing, to June 22d, $44-25, and from June 22d to July 18th, $9-16, and $1, 1 paid Lynch on settlement; ’ amounting to $54-51, and leaving a balance of $27-15.</p> <p>“ The plaintiff and his family came from Scotland, at the instance of the defendants,, and were furnished with means by them, and at first entered into the- defendants’ employ. The plaintiff removed from Rhode Island to this county” (Hampden) “ in June 1843.”</p> <p>On these facts, a judgment was rendered, by the court of common pleas, from which an appeal was taken to this court.</p>

This was an action of trespass, brought by the assignee of Curtis S. Chapin, an insolvent debtor, to recover damages for the taking and carrying away of goods. Ac the trial in the court of common pleas, before Colby, J. the plaintiff introduced evidence that the defendant had taken and carried away a part of the goods mentioned in the writ. The defendant claimed the goods under two mortgages made to him by said Chapin.

<p>This was an action of trover against the sheriff of Hampden, to recover the value of certain goods attached by his deputy, Elisha Adams, on the 19th of June 1842, upon a writ sued out by David Clark against William L. Tingley. The new trial, which was ordered at the last September term, (10 Met. 7—13,) was had before Wilde, J., when it appeared in evidence that said Tingley, on the 26th of January 1841, mortgaged to the plaintiff all the goods in his (Tingley’s) store at Chicopee Falls, to secure payment of six promissory notes, payable on demand ; that a schedule of the goods was annexed to the mortgage; and that the mortgage also contained the following clause : “ Together with all the goods and merchandize which I may hereafter purchase for carrying on said trade, to supply the deficiency created by any sales in the security to the said Rowley hereby intended to be given.”</p> <p>It also appeared, that on the 11th of January 1842, the plaintiff demanded payment of the aforesaid notes, and, in default of payment, claimed the stock of goods then in Tingley’s store, by virtue of his mortgage; that Tingley denied the plaintiff’s right to the goods, unless he would give up the notes, which the plaintiff refused to do, until he should receive his pay, and claimed a right to the goods under the mortgage without giving up the notes; that the plaintiff, after being ad vised by counsel, whom he and Tingley consulted, that hi had a right to the goods, and to retain the notes till the} should be paid in full, from the proceeds of the goods, or otherwise, took possession of the store and goods, with Tingley’s consent; agreed to account with Tingley for any surplus that might remain, after paying the notes; commenced making sales of the goods ; and continued his possession till the time of the attachment by Adams.</p> <p>It further appeared that the greater part of the goods, taken by the plaintiff, and attached by Adams, as aforesaid, were purchased by Tingley, at various times, after the date of the mortgage. The defendant contended that the plaintiff could not hold these goods, by virtue of his mortgage and possession under it, and that, in order to recover for them, he must prove some contract of pledge or sale, distinct from the mortgage. Whereupon the judge ruled, that although the parties did not actually contemplate any thing more than to perfect what they supposed to be a valid title to the plaintiff, under the mortgage, yet if they intended that the plaintiff should hold the goods for the security of his notes, his title to the goods would enure, by way of pledge, for the purpose oi effectuating such intention—the title, by virtue of the mortgage, being defective; and that the plaintiff was entitled to recover the value of the goods, if the mortgage and all the proceedings were bona fide, and not fraudulent.</p> <p>There was evidence tending to prove that, when the mortgage was made, Tingley was not solvent, and was deeply indebted to said Clark and other persons ; that he had no property besides that which was mortgaged, and which was little more than sufficient to pay the plaintiff’s notes; that the plaintiff was well informed of Tingley’s condition, and that it was agreed between him and Tingley, that Tingley might continue in trade as long as the plaintiff should permit him to do so, and that he might sell any part of the goods, without any restriction as to the amount of his sales or the disposition of the proceeds; and that, as fast as he should purchase new goods, either on credit or for cash, they should be held by the plaintiff, under the mortgage; that Tingley continued in trade, after this, till most of the mortgaged goods were sold, and in the mean time increased his debts for goods that he purchased and added to his stock, and especially his debt to Clark, which was upward of $1300, at the time of the aforesaid attachment on Clark’s writ.</p> <p>The defendant contended that this mortgage and arrangement, if the jury believed the evidence, were fraudulent per se. But the judge ruled otherwise, and instructed the jury, that it was wholly for them to decide whether the mortgage was fraudulent or not, upon consideration of the whole evidence.</p> <p>The jury returned a verdict for the plaintiff. Judgment to be entered thereon, if the instructions were correct; otherwise, a new trial to be ordered.</p>

<p>A mortgagee or pawnee of goods in a store, who has taken possession of the store and goods, with the consent of the mortgagor or pawnor, cannot maintain an action of trespass against an officer for entering the store for the purpose of attaching the goods at the suit of a creditor of the mortgagor or pawnor, unless the officer keeps possession of the store for an unreasonable length of time, so as to make himself a trespasser ah initio.</p>

<p>This was an action of trespass upon the case, in which the plaintiff alleged, in his declaration, that the defendants were legally chosen and sworn as assessors of the town of South-wick, in April 1844, and thereby became bound to assess a poll tax upon every male inhabitant of said town between the ages of sixteen and seventy years, and also to apportion and assess upon every citizen of said town, possessing property liable to taxation, a town, county and state tax upon their said property; that the plaintiff was then, and on the 1st of May following, a citizen of said town, of the age of thirty years, and was liable to be taxed and assessed a poll tax therein; that from the 1st of June 1840, to the day of the commencement of this action, (January 10th 1845,) he was seized and possessed of real and personal estate, in his own right, liable to taxation within said town; that the defendants, previously to their making a list of persons to be taxed in the year 1844, well knew that the plaintiff was liable to be taxed as aforesaid ; yet that the defendants, well knowing the premises, neglected and refused to assess a poll tax upon his person, or a tax upon his property, or upon any part thereof, in the year aforesaid : That a legal meeting of the inhabitants of said town was held on the 11th of November 1844, for the choice of electors of president and vice president of the United States, a governor of this Commonwealth, a member of the congress of the United States, two senators, for the district of Hampden, to the senate of the then next general court, and a representative from said town to said general court; that at said meeting, by reason of the neglect and refusal of the defendants to impose and assess a tax upon him as aforesaid, he was unable to vote for either of the officers aforesaid, or to act in said meeting, and that he was not a qualified voter, so to vote, in consequence of said neglect and refusal of the defendants; that at said meeting he offered his vote, for deposit in the ballot box, to the defendants, who were the acting selectmen of said town, and presiding at said meeting, and that said vote was refused to be deposited by them, in consequence of their said neglect and refusal as aforesaid.</p> <p>The defendants pleaded the general issue, and filed the following specifications of defence : “ 1st. That the plaintiff, at the time mentioned in his declaration, was a person who, by reason of infirmity and poverty, was unable, in their judgment, to contribute towards the public charges. 2d. That the defendants had no satisfactory evidence, at the time aforesaid, that the plaintiff was resident in the town of Southwick, on the 1st of May 1844. 3d. That the plaintiff did not bring in to the defendants a list of his polls and estate, as by law required; they having given due notice to the inhabitants of said town to bring in such lists.”</p> <p>At the trial in the court of common pleas, before Colby, J. after the evidence on both sides was introduced, the defendants requested the judge to instruct the jury (among other things) that the plaintiff could not maintain his action, unless he proved that the defendants, in omitting to place his name upon the tax list, did not act with fidelity and integrity; and that, in making such omission, they acted contrary to their own convictions of duty. The judge declined so to instruct the jury, but instructed them substantially as follows: That the plaintiff must prove that he was a proper subject of taxation : That if the defendants knew that he was a proper subject of taxation, and without any legal excuse or justification neglected or refused to tax him, they were liable in the present action; or if they did not know the said facts, but neglected to make suitable inquiries, or did not use due diligence to ascertain the facts, they would also be liable: That if persons neglect to bring in lists of their polls and estate, the assessors would not therefore be justified in excluding all persons so neglecting from taxation, but it would still be their duty to tax all persons whom they knew to be proper objects of taxation, and to use due diligence in making inquiries both as to persons and property: That the defendants had a discretionary power to exempt persons from taxation, who were, by reason of age, poverty or infirmity, unable to contribute to the public charge, and if they had honestly and faithfully, in the exercise of their judgment, excluded the plaintiff, for such cause, they would not be liable; but that, upon this point, the burden of proof was on the defendants, to show that such was their judgment.</p> <p>The jury returned a verdict for the plaintiff, and the defendants alleged exceptions to the judge’s instructions.</p>

This was a bill in equity, in which the plaintiff set forth the following instrument: “ Articles of agreement indented, made and concluded, on the twenty sixth day of June, in the year of our Lord one thousand eight hundred and forty five, by and between Eli Beach of Tolland in the county of Hampden, gentleman, of the one part, and Achsa Snow of Tolland aforesaid, widow, of the other part.

