Volume 57 — Massachusetts Reports

<p>On the 16th of March, 1844, the legislature of this commonwealth established a corporation (St. 1844, c. 172,) bv the name of the Boston and Maine Railroad Extension Company, for the purpose of constructing a railroad beginning at a convenient point in the Boston and Maine Railroad, near its junction with the Boston and Lowell Railroad, and terminating in the public square at the easterly end of Haverhill and Canal Streets in Boston. The route prescribed in the act of incorporation, from the point where it was directed to cross the Mystic River, by a bridge near Malden bridge, is thus described : “ thence passing near the Mill Pond, at the outlet of the Middlesex Canal, at least one fourth of a mile from the M’Lean Asylum, by the way of Somerville or Charlestown, to a point on the Charlestown Branch Railroad, near their engine house in Charlestown: provided it shall not cross the Charlestown Branch Railroad, at any point east of the State Prison, without the assent of the directors of the Charles-town Branch Railroad Corporation ; thence crossing Charles River by a bridge, above Warren bridge, to the city of Boston, between Haverhill Street and Canal Street; and thence between said streets, to the public square, at the easterly end of said streets.” The corporation thus established was invested with all the powers and privileges, and subjected to all the duties, liabilities, and restrictions, contained in the forty-fourth chapter of the Revised Statutes, relating to corporations, generally, and in that part of the thirty-ninth chapter, and the statutes subsequently passed, which relate to railroads By an act passed on the 19th of March, 1845, (St. 1845, c. 159,) this corporation and the Boston and Maine Railroad were authorized to unite themselves in one corporation, to be called the Boston, and Maine Railroad. The union took place accordingly, and the subsequent proceedings were in the name of the united corporation.</p> <p>The company thus incorporated having laid out their road, and taken the land necessary therefor, the petitioner in the present case presented her petition to the county commissioners of Middlesex, at a special meeting of the board, on the 14th of November, 1844, for an appraisement of the damages, occasioned by the laying out and construction of the railroad of the respondents, over and across the flats appurtenant to the wharf estate owned by her. The commissioners, having first viewed the premises and heard the parties, at a meeting held on the first Tuesday of January, 1845, estimated and awarded the damages sustained by the petitioner, to be paid her by the company, at the sum of $800, with costs taxed at the sum of $45-87. The petitioner, being dissatisfied with this estimate, applied to the commissioners, at their next meeting, held by adjournment on the 25th of March, 1845, to have her damages estimated by a jury. The petition for a jury was continued, from time to time, until the 26th of March, 1846, when the prayer thereof was granted, and the clerk was directed forthwith to issue a warrant to the sheriff of the county, to summon a jury according to law, for the purposes mentioned in the petition.</p> <p>The sheriff proceeded accordingly to summon and empanel a jury, who, on the 18th of July, having viewed the premises and heard the parties, rendered a verdict in favor of the petitioner, for her damages, estimated at the sum of $1451-71. This verdict, being returned to the court of common pleas, at the next September term thereof, was set aside, and the petitioner thereupon appealed to this court.</p> <p>The objections, taken by the respondents to the proceedings before the commissioners and before the jury, upon which they relied as grounds for sustaining the court of common pleas in setting aside the verdict, will be best understood by a reference to such of the papers and records in the cause, as were brought up to this court upon the appeal.</p> <p>The first proceeding, in the order of time, of which a record was produced in this court, was the petitioner’s application to the county'commissioners, to have her damages assessed by a jury, which was as follows: —</p> <p>" To the Hon. County Commissioners for the County of Middlesex, at their meeting to be held at Cambridge on the fwenty-fifth day of March, 1845, by adjournment from the first Tuesday of January, 1845.</p> <p>“The petition of Lucy J. Walker of Charlestown, in said county, respectfelly represents: That at a special meeting of your Honors held at Charles-town in said county, on the fourteenth of November last, she presented hel petition for an appraisement of damages against the Boston and Maine Extension Railroad Company, occasioned by the laying out and constructing the railroad of said company over and across the flats appurtenant to the wharf estate owned by your petitioner, as set forth in her said petition, when and where your Honors, having viewed the premises, heard the respective parties. And at the meeting of your Honors, held at said Cambridge on the first Tuesday of January, 1845, you did estimate and award the damages sustained by your petitioner, to be paid her by said company, at the sum of eight hundred dollars, with costs taxed at the sum of forty-five dollars eighty-seven cents. That your petitioner is dissatisfied with said estimate, and wishes to have her said damages assessed by a jury. Wherefore she prays your Honors to issue your warrant for a jury to assess her said damages, agreeable to the statute in such cases'made and provided.”</p> <p>The proceedings and order of the commissioners, upon this petition, appear by the following memorandum thereon, attested by the clerk: —</p> <p>“ Middlesex, ss. County Commissioners’ meeting at Cambridge, January, 1846, and by adjournment at said Cambridge on the twenty-sixth day of March, 1846.</p> <p>“ This petition was presented to the county commissioners at their January meeting last, and thence said petition hath been continued from time to time, to this time. It is now ordered, that the clerk forthwith issue a warrant, directed to the sheriff of said county of Middlesex, to summon a jury according to law in such case made and provided for the purposes in said petition mentioned.”</p> <p>The warrant, issued in pursuance of the foregoing order, under the seal of the commissioners, and attested by the clerk, was as follows: —</p> <p>“ To the Sheriff of our County of Middlesex.</p> <p>“ Greeting.</p> <p>“ Pursuant to the annexed order of the county commissioners, you are hereby required to summon a jury agreeably to the law in such case made and provided, to meet at some convenient time and place, and have them sworn, to consider and estimate the damages done to the petitioner named in said petition, by the laying out and constructing the railroad of said 'company, over and across the flats, appurtenant to the wharf estate, owned by said petitioner as aforesaid. All which being done within three months from the time of passing said order, you are to make return of this warrant, and of your doings herein under your hands, and also of the verdict of the jury under the hands and seals of the jurors, by whose oath the said damages shall be estimated, to the court of common pleas, which shall be holden in said county, next after said verdict shall be agreed upon, that said court may adjudicate upon said verdict. And you are to notify the petitioner, and all others interested, of the time and place of your meeting for the purposes aforesaid. Given under the seal of said commissioners, at Cambridge, this fourteenth day of April, in the year of our Lord one thousand eight hundred and forty-six."</p> <p>The sheriff returned the warrant, under his hand, with the following statement of his proceedings thereon : —</p> <p>“Middlesex, ss. July 18th, 1846. Pursuant to the annexed warrant, I made application to the mayor and aldermen of the city of Cambridge, and the selectmen of the towns of Charlestown and Somerville, respectively, three nearest towns not interested in the question, requiring them to draw from the jury box, of each of their respective towns, the names of good and lawful men to serve on the jury therein ordered, to wit, from the city of Cambridge four, from the town of Charlestown five, and from the town of Somerville three, and said mayor and aldermen, and said selectmen, made due return of said applications, as follows, to wit: Simon P. Clark, Edward Hyde, William P. Fiske, and Luther L. Parker, were returned from said city of Cambridge ; Samuel Lamson, Joseph W. Whitton, Thomas Bearing, Noah Butts, and Edward Hearsey, were returned from said town of Charlestown; and Orr N. Town, John Runey, and Charles Adams, were returned from the said town of Somerville, as appears by the certificates of the mayor and aldermen of said city of Cambridge and said towns respectively. And I caused said persons so returned to serve as jurors, to be summoned to come before me on the eighteenth day of July instant, at nine o’clock in the forenoon, at the Neck Hotel, in Charles-town in said county.</p> <p>And I gave seasonable notice to the parties of the time and place, when and where, I should have said jury. And on the said eighteenth day of July instant, I proceeded to empanel said jurors, all of whom as above named being personally present, they were duly sworn, before me, to make a just and true appraisement of the damages sustained by the complainant in this case, and well and truly to try all such other matters as should lawfully be submitted to them under said complaint, and to give a true verdict therein according to law and the evidence given to them; and after said jurors had chosen Orr N. Town foreman, by ballot, I conducted them to the premises, which they viewed ; after which, and after they had fully heard the parties, I caused them to be by themselves, when they agreed upon and sealed up their verdict, which is herewith returned into court." *</p> <p>The jury returned the following verdict, under their hands and seals: —</p> <p>“ Middlesex, ss. June 18th, 1846. Verdict of the jury in the case of Lucy J. Walker, of Charlestown, petitioner, against the Boston and Maine Railroad Company.</p> <p>“ The jury empanelled by Samuel Chandler, sheriff of said county, to estimate and assess the damages sustained by the said Lucy J. Walker, occasioned by laying out and constructing the railroad of said company over and across her land and flats, as set forth in her petition, having been first duly sworn, by Samuel Chandler, sheriff, and having chosen Orr S. Town foreman, by ballot, after viewing the premises, and fully hearing the evidence and the parties, do find, and our verdict is, that the said Lucy J. Walker recover, against the said Boston and Maine Railroad Company, the sum of fourteen hundred and fifty dollars and seventy-one cents, as her damages sustained as aforesaid. In witness whereof, we have hereunto set our hands and seals, this eighteenth day of June, A. D. 1846.”</p> <p>The record of the court of common pleas, a copy of which was in the case, contained a recapitulation of the proceedings already stated, and concluded as follows: —</p> <p>“ The parties appear, and being fully heard, and mature deliberation, by the court, being had in the premises, the court set aside the verdict aforesaid. From which order and decision of the court the said Lucy J. Walker appeals to the next supreme judicial court to be holden for this county.</p> <p>The respondents objected, upon the foregoing proceedings:—</p> <p>1. That they had no notice of the pendency of the petitioner’s application for a jury.</p> <p>2. That the petition for a jury was presented to the commissioners, at their meeting in April, 1845, and the warrant was ordered to be issued thereon in March, 1846; whereas, by the statute, the petition should have been presented and acted upon, at the same or the next succeeding meeting of the commissioners.</p> <p>3. That it did not appear, when the matter of this petition Was finally determined upon, that there were three disinterested commissioners present, or that the parties consented to the proceeding.</p> <p>4. That some of the jurors were drawn from the town of Charlestown, in which the land taken by the respondents was situated, and which, therefore, was not an adjoining town.</p> <p>5. That the jury were not directed to estimate the proprietary interest of the commonwealth in the flats, and to deduct it from the whole value of the land.</p> <p>6. That there were other cases of the same kind, which ought to have been put to the same jury.</p> <p> </p> <p>The respondents also objected : —</p> <p>7. That the direction of the sheriff, as to the mode of ascertaining the petitioner’s interest in the flats, was erroneous.</p> <p>The ground of this last objection appeared by the following certificate of the sheriff, as amended by the agreement cf the parties: —</p> <p>“It was proved, that the channel runs from Davidson's mill, so called, in the direction indicated upon the plan drawn by Charles Whitney, February 10th, 1846, passing the Boston and Maine Railroad and the Fitchburg Railroad, to the draw in Prison Point bridge, and that a channel also exists in front of the state prison, as marked on the plan, from which the water does not recede at the lowest tides, between a point about opposite the north-west passage, or canal, into the prison grounds.</p> <p>“ The petitioner proved her title to the lot on the upland marked ‘A B’ on the said plan, and the flats appurtenant, and called Stephen P. Fuller, surveyor, who testified to the correctness of the line of high water mark, as shown on the plan, and that the lines from ‘ A B ’ to ‘ C D ’ were obtained by drawing a straight line across the mouth of the indentation, and giving to each abutter a width of flats upon said line, in proportion to the extent of his line upon high water mark, as drawn upon said plan, and by the extension of those said lines, at right angles with said line drawn across as aforesaid towards low water mark, one hundred rods, or to the channel, which results in giving the lot of each proprietor a portion of the flats of equal width throughout.</p> <p>“It was agreed, that the plan, which was before the jury, of the channel of Miller’s River, towards which the said lines are directed, and of the flats, and shore of the bay, between said river and Somerville and Charlestown, is correct, and to be considered a part of the record.</p> <p>“ At the request of the petitioner, I directed the jury, that, by law, the flats of the petitioner were ascertained by drawing straight lines from the opposite corners of her upland ‘ A B ’ towards low water mark, one hundred rods, to points marked on said plan, ‘CD.’ To this ruling, the respondents excepted, and at their request I hereby certify the same.” *</p>

<p>County commissioners having awarded damages for land taken for a railroad, and the respondents having had their estimate revised by a jury, who also awarded damages, and the verdict of the jury having been accepted by the court of common pleas, it was held, on appeal to this court, that it was open to the respondents to insist that no damages could be legally assessed against them.</p> <p>An act of the legislature, by which a railroad corporation was established in the usual manner, and with the ordinary powers and privileges of such corporations, authorized the corporation to locate their road, so that the same might pass over certain land, which belonged to and was held by the commonwealth as a body politic for a particular purpose, but without any expression in the act of a design, on the part of the legislature, to aid the corporation in their undertaking: It was held, that it was not the intention of the legislature, by such act, to grant the land of the commonwealth, or any easement therein, to the corporation, without compensation; and that if such land of the commonwealth were taken by the corporation for their road, the commonwealth might institute proceedings, and prosecute a claim for damages, before the appropriate tribunal, in the same man.ner as an individual proprietor.</p> <p>Where general rights are declared, or remedies given, by law, the commonwealth is included therein, though not named.</p> <p>The attorney of the commonwealth for the county of Suffolk, after the act of 1843, c. 99, abolishing the office of attorney-general, and previous to that of 1849, c. 186 reestablishing that office, was authorized by law, upon the requisition of the governor, to institute proceedings before the proper tribunal, for the recovery of damages, sustained by the commonwealth for land taken for a railroad, and to prosecute the same to their final termination; and such attorney had a right, also, with the permission of the court or tribunal in which the proceedings were pending, and for sufficient cause, to avail himself of the aid of other suitable counsel, in conducting and managing the same, under his direction and control, and upon his responsibility.</p> <p>An agreement having been made between the commonwealth and the Charlestown Branch Railroad Company, providing, amongst other things, that, upon certain terms and conditions therein mentioned} the commonwealth would authorize such corporation to institute proceedings, in the name of the commonwealth, against the Boston & Maine Railroad, for the purpose of recovering all claims which the commonwealth might have against the latter, for laying out and constructing their road over land of the commonwealth, the money receivable for such damages to be paid to the treasurer of the commonwealth, and by him retained until the performance by the Charlestown Branch Railroad Company of the covenants contained in the said agreement, and on their part to be performed; and the commonwealth having given such authority, and proceedings having been instituted accordingly in the name of the commonwealth, by the Charlestown Branch Railroad Company against the Boston and Maine Railroad, for the recovery of such damages: It was held, that the contract was not illegal; that the case was one in which the commonwealth was a party and interested; and that the damages were not limited to the amount to which the commonwealth was entitled at the time of the making of the agreement, but were recoverable as of the time of the filing of the location of the railroad.</p> <p>The same persons being summoned as jurors, to assess the damages severally sustained by two railroad corporations, for the taking of their lands lying contiguous to each other, by a third railroad corporation, for the road of the latter, it was held to be no objection to the competency of one of the jurors to sit as such in the cause first tried, that he was a stockholder in the other corporation petitioning, whose cause was to be tried immediately afterwards.</p> <p>On a claim for "damages for land taken for a railroad, the claimant may prove, by the testimony of the engineer who made the preliminary surveys and plans for such road, that the same might have been located, pursuant to the charter, in various modes which would not have required the taking of the land of such claimant.</p> <p>The owner of flats crossed by a railroad bridge having raised the flats around and under the bridge, within the location of the road, but without the consent of the proprietors thereof, is entitled to recover by way of damages, against such proprietors, for so much of the expense of such raising and filling up, as is necessary to enable him to enjoy his other lands; provided such necessity was caused by the location and construction of the railroad.</p> <p>Where the owner of flats crossed by and taken for a railroad had previously caused the same to be surrounded by a sea wall and filled up, it was held, that the ex pense of such filling up was proper evidence to be considered by the jury, in esti mating the damages sustained by the owner for the land so taken.</p> <p>On a trial before a sheriff’s jury, summoned and empanelled to assess damages for land taken for a railroad, the sheriff cannot be called upon to instruct the jury as to the .weight, effect, or sufficiency of the evidence.</p> <p>In proceedings where the commonwealth is a party or interested, and no ether special mode of summons is provided by law, notice to the governor, as the chief executive officer, would, it seems, be considered as sufficient.</p> <p>Where the estimate of a petitioner’s damages, occasioned by the construction of a railroad, as made by the county commissioners, is revised by a jury, on the application of the respondents, and the amount reduced; and the verdict of the jury, on an appeal from the adjudication of the court of common pleas accepting the same, is established by this court; neither party is liable to the other for the costs of the proceedings before the sheriff and jury, but the petitioner is entitled to recover against the respondents the taxable costs of the appeal.</p> <p>If, on an appeal to this court from an adjudication of the court of common pleas, either accepting or setting aside (see Parker v. B. & M. Railroad, page 107.) the verdict of a sheriff’s jury, the verdict of the jury is established, interest is to be computed on and added to the amount of the damages awarded by the jury, from the time when the verdict was returned into the court of common pleas, to the time of its affirmation by this court.</p> <p>The judgment of this court, confirming the proceedings of a sheriff’s jury, on an appeal from the adjudication of the court of common pleas, either accepting or setting aside the verdict, when the amount of the damages has been liquidated by computing and adding interest, and the costs have been taxed, is to be enforced by a certificate to the county commissioners, directing them to issue a warrant of distress for the amount so ascertained.</p>

