Volume 58 — Massachusetts Reports

<p>This action was brought by the plaintiff, as the specia. administrator of the estate of Oliver Smith, late of Hatfield, deceased, for the recovery of the dividends on certain shares in the capital stock of the defendants, which had been seized and sold, as the defendants alleged, for taxes, by a collector of Hatfield, before the dividends in question had accrued.</p> <p>On the trial, which was in the court of common pleas, before Wells, C. J., it was in evidence, or admitted, that Oliver Smith died at Hatfield in December, 1845, having made a will by which he appointed the plaintiff executor and trustee; that, the validity of the execution of the will being contested in the probate court, the plaintiff was appointed special administrator in December, 1846; that, the will being subsequently established, the plaintiff was duly appointed executor thereof, in August, 1847; that, previous to his appointment as special administrator, the plaintiff sold a few hundred dollars worth of the personal estate of the testator, such sale being for the benefit of the estate, and sanctioned by those interested, so far as their assent could be obtained; that a tax was assessed by the assessors of Hatfield upon the estate of Oliver Smith, in May, 1846; and that certain shares in the capital stock of the defendants were seized and sold to pay the same in the months of February and March, 1847.</p> <p>The wilt was dated May 34th, 1847; and it was admitted, that the dividends sued for had been regularly demanded by the plaintiff, previously to the commencement of the action.</p> <p>The defendants filed a specification of their defence, which was admitted as a statement of facts, and from which it appeared, that, on or about the 37th of February, 1847, the collector of taxes for the town of Hatfield certified to the defendants’ cashier, that he had seized seventeen shares of their capital stock belonging to the estate of Oliver Smith, deceased, for the payment of a tax in his hands for collection against the personal estate of said deceased, in the hands of Austin Smith, special administrator, and executor and trustee under his will, and amounting to the sum of $1602, being the town and county tax assessed upon said estate, said Austin having refused to pay the same ; that this certificate was made on an attested copy, under the hand of the collector, of the warrant issued to him, on which the shares were seized; that the attested copy so left with the defendants’ cashier purported to be a copy of a legal warrant duly issued by the assessors of the town of Hatfield, for the collection of taxes; that, afterwards, on the 5th of March following, the collector left with the officer of the defendants, whose duty it was to record transfers of shares, an attested copy of the said warrant, and of his return thereon; that from the collector’s return, it appeared, that fourteen of the shares were seized on the warrant, and sold in the manner and subject to the rules prescribed by law for the sale of goods by collectors of taxes in like cases, namely: the said Austin having refused to pay the tax after demand previously made, the collector, on the said 27th of February, gave notice of the sale of the said fourteen shares, by posting up a notification thereof at the store of Josiah Brown, a public place in Hatfield, and on the 5th of March following sold the same at public auction to Nancy Dickinson, she being the highest bidder therefor, for the sum of $119 a share, amounting in the whole to the sum of $1696, leaving an overplus to be returned of $42-86, after payment of the taxes and charges of collection ; and that the said fourteen shares were afterwards, on the 25th of March, transferred to Nancy Dicldnson, the purchaser, and a certificate thereof made to her.</p> <p>The specification of defence also set forth a like seizure and sale of other six shares of the capital stock of the defendants belonging to the estate of Oliver Smith, for the payment of taxes due therefrom.</p> <p>It appeared, that the taxes in question were assessed to “ Austin Smith who is named as executor of an instrument purporting to be the last will and testament of Oliver Smith, late of Hatfield, deceased, for the estate of the said deceased, in the hands and possession of the said Austin Smith.”</p> <p>It appeared, further, that the assessors and collector of the town of Hatfield for the year 1846, were regularly chosen and duly sworn ; that the taxes in question were regularly entered on the tax list against Oliver Smith’s estate; that the warrant of the assessors to the collector, and his returns and doings thereon, were in due form ; and the handwriting of the collector, and his acting as such de facto, were not denied.</p> <p>The dividends sued for were declared in April, 1847, and were paid by the defendants to the purchasers of the shares at the collector’s sale.</p> <p>The presiding judge being of opinion, that upon these facts the plaintiff was entitled to recover, the jury returned a verdict in his favor, and the defendants thereupon alleged exceptions.</p>

<p>This was an action of covenant broken, in which the plaintiff declared, that the defendant, by a certain instrument, made and executed by and between him and the plaintiff,, under their hands and seals, dated the 2d of September, 1846, demised and leased to the plaintiff “certain lands and a shop thereon standing, situate in said Greenwich, then and long before used for the purpose of a pail manufactory, with a water privilege belonging thereto, together with the machinery, tools, implements and apparatus, then in said shop and used for the purpose of manufacturing pails, as aforesaid, to have and to hold the same to the said Erick, from the said 2d of September, to the 1st of April then next following; reserving to himself in and by said instrument the middle room in said shop and the privilege of running a turning lathe and saw in said room; and the said William did, then and there, among other things, covenant with the plaintiff, that he should have the peaceable and quiet possession and use of the estate and property so leased to him, for and during the term aforesaid.” The plaintiff then averred, “ that the said William his covenant aforesaid hath not kept but hath broken, in this: That he the said William has used saws and machinery in the room so reserved to himself, in such a manner as to deprive the plaintiff of the use of the part of the building and shop so leased to him, and in such a manner that he cannot operate the said machinery, tools and implements, in the manner and for the purpose for which they were designed, to wit, for the manufacture of pails; and a large amount of timber which the plaintiff had on hand, at the time of the execution of said instrument, of the value of two hundred dollars, remains unwrought; his said business has been for along time interrupted, to wit, from the said second day of September hitherto ; and by means of which, also, the plaintiff has been prevented from performing his contracts for the delivery of pails, which, at the time aforesaid, he had made and entered into with divers persons, and has suffered great loss thereby; also, has been unable to employ laborers in his said business, whom he had then contracted to employ, and has been obliged to pay money for the breach of such contracts ; has been deprived of great gains and profits which would have accrued to him by the quiet and peaceable use of the premises, so leased to him as aforesaid; and has been otherwise greatly injured and damaged by the unlawful use by the defendant of the room and machinery so by him reserved as aforesaid.” The plaintiff laid his damages at the sum of five hundred dollars. The writ was dated the 27th of December, 1846.</p> <p>At the trial, which was before Byington, J., in the court of common pleas, it appeared, that the plaintiff, on the 2d of September, 1846, being then the owner of certain real estate, comprising an establishment for the manufacture of pails and tubs, by water power, and also, a house and store connected therewith, conveyed the same to the defendant, and, at the same time, made a bill of sale to him of all the tools and machinery contained in the factory, and used in the manufacture of pails ; and that, on the same day, and as a Dart of the same transaction, the defendant made the lease declared on of the house, land, factory and tools and machinery.</p> <p>The following is the material part of the lease: —</p> <p>“ That said Manley, in consideration of the covenants hereinafter contained on behalf of the said Dexter, has demised and leased, and he does hereby demise to the said Dexter, all the real estate I bought of the said Dexter this day, except the middle south room in the shop, reserving to myself the privilege of running a turning lathe and saw in said room. I likewise lease to the said Dexter all the property except the turning lathe, that he gave me a bill of sale of this day. To have and to hold the same to him the said Dexter, until the first day of April next. And the said Dexter agrees, for the use of said property, to paint the window blinds with three coats of paint, and to paint the south end of the house with three coats of paint, and the rest of said house with two coats of paint, the paint being found by said Manley. And the said Dexter agrees, that he will, at his own expense, replace any and all of said goods, which shall be lost or carelessly or accidentally injured during said term. And the said Dexter agrees to warrant and defend all the buildings and tools from fire, that he occupies'or uses, and at the end of said term, he shall give to the said Manley peaceable possession of the premises and personal property mentioned in this lease.”</p> <p>In the latter part of November, 1846, the defendant commenced the business of manufacturing laths in the room reserved to him by the lease, and continued engaged therein until the date of the wilt. The process of making laths requires three separate operations: first, blocking off, which consists in sawing logs of from six to twelve inches in diameter, and eight feet in length, into blocks four feet long; second, planking up, which is effected by sawing these blocks into plank of two inches in thickness; and, third, splitting, which consists in sawing the plank into laths. The second and third operations occupied about half of the time taken lip by the whole.</p> <p>The defendant, for this business, used circular saws, attached by gearing or belts to the water wheel, which earned all the machinery in the shop. He had a separate saw foi each operation; for the first, a cutting off saw of twenty inches in diameter; for the second, a saw for splitting, a little larger than the first, and about twenty-two inches in diameter ; and, for the third, a saw about ten inches in diameter.</p> <p>There was no evidence, that the plaintiff knew that the defendant contemplated engaging in this business ; but there was evidence, that he had been previously engaged therein, at Enfield, and that he took his benches and saws from Enfield to Greenwich.</p> <p>The plaintiff proved, that at or before the time when the defendant commenced making laths, the plaintiff was using that part of the shop, which was leased to him, for the manufacture of pails, with the knowledge of the defendant; that the process of turning pails requires a steady power, but no more power is required in planking up for pails, than is necessary to saw through a block ten inches in length; that while the defendant was engaged in blocking off, the motion of the wheel was rendered so irregular and unsteady, as somewhat to interrupt the plaintiff’s business; and that while the defendant was planking up, the plaintiff could not turn pails at all, and could do nothing with his works.</p> <p>The reason of the interruption was, that it required a strong power to cut through a log, and a still stronger one to saw it lengthwise. And there was evidence, that the gate was hoisted higher for the latter work; that the moment the wheel was liberated from this labor, its speed was greatly increased, until it entered the log again, to cut a new log or plank ; and that sometimes in sawing lengthwise, the plaintiff’s works were stopped altogether before getting through the log.</p> <p>The plaintiff notified the defendant not to use his saw in such a manner; but the defendant insisted that he had a right to do so under the reservation in his lease.</p> <p>It was in evidence, on the part of the plaintiff, that before the sale of the property by him to the defendant, and the lease from the latter to the former, there was a circular saw attached to the blocking off arbor, mentioned in the bill of sale, used for blocking off for pail staves, like the first process before described in making laths. But it appeared, that the saw was taken off in the spring of 1846; that the arbor, pillars, and platform and apparatus, which the defendant used, remained and had been there for two or three years previous; and that no other saw had been used there, in that room, prior to the sale. The saw was set in the arbor at the time of the sale.</p> <p>It appeared, also, in evidence, that saws of different sizes might be attached to such an arbor, and that arbors were sc constructed that the saws used upon them might be changed with facility.</p> <p>The saw was used by the plaintiff, before it was taken off, for sawing pail staves, and this work did not require so much power, or interrupt the turning of pails so much, as the process of planking up in making laths, though it was done by means of a similar arbor. There was no evidence that the defendant knew how the saw had been used, other than would appear from the facts herein stated.</p> <p>In order to prove the damages occasioned by this inter • ruption of his business, and the value of his lease, the plaintiff offered evidence to show the condition and capacity of his works, the number of pails that could be made, the cost of making them, and their price at the shop and in the market. He also called a witness, who had been engaged in the manufacturing of pails for ten years in Athol, a distance of about twenty-five miles from the plaintiff’s works, and who testified to the particular items of the cost of the manufacture, to the price of pails at the shops and in the market, and to the profits of the business. The process of manufacture, and the kind of pails made at the works of the plaintiff and of the witness, were similar. This evidence was objected to by the defendant, but was admitted by the court for the purposes stated.</p> <p>The defendant contended, that the lease contained no covenant for quiet enjoyment; that no breach of such covenant was properly alleged in the declaration that the evidence was not sufficient in law to prove a breach, because the defendant had a right by his reservation to use a saw in the manner used by him; that the use of several saws, successively, only one being used at a time, was not a breach; that if the covenant was broken, the plaintiff could not recover more than at the rate of the rent reserved, which was the painting of the house, of the value of which he offered evidence; and inasmuch as the plaintiff continued to have the use of the dwelling-house and land to the end of the term, he insisted that the damages could be no more than a just proportion of the rent.</p> <p>But the judge instructed the jury, that there were sufficient words in the lease to import a covenant of quiet enjoyment, that a breach of this covenant was sufficiently set forth in the declaration; that the defendant had a right, by his reservation, to use the saw, which had before been used in the. room reserved, to carry on any proper business to which the property so reserved was adapted, or to use a saw of like kind, and requiring the same amount of water power, as the one that had been used there, in a manner proper and usual for carrying on such business; that the defendant had no right to draw water for any purposes of waste, but that water power for one saw, such a one as had been used, if wanted, was reserved; and that the defendant might use the arbor that was in the shop, at the time of the sale, or any other similar arbor.</p> <p>The jury were further instructed, that the defendant had a right to use one saw, and there being no limitation expressed in the lease as to the time he might use it during each day, he had a right to use it, as he had occasion, in his business, during the usual hours of labor through the day; and, as he might use one saw in this manner, he might use different saws successively, at different times of the day, if he did not by so using them draw or use more water power than he did by the use of the saw he reserved the right to use.</p> <p>The plaintiff contended, that it appeared by the evidence, that more power was required and used for planking up, in the second step of the process of making laths, than was required to block off; and that if-this were proved, it would be a breach of the covenant. But the court instructed the jury, that if planking up did require more power, at the same moment, than was reserved by the lease for one saw, at. explained by the court, and the power was so used at the same moment, then such use would be a breach; but if it did not require more power at the same moment, but only required more power, by means of a longer application of the power, in planking up a log of four feet long, than in cutting off one of from six to twelve inches in diameter, such use would not be a breach of the covenant.</p> <p>On the question of damages, the plaintiff contended, that the injury sustained by him, being the amount of profits which he might otherwise have made, was the rule of damages. But the jury were instructed, that neither the rent reserved, nor the amount of profits, was the rule of damages ; that where a lessee was entirely deprived of the use of the property leased, the rule of damages was the value of the lease, or what the property would fairly rent for; that, on this subject, the rent reserved, the amount of the business, and the profits of it, were proper evidence to be considered in estimating the damages ; that there being only a partial disturbance of the plaintiff in the enjoyment of his lease, he was entitled only to a just proportion of the value of the lease, according to the extent of the injury; and that the jury should take into consideration the fact that the property was leased with the restriction expressed.</p> <p>The jury returned a verdict for the plaintiff in the sum of §16-87; and the defendant thereupon alleged exceptions.</p>

<p>The tenant in a real action, brought to recover land levied on in execution of a judgment of the circuit court of the United States, in favor of the demandant against a third person, to which judgment such tenant is not a party or privy, is not concluded thereby from showing by proof that the judgment is erroneous and void for want of jurisdiction of the parties.</p> <p>If a suit is commenced in the circuit court of the United States, in tne name of a citizen of another state, under a general authority or permission or otherwise, upon a cause of action in which the nominal plaintiff has no interest legal or equitable, the court has no jurisdiction of the parties; and if such suit be brought without the nominal plaintiff’s authority or direction, but is afterwards ratified or sanctioned by him; or if after the bringing of the suit, a more formal transfer of the cause of action be made to the plaintiff, and accepted by him; such ratification or transfer will not give the court jurisdiction.</p> <p>Where an action is brought in the circuit court of the United States, in the name of the indorsee or holder of a promissory note payable to order, or of the bearer of a note transferable by delivery, and judgment is rendered therein by default; it is competent for one, not a party or privy to such judgment, against whom it is sought to be enforced, to impeach the same by showing that the note was not actually negotiated to the nominal plaintiff, before the commencement nf the action.</p>

<p>The owner of a large quantity of wood, which was lying in a pile on his own land, having sold a portion of the same, and measured off and marked the part sold, with an agreement that the purchaser might remove it within a year, gave the purchaser a bill of sale of the wood, and received from him his promissory note for the price payable in six months, before the expiration of which time the purchaser became insolvent: It was held, that the vendor might retain the wood so sold against the assignee in insolvency of the purchaser, until the price thereof was paid or tendered to him; and that the right of the vendor in this respect was not varied by the giving of the note for the purchase money, so long as the note remained in the hands of the vendor not negotiated, but ready to be delivered to the promisor or his assignee, on the discharge of the lien; or by the giving up of the bill of sale by the purchaser to the vendor, at his request, after the insolvency of the former; or by a sale of a portion of the wood by the vendor, after the expiration of the year within which it was to be removed by the purchaser.</p>

<p>This was an action of assumpsit, in which the plaintiff declared, first, on a hiring by the defendant of one half of a dwelling-house belonging to the plaintiff, and an agreement by the defendant to pay rent therefor; and, second, for the use and occupation of the same premises for ten months from the 1st of April, 1847.</p> <p>At the trial, which was before Wells, C. J., in the court of common pleas, it was in evidence, on the part of the plaintiff, that the defendant had occupied the premises for the year previous to the said 1st of April, under a written lease, at a rent of $75 a year; that on the 3d of March, 1847, the plaintiff and the defendant agreed, but not in writing, the one to let, the other to take, the premises for another year at the same rent; that the defendant remained in the actual occupation of the premises until the 7th of April, 1847, and did not remove all his furniture until the 19th of May, 1847; and it was not denied, that the defendant’s occupancy was lawfully determined on the 1st of February, 1848.</p> <p>On the part of the defendant, it was in evidence, that some time between the 15th and 23d of March, 1847, he verbally refused to take a lease of the premises, according to the parol agreement, and, at the same time, notified the plaintiff, that he should not occupy the premises under the agreement, on the ground that there was a misunderstanding as to its terms.</p> <p>It was in evidence, also, that the plaintiff, at all times after the 3d of March, 1847, refused to relinquish his claim for rent on the defendant, or to accept from him any surrender of the premises until the 1st of February, 1848.</p> <p>The jury were instructed that if, before the expiration of the written lease, the parties agreed by parol for a lease of the premises for another year, and before the expiration of the written lease, the defendant notified the plaintiff, that he would not carry the agreement into effect, and, after the expiration of the written lease, did not occupy the premises, intending to occupy the same under that agreement, or any other agreement with the plaintiff, the defendant would not be liable for rent, for any longer period than whilst he occupied the premises, either by living on the same, or by having eome of his furniture remaining there; although the jury should be satisfied, that the agreement of the 3d of March was as alleged by the plaintiff, and the plaintiff had always insisted that the defendant was bound by the same, and had so notified the defendant whenever the latter refused to carry the agreement into effect.</p> <p>The jury, under these instructions, returned a verdict for the plaintiff, with damages for the amount due for use and occupation to May 19th, 1847; and the plaintiff thereupon alleged exceptions.,</p>

This was an appeal from a decree of the judge of probate for the county of Hampshire. Chandler Sabin having been appointed administrator of the estate of Arba Arnold, son of the appellant, who died leaving no wife or child, an appeal was seasonably taken from the decree making this appointment, and the necessary steps pursued to promote the same by the appellant.