Trespass upon the case for deceit in the sale of a horse. At the trial in the court of common pleas, before Washburn, J. the defendants contended that the action could not be sustained against them jointly, unless it should be pioved that they agreed or conspired to make the misrepresentations alleged in the plaintiff’s declaration, or that both of them were interested in the expected fruits of the fraud.

<p>&. bank ati Albion, in the State of New York, discounted a bill of exchange, deduct, ing a Hi tie less than legal interest for the time it had to run, and gave the holder, at his request and for his accommodation, a draft payable in its own bills, on a bank at Albany, where by law it was required to redeem them at a discount not exceeding one half of one per cent.; and the holder received those bills at par: The bank at Albany was the agent of the bank at Albion for the redemption of its bills, and paid the holder of the discounted bill in the bills of the bank at Albion, which then passed current at par; and that bank paid to the bank at Albany the amount of said draft in full. Held, that these facts did not prove that the bill was discounted on a usurious consideration or agreement.</p>

<p>Assumpsit on the following guaranty : “ Hartford, May 3d 1842. Messrs. Clark, Gill & Co. Gentlemen: Please deliver Mr. Jesse Dilliber such iron, &c. as he may want, from time to time, as he calls for it, and I will guaranty the payment to you of same. Asa Remington.” The writ was dated August 8th 1845.</p> <p>The case was submitted to tne court on the agreed statement of facts which follows :</p> <p>“ On the 3d of May 1842, Jesse Dilliber procured of the defendant the letter of guaranty declared on by the plaintiff. The defendant, who lived in Cabotville, was at Hartford at that time, and went to the plaintiffs’ store to sign the guaranty, and knew that it was accepted by the plaintiffs, but did not know what amount of goods they sold to Dilliber, upon the credit of it. In September 1842, Dilliber, having paid all that remained of the previous bill, again purchased goods of the plaintiffs, to the amount of $100, which was the last purchase made by him of them, and the one for which they now seek to recover of the defendant, upon said guaranty. On the 16th of March 1843, the said bill, contracted in September 1842, not having been paid, the plaintiffs took of Dilliber a note for the amount, payable at Hartford Bank, in thirty days after date ; which note he did not pay at maturity, and the same still remains unpaid. No notice was given to the defendant, as to the amount of credit which the plaintiffs had given to Dilliber, upon said guaranty, nor as 'to the state of Dilliber’s accounts with them, nor of his failure to meet his payments, nor that the plaintiffs relied upon the defendant for the payment of their claim, until about the 1st of January 1845, when the claim was put into the hands of their attorneys, at Springfield, for collection, who caused a demand to be made on the defendant for payment of the balance due, previously to the commencement of this action. Dilliber continued in his business, as a blacksmith, at Cabotville, until the summer of 1843; and on the 30th of January 1844 went into insolvency, under the provisions of the insolvent laws of this Commonwealth, and on the 3d of April 1844 obtained a discharge, under those laws; but he has paid no dividend, and the plaintiffs never proved their claims against him, under the proceedings in insolvency.</p> <p>“ On the 5th of June 1843, Dilliber executed and delivered to J. Chapin, H. Foot & Co., V. Chapin and M. M. Bates, a mortgage of his interest in certain real estate in Cabotville, to secure their several claims against him, amounting in all to $643-54. The estate, so mortgaged, was a lot of land and dwelling-house, situate near Cabotville, and worth from twelve to fifteen hundred dollars; and there was previously no incumbrance upon it, except an attachment which was soon after paid and removed.”</p>

<p>This was an action for a libel inserted in the Tri-Weekly Post, a newspaper published in Springfield. Trial before Wilde, J. whose report thereof was as follows:</p> <p>The evidence tended to show that the defendant was the publisher of the newspaper mentioned in the plaintiff’s declaration, and sold copies, at his office, of the paper that contained the alleged libel.</p> <p>To show that the plaintiff was the person intended by the libel, he gave evidence of certain facts coinciding with the facts stated in the libel, and also evidence of certain reports relating to him,- similar to the statements contained in the libel</p> <p>The defendant contended that the article, alleged to be libellous, was a mere fancy sketch, which had no relation to the plaintiff, and was not intended to apply to him; and the defendant was allowed to introduce witnesses, (the editor of the Post, among others,) to testify that they did not understand the article to apply to the plaintiff.</p> <p>The defendant also contended, that the libel was not written by him; that he did not, before the trial, know the plaintiff, or any of the facts, stated in the libel, as applicable to him; and therefore, that although the libel might have been intended, by the writer thereof, to apply to the plaintiff, yet he, as publisher, was not liable.</p> <p>The plaintiff contended, that if the defendant was the publisher of the paper containing the libel, and had sold the papers containing it, he was answerable, although he did not know -that the facts stated therein applied to the plaintiff.</p> <p>The judge ruled, that although the article might be intended, by the writer, as libellous, and to apply to the plaintiff, yet if the defendant, as the publisher of the paper, did not know to whom it applied, and had not heard the facts and reports in relation to the plaintiff, and if the article was published as a mere fancy sketch, and the defendant believed it to be so, he was not liable, although the plaintiff might have been intended by the writer of the article.</p> <p>The jury found a verdict for the defendant, and the plaintiff alleged exceptions to the ruling of -the judge.</p>

Writ of entry to recover a parcel of land in Springfield. At the trial before Wilde, J. the demandant gave in evidence a deed of the demanded premises, dated April 24th 1841, duly acknowledged, and recorded on the 29th of said April, from Chester Denison (whose title was admitted by the tenants) to George G. Denison, and a deed from said George G. to the demandant, dated March 27th 1844, acknowledged on the same day, and recorded July 29th 1845.

Assumpsit for money had and received. The case was submitted to the court on the following facts agreed: The defendants were organized as a fire district in the town of Springfield, according to the provisions of St. 1844, c. 152. The plaintiff owns a dwelling-house and resides within the limits of said fire district.

<p>B. contracted with a rail road corporation to construct a section of the road, and afterwards underlet the section to C., D. and E. jointly, and not jointly and severally, and then C. underlet it to D. and E., who proceeded in the work for a short time, and then stopped: The corporation then assumed the work and finished it, and were sued by S. for articles furnished, under a contract with C. and D., for the completion of the work, and used by the corporation: S. released B. and C. from all liability for the articles, and introduced the testimony of D. in support of the claim. Held, that D. was a competent witness.</p> <p>Though a leading interrogatory to a deponent is objected to when it is filed, yet if the answer thereto shows that he was not led by it, or if the answer relate to matter proved aliunde, respecting which the party, who objects to the interrogatory, has given evidence, the interrogatory and answer may be read to the jury, on the' return of the deposition.</p>