<p>The authority of the court of common pleas, to set aside the verdict of a sheriff’s jury, for good cause, is only to be exercised for some cause affecting the legality, justice, or merits of the case.</p> <p>If an adjudication of the court of common pleas, setting aside the verdict of a sheriff’s jury, is founded upon any cause contained in the warrant, return, or verdict, such cause is matter of law apparent upon the’record, and will come before this court on appeal; if the adjudication is founded on a cause shown aliunde, — under which designation, the record of the anterior proceedings before the commissioners is to be included, if such record is adduced for the pur pose of showing any fact affecting the merits of the case, — such cause is matter of fact, upon which the decision of the court of common pleas is conclusive; and if either party objects in this court to any decision or adjudication of the court of common pleas, in matter of law, the ground of such objection must be specially stated in the decision or adjudication itself, or in a bill of exceptions filed and allowed in that court.</p> <p>If the proceedings of county commissioners, in estimating damages for land taken for a railroad, are irregular, the remedy is to be sought by an application to this court for a certiorari, and not by an application to the commissioners for a jury to revise the damages. If the latter course be taken, it is an admission that the previous proceedings are regular, and a waiver of exceptions thereto.</p> <p>When application is made to county commissioners, for the assessment of damages for land, &c., taken for a railroad, and it is brought to the knowledge of the commissioners, before a warrant is issued for a jury, that there are other parties interested who have made no application, and such parties are thereupon summoned in, their damages are first to be assessed by the commissioners, before the case is sent to a jury.</p> <p>Where the estimate made by county commissioners of the damages sustained by a tenant for years, in consequence of the location and construction of a railroad over his estate, is revised by a jury, on the petition of such tenant, and the verdict of the jury is set aside by the court of common pleas, and the case remanded to the county commissioners; it seems, that it is competent to the commissioners, on the motion of the petitioner, to dismiss the petition for a jury, and to bring forward the original petition, and to summon in the reversioner to become a party thereto, and thereupon to proceed to estimate the whole damages, and to apportion the same between the parties interested. If such proceeding be objectionable, it can only be excepted to by the lessee, and not by the proprietors of the railroad.</p> <p>On an appeal to this court, from an adjudication of the court of common pleas, accepting the verdict of a sheriff's jury, assessing damages for land taken for a railroad, it being objected by the respondent, that the board of county commissioners, when making an estimate of the damages, in the first instance, was not duly constituted; and the ground of this objection appearing only on the record of the proceedings before the commissioners, a copy of which was among the papers in the case; it was held, that this objection was not open upon the appeal/ and that if well founded originally, the respondents had waived it by proceeding before the commissioners.</p> <p>In executing the warrant for a sheriff's jury, it seems, that the officer is not restricted by the Rev. Sts. c. 24, § 18, to summoning only twelve persons to constitute the jury, but that he is thereby directed to summon a jury to consist of twelve men; for which purpose, and in order to ensure the attendance of twelve, it is not irregular to summon fourteen.</p> <p>The line of the harbor of Boston, as established by the act of 1840, c. 35, at a particular part thereof on the Charlestown side, was fixed at a point described as fifteen feet distant from the south corner of Gould's Wharf, and three hundred and twelve feet distant from a sea wall from which Gould's Wharf projected; and the south corner of Gould's Wharf was found by measurement to be three hundred and two feet distant from the sea wall; it was held, on a trial before a sheriff's jury, that the sheriff* was not bound to instruct them, either that there was such an ambiguity in respect to that part of the line, that it could not be determined upon the evidence, where the line was, or that the true line was ten and not fifteen feet from the south corner of Gould's Wharf; but that the question was one of fact, to be left to the jury upon the evidence.</p> <p>The Charlestown Wharf Company were authorized by the act of 1841, c. 35, to extend and maintain their several wharves, lying between Gray’s Wharf and the Prison Point bridge, into the channel, as far as the line established by the act of 1840, c. 35, for the harbor of Boston, with the right and privilege to lay vessels at the sides and ends of such wharves, and to receive wharfage and dockage therefor: At the time of the passing of this act, the Charlestown Wharf Company were the proprietors of several wharves within the limits mentioned in the act, and, for a considerable distance between Warren bridge and Prison Point bridge, of a sea “Wall built below high water mark, and filled up behind to high water mark, and used for the purpose of landing lumber and other things upon, with pier or pile wharves about eighty feet in width, projecting therefrom towards the channel: It was held, that the seawall, being an artificial structure, adapted to the purposes for which it was used, was a wharf within the meaning of the act, and that the proprietors were thereby authorized to extend the same along their whole front to the line of the harbor.</p> <p>Wh<re the proprietor of a wharf in the harbor of Boston was authorized by an act of the legislature to extend the same into the channel to the line of the harbor; and, before any extension thereof, in pursuance of such act, the legislature incorporated a railroad company, with authority to locate and construct a railroad across and over the flats between such wharf and the line of the harbor; it was held, that the act authorizing such extension operated as a grant to the proprietor of the wharf, and was not a mere license revocable at the pleasure of the legislature, and revoked by the act incorporating the railroad company.</p> <p>An act of the legislature having authorized a railroad corporation to make certain erections for their road between the channels of Charles and Miller's Rivers, in a manner particularly specified in the act; and such erections having been made accordingly, in the manner specified, whereby the course of the currents of these rivers was changed, and directed towards and upon certain wharves and flats, rendering additional sea wall and filling necessary to secure the same; it was held, that the damage thereby occasioned to the proprietor was damnum absque w$urla> for which he was not entitled to recover against the railroad corporation.</p> <p>Dn a proceeding before a sheriff’s jury, instituted by the Fitchburg Railroad Company for the recovery of damages occasioned by the laying out and construction of the Boston and Maine Railroad over the land, wharves and flats of the former, the respondents introduced a letter signed by the president of the petitioners, and addressed to the president of the respondents, dated the 10th of August, 1844, in the following terms: “ The committee of the directors of the F. R. Co. have considered your application for a part of the flats of this company in C. for your corporation, and have come to the conclusion, that they are not prepared to dispose of any of said flats, or at this time to name any price for what the law allows you to take for your road, but that you can go on, and lay the sea wall as you propose, and fill up a sufficient width for your track, and settle all damages with Mr. James Gould, at your expense ; and the whole matter shall be settled on equitable terms hereafter.” P. S. “It is understood that the wall and filling up is to be considered as above.” And it was in evidence, that the respondents had subsequently built a road and wall, as alluded to in the letter; it was held, that such letter and subsequent proceeding did not prove any contract or agreement between the parties, relative to the subject thereof.</p> <p>A sheriff’s jury, in making up their verdict, may, if they think proper, consider each item or charge of damage separately, and state in their verdict what items they allow, and the amounts thereof, severally, and what they reject; and where the verdict is returned in this form, any item'of damage, which, in point of law, is objectionable, may be remitted or deducted, without setting aside the verdict.</p> <p>The Fitchburg Railroad Company having claimed damages of the Boston and Maine Railroad, for land and wharves and certain flats, (over which they were authorized to extend‘their wharves,) taken by the latter for their road; and the sheriff’s jury, by whom the damages were estimated, having returned a verdict assessing the greater part thereof for the land over which the said company had a right to build a pier wharf,” between the sea wall and the line of the harbor, u and for the injury to other land on which the said F. R. Co. had a right to build a pier wharf; ” and it was objected, that the verdict was erroneous, in giving the damages only for land over which the petitioners had a right to build a pier wharf: It was held, that though there might be some inaccuracy in the terms of the verdict, there was nothing to warrant the conclusion, that it did not include land owned by the petitioners and taken by the respondents.</p>

<p>The grantor of a tide mill and mill pond, who had reserved the right of boating and rafting through the pond, and of using the same as a depot for lumber, it seems, has no such proprietary interest in the premises, by virtue of such reservation, as to entitle him to become, or to render it necessary that he should be made, a party to a proceeding under the Rev. Sts. c. 24, §§ 48, 49, 50, for the recovery of damages occasioned by the laying out and construction of a railroad through the granted premises.</p> <p>Where an application is made and pending before county commissioners, for an estimation and adjudication of the petitioner’s damages, occasioned by the construe tion of a railroad, it is competent for the respondents, if there are other persons interested who have not joined in the application, to cause such persons to be summoned and made parties, before a warrant for a jury is issued; and if the respondents neglect to do so, they cannot object before the jury, or afterwards, that such persons were not previously made parties.</p> <p>Where the damages, occasioned by the construction of a railroad, are estimated by county commissioners, and both parties are dissatisfied with the estimate and apply to the commissioners for a warrant for a jury to revise the damages, it is only necessary that one warrant should be issued; but if separate warrants are issued on both petitions, the sheriff should execute and return them as one.</p> <p>Where the petitioners before a sheriff's jury, empanelled for the purpose of estimating the damages occasioned by the construction of a railroad, rested their claim therefor on the ground, that a creek crossed by the railroad was a part of a tide mill pond belonging to the petitioners, and introduced in evidence the deed under which they held the premises, together with a plan and survey thereof, the correctness of which was testified to by the surveyor by whom they were made, it was held, that whether the creek in question was a part of the mill pond or not, was a question of fact for the jury, depending upon the description contained in the deed, and the bounds and monuments found upon the ground, answering to such description, and to which the description applied.</p> <p>A sheriff’s jury are not bound to find and return by their verdict, as an abstract proposition, what right, title, or interest, a party before them has in land, which he claims in virtue of a deed in evidence; nor are they bound to find a special verdict, upon the whole or any particular part of the case before them, though they may do so, if they think proper.</p> <p>The owner in fee of a tide mill and mill pond having leased the same for years, and the proprietors of a railroad having constructed their road over a portion of the pond, the owner and lessee joined in a proceeding for the recovery of damages therefor, and introduced the lease of the premises in evidence; it was held, that the respondents were entitled, with a view to the assessment of damages, to have the jury instructed by the sheriff, as matter of law, whether the lease conveyed an interest in the soil covered with tide water, or only a right to use the water for a special purpose, as an easement, in connection with the other estate demised.</p> <p>The owner of a tide mill, who is also the riparian proprietor of flats, from which the tide wholly ebbs, between his mill and navigable water, has no right, either as against conterminous proprietors or the public, to have his flats kept open and unobstructed, for the free flow and reflow of the tide water, for the use of his mills or for navigation. The adjoining proprietors may build solid structures to the extent of one hundred rods, and thereby obstruct the flow and reflow of the tide, provided they do not wholly cut off the access of other proprietors to their houses and lands, and if the mill owner, or other proprietors, suffer damage therefrom, it is damnum absque injuria. The public have a right to regulate the use of navigable waters ; and the erection of a bridge, with or without a draw, by the authority of the legislature, is the regulation of a public right, and not the deprivation of a private right, which can be a ground for damages, or the taking of private property for a public use, which will entitle the owner to compensation.</p> <p>When the location of a railroad is filed, the land over which it passes may then be prima facie considered as taken; and the persons who are owners at that time may claim and recover damages therefor. If any person, when a claim for damages is made, claims damages for the taking of the same land, on the ground of an earlier title, the respondents must allege and prove such title in bar of the previous claim.</p> <p>The owner of a right of flowage, which is injuriously affected by the construction of a railroad, is entitled to damages therefor.</p>

<p>This was an appeal from an adjudication of the court oí common pleas, setting aside the verdict of a sheriff’s jury, upon the petition of Benjamin Parker against the Boston and Maine Railroad, for damages sustained by the petitioner, in consequence of the location and construction of the respondents’ road.</p> <p>The petitioner, on the 1st of November, 1845, presented his petition to the county commissioners of Middlesex, in which he represented and averred : —</p> <p>That he was the owner of a certain lot of land, with the buildings thereon standing, situated in Charlestown, and containing about two acres, bounded south-westerly on Perkins-street, south-easterly on land of Richard Sullivan, northeasterly on the Winter Hill road, and north-westerly on the boundary line of the town of Somerville, and land of Lucinda A. Underwood and others: That the Boston and Maine Railroad Extension Company had recently laid out, located and constructed their railroad near the south-easterly boundary of the petitioner’s land: That they had also constructed a bridge over the Winter Hill road, where the railroad crosses it, and within a few feet of the petitioner’s land, where the same bounds on the Winter Hill road, and had raised the bridge above the former grade of the road, in order to allow the passage of locomotive engines and cars under the same ; and, in order to allow the travel on the Winter Hill road to pass over the bridge, had filled up the road on either side of the bridge, and had raised the grade far above the former level thereof, more especially on the north-westerly side of the bridge ; and, in thus filling up and raising the grade of the road, had made a high embankment in front of the petitioner’s land, where it bounds on the Winter Hill road : That, by means of the filling up and grading the road, and making the embankment as above stated, the access to the petitioner’s land from the road was greatly impaired, injured, and cut off: That, on the petitioner’s premises above described, and near his dwelling-house, there was a well, the water of which had been drawn off, and which had become dry and useless, in consequence of the depth of the excavation made by the company, in constructing their railroad near the south-easterly boundary of the petitioner’s land: That the petitioner had always theretofore passed and repassed to and from his premises over Perkins street, leading from his estate to the Cambridge road, he having a right of way in said street; that the company had located their road across Perkins street, and, in constructing the same, had dug down, lowered and excavated that street, so that the passage over it had become difficult, dangerous, and unsafe : That, by means of all these acts and doings of the railroad company, the petitioner’s estate was greatly injured and damaged, and the value thereof greatly diminished and lessened, and the petitioner prevented from occupying, improving and enjoying his estate, as he previously might and was accustomed to do : Wherefore the petitioner prayed the commissioners, after due notice to the railroad company, to view the premises and estimate the damages sustained by him by reason of the laying out, location, and maintaining of the railroad, and by reason of the acts and doings of the company in the premises.</p> <p>On this petition, after notice to the respondents, the commissioners proceeded, on the 2d of December, 1845, to view the premises; and at their meeting in January following, made and returned an estimate of the damages sustained by the petitioner, who, being dissatisfied therewith, filed his petition for a jury at the same meeting.. The commissioners ordered the petitioner to give the respondents notice of his application for a jury, and, on the 4th Tuesday of March following, notice having been given according to their order, the commissioners directed the clerk to issue a warrant for a jury. The respondents, also, being dissatisfied with the estimate, presented a petition for a jury, at the meeting in March, upon which the commissioners ordered a warrant to issue.</p> <p>Pursuant to these orders, the clerk issued two warrants; one dated the 14th of April, and the other the 18th of June, 1846. In the first, which was issued upon the application of the petitioner, the sheriff was directed to summon a jury “ to consider and estimate the damages done to the petitioner named in said petition, by reason of the location of the Boston and Maine Railroad over his land aforesaid.” In the other warrant, issued at the request of the respondents, the subject of the inquiry by the jury was described as “ the damages done to Benjamin Parker, named in said petition, by the locating and constructing their said railroad, as in a former petition of the said Benjamin Parker is described.”</p> <p>The warrants were both executed at the same time, as one, on the 18th and 19th of June, 1846, and returned by the sheriff, together with the verdict of the jury, and a certificate of his rulings and instructions, to the court of common pleas to the next September term.</p> <p>The verdict, by which the petitioner’s damages were assessed at two hundred dollars, was set aside by the court of common pleas, and the petitioner thereupon appealed to this court.</p> <p>In the course of the trial, the sheriff was requested by the respondents to instruct the jury: 1st, That the building of the embankment on the Winter Hill road, as alleged in the petition, was not an injury to the land fronting on that road, occasioned by the laying out, making, or maintaining of the railroad; 2d, That the respondents had no authority, under their charter, to build the embankment in question, unless the same was required or assented to by the selectmen of Charles-town ; and, it being admitted, that the selectmen had been duly notified by the respondents, and there being no evidence that they had either authorized or agreed to the building of the embankment, the respondents also requested the sheriff to instruct the jury, 3d, That if the selectmen neither authorized nor directed it to be built, the respondents were not liable for the damages thereby occasioned to the abutters on the Winter Hill road. But the sheriff declined giving the instructions as requested.</p>

This was an action on the case to recover damages for an injury sustained by the plaintiff by reason of an alleged defect in a street in Lowell.