This was an appeal from a decree of the commissioner of insolvency for the county of Hampshire, refusing to allow a claim presented against the estate of Leonard Campbell, an insolvent debtor, of whom the appellees were the assignees.

The defendant was indicted in the court of common pleas, and there tried before Hopkinson, J., for lewd and lascivious cohabitation with Oliver Davis, Jr., at Prescott, in the county of Hampshire, between the 1st of March, 1848, and the 1st of February following; the defendant being then the wife of Warren Hunt, and not married to Oliver Davis, Jr. At the trial, a copy was introduced in evidence, on behalf of the commonwealth, of a record of a decree of divorce from the bond…

The defendants, James Sloan and Thomas Tilton, were indicted in the court of common pleas, and there tried before Hopkinson, J., for selling spiritous liquors, without license, in contravention of the Rev. Sts. c. 47.

<p>Where two parties enter into a mutual agreement, which is evidenced by a paper signed by each and given to the other, the two instruments are to be taken and construed together as one.</p> <p>An agreement, by an administrator or guardian, to offer the real estate of his in* testate or ward for sale by auction, and to sell the same to a particular individual, for an agreed price, provided no higher sum should be bid, is valid. But such an agreement to sell the estate at a fixed price, without regard to the biddings, is fraudulent and void.</p>

<p>An act of the legislature, by which certain persons were incorporated as an aque duct company, for the purpose of supplying a village with pure water, with authority to take springs, lands and rights, and subject to the payment of damages therefor as provided by law in the case of land taken for highways, is not unconstitutional, on the alleged ground, that it authorizes the taking of private rights of property for a use which is not public; although it contains no express provision requiring the corporation to supply, on reasonable terms, all persons applying for water.</p> <p>If an aqueduct corporation, established for the purpose of supplying a village with pure water, should undertake, capriciously and oppressively, to enhance the value of certain estates by furnishing them with a supply of water, and depreciate that of others by refusing it to them, such conduct would be a plain abuse of their franchise.</p>

<p>Where a railroad corporation, under a general grant of power, lay out and construct their road over and along a public highway, the town, within which such highway is situated, may proceed in equity against the corporation in this court, under its general jurisdiction in matters of nuisance, in order to ascertain whether such laying out and construction is or is not within the power granted to the corporation ; and it is immaterial, in this respect, whether the way in question be a highway, properly so called, or a town way.</p> <p>The fourth section of the act of 1849, c. 222, which gives county commissioners jurisdiction of all questions touching obstructions to highways by railroads, if it does not relate exclusively to the raising or lowering of such ways when crossed by a railroad, which the court did not decide, has no effect to deprive this court of its jurisdiction of a case commenced therein before the passing of the act.</p> <p>Where a town was divided, and a part of it established as a new town, after the commencement of a suit in equity by such town against a railroad corporation, for a nuisance to a public highway, which, upon the division, fell within the limits of the new town, and the act for the division provided that such suit should be assumed, and might be prosecuted to final judgment, by the new town, at their expense and for their benefit, but in the name of the old town; it was held, that the division did not operate to vacate or otherwise affect the suit.</p> <p>An act of the legislature, which authorizes the construction of a railroad between certain termini, without prescribing its precise course and direction, does not prima facie confer power to lay out the road on and along an existing public highway ; but it is competent to the legislature to grant such authority, either by express words, or by necessary implication; and such implication may result either from the language of the act, or from its being shown, by an application of the act to the subject matter, that the railroad cannot, by reasonable intendment, be laid in any other line.</p>

The defendant, being indicted in the court of common pleas for setting up a public exhibition in contravention of the provisions of the Rev. Sts. c. 58, §§ 1 and 2, was tried in that court before Byington, J., and convicted. He then moved in arrest of judgment; and, his motion being overruled, alleged exceptions.

This was a writ of entry, to recover a lot of land in Springfield, tried in this court before Dewey, J., and by him reported for the opinion of the whole court, in substance as follows: — Both parties claimed through several mesne conveyances under Linus Hubbard, who, prior to November 1st, 1830, owned a large tract of land, embracing the lot in controversy. The demandant derived his title through the following conveyances.

This was an action of assumpsit upon a memorandum in writing, signed by the defendant, of which the following is a copy: — “ Cabotville, Nov. 10, 1846.

<p>Trespass lies against an officer for taking goods exempt by law from attachment.</p> <p>In an action against an officer for attaching goods exempt by law from attachment, evidence that the owner had included them in a mortgage, made without consideration, and with the intention of putting his property out of the reach of creditors, is immaterial.</p> <p>Where evidence is rightly rejected, though for an insufficient reason, no excep tion lies.</p>

<p>This was an action brought by Danford Work, in the name of the plaintiff, as the administrator of Festus Work, to recover the amount due on a promissory note for $955, made by the defendant payable to Festus Work or order.</p> <p>At the trial, which was before Metcalf, J., in this court, it was contended on the part of the plaintiff, that the note in question was given to Danford Work in the manner described by Lurancy Work in her deposition. She testified in substance as follows : —</p> <p>“ I am the sister of Festus Work. He died September 18th, 1846, at John Work’s house in Wilbraham. John’s house was his home, and he had generally boarded there; it was the place where his father lived. Festus had been unwell for a number of years before his' death, and not able to do much business; he had worked considerable at times during that time; he did all his own business; before he was sick, he worked hard; he was an economical and prudent man. On or about the 20th day of July, 1846, Festus came to John’s house in the afternoon, and staid a few hours. He took out his pocket book, and said he was going to give his notes away. He took some notes out of his pocket book, and gave them to me; one of these was a note against Samuel Moseley of $955, to be delivered to my brother Danford Work the first time I saw him. He gave me a note against Reuben Lazell for $154, one against Edward Bliss for $125, two against Walter Hitchcock, one for $84, and one for $20, and one against John Lincoln for $70. He told me to take the notes against Hitchcock and Lincoln, and five dollars in money which he gave me, and to pay his debts and expenses, and if there was- any thing left to give it to Danford. He told me to give the notes against Bliss and Lazell to my sister Mrs. Sikes for her youngest boy Festus Eugene Sikes. I do not know of his having any other notes. He then gave me the pocket book, and I put the notes in it and kept them. He told me to give the pocket book to Danford. I put the pocket book away, and had it till I saw Danford. Festus never had the pocket book again. There were some other papers in the pocket book, a receipt or two and a tax bill. I did not consider the papers of any consequence. At the time he gave me the notes, I asked him if he was more unwell than usual. He replied that he should not live long, and desired to have me take the notes and give them to the persons named. He told me to give the notes to Mrs. Sikes the first time I saw her. I did not know before this time that he was more unwell than usual. About the middle of August he called in at John’s house with a new pair of shoes, and staid over three hours. On or about the 20th day of August, 1846, he was brought to the house of John Work, and was then very sick and beyond recovery. He had watchers every night. At the time he was brought home, he said that he did not expect to get well, and spoke of his flesh wasting away on his hands. There was hardly a day after his being brought home but he said he should live but a short time. About the end of August, Mrs. Sikes came to see him, and I gave her the notes against Bliss and Lazell in his presence. He told her to see that she kept the notes for her son. I don’t remember that he said any thing more, then, or at any other time during his sickness, about these or any other notes. He did not sit up any of consequence after he was brought home, but did some for a few minutes at a time. I paid his funeral charges and doctor’s bill and the expenses of his sickness, not more than $30 in all; and a debt of $30 or $35 to Hitchcock. I wrote to Danford when my brother Festus died; he did not come to the funeral; I had an answer in a few days. I wrote to him in a few days again. I wrote to him often. I first saw Danford in July, 1847, and then gave him the note against Moseley.”</p> <p>The note in question Was not delivered to Danford and accepted by him until July, 1847. Letters of administration were granted to the plaintiff on the 6th day of April, 1847, and on the 17th of April he demanded the note of Lurancy Work, it being then in her hands. The administrator, who had discharged the note, and who carried on the defence tc this suit, contended that the note was his property, and filed a motion for the dismissal of this suit. The defendant also insisted, that if the evidence tended to show a gift by the intestate, it was a gift inter vivos, and was not valid unless accepted by Danford Work in the lifetime of the intestate, and that the acceptance in July, 1847, after the appointment of the plaintiff as administrator, was not sufficient to make a valid and legal gift.</p> <p>But the court instructed the jury, that if they believed that Festus Work, being sick and apprehensive that he should not recover, gave into the hands of Lurancy Work the note in suit, with instructions to give it after his death to Danford Work, and if Lurancy kept the note in her hands until after the death of Festus, and gave it to Danford after Festus’s death, and Danford accepted it, the plaintiff was entitled to recover; and that the burden of proof was on the plaintiff to satisfy them that such a gift was made and accepted; or, if they believed that Festus gave the note in suit to Lurancy without any apprehension of death, directing her to give it to Danford when she should see him, and meant to make a gift of it to Danford whether he (Festus) should live or die, and Lurancy gave the note to Danford, and he accepted it, that then the plaintiff was entitled to recover, although the acceptance was not till July, 1847.</p> <p>The jury found a verdict for the plaintiff, and the defendant alleged exceptions.</p>

This was a writ of entry on a mortgage, and was tried before Wells, C. J., in the court of common pleas. It appeared on the trial, that the mortgage declared on belonged to the wife before marriage, and evidence was offered by the defendant tending to show that it had since the marriage been paid to the wife.

This was an action of replevin, and was submitted to the court upon the following facts : — In November, 1846, William E. Clarke, on behalf of Henry G. Cussen, of the firm of Hartley and company, of Rio Janeiro, made a contract with the defendants at Jencksville, in the town of Ludlow and county of Hampden, for certain machinery, namely, fifty looms, two Taunton speeders, and a drawing frame, to be delivered in Boston to the plaintiffs, who were to receive and ship the same…

<p>Where, in an action of trespass against three defendants, in which the defendants pleaded the general issue, one of them severally and the others jointly, the jury returned a verdict that “ the defendant is guilty;” and judgment was rendered thereon against the defendant who pleaded severally, without taking any notice of the others ; it was held, that the defendant against whom the judgment was rendered was alone entitled to reverse the same by error, and that a writ of error in favor of the three was improvidently issued, and must be quashed.</p>

This was a petition addressed to the court under their jurisdiction in matters of insolvency, in which the petitioners prayed for a mandamus to the defendant, as commissioner of insolvency for the county of Hampden.

<p>If the rule of law, that a trustee to sell cannot himself become the purchaser, be applicable to the case of an administrator, who obtains a license to sell the real estate of his intestate, and becomes the purchaser thereof through the agency of a third person (which the court did not decide), such purchase is not void, but voidable only by creditors, or heirs, or other persons interested, while the estate remains in the hands of such administrator; but, if he sell and convey the same to a bona fide purchaser, for a valuable consideration, and without notice, such purchaser will obtain a good title.</p>

<p>This was an action on the case for slander, which was tried before Wells, C. J., in the court of common pleas, and argued in writing in this court, upon exceptions to certain rulings of the court below, by G. Ashmun, for the defendant, and W. G. Bates, for the plaintiff. The questions presented by the bill of exceptions are sufficiently stated in the opinion of the court.</p>

This was an action of trespass quare clausum fregit, brought by Wells Fowler, John Fowler and Charles Fowler, three out of five of the heirs at law of Porter Fowler,- and Luke Bush and Seth Bush, residuary devisees of Asahel Bush; and was submitted to referees, with the agreement “ that the duties of the referees shall be confined to reporting a statement of facts, and that the case shall be presented to the court upon that report as an agreed statement of facts, the court…

<p>This was an action of assumpsit for the loss of a trunk and its contents. The trial was before Wells, C. J., in the court of common pleas.</p> <p>The evidence was conflicting, but tended, among other things, to prove the following state of facts: —</p> <p>The plaintiff, who resides in Vermont, made arrangements for his son, then of the age of nineteen years, to go to Mflwaukie (Wisconsin),there to reside as a clerk. The length of time he was expected to remain was uncertain. Previous to the departure of his son, the plaintiff furnished him with various articles of clothing and some books, &c., and about §60 in money. The son went to New York, and there purchased various other articles of clothing with the money thus furnished to him by the plaintiff. While in New York, circumstances transpired which decided him not to go to Milwaukie, and by direction of the plaintiff, he started on his return home by the way of Springfield, where the defendants resided and kept a public house.</p> <p>The defendants had previously issued a card, of which the following is a copy: “Exchange Hotel, Springfield, Mass. D. D. Winchester & Son. Free carriage to and from the cars.”</p> <p>The son of the plaintiff had stopped at the house of the defendants on his way to New York, and on leaving was presented with one of these cards.</p> <p>The defendants had made arrangements with certain hack-men to take any persons from the cars who were going to then- house as guests, and convey them and their baggage to the defendants’ hotel without any charge to the guests, the defendants paying the haekmen for this service.</p> <p>On the day mentioned in the declaration, the son of the plaintiff arrived in Springfield, from New York, in the cars. He there recognized the hackman employed by the defendants, who had been a porter in their employ, and informed him of his intention to go to the defendants’ hotel, as a guest, and gave him the trank in question to be taken by him to the inn, he himself getting into the hack, and riding to the defendants’ house, where he passed the night.</p> <p>The trunk was put upon the rack of the carriage by the driver, one Howe, but was lost or stolen on the way from the cars to the inn. The trunk was not fastened, nor was any one on the back of the carriage to guard it; but the defendants contended and introduced evidence tending to prove, ■'hat, owing to the peculiar construction of the rack, this mode of conveying the trunk was a safe and proper one. This was controverted by the plaintiff, and the question was submitted to the jury under instructions hereinafter stated.</p> <p>The contents of the trunk consisted mainly of articles of clothing furnished by the father, as before stated, and clothing purchased in New York, with money so furnished by the plaintiff.</p> <p>The defendants contended, that upon this evidence the trunk and clothing must be deemed the property of the son, and therefore that this action could not be maintained.</p> <p>On this point the court ruled and instructed the jury, that if the trunk and its contents consisted of articles furnished by the plaintiff for his minor son, or were purchased by the son with money furnished by the plaintiff, the legal presumption was, that the father only loaned them to the son for use, and the property still remained in him, and that this presumption could only be rebutted by proof, on the part of the defendants, that these articles were an absolute gift from the plaintiff to his son. But if the plaintiff had emancipated his son, then the legal presumption would be, that the articles which were furnished, or were permitted to be retained at the time of emancipation, or were furnished afterwards, were intended as a gift, and would put upon the plaintiff the burden of proving facts which would show that the property in them remained in him.</p> <p>In view of the evidence in this case, the presiding judge instructed the jury, that the plaintiff was entitled to recover, provided they were satisfied that he had proved the following facts : 1st, That he was the owner of the trunk and its contents, regard being had to the instructions hereinbefore stated; 2d, That the defendants were hotel keepers; 3d, That defendants had given public notice, that they would take passengers arriving at Springfield in the cars, and going to their hotel, as guests, with their baggage, and transport them to their hotel free from charge ; 4th, That they had made arrangements with a hackman to receive such passengers and transport them and their baggage to and from them hotel, free of charge to such passengers, and at the charge of the defendants ; 5th, That the plaintiff’s minor son, knowing of this arrangement, and intending to avail himself of it, did notify the hackman thus employed of his intention, and did deliver the trank into the custody of said hackman, to be transported to the hotel of the defendants; 6th, That the trunk was lost or stolen while so in the charge of the hack-man ; and 7th, That this loss was occasioned by the want of due and reasonable care on the part of the hackman, while the trunk was in his charge.</p> <p>The defendants also contended, that the plaintiff could not recover, because the evidence did not show any contract between him and the defendants, or prove any consideration moving from the plaintiff. But the court ruled and instructed the jury, that upon the evidence the son of the plaintiff might ■ be regarded as his agent in making the contract for the transportation of the trunk, and any consideration moving from him would enure to the plaintiff’s benefit.</p> <p>The defendants further contended, that the evidence showed that the defendants were not to pay the hackman, unless he brought the baggage intrusted to his charge tc their hotel; and they requested the court to instruct the jury that if they should find such to be the fact, it would exonerate the defendants from all liability in this action.</p> <p>But the court instructed the jury, that unless this condition were known to the public, and so constructively to the plaintiff, of which there was no evidence, the above fact, if found for the defendants, would not affect them liability.</p> <p>The jury returned a verdict for the plaintiff, and the de> fendants thereupon alleged exceptions.</p>

