Volume 59 — Allen's Massachusetts Reports

<p>By St. 1803, c. ill, annexing to Boston that part of Dorchester now known as South Boston, the selectmen of Boston were authorized to lay out such streets, in South Boston, as in their judgment would be for the common benefit of the proprietors of the land, and of the town of Boston; provided, that no compensation should be allowed the proprietors for such streets as should be laid out within twelve months from the passing of the act; and provided, also, that the town of Boston should not be obliged to complete the streets so laid out sooner than they might deem it expedient: In pursuance of this authority, the selectmen, within the twelve months, laid out various streets over the entire territory of South Boston, and among others a very long street, denominated Second street, which subsequently became distinguished into two parts, namely, Second street east, and Second street west, of Dorchester street: The mayor and aldermen, in 1831, adopted an order, that Second street west of Dorchester street should be made passable, and subsequently passed orders, in 1834 tnd 1836, appointing committees to “ cause Second street at South Boston tc be repaired and put in good order ” and “ to be properly graded and gravelled; ” in pursuance of which, that part of Second street, known as Second street west, had been completed and used as a highway; but no part of Second street east, though occasionaEy used as a highway, had ever been ordered to be completed and made passable, unless included in the above orders: In an action against the city of Boston, to recover damages for an injury occasioned by a defect in Second street east, it was held, that in order to render the defendants liable, it was not sufficient to prove, that the way complained of had been so travelled and used as to become a highway de facto; it must appear, not only that such way had been laid out, but that the mayor and aldermen, by an official act. had determined upon its completion, that is, when the same, should be graded, fitted for travel, and opened for use; and that the orders above mentioned related only to Second street west.</p>

<p>Every proprietor of upland bounding on the sea is entitled, under the colony ordinance of 1641, to the flats in front of his upland to low-water mark, or to the distance of one hundred rods, where the tide ebbs beyond that distance, of equal width throughout with his lot at high-water mark, wherever this is practicable.</p> <p>The division of flats among the proprietors of upland bounding on a cove is to be made, wherever the form of the cove will allow of it, by running a base line across the mouth of the cove, and drawing parallel lines at right angles with the base line, from the ends of the division lines of the upland to low-water mark.</p>

<p>The plaintiffs brought an action of assumpsit, declaring therein on the common counts for goods sold and delivered, and on an account annexed, to recover of the defendant the price of a quantity of flour. The plaintiffs filed a specification of their claim, in which they demanded of the defendants the sum of $ 126, with interest, being the price of certain flour sold to him, namely, ten barrels delivered on or about the 10th, and eleven barrels delivered on or about the 11th of August, 1847, the same being branded on the barrels with the ship ping-mark R, and being known partly as the “ Wilson ” and partly as the “ Bronson ” flour.</p> <p>At the trial before Bigelow, J., in the court of common pleas, it was in evidence on the part of the plaintiff, that early in August, 1847, Hurd, one of the plaintiffs, and the defendant, were together in a store, where the plaintiffs kept flour on storage, standing in front of a large quantity of flour piled together; that Hurd, addressing himself to the storekeeper, said: “ Mr. Call also takes the balance of the Wilson and Bronson flour,” being what was left of a lot put into the store in June, some of which had been previously sold to the defendant ; that the three thereupon counted the flour, as near as they could, and made it “ in the neighborhood ” of twenty barrels; that Hurd then told the storekeeper to separate this flour from the rest; that this was soon after done, and the flour rolled out near the back door of the store, separate from other flour; that while it was there so separated, one of the plaintiff’s clerks came up and counted the flour, and said he would give an order for it to the defendant, and did give him an order accordingly, dated August 6fh, 1847, describing it as twenty barrels, Wilson’s brand, seventeen, and Bronson’s, three ; that the clerk, when he counted the flour, found seventeen barrels of Wilson’s and three of Bronson’s separated from the other flour, and making a lot by itself, all of which bore the shipping-mark R upon it; that this mark was used to designate a whole cargo of flour, and did not denote its quality; that on the 10th of August, 1847, the storekeeper delivered to the defendant’s teamster ten barrels of flour, and on the next day eleven barrels, making twenty-one in all, bearing the shipping-mark R; that at the time of the delivery of the twenty-one barrels, the defendant did not deliver the order to the storekeeper, but that several days afterwards, and after having been asked for it several times by the storekeeper, he gave it to him as an order for flour which he had received; and that the flour delivered on the 10th and 11th of August to the defendant’s teamster was the same flour designated as the “ Wilson ” and “ Bronson ” flour, and which had been separated from other flour in the store, as above stated.</p> <p>On the part of the defendant, it was in evidence, that early in June, 1847, he bought of the plaintiffs a lot of flour of the like quantity, and bearing similar marks with that specified in the order of August 6th, as appeared by a bill rendered to him by the plaintiffs, dated July 8th, 1847, in which he was charged with twenty barrels of flour described in the same manner as in the order; and that the lot of twenty-one barrels delivered to him on the 10th and 11th of August was parcel of another lot, for which he had already paid the plaintiffs, and was not the flour described in the order, which the defendant contended he had never .received.</p> <p>Upon this evidence, the defendant requested the judge to instruct the jury, in the following terms : “ Where the plaintiff brings an action for goods sold and delivered, which are described in the bill rendered as being of a particular quantity, and by particular marks which identify the goods; and so describes them in his specification, under the common counts for goods sold ; and if the contract of sale is admitted, but the delivery is disputed; he is bound to satisfy the jury, beyond all reasonable doubt, that the goods so described were delivered; and evidence which shows that a different quantity of goods •of the same kind was delivered, but does not identify them by the same marks, will not support the action. This must be so, because the burden of proof is on the plaintiff as to delivery as well as sale.”</p> <p>The presiding judge did not instruct the jury, in the precise terms suggested by the defendant, but as follows : “ That the plaintiffs, in their specification of claim, sought to recover of the defendant the price of a certain quantity of flour, which they had set forth and described by certain particular marks and designations; that the burden of proof was on the plaintiffs to satisfy the jury of the sale and delivery of the flour, such as was described and set forth in their specification ; and that if the jury were satisfied, beyond a reasonable doubt, that the plaintiffs sold twenty-one barrels of flour to the defendant, ten barrels of which were delivered on or about the 10th of August, and eleven of which were delivered on or about the 11th of August, 1847, the same bearing upon the barrels the shipping-mark R, and known partly as the “ Wilson ” and partly as the “ Bronson ” flour, their verdict must be for the plaintiffs, otherwise for the defendant; in other words, that the plaintiffs had the burden of proof throughout, and must satisfy the jury that they sold and delivered the flour described and named in their specification of claim, (and not other flour,) to the defendant. If they were not so satisfied; or if they had reasonable doubts whether the flour named in the plaintiff’s specification was delivered on or about the 10th or 11th of August; or if other and different flour than that named in the specification was then delivered; their verdict must be for the defendant.”</p> <p>The jury, under these instructions, returned a verdict for the plaintiffs, and the defendant excepted.</p> <p>The case was argued in writing at the last March term.</p>