<p>This was a real action to recover a farm in Holliston.</p> <p>It appeared in evidence, at the trial, which was before the chief justice, that, prior to July, 1837, Ira Lincoln, then the husband of the tenant, was seized in fee of the demanded premises; that in 1837 and 1838, he made two mortgages thereof, to secure the payment of several sums of money exceeding $1700, which mortgages, prior to the 1st of June, 1844, were in the hands of Newell Lovering and Joseph C. Lovering, as mortgagees and assignees ; that, on or about the 1st of June, 1844, the tenant became and was entitled to a distributive share in the estate of a deceased brother exceed ing the sum of $1700, which was then in the hands of his administrator, who had been ordered to pay the same to the tenant by a decree of the probate court; that it was agreed by the administrator and the tenant, w th the consent of her husband, that her distributive share in the estate of her brother should be invested for her separate use in a purchase of the notes and mortgages so made by her husband, which were then in the hands of the Loverings; that the money was paid to the latter accordingly, and they thereupon made ,and executed assignments of the mortgages and notes, in due form, to the tenant, who took them into her own custody ; and that, by a decree of this court, made at the October term, 1845, in Norfolk, the tenant was divorced from the bonds of matrimony, and it was at the same time ordered and decreed, that certain property, including the mortgages and notes above mentioned, should be assigned and restored to her.</p> <p>The demandants claimed under a quitclaim deed from Ira Lincoln, dated the 13th of December, 1844, which purported to convey the demanded premises, and all the grantors’ right and interest in the mortgages of the same, which had been assigned to his wife.</p> <p>The tenant, among other grounds of defence, offered in evidence a deed executed on the 7th of May, 1840, by Eli Phipps and Sarah Whiting, of all their right, title and interest in the demanded premises, to Patty C. L. Lincoln and Ira P. Lincoln, minor children of the tenant. This offer was accompanied with a statement and offer to prove, that, prior to the 7th of May, 1840, and after the making of the mortgages referred to, the equity of redemption of Ira Lincoln in the demanded premises, and his right to redeem certain other mortgaged estates, were seized on execution and sold by certain of his creditors, and purchased by the grantors above mentioned, Eli Phipps and Sarah Whiting; and that, in consideration of a release of her dower in the two last mentioned estates, by the tenant, the said purchasers conveyed all their interest in the demanded premises, as above stated, to the tenant’s children.</p> <p>The judge, being of opinion, that if the deed was given, as alleged, and if it vested the demanded premises, or the right in equity to redeem the same, in the grantees, it would not be competent evidence for the tenant, rejected it; and the jury thereupon returned a verdict for the demandant.</p> <p>It was agreed, by the parties, that if the facts thus oifered in evidence were admissible, they should be considered as proved, and that the verdict should be set aside, and judgment entered for the tenant.</p>

<p>A decree in admiralty, that the possession of a certain vessel should be delivered to the libellant, on the ground, that the libellee had violated a contract for the sale and delivery thereof by the libellant to him, is a good bar to a bill in equity by the libellee against the libellant, for a specific performance of the same contract ; provided such violation was material to the decision of the libel, was put in issue therein, and was decided by the court; but if such violation was not material; or if the case was not decided on that point; or if it he ambiguous, or not apparent on the "face of the decree, on what ground the decision was made; such decree is not conclusive evidence of the fact of a violation of the contract.</p> <p>Where there is a plea to a bill in equity, and an answer in support of the plea, no question can be raised by the answer, which is not raised by the plea.</p> <p>In a hill in equity for the specific performance of a contract, or, in the alternative, for compensation to the plaintiff in damages, if it appear, that the defendant has put it out of his power to perform the contract specifically, the court may retain the bill and award damages to the plaintiff.</p>

<p>In an action by an agent against his principal, to recover compensation for services as such agent, in the making of a contract which is illegal and void by statute, and also for money paid on account of the principal, in the execution thereof, the principal may defend against the action, on the ground of the ille gality of the contract.</p> <p>A contract for the sale of any of the stocks enumerated in the statute of New York, relating to stockjobbing, to be transferred at a future day, is absolutely void, if the party contracting for such sale and transfer, though in possession of the certificate or other evidence of the title to such stock, as required by the statute, at the time of the contract, is then already under a liability or obligation for the sale and transfer of an equal or greater number of shares of the same stock.</p> <p>In an action by the holder of stock, who has contracted to sell and transfer the same at a future day, under the laws of New York, against the purchaser thereof, for refusing to receive a transfer and pay for such stock, the burden of proof is on the plaintiff to prove, that, at the time of the contract, he held the amount of stock so contracted to be sold free from any liability or obligation for the sale and transfer thereof.</p> <p>According to judicial decisions in New York, it is settled, that, when the day of the performance of a contract, upon which days of grace are not allowed, falls on Sunday, that day is not to be counted, and the contract may be performed on the next Monday.</p> <p>A contract entered into in New York, by parties resident there, and to be performed there, is to be governed by the laws of that state.</p>

This was an action on the case, in the nature of a conspiracy, against the defendants, Dexter Small and George Small, described in the writ as of Portland in the state of Maine, commorant at Brighton, in this commonwealth. The writ was served only on George Small.

The defendant was indicted in the municipal court, for forging an acceptance of an order drawn by himself for the delivery of goods. The order was as follows : — “ Boston, January 7, 1848. Mr. Robinson: Please pay Mr. Muleg or bearer forty-five dollars in goods when he shall have finished painting and glazing the house he is doing for me.

The defendant was indicted and tried in the municipal court, before Hopkinson, J., for an assault and battery on Cornelius Mahoney, with a bullet discharged from a revolving pistol, on the 4th day of November, 1848.

<p>The defendants, who were booksellers and publishers in New York, by a letter of the 3d of January, 1844, in answer to a letter of the plaintiff, made an offer to supply the plaintiff with copies of their “ Illuminated Bible,” at a price named. The plaintiff made no reply to the defendants’ letter, but, on or about the 1st of February following, sent an agent to the defendants to procure some numbers of the work in question, which the defendants promised to furnish as soon as the navigation should open: The navigation opened in three or four days, when the plaintiff’s agent called upon the defendants for the books, but the defendants refused to furnish them : It was held, that if the defendants’ letter of January 3d was such an offer to sell, as would have been binding, if it had been accepted, and the acceptance made known to them, yet that they might retract the offer, at any time before acceptance, and that the refusal to deliver the work to the plaintiff’s agent was a retraction of the offer.</p>

<p>This was an action of assumpsit against the defendant, as the indorser of two promissory notes; one dated October 27th, 1840, for $2600, and the other dated December 16th, 1840, for $1450; payable, respectively, in three months, and signed by P. & B. S. Hale, as promisors.</p> <p>At the trial, which was before Wilde, J., the execution and indorsement of both notes, and the demand and notice thereon, being duly proved, the defendant introduced evidence tending to show, that he was induced to indorse these and other notes of the Hales, by their representations that the same were to be used for the purpose of raising money to pay for wheat purchased or to be purchased by them in the western states.</p> <p>It was in evidence, also, that the Hales applied for the benefit of the insolvent law, on the 29th of December, 1840 ; and that a warrant was issued accordingly on that day, the proceedings under which had not then been completed. .</p> <p>The defendant called a witness, who testified, that in January, 1841, after the insolvency of the Hales, he went to the counting-room of the plaintiffs, to ascertain the consideration of the notes in question; that the plaintiffs showed him their book, a edger, as he thought; that in this book, there was no distinct credit side, but the debits were added up from time to time, the credits deducted from the amount, and the balance, if any, carried forward; that the debits consisted of charges for corn and bags ; that, according to his recollection, these notes did not accompany a sale, but were deducted from debits as above stated ; and that, according to his recollection, though he would not be certain, there was a balance, after including an interest account, in favor of the Hales, to the amount of $15.</p> <p>The defendant contended, on this evidence, that the indorsements of the notes in question were obtained from him on a representation, that the same were to be used for the purpose above mentioned, and were therefore fraudulently obtained, which would be a good defence as against the Hales, and the court inclined to this opinion.*</p> <p>The defendant also contended, that as there was no evidence in the case to show, that the plaintiffs had received the notes in payment of, or as security for, a preexisting debt, the plaintiffs were not bona fide purchasers or holders in the ordinary course of business; and that the defendant was therefore entitled to the same defence against the notes in the hands of the plaintiffs, as if the suit had been brought by the Hales.</p> <p>The judge being inclined to the opinion, that the plaintiffs were entitled to recover, the case was withdrawn from the jury, by consent, and reported for the consideration of the whole court. If the plaintiffs, upon the facts stated, are entitled to recover, the defendant is to be defaulted, and judgment entered in favor of the plaintiffs, for the amount of the notes with interest, deducting the amount of the dividends received thereon by the plaintiffs from the estate of the insolvents ; otherwise, a new trial is to be ordered.</p>

The plaintiff, as the assignee in insolvency of the firm of P. & B. S. Hale, of Lowell, who were indebted before their insolvency to the defendants, brought this action of assumpsit to recover against the latter, merchants, of Boston, on the ground of payments made to them by the insolvents, and received by the defendants, as a fraudulent preference, in contravention of the insolvent act of 1838, c. 163, § 10.

This was an action on the case, to recover damages for an injury received by the plaintiff, in consequence of an alleged defect in Lancaster street. The trial was before Wilde, J. The plaintiff offered evidence tending to show, that as he was returning home from his shop in the evening of January 16th, 1846, he stepped his right foot into an opening in the sidewalk, called a cellar window, by means of which he received an injury in his left ankle.

<p>Ihe declaration of a person, who is wounded and bleeding, that the defendant has stabbed her, made immediately after the occurrence, though with such an interval of time, as to allow her to go from her own room up stairs into another room, is admissible in evidence, after her death, as a part of the res gesixz.</p> <p>On the trial of an indictment for manslaughter, the record of a previous conviction of the defendant, for an assault and battery on the person of the deceased, and judgment thereon before her death, is admissible evidence to prove the fact of such conviction; but it is not evidence of an assault committed on the deceased, as alleged in the indictment for manslaughter, or that the assault stated in the record of such conviction is the same.</p> <p>It is no defence to an indictment for manslaughter, that the homicide therein alleged appears by the evidence to have been committed with malice aforethought, and was therefore murder; but the defendant, in such case, may notwithstanding be properly convicted of the offence of manslaughter.</p> <p>Where a surgical operation is performed in a proper manner, and under circumstances which render it necessary in the opinion of competent surgeons, upon one who has received a wound apparently mortal, and such operation is ineffectual to afford relief and save the life of the patient, or is itself the immediate cause of death, the party inflicting the wound will nevertheless be responsible fot the consequences.</p>

This was an action of debt on a bond given to dissolve an attachment, and was submitted to the court of common pleas upon an agreed statement of facts. That court gave judgment for the defendant, and the plaintiffs appealed.

<p>Where a wife, acting under a power of attorney from her husband, authorizing her, among other things, to receive and collect all money and other property due to him, for her own use, purchased land with money so received, and took a conveyance thereof to herself; and, after the death of the husband, a bill in equity alleging these facts, and also that the husband never intended that such pur* chase should be a provision for the wife or her separate property, was brought by the heirs at law of the husband against the widow, for a conveyance of the land so purchased by her j it was held, on demurrer to the bill, that, upon the allegations therein contained, there was no resulting trust in favor of the husband oi his heirs.</p>

<p>The defendants conveyed an estate to the plaintiff, with a covenant that the same was free from all incumbrances, by a deed dated the 7th of October, 1845: The premises were then subject to a lease, dated the 20th of September, 1844, for three years, at an annual rent of $575, and the lessee was in possession under the lease: At the time of the conveyance, the plaintiff made a mortgage of the estate to one of the defendants, to secure the payment of $10,500, in five years, with annual interest, at the rate of 5f¿ per cent, from the 7th of October, 1845: The mortgagee, at the same time, gave the plaintiff a written promise, that, until September 1st, 1847, the interest on the mortgage should be $520, annually, notwithstanding the agreement for 5¡¿ per cent, and that until September, 1847, he would pay the taxes on the estate : In an action on the covenant against incumbrances, it was held, that the agreement between the parties, as to interest and taxes, did not amount to an accord and satisfaction for the incumbrance of the lease.</p> <p>The diminished value of an estate, in consequence of an incumbrance upon it, is not the measure of damages for a breach of the covenant against incumbrances, unless the estate was purchased by the grantee for the purpose of a resale, and that fact was communicated to or known by the grantor.</p>

<p>On a lease for a year, in which the rent is payable monthly, the lessee is not liable for a part of a month’s rent, either at common law, or by the Rev. Sts. c. 60, §§ 22 and 23.</p>

<p>These were indictments for violations of the license laws, found at the January term, 1848, of the municipal court.</p> <p>In the first entitled ease, the defendant pleaded n&lo contendere to one count of the indictment, and then moved in arrest of judgment for certain formal defects in the indictment. The case was thereupon continued for the consideration of the judges of the court of common pleas at their meeting in July; and, at the succeeding term of the municipal court, the judgment was arrested, and the defendant discharged.</p> <p>In the second case, the indictment was quashed on the defendant’s motion by the municipal court.</p> <p>Tne attorney of the commonwealth for the county of Suffolk sued out writs of error from this court, in both cases, on behalf of the commonwealth; and the defendants moved that the writs of error be dismissed.</p> <p>This motion was argued at the last November term.</p>

This was an action of covenant broken, commenced on the 27th of October, 1845, for an alleged, breach of the covenant of warranty contained in a deed made by the defendant’s testator, Edward Tuckerman, to the plaintiff, dated the 1st of November, 1834, whereby Tuckerman conveyed to the plaintiff, with warranty, a certain piece of land particularly described in the writ.