<p>in all cases of proceedings in insolvency instituted in invitum, St 1844, c. 178, § 9, requires that notice should be given to the debtor before the warrant is issued, and without such notice the proceedings are void.</p> <p>Where a warrant in insolvency is issued against partners, on the petition of a credit- or, without previous notice to them, a formal waiver of notice, filed by one of the partners with the commissioner, does not make the proceedings good as against his copartner.</p>

This was a proceeding by petition under the equitable jurisdiction of the court in matters of insolvency. Held: and an assignee chosen of the joint and separate goods and property of the said Charles and Hollis, which assignee has since accepted the trust; that, on the 6th of the same December, Hollis Thompson, senior, presented a petition to the commissioner of insolvency, setting forth therein that he was then one of the partners in the firm…

<p>This was a writ of entry, wherein the demandant counted upon a mortgage made by one Daniel S. Workman to the Massachusetts Hospital Life Insurance Company, dated April 24th, 1834, to secure the payment of a promissory note for $300; which mortgage had been assigned by the mortgagees to the demandant. The case was tried before Wash burn, J., in the court of common pleas.</p> <p>The tenant pleaded the general issue, and specified in his defence, first, payment; and, second, that the real demand-ant was one Gilbert Green, who was the owner of one half of the premises described in the mortgage deed upon which the demandant’s claim is founded, and derived title thereto with the express understanding that the whole amount of the mortgage was to be paid by him, and no part thereof by the tenant; neither the tenant nor those under whom he claimed ever having received any benefit from the mortgage, the whole of which enured to the grantors of Green.</p> <p>The demandant produced a mortgage deed of the date aforesaid, signed by Daniel S. Workman and Sidney S. Workman, conveying, among other parcels of land, the two lots described in the demandant’s writ, and conditioned for the payment of a note for 0300, signed by Daniel S. Workman alone. The demandant also produced the note; and the assignment of the mortgage and note to him was proved and admitted.</p> <p>In the defence it appeared, that after the date of the mortgage, namely, in 1838, Sidney, being embarrassed, made an assignment of his estate to Daniel, and one Shearer, as trustees for the benefit of his creditors under the statute of 1836, c. 338; that they held the same until 1840, when it having been ascertained that Sidney was not insolvent, the trustees released the estate to him.</p> <p>Sidney’s title to an undivided half of the estate in question had originally been acquired from his father, who conveyed the same to him May 31st, 1830. Sidney and Daniel were tenants in common.</p> <p>After the release to him in 1840, Sidney conveyed his un divided half to the tenant by a deed dated February 14th, 1840, with covenants of warranty, except as to one half of two mortgages upon the premises, other than the mortgage in suit. On the 13th of May, 1843, Daniel having become insolvent, a deed was duly executed to Amos Stewart, his assignee, of all his estate under the insolvent laws. On the 19th of March, 1844, Stewart sold the undivided half of Daniel of the mortgaged premises at auction to Gilbert Green. Before and at the sale it was stated, in the presence and hearing of Green, that the purchaser would be bound to pay half the two other mortgages and all the mortgage that was upon the estate to the Massachusetts Hospital Life Insurance Company.</p> <p>After his purchase, Green paid, for one year, at least, in July, 1844, the interest upon the whole of the mortgage now in suit, and half the interest upon the other two.</p> <p>While Green and Hinsdale, the tenant, owned the estates, a partition of the same was made, whereby each became tenant in severalty of the different parts of the mortgaged premises. After the partition, Cook, the demandant, having become assignee of the mortgage, as before stated, commenced two actions thereon, one against Green to recover the part of the mortgaged premises held by him in severalty, and one against the tenant in this action, which is the present suit, to recover the part held by the tenant in severalty.</p> <p>While both suits were pending, Green paid to Cook the whole amount due up on said mortgage, under an agreement that he should thereby be made the owner of the mortgage. The suit against Green was afterwards stopped, and he paid the costs of the same. The present suit is prosecuted by Green for his own benefit, in the name of Cook, and by his permission.</p> <p>Upon the foregoing facts appearing, the presiding judge instructed the jury, that the tenant was entitled to a verdict, and a verdict was there apon returned accordingly in his favor. The demandant thereupon alleged exceptions.</p> <p>Parol evidence of w'rat was stated before and at the sale, in the presence and hearing of said Green, that the purchaser would be bound to pay half of the two other mortgages, and the whole of the mortgage now in suit, was objected to by the demandant’s counsel, but was admitted by the court.</p>

This was a writ of entry brought in this court to recover a part of a parcel of land in Northfield. Simeon Mallory, one of the tenants, pleaded the general issue, with a specification of non-tenure, and that he claimed only as the servant of Obadiah Mallory, the other tenant, who also pleaded the general issue.

<p>The defendants were severally indicted in the court of common pleas, the first named for a forcible entry and detainer, and the others for an assault and battery upon the officer by whom the process, on a complaint of forcible entry and detainer in the first case, was served.</p> <p>The first indictment alleged, that the defendant, “ with force and arms, and with a strong hand, unlawfully, forcibly and injuriously did enter into a certain messuage and parcel of land, with the appurtenances, of one John Temple, &c., &c., with a dwelling-house thereon standing, then and there being in the peaceable possession of the said John Tempie, and that the said Calvin W. Shattuck, then and there, with force, as aforesaid, and with a strong hand, unlawfully, violently, forcibly and injuriously, did expel, amove and put out the said John Temple from the possession of the said premises with the appurtenances ; and the said John Temple, so as aforesaid expelled, amoved and put out from the possession of the same, with force and arms, and with a strong hand, unlawfully, violently, forcibly and injuriously, has kept out from, &c., and still does keep out, and other wrongs, &c., against the peace, &c., and contrary to the form of the stai ute in such case made and provided.”</p> <p>To this indictment the defendant demurred, and the district attorney joined in demurrer. The court overruled the demurrer, and the defendant thereupon appealed to this court.*</p> <p>The indictment, in the second entitled cause, contained two counts. The first alleged, that the defendants committed an assault and battery upon one Samuel Potter, a deputy sheriff, while in the due and lawful exercise of the duties of his office, and obstructed, hindered and opposed him therein. The second count charged the defendants with committing an assault and battery upon Potter, not described as ar officer, with a flatiron and a billet of wood.</p> <p>On the trial, which was before Bying-ton, J., the district attorney introduced in evidence a warrant issued by a justice of the peace, upon a complaint against the defendants and others, for a forcible entry and detainer of the premises described in the first indictment, which warrant was in the hands of the deputy sheriff Potter for service, at the time of the alleged assault. This evidence was objected to by the defendant, on the ground that the warrant set forth no of-fence, and, therefore, that the officer was not required or authorized to serve it; but the evidence was admitted by the court, and there being also other evidence in the case, the jury were instructed, that if they should be satisfied, that the defendants committed an assault and battery upon Potter, while he was in the act of executing the warrant, according to the precept thereof, as an officer, and the defendants knew it, but nevertheless hindered and obstructed him, the defendants would be guilty of the offence charged.</p> <p>The jury returned a verdict of guilty, and the defendants thereupon alleged exceptions.</p> <p>The cases were argued together.</p>

This was an action of trespass to land, for taking and carrying away portions of a ledge of granite in land alleged to belong to the plaintiff. Whilst pending in the court of common pleas, the action was referred to an arbitrator, who reported a statement of the facts, reserving the questions of law arising thereon, at the request of the parties, for the consideration of the court, and made his award accordingly.

This was an appeal by the respondents from a judgment of the court of common pleas, accepting the verdict of a sheriff’s jury, on an application of the petitioner to the county commissioners, for a revision of their estimate of the damages occasioned by the laying out and construction of the respondents’ railroad over his land.

<p>This was a complaint against the respondents for flowing land, which came to this court by appeal from the court of common pleas, where it was submitted upon an agreed statement of facts.</p> <p>The complainant is the owner of the land described in his complaint, and the same is flowed, as therein alleged, by the respondents’ dam.</p> <p>In 1823, the legislature of this commonwealth passed aa act (Si. 1822, c. 27) incorporating the Blackstone Canal company, without limitation of duration, for the purpose of constructing a canal from Worcester to the line of the state of Rhode Island; and, in the same year, the general assembly of Rhode Island passed an act incorporating the Blackstone Canal company, in that state, for the purpose of constructing a canal from Providence to connect with the canal authorized by the state of Massachusetts. These two canal companies, though never amalgamated, were associated in the manner mentioned in their respective charters, and in sundry acts subsequently passed in addition thereto; and canals were constructed accordingly, which were connected together at the boundary of the two states, and formed one continuous line of canal from Worcester in this state to Providence in Rhode Island.</p> <p>The second section of the act above mentioned, to incorporate the Blackstone Canal company, in this state, authorized the corporation thereby established to locate, construct, and fully complete a navigable canal, with locks, tow paths, basins, wharves, dams, embankments, toll-houses, and other necessary appendages, commencing in or near the village of Worcester, and from thence down the valley of the Blackstone river, in a direction toward tide water, in such place or places, as might be deemed most convenient for said company, to the boundary line between the states of Massachusetts and Rhode Island; with further power to employ and use, as reservoirs for the purpose of supplying with water the canal, or such works as might have any portion of their waters diverted from them to supply the canal, North pond, Quinsigamond or Long pond, and Dorety pond, with such other ponds as lie upon or near the route, and also to save the flood and other waters in said ponds, and to construct artificial reservoirs for the purposes aforesaid; and to connect with the canal, by feeders, or by navigable canals, any or all such ponds and reservoirs ; provided, however, that all damages, which might be occasioned to any person or persons, by any of said canals, reservoirs, or feeders, in the construction thereof, snould be satisfied by the corporation, in the man ner provided in the act</p> <p>The fourth section authorized the corporation to purchase and hold real estate, not exceeding the value of three hundred thousand dollars, and to erect mills and other works on the waters connected with the canal, feeders, and reservoirs.</p> <p>The eighth section provided, that when the canal company should have located their canal or any part thereof, they should report the same to the court of sessions, by whom commissioners should thereupon be appointed to estimate all damages which any person or persons, whose lands should be described and mentioned in such report, might sustain. And the commissioners were required to give public and seasonable notice, in such manner as the court should direct, to all persons interested, to file their claims, either with some one of the commissioners, or with the clerk of the courts for the county of Worcester, within thirty days from the date of the notice. At the end of the term allowed for filing claims for damages, the commissioners, having previously given notice, in the manner provided in the act, to all parties interested, of the time, and of the extent of the route to be examined, were to pass over the premises, and, after hearing the parties in interest, to estimate all such damages as they should think any person would sustain by the opening of the canal, or any of its branches or feeders, through the land of such person, or by the construction of any reservoirs, embankments, tow paths, basins, wharves, or any other appendages, over and above the advantages accruing from the opening of the canal. If any person should be dissatisfied with the estimate of the commissioners, he might have his claim for damages revised and assessed by a jury, in the manner provided by law, in the case of a complaint for damages occasioned by the laying out of a highway.</p> <p>By a statute subsequently passed (St, 1825, c. 144) in addition to 'the former act, it was provided, that the commissioners, appointed under the eighth section of that act, should be authorized to appraise all damages accruing from the flowing of land by the canal company, for their use, and also damages occasioned by the detention or diversion of anvwater from persons having a legal right to the same.</p> <p>In 1825, after the canal company had been incorporated, but before they had located their canal, David Wilkinson and company, who were then the owners of real estate on the bank of the Blackstone river, erected a mill thereon, together with the dam in question, which was built across the river, and the pond raised by which, known as Pleasant Falls pond, occupied and was a part of the bed of the river. The respondents subsequently became the purchasers from Wilkinson and company, and are now the owners of the mill erected by them, and of the mill privilege and dam connected therewith.</p> <p>In 1828, the canal company located and established the. dam erected as above mentioned by Wilkinson and company, and the pond thereby raised, as a reservoir, and made use of the pond, by the side of which they had formed a tow path, for a mile or more, as a part of the canal, and reported these locations to the court of sessions, as they were required to do by their act of incorporation.</p> <p>In the same year, the complainant, not having before claimed, either against the respondents or their predecessors, or been paid, any damages for the flowing of his land occasioned by the respondents’ dam, prosecuted his claim for the damages done or to be done him by the canal company, in consequence of their having flowed his land, by means of the respondents’. dam and pond, before commissioners appointed for the purpose, in the manner provided by the statute, who reported, that the land around the respondents’ pond, which was and would be “ permanently overflowed," by keeping up the dam to its then present height, was owned in severalty, among others, by the complainant, to whom they awarded the sum of $225 “for his permanent damages,” and $13-50 for damages in 1827, making in the whole $238-50 to be paid by the canal company. On an appeal from the award of the commissioners, the jury, on the hearing before them, estimated the damages which the complainant had sustained, or should sustain, by locating the respondents’ pond as a reservoir for the use of the canal, including all flowing, which was to be perpetual, at the sum of §480 ; and this amount was duly paid by the canal company.</p> <p>The canal company continued to use the rights, privileges and easements thus acquired, until the year 1846; and the respondents have continued to exercise the right to draw and use the water of the pond for their mill, subject to the rights and easements of the.canal company, to the present time.</p> <p>In the year 1844, the legislature of Massachusetts passed an act (Si. 1844, c. 166) in addition to their act of incorporation, authorizing the canal company to make sale of the whole or of any portion of their property.</p> <p>By the first section of this act, the canal company were authorized, in order to facilitate the construction of a railroad between Worcester and Providence, as a substitute for the canal, to make sale of their entire property, or any part or portion thereof, and to convey the same to any purchaser or purchasers; which conveyance should vest a good and sufficient title to such property, “though a change of the use to other public purposes” might follow such sale.</p> <p>The second section declared, that such sale of the canal, or any part or portion of the works thereof, should not work a forfeiture of any of the vested rights of the company to the dams located to maintain a head of water, but that the right to maintain the same should continue in the company, and their assigns, the same as before, though the canal might be discontinued as a navigable highway.</p> <p>The third section provided, that the dams which had been either erected or raised by the canal company in the bed of the Blackstone river, might be maintained by the several mill owners, who had an interest in the works on said dams, at the same height to which they had been raised by the company, and for the exclusive benefit of such mill owners, their heirs or assigns; that the land over which the canal had been located should not be sold and conveyed for any other than railroad purposes; and that such land as should not be sold for railroad purposes should revert to the original owners thereof, divested of the easement of the canal company.</p> <p>In pursuance of the authority conferred by this act, the canal company passed a vote to sell and convey certain portions of their property; and, on the 4th of February, 1846, made a'conveyance accordingly to the Providence and Worcester Railroad company, for their use and benefit as a railroad company, and for railroad purposes, of so much of the grantors’ right, title, interest and property in that part of the canal which was within the state of Massachusetts, comprising the entire body, tract, bed and bottom, or right of way thereof, with the tow paths, locks, lock-houses and other fixtures, as the railroad company, the grantees, should actually appropriate and use in the construction of their road, or for railroad purposes.</p> <p>The deed provided, that so much of the canal as should not be used and appropriated in the construction of the railroad, or for railroad purposes, should remain the property of the grantors, except so far as the same might revert to the original owners of the land by operation of law; the reservoirs owned by the grantors in Massachusetts, with the land and dams belonging thereto, the waters contained therein, the dams erected or raised on the Blackstone river by the grantors, and the waters in the river retained by such dams, were expressly reserved by the grantors to themselves, without being affected in any way by the conveyance; and the deed further provided that the rights and privileges, which any person or persons had acquired or then possessed, to draw or conduct water through the canal in Massachusetts, for mill purposes, irrigation, or otherwise, should not be injured or affected by the conveyance; but that such rights and privileges should be and remain uninjured, and in full force.</p> <p>The Blackstone canal in Rhode Island has never been discontinued, but is used occasionally as and for a canal.</p> <p>The respondents’ pond, with the tow path by the side of it, is in the same condition in which it has always been, and boats may still be towed upon it for the distance of a mile or more ; but the same has never been used as a canal, since the date of the deed to the Providence and Worcester Rail- ' oad company; and the canal, for the greater part of the way above and below the respondents’ pond, so far as the same is in this state, has been filled up by the railroad company, or by the original owners of the land.</p> <p>There are several other portions of the line of the canal in Massachusetts, where dams and feeders constituted the level of the canal, through which boats can still be towed; though the same have never been used for the purpose of navigation, by the canal company, since the year 1846; but without the respondents’ pond and others in Massachusetts, the canal in Rhode Island could not be used at all seasons of the year.</p> <p>The canal company have made no other conveyance of their property or rights than as above mentioned. No forfeiture of their charter has ever been judicially ascertained oi declared; nor has the same been repealed; nor have the; surrendered their franchise. They have never given the re spondents any notice, that they were at liberty to take down their dam, if they should think proper to do so; but the canal company still claim to be the owners of all the property not conveyed by them to the railroad corporation.</p> <p>It was further agreed, that the respondents and those under whom they claim had acquired no right to flow the complainant’s land, without paying damages therefor, unless such a right resulted from the location of the canal, and the assessment and payment of damages therefor under the act incorporating the canal company; that, since the conveyance to the railroad company, the respondents had and the canal company had not repaired the respondents’ dam; and that the canal had become nearly worthless, and not of much public benefit.</p> <p>The case was argued at the October term, 1848.</p>

This action, which was assumpsit for the support of certain paupers named in the writ, was submitted to the court upon an agreed statement of facts. The pauper, Perley Clark, in April, 1842, purchased and took possession of an estate in Oakham, which was then subject to a mortgage from a former owner to Isaac South-gate, to secure the payment of the sum of $600.