<p>This was a petition, originally presented to the court of common pleas, in which the petitioner represented that he was under-keeper of the jail and house of correction in the county of Hampden, and was, as such, entitled to be allowed, by the county commissioners, the sum of $2737-99, (according to an account annexed to his petition,) for his services, and the support of the prisoners under his charge, and other necessary expenses, from May 1st 1845 to May 1st 1846; that said commissioners had allowed him the sum of $699-60, and had refused to allow him any more,- and that he was dissatisfied with the amount so allowed him. He therefore prayed said court, according to the provisions of St. 1846, c. 11, to make him such allowance as should be reasonable.</p> <p>The county commissioners appeared before the court of common pleas, held by Washburn, J. and filed a motion to dismiss the petition, on the ground that the said court had no jurisdiction of the case; but this motion was overruled.</p> <p>The petitioner filed, as the specification of his claims, four accounts. Two of them were made by him as deputy jailer, and two as master of the house of correction. There was no controversy as to the correctness of the items charged in these accounts, except as to the price per week for board, or for the petitioner’s salary. The respondents denied the petitioner’s right to any allowance on his petition, because the jail and house of correction were united in one and the same building. But as it appeared that they were thus united before the passing of the act of 1846, c. 11, this objection to the petitioner’s claim was overruled.</p> <p>The respondents further objected to the petitioner’s having any allowance subsequent to the 12th of November 1845, until the aforesaid statute of 1846 went into operation, viz the 5th of March 1846; because the petitioner, on said 12th of November, was removed from his office of master of the house of correction. So far as this was a question of fact, the judge was satisfied that the county commissioners, before said 12th of November, appointed one Spelman master of the house of correction, which appointment was to take effect on that day; that the commissioners, on that day, went, with Spelman, to the house of correction, for the purpose of putting him in charge of the house, and that they informed the petitioner of Spelman’s appointment, and demanded the keys of the house ; that the petitioner, being deputy jailer, and the jail and house of correction- being in one building, refused to deliver up the keys, without the sheriff’s direction; and that Spelman and the commissioners thereupon went away, and the petitioner continued to act as master of the house of correction and deputy jailer, up to the date of his petition. The judge, therefore, so far overruled the objection, as to hear the evidence as to what would be a fair price for the board, &c. of the prisoners confined under the charge of the petitioner.</p> <p>The judge disallowed all charges made by the petitioner as deputy jailer, on the ground that the court had no cognizance thereof, under the petition. The judge also disallowed all items of claim as master of the house of correction, up to the 12th of November 1845, on the ground that they were not open to revision and adjudication by the court, within the intent of St. 1846, c. 11. But he was of opinion, upon the foregoing facts, that the petitioner was entitled to compensation, as master of the house of correction, from November 1st 1845 to May 1st 1846, and that he should be allowed the sum of $>T75 per week for the board of the prisoners confined therein during that time, deducting from the aggregate sum the amount allowed and paid to him by the commissioners specifically on his aforesaid account as master of said house. And the amount of the balance was ordered and directed to be paid to the petitioner.</p> <p>The respondents alleged exceptions to the rulings and orders of the judge.</p>

<p>On a writ of entry to foreclose a mortgage, the conditional judgment is not confined to the amount that was due on the mortgage at the commencement of the action, but is to include all that has become due and payable at the time of entering the judgment.</p> <p>When the condition of a bond is, that the obligor shall pay all the just debts which the obligee “ now owes,” an omission to pay, at maturity, a note given by the obligee, is a breach of the condition, although the holder of the note does not demand nor desire payment. It is also a breach of such condition, if the obligor omit to pay, within a reasonable time, a sum due by the obligee, by way of contribution to his co-contractors, in an agreement made by him and them with another party, before he took the obligor’s bond, although his liability to contribution, and the amount thereof, were not ascertained until after the bond was given.</p> <p>In a writ of entry to foreclose a mortgage conditioned to perform an obligation entered into by the mortgagor, to pay all the mortgagee’s debts, one alleged breach of the condition was, that the obligor had omitted to pay a sum due from the mortgagee, by way of contribution to his co-contractors, in an agreement made by him and them with a third party, before the mortgage was given. Held, tka* these co-contractors were competent witnesses for the mortgagee, to prove their claims on him for contribution.</p> <p>"When a writ of entry is brought, under Rev. Sts. c. 107, to foreclose a mortgage given to secure the performance of various acts, from time to time, other than the payment of money, the court, in order to accomplish the purposes of the mort gage, is authorized to enter any decree, from time to time, toties quoties, which may be made in a suit in equity, and to issue any process to carry such a decree into effect.</p>

<p>A. testator bequeathed money to trustees, to be managed as an accumulating fund, for the term of sixty years, and then to be paid by them to the town of N., or its duly appointed agents, for the purpose of purchasing land within the town for a pattern farm, to be so improved, in practical details, as to become a model to farmers generally. Held, that the town was entitled to appeal from a decree of the judge of probate respecting the testator’s will.</p> <p>A bequest of money to trustees, to be devoted to the use and benefit of indigent persons in certain towns, does not make a judge of probate, who is an inhabitant of one of those towns, interested in the probate of the will which contains the bequest, so as to authorize him to transfer the case, under the Rev. Sts. c. 83, § 15, to the probate court of another county.</p>

Assumpsit on the money counts and on this note: “November 17th 1839. For value received, we promise to pay Thomas Bates, or order, three hundred and seventy eight dollars and fifty one cents, on demand, with interest.

Assumpsit by the indorsee against the indorser of a promissory note for $47, dated March 8th 1845, signed by A. S. Wetherell, and payable to the defendant, or order, on demand with interest. The case was submitted to the court on the following agreed statement of facts: “ On the 28th of May 1845, the defendant, being indebted to the plaintiff for leather, in the sum of $92-57, requested the plaintiff to take the said note for a part of said sum.

<p>By the Rev. Sts. c. 51, travellers in carriages, who meet in a road, are required, under a penalty, seasonably to drive their carriages to the right of the middle of the travelled part of the road; and they cannot avoid the penalty by seasonably turning to the right of the wrought part of the road, though they leave sufficient room for the travellers, whom they meet, to pass with convenience and safety in the use of ordinary care and skill.</p> <p>In a complaint against a traveller for not driving his carriage to the right of the middle of the travelled part of a road, as required by Rev. Sts. c. 51, it is not necessary to set forth a particular description of the road.</p>

This was an indictment, which alleged that Alpheus Harding filed a bill of complaint, in writing, in the supreme judicial court held at Northampton in September 1842, against the defendant, and therein prayed that the court would order the defendant to reply under oath, to certain interrogatories,.(set forth in said bill and in the indictment.) The indictment then all ged, “ that the said Gilbert Warden, the defendant in said bill of complaint, afterwards, to wit, on the…

<p>Assumpsit to recover damages for breach of a special agreement. The declaration averred that the defendant, in September 1842, (on a consideration set forth,) promised the plaintiff “ that he, the defendant, would not thereafter engage in the staging or the livery stable business in Southbridge,” and that he had not kept his said promise, but had broken the same.</p> <p>At the trial in the court of common pleas, before Merrick, J. the plaintiff admitted that the agreement declared on was not in writing, and offered to introduce evidence to prove such an oral agreement. But the judge rejected the evidence, on the ground that it was an agreement not to be performed within one year from the making thereof, and that, by Rev. Sts. c. 74, § 1, no action could be maintained thereon. The plaintiff thereupon submitted to a verdict for the defendant, and alleged exceptions to the judge’s decision.</p>

<p>Trespass for breaking and entering the plaintiff’s close</p> <p>At the trial in the court of common pleas, before Merrick, J. in December 1845, the plaintiff’s ownership and possession of the close, under a deed from John Larned, dated June 11th 1841, and the defendant’s entry thereon, after having been forbidden by the plaintiff, were admitted by the defendant, who set up, as a defence, a right of way over the close, and a license to enter thereon.</p> <p>For the purpose of showing a right of way by user or dedication, the defendant offered to prove that, for more than forty years, a way had been used by the public, across the plaintiff’s close and the closes of the adjoining owners, with the knowledge and consent of the owners thereof: That in the year 1837, the course of the way through the plaintiff’s close was changed, with the knowledge and consent of the plaintiff*, the defendant, and John Larned, the plaintiff’s grantor, who then owned said close, and of the other owners of the land ovel which it passed — the termini remaining the same : That since that time, there had been the same use of the new way that there had formerly been of the old ; and that the alleged trespass was a passing in said new way.</p> <p>The judge ruled that a dedication could not be presumed from a user of eight years, and that said evidence was inadmissible. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions to the judge’s ruling.</p>

This was a complaint, under the Rev. Sts. c. 116, for flowing lands in Millbury, by the respondents’ mill dam.