<p>This was a bill in equity for the specific performance of a contract in writing.</p> <p>The plaintiffs alleged, that the defendants, on the 1st of Apr'l, 1844, being the owners of certain land situated in Boston, and particularly described in the bill, “ in consideration that said corporation would take into consideration the expediency of buying said land for their use as a corporation, signed a certain writing, dated April 1st, 1844,” whereby they agreed to convey to the plaintiffs “ the said lot of land, for the sum of twenty thousand dollars, if the said corporation would take the same within thirty days from that date ; ” that afterwards and within the thirty days, the defendants, at the request of the plaintiffs, “.and in consideration that the said corporation agreed to keep in consideration the expediency of taking said land,” &c., extended the said term of thirty days, by a writing underneath the written contract above mentioned, for thirty days from the expiration thereof; that, on the 29th of May, 1844, while the extended contract was in full force, and unrescinded, the plaintiffs elected to lake the land on the terms specified in the contract, and notified the defendants of their election, and offered to pay them the agreed price (producing the same in money) for a conveyance of the land, and requested the defendants to execute a conveyance thereof, which the plaintiffs tendered to them for that purpose; and that the defendants refused to execute such conveyance, or to perform the contract, and had ever since neglected and refused to perform the same.</p> <p>The defendants demurred generally.</p>

<p>The defendant having entered into an agreement to sell the plaintiffs, a railroad corporation, “ the land they take on the northerly side of the M. turnpike, adjoin ing T.’s land, at twenty cents per square foot, for each and every foot so taken by said company,” and the plaintiffs having brought a bill in equity for a specific performance; it was held, that the agreement was not for a sale of the land generally, or of such part of it as the plaintiffs might elect, or of such as they should accept the offer of; but for the sale of such a part of the land described, as the plaintiffs might take, in the exercise of the authority conferred on them by law to take land for their road.</p> <p>If the terms of a contract are doubtful, a court of equity will not decree a specific performance.</p>

This action was brought against the defendant, as the indorser of a promissory note made by Charles Pierce, payable to himself or order, and indorsed by him, and also by the defendant.

<p>To constitute the offence of larceny “by stealing from the person,” within the Rev. Sts. c. 1‘26, § 16, it is not necessary that the taking should be either openly and violently, or privily and fraudulently; but if it be with the knowledge, though without the dissent or resistance of the owner, the offence is equally committed, provided the taking be with an intention, on the part of the offender, te deprive the owner of his property.</p>

<p>This action was brought against the defendant, to recover of him the amount of a promissory note, dated October 28th, 1844, for about two hundred and twenty-five dollars, signed by Samuel M. Dockam, and payable to the plaintiff in six months. The writ was dated January 13th, 1846.</p> <p>The ground of action against the defendant was the signature by him, under date of May 30th, 1842, of a guaranty or letter of credit directed to the plaintiff and Charles Lee of the following tenor: —</p> <p>“ I hereby make myself responsible for whatever amount Mr. Samuel M. Dockam, of Portsmouth, N. H., may become indebted to either of you. I have fixed no limits to the amount; as he has assured me, that he shall be cautious of getting much in debt, and this is satisfactory to me.”</p> <p>At the trial, which was before Merrick, J., in the court of common pleas, the plaintiff called as a witness Samuel M. Dockam, who testified that he gave the plaintiff the guaranty above mentioned soon after its date, namely, on the 25th of June, 1842, when he purchased goods of the plaintiff to the amount of $135-68 ; that in August, December, and January following, he purchased goods of the plaintiff, amounting to $185; that in the year 1843, he purchased goods of the plaintiff, amounting to more than $300 ; that previous to March, 1844, he purchased other goods of the plaintiff, amounting to $257; and that all these amounts had been regularly paid by him.</p> <p>The witness also testified, that he purchased goods of the plaintiff, at various times, from April, 1844, to the 28th of October following, for which the note in question was given ; and that he could not recollect ever having told the defendant, that the guaranty had been given by him to the plaintiff, or that the plaintiff had sold the witness goods on the faith of it.</p> <p>The plaintiff having introduced in evidence a letter addressed to him. by the defendant, under date of May 29th, 1845, the same witness testified, that the first time he knew of the defendant’s being informed that the plaintiff had sold goods to the witness, and looked to the defendant to pay the note in question, was immediately before the date of the letter. This letter and the testimony of the witness were the only evidence in the case to prove notice by the plaintiff to the defendant, within a reasonable time, that the plaintiff had accepted the guaranty and sold goods on the strength of it to Dockam. The letter was as follows : —</p> <p>“ I shall go to Exeter, N. H., to-morrow, and shall be gone three or four days. Before I return, I shall go and see Mr Dockam, and ascertain what state his business is in ; and, on my return to the city, I will write you again.”</p> <p>The defendant requested the judge to instruct the jury, that the writing directed to the plaintiff and Charles Lee, and signed by the defendant, was a contract of guaranty; that the defendant was not liable thereon, unless he had been notified within a reasonable time that it was accepted by the plaintiff, and that the plaintiff had trusted Dockam on the faith of it; that there had been an unreasonable delay in giving this notice to the defendant which discharged him from any liability on the guaranty; and that no sufficient notice was proved.</p> <p>The judge refused to give the instruction requested, but instructed the jury, that the writing was an absolute guaranty, or contract of guaranty ; that the defendant, as guarantor, was entitled to reasonable notice, that the plaintiff had accepted the guaranty, and had credited Dockam on the faith of it; that, in the present case, the notice would be a reasonable one, if given to the defendant within thirty days after Dockam’s note became due; and that the question whether such notice was given within the thirty days was for the jury to decide upon the evidence.</p> <p>The jury returned a verdict for the plaintiff for the amount of the note, and the defendant alleged exceptions.</p>

<p>The defendant was tried at the last October term of the municipal court, before Wells, C. J., and convicted on an indictment charging him with uttering certain forged promissory notes therein described. The indictment contained six counts, in each of which the defendant was charged with uttering a promissory note described as follows : —</p> <p>“ $2500. Concord, Mass., July 30, 1847.</p> <p>Four months after date, value received, I promise to pay George Miller, oi order, twenty-five hundred dollars, at the Suffolk Bank, in Boston.</p> <p>S. F. Belknap.”</p> <p>The attorney for the commonwealth, in opening the case, stated that the indictment was for the uttering of but three notes, there being two counts on each note, varying from one another only in mentioning or not the person to whom the note was uttered. He further stated, that he expected to prove, that the forgery of the notes described in the indictment was committed by tracing the name of the supposed maker over his genuine signatnre.</p> <p>In support of the several counts in the indictment, three notes were introduced, which were alleged to correspond to the notes described ; and evidence was introduced tending to prove, that these notes were forged, and in the manner alleged. The prosecuting officer then offered thirty other similar, or nearly similar notes, which had been uttered by the defendant at or near the time, when the notes mentioned in the indictment were uttered, and which were also alleged to oe forgeries. This evidence was offered to prove the guilty tnowledge of the defendant, and also the forgery.</p> <p>The defendant, then, in open court, admitted that he did >ass the notes described in the indictment, and that if the signatures thereto were not actually written by Belknap, the defendant knew that fact; and he thereupon objected to the introduction of the notes in evidence.</p> <p>The presiding judge stated, that if that admission was to influence his decision, he should require it to be reduced to writing, and signed by the defendant and filed in the case; but he was of opinion, that, considering the peculiar character of the alleged forgery, the inspection of other similar notes, uttered by the defendant about the same time, and alleged to have been forged in the same way, might aid the jury in determining the question of the forgery of the notes described and introduced in support of the indictment; that the evidence offered was admissible for this purpose, and therefore that the proposed admission of the defendant should not be received; and that the jury should be instructed to consider the case in the same way, as if the admission had not been made. The defendant did not withdraw his admission.</p> <p>The prosecuting officer called and examined Belknap, as a witness, who testified, among other things, that he never gave any one his name in blank, so that a note could be written over his signature ; and, in particular, that he did not give a blank to one Dunlap, in order that a note might be written thereon over his signature.</p> <p>The defendant, to contradict this statement, first called Dunlap as a witness, who testified that he resided in Portland; that he never had the signature of Belknap in blank to the best of his recollection ; that he knew one Jose who was in business in Portland, of whom he bought articles to furnish a house, but could not say whether he ever gave Jose a note; that he had had Belknap’s notes, but never in blank ; that he did not finally settle his bill with Jose by a note of Belknap ; that he thought he had the goods of Jose before he went into partnership with Kingsbury; that he had no doubt, that if he ever wrote a note with the name of Belknap indorsed upon it in blank, it was a genuine signature of Belknap, or authorized by him; that Belknap never gave him a blank paper with his name on it; and that Belknap, to the best of the witness’s recollection, never gave him authority to use his name.</p> <p>The defendant then called Jose as a witness, who testified that he knew Dunlap; that Dunlap once filled up a note to the witness, which had Belknap’s name on the back of it; that this note was signed by Kingsbury & Dunlap, who were then partners; that the witness placed the note in the hands of Wood, a broker, of whom he received the amount when it fell due; and that he could not say what had become of the note. Neither Kingsbury nor Wood was produced as a witness; nor was there any evidence other than the above that the note was lost.</p> <p>The attorney for the commonwealth' objected, that the foregoing evidence was incompetent to contradict Belknap as to the point alluded to, and the presiding judge so ruled.</p> <p>The witness Belknap also testified, that he gave one note corresponding with those described in the indictment, and but one, and that all his money transactions with the defendant, during the months of July and August, 1847, were made with the knowledge of one Scott, who was his confidential clerk, and kept an account of all his money dealings in Massachusetts, the witness living at that time in Vermont.</p> <p>The said Scott testified, that he was Belknap’s confidential clerk, and that so far as he knew or was informed, he kept an accurate account of all Belknap’s money transactions in Massachusetts. He further testified, that he knew of the making and negotiating of one note corresponding with the description in the indictment, and stated the facts connected therewith. He was then inquired of by the attorney for the commonwealth, whether he knew of Belknap’s giving the defendant any other such note than the one he mentioned. The defendant objected to this question, but it was admitted by the presiding judge.</p> <p>The defendant contended, and introduced evidence tending to prove, that the relations between him and Belknap were of the most confidential nature, and that on various occasions Belknap had given him his notes, without receiving any consideration therefor, to be negotiated by him for his (the defendant’s) benefit.</p> <p>To meet this evidence, the attorney for the commonwealth offered to prove, that, prior to this time, July, 1847, the defendant had forged the name of Belknap to notes which he had negotiated, and had either paid the same before they fel due, or had managed to obtain possession of the notices, so that Belknap should have no knowledge of their existence.</p> <p>In support of this ground, the prosecuting officer called as a witness William Whitney, who testified, without "opposition at the time, that the defendant uttered and passed to him two of the before mentioned “ thirty similar notes.” Having thus testified, he was then further inquired of, whether he had not, previous to receiving those two notes, received from the defendant certain other notes, purporting to be signed by Belknap, "and payable to the defendant.</p> <p>The witness, in answer to this inquiry, testified, among other things, that in the months of December, 1846, and February and" April, 1847, he did receive from the defendant three notes purporting to be signed by Belknap, and payable to the defendant, all of which were paid by the defendant a short time before their maturity. Belknap testified, in reference to this point, that all the notes, which he had given prior and up to the date of any of the thirty-three notes alleged to be forged, were entered and recorded on his books kept by Scott, his clerk and book-keeper; and Scott testified, that neither of the notes testified of by Whitney as having been received by him in the months of December, 1846, and February and April, 1847, were entered or recorded on Belknap’s books.</p> <p>The inquiries of Belknap and Scott, to which these statements were in answer, were not objected to by the defendant.</p> <p>The defendant contended that there were many private and confidential transactions between him and Belknap, in which many notes were given by Belknap to him, which notes were never entered nor intended by Belknap to be entered on his books; and he produced much evidence, which, he insisted, had a tendency to prove that such was the fact. But he offered no evidence at all relative to the three notes testified to by Whitney, as having been received by him.</p> <p>The commonwealth’s attorney offered evidence tending to prove that no such notes as those testified to by Whitney, were ever given by Belknap.</p> <p>In closing for the defendant, his counsel contended, that all the evidence given for the prosecution by Whitney, reía» live to the said three notes, was irrelevant and incompetent, that it could not be used by the prosecution for any legitimate or proper purpose; and requested the court so to rule, and to withdraw the evidence from the consideration of the jury.</p> <p>The commonwealth’s attorney insisted that the evidence was competent for the purpose of proving that the three notes were forged and spurious ; and the presiding judge declined to rule that it was irrelevant or incompetent, and to exclude the same from the consideration of the jury; but he ruled that the evidence was competent for the purpose of disproving the ground taken by the defendant relative to private and confidential transactions between him and Belknap, and the giving of notes by the latter, not recorded or intended to be recorded, on his books; and further that the evidence was admissible for no other purpose.</p> <p>In the closing argument for the defendant, his counsel contended and requested the court to instruct the jury, that it was not sufficient for the commonwealth to prove, in order to warrant a verdict against the defendant, that the defendant had committed several offences exactly like that set forth in any one or all of the counts, without also proving which of those offences was the one alleged and presented by the grand jury, in some particular count contained in the indictment.</p> <p>But the presiding judge refused so to rule, and instructed the jury, that if they were satisfied, especially in the absence of any proof as to which of the notes were before the grand jury, that the defendant uttered the several forged notes, which were described in some of the several counts in the indictment, and that the notes introduced in proof were properly described, they might find him guilty upon such counts, without proof as to which of the particular notes intended by the grand jury were described in each or any particular count; and that if the jury should find the defendant not guilty with regard to either one of the notes offered in evidence, in support of any one count in the indictment, they might find him guilty as to the other notes, although there was no evidence to enable them to determine in which of the counts either of the offences charged upon the defendant was set out and presented by the grand jury.</p> <p>The jury found the defendant guilty on the three last counts in the indictment; and the defendant thereupon alleged exceptions to the rulings and instructions above mentioned.</p> <p>This case was argued and decided at the last November term.</p>

<p>A sale of teas being made, and a bill of parcels thereof given by the seller to the buyer, at the foot of which was written: It Brown’s note six mos. his order or 4 per cent off; ” and the teas being delivered before the terms of sale so stated were complied with ; and it being in evidence, that it was customary to deliver goods so so^d to the buyer, before compliance with the terms of sale: It was held, that the sale of the teas was conditional; that the delivery was not a waiver of the condition; that the teas were notwithstanding in the constructive posses sion of the seller, who might retake them at any moment, before the terms of sale were complied with by the buyer; that, while the teas were so in the hands of the buy»r, they could not be attached by his creditors and held against the seller; and, the condition not being performed, that the seller might maintain replevin without a previous demand.</p>

This was an action of replevin for fifteen hogsheads of molasses, and was submitted to the court upon an agreed statement of facts, from which it appeared, that the plaintiff, who was an auctioneer, on the 11th of June, 1846, sold at auction for Kettell & Collins, on the wharf opposite their store, sixteen hogsheads of molasses, which were purchased by Davis, Brown & company, the terms of sale being a satisfactory note at four months, or three per cent off for cash; that, on…

<p>This was an action on a policy of insurance, dated October 18th, 1839, by which the defendants insured the plaintiff in the sum of $2000, on two wooden buildings, situated on Portland street, in Boston, and used as stables, $1000 on each, against damage by fire, for seven years from October 1st, 1839. The plaintiff, agreeably to the act of incorporation and by-laws of the defendants, and conformably to the usual practice in mutual fire insurance, paid the defendants a premium of $50, on taking the policy, and, at the same time, gave them a deposit note for $200, by which he became liable to pay any assessments which should be laid thereon, according to the regulations of the company.</p> <p>The policy contained a stipulation, binding the funds of the company “ to satisfy and make good unto the said Ezra Trull, his heirs, executors and administrators, all the damage by fire, which may happen to said buildings, within the term aforesaid, according to the true intent and meaning of said rules and by-laws, not exceeding the amount insured thereon.” It also contained a provision, that, “ in case of loss, this company may replace or repair within a reasonable time.”</p> <p>The action was submitted to the court upon the following agreed statement of facts : —</p> <p>On the 10th of September, 1843, one of the buildings, the most northerly one, was entirely destroyed by fire. The other, the most southerly one, was likewise destroyed, at the same time, with the exception of a few planks and sills, as hereinafter stated. The plaintiff claimed the whole sum insured, as for a total loss of the property. The defendants elected to restore the buildings, and did so within the reasonable time stipulated in the policy ; expending foi that purpose the sum of $800 for the northerly and $650 for the southerly building.</p> <p>Outside of the south building there was a pump rising above the roof, and used for the purposes of supplying the stables and the plaintiff’s distillery adjoining with water, and worked by a steam engine in the distillery. The pump and rigging attached were destroyed by the fire, and were not replaced by the defendants; and the plaintiff objected to accepting the buildings replaced on that account, but took possession of them, and let them to tenants.</p> <p>All the sills of one of the stables, the south one, were uninjured by the fire, but were partially rotten. The defendants directed the whole to be used in restoring the building, and thereupon the plaintiff requested the contractor for the building to make use of new in the place of what was rotten, and paid for it. About two thirds of the sills of the building were used, which would have cost new from $15 to $20. A small portion of the floor of the building, not injured by the fire, was also used in replacing it. The plaintiff purchased of the contractor a portion of the old planks of the building, for about $20.</p> <p>After the buildings were rebuilt, the defendants did not require the policy to be cancelled, or return the deposit note ; and they have not called on the plaintiff for any payments thereon. No assessment had been laid before this suit was brought.</p> <p>On the 18th day of July, 1845, the new buildings were destroyed by fire, and the plaintiff claims the whole sum insured thereon. If the court shall be of opinion that he" is entitled to recover that sum, or any part thereof, judgment is to be entered accordingly.</p>

This was an action of assumpsit, to recover the sum of $67, for work and labor by the plaintiff for the defendant, according to an account annexed to the writ. The plaintiff relied upon the quantum meruit count, and the defendant pleaded the general issue, without any specification of defence.