This was an action of dower, which the parties agreed to submit to the court, upon the following statement of facts:-— Seth Pratt, the husband of the demandant, died October 8th, 1847, leaving a will in which he devised his estate to his wife in these terms: “Firstly.

This action was brought on a promissory note, of which the following is a copy: — “ Oxford, May 13th, 1838. For value received, I promise to pay Andrew Sigourney, or bearer, thirty-two dollars in thirty days, and interest till paid. Willard Severy. Attest, Benj.

<p>Where a forfeiture of land is claimed by the grantor for breach of a condition sub sequent, in the performance of which he has no interest, having parted with the estate for the accommodation of which it is created, the terms of the condition are to be construed with great strictness.</p> <p>The owner of a lot of land made a deed of a small parcel thereof, with a house thereon, reserving to himself the privilege of a bridle road in front of the house, and not to be at any expense in supporting a fence around the land conveyed, and whenever the grantee, his heirs or assigns should neglect or refuse to support the fence, then the deed to be void; and subsequently conveyed the residue to one who removed the fence without replacing it and reconveyed such residue tc the grantor, who afterwards entered upon the small parcel claiming a forfeiture thereof for breach of the condition: It was held, that the condition, if not merely personal, being designed to benefit the grantor, as owner of the residue of ¿he lot, attached to such residue, and passed to the grantee thereof, whose removal of the fence was an extinguishment or waiver of the condition; which, being thus determined, could not be revived by the reconveyance. And the reconveyance having been in mortgage, it was held, further, that it was immaterial in this respect, whether the removal of the fence took place before or after the execution of the mortgage. It was held, also, that until reasonable notice given, or request made, and neglect or refusal of the grantee, to replace the fence, there was no neglect or refusal to support the fence, within the terms of the condition.</p>

This was an action of assumpsit for the support of Benjamin B. Pettis, a pauper, whose settlement was alleged to be in the town of Rehoboth. The trial was before Hopkinson, J., in the court of common pleas.

This action, which was tried before Hopkinson, J., in the court of common plea*- was brought to recover the sum of $42-68, for the support of Lemuel Sanders and his family, as paupers, having their legal settlement in the town of Winchendon.

This was an action of trespass, for breaking and entering the plaintiff’s close, and taking and carrying away a yoke of oxen, the property of the plaintiff. The defendant specified in defence that he was the owner of the oxen, and had a right to enter the plaintiff’s premises and take them. The case was tried before Hopkinson, J., in the court of common pleas.

This was an action of trover for a mare, and was tried before Hopkinson, J., in the court of common pleas. The defence specified was a seizure by an officer, and a sale on execution against the plaintiff.

<p>In an action against a town, by one of the inhabitants thereof, to recover for the support of a pauper from April 5th, 1846, to April 5th, 1847, it appeared, that the pauper had been previously kept by the plaintiff, under a contract with the town, which had terminated on the 5th of April, 1846; that on the 28th of March, 1846, the overseers of the poor of the town, of whom the plaintiff was one, made an arrangement for the support of the pauper with another person, who, on the said 6th of April, accompanied by two .of the overseers appointed a committee for the purpose, went to the plaintiff’s house, where the pauper then was, in order tfl remove him to his own house; that, in consequence of some negotiation between the plaintiff and such other person, relative to the support of the pauper, buv which did not terminate in a contract, the pauper was suffered to remain in the plaintiff’s house, and was supported there by him; it was held, that in order to entitle the plaintiff to recover, it was necessary that he should have given the notice required by statute (Rev. Sts. c. 46, § 18), and that it was* not enough that the overseers had reasonable notice, by their having heard that the pauper had not been removed from the plaintiff’s, but had remained with and been supported by him.</p>

<p>The owner of an estate insured by a mutual fire insurance company mortgaged the estate, and, at the same time, with the assent of the insurers, transferred the policy of insurance to the mortgagee by an assignment, which was absolute in terms and expressed to be for a valuable consideration, but intended only as a security for the mortgage debt; and the mortgagee afterwards assigned the mortgage, and the debt thereby secured, together with the policy of insurance, by an absolute assignment, assented to by the insurers, and for a valuable consideration, paid by the assignee. The debt secured by the mortgage having been subsequently paid in full to the assignee, by an assignee of the mortgagor, and the mortgage thereupon discharged; and the assignee of the mortgagee, after the expiration of the policy, having received the return premium thereon; it was held, that although such assignee might receive the same as attorney of the mortgagor, he could not retain it against the mortgagor, to whom he was liable therefor in an action of assumpsit.</p>

This action was brought to recover the amount of an account annexed to the writ., consisting wholly of items of debt, the last of which bore date February 1st, 1839. The writ bore date the 15th of February, 1S47. The case was tried in this court before Shaw, C. J., by whom it was reserved and reported for the consideration of the whole court. The defendant specified in defence and relied on the statute of limitations as a bar. He also relied on a discharge in insolvency.

This was an action of covenant broken, in which the plaintiff alleged a breach of the covenants of seizin and of right to convey, contained in a deed of conveyance of certain land in the state of New York.

<p>Where an order, not negotiable, drawn by a debtor, without consideration, in favor of his minor daughter, for money to become payable to him from a third party, and accepted by the latter, is afterwards indorsed by the daughter, at the father’s request and for good consideration received by him, but without the knowledge of the third party, to another person, these facts constitute no such assignment, as will enable him to hold the money against other creditors of the debtor.</p>

<p>An action for maliciously prosecuting the plaintiff by indictment cannot be maintained, unless it be alleged in the declaration and proved, that the plaintiff has been fully acquitted of the charge in the indictment; and a discharge therefrom by the entry of a nolle prosequi is not sufficient; but the plaintiff is not bound to prove that he was acquitted by the jury promptly, without, hesitation, delay, or deliberation.</p> <p>In an action for malicious prosecution, the judgment of the magistrate, by whom the plaintiff was bound over for trial, on a complaint which the magistrate had no jurisdiction to try, if admissible at all as evidence of probable cause, is prima facie evidence only, and not conclusive.</p> <p>The judgment of the magistrate, by whom the plaintiff in an action for malicious prosecution has been bound over, to answer to a criminal charge, if relied upon as evidence of probable cause, cannot be controlled or impeached by evidence that he acted unfairly and improperly in the examination.</p> <p>In an action for a malicious prosecution of the plaintiff before a magistrate, it is not incumbent upon him, in proof of want of probable cause, to give in evidence all the evidence introduced before the magistrate, in order that the court may determine whether there was or was not probable cause.</p> <p>If, in an action for a malicious prosecution, in instituting proceedings before a magistrate, against the plaintiff, on a criminal charge, upon which the plaintiff was bound over and subsequently indicted, it appear that the indictment has been withdrawn by a nolle prosequi, on account of a formal defect therein, and that a second indictment has been returned, upon the same evidence, for the same or a • substantive part of the same charge, the original complaint and the proceedings thereon must be considered as the actual cause of the second indictment.</p> <p>Probable cause lor instituting a prosecution is such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe, or entertain an honest and strong suspicion, that the person accused is guilty.</p> <p>The defendant, in an action for a malicious prosecution, may prove by the magistrate, before whom the prosecution was instituted, what the testimony before him was on the part of the government, in order to show probable cause and rebut the allegation of malice; and it is not necessary, for this purpose, that the witnesses by whom the testimony was given, or their depositions, should be produced; but, it produced, and the witnesses or deponents are unable to recollect what their testimony was, it may nevertheless be proved by the magistrate. So, for the same purpose, the defendant may prove, that a certain person communicated to another, with a request that the latter would make it known to the defendant, the fact that the former saw the plaintiff do the criminal act of which he was accused, and that this information was communicated to the defendant, before the complaint against the plaintiff was made.</p> <p>Lt seems, that in an action for-malicious prosecution, evidence of the general bad reputation of the plaintiff is admissible, to rebut the proof of want of probable cause, and also in mitigation of damages.</p> <p>Since the abolition of special pleading, the defendant in an action for malicious prosecution may give evidence of facts tending to prove the plaintiff guilty of the criminal charge imputed to him, both in proof of probable cause, and in mitigation of damages; although he is not prepared with evidence to show, that these facts were known to him at the time of the complaint against the plaintiff.</p> <p>Where, in the trial of an action for the malicious prosecution of the plaintiff, on a charge of burning his own building, for the purpose of defrauding the insurers thereon, the judge instructed the jury, in reference to the question of probable cause, that the evidence tended to prove three propositions, namely: 1. An intent or motive in the plaintiff to commit the crime; 2. Guilty conduct, or acts, or knowledge of the plaintiff; 3. That the fire was the act of an incendiary; and that any two of these propositions, if proved, would constitute probable cause, but that neither alone would be sufficient: It was held, that this direction was not correct in matter of law; but that the evidence to prove the prominent facts should have been distinctly laid before the jury, with specific instructions as to what leading facts, or classes of facts, in evidence, if proved, would or would not constitute reasonable or probable cause, leaving the facts and the inferences to be drawn from them to be found by the jury.</p>

This was an action on the case to recover damages for an injury sustained by the plaintiff on the 22d of May, 1848, by reason of an alleged defect in a highway in the town of Millbury. At the trial, which was before Shaw, C. J., it appeared that the injury to the plaintiff occurred on Monday the 22d of May, 1848, at about nine o’clock in the forenoon.

The plaintiff, as the assignee in insolvency of Nathaniel G. King, brought an action of debt against the defendants, Asa Woodbury and eight others, upon a judgment recovered at the September term of the court of common pleas in the year 1839. This judgment was rendered upon the award of arbitrators, on a petition filed against the defendants, as mill owners, for flowing the land of King, the insolvent.

In this case, which was argued in this court by C. Allen, for the defendants, and W. A. Bryant, for the plaintiffs, on exceptions to the ruling of Hopkihson, J., before whom it was tried in the court of common pleas, the facts appear in the opinion of the court.

This was an action of assumpsit brought originally before a justice of the peace, to recover of the defendants the sum of $8-57 assessed upon the plaintiff, and paid by him upon a compulsory process. Held: among other things, to see if the town would set off from school district number one all the estates therein lying east of the houses of certain individuals named, and form a new school district.

This was an action of assumpsit, on the money counts only, and was brought to recover the sum of $8, which the plaintiff alleged had been paid to the defendant by a debtor of the plaintiff, with an agreement that the defendant should pay the same in behalf of such debtor to the plaintiff.

<p>This was an appeal from a decree of the judge of probate, disallowing the petition of the appellant for an assignment of dower in a tract of land in Worcester, of which the petitioner alleged that her husband, Patrick Henry, died seized, and in which she was entitled to dower.</p> <p>The decree appealed from was as follows: “ On hearing the petition aforesaid, it appeared that the tract of land therein set forth was conveyed in fee and in mortgage by the said Patrick Henry, during his coverture with the petitioner, she joining her husband in the mortgage deed and relinquishing her dower therein; that the mortgage debt is still due and unpaid and the mortgage in full force; that the administrator upon the estate of said Patrick Henry is the mortgagee, and made no objection to the assignment of dower in the whole estate, the residue being of sufficient value to pay the mortgage debt; neither did any person object as heir or devisee ; upon the facts aforesaid, I decline assigning dower in said tract of land, and decree that the petition be dismissed.” The appellant assigned as reasons of appeal: “ 1st. Because the facts stated in said decree do not furnish a legal reason why the judge should refuse to exercise jurisdiction over the subject matter of said petition, and ought not to prevent the said Margaret from having her dower assigned pursuant to her said petition; 2d. Because the judge decreed, that her said petition be dismissed; whereas he ought to have decreed, that the prayer thereof be granted, and that her dower should be assigned accordingly.”</p>

This was a writ of entry upon a mortgage, to recover seizin and possession of several tracts of land situated in Blackstone, formerly Mendon, in this county, and was tried before Hopkinson, J., in the court of common pleas. The mortgage on which the suit was founded was given by Henry S. Mansfield to Richmond Bullock, bearing date June 29th, 1844, and assigned by the mortgagee to the plaintiff on the 14th of August, 1847.

. In these cases, in which the only question was, whether the supposed trustees, Patrick O’Keefe, John Healey and John T. Cahill, were chargeable as such, it appeared, from their answers, which were stated by one of them for himself and the others, that having entered into a contract to build and grade the South Shore railroad, they let out the building and grading of one section thereof to the defendants, to be done by them in the most substantial and workmanlike manner,…

This was a petition for leave, to enter an appeal from a decree of the commissioner of insolvency for this county at the present term of the court.

This was an action on the case for a libel by the female defendant upon the female plaintiff, and was tried before Wells, C. J., in the court of common pleas.

<p>A town, which has been compelled to pay damages for an injury from a defect in a highway, occasioned by a nuisance placed therein by an individual, may recover of the latter the damages so paid, to the amount of single damages only, in an action on the case.</p>

This was an action on the case to recover of the defendant the sum of $>2800, paid by the plaintiffs for an injury caused by a defect in a public highway, which was occasioned, as the plaintiffs alleged, by the negligence of the defendant.

This was an action of trespass originally brought in the justice’s court of the city of Lowell, for chasing, beating and wounding a cow and heifer, the property of the plaintiff.

<p>Where an action of trespass de bonis asportatis was brought in the name of the elder and deacons of a church, and it appeared, upon the report of an arbitrator to whom the action was referred, that the property, in respect of which it was brought, had been purchased with funds belonging to the church, and in the name of the church, or had been given or otherwise granted to the church, and that the elder had not been joined or named in any deed or grant relating thereto; it was held, that the deacons alone constituted the corporation with respect to such property (Rev. Sts. c. 20, §§ 39, 40), in whose name the action should have been brought, and that the writ might be amended in this court, by striking out the words “ elder and”, under the several statute provisions authorizing amendments.</p>

This was an action of debt on a contract under seal, tried before the chief justice of this court, and by him reported for the consideration of the whole court. In order to prove the execution and delivery of the instrument declared on, which purported to be one part of an indenture of two parts, between the plaintiffs and the defendants, the plaintiffs called Baldwin Locke and Charles Whitney, Jr., two of the subscribing witnesses.