<p>A manufacturing corporation caused insurance against loss by fire to be effected by an insurance company, subject to a rule or by-law of the company, which provided that the alienation, in any way, of any property insured by them, should ipso facto make void the policy, unless notice of the alienation should be given to their secretary, and an assignment made of the policy to the new owner of the property, within sixty days after the alienation: The corporation afterwards conveyed the insured property to A. in trust for the benefit of their creditors, part of whom were preferred; but did not assign the policy to A.: The insured property was afterwards sold, by order of a court of equity, for whom it might concern, and A. gave a quitclaim deed thereof to B., but the deed was not executed by the corpo ration, nor was the policy then assigned to B.: The insured property was after wards destroyed by fire, and the corporation assigned the policy to B., who gave notice thereof to the secretary of the insurance company, within sixty days from the execution of A.’s said deed to him: Two actions were brought on the policy; one in the name of the corporation, and another in the name of B. Held, that the conveyance to A., by the corporation, was an alienation of the insured property, within the meaning of the policy, and that the corporation could not avoid that conveyance, and fall back upon their original title, by averring that the conrovanee was void against their creditors, by force of the insolvent laws of 1838 and 1838; that A’s deed to B. conveyed the whole estate 'in the insured premises, and that the corporation thenceforth had nothing at risk in said premises, at the time of the loss. Held also, that the provision in the rule or by-law of the insurance company, as to assignment of policies, related only to assignments before a loss, and that an assignment after a loss would not enable the assignee to maintain an action on a policy, in his own name. Held further, that neither of the actions could be maintained.</p>

Assumpsit on the money counts. The action was commenced before a justice of the peace on the 10th of February 1845. The parties appeared before the justice, and the defendant allowed himself to be defaulted. Judgment was rendered for the plaintiff, upon the default. From that judgment the defendant appealed. The appeal was allowed by the justice, and was entered at the June term of the court of common pleas, in 1845, when an appearance was entered for the plaintiff.

<p>Assumpsit for work and labor. At the trial in the court of common pleas, before Merrick, J. the defendants admitted that the work was done for them by the plaintiff, and their defence was, that it was done under a special contract, by which the plaintiff agreed that if he should be dissatisfied and wish to leave, he would give the defendants four weeks’ notice, and work four weeks afterwards, and then receive his pay; that the plaintiff left the defendants, without giving such notice ; and that the damages caused by his so leaving were more than the work done by him was worth.</p> <p>The plaintiff introduced evidence tending to show (among other things) that he was sick when he quitted work, and remained sick and unable to labor for several weeks.</p> <p>The judge instructed the jury, “ that if they were satisfied that the plaintiff was sick when he quitted work, and was unable to continue working by reason of sickness, he was 'nstified in leaving without notice, and was entitled to recover his wages, without deduction for damages.”</p> <p>A verdict was returned for the plaintiff, and the defendants alleged exceptions to the instructions given to the jury.</p>

This was an action of trespass upon the case, on the Rev, Sts. c. 25, § 22, to recover damages alleged to have been occasioned to the plaintiff by an incumbrance in a highway which the defendants were by law obliged to repair.

Assumpsit on the defendant’s promissory note for §331.73, dated at Sterling, (Connecticut,) October 3d 1834, payable on demand, with interest, to the plaintiff’s intestate, or his order. Writ dated May 17th 1845.

<p>The defendant was summoned to answer to the plaintiff ■ in a plea of trespass and ejectment; for that Samuel M. Burnside, on the first day of October, in the year of our Lord eighteen hundred and forty one, demised to said Stockwell, the plaintiff, ‘ the whole of the cellar or basement story under the wool store then owned by said Burnside, situate in the town of Worcester, on the southerly side of Market Street, so sailed; intending to lease the easterly and westerly cellars under the wool store; the said two cellars being the whole of the basement;’ to hold the same to the said Stockwell for the term of five and one half years, in manner following ; the westerly cellar or basement five and a half years from the date of said lease, and the easterly cellar or basement five and a half years from the first day of April then next: By force of which demise, the said Stockwell then entered into said demised premises with the appurtenances, and became possessed thereof; and he, being so thereof possessed, the said, defendant thereafterwards, on the twenty first day of July now last past,” (1844,) “ with force and arms entered into the westerly cellar or basement story aforesaid, which the said Burnside had demised, as aforesaid, to said Stockwell, in form aforesaid, which term is not yet expired, and the said Stockwell, from the said westerly cellar or basement, ejected; and other wrongs committed, against the peace, ” &c.</p> <p>At the trial in the court of common pleas, before Wash-burn, J. the defendant objected to the sufficiency of the plaintiff’s declaration, and denied his right under it to recover possession of the premises; because, amongst other things, it did not allege that said Burnside was the owner of the demised premises, nor set forth what the plaintiff sought to recover. The judge overruled this objection.</p> <p>The plaintiff then read the lease mentioned in his declaration, which contained no stipulation, either by the lessor or lessee, as to rebuilding in case of fire or other casualty, dated October 1st 1841; and it was admitted that the plaintiff entered into the demised premises, and occupied them until they were burned, as hereinafter stated. The defendant also admitted that the plaintiff had performed all that he was bound, by the lease, to perform, and had thereby, in effect, paid the full rent m advance. The defendant also admitted (for the purpose of the trial) that said Burnside, at the time of his said demise to the plaintiff, was the owner of the demised premises.</p> <p>It was admitted that the plaintiff, on the 21st of July 1844, entered into the premises described in his declaration, and was immediately afterwards ousted and ejected therefrom by the defendant.</p> <p>In the defence, it was stated and admitted that the building, of which the demised premises formed a part, was of brick, three stories in height above the basement, and that each story was occupied by distinct tenants, and that said building was burned down, on the 6th of March 1843, “ except some portion of the outer brick walls, which were not suitable to repair, so as to make a good building.”</p> <p>The defendant introduced a deed made to John Liscom and others, by said Burnside, dated November 23d 1843, which conVeyed to them, in fee, the ground on which the said building, that was burned, was erected. -</p> <p>The plaintiff gave in evidence a copy of a notice, signed by himself, and served upon said Liscom and others on the 2d of April 1844, stating to them that he held a lease from Burnside, (describing it truly,) and that he did and should claim his full right to all the premises therein described, and that if said Liscom and others should provide and erect any building upon or over the premises described in said lease, he should, at all times during the continuance of said lease, claim and maintain his right to use, occupy, enjoy and fully possess all the premises contained in said lease, with all the privileges and appurtenances thereto belonging, and all the space and dimensions contained in said lease.</p> <p>The defendant called witnesses, whose testimony tended to prove that, after said building was burned, and before said Liscom and others purchased said estate, Liscom had an interview, by himself and his agent, with the plaintiff, in relation to his claim upon the estate, under his lease ; that the plaintiff represented that he had no claim upon the land, but that his claim was upon said Burnside personally; that if said Liscom would purchase the estate, and put up a building, the plaintiff would make no claim for it, and would improve his own estate in the vicinity; and that said Liscom, in consequence of his supposing that the plaintiff had no claim, purchased the estate, when otherwise he would not have done so.</p> <p>There was also evidence tending to show that whatever representations the plaintiff made to Liscom were made unde: a misapprehension of his legal rights.</p> <p>There was also evidence tending to show that as soon as said purchase was made by Liscom and others, Liscom took down the brick walls that remained standing, dug the cellar two feet deeper, and began the foundation of the present building in the autumn of 1843; that the plaintiff was almost daily in the immediate vicinity, and saw what was going on, but made no objection thereto, nor claim to the building, until his said notice on the 2d of April 1844; and that the present building, which covers the same ground as the former building, and is three stories high, was completed during the year 1844.</p> <p>The evidence also tended to show that there was a brick partition under the former building, so that, after the fire, there were brick walls standing around the premises demised to the plaintiff, and extending above them; and that there were marks, plain to be seen, of the places for the timbers, after the fire; that there was no cellar, nor any floor under said demised premises, at the time of the demise to the plaintiff, and that the present premises occupied by the defendant, are a little larger, in one direction, than said premises were ; and that the height of the original demised premises, between floor and ceiling, was the same as that of the present room occupied by the defendant.</p> <p>The defendant, claiming to hold as lessee of Liscom and others, contended that, as the plaintiff’s premises were destroyed by fire, he could not recover those erected by Liscom and others in their stead; that if he could recover, in any event, he could not recover without having offered to rebuild or finish the premises which he claimed; that if he could otherwise recover, he was estopped by his representations, made to Liscom before his purchase of the estate, to set up this claim to the premises, or recover the same in this action.</p> <p>The judge instructed the jury, that “ if the plaintiff fraudulently, or through the want of reasonable care and diligence n ascertaining his title, made a representation to Liscom that he had no interest in the estate, and Liscom purchased t in consequence, supposing that representation was true_ the plaintiff was estopped to set up a claim to the estate, under his lease, and thereby deprive Liscom, or his lessee, oí the estate; otherwise, that the plaintiff was entitled to recover.” The jury returned a verdict' for the plaintiff for damages, and the defendant alleged exceptions to said instructions. The plaintiff afterwards remitted the damages assessed by the jury.</p>