<p>The proprietors of a railroad are not responsible to a brakeman in their employment, for an injury sustained by him in consequence of the neglect or fault of another brakeman engaged in the same service, even though the latter be at the same time the acting conductor of a train of freight cars.</p> <p>If a brakeman, employed on a train of cars by the proprietors of a railroad, sustains an injury in consequence of the carelessness of another brakeman employed in the same service, and the injury would not have happened if the latter had performed his duty, it is immaterial, as respects the liability of the proprietors of the road, whether the train was short of hands or not.</p>

<p>The defendant in a bill in equity is not required to answer matters of recital, unless specially interrogated thereto; and if he volunteers to answer such matters in part, he is not thereby bound to answer the whole.</p> <p>The plaintiff and defendant having entered into a partnership, the business of which was to be conducted by the plaintiff at Boston, and by the defendant at New Orleans, in the sale of goods to be shipped by the plaintiff to the defendant, and the business having been so carried on for several years and then terminated; the plaintiff brought his bill in equity against the defendant, setting forth the partnership agreement, and the proceedings under the same, and alleging that the plaintiff had repeatedly requested the defendant to come to a final settlement cf the affairs of the partnership, and that the defendant had wholly neglected and refused so to do; and praying that the defendant might answer the matters and charges contained in the bill, that an account might be decreed to be taken of all the partnership dealings and transactions, and that the defendant might be directed to pay the plaintiff whatever might thus appear to be due to him: The defendant having filed his answer, admitting the agreement, the furnishing of the goods by the plaintiff, and the reception and sale*thereof by the defendant, at New Orleans, as set forth in the bill; and alleging that he had renduci true and just accounts of the sales at New Orleans, and of all the business of the concern annually; and denying that he had the means of stating a true account of the transactions at Boston, &c., and exceptions being taken to the answer: — It was held, that if the defendant had been expressly requested to state a full account of all the partnership transactions (which he had not) he would not have been under any obligation so to do, because the plaintiff himself was obliged to render an account of the transactions in Boston; and that as to the account of the transactions at New Orleans, the defendant, having remitted just and true accounts thereof, was not obliged to restate them.</p>

<p>Ihe pendency of an indictment is no ground for a plea in abatement to another indictment in the same court for the same cause.</p> <p>The actual keeping of a building furnished with bowling alleys, and suffering persons to resort there, for hire, gain, or reward, for the purpose of playing at bowls, is an offence within the Rev. Sts. <?. 50, § 17, whether the person keeping the same does so of his own will, or by the procurement or as the agent or hired man of another, and whether for his own emolument or that of another.</p>

<p>This was a proceeding originally brought in the justices’ court for the county of Suffolk, to recover possession of a parcel of land, with the buildings thereon, let by the plaintiff to the defendant, by an indenture of lease, bearing date the 30th of March, 1844, under the hands and seals of the parties, and expressed in the following terms : —</p> <p>“ A certain parcel of buildings situated on said Point Shirley, numbering three, and containing bar-room, bowling alleys, stable, dancing hall, and drawing-rooms, and all appertaining thereto. Also a wharf on said premises, said lessee doth agree to build a good, substantial building, two stories high, with rooms finished in the second story, and to do all other repairs, and keep said buildings, wharf and alleys in gocd repair, with the exception of damag' done by the sea. Said lessor agrees to allow said lessee $150 for said buildings and repairs, to be taken out of the rent in equal payments, in the first three years. Said lessee doth agree to deliver up said premises, and all the buildings and repairs put on said premises by him in three months’ notice, by said lessor paying him $250. Said lessor doth agree to deliver up to said lessee the lease, by giving three months’ notice and $250; to hold for the term of ten years from the 1st day of April next, yielding and paying therefor the rent of $200, and the said lessee doth promise to pay the said rent in equal quarterly payments, and to quit,” &c.</p> <p>The writ was dated May 18th, 1847, and the complaint therein was as follows: “ For that the defendant is in possession of the messuage situate at Point Shirley, so called, in Chelsea, aforesaid, being the same premises leased to said defendant on the thirteenth day of March, eighteen hundred and forty-four, and expired on the sixteenth day of May, eighteen hundred and forty-seven, by the terms thereof, and now holds unlawfully and against the right of the plaintiff, as it is said.”</p> <p>At the trial, before Mellen, J., in the court of common pleas, it appeared in evidence, that the defendant had entered and held possession of the premises, under the lease, from the day of its date to the day of the trial; and had paid rent therefor to the plaintiff according to the terms of the lease; the last payment having been made to and receipted for by the plaintiff, April 1st, 1847, for the quarter ending that day; since which time, the defendant had tendered the rent from quarter to quarter, as the same had fallen due.</p> <p>The defendant had also fulfilled his agreement in the lease respecting building and repairs. It was also proved, that the plaintiff on the 16th of February, 1847, in the evening, after dark, gave the defendant a notice to deliver up the premises in three months, according to the terms of the lease, and at the same time, offered him two hundred and fifty dollars, which the defendant declined to receive, but did not make any special objection to the time of the tender or otherwise.</p> <p>It was also proved, that on the 16th of March, 1847, the plaintiff executed and delivered to one Read Taft a lease of the same premises for the term of five years, to commence on the 16th of May, 1847. On that day, one Augustus Taft, was sent by Read Taft, and accordingly went with the last mentioned lease upon the premises, to see whether the premises were vacated, and found the defendant Dascomb in possession. The writ in this case was served on the 19th of May, 1847.</p> <p>Upon this evidence the defendant contended, and requested the judge to rule, that the plaintiff could not maintain his action : 1. Because the lease from the plaintiff to the defendant had not, at the time of the commencement of this proceeding, been determined by its own limitation, and the present case does not come, within the terms of the Rev. Sts. c. 104; 2. Because, at the time of the commencement of this proceeding, the plaintiff was not entitled to the possession of the premises, he having, prior to that time, parted with his right to the possession to Read Taft, by the lease to him and his proceedings thereon ; 3. Because the alleged tender was made after dark.</p> <p>The court ruled against the defendant on all these points, and, a formal verdict being rendered for the plaintiff, the defendant alleged exceptions.</p>

<p>The dedication of a highway to the public is to be proved, not by deed, but by matter in pais, consisting of the acts and accompanying declarations of the owners of the land alleged to be dedicated.</p> <p>One who has sold and conveyed land, and, at the same time, taken a reconveyance of it to himself by way of mortgage, which is afterwards foreclosed, is to be deemed the owner so far as relates to a dedication thereof to the public as a highway, notwithstanding such conveyance.</p> <p>Where acts are done by the owners of land, which manifest an intention on their part to dedicate it to the public as a highway, acts of appropriating money or labor to the making or repair of such way, by the town or city within which it is situated, manifest an intention on the part of such city or town to accept the dedication, and render the place so dedicated a complete highway, the obstruction of which is a public nuisance.</p>

This was an action of trespass on the case, tried before Cushing, J., in the court of common pleas, for the recovery of damages sustained by the plaintiff, in consequence of an injury received by her under the circumstances, which the evidence in the case tended to establish, and which were stated as follows in the defendant’s bill of exceptions: — The defendant was the owner of trucks and horses, used and kept by him in the city of Boston, for the purpose of there carrying…

<p>This was an action of trespass de bonis asportatis against the defendant, as a deputy sheriff, for attaching and selling certain personal property described in the writ.</p> <p>The plaintiffs, on the 12th of March, 1844, by a sealed instrument of that date, made a lease to Henry Dunham, of a public house in Boston, called the Earle Coffee-house, for the term of five years, at a yearly rent, payable quarterly, of $1100 At the same time, Dunham, the lessee, made a mortgage to the plaintiffs of the furniture in the house, the same being particularly specified in a schedule annexed to the mortgage deed, as security for the payment of the rent, and for the performance of the other covenants in the lease. The mortgage contained a stipulation, that if any of the property should be sold, and other furniture purchased in its place, the latter should stand as security for the rent, &c., in the same manner, and that the mortgagor should execute a new mortgage therefor. But there was no general power of. revocation in the instrument.</p> <p>On the 16th of May, 1844, suits were commenced by Philo S. Shelton and others against Dunham, as the principal defendant, and the plaintiffs, as his trustees, and the mortgaged property was also attached thereon, by the defendant, as a deputy sheriff, and held in the possession of a keeper under him until the 10th of February, 1845, when the same was levied upon, and, on the 19th of the same month, the proceeds applied to satisfy an execution issued on a judgment recovered by Shelton in his suit against Dunham. The trustee proceedings were under the Rev. Sts. c. 90, §§ 78, 79, and the act of 1844, c. 148, § 2, and the plaintiffs were discharged therein, upon their answers.</p> <p>On the 23d of May, 1844, and again on the 14th of February, 1845, the plaintiffs gave the defendant notice of the mortgage, and demanded a dissolution of the attachment, and a restitution of the property. The notice was accompanied with copies of the mortgage deed, and schedule, and of the lease, and notified the defendant that nothing was due on the mortgage, because the first quarter’s rent had not then accrued. No tender was made by the officer or by the attaching creditors.</p> <p>It was in evidence, that the plaintiffs instituted proceedings in the justices’ court for the recovery of possession of the premises, on the ground of a non-payment of rent; and, having recovered judgment therein, were put in possession, in virtue of a writ of possession, on the 19th of February, 1845; that the leasehold interest of Dunham in the premises was seized on the execution in favor of Shelton, and was levied upon and purchased by him ; and that Dunham on the 13th of January, 1844, applied for the benefit of the insolvent law.</p> <p>At the trial, which was before Wilde, J., the facts above stated being in evidence, on the part of the plaintiffs, they claimed to recover the full value of'the property attached and sold; but the judge ruled, that the measure of the damages to which the plaintiffs were entitled, was the amount due according to the lease, at the time of their being restored to the possession of the premises, as above stated, with interest.</p> <p>The defendant thereupon contended: 1. That the mortgage was fraudulent in law; 2. That the defendant was not liable in trespass; and, 3. That the demands made by the plaintiffs were insufficient. But these positions were overruled by the court.</p> <p>The defendant then proceeded with his defence, and introduced much evidence, some of which related to the measures taken by the plaintiffs to obtain possession of the leased premises, and to the rents thereof subsequently received by them. But, by the view of the case which was taken by the court, this evidence became immaterial.</p> <p>The defendant offered evidence to prove, that the money with which the mortgaged property was purchased by Dun-ham, was retained by him from his assets, in the proceedings in insolvency instituted on his application as above stated, and belonged to his assignee under the insolvent laws. This evidence was objected to by the plaintiffs, and expluded by the court.</p> <p>A verdict was entered for the plaintiffs, by consent, with a sum in damages, which was to be enlarged or altered, according to the opinion of the court; who were authorized, if they should see fit, to refer the case to an assessor to estimate the damages upon such principles as the -court should establish.</p>

<p>A leasehold interest may be attached and sold on execution.</p> <p>A covenant for quiet enjoyment, in a lease for years, being a covenant in futuro, is a* covenant running with the land, and will pass with it to any person, as assignee in law, who becomes legally possessed of the term.</p> <p>The intervention of proceedings in insolvency, after an attachment on mesne process, operates, by the terms of the act of 1838, c. 163, § 5, to dissolve the same absolutely and unconditionally, unless preserved in the mode and for the purpose specified in the act of 1841, c. 124, § 5; whether the assignee take possession of or claim the property attached or not.</p> <p>The assignee of a covenant running with the land cannot maintain an action for a breach thereof, accruing before the assignment, such breach being a chose in action not running with the land.</p> <p>Where an attachment of a term for years was made on mesne process, in May, 1844, and sold in pursuance thereof on execution, in March, 1845, and proceedings in insolvency were instituted against the debtor in January, 1845, it was held, that the attachment was thereby dissolved, and the sale on execution rendered void.</p>

This was an action of trover, for certain carriages and harnesses described in the writ.

In this case, which was an action of covenant, tried before Washburn, J., in the court of common pleas, the following facts appeared in evidence: — The defendant, by an indenture under seal, dated November 28th, 1843, devised a brick building with the appurtenances, in Boston, to Philip A. Kirk, for the term of five years, at a rent of $380.

<p>This was an action to recover the amount insured against fire by the defendants on the plaintiff’s buildings in Peters-ham. The case was tried in the court of common pleas, and a verdict taken for the plaintiff, before Ward, J., by whom the following bill of exceptions was signed: —</p> <p>“ On the trial of this action, the defendants, admitting a prima facie case for the plaintiff, relied in defence' upon the special matter specified in their notice in writing, which is in the case subjoined to the plea of the general issue. It was admitted by the defendants, that a fraudulent design to set fire to the building was not imputed to the plaintiff, and that no evidence to that effect would be offered. The presiding judge thereupon ruled, that • evidence was inadmissible to prove the gross negligence and carelessness, and gross misconduct, of the plaintiff, as the cause of the destruction of said building, and rejected the same.”</p> <p>The notice referred to in the exceptions was as follows: — “ The defendants hereby notify the plaintiff, that on the trial of said action they shall admit the execution of the policy of insurance declared upon; the fact that the building insured was insured against fire, as alleged by him ; that the loss thereby sustained by the plaintiff was not less than the amount claimed by him; and any other fact necessary to make out a prima fade case for the plaintiff; and the defendants will rely, for their defence to this action, upon the following matter of defence : 1. That the building insured was destroyed through and by the gross negligence and carelessness of the plaintiff; and, 2. That said building was destroyed through the gross misconduct of the plaintiff.”</p>

<p>The plaintiff, one of several partners in a firm which had been dissolved by mutual consent, having brought his bill in equity against the others, for an account and settlement of the partnership affairs, and, among other things, having alleged therein that H., one of the defendants, who had agreed to settle the affairs of the partnership, upon the dissolution, had collected large sums of money belonging thereto, and had lent the same on interest, and had refused the plaintiff access to the books of the company ; the defendant H. pleaded, that, at the time of the dissolution of the partnership, it was agreed between the plaintiff and defendant and several other persons, to form a new partnership, to which the property and effects of the old firm were to be paid and delivered as and for parts of the capital stock of the members, respectively; that the property and effects were transferred accordingly with the plaintiff's consent to the new firm, and became a part of their capital; that the members of the new firm entered upon and prosecuted the same business in which the old firm had been engaged; that the concerns of the new firm remained unsettled; that it was not then possible to determine whether any and what portion of the capital so contributed had been lost in the business; nor were the parties before the court capable of taking and settling an account of the affairs of the last mentioned firm: It was held, that the plea met all the material allegations of the bill, necessary to sustain the plaintiff's case, and, that, if the facta therein alleged were true, it was a sufficient bar to the bill.</p>

<p>The facts of the case are stated in the opinion of the court.</p>

This was an. action by the indorsee against the maker of promissory note of the following tenor : — “ Boston, March 4, 1845. For value received, we'the members of Company G, 1st Light Infantry Reg. 1st Brig. 1st Div. M. M. jointly and severally agree to pay C. S. Fifield, or order, One Hundred and twenty-nine dollars sixty-nine cents on demand with interest. $129-69.