<p>The statute of 1840, o. 8b, making the proprietors of railroads responsible for injuries by fire communicated from their locomotive engines, applies to railroads established before as well as since its passage; and extends as well to estates, a part of which is conveyed by the owner, as to those of which a part is taken by authority of law, for the purposes of a railroad.</p>

<p>This was an appeal from a judgment of the court of common pleas, accepting the verdict of a jury, summoned at the request of the petitioner, to revise the damages awarded to him by the county commissioners, by reason of the taking of his land in Watertown, in this county, by the respondents, for the construction of a branch railroad to that town.</p> <p>The questions submitted to the court arose upon the proceedings at the trial before the jury, and are thus stated in the report thereof by Seth Ames, esquire, the presiding officer.</p> <p>Before proceeding with the trial, (the jurors summoned being in attendance at the time and place appointed,) it was moved by the respondents that the jurors should not be empannelled for the following reasons: —</p> <p>1st. Because none of the jurors were drawn, summoned or returned from the town of Watertown, in which the lands alleged to have been injured by the laying out of the railroad of the respondents are situated; the town of Water-town having no interest in the question to be tried by the jury.</p> <p>2d. Because certain of the jurors, namely, those from the city of Cambridge, and from the town of Brighton, were summoned by constables of said city and town, respectively, and not by the deputy sheriff who executed the warrant.</p> <p>3d. Because certain of the jurors, namely, those from the town of West Cambridge, were summoned by the deputy sheriff who executed the warrant, and others of them by constables of Cambridge and Brighton.</p> <p>This motion was overruled, and the respondents excepted.</p> <p>4th. The jury were thereupon empannelled and sworn, and the trial proceeded; and it being made to appear, that the lands described in the petition had been mortgaged as collateral security for a debt to Luke Forbes and Samuel Stickney, and that neither of the mortgagees had been summoned in to become a party, and there being no evidence that the mortgage had been paid or released, the respondents objected to any further proceeding by the jury, to estimate the damages alleged to have been sustained in the real estate described in the petition. But as the petitioner produced and filed in the case a written paper signed by the mortgagees,* whereby they consented to the assessment and award of damages to the petitioner, and waived all objection to the proceedings in his behalf, the presiding officer overruled the objection, to which the respondents excepted.</p> <p>5th. The respondents then proved, that the petitioner, at the time of the laying out of the railroad, and ever since, was the owner of certain other lands and buildings in Watertown, near but not adjoining the lands described in the petition; they then offered evidence for the purpose of showing, that since the laying out and construction of the raihoad, and in consequence thereof, the lands and buildings of the petitioner, other than the lands described in the petition, and separate therefrom, as aforesaid, had increased in value to the petitioner. But the evidence so offered being objected to, the presiding officer decided that it was inadmissible ; and to this decision the respondents excepted.</p> <p>6th. Being requested by the parties to direct the jury, as to the rules of law by which they were to be governed, in estimating the petitioner’s damages, after receiving the testimony on both sides, the presiding officer instructed the jury, (among other things,) that if they were satisfied that the laying out and construction of the respondents’ railroad had created or occasioned any benefit or advantage to the lands of the petitioner, described in his petition or immediately adjoining or connected therewith, rendering the part not actually occupied-by the respondents more convenient or useful to the petitioner, or giving it some peculiar increase of value in the market, as compared with other lands generally in the vicinity, it would be their duty to allow for such benefit or increase of value by way of set-off, in favor of the respondents; but that, on the other hand, if the construction of the respondents’ railroad, by increasing the convenience of Watertown generally as a place of residence, and by its anticipated and probable effect or influence in increasing the population, business and general prosperity of the place, had been the occasion of an increase in the saleable value of real estate generally near their depot, including the petitioner’s said lands, and thereby occasioning a benefit or advantage to him in common with other real estate owners in the vicinity, this benefit would be too contingent, indirect and remote, to be brought into consideration in this question of damages to a particular parcel of land. To these instructions the respondents excepted.</p> <p>7th. The presiding officer also instructed the jury, that for the purposes of this trial, the land might be considered as taken by the respondents, when their track was actually staked out, and its precise location thereby indicated; that any benefit to the petitioner’s property, in order to be allowed to the respondents, by way of set-off, must be some increase upon the value which it had at the time of such taking, and not at any previous time ; and that no allowance was to be made for any effect produced by the general expectation that there was to be such a railroad, or by the passage of its charter. And to this instruction also the respondents excepted.</p>

This was an action on the case to recover damages for an injury sustained by the plaintiff, and alleged to be occasioned by a defect in a highway, which the defendants were bound to keep in repair. The case was tried before Dewey, J., by whom it was reported for the consideration of the whole court.

<p>It is the duty of an officer, in the execution of a writ of habere facias possessionem, to deliver actual and quiet possession of the premises to the party in whose favor the writ is issued; and, for this purpose, to remove from the possession, (using no more force than is necessary,) all persons therein, especially if they claim under the party against whom the judgment is rendered.</p> <p>An officer, in the execution of a writ of habere facias possessionem of a house, may enter the same by breaking a door which is fastened, without making a previous demand of admission, although there are persons then in the house; provided they are there for the purpose of holding possession by force, and of opposing the officer in the execution of his precept, and it does not appear, that he knew, or had any cause to suppose, that any person was in the house.</p> <p>Where an officer, in the execution of a writ of habere facias possessionem of an undivided part of a house, entered into the same, and, by the direction of the owners of the other parts, who were also the assignees of the judgment upon which the writ issued, forcibly removed from the house a person entering without right after the entry of the officer; it was held, that the officer was justified, both by the order of such owners, and by the authority of his writ.</p>

This was an action on the case for an injury sustained by the plaintiff in being thrown from his wagon, in consequence of its being driven against a post standing in the highway in Lexington, while the plaintiff was travelling along the same, in the evening.

<p>A husband, whose wife has been injured by reason of a defect in a highway, cannot maintain an action against the town, obliged by law to repair the same, to recovei for medical and other expenses incurred, or for loss of his wife’s services, in con sequence of such injury.</p>

<p>This action, which was originally commenced before a justice of the peace, came to this court by appeal from the court of common pleas, upon the answers of the supposed trustee, who disclosed as follows: —</p> <p>“ He had been in treaty with the defendant for a cow to be purchased if approved. No bargain had been completed, and before the time of trying the cow had expired, and before the service of the plaintiff’s writ, he had notified the defendant that he should not purchase the cow, and had delivered her to him, but the defendant left her in his possession, where she was at the time of the service of- the plaintiff’s writ.”</p> <p>In the court of common pleas, the supposed trustee offered to prove, in addition to the facts stated or denied in his answer, that the cow in question was the only one belonging to the defendant, at the time of the service of the process; and that he had offered to prove this fact at the trial before the justice, but that upon an intimation from him that the fact, if proved, would not vary his decision, the trustee waived proving the-same.</p>

This was an action of debt on an award brought by the plaintiff, as the assignee of James H. Norcross, an insolvent debtor, to recover the amount due by the award to the estate of the insolvent. The defendant pleaded the general issue, and specified in defence the illegality of the award, by reason of irregular and improper conduct of the arbitrators in making the same.

In this action, which was brought to recover the value of a horse let by the plaintiff to the defendants, the declaration contained two counts, the first in trover for a conversion, and the second in case for the destruction of the horse by immoderate driving. The trial was before Wells, ,C. J-, in the court of common pleas.

<p>The proprietors of certain real estate in the city of L. laid out and constructed a street through the same, in the manner in which roads are usually built, with a carriage way in the centre, of the ordinary width, after which the street was and continued to be used by the public, without obstruction or objection: They after-wards conveyed a portion of the land, including a part of that over which the street was laid out, to the defendants, with a provision in the deed, that the street should be forever maintained as a road, for the common use of the parties to the conveyance, their successors and assigns, the grantees severally keeping in repair those parts which passed over their respective estates: The proprietors subsequently conveyed to the plaintiff a lot of land bounding on the street and so described, with all the privileges and appurtenances thereto belonging; and then sold at auction all their remaining lands on said street, together with other lands, declaring in the printed conditions of sale, that all the streets mentioned therein (including the street in question) should be reserved and kept open, for the benefit of the abuttors; but that any of them which were not graded might be altered or discontinued, with the consent of the abuttors thereon: And the city after-wards laid out that part of the street on which the plaintiff’s lot was bounded as a public highway: It was held, that no intention on the part of the proprietors, to dedicate the street in question to public use, could be inferred from these facts, and that the plaintiff had a right of way in that part of the street not laid out by the city, for an obstruction of which by the defendants, he might maintain an action on the case.</p> <p>It seems, that in this commonwealth, and especially since the St. 1846, c. 203, no public way can be established by dedication merely, and without the assent, express or implied, of the city or town, which will be bound by law to keep the same in repair.</p>

In this case, which was argued by J. G. Abbott, for the plaintiff, and by J. P. Robinson, for the Lowell Institution for Savings, summoned as trustee, the material facts appear in the opinion of the court.

This was an action of trespass upon the case, commenced on the 22d of May, 1847, in which the plaintiff alleged that he was, and for ten years before action brought had been, the owner of a well of water in Lowell, and had the right to take the water from the well, in its natural purity • but that the defendant had injuriously dug a deep hole in the ground near the well, and conducted into the hole great quantities of filthy water, &c., which penetrated and flowed from the…

<p>This was an action of assumpsit for the recovery of $50, for the use and occupation of a store, under the First Freewill Baptist Meeting-house in Lowell, from the 1st of January to the 1st of April, 1847.</p> <p>The defendant pleaded the general issue, and specified in defence a paramount title to the premises in Benjamin F. Butler, Thomas Hopkinson, and Tappan Wentworth, and an eviction by them.</p> <p>The case being tried in the court of common pleas, before Wells, C. J., it was in evidence on the part of the plaintiff, that being in possession of the premises, claiming title thereto, in the latter part of the summer of 1846, he by his agent made a parol lease or agreement with the defendant, that he should occupy the store at the rate of $50 a quarter; that the defendant accordingly entered and occupied the store from some time in September, 1846, to the 1st of January, 1847, and paid the rent to the plaintiff to that date ; and that the defendant continued to occupy the store until the 1st of April, 1847, the contract being from quarter to quarter, ending on that day, when the plaintiff’s agent demanded the quarter’s rent then due, which the defendant refused to pay. Upon this evidence, the plaintiff rested his case.</p> <p>The defendant then proved, that Butler, Hopldnson and Wentworth, on the 29th of March, 1847, entered upon the premises claiming title, and threatened the defendant to put him out, unless he would yield the possession and attorn to them; and the defendant thereupon gave them a writing, acknowledging that he held the premises as a tenant under them</p> <p>The plaintiff objected to the admission of any evidence of title in Butler and others, inasmuch as the plaintiff had been in quiet possession, and the defendant had entered and occupied by the plaintiff’s permission, and as tenant under him. But the presiding judge ruled, that the entry by Butler and others was an eviction; that if they had a better title than the plaintiff, the defendant might show it in this action; and that such title would defeat the plaintiff’s claim.</p> <p>The defendant thereupon proved, that on the 1st of August, 1835, the estate of which the premises in question were parcel was conveyed by the Proprietors of the Locks and Canals on Merrimack river to the plaintiff, who gave a mortgage back of the same to the grantors, to secure the payment of the sum of $7703, at the end of ten years ; and that this mortgage was duly assigned, on the 15th of Mamh. 1844, to Josiah B. French, who entered on the premises for condition broken on the 20th of October, 1845.</p> <p>The defendant further proved, that the plaintiff, on the 26th of November, conveyed the premises to Ira Frye, who, on the 10th of October, 1836, conveyed the same to the proprietors of the First Freewill Baptist Meeting-house in Lowell; that at the October term, 1843, of this court, one Andrew J. Wig gin recovered judgment against the said proprietors and levied his execution on one undivided seventy-eighth part of the premises, which was set off to him; that at the December term, 1843, of the court of common pleas, one Jesse Swain recovered judgment against the said proprietors, and levied his execution on all their remaining right in equity in the premises, which was conveyed to him; that the said Wiggin and Swain, in February, 1846, conveyed all their interest in the premises to the said Butler and others, that Butler and others, in June, 1846, paid French the amount due on the plaintiff’s mortgage of the premises to the Proprietors of the Locks and Canals, assigned to him ; and that French, on the same day, acknowledged satisfaction of the mortgage on the record.</p> <p>The plaintiff introduced no further evidence of title than as above stated, but relied on his possession, claiming title in virtue of an entry by Ira Frye, for the breach of sundry conditions contained in his deed of October, 1836, and a deed from Frye to the plaintiff, and his possession and contract with the defendant. But the plaintiff did not offer evidence to prove a breach of any of the said conditions; and he admitted, for the purposes of the trial, that the evidence on the part of the defendant, if admissible, which he denied, showed a prima facie title by record in the said Butler and others.</p> <p>But the judge ruled, that the evidence was admissible; that the entry by Butler and others, on the 29th of March, 1847, was an eviction by paramount title; and directed the jury to find a verdict for the defendant, which they accordingly did.</p> <p>The plaintiff thereupon alleged exceptions.</p>

<p>A-n attachment of the property of a partnership, by the trustee process, is not dissolved by the subsequent several insolvency of one of the partners, after a dissolution of the partnership.</p>

This was an action of trover for the taking and conversion of two woollen carpets and one sofa, of the alleged value of $30 dollars, and was submitted to the court upon an agreed statement of facts.

<p>The assignor of a chose in action, which has been reassigned to him by his assignee, may bring an action thereon in his own name; although notice of the first assignment was given to the debtor, who promised to pay the debt to the assignee, and no notice was given him of the reassignment; and the debtor may avail him self of the same defence, as if the action were brought in the name of the assignee.</p>

<p>This was an action on the case, tried before Wells, C. J., in the court of common pleas, to recover damages for an injury alleged to have been received in consequence of a defect in Harrison avenue, one of the public streets of Boston.</p> <p>It appeared in evidence, that the plaintiff, on the 27th of March, 1847, was riding in a four-wheel carriage in that part of Harrison avenue, between Dover street and Roxbury, when he was thrown upon the ground, in consequence of the main body of the carriage becoming separated from the forward wheels.</p> <p>Witnesses on the part of the plaintiff testified, that the frost was coming out of the ground ; that the street was very muddy; that there had been a rain storm the night previous, which had not entirely ceased when the accident occurred; that there were three or four stones in the road, the largest of which was not so large as a man’s head; and that the plaintiff was driving with due care.</p> <p>Witnesses for-the defendants testified, that Harrison avenue from Dover street to Roxbury was made over the salt marsh; that it settled every year; that such a street could not be safely paved for several years after it was first made, on account of its settling; that such streets were always and necessarily very muddy in the spring and fall, and after a rain ; and that the street where the accident happened was in a reasonably good condition, as good as it ever was at that season of the year.</p> <p>The defendants also contended, and introduced evidence to prove, that the stones had not been in the road for the space of twenty-four hours, and that the vehicle in which the plaintiff was riding was unsafe.</p> <p>The piesiding judge instructed the jury, that what was such a defect in a highway as to render a city or town liable for an injury occasioned by it, was a practical question to be determined by the jury, in view of the circumstances of each particular case; that corporations obliged to support roads were bound to incur all reasonable expense, and take all reasonable care, to make and keep their roads safe and convenient, but they were not required to do more; that in determining the question whether this duty had been performed, the location of the road, the difficulty of keeping it in a better condition without an unreasonable expense, the season of the year, and the kind and amount of travel having occasion to pass over the road, were all to be considered; and, by way of illustration, the presiding judge stated, that a different state of repair would be required in a city where a large amount and variety of travel was constantly passing, and in a country place where the state of things was different in this respect.</p> <p>At the conclusion of the charge, the defendants took exception to the illustration stated by the judge, and requested him to instruct the jury, that there was no difference between the obligation of the city and of the country in the respect alluded to, except that the streets in a city must be made wider and more spacious than the wrought part of the roads in the country; but that within the limits of the wrought part, a road in the country was required to be as smooth and level and perfect as the streets of a city.</p> <p>The presiding judge declined to instruct the jury as requested, but left the case to them upon the instructions before given ; and the jury having returned a verdict for the plaintiff, the defendants excepted.</p>

This was an action of replevin to recover the possession of certain goods and chattels described in the writ. At the trial, before Wells, C. J., in the court of common pleas, the defendant, having pleaded the general issue of not guilty, which was joined by the plaintiff, but not having filed any specification or statement of his defence, offered evidence to prove that the goods and chattels in question were his property, at the time of the service of the writ.