<p>This was an action of assumpsit, containing two counts, first, to recover compensation for transporting a cargo in the brig Pandora, from Wilmington, North Carolina, to cape Haytien, in the island of Hayti, and there" delivering the same safely; and, second, to recover for thirteen days’ demurrage at the latter place.</p> <p>The vessel sailed from Boston under a charter-party, executed on the 27th of June, 1846, in the usual form, “ for a voyage,” as described therein, “ from Boston to Wilmington, N. C., and from thence to cape Haytien, in the island of Hayti, and from thence back to Boston,” the defendants engaging to pay the plaintiff “ for the charter or freight of the said vessel during the voyage aforesaid, in manner following, that is to say, fifteen hundred dollars, say, so much in Hayti as the master may want for the disbursement of the vessel, and the balance on the discharge of the cargo in Boston, together with all port charges, lighterage and pilotage in Hayti ”; and the master to have what freight could be got from Boston to Wilmington.</p> <p>It was further agreed, that the defendants should furnish the necessary cargoes or ballast required for the safety of the vessel, excepting only to Wilmington, which was to be provided by the captain; that the cargoes should be received and delivered within reach of the vessel’s tackles ; that the defendants should “ be allowed for the loading and discharging of the vessel, at the respective ports aforesaid, lay days, that is to say, twenty-five running lay days in Hayti, and the cargo in Wilmington to be given to the vessel as fast as she can receive it, it being understood only that the vessel shall receive despatch in loading at Wilmington ” ; and in case the vessel should be longer detained, the defendants agreed to pay the plaintiff11 demurrage at the rate of twenty-five Spanish milled dollars per day, day by day, for every day so detained, provided such detention shall happen by default ” of the defendants or their agent.</p> <p>The vessel arrived at Wilmington, and there received a cargo of shingles and lumber, with which she proceeded to Hayti, where she arrived on the 7th of September, 1846, and on the same day the master reported himself to the consignees as ready to discharge the cargo. On the day after her arrival, there being sickness on board, the vessel was ordered into quarantine, and was removed from the place where she had been brought to anchor by the pilot, opposite to the town, to a smooth and safe place about one mile and a half or two miles off, on the opposite side of the bay, where she lay eight days.</p> <p>On the same day, the master went with the consignees, and made entry at the custom-house. The master, having ascertained that he would be permitted by the government to discharge the cargo while in quarantine, offered to do so; but the consignees refused to receive it, saying it would cost them to get it on shore double what it would if delivered where vessels usually discharged. The vessel, having been removed back by the commandant to her original position, commenced discharging on the 15th and finished on the 30th of September, 1846. The consignees were not willing to receive cargo after twelve o’clock in the day, and none was delivered after that horn’. The master commenced at four o’clock to make his raft, and got out what he could till twelve o’clock, when the consignees carried it ashore, and employed the afternoon in hauling it up. The vessel was lying at least a mile from the shore, and it took ten or twelve working days to get the cargo out. The consignees advanced to the master at cape Haytien $ 107.90.</p> <p>The loading of the vessel with a return cargo commenced on the 2d of October, and was completed by the 13th, and she sailed for Boston on the 15th, immediately after she had been cleared by the consignees at the custom-house. The delay of two days, after the loading of the vessel was completed, was occasioned by the master’s not obtaining the necessary papers; for which he knew of and could give no other reason, than that the consignees were not ready to clear him. The vessel was totally lost on West Caicos reef, and the cargo was carried by wreckers to Turk’s island and other places, and sold.</p> <p>The case was submitted to the court unon the foregoing statement of facts.</p>

<p>If a false and fraudulent representation, as to the condition or quality of an article, is made to one who is negotiating for the purchase thereof, as the agent of another, upon which representation a sale takes place, the principal may maintain an action thereon in his own name.</p> <p>The purchaser of a vessel, falsely and fraudulently represented by the seller as eighteen instead of twenty-eight years old, having sent her to sea before he had knowledge that such representation was false, and the vessel being afterwards condemned in a foreign port, it was held, that the purchaser was entitled to recover his actual damages, occasioned by sending the vessel to sea, not exceeding the value of the vessel.</p>

<p>A promissory note, given by a purchaser of goods in settlement of an account, Is not wholly avoided by proof that the prices of some of the articles charged in the account were fraudulently overcharged, and that some of the goods were inferior in quality to those bargained for; though such fraud, if duly specified in defence to an action on the note, might be given in evidence in reduction of damages.</p>