This was an action of assumpsit, commenced at the January term of the court of common pleas, 1847, to recover the amount of the plaintiff’s demand against the defendant, for painting and glazing, and materials furnished therefor, according to an account annexed to the writ.

<p>A writ, containing the common counts, including a count on an account annexed, but without any account annexed, may be amended, at the trial, by annexing thereto the plaintiff's bill of particulars previously filed in the case.</p> <p>An officer, having attached property on a writ, by the direction of the plaintiff therein, and having made himself responsible to pay for the storage of the goods attached, may recover for the same against the attaching creditor, as an item of charge in an account annexed.</p> <p>An attorney, who employs an officer to serve a writ, and gives him directions there for, renders himself responsible for the officer’s fees for such service, and also for all disbursements made and liabilities incurred by the officer, in the ordinary course of the business intrusted to him, as, for instance, for the storage of property attached; provided the officer give the attorney reasonable notice of the disbursements and liabilities so incurred. But the statement of an officer, in his return of the writ, that he has attached property thereon, is not evidence, from which the giving of such notice may be inferred.</p>

This case, which was an appeal from a decree of the judge of probate for this county, was submitted to the court on the following statement of facts : — Joseph Lovering, late of Boston, in the county of Suffolk, died in June, 1848, having made his last will, in which he appointed the appellees to be his executors.

This was an action by the plaintiff, as the indorsee, against the defendant, as the maker, of a promissory note for §300, dated August 5th, 1837, and payable in sixty days. The writ was dated March 19th, 1847. The defence was the statute of limitations. The plaintiff relied on a new promise.

<p>In this case, the facts are stated in the opinion of the court</p>

<p>A. testator having made a bequest to “ the Marine Bible Society,” and there being no society of that name in existence; but, it appearing, in answer to a bill in equity, brought to obtain the direction of the court as to the disposition of the bequest, that, at or shortly before the time of the making of the will, there was a voluntary association in being, known by the name of “ The Boston Young Men’s Marine Bible Society,” the object of which was “to circulate bibles among destitute seamen,” but which, at the time of the testator’s death, had been dissolved or become extinct; it was held, that the latter was the society intended by the testator, and the court thereupon appointed a trustee, to receive and dispose of the legacy, by appropriating the avails thereof to the purchase of bibles, to be distributed among destitute seamen, and distributing the same, as near as may be, in conformity with the constitution and by-laws of the Boston Young Men’s Marine Bible Society, as it formerly existed.</p> <p>Where a testator gave several legacies, both to charitable associations and to individuals, and, in order to carry one of the former into effect, it became necessary for the court to appoint a trustee, it was held, that it was no objection to this course, that the estate was insufficient to pay all the legacies in full.</p>

This action, which was assumpsit for the non-performance of a contract by the defendant, to purchase and pay for certain real estate, was submitted to the court upon an agreed statement of facts. Thomas D. Bradlee, late of Boston, deceased, made his will on the 7th of July, 1835, and republished the same on the 28th of September following. The testator died in March, 1841, and his will was proved on the 29th of the same month.

This was an action of assumpsit, to recover the amount of three promissory notes made by the defendants, Charles H. Stearns and Benjamin F. Barnard, on the 28th of February, 1845, payable to William Stearns, Jr., or order, and by him indorsed, the consideration of which notes was merchandise sold and delivered to the defendants during their partnership. The defendants pleaded severally the general issue.

<p>The acceptance of an order, for the payment of money out of the amount to be advanced to the drawer, when the houses he was then erecting on the drawee’s land should be so far completed, as to have the plastering done according to the contract between the parties, is not absolute, but conditional; ana tne acceptor’s liability thereon is dependent on the contingency of the work being completed to a certain stage, according to the contract; nor will such acceptance become absolute, and the acceptor liable thereon, as such, by a subsequent cancellation of the contract by the drawee and the assignee of the drawer.</p> <p>If the acceptor of a conditional order, dependent on the contingency of certain work being completed for the acceptor by the drawer, according to a contract between them, prohibit the drawer from proceeding to complete the work, or collude with the drawer to put an end to the contract, so as to prevent the acceptor from being liable on his acceptance, the remedy of the holder of the order, if entitled to any, which the court did not decide, is by a special action on the case for damages against the acceptor: In such case, the burden of proof would be on the plaintiff to show, that the prevention of the completion of the contract had been caused by the defendant $ and any evidence on the part of the acceptor, that the drawer had failed or been unable to perform his contract, by reason of death, sickness, insolvency, or other inability, would be competent to rebut the charge.</p>

This was a review of a judgment recovered in the court of common pleas by the defendants against the plaintiff.

<p>This action was brought to recover the sum of $350-62 1/2 being the balance of the proceeds of the cargoes of the brigs Hellespont and Malaga, consigned to and sold by the defendant, in Havana, for and on account of the plaintiff.</p> <p>The defendant filed a specification of defence, in which he alleged.that he had fully paid the balance claimed of him, by remitting the amount thereof, according to the plaintiff’s directions, to L. T. Potter, at Charleston, by a draft in the favor, on Mason & Thompson, of that city.</p> <p>At the trial, which was before Cushing, J., in the court of common pleas, the defendant filed an admission of the plaintiff’s claim, under the rule of that court, in order to entitle himself to open and close, and assumed the burden of proving the matter set forth in his specification of defence.</p> <p>It appeared in evidence, or was admitted, that the de fendant was a commission merchant in Havana; that the cargoes in question were consigned to him with general directions to remit the proceeds to L. T. Potter; that, the defendant, having sold the cargoes, purchased the bill described in the specification of defence, and remitted the same, without indorsing or guarantying it, to L T. Potter; and that the bill was dishonored and returned protested to the defendant.</p> <p>The question was, whether the remitting of the bill exonerated the defendant from his liability for the balance.</p> <p>Evidence was introduced, tending to show that it was the custom of merchants in Havana, when ordered generally to remit to the United States, to make such remittance by means of bills of exchange; and there was also other and conflicting evidence introduced, as to whether a merchant so reuniting was bound to indorse or otherwise guaranty the bills remitted.</p> <p>The defendant contended, and requested the judge to instruct the jury, that if they were satisfied, that it was the invariable custom in Havana, under such circumstances, to remit by bills of exchange, the defendant must be deemed to have complied with his instructions, and, if he used proper diligence and discretion in selecting the bill remitted, was exonerated from all liability ; that the burden of proof was not on him to show that it was,also the custom in Havana to remit unindorsed bills; but that the burden of proof was on the plaintiff, if he would avoid the effect of the remittance, to show that the bill ought by custom or otherwise to have been guarantied, or indorsed by the defendant.</p> <p>The presiding judge, for the purposes of the trial, refused so to instruct the jury, and ruled that the burden of proof was on the defendant, to show that the custom was to remit by bills not indorsed or guarantied by the remitting house, and to prove such a custom as would render the remittance in question, namely, a bill of exchange unindorsed by him, a valid payment.</p> <p>The defendant then contended, and requested the judge to instruct the jury, that if they were satisfied from the evidence, that the custom was to remit by bills, but that there was no settled, known, and invariable custom, as to whether such bills should be indorsed or guarantied by the remitting house, and that bills remitted were sometimes so indorsed and guarantied and sometimes not, then, if the defendant acted in good faith in remitting the bill in question, he was exonerated from his liability for the balance claimed in this action.</p> <p>The judge refused so to rule, but instructed the jury, that the defendant, in order to exonerate himself, must take the burden of proving a custom to remit by bills not indorsed or guarantied.</p> <p>The jury returned a verdict for the plaintiff, and the defendant thereupon filed exceptions to the rulings and instructions above stated.</p>

<p>A testator, having by his will devised to his son S. the rent or improvement of certain real estate, “he to receive the rent annually, or quarterly, (if the same should be leased or let,) during his natural life, and the premises to descend to his heirs,” added a codicil, by which he repealed and revoked that part of his will, wherein any part of his estate real or personal was devised or bequeathed to his son S., and in lieu thereof, made a bequest in the following terms: “ I do bequeath to my son S. only the income, interest or rent of any portion of my real or personal estate, as the case may be, so that no more than the income, interest or rent of any portion of my real or personal estate, and not the principal of said personal or fee of said real estate may come to the said S. my son, which, at his decease, it is my will, that the said real and personal estate shall then go to the legal heirs: ” It was held, that by the terms of the will alone, the estate therein mentioned would have been devised in fee to S. and his heirs, either as a fee simple in him, according to the rule in Shelley's case, or as an estate for life in S., with remainder in fee to his heirs, according to the rule as modified in this state by St. 1791, c. 60, § 3; but that by the codicil, the devise in the will to S.. whether of a fee simple, or of an estate for life, with remainder in fee to his heirs, was wholly revoked, and an estate thereby devised to him for life, with vested remainder in fee to the legal heirs of the testator.</p>

<p>This was an action of trover, for certain goods specified in the writ, consisting of articles of household furniture, and was tried before Cushing, J., in the court of common pleas.</p> <p>It appeared, that the property had been mortgaged to the plaintiff, by Sarah Blake, on the 23d day of September, 1845. The mortgage was recorded according to law. It contained no clause prohibiting the mortgagee from taking immediate possession. It was in evidence, on the part of the plaintiff, that he was induced to leave the property in the possession of the mortgagor, for a certain period, upon her representation that she was expecting money from the east, with which she intended to pay off the mortgage; but, that such representations were false and fraudulent, and the property was sold clandestinely by order of the mortgagor, during the period referred to, and she refused to give any account of it. The goods were, in fact, sold by the defendants, as auctioneers, at their usual place of business in Water street, and the proceeds were paid over by them to the mortgagor before any demand was made on them by the plaintiff, and long before the plaintiff could learn what had become of the goods.</p> <p>It was in evidence, also, for the plaintiff, that at various times subsequent to the sale of the goods by the defendants, and before the commencement of this action, he had requested from the defendants an account of the goods sold, and of the purchasers thereof, and had stated to the defendants how he stood in relation to the goods; but had been refused all information concerning the same by the defendants.</p> <p>The jury were instructed, in substance, that though they should be satisfied, that the property had been carried off secretly by the mortgagor, and sold by the defendants, by her direction, with a design to cheat the plaintiff, and deprive him of the benefit of the mortgage, yet the defendants would not be liable to the mortgagee for the property, unless the jury should also be satisfied, either that the defendants acted in concert with the mortgagor, or had knowledge in fact of the existence of the mortgage, or unless there was something in the transactions themselves, or circumstances had come to the defendants’ knowledge, which would put men of ordinary prudence on inquiry, so that they might have come to a knowledge of the existence of the plaintiff’s mortgage.</p> <p>The jury, under these instructions, returned a verdict for the defendants, and the plaintiff thereupon alleged exceptions.</p>

This was an action of assumpsit, tried before Wilde, J., at the November term, 1847, for the recovery of two thousand dollars, being the amount of a reward offered by the mayor of Boston, in the following terms: — “ 2000 Dollars Reward.

<p>This was an action on the case, containing three counts. In the first, it was alleged, that the plaintiffs bought sixty-five bales of cotton of the defendants, which the latter promised should be like to and as good as certain samples exhibited by them; whereas the defendants deceived and defrauded the plaintiffs in this, that the cotton was deceitfully packed and bound up, and a large portion of it was not like to or as good as the samples, but poor, fraudulently packed, and of little or no value. The second count differed from the first, in merely alleging, that a large cpiantity of the cot-on, at the time of the purchase, was not equal to the sames, but poor and of little value. The third alleged the sale to have been made with a warranty, that the cotton was middling, fair cotton, &c., but that it was of inferior quality, and of little or no use to the plaintiffs. The writ was dated September 10th, 1845.</p> <p>The defendants pleaded the general issue, arid filed a specification of defence, in which, amongst other matters, it was alleged, that if the cotton was falsely packed, the plaintiffs were bound by law and usage to give immediate notice thereof to the defendants, with the usual and proper proofs of the amount of damage and false packing, and with certificates of the planters’ marks and shipping marks, and with other information, by means of which the defendants could make reclamation ; all of which was omitted to be done until about nine months after the sale, when the cotton had been used up, and the bags and marks destroyed ; by reason of which negligence and delay on the part of the plaintiffs, the defendants, if otherwise liable for any damages, were entirely deprived of all recourse to the persons, by whom the false packing, if there was any, was done.</p> <p>It appeared in evidence, on the trial, which was before Wilde, J., that the sale was made by the intervention of a broker, who acted therein for the defendants, by whom his commissions were paid; that the broker took samples of the cotton from the defendants, and exhibited them to the plaintiffs’ agent, who made the purchase by the samples shown him ; that the broker, at the request of the agent, drew other samples and exhibited them to him; that the cotton was bought by the shippers’ marks; and that there might have been four or five different planters’ marks upon it.</p> <p>It was also in evidence, on the part of the plaintiffs, that the cotton was falsely packed, being of a much inferior quality in the interior of the bales to what it was externally and to the samples; that the cotton was discovered to be falsely packed, upon the plaintiffs’ beginning to open it, immediatel after the purchase, which was on the 4th of November, 1844 ; that the plaintiffs went on opening and using it until May, 1845, when the last of it was worked up; that the bags in which the cotton had been packed, and which had the planters’ and other marks upon them, were put into the plaintiffs’ storehouse; since which the plaintiffs could not tell what had become of them, though the bags were commonly sold or used to pack waste.</p> <p>The defendants contended, upon this evidence: 1. That the action was for deceit, and could not be maintained, without proof of a knowledge of the fraud, on the part of the defendants; 2. That if the action was not for deceit, a sale by sample was not a warranty against an unknown and invisible defect; and, 3. That the plaintiffs, by retaining the cotton and using it, and suffering an interval of six months to elapse without notifying the defendants of the fraud, or offering to return the cotton, had waived their right to object to the alleged fraudulent packing.</p> <p>But the judge, for the purposes of the trial, ruled upon these points against the defendants ; who then proceeded with their defence, and introduced and examined witnesses to prove the usage set forth in their specification. This evidence was admitted against the objection of the plaintiffs.</p> <p>The case was thereupon taken from the jury, and submitted to the whole court upon the evidence relative to the usage, which was reported at length for that purpose. If the court should be of opinion, that the evidence proved a usage, which was by law admissible, and constituted a sufficient defence to the action, the plaintiffs are to be nonsuited ; otherwise the court is to dispose of the case as the law requires.</p> <p>This evidence being submitted to the court, for them to decide thereupon as to the existence of the usage in question, as a matter of fact, and the result being stated in the opinion of the court, it is deemed unnecessary to insert the testimony in detail.</p>

This was an action of assumpsit, to recover the amount of three promissory notes, signed by the three defendants, Nathaniel Withington, Elbridge Jones, and Wales Tucker, under their copartnership name of Withington and Jones, and was tried before Merrick, J., in the court of common pleas.