Trespass for breaking and entering the plaintiff’s dwelling-house, and carrying away his goods.

<p>This was an action of trespass upon the case, in which the plaintiff alleged that he had sustained damage in his wood and growing trees, by fire communicated to his land from a coalpit which the defendant was burning on his own land.</p> <p>At the trial in the court of common pleas, before Merrick, J. the plaintiff introduced evidence tending to -rove that the defendant’s coalpit was placed near the line of his land; that there was much combustible material, near thereto, on his land and on the lands of adjoining owners; that it was a windy day when the fire occurred, and that the season then was, and had been, very dry; that the fire, which consumed the plaintiff’s wood and trees, was communicated from said coalpit, which was not watched and attended to with due and necessary care and diligence; and that, in consequence of the defendant’s neglect and inattention, the fire escaped from the coalpit, and was conveyed, by the wind or otherwise, to the plaintiff’s land.</p> <p>The defendant introduced evidence which, he insisted, had a tendency to prove that his coalpit was watched and attended to by him with all due and necessary care and diligence, and that the fire was not communicated to the plaintiff’s land from the coalpit. Much conflicting evidence, bearing upon both of these points, was introduced by the opposite parties.</p> <p>The plaintiff’s counsel contended, and asked the judge to instruct the jury, 1st, that when the defendant set fire to his coalpit, it was incumbent on him to control it, if he could, and that he was responsible for the damage done to the plaintiff, unless he was excused by its occurrence by inevitable accident: 2d. That if the jury should find that the fire on the plaintiff’s land took from the coalpit, the burden of proof was on the defendant to show the exercise of a proper degree of diligence : 3d. That as there was evidence in the case, tending to show that the coalpit could be managed and controlled, and the fire therein be prevented from spreading over the woods near thereto, by one man experienced “ in the business of coaling,” if the jury should be satisfied thereof, and also that the fire on the plaintiff’s land was communicated from the defendant’s coalpit, this would constitute a mmia facie case of negligence, and would .throw upon the defendant the burden of proof that he did use due care and diligence.</p> <p>But the judge declined to adopt these several propositions of the plaintiff’s counsel, and, instead thereof, instructed the jury, (among other things,) that the defendant might lawfully burn a coalpit on his own land, but that he was bound to exercise and bestow due and reasonable care and diligence to prevent the escape of the lire, or its communication to the property of other persons; that, in the absence of all evidence to the contrary, the law presumed that a person engaged in a lawful business conducted it in a lawful manner; and that, therefore, the plaintiff, to maintain his action, must prove, first, that the fire, which occasioned the damage to his wood and trees, was communicated thereto from the defendant’s coalpit; and secondly, that the defendant, in the burning of his coalpit, did not use due and reasonable care and diligence to control the fire, and prevent its escape and communication to the surrounding lands; and that the burden of proof, in relation to both of these propositions, was on the plaintiff.</p> <p>The jury returned a verdict for the defendant, and the plaintiff alleged exceptions to the judge’s instructions.</p>

<p>Commissioners, appointed by a court of probate, set off dower to a widow, in the estate of F., her husband, including a parcel of land on the east side of a road, and duly returned their doings: The widow entered upon the premises thus set off to her, and remained in possession thereof until her death: No division of F.’s real estate was ever made among his heirs: During the life of the widow, the heirs conveyed, by deed containing covenants of warranty and against incumbrances, “ all the real estate that was set off to the heirs of F. on the east side of the road.” Meld, that this deed did not convey the reversion expectant on the determination of the estate in dower.</p>

This was a writ of entry to recover possession of land mortgaged by the tenant to secure a promissory note. The demandants counted as assignees of the mortgage and note, and the action was commenced in the court of common pleas.

Assumpsit for chair planks sold and delivered by the plaintiff to Philip R. Merriam, as agent of the defendants, in 1839. At the trial in the court of common pleas, before Merrick, J. the plaintiff, for the purpose of proving P. R. Merriam’s agency for the defendants, gave in evidence the following paper: “ Ashburnham, April 20th 1837.