<p>This was a writ of entry, tried before Wilde, J., for the recovery of land on Fulton and Richmond streets, in Boston. The tenant held the premises as the lessee of Benjamin Wheeler, deceased; and the demandants claimed to recover the same as the devisees of the lessor, by virtue of an entry on the premises, on the 16th of October, 1848, for an alleged breach, by the defendant, of one of the covenants, contained in an indenture of lease of the premises from said Wheeler deceased to him.</p> <p>The covenant in question was expressed in the following terms: “ And the said Earle further covenants that he will not occupy, or in any manner suffer the buildings now on the premises, or which may hereafter be erected thereon, to be occupied, for dwelling-houses, or for any unlawful purpose whatever.”</p> <p>The lease also contained the following clause of reentry, which preceded the covenant above mentioned:</p> <p>“ Provided always, and these presents are on condition, that if the said rent shall be in arrears, or the said lessee, or his representatives or assigns, do or shall neglect or fail to perform and observe any or either of the covenants herein contained, which on his or their part are to be performed, then, in either of said cases, the lessor, or those having his estate in the premises lawfully, may immediately, or at any time hereafter while such neglect or default continues, and without further notice or demand, enter into and upon said premises, or any part thereof in the name of the whole, and repossess the same as of his former estate, and expel the said lessee, and those claiming under him, and remove his effects forcibly if necessary, without prejudice to any remedies which might otherwise be used for arrears of rent or preceding breach of covenant.”</p> <p>On the 16th of October, 1848, the demandants entered on the premises, and gave the defendant notice that they had done so, because he had broken the covenant above mentioned, by using the premises for unlawful purposes.</p> <p>It appeared, on the trial, that the defendant did not dwell on the premises, but occupied a portion thereof, in the rear of Richmond and Fulton streets, for his own business, which was that of a dealer in wood and hay ; and that he let the buildings situated on the remainder of the premises, and fronting on said streets, to certain tenants, who held and occupied the same under him. The demandants produced much evidence, that since the death of the lessor in June, 1848, these buildings had been used by the under-tenants, for the sale of spirituous liquors without license, and had also been kept by them in a disorderly manner, and at -times made use of for purposes of prostitution. But, after the demandants had called a large number of witnesses to this point, the judge interfered to stop the further examination of witnesses to the same point, and called on the tenant to state his defence.</p> <p>The tenant thereupon denied, that the demandants’ evidence established such a use, as would constitute a breach of the covenant; and contended that if it did, the clause of reentry did not apply to a breach of this particular covenant; but, if it did so apply, it was still incumbent on the demand-ants to prove, that the tenant was aware that the tenements were used for such unlawful purposes. But the presiding judge ruled, that the evidence established such a use as constituted a breach of the covenant; that the clause of reentry gave the demandants a right to enter for a breach of the covenant in question; and that the tenant was presumed in law to know that the buildings were used for unlawful purposes, if they were in fact so used.</p> <p>The tenant also contended, that it was incumbent upon fhe demandants, in order to entitle them to recover, to prove that the buildings were used for unlawful purposes, at the time of the entry for the breach of covenant. The demandants contended that this point was clearly established by the evidence which had been introduced; and, upon the tenant’s counsel being about to address the jury on this point, it was proposed by the demandants and agreed to by the tenant, that a verdict should be rendered for the demandants, and that if upon the evidence introduced, which was to be reported, the whole court should be of opinion, that the jury would not be warranted in finding a verdict against them on this point; or if the whole court should not sustain the rulings aforesaid; then the verdict should be set aside, and judgment rendered for the tenant; but, otherwise, judgment should be rendered on th'e verdict. indemnity; and that the said Woodman afterwards tendered and offered the demandant the principal sum of $ 6000, due on the mortgage, which the demandant also refused to receive.</p>

<p>This was a writ of entry commenced on the 13th of May, 1848, to recover a parcel of land, with the buildings thereon, situate in Grove street, in the city of Boston. The case was tried before Dewey, J., and by him reported for the consi delation of the whole court.</p> <p>The demandant, on the 1st of August, 1845, being the owner of the premises in question, made a mortgage of the same to William Minot, jr., to secure the payment of six thousand dollars, in five years, with interest thereon semi-annually; and, afterwards, on the 27th of December following, conveyed the estate, subject to the mortgage, to David Y. Kendall, Joseph Young, and George W. White. The deed to Kendall and others contained the following clause : “ And this deed is on the express condition, that said Kendall, Young, and White, their heirs and assigns, shall indemnify me, my heirs, executors, and administrators, from the payment of said principal sum and the interest thereon.” In the covenant against all incumbrances, the grantee excepted the mortgage, in these terms: “ Except said mortgage made by me to said William Minot, jr., which was given simultaneously with said conveyance to me, and said mortgage, with the interest as above, is to be paid by said Kendall, Young and White, their heirs or assigns.” The condition was again alluded to and excepted in the covenant of warranty, as follows : “ Except as to said mortgage, but against none other, it being expressly agreed and provided that said mortgage shall be paid as is named above.”</p> <p>It appeared in evidence, on the part of the demandant, that the interest which became due on the mortgage on' the 18th of February, 1848, for the preceding six months, amounting to $ 180, being unpaid, the same was demanded of the demandant by William Minot, the assignee of the mortgage, and the demandant paid the same on the 18th of March, 1848 ; that on the 22d of March the demandant entered upon the premises, in the presence of a witness, declaring that he made the entry in order to revest the estate by reason of condition broken; that he gave notice of such entry to one of the tenants on the 22d of March, and to the other on the 12th of May, 1848 ; and that he paid the interest which became due on the mortgage on the 1st of August, 1848.</p> <p>The tenants filed a specification of their defence, setting forth that the demanded premises became vested in Ivory H. Woodman, one of the tenants, on the 15th of January, 1848 ; that before any entry on the premises or claim by the demand-ant, Woodman tendered him the sum of two hundred dollars, in payment of the interest paid by him on the mortgage, and offered to indemnify the demandant therefrom, and from any trouble and expense to which he might have been subjected; that the demandant refused to receive the said interest and</p> <p>The tenants brought into court the sum of two hundred and. eight dollars, being the amount of the said sum of two hundred dollars with interest thereon, and offered to bring into court the amount of the demandant’s taxable costs, so soon as the same should be taxed by him; and they thereupon prayed that all farther proceedings should be stayed. The demandant refused to receive the amount so brought into court.</p> <p>The tenants thereupon gave evidence of the facts set forth in their specification, the tender being of a single sum of $ 6000, on the 24th of March, 1848, and also of the further fact, that on the 24th or 25th of March, 1848, the said Woodman tendered the sum of $ 200 to the assignee of the mortgage, for the interest which became due on the 1st of February preceding, which the assignee declined to receive, because the interest then due had already been paid by the demandant.</p> <p>The case was then taken from the jury, by consent, for the purpose of being reported as above for the consideration of the whole court; who are to decide, whether the demandant, upon the facts in evidence, is entitled to recover; and if so, whether all farther proceedings shall be stayed, and upon what terms.</p>