<p>This was a bill in equity, in which the plaintiff alleged, that his intestate was a part owner with the defendant’s intestate of a vessel which was captured by the Neapolitan government; that the vessel was owned by six, but, for convenience, was registered in the names of two only; that the plaintiff’s intestate owned one sixth, but his name did not appear in the register; that a sum of money was subsequently awarded by way of indemnity for the capture, under a treaty with the Neapolitan government; and that the same was awarded and paid to the register owners, of whom the defendant’s intestate was one.</p> <p>The defendant demurred to the bill.</p>

The questions decided in this case arose upon the following answers of Charles Pope, the supposed trustee: — “ 1. I am trustee under the will referred to, [that of Joseph Bumstead, late of Boston,] and discharge the trusts therein prescribed to the trustee. “2.

<p>The grantor in a deed, containing covenants of seizin, title, against incumbrances, and of general warranty, having used terms purporting to convey the estate therein mentioned by metes and bounds, and added the words: “meaning and intending by this deed to convey all my right, title and interest in and to” the premises so described; it was held, that the covenants applied generally to the land mentioned in the deed, and were not restricted to the grantor’s right, title and interest therein.</p>

<p>This case was brought to a hearing in May, 1847, before the chief justice, by whom an opinion was subsequently given in favor of the plaintiff; whereupon, several exceptions being taken thereto by the defendants, a report of the case was made by the judge, stating the pleadings and facts, together with his opinion thereupon, for the consideration of the whole court.</p> <p>The report was as follows : —</p> <p>This is a bill in equity, brought by the plaintiff to enforce a trust, set forth in an indenture executed by William and Thomas J. Whittemore, dated March 26th, 1838. The indenture was an assignment by the Whittemores, made under the statute of 1836, c. 238, to three of the defendants, as trustees, for the benefit of their creditors. The assignment is in the usual form, and contains a provision giving power to the assignees to complete the manufacture of articles in the process of manufacture at the time of the assignment, and to purchase raw materials for that purpose. It was executed by the Whittemores, and by the three assignees, but by no creditor of the assignors. The plaintiff’s claim arises upon a note signed by the Whittemores, dated May 22d, 1826, for $2500, payable on demand, with interest annually, to Luke Wyman, executor of the will of Seth Wyman, or order, which note the plaintiff signed as surety. On the 2d of December, 1843, the plaintiff paid the amount due thereon to James Russell, who had been appointed administrator de bonis non, with the will annexed, of Wyman’s estate, on the 21st of February, 1842.</p> <p>The assignees took' possession of the property under the assignment, and gave public notice, as required by the statute, and held the same property, until March, 1842; when, in compliance with a request in writing, accompanying a release under seal, signed by all the creditors of the Whittemores, with two exceptions, but not by the plaintiff, or Luke Wyman, bearing date June 11th, 1840, the assignees reconveyed the larger portion of the property assigned to them to the Whittemores, and the Whittemores on the same .day conveyed the same property to the defendant Wells, and Wells on the same day gave his obligation to the three assignees, which recites the aforesaid request and reconveyance, and contains an agreement that Wells shall save and keep narmless and indemnified the assignees, from and against all claims and losses, by reason of their acceptance of the trust, and reconveyance of the property as aforesaid, &c., &c. Annexed to the bond is a schedule exhibiting an account of the liabilities against which Wells was to indemnify the assignees, and which includes the note since paid as surety, and taken up by the plaintiff. By the same instrument, the property conveyed to Wells was mortgaged to the assignees, to secure the performance of the condition of the bond.</p> <p>It further appeared, by the deposition of James Russell, that while he held the note, as administrator de bonis non, &c., he was applied to and requested to become' a party to the assignment, as such administrator, but he declined to execute the same, or become a party thereto; and that, further, about the time of the reassignment, he was notified of the same, and requested to sign the written consent and request aforesaid, dated June 11th, 1840, requiring the assignees to reconvey the property as aforesaid, and that he declined so to do. Russell further deposed, on cross examination, that upon being notified of the intended reconveyance of the property to the assignors, he neither consented thereto nor objected; always looking to the plaintiff after the Whittemores assigned their property.</p> <p>It was also stated, by the answers of the assignees, that Wyman and the plaintiff were duly notified of the existence of the assignment to them, and knew that they might become parties thereto at their election. They deny that the reassignment of the property was made to the Whittemores, without the knowledge or consent of the plaintiff and Wyman, but allege that they were informed that the same was contemplated, and did not object, and that the reconveyance would not have been made, if they or either of them had intimated any objection thereto, and that the bond aforesaid of Wells was not intended as an obligation on his- part, to pay all the claims of creditors, who had not consented to the reconveyance, or to admit that such creditors had any legal claim or demand against the assignees, but merely to protect the assignees against any and all possible claims and contingencies.</p> <p>It also appeared, that William Whittemore died in November, 1842, and that on February 5th, 1844, the plaintiff brought an action on the note against Thomas J. Whittemore, as surviving partner of the firm, and attached certain personal property of Whittemore which had been assigned by the indenture aforesaid, and which had never been reassigned, and in the same suit summoned the three assignees as the trustees of Whittemore; that they appeared and answered in that suit, which was still pending at the time of the hearing in this case; that on the 8th of July, 1844, Thomas J. Whittemore, having applied for the benefit of the insolvent law, the said James Russell was duly appointed assignee of his estate; and the attachment created by the trustee process, and under the writ, was discharged thereby.</p> <p>It also appeared, that on the 2d of February, 1844, the plaintiff applied by her attorney to become a party to the assignment for the benefit of creditors, and that the assignees declined to permit her to do so, alleging that they did not consider the assignment in force for the benefit of the creditors, as they were informed and believed that all persons entitled to become parties to it either refused so to do when requested, or had released the assignees from the performance of the trust; and that a similar application was made in June, 1845.</p> <p>It was admitted, that during the period up to the time of the reconveyance in 1842, the assignees, with the consent of the creditors, generally, permitted the Whittemores, as theii agents, to carry on their former business, as they were authorized to do by the indenture.</p> <p>The said Wells, and the said James Russell, as assignee of Thomas J. Whittemore, were made parties defendant.</p> <p>The prayer of the bill is, that the assignees may be decreed to render an account, &c., and that the plaintiff may be permitted to become a party to the assignment, and the defendants decreed to pay her the amount of her claim.</p> <p>Upon these facts, the defendants contended: —</p> <p>1. That the plaintiff had lost her right now to become a party to the assignment by the laches of Wyman and her own, or waived it by silently permitting the assignees to re-transfer the property to the assignors, without objecting thereto.</p> <p>2. That it was contrary to equity and good conscience for her to lie by and see this retransfer made, without notice of her claim and objecting thereto.</p> <p>3. That one of the assignors having died, and the other of them having taken the benefit of the insolvent law, the plaintiff ought not now to prevent the equal distribution of this property, by insisting on the execution of these trusts, but, having similar rights and remedies with the other creditors, should be left to them.</p> <p>4. That the commencement of the suit at law by the plaintiff was an election of a remedy inconsistent with her present claim, and an acquiescence in the retransfer of the property.</p> <p>But the court overruled the objections and decreed a reference of the case to a master to take an account of the trust property in the assignee’s hands, and that the plaintiff was entitled to be paid her claim from the same.</p>

<p>The rule of law, that, in civil proceedings, when an officer justifies under mesne nrocess, which is returnable, he must show that he has done all that it was his duty to do, and is a trespasser if he do not show that he has returned the process, is equally applicable to the case of a warrant in a criminal proceeding.</p> <p>When an officer, under a warrant from the police court of the city of Boston, directing him upon sight thereof to take the body of the defendant and bring him before that court, to answer to a complaint there made against him, arrested the defendant on a Sunday,- and committed him to the common jail, and there detained him until Monday morning: It was held, that if the officer had a legal right to keep the defendant in jail from the time of his commitment until the next morning, yet the officer could only be justified by the necessity of the case, and so long as the necessity existed, and was bound to take the defendant on Monday morning before the police court, or to show some legal reason for not so doing.</p> <p>A warrant in a criminal case ought to contain a command to the officer to make a return of the same and of his doings; but if the warrant contain no such command, the omission will not excuse the officer for not making a return.</p>

This was an action of covenant broken, brought by the plaintiff, as the executor of Joseph Torrey, upon the covenants contained in a sealed indenture of lease from the plaintiff’s testator, to Charles Rawson, dated the 9th day of August, 1836, of an estate in Boston, for the term of twelve years and three months from the 1st of October, 1836, at the yearly rent of three hundred and twenty-five dollars. The action was tried before Washburn, J., in the court of common pleas.

The plaintiff brought this action of assumpsit, to recover the sum of $240, alleged to have been loaned by him to the defendant. On the trial, which was before Merrick, J., in the court of common pleas, the plaintiff produced a witness, who testified to the acknowledgment by the defendant, that he had borrowed and received of the plaintiff the sum of money sued for.

The petitioner had been brought before the police court on the complaint of Bridget McMarriman, under the bastardy act, (Rev. Sts. c. 49,) and had given bond in pursuance of the act to appear at the… Held: that, the petitioner having been committed by legal process, this was not one of the cases in which the writ was demandable of right, and in the exercise of his discretion he refused to grant it.

This was an action by the commonwealth, as the indorsee, against the defendant, as the maker, of a promissory note for $200, dated July 22d, 1846, payable to William E. Goddard, or order, on demand, and by him indorsed and delivered to the commonwealth’s attorney for the county of Suffolk. The case was tried before Wells, C. J., in the court of common pleas.

This was an action of debt on a jail bond, given to the plaintiff by one Arminson as principal and the defendant as surety, and was submitted to the court of common pleas at the October term, 1847, on the following statement of facts :— On the 25th of March, 1847, Arminson was committed to jail on an execution obtained by the plaintiff, at the January term of the same court, 1847, against him and one Haywood ; and on the same day this bond was given.

The declaration in this case, which was an action of assumpsit, contained only the common money counts, including an insimul computassent, and referred to an account annexed, which was a copy of the award hereinafter mentioned.

The above entitled cases, which were action of debt on guardianship bonds, were submitted to the court on the following statement of facts: — On the 23d of May, 1842, Charles Fox was appointed guardian of John W. Furness, a minor son of John C. Furness, deceased, and gave a bond in the form required by law, in the penal sum of three hundred dollars, with the defendant Willard as his surety. The action against the latter is on this bond.

This was a petition, under the insolvent laws, against the respondents, as the assignees of George Hughes.

This case, which was a writ of entry, was submitted to the court upon the following statement of facts: — The demandant claims certain premises in Hanover street, m Boston, described in the writ, which were devised by his great-grandfather, Michael Malcolm, 1st, by his will dated August 24th, 1774, and a codicil thereto dated November 22d, 1774.

This case was submitted to the court upon the following agreed statement of facts : — Benjamin Joy, late of Boston, deceased, by his will and the codicils thereto, after giving certain annuities, and giving to his widow, Hannah, whom be made sole executrix, power to sell real estate to pay debts and legacies, gave the residue of his estate to his four children, Joseph B., John B., Hannah, and Elizabeth, “ the shares of the daughters being placed in the hands of trustees to…

All the facts in this case sufficiently appear in the opinion of the court; except that the conveyance, therein mentioned, from the heirs of Benjamin Joy, to John F. Loring and Henry Andrews, of the 5th of January, 1835, was one of the defective conveyances, mentioned in the next preceding case of Sohier v. The Massachusetts General Hospital; so that the plaintiffs, as to a portion of the estate, to which they derived title from Loring and Andrews, were seized only of an…

This was an action for covenant broken. The plaintiff, in his declaration, stated the conveyance of the land, as set forth in ■ the former case between the parties, for breach of the covenant of warranty in the same deed, reported in 9 Met. 151.

<p>This was an action of assumpsit for goods alleged to have been sold and delivered by the plaintiff to the defendant, through the latter’s agent, William Pierce.</p> <p>The case having been referred to an auditor, he reported in favor of the plaintiff, for goods sold and delivered between the 10th of March, 1842, and the 25th of May, 1843,- and for the balance of two notes, one for $207, dated March 9th, 1842, signed “ W. Pierce, agent of L. S. B.; ” and the other for $250, dated August 8th, 1841, and signed in the same manner. The balance, found due by the auditor on the notes was $214-15, and for goods sold, after deducting a set-off, $890-25, making in the whole $1104-40. The jury returned a verdict for the plaintiff for $660-57.</p> <p>The cause was tried in this court before Wilde, J., by whom it was reported for the consideration of the whole court.</p> <p>The report was as follows : —</p> <p>It appeared that the plaintiff was a bookseller and publisher in Boston, and that Pierce carried on a bookseller’s shop in Andover, as the agent of Leonard Woods, until the 1st of January, 1842, at which date his agency for Woods ceased, and he thenceforth carried on the same business and purchased goods, under a written authority from the defendant. The following is a copy of this instrument: —</p> <p>“ Know all men by these presents, that I, Laban S. Beecher, of Roxbury, in the county of Norfolk, (doing business in Boston,) leather dealer, do hereby constitute and appoint William Pierce, of Andover, in the county of Essex, bookseller, my sufficient and lawful attorney, for me, in my behalf and as my agent, to purchase books, paper and stationery, for the purpose of carrying on business in said Andover; and the same to sell again, for my benefit and on my account, on such credit and at such prices as he may deem meet; to collect, recover, demand and receive all debts and sums of money due and receivable for and on account of the sales of said goods and merchandise, and generally to do and perform such matters and things as are necessary and proper for the carrying on and conducting of said business.</p> <p>Provided, however, that said Pierce shall not make purchases or incur debts exceeding in amount at any one time the sum of two thousand dollars, and also that this power or agency shall not extend for a period of time more than one year from the date hereof, or beyond the 1st day of January, A. D. 1842. Hereby ratifying and confirming whatsoever my said attorney may do in the premises. In testimony whereof, I have hereunto set my hand and seal this first day of January, in the year eighteen hundred and forty-one.</p> <p>E. N. Badges, witness. Laban S. Beeches, (seal.)</p> <p>Boston, Jan. 1, 1842.</p> <p>The foregoing instrument is hereby continued in force for twelve months from this date. Laban S. Beeches.”</p> <p>This paper, it was admitted, was exhibited by Pierce to the plaintiff, Mussey, prior to the sale and delivery of any of the goods, out of which this controversy arose; and it was proved, that the plaintiff subsequently sold and delivered to Pierce the goods which were charged on the plaintiff’s books to Pierce, and bills of which were rendered to Pierce in his, Pierce’s, name.</p> <p>Pierce was called as a witness by the plaintiff, and testified to the custody, execution and delivery of the instrument creating the agency, which the defendant was notified to produce, and which, upon the cross examination of this witness. was produced. On such cross examination Pierce testified, among other things, that, in fact, the amount of his purchases of various persons, during the period from March 1st to September 1st, 1842, exceeded, at all times, the sum of $2000; that his suspicions were aroused on this point in July and August, but that he did not go into any particular investigation until August; that, before the 27th of August, he had investigated the matter sufficiently to satisfy himself that the agency was full; that, on the 27th of August, he applied to the plaintiff to purchase a bill of goods amounting to $168-23, which was included in the auditor’s report; that the plaintiff inquired of him whether the agency was full, and if there was no danger of his buying beyond ; that the witness replied, that it was full, and that the bill must be sold to him on his own credit; to which the plaintiff replied, that payments would he making, by and by, which would reduce the amount, and then it would come within the agency, and that he, the plaintiff, should be willing to trust the witness $300 to $400 on his own responsibility. The witness also testified, that, from time to time, during the summer, the plaintiff inquired of him, when he went in to purchase, whether his agency was full; that the witness had sometimes replied, that it was nearly full; that at another time witness thought (but was uncertain) that it was probably full; that, during his agency, he from time to time furnished the defendant with the data respecting the amount of his indebtedness; that the defendant knew in August that the amount far exceeded the sum named in the written authority ; and that he knew it in September; witness was more doubtful as to the defendant’s knowledge in July, but testified that it was probable that he also knew it in July; that in October the defendant required the witness to notify formally two or three parties he was dealing with, that the agency was at an end, and that among others he notified the plaintiff; that in August, the defendant complained to the witness, that the agency was full, and this led the witnes* to make the investigation previously referred to, and he communicated the result to the defendant.</p> <p>It was contended by the plaintiff, that there was evidence tending to show, that the limitation, both of amount and time, had been extended or waived by the defendant; but this was wholly denied by the defendant. The plaintiff also contended, that Pierce was mistaken in his statement, that in August he gave notice to the plaintiff that the agency was full, and that the purchase then made was upon his own personal credit; and, for that purpose, he offered in evidence certain schedules purporting to set forth his debts, subscribed, sworn to and filed, and afterwards amended by Pierce, in November and December, 1842, in the district court of the United States, in the proceedings under his petition to be declared a bankrupt, and for a discharge from his debts, to show that in the schedules no debt was set forth as due from him to the plaintiff. To the admission of this evidence the defendant objected, but the court admitted the same. The defendant contended, that, the burden of proof was on the plaintiff, to show that the goods sought to be recovered were sold to Pierce as agent for the defendant, under the power above referred to, and that as such power was limited, the plaintiff must also show, that the goods were sold within the limits and provisions of the power, and that if he, Pierce, had already purchased goods to a greater amount than §2000, under the power, the plaintiff could not recover of the defendant in this case.</p> <p>But the court instructed the jury, that the plaintiff must show that the goods were sold under the power to Pierce as the defendant’s agent, and not upon the personal credit of Pierce; and that although the power was limited, and such limitation was known to the plaintiff, yet that the defendant would be liable for Pierce’s purchases, even though he had already exceeded the amount authorized by the power, if the jury were satisfied, from the evidence, that, at the time of the purchases, Pierce represented that by such purchases he would not exceed his limit.</p> <p>The court further instructed the jury, that if they were satisfied, that Pierce notified the plaintiff, that the agency was full, that from the time of giving such notice, the plaintiff could not recover, if such agency was in face full, or he trusted Pierce on his own credit; and, also, that if afterwards the plaintiff had inquired of Pierce about the agency, and had been informed by him that it was not full, and the plaintiff had no reason to suspect the truth of Pierce’s declaration, and if the plaintiff then sold goods to Pierce as agent, as aforesaid, the defendant would be liable for such goods, even though the agency was then full.</p> <p>If either of the foregoing rulings or refusals of the court was erroneous, a new trial is to be granted, otherwise judgment is to be rendered on the verdict.</p>