<p>This avbs an action of trespass upon the case, commenced on the 1st of July 1845, for the same libel Avhich was the subject of the next preceding case of Goodrich v. Davis; and the declaration was the same (mutatis mutandis) as in that case. With the general issue the defendant filed this specification of defence : That if the publication was libellous, he would prove that the article was inserted in the neAvspaper of which he was publisher, without his knowledge, consent or approbation, he being absent at the time, and that it was inserted by accident, without his knowledge, or the knowledge or agency of any person in his employ ; that an article of similar import was presented to him for publication, a short time previously to the appearance of the article in question, which he absolutely refused to publish ; that he Avas necessarily absent, and did not return till after the present suit Avas brought, and not in season to disclaim or explain the same before said suit was commenced, but which was done at the earliest opportunity.</p> <p>At the trial before Hubbard, J. the defendant admitted that he was the proprietor and publisher of “ The State Sentinel and Worcester Reformer,” the newspaper in which the alleged libel was published as an advertisement; and he alleged that it was inserted wilfully by J. F. Simmons, who was not in his employ, and without the approbation, consent or knowledge of the defendant or any of his authorized agents.</p> <p>Edward R. Fiske, a witness called by the defendant, testified that he made a written bargain with the defendant on the 22d of March 1845, to print the “ State Sentinel,” &c.; that he purchased of the defendant the printing materials, the defendant being the owner of the newspaper and the subscription ; that J. Harrington had most to do with the editorial part, furnishing the editorial and selected matter; that the only business of the witness with the defendant was to print the paper; that Harrington, as the witness supposed, was the authorized agent of the defendant, and that no one besides Harrington and the defendant was authorized to furnish editorial matter; that there was a drawer in the printing office, into which was put the copy that was to go into the paper; that the witness took what was found in the drawer for publication, and that his next recourse was to the editors : That the defendant went to Boston, about the 1st of June 1845—having an appointment in the custom house — and had no regular time for coming to Worcester ; that he sometimes came once m two weeks, and sometimes once in three weeks; that he was not about the printing office on the 27th of June, nor that week ; that Harrington was in Worcester on that day, but was not in the office on the preceding day, (26th,) in the afternoon of which the paper was struck off: " That the workmen in the office were employed by the witness, and that the defendant had nothing to do with them; that the article complained of was at the case of J. F. Simmons, one of the workmen, whom the witness saw reading it, and supposed, but did not know, that Simmons set it up: That the witness knew the hand writing of Harrington, but could not swear that the article was in his hand writing, nor could he remember that he had ever said that it was.</p> <p>The defendant’s counsel proposed to ask this witness, “ if, at or about the time Simmons printed the article, or set it up, he heard him say or express ill will towards the plaintiff, and, if so, what he said.” The judge did not permit this question to be put.</p> <p>The witness further testified, that he knew that an article was handed into the printing office, a few weeks before June 27th 1845, reflecting on the plaintiff; that the defendant was then in the office, and refused to publish said article.</p> <p>E. B. Briggs, called by the defendants, testified that he worked in the printing office for the said Fiske, the preceding witness, in June 1845, and knew that J. F. Simmons, another of Fiske’s workmen, had ill will towards the plaintiff, about that time, and that he set up the article in question; that the defendant was not then in Worcester, but was in the printing office about a week afterwards, and disapproved of the article, and said that if he had been at home, it would not have been admitted into the paper.</p> <p>J. Harrington, also called by the defendant, testified that he furnished copy for the defendant’s newspaper, and had charge of it during the defendant’s absence, and put original and selected matter into the copy drawer in the printing office; that he was absent on the 26th and 27th of June 1845, and did not put the article in question into the drawer, nor order it to be set up, and that it did not go into the paper with his approbation; that the defendant said, about a week after the said article was published, that he should not have published it, and expressed regret that it had gone into the paper : That the witness, with the concurrence of the defendant, made a statement in the defendant’s newspaper of July 4th 1845, in the following words : “ Explanation. One word with regard to the advertisement of Mr. Hiram Davis, in our last. It was inserted in the absence of the publisher, and without his knowledge or consultation. He is not, therefore, justly obnoxious to censure for its appearance, nor for having given countenance or currency to the matters it contains. This fact ought to have appeared in the paper accompanying the advertisement. Thus much is deemed a matter of justice to the publisher of this Journal: ” That another article was inserted in the same paper, (July 4th,) as follows: “As the editor of the ‘Massachusetts Cataract ’ has commenced actions for slander against Hiram Davis and the publisher of this paper, for the article that appeared in it last week, and has thrown no obstacles in the way of getting out this number, as he.might have done by attaching, with other property, the paper that was wet down and half printed off for this week’s edition of the same, we would, in justice to him, announce these facts to our readers. £Cf= The above is furnished and published at the request of the editor of the Cataract.” The witness also testified that this last article was in the hand writing of the plaintiff, except the words after the hand, which he (the witness) added.</p> <p>The plaintiff called witnesses, who were permitted to testify, (the defendant objecting,) that they had read the publication in question, and understood it to apply to the plaintiff.</p> <p>The judge instructed the jury, that if the proprietor of a newspaper, who derives profit from the establishment, intrusts the publication to an agent in whom he confides, he is himself responsible for what appears in his paper, although it is not shown that he was personally concerned in the particular publication; but that such proprietor might show that the piece complained of was published contrary to his orders, or that it was done clandestinely, or that some deceit was practised upon him, or that the publication was made under such circumstances that neither he nor his agent participated in it; that if the jury believed that Harrington wrote the piece, or knew of its intended publication, and did not prohibit it, then the defendant would be liable; and also, that as the defendant ■was living away from the place of publication, and attending to other business, but held himself out to the public as the publisher and proprietor of the paper, then, if the jury found that Fiske knew of the intended publication and sanctioned it, the defendant would be liable; or if, through gross negligence of Harrington and Fiske, the publication was made then the defendant would be liable ; and that though the jury should find that Harrington was not concerned in writing the piece, nor in its publication, and that Fiske did not sanction the publication, and they were not guilty of gross negligence in suffering it to be published, yet if the defendant, after its publication, saw the piece, and justified its publication as an advertisement, by another piece in a subsequent paper, he would be liable to the plaintiff, in like manner as though he had originally known of the publication, and that it was no justification or excuse that the libel was inserted as an advertisement, and was published in the regular course of business, like other advertisements ; and that the jury would consider of the piece published in the paper of the 4th of July, whether it was published with the knowledge and consent of the defendant, and, if it was, whether it was intended by him to justify the publication complained of, and if it was, then the defendant would be liable; and that, in such case, they might consider how far such publication furnished evidence of malice in the defendant.</p> <p>A verdict was returned for the plaintiff, which is to be set aside, and a new trial granted, if the foregoing rulings and instructions were erroneous.</p> <p>The defendant filed a motion in arrest of judgment, as in the next preceding case of Goodrich v. Davis.</p>

Trover for 527 dozen of palm leaf hats. At the trial before Hubbard, J. it appeared that B. G. Sampson, on the 22d of March 1842, mortgaged to the plaintiff a quantity of hats in New York, and the goods in a store in Keene, (New Hampshire,) among which were 450 dozen finished, and 300 dozen unfinished, palm leaf hats, and 7000 palm leaves.

Assumpsit for money laid out and expended. The action was founded on the Rev. Sts. c. 19, § 6, to recover double the value of a fence erected by the plaintiff on the division line between the plaintiff’s and defendant’s lands in Charlton. The plaintiff also claimed to recover a sum which he had paid as fees to the fence viewers, who assigned said fence to the defendant, to be made by him, and which he had neglected and refused to erect and maintain.

This was an action of trespass against Elbridge Chamberlain, Daniel Bigelow, Asa Stratton, Benjamin Cook and Anderson Cook.

<p>in an action upon the case against a rail road corporation, to recover damages 101 the non-delivery of goods intrusted to the defendants for transportation, and in an action of trover to recover the value of such goods, a servant of the defendants, employed by them to load and unload cars, and deliver freight, at the depot where the goods arrived, is a competent witness for the defendants, to prove that all the goods were delivered, at such depot, to the plaintiff or his agents.</p>

<p>Trespass upon the case, to recover damages for causing the water of a stream in Milford to flow back upon the wheel of the plaintiff’s mill, by means of a mill dam erected across the stream, by the defendant, in 1839. Trial before Hubbard, J. whose report thereof was as follows:</p> <p>The plaintiff, to prove his title and his right to run his mill, as against the claims of the defendant, introduced a deed of David Stearns, (who then owned the premises on which are the mills of the plaintiff and the defendant, and all the dams, ditches and flowing hereafter mentioned,) to Nathan Parkhurst, dated August 24th 1803. This deed conveyed to said Parkhurst the land on which the said mill stands, and through which land there had then been recently dug a trench for the purpose of conveying the water from the mill pond southerly, to and by the mill, to the south line of the land conveyed by said deed; which trench is therein called “ the new dug way.” Said deed contained this clause, to wit; “ the grantor hereby grants a privilege to the grantee to dig a ditch from the south end of the new dug way, large and deep enough to convey all the water into the river, without overflowing the meadow, where it will do the grantor’s land the least damage.” The plaintiff also introduced evidence of sundry mesne conveyances, showing that he had acquired the land, &c. conveyed by the said deed of Stearns to Nathan Parkhurst.</p> <p>The plaintiff then introduced evidence tending to prove that the defendant, in 1839, erected his mill and dam across said stream, whereby the water was flowed back into the ditch and into the dug way mentioned in said deed of David Stearns to Nathan Parkhurst, and so high as to obstruct the plaintiff’s mill wheel, since December 1845; and also tending to prove that the plaintiff’s mill and dam were erected and put in operation in 1803, and that the mill and wheel were nearly, if not entirely, in the same situation as at the time when the defendants’ mill and dam were erected in 1839.</p> <p>The defendant introduced a deed, made by David Stearns, on the 5th of March 1814, to Samuel L. Scammell, which conveyed to said Scammell all the land on which the defendant’s mill, dam and mill pond are situated, with other lands ; also the deed of said Scammell to Perley Hunt, dated April 19th 1828, conveying the land on which the defendant’s mill pond is situated, and a deed of the same premises from said Hunt to the defendant, dated February 25th 1839 ; also a deed of said Scammell to Ithiel Parkhurst, dated March 1st 1832, conveying about three acres of land, on a part of which the defendant’s mill and dam stand; and also sundry mesne conveyances, by which he (the defendant) acquired title to the premises described in said deed of Scammell to said Ithiel.</p> <p>The defendant then offered to prove that his dam was erected in 1839, with the knowledge of the plaintiff, and without objection made by him; that previously to October 1845, the plaintiff’s dug way and ditch, mentioned in said deeds, had never been reduced to so low a level that the water raised by the defendant’s dam did or could flow back upon the plaintiff’s mill; and that, if the plaintiff had suffered injury by the flowing back of the water upon his mill, it had been occasioned by his digging out and reducing the level of his said dug way and ditch, in October 1845, below what they had ever been before, and lowering his wheel at the same time.</p> <p>The judge ruled that the facts, so offered to be proved, would not, if proved, constitute a legal defence to the plaintiff’s action. The defendant thereupon consented that a verdict should be taken for the plaintiff, subject to the opinion of the whole court as to the said ruling.</p>

Assumpsit on a promissory note, dated January 1st 1843, by which the defendant promised the plaintiff to pay him, or order, $240-89 on demand, Avith interest.