<p>In this case, which was before the court at the last term, (3 Cush. 191,) the court having then decided, that upon the facts stated in the bill, and others admitted by the parties, there was no trust, express or implied, disclosed in the bill, which could give the court jurisdiction of the cause, but that the plaintiffs might proceed nevertheless to establish a trust by other evidence, the plaintiffs now moved for leave to discontinue the suit without costs.</p>

<p>The plaintiff applied to the defendant, by letter, to guarantee “ G.’s debt and lug future purchases: ” The defendant answered, by letter, that “ in regard to G.’s indebtedness present and future,” he would guarantee the payment of the same for a commission of two and a half per cent, upon certain conditions, and among others, that the plaintiff, immediately upon selling goods to G., should give the defendant information of the amount sold at each sale, and of the time of credit; and that if the plaintiff accepted his offer, he should notify the defendant of the amount of G.’s indebtedness, give the defendant credit for the amount of his commissions on the same, and from time to time notify the defendant of sales to G. as they should be made: The plaintiff accepted the offer, notified the defendant of the amount and particulars of G.’s indebtedness, and gave the defendant credit for his commission thereon; but no further sales of merchandise were ever made by the plaintiff to G.: It was held: (I.) That the guaranty, so far as it related to future indebtedness, was limited to future purchases of merchandise by G.; (2.) That it was not discharged by an accidental omission, in the statement of G.’s indebtedness, of one sale of merchandise to him, or by the omission therefrom, in good faith, of the amount of interest due on a balance of account therein stated, or of the amount of a note of hand given by G. to the plaintiff, but not for merchandise; (3.) That the plaintiff, after the several terms of credit originally given had expired, having extended the time by taking G.’s notes for the whole amount of his debt, payable at a future day, without the knowledge or consent of the defendant, and without any subsequent rati fication or assent by him, the guaranty was thereby discharged.</p>

<p>This was a writ of error to reverse a judgment of the court of common pleas, rendered at the April term, 1847, in favor of the defendant in error against the plaintiff in error. The errors assigned were: “ That judgment was rendered by default at the first term, without any continuance, and that the said Morrison, at the time of the service of the original writ, was not an inhabitant or resident within this commonwealth, and that he had no notice of the suit.” The defendant pleaded, that the judgment was not erroneous in any matters of fact, as the plaintiff had alleged against him, and issue was joined on this plea.</p> <p>The defendant filed a specification of his defence, setting forth, that the plaintiff, if he was out of the state at the time of the service of the original writ, was estopped from reversing the judgment; that he intended to return before the entry of the action, and did in fact so return ; that he had notice of the suit, and saw the entry of the same upon the docket; that he was in court during the term, and knew that he had been de« faulted ; that he conversed with the defendant concerning the action, and with his attorney, before and after the entry thereof; that he saw the summons, and was aware, both before and after the suit, of the amount claimed therein; that he knew and admitted that the amount for which judgment was taken was rightly due; that he consented to' the judgment, and. never suggested to the defendant or his attorney, that the writ had not been properly served ; and that it was a benefit to the plaintiff, that the action was not continued. The defendant concluded his specification by alleging that a writ of error did not lie in such a case.</p> <p>The case was tried before Dewey, J., when the following facts appeared in evidence, and were reported by the judge for the consideration of the whole court, subject to all objections on the ground of competency, namely: That in February, 1847, and previous to the service of the wilt, upon which the judgment complained of was founded, the plaintiff had changed his residence from Roxbury, in this state, to Haverhill, in New Hampshire; that he had carried his furniture to the latter place, and had made arrangements for residing there ; that he said, before leaving this state, upon an inquiry why he carried up his furniture, that he preferred carrying it up by sleighing, and that he should not decide whether he would reside in New Hampshire, until after he had been there; and that he was residing there in the summer following. The presiding judge was of opinion, that the evidence was sufficient to show a change of actual residence, at the time of the service of the writ; although the plaintiff was then undecided how long he should remain resident in New Hampshire.</p> <p>The defendant, also, in order to show actual notice to ihe plaintiff of the pendency of the suit, and an assent to a judgment therein, called his attorney as a witness, who testified, that about the 1st of April, 1847, the plaintiff was at his office, wiien the suit in question was spoken of, and the plaintiff said he knew he had been sued, that the summons had been found in the entry of the house at Roxbury, and that he had left several days previous to the time of calling the docket foi April term, 1847 ; that the witness was examining the docket in the clerk’s office, in the presence of the plaintiff, and showed him the entry on the docket, and told him there was the action against him; and that the plaintiff thereupon stated that it was all correct, and that the defendant might take judgment..</p>