This was a writ of error to reverse a judgment rendered against the plaintiffs at the last February term of the court of common pleas for this county.

<p>The defendants, Ebenezer Griffin and Nathan Brown, were tried before Mellen, J., in the court of common pleas, on an indictment charging them jointly with violations of the first and second sections of the Rev. Sts. c. 47. The indictment contained four counts. The second count alleged that the defendants, “ on the tenth day of September now past, did sell,” &c. In all the counts, except the first, which charged the defendants with the offence of being common sellers, it was alleged, that the defendants did sell certain specified quantities of spiritous liquor, to the several persons therein mentioned, “ to be used in and about their shop,” &c.</p> <p>The jury returned a verdict of not guilty as to Brown, and a verdict of guilty against Griffin, on all the counts.</p> <p>Griffin thereupon moved in arrest of judgment: —</p> <p>1. Because, the indictment having charged a joint offence, the jury have neither acquitted nor convicted him of the offence set forth in the indictment.</p> <p>2. Because no verdict has been returned on the issue between the commonwealth and this defendant.</p> <p>3. Because it does not appear when the offence charged ir the second count was committed.</p> <p>4. Because the indictment charges a joint sale, and the jury have found that the sales were made by one only.</p> <p>5. Because the several sales alleged in the indictment are charged to have been made in the shop of the two defendants, whereas the jury, by acquitting one of them, must have found that the shop was kept and occupied in the separate business of the other.</p> <p>The presiding judge overruled the motion in arrest, and the defendant alleged exceptions.</p>

<p>The defendant was tried in the court of common pleas, before Mellen, J., on an indictment for perjury. The indictment alleged, that “ on the 6th of November now last past,” one Joshua K. Rogers went before a justice of the peace, and entered a complaint, that one James M’Nelly, “on the 6th of November, now last past,” did feloniously, wilfully, and maliciously set fire, “ in the night-time,” to the barn of one George Millard, with intent to burn and destroy the same, &c.; that the defendant appeared on the hearing of the complaint as a witness for M’Nelly, and was sworn and testified as such ; that it became and was a material question in the defence set up by M’Nelly, whether he was not, during the evening of the said 6th of November, in a situation xvhére he could not possibly set the fire with which he was charged in the complaint; and that the defendant testified thereupon that M’Nelly was not out of his the defendant’s house during that evening, from before dark until nine o’clock, and that he, the defendant, was at home all the evening from about dark until nine o’clock, except being absent about fifteen minutes going to and returning from the house of one Dimond, and that he, the defendant, was not on Eagle, street, during the evening, and that he was not off of his premises on that evening, except when he went to the house of one Dimond about eight o’clock.</p> <p>The indictment further alleged, that each and every part of the defendant’s testimony aforesaid, on the hearing, became and was material evidence to the defence so set up by M’Nelly; that M’Neily was out of the defendant’s house after dark, and before nine o’clock, on the evening in question ; that the defendant was not at home at his own house all the evening from about dark until nine o’clock the same evening, except being absent about fifteen minutes going to and returning from the house of Dimond; that the defendant was on Eagle street during that evening; and that the defendant was off of his premises during that evening at other times than when he went to Dimond’s.</p> <p>The defendant, being convicted, moved in arrest of judgment, on three grounds : 1. Because it did not appear in the indictment, that at the time when the complaint was made against M’Nelly, the offence therein charged had then been committed; 2. Because the indictment does not allege, that the false testimony therein charged was material to the issue between the commonwealth and M’Nelly; 3. Because no offence is set forth in the indictment. This motion was overruled, and the defendant alleged exceptions.</p>

The defendant was tried before Mellen, J., in the court of common pleas, on an indictment charging him with the offence of attempting to burn a building. The indictment contained two counts.

<p>It is competent to the inhabitants of a town, to take upon themselves the expenses of a suit against their agent or servant, in which the interests of the town are directly involved.</p>

<p>This was an action, brought for the benefit of an assignee, on a note of hand, of which the following is a copy: —</p> <p>" Peru, May 15, 1843. For value received, I promise to pay Lester Haskell fifteen dollars in work after the first of August next, on demand, with use, or bearer.</p> <p>(Signed) Luke Blair.”</p> <p>The action was tried before Mellen, J., in the court of common pleas. The signature not being denied, the note was read, and the plaintiff then introduced a witness (Albertus Richards) who testified, that some time after the note became payable, and before this action was brought, he, as the agent of Hiram Richards, his father, who was then the owner of the note, demanded payment of the same of the defendant, in the work and labor usually done by him, to be performed for the owner of the note ; with which demand the defendant refused to comply. A similar demand was made at several different times.</p> <p>The defendant contended, upon this evidence, and requested the court to instruct the jury, that no sufficient demand had been proved to maintain the action : 1. Because the note was not a chose in action, and assignable or transferable as such, until after a breach of the contract; and, 2. Because, consequently, Hiram Richards, at the time of the demand of payment of the note, had no authority to make it.</p> <p>The court declined giving the instructions prayed for, but instructed the jury, that if they believed the testimony of the witness, and that the defendant, on a demand being made on him of payment of the note, as stated in the evidence, refused payment, without making any objection to the time or place of payment, in work, or the person for whom the work and labor were to be performed, they might be satisfied that a sufficient demand had been made, to enable the plaintiff to maintain this action; and that the note was so far assignable, that the payee thereof might transfer the same in such a manner as to authorize the assignee to make demand of payment.</p> <p>A verdict being returned for the plaintiff, the defendant alleged exceptions to the foregoing instructions.</p>

This was a proceeding under the Rev. Sts. c. 49, against the respondent, as the alleged father of a bastard child, and was tried before Mellen, J., in the court of common pleas.

This was a bill of discovery, in which the plaintiff alleged, that on the 20th of September, 1847, he held two notes against the defendant, amounting to about the sum of $1295, dated April 2d, 1838, and which were given in part payment of a farm sold by the plaintiff to the defendant; that certain payments had been made on the notes within six years from the commencement of the action after mentioned, and had been indorsed thereon ; that for the purpose of collecting the…

<p>An action on the case will not lie against a justice of the peace, for an error of judgment in taking a recognizance to prosecute an appeal in a form not authorized by law, and therefore invalid.</p>

<p>The promisor of a note for a much larger sum than $30, having made a payment of $30 towards the same, which was not indorsed thereon, was afterwards sued upon the note, and filed a specification of defence thereto, in which he stated, amongst other things, a payment of $30; and being subsequently defaulted in the action, the plaintiff took judgment against him for the whole amount of the note, without deducting the payment: It was held, that the promisor could not maintain an action to recover back the amount of such payment.</p>

The facts of this case, which was tried before Mellen, J., in the court of common pleas, and came to this court upon exceptions, fully appear in the opinion of the court.

<p>On the 2d of February, 1842, Brown, the husband of the demandant, made a mortgage of real estate, in which the demandant joined in a release of her dower to Farnam and Brayton, as administrators of Mason, deceased: Farnam and Bray-ton afterwards assigned the mortgage to Cole, as the guardian of the minor daughter and heir of Mason, and Cole assigned the same to Gaylord, his successor in that capacity : Brown, the mortgagor, became insolvent, both in his individual capacity and as a partner in the firm of Brown, Harris & company: In the mean time, Gaylord, as assignee of the mortgage, had brought a suit to foreclose the same, and had recovered judgment thereon, at the October term, 1847, of the C. C. I'., but, before service of his writ of possession, Brown, the mortgagor, died: An arrangement was then made between Gaylord and the assignees in insolvency, in pursuance of which, the mortgaged premises were sold, on the 12th of January, 1848, for more than enough to pay the mortgage debt, and were conveyed by the assignees with warranty, on the 11th of February following,.to the purchaser: On the day of the sale, the assignees paid Gaylord the amount of the mortgage debt and expenses, out of the proceeds, and Gaylord thereupon assigned the mortgage to Plunkett and Brayton, the assignees in insolvency: Gaylord’s ward having intermarried, the amount received on the mortgage was paid by him to Bulkley, the husband: The assignees in insolvency subsequently assigned the mortgage to the purchasers and tenants of the land, of whom the tenant was one; but the assignment was made without consideration, and without request of the assignees: It was held, that the widow of Brown, the mortgagor, was not entitled to dower in the premises.</p>

This was a writ of entry to recover certain real estate in Richmond. The demandants claimed title as heirs at law of James L. Chittenden.

The defendant was indicted in the court of common pleas, and there tried before Byington, J., for malicious mischief, in contravention… Held: and which gun was then and there loaded with powder and leaden shot, at and against the said mare, whereby the said mare was severely wounded in the side, hip and shoulder of the said mare, and thereby was greatly injured and rendered of little value.” The jury were instructed, on the trial, that the word “ maliciously,” in that part…

<p>The trustees of the Methodist Episcopal Society, in N. A., in consideration of $450, paid by S. B. B. on the 1st of September, 1843, gave him a bond, conditioned for the conveyance of a piece of land to him, on demand: This contract was entered into, on the part of B., under an expectation that the Universalist Society would have the lot, whenever they should raise funds and pay for the same, and that when paid for the trustees should make a deed thereof directly to the Universalist Society: Subsequently, a subscription was set on foot by the Universalist Society to raise funds for building a meeting-house on the premises; and B. subscribed $500 thereto, $450 in the land, and $50 in money; but the subscription paper was afterwards lost, and no subscriber was called upon to pay his subscription ; and nothing further was ever done towards building a meetinghouse on the land, or making any other use of it: A bill in equity having been brought by the assignees in insolvency of B., for a specific performance of the condition of the bond, and the above facts appearing, it was held, that this court have power to decree the specific performance of a bond with a penalty, conditioned for the conveyance of land ; and that, without deciding upon the validity and effect of the subscription, the engagement thereby created in favor of the Universalist Society was in its nature provisional, dependent upon the amount subscribed by others, and upon the completion of the subscription, and the building of the house within a reasonable time; and that the undertaking had ceased to be of any legal or honorary obligation, by reason of the lapse of time, the failure to raise the money, and the abandonment, for an indefinite period, of the contemplated project; and, consequently, that the plaintiffs were entitled to a decree in their favor.</p>

<p>Under a vote to raise the sum of $250, assessors have no authority to assess a tax of $285.01.</p> <p>Payment to a collector of taxes, who has a tax bill and warrant for levying the same, in the form prescribed by law, is not a voluntary, but a compulsory payment ; and if the tax so paid be illegally assessed, it may be recovered back by action.</p> <p>The inhabitants of a school district, having voted to raise a sum of money for building a school-house, and the same having been subsequently assessed upon the inhabitants and collected, and paid by the collector into the town treasury, was paid over by the treasurer of the town to a building committee appointed by the district: The assessment thus made being illegal and void, it was held, that an inhabitant of the district, who had paid the tax so assessed against him to the collector, might recover the amount m an action for money had and received against the school district.</p> <p>An objection to the form of the writ, that it should have been a writ of original summons, and not of attachment, can only be taken at the first term after an appearance.</p> <p>It is no ground for retaining a tax illegally assessed by a school district against an inhabitant who has paid the same, that the sum so received of him was only his due proportion of the amount necessary to discharge the debts of the district, and for payment of which the district might have legally raised a sufficient sum.</p>

<p>The seller of a pair of horses, at the time of the delivery of them to the purchaser, told the latter that he did not part with the property in them, and that they were to remain his (the seller’s) until paid for; but the seller, at the same time, received a mortgage of the horses from the purchaser, to secure the payment of a promissory note from the latter to him; and the horses being afterwards attached as the property of the purchaser, the seller claimed the property in them by virtue of his mortgage: It was held, that the property in the horses passed by the sale to the purchaser,'and revested in the seller by virtue of the mortgage; and that by the acceptance of the mortgage and claiming the property under the same, the seller was estopped to deny the acquisition of title thereby, or to set up and claim under his original title.</p> <p>When the mortgagee of personal property, which is attached for the debt of the mortgagor, demands of the attaching officer payment of the money due him, in pursuance of the Rev. Sts. c. 90, § 79, it is not a sufficient statement of “ a just and true account of the debt or demand for which the property is liable to him,” to set forth, that it is held by the mortgagee to secure the payment of the mortgagor’s note to him for a certain specified sum.</p>

<p>A bill in equity, for the specific performance of a written contract for the conveyance of land in this commonwealth, was inserted in an original writ of attachment, on which the plaintiff caused all the defendant’s real estate in Berkshire to be attached: The defendant was not and never had been an inhabitant of this commonwealth, and, at the time the writ was sued out, and his land attached thereon, was not, nor was any service made on him, personally, within the state, or within the jurisdiction of the court: But, by an order of the court, a copy of the writ, with the bill therein, and of the order, was given to the defendant in the state of Connecticut, where he had been and then was an inhabitant: On demurrer to the bill, it was dismissed for want of jurisdiction.</p>