Debt on a bond given to the plaintiff, as judge of probate, on the 6th of June 1837, by the defendant Taylor, as principal, and the other defendants, W. Shattuck and S. Williams, as his sureties. The declaration alleged, as a breach of the condition of the bond, the failure of the defendant well and truly to account for the proceeds of the sale of real estate, and to dispose of the same according to law. Writ dated August 27th 1844.

The defendant was indicted for stealing a trunk containing bank bills and checks, the property of the Waltham Bank, in the possession of Dana Manson.

The defendant was indicted, on the Rev. Sts. c. 130, § 4, for lewdly and lasciviously associating and cohabiting with Lavinia Cash.

<p>The police court of the city of Lowell has not exclusive jurisdiction of complaints for offences committed within the city, but only a jurisdiction concurrent with that of any justice of the peace within the county of Middlesex.</p>

<p>The first count in the plaintiff’s declaration alleged that the plaintiff, “ for many years now last past, hath used, and yet uses, the trade, business and calling of a butcher, and in the same art, without cheating, selling bad meat, or any other crime, and by reason of his upright and honest dealings in his said business, hath gained himself great credit and esteem among his customers and neighbors; yet the said Hartwell, not ignorant of the premises, but contriving to injure said Stevens in his good name, and to hurt and traduce the plaintiff in his trade aforesaid, on the tenth day of March 1844, at Pepperell, in the county of Middlesex, in the presence and hearing of divers good citizens of this Commonwealth, openly and publicly spoke, uttered and published, of and concerning the said Stevens, the following feigned, false and scandalous words, to wit: ‘ Did you ’ (meaning one Samuel Miller) 'buy a hog of Stevens ’ (meaning the plaintiff) 1 yesterday r ’ ' Stevens ’ (meaning the plaintiff) ‘ had one,’ (meaning a hog,) ‘ and it was sick, bad meat,’ (meaning the meat of said hog was bad, diseased and corrupted,) ‘ and I ’ (meaning said Hart-well.) ‘ understood he ’ (meaning said Stevens) ‘ sold it to a carpenter at the north part of the town,’ (meaning said Peppered,) ‘and you’ (meaning said Miller) ‘being a carpenter, and living at the north part of the town,’ (meaning said Pepperell,) ‘is the reason of my’ (meaning said Hartwell’s) ‘making the inquiry of you,’ (meaning the witness;) meaning thereby that said Stevens had sold a sick hog; by the speaking and publishing of said false and scandalous words, the plaintiff is injured, not only in his good name, but in his honest trade and dealings, in buying and selling meat, is egregiously damaged; and many of his fellow citizens, to wit,” (naming thirteen men,) “ with whom the plaintiff, before the speaking of the said false, scandalous and malicious words, had large dealings, from which he derived „great advantage and profit, have since, and on account of the speaking of the said words, and for no other reason whatsoever, wholly refused to buy meat and provisions of the plaintiff,” &c.</p> <p>The second count averred that the defendant, in another discourse with divers other good citizens, on the said 10th of March 1844, “ with the intention and for the purposes aforesaid, did falsely, maliciously, openly and publicly, charge the plaintiff with the crime of knowingly selling diseased, corrupted and unwholesome provisions, for meat, without making the same fully known to the buyer thereof, in the presence and hearing of those last mentioned citizens; by means of the speaking of which said false, scandalous and defamatory words, and of the said false and scandalous charge, the plaintiff is further injured in his good name, character and reputation aforesaid, and is suspected to have acted unworthily, deceitfully and dishonestly, in his trade and business aforesaid, and has been rendered liable to be prosecuted and indicted for the crime aforesaid, and has likewise suffered great pain and distress of mind,” &c.</p> <p>The plaintiff filed the following specification of particulars ■ •‘ To support the charge contained in the second or general count, the plaintiff will offer to prove the words contained in the first count, and alleged to have been spoken by said Hart-well. The plaintiff will also prove a conversation had by the defendant with Gordon Robinson, on or about the 8th of April 1844, in presence of Josiah D. Whitney, the substance of which was, that the hog, sold by the plaintiff to the said Whitney, was sick and diseased.”</p> <p>The defendant filed the specification of defence, which follows: “If the said Stevens proves the words to have been spoken, or the charges to have been made, by the said Hart-well, as is alleged in said declaration, the said Hartwell, in his defence, will rely upon the truth of the words so proved to have been spoken, and upon the truth of the charges so proved to have been made, and will also rely upon the fact, that the words alleged to have been spoken, and charges alleged to have been made, were spoken and made, if spoken and made by said Hartwell, without malice, in a lawful and justifiable form and manner, for the furtherance of justice, and with good, legal and justifiable ends, and that the same did no manner of harm, injury or damage, to the said Stevens, in his character or business, in any form or respect whatever.”</p> <p>At the trial before Hubbard, J. the plaintiff called Samuel Miller as a witness, who gave the following testimony: “In the spring of 1844, I had a conversation with the defendant about killing a hog. It was Sunday noon, at the meetinghouse. The defendant asked me if I bought a fresh hog oí Stevens last night. I told him no. Then I asked him why. He said .Stevens had one that was sick. He said he under stood Stevens sold it to a carpenter at the north part of the town. I asked him if there was any trouble, or going to be, or any thing; and he said, you will hear more about it. I remember nothing more. He spoke very low. He said something about being imposed upon; but he spoke very low.” The witness was then asked, by the plaintiff’s counsel, if he told his brother, Jacob Miller, the substance of what the defendant had told him. This question was objected to by the defendant’s counsel, on the ground that the damage to the plaintiff must result directly from the words spoken, and not from the repetition of them by others, unless directed to be communicated. This question being put, as was admitted by the plaintiff’s counsel, for the purpose of following it by evidence that the words were repeated by Jacob Miller and other persons, to the injury of the plaintiff, in the manner alleged in the plaintiff’s declaration, the judge sustained the objection; and to this ruling the plaintiff excepted. The witness then testified, on cross-examination, as follows: “ The defendant did not tell me to tell any one, nor did he authorize me to tell it to any one else. He said he did not know but what I had been imposed upon, and so he inquired.”</p> <p>Two other witnesses, called by the plaintiff, testified that they heard the conversation between the defendant and Samuel Miller, at the meeting-house in Pepperell, and that it was such as represented by said Miller, in his testimony. They also testified that the plaintiff’s principal business was that of a butcher, and buying and selling meat.</p> <p>It was proved or admitted that Benjamin Kendall sold a hog to the plaintiff, on the 9th of March 1844, the Saturday before the defendant’s conversation with Samuel Miller; and that the plaintiff sold it, on the same day, to Josiah D. Whitney, a carpenter in the north part of Pepperell.</p> <p>Gordon Robinson, a witness called by the plaintiff, testified that he heard Josiah D. Whitney ask the defendant if he knew any thing about a hog that the plaintiff bought of Benjamin Kendall; that the defendant said he did not know any thing about it; that Whitney said he thought he had been injured by the plaintiff, and he wanted to know the truth of the story; that the defendant then said, “ we are all neighbors here together. I don’t wish to have any thing to say about it; ” that the defendant finally said, “ all I know about it is what Kendall’s boy told me. The boy told me, a short time before the hog was slaughtered, his father was going to kill the hog and throw it away. After the hog was slaughtered, the boy said the harslet was so bad that his- father threw it away.”</p> <p>The said Robinson also testified that the defendant said that Kendall had offered to sell him the hog for ten dollars; that the defendant told the witness, on the 19th of January 1844, that the hog was sick; that the witness saw the hog on the 26th of said January, and it did not appear to be sick, but to be “ thrifty and spry, like any other hog.”</p> <p>Upon this testimony, the plaintiff contended that the first count, if sustained by the evidence, would be sufficient to support the action, without proof of special damage; the words having been spoken with reference to his business. But the judge ruled, that the words alleged to have been spoken would not sustain that count, without the averment of special damage, and proof thereof. And as to the second count, the judge was of opinion that as the plaintiff’ had, by his specification of particulars, notified to the defendant that he should, in support thereof, offer to prove the words contained in the first count alleged to have been spoken by the defendant, he was bound by such specification, and could not be permitted, under the same, to give evidence to show that the defendant charged the plaintiff with knowingly selling diseased and corrupted provisions for meat, without making the same fully known to the buyer. And the judge intimated that he should so rule, before the plaintiff introduced the testimony of Gordon Robinson.</p> <p>The plaintiff consented that a nonsuit should be entered, subject to the opinion of the whole court upon the rulings at the trial.</p>