<p>This was a petition for partition, signed by Raddai Wight and Phoebe Ann Wight, his wife, in her right, Ira Greenough and Catherine Greenough, his wife, in her right, and Frederic Ockerhausen, in which the female petitioners and Ockerhausen prayed to have set off to each of them in severalty one twelfth part of certain premises described in their petition; the same being comprised in a devise from Hugh Hall to Benjamin Hall, contained in the last will and testament of the former, bearing date the 12th of June, 1773, and duly proved in the supreme court of probate for this county, on the 30th of July following. The clause in question was in these terms:</p> <p>“ To my son Benjamin Hall, the house where Pratt and Goldthwaite now dwell, with chaise-house, yard, and gardens; I also give him during his life the house next Mrs. Stratton’s, which I have let formerly to Badger and Greene, with yard and garden, and also the lot adjoining the same,” with other devises; “ all which I give to him during his natural life, but if he should marry and have children, then at his death I give the said houses and lands to his children lawfully begotten and their heirs forever.”</p> <p>It appeared, on the part of the petitioners, that Benjamin Hall, the devisee above mentioned, was married and had six children, lawfully begotten, namely: Benjamin, William, Polly, John Pitts, Sally, and Charles, of whom the first four-died previous to the year 1815, leaving no issue; that the remaining two, Sally and Charles, survived their father, Charles being still living; that Benjamin Hall, the devisee, who had been non compos and under guardianship as such from the year 1800 to the time of his death, died in 1830; that the daughter Sally, who survived hér father, was married previous to the year 1818, to Frederic Hausen or Ockerhausen, who died in 1818 ; and that Sally Hausen died on the 2d of October, 1843, leaving the female petitioners and Ockerhausen her children and lawful heirs.</p> <p>The respondent claimed the exclusive ownership of the premises described in the petition, in fee-simple, under three deeds of conveyance, namely: from John Pitts Hall to John Heard, jr., dated July 13th, 1813; from Frederic Hausen, above named, and his wife Sally Hausen, to Samuel Parkman, dated August 15th, 1818; and from Charles Hall to Calvin Washburn, dated May 11th, 1842. The several interests conveyed by these deeds became duly vested in the respondent by sundry mesne conveyances.</p> <p>By the deed from Frederic Hausen and Sally, his wife, to Parkman, the grantors, in right of the wife, remised, released, and forever quitclaimed 11 all the right, title, and estate ” which they had in and to a certain lot of land, described in the deed by metes and bounds, and as “ being part of the premises by Hugh Hall willed to Benjamin Hall, and after his decease to his children. Not meaning hereby to convey to said Parkman any right, title, or interest which Charles Hall, brother of said Sarah, ever had, in case he is now dead, in and to said premises, or which he may now have, in case he be alive.” The habendum clause, declared, that the premises were to be held by the grantee, his heirs and assigns, “ so that neither we, the said Frederic and Sarah, nor our heirs, or any other person or persons claiming from or under us or them, or in the name, right, or stead of us or them, shall or will by any way or means, have, claim, or demand any right or title to the aforesaid premises, or their appmtenances, or to any part or parcel thereof forever.”</p> <p>The case was submitted to the court upon the foregoing facts. If the petitioners should not be entitled to any share of the premises, the petition was to be dismissed with costs ; otherwise the cause was to stand for trial.</p>

<p>This was an action on the case on a special contract, dated May 22d, 1847, by which the defendant, a dentist, in Boston, undertook to send to the plaintiff, also a dentist, in Boston, custom in his business of dentistry, within six months, from which the plaintiff should realize the net profit of one hundred dollars; the plaintiff alleging in his declaration, after setting out the contract, that although the six months had long since elapsed, the defendant had not sent to the plaintiff custom in his business of dentistry, from which the plaintiff had realized a net profit of $100, but refused so to do. The defendant pleaded the general issue, and filed a specification of his defence, setting forth a performance of the contract on his part, and enumerating in detail the particular cases sent to the plaintiff.</p> <p>At the trial, before Bigeloiv, J., in the court of common pleas, the plaintiff gave evidence of the contract, and there rested his case. The defendant thereupon asked the court to rule that the plaintiff had not made out a prima facie case, and could not maintain this action for the following reasons : 1st. Because the plaintiff had not shown any breach of the contract on the part of the defendant, or offered any evidence tending to show any such breach ; 2d. Because it did not appear from the plaintiff’s declaration, or the proof offered by him, that the defendant did not, within the six months mentioned in the contract, and after the expiration thereof, pay and perform the contract to the satisfaction and acceptance of the plaintiff.</p> <p>On this motion being made, the plaintiff offered to abide by the decision of the court thereon, if the defendant would also rest his case there ; but the presiding judge declined to order him so to do, or to rule as the defendant requested, and stated that if the defendant had no evidence to offer, he should instruct the jury to find for the plaintiff. The defendant thereupon stated that he had evidence to produce, and introduced witnesses to prove that custom had been sent, in the instances mentioned in the specification of defence, under circumstances, which, the plaintiff contended, were such as to prevent their being allowed by the jury in performance of the contract. But there was no evidence, and it was not contended, that any other custom had been sent.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>The plaintiff brought her action to recover the value of a trunk and its contents, belonging to her, which, it was alleged, had been lost by the defendants, who had undertaken, as passenger carriers, to carry the plaintiff and her baggage from Boston to Bridgewater.- The case was tried before Wilde, J, from whose report thereof, for the consideration of the whole court, it appeared to be as follows : —</p> <p>The defendants were common carriers of passengers and freight from Boston to Fall River; their trains being drawn from Boston to South Braintree, where the Fall River railroad commences, by the engines of the Old Colony railroad corporation, under the sole direction of the conductors of the latter, and stopping to leave and take passengers on that road.</p> <p>The plaintiff purchased at the ticket-office of the Old Colony railroad, in Boston, two tickets, by one of which she became entitled to a passage from Boston to South Braintree, and by the other to a passage from South Braintree to Bridgewater, in the defendants’ cars. At the time of the plaintiff’s arrival to take the cars in Boston, the train for Bridgewater was not at the station to receive the passengers and their baggage, and the plaintiff delivered her trunk to one Fisher, the baggage-master of the Old Colony railroad at the station in Boston, who wore a badge marked “ O. C. R. R. Baggage-Master; ” the initials signifying “ Old Colony Railroad.” There was no evidence, that the persons appointed by the Fall River railroad company to receive baggage were then at the station, or that the trunk ever went into their possession; but it was in evidence, that Fisher had been in the habit, under these circumstances, of receiving the baggage of persons going in the defendants’ train, and afterwards delivering it to the baggage-master of the defendants.</p> <p>The plaintiff’s trunk, which contained articles of clothing, a bracelet, and three hundred and twenty-five dollars in gold pieces, was taken from the custody of Fisher, and carried to Holliston, where it was rifled of the most valuable portion of its contents. The trunk and a part of the contents were after-wards found, and restored to the plaintiff at the trial, and received by her in reduction of damages.</p> <p>The defendants contended, that they were not liable for baggage, which was lost before reaching South Braintree; but the objection was overruled.</p> <p>They also contended, that the trunk was never delivered to any officer or agent of theirs, for whose acts they were liable, But the presiding judge ruled, that the defendants were bound to keep an agent at the station in Boston, to receive baggage arriving under the circumstances mentioned above, and that if they failed to do so, and Fisher had been in the habit of receiving baggage so situated, a delivery to him was a delivery to them.</p> <p>The defendants further contended, that the plaintiff had no right to carry in her trunk more money than was enough for reasonable travelling expenses, and that they were not responsible beyond such amount for the money lost. But this objection was also overruled.</p> <p>A verdict was thereupon taken for the plaintiff, for the whole amount of her claim, with interest from the day of the loss, and the case was reserved and reported for the consideration of the whole court; with an agreement, that if the court should be of opinion, that the ruling was wrong as to the money, they might reduce the amount of the verdict to the proper sum.</p>