<p>This was an action of assumpsit, in which the plaintiffs declared on the common counts, and offered in evidence a note, given to the female plaintiff, then unmarried, of which the following is a copy: —</p> <p>“ Lowell, Oct. 14, 1842. $100. For value received, the pastor and deacons of the First Freewill Baptist Church in Lowell, in behalf of said church, promise to pay Betsey Til-ton, or her order, the sum of one hundred dollars, to be paid in two years, if called for, by giving one month’s notice, with interest annually. S. D. York, Agent for the First Freewill Baptist Church in Lowell.”</p> <p>At the trial, before Bigelow, J., in the court of common pleas, the defendant contended, that he was the agent of the First Freewill Baptist Church in Lowell, a religious association of individuals not incorporated, or of the pastor and deacons of the said church, and signed and gave the note in suit in his capacity as such agent thereto duly authorized, and was not personally liable thereon; and he introduced evidence to establish this defence.</p> <p>But the judge instructed the jury, that the defendant’s evidence was not sufficient to prove, that he had any authority to give the note in question for the pastor and deacons of the church, or for the church itself; and that having exceeded his authority, he was personally liable on the note in this action.</p> <p>The jury returned a verdict for the plaintiffs, and the defendant alleged exceptions.</p>

<p>The plaintiff and defendant, on the one part, and Wood and Hildreth, on the other, entered into an agreement, under seal, of which the following is the substance: —</p> <p>Wood and Hildreth agreed, on their part, with Gladwin and Blaisdell, that they would sell and convey to Gladwin a certain lot of land in Lowell, described in the agreement, at nine cents a foot, to be paid for, in part, by the labor of Blaisdell in painting and glazing, as should be directed by Wood and Hildreth, at any time within eight months from the date of the agreement, and at certain prices mentioned therein. When Blaisdell should have completed such painting and glazing, the sum to which it amounted, at the prices named, was to be deducted from the price of the land, and the balance paid by Gladwin, one third in cash, and the residue one half in one year, and one half in two years, seemed by a mortgage on the premises.</p> <p>Blaisdell, on his part, agreed to do for Wood and Hildreth all such painting and glazing as they should order, in pursuance of the agreement, in a good, faithful, and workmanlike manner, and immediately upon being ordered; and Gladwin agreed, on his part, to take the land at the price named, and to secure so much of the purchase money, as Blaisdell should not pay by painting and glazing, in the manner above mentioned. He also guarantied that Blaisdell should do the painting and glazing, as agreed.</p> <p>The plaintiff, having performed work and labor, in painting and glazing, for Wood and Hildreth, in pursuance of his agreement, brought this action of assumpsit in the court of common pleas, where the case was tried before Wells, C. J., to recover the amount thereof of the defendant.</p> <p>The defendant, at the term when the action was entered, pleaded the general issue, with a specification of defence, stating that on the trial he should offer to prove, that before the commencement of the action he had paid the plaintiff in full all sums sued for therein; and had also made accord and satisfaction of all the matters in suit between him and the plaintiff. No objection was made to this specification of defence, until after the issue had been joined, and the plaintiff had opened his case and read his writ and declaration to the jury; when the plaintiff objected to its sufficiency, and the judge thereupon ruled that it was insufficient, as not being a compliance with the rule of the court, and that under it the' defendant could not offer evidence of payment, or of accord and satisfaction. The defendant did not move for leave to amend his specification.</p> <p>The only evidence offered by the plaintiff, to show that the defendant agreed to pay the plaintiff for the work sued for, was the contract above stated, and the testimony of a witness who heard a conversation between the plaintiff and defendant, after the work ordered under the contract had been commenced, and while the same was going on, but before any of it was completed, when the defendant told the plaintiff that he was poor, and neither would nor could pay the plaintiff for any work which he had done or should do under the contract.</p> <p>The judge ruled, that, from the contract itself, and from the facts of the case, the jury might find a contract between the defendant and the plaintiff, which would bind the former to pay the latter for the work done by him in pursuance of the written agreement with Wood and Hildreth.</p> <p>It was also in evidence, that before any of the work sued for was done, the plaintiff and defendant met, and the defendant told the plaintiff, that he would pay him for nothing he had done or should do under the contract, and thereupon the plaintiff told the defendant that he would do no further work on the defendant’s account. There was no evidence, that the plaintiff ever at any time notified the defendant that he was doing the work sued for on the defendant’s account, or demanded payment therefor, before the commencement of this action.</p> <p>The judge instructed the jury, that if they should find, that the defendant agreed to pay the plaintiff for the work he should do for Wood and Hildreth, under the contract; that, notwithstanding, before the work was done, the plaintiff told the defendant, that he should do no more work for the defendant, or on his account; yet that if the plaintiff, after-wards, upon being told by Wood and Hildreth, that they would not release him from his contract, did go on and do the work for Wood and Hildreth, under the same; he could recover in this action against the defendant for the work so done, although he never, previous to the commencement of the action, notified the defendant that he was doing the work on his account, or demanded payment therefor.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

This was an action of assumpsit, in which the plaintiff declared specially for the breach of a written contract with the defendants, entered into on their part by a duly authorized committee, on the 4th of August, 1845, for the construction of twi common sewers or drains in Lowell.

<p>The facts of this case sufficiently appear in the opinion of the court.</p>

It appeared by an agreed statement of facts upon which this case was submitted to the court, that on the 23d of August, 1845, Henry Jaques, by an instrument in writing, purporting to be an indenture, signed by the parties thereto, but not sealed, demised and let to James Gould and John W. Mulliken, a certain wharf estate in Charlestown, known as Devens’s wharf, with the stores and buildings thereon, dock rights, railroad tracks, and all privileges to the same belonging.

This was an action of assumpsit, in which the plaintiff declared on the common money counts, and filed a bill of particulars, as follows : — “ April, 1845. For services rendered by me for Henry Leeds & Co., about the patent right of a planing machine, for which you promised to pay me and became liable therefor. $25.

This was an action of trover, tried before Wells, C. J., in the court of common pleas. The plaintiff, at the trial, introduced evidence tending to prove that Cummings, one of the defendants, hired a horse of him to go to Templeton, telling him that Bonney, the other defendant, was going with him ; that Bonney rode with Cummings ; that it was a joint hiring in which Bonney was interested; and that the horse was driven a greater distance than he was hired for.

This was an action of assumpsit for money had and received, tided before Fletcher, J. The defendant, who is a deputy sheriff, on or about the 10th of December, 1845, attached certain horses and other chattels, as the property of one John Friend, on a writ against him in favor of James Ricker, and sold the property on the writ, pursuant to the Rev. Sts. c. 90, § 61. The net proceeds of the sale, as appeared by the return, amounted to $559-60.

<p>This was an action of trespass to land, tried before Wells C. J., in the. court of common pleas.</p> <p>Neither of the parties exhibited any title by deed to the close in dispute; but it was in evidence, on the part of the plaintiff, that previous to the 19th of November, 1845, he and those under whom he claimed had been thirty years in possession of the place in question, which was a part of a larger lot, and covered with wood. The defendant offered no evidence to show possession in himself, or in those under whom he claimed, previous to the said 19th of November.</p> <p>The plaintiff and defendant being the owners of land adjoining each other, and adjoining the close in question ; and disputes having arisen between them, as to the boundary lines of their respective lots, where they adjoined each other, the plaintiff insisting among others upon a line which would include the place alleged to be trespassed upon in his lot and the defendant contending for a line, as the true one which would include it in his; the parties, on the 19th oi November, 1845, entered into an agreement under seal to submit their differences, as to the subject of their boundary lines, to the decision of three arbitrators, who were authorized to establish lines and boundaries between them. The arbitrators, on the same day, met the parties, and after a hearing, made and published their award.</p> <p>The arbitrators, in their award, which was in evidence, desci’ibed the line established by them as commencing at the north-east corner of the defendant’s land, which was not in dispute, and thence running westerly, by a course described, “ to a stake standing on the bank of a ditch, and at the end of a pole fence between the lots of said Clark and Burt, thence westerly by land of said Clark, to a spruce tree in the swamp;” and thence by other courses, not in dispute, to the point of beginning.</p> <p>The stake and the spruce tree were not in dispute. But it was in evidence, that an old pole fence commenced at the stake, and, at the time of the award, extended in a general westerly direction, about two thirds of the distance, towards the spruce tree, making, however, some five or six angles in its course ; and that for the other one third of the distance, after the award, the ends of stakes were found in the ground, which were supposed to belong to a fence, though no witness— and there were several who recollected more than thirty years back — ever knew of a fence there.</p> <p>The plaintiff contended, that the line in question followed the old pole fence as far as it went, and then onwards in the direction of the ends of the stakes to the spruce tree. The defendant, on the contrary, contended, that under the award, the line was a straight line between the two points. The close in dispute was included between these two lines.</p> <p>The defendant offered evidence to prove that the chairman of the arbitrators, at the time of the publication of the award, notified the parties, that the line in question was a straight line. He also offered to prove, that subsequently to the making of the award, the plaintiff had admitted that the line in question was a straight line, and had offered to pay the defendant for wood which he had cut on the land in dispute. This evidence was not offered to prove title to the land, independent of the award, but as an admission of the plaintiff, that the award called for a straight line</p> <p>The presiding judge rejected the evidence, and ruled that the award, as to the line in question, was void for uncertainty. A verdict was thereupon taken for the plaintiff, and the defendant alleged exceptions.</p>

This was an action on the case to recover damages of the defendants, for an injury alleged to have been sustained by the female plaintiff, while riding as a passenger in the defendants’ cars from Lowell to Nashville. The case was submitted to the court upon an agreed statement of facts.

<p>This was a petition for partition, which was submitted to the court upon an agreed* statement of facts.</p> <p>John Sweetser, by his deed dated September 10th, 1842, conveyed to the petitioners,*with two other parcels of land, an estate in South Reading described as follows: “ One undivided half of all the buildings that are situated on the homestead I now improve and occupy with the land under and about the same.”</p> <p>On the same day, the petitioner's made a lease, in writing, but not under seal, to John Sweetser, of several parcels of land therein described, “ to hold for the term of his natural life, from this tenth day of September, yielding and paying therefor the rent of fifty dollars annually.” The first parcel mentioned in this instrument was thus described: “ One half of all the buildings and land under and adjoining the same situated in said South Reading, the north-westerly part thereof, it being the homestead of the said John Sweetser.”</p> <p>The premises described in the petition, which the petitioners claimed in virtue of the deed above mentioned, and of which they demanded partition, comprised the entire homestead of the grantor. The respondents, who were the owners of the residue of the estate not conveyed by the deed to the petitioners, objected that nothing more passed by the deed, than the land under the buildings, with perhaps a strip on the easterly side of the buildings sufficient for a passage way around them.</p> <p>It was agreed, that for at least thirty years previous to the date of the deed, John Sweetser had been the owner of the premises described in the petition, which he had cultivated partly as tillage, and partly as mowing land, and had occupied the buildings as his residence. The estate comprised about four acres enclosed by a stone wall, and bounded on one side by a road leading from South Reading to Salem, on another side by a road leading from South Reading to Lynnfield, and on two other sides by land of other persons. A part of the premises was enclosed as a garden, and had always been used for that purpose. Another part was enclosed as a front yard to the dwelling-house. A part was separated from the rest, making a yard open to the street, and another part was enclosed and used as a bárn yard.</p>

This was a writ of entry to foreclose a mortgage of certain land in Lowell, conveyed in 1833 by Elisha Fuller, who was then the owner thereof, to Darius Young, by whom the same was immediately mortgaged back to Fuller to secure the payment of the purchase money.

<p>After the death of a defendant is suggested on the record, no amendment can be made so as to alter the character of the action, until the appearance of a representative.</p> <p>An administrator, appointed in another state, on the estate of a person there deceased, may appeal from the decree of a judge of probate in this state, appointing an administrator here.</p> <p>An action for the breach of a promise of marriage, where no special damage is alleged, does not survive against the administrator of the promisor; and the party to whom the promise is made is not thereby a creditor of the promisor, to whom administration on his estate may be granted.</p> <p>The act of 1842, o. 89, § 1, which provides that the action of trespass on the case for damage to the person shall survive, extends only to injuries of a physical character, and does not include the damage resulting from the breach of a promise of marriage.</p> <p>Special damage is that which may be given in evidence to aggravate the damages sued for in an action already pending, or which may be itself a distinct cause of action.</p> <p>Loss of time, and expenses incurred, in preparations for marriage, are grounds of damage, directly incidental to the breach of a promise of marriage, but not of. special damage.</p>

<p>When a case is brought into this court from the court of common pleas by a bin of exceptions, no objection can be taken in this court which was not made in the court below.</p> <p>If a judge, before whom an action is on trial, is of opinion, that the plaintiff, upon his whole evidence, is not entitled to recover, he may recommend a nonsuit on that ground ; if he does so, and a nonsuit takes place, the plaintiff may allege exceptions; but if the judge is of opinion, that there is evidence do be considered by the jury, and declines to order a nonsuit, this decision is no. ground for exception.</p> <p>Where the signer of a receipt for goods attached promised thereby to keep the goods safely, and to redeliver them to the officer or his order, on demand, and, also, that if no demand should be made upon him, he would, within thirty days from the rendition of judgment, redeliver the goods, in order that they might be taken on the execution; it was held, that the officer might commence an action on the receipt, after the thirf’’ days had elapsed, without a previous demand.</p> <p>If goods, which have been mortgaged, and left in the possession of the mortgagor, are attached as his property, and, being receipted for, are redelivered to him, and are subsequently taken possession of, for the purpose of foreclosure, by the mortgagee, to whom the mortgagor releases his right of redemption, before judgment is rendered in the action upon which the goods are attached; these proceedings constitute no defence to an action by the officer on the receipt.</p> <p>When property attached is receipted for and redelivered to the debtor, the receipter is liable therefor to the officer, whether, by the receipt and redelivery, he becomes the bailee and servant of the officer, to keep the goods as in the custody of the law, or an original contractor, bound, at his peril, to have the goods forthcoming according to the terms of the receipt.</p>

<p>The facts of this case are fully exhibited in the opinion of the court.</p>

This was an action of trover, tried before Wells, C. J., in the court of common pleas, for the conversion of thirty carboys, and a quantity of muriatic acid, soda-cake, salt and coal. The title of the plaintiff to the carboys was admitted; they having become connected with the other property in the manner hereinafter stated.

<p>The provision, in the Rev. Sts. c. 109, § 41, where a trustee answers anew to a scire facias against him, that, “Upon the whole matter appearing upon such examination and trial, the court shall render such judgment, as law and justice shall require,” extends as well to the costs, as to the charging or discharging of the trustee; and where a trustee, on such examination, was discharged by reason of a mistake, wholly attributable to himself, in his answer to the original suit, he was adjudged to pay costs to the plaintiff, and to recover none for himself.</p>

<p>This was an action of trespass, for taking and carrying away certain articles of personal property consisting principally of a building then standing on wheels, and certain implements and machinery commonly used in the removal of buildings.</p> <p>The defendants severally pleaded the general issue, and as special matter of defence alleged, that the plaintiff left the building, and other articles mentioned in his writ, in a highway in Cambridge, known as Harvard street, whereby the street was incumbered and rendered unsafe for travellers, and that the defendant Green, as mayor of the city and chairman of the board of highway surveyors, and the other defendant, Coolidge, as superintendent of streets, removed the building from the street, as they had a right to do.</p> <p>The case was tried before Fletcher, J., from whose report, it appeared to be as follows : —</p> <p>It was admitted that Green was mayor and chairman of . the board of highway surveyors, and Coolidge superintendent of streets, at the time of the alleged trespass, as stated in the specification of defence.</p> <p>It appeared that one Flanagan bought the building in question in January, 1848, and contracted with the plaintiff to move it from where it stood, near Harvard street, to a lot of land near the Observatory.</p> <p>By the sixteenth section of the act of 1846, c. 109, “ to establish the city of Cambridge,” the city council is authorized “ to make all such salutary and needful by-laws, as towns, by the laws of the commonwealth, have power to make, and to annex penalties, not exceeding twenty dollars, for the breach thereof.”</p> <p>In pursuance of this provision, the city council of Cambridge made an ordinance, for the appointment of a superintendent of streets, with the usual functions of such officer, in the care and oversight of the public streets. The city council also passed a by-law “to prevent unlawful and injurious practices in the streets and other public places in the city,” prohibiting, among other things, the removal of buildings in the streets, except by a license for that purpose, granted by the mayor and aldermen.</p> <p>On the 10th of May, 1847, it was ordered, in the board of aldermen, that the mayor be authorized to grant licenses for the removal of buildings over the public highways, and foi the obstruction of sidewalks, in all cases in-which he may deem it expedient, under the regulations and upon the conditions prescribed by the city ordinance above mentioned.</p> <p>The plaintift procured a license in writing, dated January 28th, 1848, and signed by the defendant Green, as mayor, of which the following is a copy: —</p> <p>“ Pursuant to an order of the hoard of aldermen, license is hereby granted to Jacob Gr. Day to remove one building twenty by sixteen feet in dimensions, and another about twelve by fifteen feet, from the lot on which they now stand on Harvard street, through said Harvard and Main streets, Harvard square, Washington street and Concord avenue, to a lot on said avenue a little west of the Observatory; and if either of said buildings should of necessity remain on the street over night, a clear passage of at least fifteen feet in width shall be left for the public travel, and two lights kept burning; he, the said Day, being required to conform to the provisions of the ‘ ordinance to prevent unlawful and injurious practices in the streets and other public places in the city.’"</p> <p>The plaintiff took down the chimneys of the house, and after separating the two-story part from the one-story part, moved the former to the side of Harvard street; and after-wards, at an early hour on Saturday, January 29th, moved the building into the street, placed it on wheels which he had hired for the purpose, and attempted to move it up Harvard street, towards the lot on which he was to place it; but finding, after repeated trials, that he could not do so, owing to the condition of the streets, the weather being stormy, and the streets very muddy, he moved the building about two hundred and fifty feet in the opposite direction, down the hill to the end of Cross street, and there left it, about one o’clock in the afternoon of the same day. Harvard street was fifty feet wide, and much travelled by teams and pleasure carriages.</p> <p>In the afternoon of Saturday, and after the plaintiff had left the building, the defendants severally notified the plaintiff to remove the building, as an obstruction to the travel; the defendant Coolidge acting in all he did in the case under the orders of the mayor. The defendants, at the same time, told the plaintiff, that the building could not be permitted to remain on the street over the Sabbath, on account of the danger to travellers.</p> <p>On the evening of the same day, the defendants took possession of the building, and' moved it a short distance out from the travelled part of the street, and there left it on the wheels. On the following Monday morning, the plaintiff applied to Green for permission to move the building to the lot originally intended for it; but was told that he could have no such permission, unless he would first pay the expense, which had been incurred by the defendants in moving it on Saturday.</p> <p>The defendants contended, among other things, 1st. That the plaintiff had not shown such a property or possession, especially of the building, as would enable him to maintain this action; 2d. That the city council could not legally authorize the mayor and aldermen to grant a license to incumber a highway, in the manner it was done by the plaintiff ; and if they could, 3d, That such authority, having been vested in the mayor and aldermen, by a city ordinance, could not be transferred to the mayor, by an order of the board of aldermen.</p> <p>But the judge, for the purposes of the trial, overruled these objections, and instructed the jury, that if they were satisfied, that the plaintiff took and had possession of the building, by virtue and in performance of the contract for moving it as stated, then the plaintiff had such an interest in and possession of the property in question, as would sustain the action ; that the license granted by the mayor was valid in law, and authorized the plaintiff to move the building, and thereby to incumber the street, so far as was reasonably necessary for that purpose, and not preventing the public travel; that the plaintiff would be entitled to a reasonable time, under all the circumstances, for moving the building, no time being specified in the license; that there was nothing in the license to prohibit the plaintiff from leaving the building on the street over Sunday, and if he had used all reasonable efforts to get it to the lot it was to stand on, oix Saturday, and found that impracticable, he would be justified in leaving it over Sunday on the street; and the defendants would have no right, on that account, to take possession of the building and move it away.</p> <p>The jury returned a verdict for the plaintiff; and the defendants excepted.</p>

These were actions of replevin, tried before Bigelow, J., in the court of common pleas. The writs bore date, respectively, he 19th of March, and the 28th and 30th of April, 1847.