<p>D , who had worked for F. in making pill boxes by a machine owned and kept secret by F., left F. and set up a machine for making similar boxes on his own account: F., when speaking of D.’s said machine, said, “ D. stole my patterns to get up his castings by.” Held, that it was for the jury, and not for the court, to decide whether F. intended, by these words, to charge D. with the crime of larceny.</p>

This was an action of covenant broken. The declaration alleged that the defendant, on the 18th of March 1842, by his deed of that date, conveyed to the plaintiff a certain piece of land in Lowell, with a dwelling-house thereon; that the defendant, in and by said deed, covenanted with the plaintiff, that he would warrant and defend the said premises against the lawful claims and demands of all persons claiming by, through or under him, the said Spaulding.

<p>Assumpsit to recover the price of 200 feet of German cylinder glass sold and delivered to the defendant. Trial in the court of common pleas, before Wells, C. J. whose report of the case was as follows:</p> <p>“ The plaintiffs called, as a witness, a clerk who had been in their employ, and who swore tc the sale and delivery oi the glass; that the agreed price thereof was $22-50 per hundred feet; and that $20 had been paid by the defendant. It also appeared in evidence that the glass was in boxes; that the plaintiffs bought it in order to sell it to the defendant; and that the boxes were not opened.</p> <p>“ The defence was, in effect, that the sum of $20, that had been paid by the defendant, was as much as the plaintiffs were entitled to receive for the glass sold. To sustain this defence, the defendant inquired of a witness whether the glass was merchantable. This question was objected to, and the court decided that it was objectionable in that form, (both because it did not appear that the witness had dealt in such glass, except that, as a painter and glazier, he had, on various occasions, bought glass, and because the admissibility of the testimony would depend on the nature of the defects,) and directed the defendant to specify, in his question, the defects which he wished the witness to testify about. To this decision the defendant excepted.</p> <p>“ The defendant then proposed to ask the witness if the glass was fit for market, and would bring the ordinary price of glass of those dimensions. This was objected to by the plaintiff, both on general principles, and because it had been proved, on the trial, that glass of the same dimensions varies in price, according to its thickness. The court rejected the evidence.</p> <p>“ The defendant then proposed to ask the witness if the glass was as good as that usually sold of the same dimensions. This was objected to by the plaintiffs, for the same reason as the objection to the preceding question; and the court rejected the evidence.</p> <p>“ The defendant then proposed to ask the witness if the glass was as good as that usually sold for $22-50 for a hundred feet. This question was objected to by the plaintiffs, and ruled out by the court.</p> <p>“ The defendant produced a witness who swore that more than fifteen per cent, of the glass was broken when received ; and he introduced evidence tending to prove that, by the usage of trade, broken glass, especially if it exceed five per cent, of the whole lot, is deducted or allowed for by the vendor,</p> <p>“ Tbs plaintiff introduced evidence tending to prove that when glass is sold in boxes, the broken glass is at the risk of the purchaser.</p> <p>“There was no evidence, nor was it contended by the defendant, that there was any express warranty, or any fraud, on the part of the plaintiffs, in the sale.</p> <p>“ The court instructed the jury, that in ordinary cases, where goods are bought and sold in the market, there is no implied warranty of soundness or value; that from the evidence in the case they would decide whether the risk of the broken glass was, by the usage of trade, upon the vendor or purchaser, and render their verdict, so far as the broken glass was concerned, as they should find this fact to be. The jury returned a verdict for the plaintiff for the amount of his claim. To the above rulings and instructions the defendant excepted.”</p>

<p>This was an action of assumpsit, in which the plaintiff sought to charge the defendant as guarantor of the note hereinafter mentioned. The case was submitted to the court on the following agreed statement of facts:</p> <p>“ On the 20th of July 1843, D. A. Kimball made this note: ‘ Groton, July 20, 1843. For value received, I promise to pay Reuben Simpson, or order, twenty dollars on demand, with interest. D. A. Kimball.’ Afterwards, and before August 14th 1843, said Simpson transferred said note, by delivery, for a valuable consideration, to the defendant, but never indorsed the same; and on the same 14th of August, the defendant, in consideration of the sum of $20, then paid to him by the plaintiff, passed the note to the plaintiff, by delivery, and wrote his name on the back thereof; but nothing was written over his name. Afterwards, and within thirty days from that time, the plaintiff informed said Kimball that he held this note, and of whom he received it; and said Kimball at first made some objections, saying that he had expected to settle it with Simpson, in their dealings; but he finally said the note would be responded to; but it never was paid. After-wards, on the 22d of November 1844, said Kimball applied to a master in chancery, in and for the county of Middlesex, to take the benefit of the insolvent debtors’ act, and was, in due time, decreed an insolvent debtor; and thereupon the plaintiff, after said application, and before said decree, gave notice o the defendant of the same, and of the non-payment of the note, and demanded the same of the defendant.</p> <p>“ The court are to draw such inferences, from the facts in the case, as a jury would be warranted in drawing, under the directions of the court.”</p>

This was a bill in equity, in which William P. Lund and Mary J. Lund set forth, that said Mary, on the 4th of April 1820, was married to James Blood, who died on the 1st of May 1834, and that she, on the 3d of October 1834, was married to the said Lund : That Luther Blood, on the 26th of May 1832, being seized in fee of fifty three acres of land (described) in Dunstable, conveyed the same to Edmund Page, by a deed of mortgage, the condition of which was, that if said Luther,…

<p>Upon a complaint filed by a land owner, pursuant to the Rev. Sts. c. 116, § 4, to recover compensation for injury done to his land, by its being overflowed or otherwise injured by a mill dam, he cannot recover damages arising from offensive smells, proceeding from the flowed land, when the water is drawn off, whereby his •ontiguous land is rendered less valuable for building lots.</p> <p>The Rev. Sts. c. 116, afford to a mill owner no warrant or excuse for causing or continuing a nuisance on his own land or the land of another.</p>

An indictment against the defendant alleged that he, “ on the first day of January 1846, and on divers days since, at Charlestown, not being first duly licensed then and there as an innholder, common victualler, or seller of wine, brandy, rum, or any other spiritous liquor, to be used in or about his house or other buildings, according to the provisions of the forty seventh chapter of the revised statutes of said Commonwealth, did then and there presume to be, and was, a…

<p>When an indictment charges, in one count, a breaking and entering of a building, with intent to steal, and, in another count, a stealing in the same building, on the same day, and the defendant is found guilty generally, the sentence, whethel that which is proper for burglary only, or for burglary and larceny also, cannot be reversed on error, because the record does not show whether one offence only, or two, were proved on the trial; and as this must be known by the judge who tried the case, the sentence will be presumed to have been according to the law that was applicable to the facts proved.</p>