This was an action of debt for the rent of certain premises in Batterymarch street, in Boston, brought by the plaintiff against Brien Garland, John W. Langdon and William B. Spooner, the last two doing business as merchants under the firm of J. W. Langdon & Co. The declaration contained four counts.

<p>A party, whose name appears on a note as second indorser, having been placed there by him at the request of the promisor, after the note has been negotiated, (the parties intending thereby to create only the liability of second indorser,) cannot be charged as a joint promisor or guarantor, although the first indorsement was forged.</p>

The declaration in this case, which was an action of assumpsit, tried before Bigelow, J., in the court of common pleas, to recover the amount due on a promissory note, contained the common counts, and a count on the note in the usual form.

This was an action of debt on a judgment, recovered in an action commenced previous to the 9th of December, 1842, in the court of common pleas for the county of Strafford, in the state of New Hampshire, on the third Tuesday of January, 1843, against John Perkins, the defendant, and another, for $415, debt or damage, and $6.25, costs of suit. The trial was before Bigelow, J., in the court of common pleas.

<p>A bill in equity to enforce a trust, not arising by implication of law, respecting an interest in land, cannot be maintained, unless such trust is evidenced by an agreement in writing; and if it appear on the face of the bill, that the trust rests in paroi, the defence of the statute of frauds may be taken advantage of on demurrer.</p>

<p>If the husband of a woman, for whom personal property is held in trust, is possessed of personal property for which he is liable to be taxed, and is improperly taxed for a larger amount than he otherwise would be, on account of such property in trust, his only remedy is by an application to the assessors for an abatement.</p> <p>The provision of the Bev. Sts. c. 7, § 10, cl. 5, that all personal property held m trust, the income of which is to be paid to any married woman residing within the state, shall be assessed to the husband of such married woman, in the town of which he is an inhabitant, applies to property in the hands of a receiver of the circuit court of the United States, appointed by that court to hold and invest the same, and to pay over the income thereof to such married woman, until the fur ther order of the court.</p>

<p>This was a writ of entry to recover possession of a dwelling-house and appurtenances in Summer street in Boston and was submitted to the court upon the following agreed statement of facts : —</p> <p>The demandant, by an indenture of two parts, under seal, dated the 28th May, 1844, made a lease of the premises to the tenant, reserving certain rooms in the house for the use of himself and his family, for the term of five years from the 1st of June, 1844, with a proviso, that either party, if dissatisfied, might terminate the lease, by giving to the other party six months’ previous notice, and fulfilling all the other requirements of the lease until the expiration of the six months.</p> <p>The rent was fixed at fourteen hundred dollars a year, which the lessee covenanted to pay by furnishing good board, fuel, &c., for the lessor and his family, in the rooms reserved by him, for twenty-seven weeks in each year, between the months of October and May.</p> <p>The lease contained a clause, authorizing the lessor to enter and expel the lessee, if she should fail to pay the rent and taxes, or make or suffer any strip or waste of the premises, or fail to fulfil all the other requirements of the lease.</p> <p>If admissible in evidence, it was also agreed, that the premises were occupied as a first class boarding-house ; that the most usual time of hiring houses of that description was in the fall or spring of the year; and that the keepers of such houses derived the principal portion of their profits from boarders between the 1st of October and the 1st of May.</p> <p>The demandant, on the 6th of July, 1847, gave the tenant a notice in writing, signed by himself, of which the following is a copy : —</p> <p>“ Whereas, in an indenture of lease of a dwelling-house in Summer street, in Boston, dated May 28th, 1844, in which W. Baker is lessor and Sarah Ann Adams lessee, to which lease reference is hereby had, it was among other things provided ‘ that either party, if dissatisfied, may terminate the lease by giving to the other party six months’ previous notice and fulfilling all the other requirements of the lease until the expiration of the said six months; ’ now you, the said Sarah Ann Adams, lessee under said indenture, are hereby notified, that at the expiration of six months from this date I require possession of the premises named in said indenture, and do hereby give you the six months’ previous notice of the termination of said lease, and being within the meaning of the terms of said lease dissatisfied, I shall regard the said lease as terminated at the expiration of six months from this notice to you.”</p> <p>The demandant and his family boarded with the tenant according to the provisions in the lease, from the 14th of October, 1847, to the 6th of January, 1848.</p>