<p>This was a petition, under the general jurisdiction of this court in matters of insolvency, by the assignee of Alexander Gregg, an insolvent debtor, in the nature of an appeal from an adjudication of the judge of probate for this county, before whom the proceedings in insolvency were pending.</p> <p>The petitioner presented a petition to the judge of probate, setting forth that he was the assignee of the said insolvent; that on the 31st of December, 1847, within six months previous to the filing of his petition for the benefit of the insolvent law, the insolvent sold and conveyed to Nathan Tufts, Jr., and Gilbert Tufts, Jr., the respondents, his equity of redemption in a certain lot or parcel of land particularly described in the petition; that the consideration named in the deed was $1200, which, with the sum of $800, for which the estate was previously mortgaged to James Russell, was the value of the same; that the conveyance was fraudulent and void as to creditors, and was made by the insolvent to hinder, delay and defraud his creditors, and particularly to prevent Henry L. Stearns, a creditor of the insolvent, from levying the execution, which might issue on a judgment about to be obtained by him, on the said land; that, at the time when the conveyance was made, to the said Nathan and Gilbert, the insolvent was indebted to them on , an account, and had previously given them a note, which they had indorsed and procured to be discounted, but of which they were not then the owners, and which did not become due until more than a month after the conveyance was made; that the grantees, at the time of the conveyance, had reasonable cause to believe the grantor insolvent, and had no reasonable cause to believe him solvent; that they took the conveyance for the purpose of securing to themselves a preference over the insolvent’s other creditors, in the payment of their debt and liability aforesaid, and for the purpose of hindering, delaying and defrauding such other creditors that the grantees still held and retained the said estate; and that many of the facts set forth in the petition, and more particularly those which relate to the knowledge and intention of the grantees, could only be shown through their statements. The petitioner therefore prayed, that the said grantees might be summoned before the judge of probate and required to answer under oath all such questions as might be propounded to them in this behalf, and to be examined under oath upon the matter of the petitioner’s complaint.</p> <p>This petition having been sworn to by the petitioner, and read and considered, together with the matters therein set forth, by the judge of probate, he declined to grant the prayer thereof, on the ground, that the case did not appear to him to be clearly within the meaning and intent of the act of 1846, c. 168, § 1, on which the petition was founded.</p> <p>The petitioner thereupon presented his petition to this court, setting forth more at large the matter of complaint contained in his petition to the judge of probate, together with the proceedings thereon before him. The petitioner, therefore, prayed, that a writ of subpoena, might be issued to the said grantees, commanding them to appear before this court, or if the court should think fit, before the judge of probate for the county of Middlesex, at such time as the court should appoint, then and there, upon their several and respective oaths, to answer all matters and questions which should be propounded to them, in relation to the said prop- ■ erty of the insolvent, and all other matters set forth in the petition; that they be restrained and enjoined from selling or conveying away the estate, or any part thereof, until the final order of the court; and that after such hearing, they be required to convey the estate to the petitioner, as the assignee of the grantor, and to account to him for the mesne profits thereof. The petitioner also prayed for all such other and further relief, as, upon a full hearing, he might be found entitled to, and as law and justice might require.</p> <p>This petition having been sworn to, and notice thereof given to the respondents, they appeared and put in a general demurrer thereto, upon which the case was heard.</p>

<p>This was an action of debt, originally commenced and tried before a justice of the peace, and afterwards, on appeal, before Bigelow, J., in the court of common pleas. The court ordered the general issue of nil debet to be put in, reserving to the defendant the right to make any objection of a preliminary nature; the same not to be considered as waived by the filing of the general issue.</p> <p>The defendant, before the case was opened to the jury, objected to proceeding further therein, because it appeared by the record of the justice, that the action was not duly entered before him; the writ being returnable on the 28th of July, 1847, at four o’clock in the afternoon, and the justice not being present till half after five o’clock in the afternoon of the same day, at which time he entered the action, and proceeded with the trial. This objection was taken by the defendant before the justice, as appeared by reference to a copy of the record.</p> <p>The judge ruled, that the action was not duly entered before the magistrate; that the objection had not been waived by the defendant; and that all subsequent proceedings in the case were therefore void. Thereupon, it was agreed by the parties, that a verdict should be rendered for the defendant, reserving to the plaintiff the right to except; and a verdict being accordingly taken for the defendant, the plaintiff alleged exceptions.</p>

<p>This was an action of assumpsit on a negotiable promissory note, made by the defendant Leland, as principal, and the other defendants, Fogg and Harrington, as sureties, to one James Luke, Jr., or order, and by him, before maturity, indorsed to the plaintiff.</p> <p>The defendants pleaded the general issue, and filed a specification of defence, in which they set forth that they should undertake to prove that the note relied on by the plaintiff was obtained by luke, the payee, by fraud and fraudulent misrepresentation and without consideration; of all which the plaintiff had notice when he took the note. The defendants further alleged, in their specification, that Leland and Luke, who were formerly partners, dissolved their partnership in March, 1847, Luke assigning to Leland his interest in the concern, and Leland giving Luke the note in question, with others, and a bond to pay the liabilities of the firm; that Luke kept the books of the partnership, and, at the time of the dissolution, knowing that Leland relied on his statements, represented to him that the assets of the concern were greater and the liabilities much less than they were in fact; that he also withheld from Leland knowledge of the fact, that he, Luke, had appropriated to himself certain funds of the concern and the proceeds of certain debts due the same; that he thus induced Leland to give the notes, of which the note in question was one, and the bond above mentioned ; and that herein consisted the fraud, misrepresentation, and want of consideration, of which the plaintiff had notice.</p> <p>At the trial, before Byington, J., in the court of common pleas, the defendants offered evidence that the plaintiff took the note with notice that it was obtained by fraud, and would not be paid by any party to it. There was no evidence of the death of Luke, but the defendants then offered to prove by his admissions made while the note was held by him, and before its indorsement to the plaintiff, that he made such representations. To this evidence the plaintiff objected, but the judge admitted it.</p> <p>In order to show knowledge on the part of Luke of the falsity of these representations, and for other reasons, the defendants offered to prove specific acts of fraud committed by Luke, against Leland, such as misappropriating the assets of the firm, altering the books of account, &c., before and at the time of the making of the note, and as inducements thereto. To this evidence the plaintiff objected, but the court admitted it.</p> <p>The jury returned a verdict for the defendants, and the plaintiff thereupon alleged exceptions to the above rulings.</p>

This was a complaint, originally brought before a justice of the peace, and, afterwards, on appeal to the court of common pleas, tried before Bigelow, J., in that court, for the forcible entry and detainer of a certain lot of land in the town of Waltham. The plaintiff offered in evidence a warranty deed of the premises in question to himself, from one Luke Smith; and proved his possession under the deed subsequent to its date.

<p>Where the land of one deceased is taken for a railroad, the heir and not the administrator is entitled to the damages for such taking, and to prosecute for the recovery thereof, although the administrator has previously represented the estate to be insolvent, and afterwards obtained a license to sell the intestate’s real estate for the payment of debts.</p>

This was an action of debt on a bond executed jointly by Josiah K. Bennett, of Mason, in the state of New Hampshire, as principal, and the defendant, of Groton, in this state, as surety, in favor of the plaintiff, also of Mason, conditioned for the performance of an award. The trial was before Byington, J., in the court of common pleas.

This was an action of assumpsit, submitted to the court of common pleas upon an agreed statement of facts, and, upon the judgment of that court for the plaintiff, brought into this court by appeal.

<p>The members of an incorporated religious society having accepted their act of incorporation, and organized under the same by the choice of a president and other officers, but never having chosen any assessors or parish committee, or adopted any by-laws directing the manner of calling meetings, five of the qualified voters of such society signed an application to a justice of the peace, requesting him to call a meeting thereof, at a specified time and place, to fill all vacancies in the offices of the society, to do all acts and things necessary to effect a full and complete organization, and to see if the society would confirm their former proceedings and amend their records, so far as might be necessary to render the same valid and effectual in law: It was held, that the society were within the provisions of the Rev. Sts. c. 20, § 17, authorizing the calling of a meeting by a justice of the peace, on the application of five or more of the qualified voters; and that the meeting called by the justice on such application was properly called and was a legal meeting, although it was not stated in the application, or recited in the warrant, that there were no assessors or parish committee.</p> <p>Where three out of six signers of an application to a justice of the peace to call a meeting of a religious society according to the provisions of the Rev. Sts. c. 20, § 17, were admitted to be qualified voters ; a fourth, to whom it appeared by the stock book that one fourth of a share had been issued, had been clerk of the so ciety, and one of a committee to purchase land; a fifth had become a stockholder by an original subscription in the name of the firm in which he was a partner, and by eventually succeeding to the rights of his copartners; and the sixth was a signer in the stock book, and had paid for a share, though no certificate of it could be found, and had acted as a member at former meetings; and all the signers of the application, except one of the first three, were present and acted as members at the meeting called by the justice upon this application, at which meeting ten or more other members of the society were also present: It was held, that a jury would be authorized to find from these facts that the application for such meeting was legal.</p>

<p>This was an action of trover, to recover the value of a small dwelling-house, and was tried before Fletcher, J., by whom it was reported for the consideration of the whole court.</p> <p>On the 2d of September, 1833, one Alden Sibley, being then the ownei of the building in question, which stor'd upon land leased of one Oliver Starkweather, sold and con veyed the same to the defendant, who thereupon mortgaged it back to him, to secure the payment of a note of that date for the sum of $200, payable on demand. In October fol-owing, Sibley gave the note and mortgage, without any written assignment, to one Gardner Reekard, as security for a debt of $200; and in December, 1846, Reekard delivered the note and mortgage to the plaintiff; at whose request, and without any additional consideration, Sibley then made a written assignment of the mortgage to the plaintiff. After this conveyance, the mortgage, of which no record had been previously made, and the assignment, were both recorded.</p> <p>It was in evidence for the plaintiff", that he had taken the necessary steps to foreclose the mortgage, and that after the expiration of the statutory term of sixty days, and before the commencement of this action, he made a demand upon the defendant to deliver him possession of the building, which the defendant refused to do. It was admitted that the building, at the time of the demand and of the service of the writ, was in possession of the defendant. But no request or demand, for the payment of the note, for which the mortgage was given, was proved to have been made, unless the foreclosure oí the mortgage operated as such.</p> <p>It was in evidence for the defendant, that on the 25th of January, 1834, Alden Sibley, the original mortgagee, assigned all his property of every description, for the benefit of his creditors; that the assignees settled the estate of the assignor, and paid out the proceeds thereof, in conformity with the provisions of the deed of assignment; and that in the year 1837, the defendant became the owner in fee of the and on which the building stood, by a conveyance from the neirs or devisees of Oliver Starkweather. Upon this evidence, a verdict was taken by consent for the plaintiff, for the value of the building; subject to the opinion of the court, as to whether the plaintiff is or is not entitled to recover in this action.</p>

This was an action of trespass, for an assault and false imprisonment, tried before Bigelow, J., in the court of common pleas. The plaintiff, being an inhabitant of Taunton, and having been assessed the sum of $13-25 in school district number one therein, which tax he refused to pay, was arrested and imprisoned by the collector of Taunton, upon a warrant issued by the defendant and two others, as assessors of that town. The defendant justified as an assessor of Taunton.

This was an action of assumpsit, to recover a balance alleged to be due to the plaintiffs for building a school-house, and was tried before Bigelow, J., in the court of common pleas.

This was an action on the case, in which the plaintiff declared that the defendants, at New Bedford, on the 1st day of May, 1848, in consideration that the plaintiff, at their request, had bargained and sold to them five thousand feet of plank, at the price of $127-50 a thousand, and had undertaken to deliver the same plank to them at Rochester, then and there promised the plaintiff to accept said plank, and to pay him therefor the price aforesaid; and that the plaintiff…

This was an action of assumpsit on a promissory note for $100, dated June 26th, 1841, payable to the plaintiff or order on demand with interest, and signed by the defendants, Bernard P. and Peter E. Dunbar. The writ was dated June 19th, 1847, and returnable to the next term of the court of common pleas for the county of Bristol.

<p>This was a writ of entry, for the recovery of a piece of land in North Bridgewater, to which the tenant pleaded nu* disseizin as to all the demanded premises northerly of a certain line running east seventeen and a half degrees north, and a disclaimer of all the premises south of that line.</p> <p>At the trial, before Fletcher, J., in this court, it appeared, that prior to August, 1826, one Forbes Field had for twenty-six years owned the land on the northerly side of the true line, and Daniel Field, on the southerly side; that the demandant held through certain mesne conveyances the estate of Daniel Field, and the tenant that of Forbes Field; and that the demandant claimed by a line running east nineteen degrees and thirty-five minutes north.</p> <p>The tenant, in support of his title, gave in evidence the will of Forbes Field, in which he devised his land to Daniel Field, Jr., and George Field, as tenants in common; a deed by Daniel Field of his undivided half to one Churchill; a deed of the same by Churchill to one William Ames; a division by mutual releases between William Ames and George Field, by which Ames became seized in severalty of all the land whiqh was affected by the said line ; a deed by William Ames of his said land to one William C. Leonard; and a deed of warranty of the same premises from William C. Leonard to the tenant, by which the land was described as bounded southerly by the said line running east seventeen and a half degrees north.</p> <p>The tenant, in order to prove that the true boundary line ran east seventeen and a half degrees north, called William C. Leonard, as a witness. The demandant objected to the admissibility of the witness, on the ground that he was interested in the event of the suit, in consequence of his having conveyed the land, by the line aforesaid, with a covenant of warranty. It was then proved by the tenant, that he had released the witness from all the covenants contained in his deed of warranty to the tenant; that 4he release had been duly acknowledged and recorded in the registry of deeds, with a note of reference to the record of Leonard’s deed; that the tenant had never made any conveyance of the land, or created any incumbrance thereon; and that the same was free from all incumbrances whatever.</p> <p>The judge thereupon admitted Leonard as a competent witness, and a verdict was found for the tenant. If the wit* ness was properly admitted, the verdict is to stand; other, wise it is to be set aside and a new trial granted.</p>

<p>The guardian of a minor, on the coming of age of his ward, having settled an ac count with him, and taken his receipt in full for the balance due as guardian, and being afterwards summoned into the court of probate, upon the petition of the ward, to settle his guardianship account; it was held, that notwithstanding such settlement and receipt, the guardian was bound to answer on oath proper interrogatories respecting his account and the items thereof, and that the ward might introduce evidence touching the execution and validity of the receipt.</p> <p>Where a question of fraud arises in the probate court, as incidental to any subject of which that court has jurisdiction, the judge must take cognizance of it and try it, in the same manner as any other question of fact.</p>