<p>This was an action on the case, tried before Wilde, J., for an alleged libellous publication by the defendant, reflecting injuriously on certain books of which the plaintiff was the author and proprietor.</p> <p>The declaration contained four counts, setting forth in substance, that the plaintiff was the author and proprietor of certain books, and the proprietor of the copyrights thereof, which were of great value, the books being of great utility, and held in great esteem; that he had incurred great expense in preparing large editions of these books for sale, and in procuring them to be introduced into schools; and that he had large quantities of them on hand, and was endeavoring by his agents to sell the same and to procure their introduction into schools, by showing, among other things, that they had been ordered by the proper authorities to be used. in the public schools in divers cities and towns in this commonwealth and elsewhere; but that the defendant, knowing the premises, to injure the plaintiff, and prevent the sale of his books, and to cause it to be believed that the use of the plaintiff’s said books had been ordered by the school committee of Worcester, in this commonwealth, to be discontinued in the public schools in that town, on account of the dissatisfaction of the teachers of said schools, falsely, wickedly, and maliciously did compose, print, and publish of and concerning the plaintiff’s said books, a certain false, scandalous, malicious, and defamatory libel in the words and figures following: —</p> <p>“ Copy of a Letter from Reo. Messrs. Sweetser and Smith, Members of the School Com mittee, Worcester, Mass.</p> <p>“ Worcester, Aug. 10, 1847. Charles Tappan, Esq. Dear Sir, —In reply to your letter respecting the use of reading books in our schools, the following statements will be sufficient. About two years ago, Swan’s books were introduced into our schools. Very soon some of the teachers became dissatisfied with the books. The subject was brought up in the meetings of the board, and after discussion, committed. The report of the committee was in favor of introducing Mr. William Russell’s books in all the schools, excepting the infant and the lowest class in the primary school. The decision of the board was nearly unanimous in favor of the report; and we do not think it would be possible to get a vote here to introduce Swan’s readers again. They may perhaps be continued in the lowest classes ; but in the higher grades, Russell’s are used, and also in the English and Classical High School. The action of our board is the best commendation that can come from this place in relation to the books. Very truly yours, S. Sweet bee, George P. Smith. Of the School Committee.”</p> <p>The declaration, in all the counts, concluded as follows: — “ By means of the committing of which said grievances, the plaintiff hath been and is greatly injured, the sales of his said books, and their introduction into the public and private schools of this commonwealth and in other states, greatly diminished, retarded, hindered, prevented and made more difficult and expensive, and the said books have been brought into discredit with and amongst the citizens of .this commonwealth, school committees, teachers of schools and other persons, and the value of the several copyrights thereof has been and is greatly impaired and diminished, and the plaintiff hath been and is, by means of the premises, otherwise greatly injured and damnified.”</p> <p>The defendant objected to the sufficiency of the declaration, and contended that it disclosed no legal cause of action. This objection being overruled for the purposes of the trial, the plaintiff then introduced evidence to prove, that he was the proprietor of the copyrights of the several books mentioned in his declaration; that the defendant published the circular or letter set out therein; that one or more of the statements in the letter were not true; and that there was a falling off in the sales of the plaintiff’s books in the years 1847 and 1848. The defendant thereupon contended, that as the words set forth as libellous were not'in themselves actionable, the action could not be maintained without an allegation and proof of special damage. This objection was also overruled.</p> <p>The defendant, in the course of the trial, contended that the plaintiff could not, under his writ and declaration, give any evidence of damages sustained by him, because no specific damage, nor any instance in which he sustained damage, was set forth in the declaration. This objection was overruled, and the plaintiff was allowed, among other things, to give evidence to the jury, that the number of books printed by persons with whom the plaintiff had a contract, by which he was to receive a certain sum on every copy printed, in the year ending August 1st, 1848, was several thousand copies less than in the previous year ending August 1st, 1847, and that this diminution was caused by the publication of the defendant.</p> <p>The defendant, having filed a proper specification of defence, introduced evidence, that he received the letter alleged to be libellous from Sweetser and Smith, whose names purported to be signed to it; that all the statements contained therein were true, excepting that relating to the use of Russell’s books; and that as soon as this error was known to Sweetser and Smith, they sent a correction of it to the plaintiff’s agents, and caused one to be published in the New England Puritan, a newspaper printed at Boston, and also requested the defendant to suppress the circular, or letter, and that he wrote them he would do so; and there was no evidence of any issue or publication of the circular by the defendant after that time.</p> <p>The defendant then contended, that the question of malice was one to be submitted to the jury; and that the publication of the letter by him was not malicious, provided it was done in good faith, in the ordinary course of his business, and in the reasonable belief that all the statements contained in it were true. But the judge ruled, that if any one of the material statements contained in the letter was untrue, the publication of it by the defendant was in law malicious, and the question of malice was not one to be determined by the jury; and he instructed the jury, that if the defendant received the letter alleged to be libellous from Sweetser and Smith, and believed the same to be the truth and nothing but the truth, and had reasonable cause for such belief, and published the letter innocently, and in the ordinary course of his business, yet that he was responsible if any part of it was false, and that in such case the law implied malice.</p> <p>Other exceptions were suggested, which, in consequence of the view taken of the case by the court, became immaterial. The jury returned a verdict for the plaintiff, with $117.83 damages. If the action cannot be maintained on the declaration, or if the question of malice was for the jury, the plaintiff is to become nonsuit. If any of the other exceptions are sustained, there is to be a new trial; if otherwise, judgment is to be rendered on the verdict.</p>