This was a bill in equity, from which, and from the answer thereto of the defendant under oath, and certain exhibits produced by the plaintiff, the following case appeared : — Mercy Sever, widow, died on the 9th of February, 1810, leaving a will dated on the 20th of December preceding, by which she appointed the defendant her executor, and provided that all the property, of which she might die seized, should be placed in the hands of her son George Russell, he becoming…

<p>This was a petition, presented to the court at the last May term, in which the petitioner set forth, on oath, that at the term of this court, held at Plymouth, in May, 1848, she was duly divorced from the bed and board of the respondent, on the ground of excessive cruelty; that at the same time alimony was granted to her, at the rate of $100 a year, payable quarterly by the respondent; that one year’s alimony was due, no portion of which had been paid; and that the respondent wholly neglected and refused to pay the same; wherefore, the petitioner prayed, that a process of attachment, or other proper process, against the respondent, might be granted to her, and that such proceedings might be had in the premises as to right and justice should appertain.</p>

<p>This was an action on the case against the defendant as clerk of a religious society, known as Trinity church, in the town of Bridgewater, for refusing to receive the vote of the plaintiff, claiming to be a member of the society, in the choice of a moderator, at the annual meeting thereof in April, 1849. The trial was before Bigelow, J., in the court of common pleas.</p> <p>The society in question was incorporated by the act of 1815, c. 12, passed on the 14th of June, 1815. By the second section of this act, it was provided, that any person who might desire to become a member of the society, and should enter his name with the wardens and vestry or clerk thereof, should be deemed, taken and entitled, and, with his poll and estate, be liable for all lawful taxes and assessments, as a member of the society; and that such members should be thereafter exempted, with their polls and estates, from all other taxes and assessments for the support of public worship, in the town or parish where they might respectively reside ; provided, that persons subsequently becoming members should give notice thereof in writing to the assessors or derk of the parish or town, where they might reside, and, until notice, should not be entitled to such exemption ; and provided, also, that persons withdrawing from the said sociciety, who should give notice thereof in writing to the wardens and vestry, or clerk for the time being, should be no onger liable for any taxes or assessments afterwards granted and voted therein; and that they with their estates should again become liable and holden for all other taxes and duties for the support of public worship, in the parish or town where they might respectively reside, and as other inhabitants who were not entitled to any special exemption.</p> <p>By the third section of the act, authority was conferred upon the society to pass all such by-laws and rules, as should be deemed necessary for the well-governing of the same, not incompatible with the laws and constitution of the com monwealth.</p> <p>By an act, passed on the 15th of March, 1845, (Si. 1845, c. 136,) in addition to the former act, it was provided (§ 1), that all questions relative to the use, occupancy, repairs or rebuilding of any church, edifice, or place of public worship, which Trinity church in Bridgwater might own, should be determined by the pew owners present and voting thereon, each pew owner to be entitled to as many votes as he should own pews in said church, edifice, or place of public worship; and (§ 2) that the corporation should have power to make by-laws, determining the manner by which persons should thereafter become members thereof. The third section of this act repealed the second section of the former.</p> <p>On the 24th of March, 1845, the society, in pursuance of the authority conferred by the additional act, adopted the following by-laws relating to the subject of membership: —</p> <p>“ Article 1st. All owners of a pew or pews in this church, who shall subscribe and pay annually for the support of public worship in this church a sum not less than five dollars, and any person not a pew owner who shall hire or rent a pew in said church, and shall subscribe and pay annually for the support of public worship a sum not less than five dollars, in addition to the rent of said pew, shall be deemed members of this parish, and entitled to vote at the annual meeting of said parish, subsequent to such subscription and payment and during its continuance, and no longer.</p> <p>“ Article 2d. Such persons as neither own or rent a pew who shall regularly attend church, and shall subscribe and pay annually a sum not less than ten dollars for the support of public worship in this church, shall be deemed members, and entitled to vote as provided in the last clause of the section above.</p> <p>“ Any by-laws of this parish, inconsistent with the foregoing, are hereby repealed.”</p> <p>It was in evidence, on the part of the plaintiff, that he was one of the persons, thirty-two in number, named in the act of incorporation of the said society; that his name was duly entered with the clerk thereof, as a member of the same, prior to the year 1816, in pursuance of the second section of the act of incorporation; that from that time to the annual meeting in April, 1849, the plaintiff had usually worshipped with said society, — had uniformly acted as a member thereof, — had been from time to time elected to various offices in the society, — and at the annual meeting in 1848, had been chosen a vestry-man ; and that from the 23d of June, 1837, the plaintiff had been the owner of a pew in said Trinity church.</p> <p>It was also in evidence, for the plaintiff, that at the annual meeting of the society duly called in April, 1849, for the purpose, among others, of choosing a moderator, the defendant, being the clerk of the society, presided at the choice of moderator, and the plaintiff offered to put in his ballot therefor, but the defendant refused to receive the same, on the ground, that the plaintiff was not entitled to vote in said society, because he had failed to comply with the by-laws above mentioned.</p> <p>The defendant thereupon offered to prove, that the plaintiff had not complied with the provisions of the by-laws aforesaid, having failed to pay the sum named in the first article for the support of public worship; and contended, that by the operation of the third section of the act of incorporation, and of the second section of the additional act, relating to the adoption of by-laws, the plaintiff had ceased to be a member of the . society, and had no right to vote therein.</p> <p>But the presiding judge instructed the jury, that by the provisions of the act'of 1845, empowering the society to pass by-laws, no authority was given to pass by-laws regulating the subject of membership; that the mode, in which a person might become a member of said society, was fixed and established by the second section of the act of 1815, and that the plaintiff having complied with the provisions of that section, and been a member of the society prior to 1845, was not affected in his rights by the act of 1845, and the by-laws of March 24th made in pursuance thereof, and that therefore his right of membership was not forfeited by a non-compliance with the said by-laws.</p> <p>The jury returned a verdict in favor of the plaintiff, and the defendant alleged exceptions.</p>

<p>A discharge in insolvency, granted at a third meeting of creditors, called after the expiration of six months from the appointment of assignees, is void.</p>

This was a suit in equity, brought by the plaintiff, as the assignee of Samuel C. Bugbee, an insolvent debtor, to compel the defendant Allen to receive from the plaintiff a deed of certain premises described in the bill, and to pay the agreed price therefor, without deduction on account of an alleged lien thereon; and to compel the other defendants, Josiah Richardson and Daniel Jackson, to relinquish and discharge, and to be perpetually enjoined from attempting to enforce,…

This action was brought to recover compensation for the support of Henry Pittee, in the house of industry in the city of Boston, from July 17th to September 5th, 1846, and for supplies furnished to Sarah Pittee, during that and the following year, by the plaintiffs. The case was submitted to the court of common pleas upon an agreed statement of facts, and came to this court by appeal.

This was an action of assumpsit to recover the sum of $90, being the amount of a tax assessed on the plaintiff in the year 1846, by the assessors of the city of Boston, for his “ personal estate, income, &c.,” together with the costs thereon, and interest from the 8th of January, 1847, when the same was paid under protest; and also the further sum of $90, assessed on the plaintiff in the year 1847 by the assessors of the city of Boston, for “personal estate, income, &e.,”…

This was an action of trespass on the case for flowing a certain tract of land in Wrentham, described in the declaration, from the 1st day of May, 1846, to the 1st day of November in the same year; and was tried before Fletcher, J., in this court.

This action was brought to recover the expenses incurred by the plaintiffs, in the support of Lorenzo O. Lovell, a pauper, in the State Lunatic Hospital, and was submitted to the court of common pleas, from whence it came to this court by appeal, upon an agreed statement of facts. The expenses sued for were incurred as set forth in the declaration, and the pauper never had a legal settlement in the town of Bellingham.

This was an action of assumpsit to recover for the support of one Jonas Howard, a pauper, whose settlement was alleged to be in the town of Easton, on the ground that he had resided therein ten years consecutively, since the year 1818, and had paid all taxes duly assessed upon him there, for five years within that period, according to the twelfth mode specified in the statute of 1793, c. 34, § 2.

<p>The act of 1842, c, 74, does not enable a married woman to malee a devise of her real estate to her husband. Wilde and Dewey, Justices, dissenting.</p>

This was an action of assumpsit by the plaintiff as the indorsee of two promissory notes, signed by the defendants as copartners, one dated December 4th, 1839, and the other October 6th, 1841. The defence relied upon was a discharge under the insolvent law of this commonwealth, which took effect on the 17tb of January, 1842, and a discharge under the bankrupt law of the United States, which took effect on the 17th of August, 1842.

This action, which was assumpsit to recover the amount of a promissory note signed by the defendants as promisors, was submitted to the determination of the court of common pleas, and came by appeal to this court, upon the following agreed statement of facts : — The plaintiff is a magistrate of this county, and in January last, the defendant, Isaac N. Ellis, was arraigned before him, upon seven distinct complaints, for selling spiritous liquors without a license, and was…

<p>This was an appeal from a decree of the judge of probate, for this county, approving and allowing an instrument produced by the appellee, as the last will and testament of Jane Hayden, late of Brookline, deceased. The appellant alleged that the instrument in question was procured to be made “ by undue and unlawful influence of the said John C. Hayden,” and an issue to that effect was made by order of the court and submitted to a jury. The trial was before Fletcher, J., by whom the case was reported for the consideration of the whole court.</p> <p>The appellant produced evidence tending to show, that the will was procured by the appellee, by means of undue and unlawful influence exercised by him over the mind of the testatrix. He also produced evidence to show the improbability, that the will would have been made by the testatrix, in the exercise of her own free will and discretion, for various reasons, and particularly on account of the large legacy therein to the appellee.</p> <p>The appellee produced evidence tending to show, that the will made a natural and reasonable disposition of the testatrix’s property, under the circumstances of the case ; among which was the great regard and affection of the testatrix forth e appellee and his family, who were devisees and legatees under the will to a large amount, the appellee being the residuary legatee.</p> <p>The appellee then offered evidence to show, that a large part of the property of which the testatrix died seized and possessed was derived by her by inheritance from her son, David Hyslop, who died about the year 1831, under the age of twenty-one years, (at which time she was the wife of the appellee’s father); that the son was greatly and affectionately attached to the appellee, and frequently expressed his purpose and intention, if he should arrive at the age of twenty-one, to leave the bulk of his property to him; that his health, for two or three years before his death, was very much impaired, and he often expressed fears that he might not live until he could lawfully dispose of his property by will.</p> <p>The appellee also produced circumstantial evidence, that the attachment of her son to the appellee, and the intention of the former as to a disposition of his property, were known to the testatrix; but he did not offer any evidence, that the testatrix ever expressed any intention to make provision for the appellee in her will, in consequence of the relation of her son to the appellee, or on account of his intention in favor if the appellee, as above stated.</p> <p>The appellant objected to this evidence, but it was admit* ted; and the jury returned a verdict, on the issue submitted to them, in favor of the appellee. The appellant thereupon moved that the verdict be set aside, and a new trial granted, on the ground, that the evidence objected to was not admissible, and should not have been permitted to go to the jury.</p> <p>The point of the admissibility of the evidence objected to was argued at length in writing, by P. Merrick, and E. Dexter, for the appellant, who cited Best on Presumptions, 12, 246; Wills, Circ. Ev. 37 ; 1 Stark. Ev. 40; Ellis v. Short, 21 Pick. 142; and by R. Choate and E. Wilkinson, for the appellee, who referred to Patterson v. Patterson, 6 S. & R. 55; Waddilove’s Dig. 320; 1 Jarm. Wills (2d Am. ed.) 80; Davis v. Calvert, 5 Gill & J. 269; Saph v. Atkinson, 1 Add. Ec. 162 ; Sperry v. Wilcox, 1 Met. 267; State v. McAllister, 11 Shep. 139.</p>

This was a proceeding in equity, under the general chancery jurisdiction of this court in matters of insolvency, to sel aside the discharge of Marshall Newell, an insolvent debtor granted him by the judge of probate for this county.

<p>Where the only trustee named in a trustee process is an incorporated banking company, the action must be brought in the county in which such company have their established or usual place of business.</p> <p>A trustee process, brought in a county in which no one of the trustees dwells, will oe dismissed on motion of a trustee named therein or of the principal defendant.</p> <p>If a trustee process is brought in the wrong county, as to the trustee, the action cannot be maintained upon a discontinuance against the trustee.</p>

This was a writ of entry, to recover one undivided eighth part of a lot of land, in Newburyport. On the trial, before Dewey, J., the judge being of opinion, that the demandant was entitled to recover, the tenant was defaulted, and the case reported for the consideration of the whole court. The facts, upon which the decision was founded, sufficiently appear in the opinion of the court. The case was argued and decided at a former term.

The defendants being on trial in the court of common pleas, before Perkins, J., on an indictment charging them with breaking and entering a shop in the night time, one Pearson was examined as a witness for the prosecution, and testified, among other things, that Mallory, one of the defendants, was a boarder in his house, and that the witness, in the absence of Mallory, seeing his valise partly open, and some unsealed letters exposed at the mouth of it, took some of the…

On the trial of this indictment before Perkins, J., in the court of common pleas, John B. Frye, who was also indicted for the same offence, was called as a witness for the prosecution, and made no objection to testifying.

The defendant, having been convicted before a magistrate on a complaint for an assault and battery, appealed to the court of common pleas, where he was tried before Hoar, J., and convicted, and then moved in arrest of judgment. The judge overruled the motion, and the defendant excepted.

The defendant, having been convicted before a magistrate on a complaint charging him with an assault and battery, appealed to the court of common pleas, where he was tried before Soar, J., and convicted. The case came to this court by exceptions.

<p>Where evidence is given of circumstances tending to prove a sale of a chattel, no presumption arises, that the sale, if made, was an absolute one; but it is to be left to the jury, upon all the evidence, to decide whether it was absolute or conditional ; the burden being on him who alleges a sale to prove either an absolute one, or a sale upon a condition precedent, which has been performed.</p>

<p>This action, which was brought by the plaintiff to recover his salary as principal of one of the grammar schools of the city of Salem, was submitted to the court upon an agreed statement of facts.</p> <p>The plaintiff was duly appointed principal of one of the grammar schools of the city of Salem on the 21st of December 1846, and immediately entered on the duties of the office, and continued to discharge them until the 1st of December, 1847. The salaries of the principals of the grammar schools were duly established at $700 a year, on the 6th of January, 1839, and were so continued, without any change, and without any action of the school committee thereon, until the 1st of June, 1847, when the committee, at a meeting duly called for the purpose, passed the following vote: “ That the salaries of the teachers of the grammar schools be hereafter $800 per year, and that the salaries of the assistant teachers, and of the teachers of the primary schools, that have been $150, be hereafter $200 per year.” The municipal year commenced on the 1st day of April.</p> <p>It was admitted, that the plaintiff was entitled to recover at the rate of $700 a year, and that the defendants paid into the court below, by leave of the court, at the June term, 1848, the sum of $304, which was the full amount due the plaintiff, unless he was entitled (which was denied by the defendants) to recover a further sum under the vote of the school committee, before recited, of June 1st, 1847.</p> <p>The amount specially appropriated by the city council of Salem for the salaries of teachers for the .municipal year 1847 was $17,025, and the amount actually paid during the the same year was $16,32643. But there was due and unpaid, at the close of that year, for the salary of the plaintiff, the sum of $304, and there were occasional vacancies in some of the schools, in the office of assistant teacher, during the year, but for which the amount specially appropriated would have been expended. The salaries of all the teachers, under the vote of June 1st, 1847, would have amounted to $18,500, exceeding the amount actually appropriated for that purpose $1875.</p>

This action was brought by the plaintiffs, as indorsees, against the defendant, as indorser, of a promissory note, signed by W. C. and A. S. Kelly, payable to the order of Kelly and Reed, and by them indorsed. The note was dated June 20th, 1845, payable in six months at either of the banks in Boston, for $483-94.

This action was brought by the payees against the drawer of an order, of which the following is a copy: — “ Mr. T. W. Herrick. Please pay to Messrs. Wheeler & Morton forty-two dollars, and charge same to the account of the house building on lot No. 16, on plan of Webster place, Newton, which is in your hands for sale. Newton, Dec. 23, 1845. Charles N. Souther.” The declaration contained the common money counts, and also a count on the order.

<p>A discharge in bankruptcy, taking effect on the 28th of June, 1842, is not a bar to the recovery of a qu irter’s rent falling due on the 9th of July following, the bankrupt having occupied the premises to the end of the quarter.</p>

This was an action of trespass for an assault and battery, tried before Mellen, J., in the court of common pleas. The alleged assault was committed in putting the plaintiff out of a railroad car, of which the defendant had charge as a conductor, on the Boston and Maine Railroad, from Lawrence to North Andover.

The petitioner applied to the county commissioners to assess his damages caused by the location and construction of the respondents’ railroad over and across Lis land.