<p>This was an action of assumpsit, to recover the proceeds of the sale of ten barrels of pork, tried before Bigelow, J., in the court of common pleas, and brought into this court by exceptions.</p> <p>It was in evidence, on the part of the plaintiffs, that on the 15th of October, 1847, a mercantile house in New York consigned two hundred and fifty barrels of mess pork to Charles D. Gibson, a commission merchant, in Boston ; that the consignee, having duly received the pork, put about fifty barrels of it into his own store, and, for want of sufficient store room, placed the remainder in the cellar of the defendants’ store; that on the 29th of October, Gibson reconsigned two hundred barrels of the pork to the defendants, and drew on them, for his own account, a draft of $2300 which was accepted by them, the pork being then in then cellar; that on the 17th of November, the plaintiffs purchased of Gibson, and paid for ten barrels of pork, which, the plaintiffs insisted, were a part of the pork in the defendants’ cellar, and which the defendants alleged were a part of the lot in Gibson’s store; that at the time of the purchase by the plaintiffs, there was no delivery, but that on the 25th or 26th of November, the plaintiffs sent their servant to the store of the consignee, with authority to receive a delivery; that Gibson told the servant that the pork was in the cellar of the defendants, and sent his clerk there with the servant, for the purpose of making a delivery of the same ; that one of the defendants, after making some excuses for being unwilling to deliver the pork, finally told the servant and clerk, that they might go into the cellar, and select the pork and hoist it up, and in the mean time he would go and see the plaintiffs ; that the servant and clerk thereupon went into the cellar, selected ten barrels of pork having hoops of a particular ldnd, which they entirely separated from the rest of the pork, by rolling it to the front of the cellar, and proceeded to hoist the same into the first story; that they had hoisted up about one half of it, when the said defendant returned, and forbade the removal of the pork, and refused to allow the plaintiffs or their servant to take the same away; that afterwards, and before the 20th of December, the defendants sold the ten barrels and received the proceeds of the sale; and that on the 21st of December, which was before the commencement of this action, the plaintiffs demanded the proceeds of the defendants, who refused to pay over the same.</p> <p>It further appeared, that there was a balance of cash in the hands of the defendants to a larger amount than the proceeds of the pork in question ; and that the defendants, prior to their refusal to permit the same to be taken from their store, had received notice from the plaintiffs and from Gibson, that the ten barrels had been purchased and paid for by the plaintiffs.</p> <p>It was also in evidence, that Gibson endeavored to conceal from purchasers the fact, that the defendants had made advances upon the two hundred barrels of pork in their possession ; that he represented it as only being stored in the defendants’ cellar; that he was in the habit of treating it as his own, and had sold and received payment for several lots of it, as his own ; that the defendants knew of his conduct in this respect, and assented thereto ; and that the plaintiffs pm-chased and paid for the pork, without knowing that the same had been consigned to the defendants or advanced on by them.</p> <p>Upon this evidence, the presiding judge instructed the jury, that the plaintiffs might recover the proceeds of the ten barrels of pork in this form of action, if the jury should be satisfied from the evidence, that.the pork had been sold and delivered by Gibson to the plaintiffs, that the defendants had refused to deliver the same to them, and had afterwards sold the pork and received the proceeds, prior to the demand of the plaintiffs upon them for the money ; that the separation of the ten barrels from the mass and the hoisting of a portion of it from the cellar of the defendants, if the jury should find these facts proved, constituted a valid delivery thereof; that Gibson, the consignee, without proof of some special circumstances or authority, had no right to pledge the pork for an advance made to himself; that the defendants could not therefore acquire a valid lien thereon for their advances to Gibson, on his own account, or against boná fide purchasers, after a sale and de livery to them; that if the jury should find, that the defendants, prior to the demand of the plaintiffs on them for the proceeds of the ten barrels, had received a sum from the sales of the pork more than sufficient to reimburse them for their advances, and refused to pay over to the plaintiffs any part of such balance, the plaintiffs could recover in this action so much of the balance as would be equivalent to the proceeds of the ten barrels, if there was so much in their hands; and that if the defendants had allowed Gibson to treat the pork as his own, while in their possession, and, after their advances upon it, to sell the same to purchasers and to receive the proceeds, they could not set up their title as against bona fide purchasers, after a sale and delivery. On this last point, the jury were directed (neither of the parties objecting) to find specially.</p> <p>The jury returned a verdict for the plaintiffs, and found specially that the defendants had allowed Gibson to treat the pork as his own, and to deal with and sell it accordingly.</p> <p>The defendants alleged exceptions.</p>

<p>This was an action of assumpsit brought by the plaintiff to recover back a sum of money, paid by him to the defendant, under the circumstances set forth in the following agreed statement of facts : —</p> <p>In November, 1846, the bark Ackbar, belonging to the plaintiff and Samuel Cabot, of Boston, having met with a disaster at sea, nut into Cape Town, at the cape of Good Hope, to refit. The master, being in want of funds to pay the cost of necessary repairs, estimated at ¿£4662 Os. 9d., advertised for a loan, which was taken and the money furnished by Borrodailes, Thompson, Pillan and company, of Cape Town, at twelve and a half per cent discount, calculating the dollar at four shillings, and insuring the amount. P'or the money so lent, the master drew two bills of exchange on the ■owners, payable in thirty days after sight, for the sum oí $26,640.20, in favor of the lenders, and at the same time gave them a bond, by which he mortgaged, pledged, hypothecated and assigned to them the ship Ackbar and her freight, and the freight laden therein, together with all her tackle, apparel, furniture and appurtenances, as security for the sum of $26,640.20, and not to be delivered to any other purpose or use whatsoever, until payment of the bond should have been first made, together with interest on the sum stated from the day when the same should become due, according to the tenor of the bills of exchange.</p> <p>The following is a copy of one of these bills: — “Thirty days after sight, &c., pay to the order of Messrs. Borrodailes, Thompson, Pillan and company fifteen thousand two hundred and twenty-two x307x Spanish dollars for value received, and charge the same with or without further advice to the account of ship Ackbar for repairs and disbursements at this port.”</p> <p>The bill, of which the foregoing is a copy, was sent by the payees therein named, together with the bond above mentioned, to Prime, Ward and King, of New York, duly indorsed and assigned, to be collected for the account of the payees, and the defendant was employed by the holders to collect the same of the drawees in Boston.</p> <p>The bill was accepted, and when it became payable, the defendant, acting for the holders, required that it should be paid in Spanish dollars, to which the plaintiff replied that he would pay the same in American gold or silver coin. The defendant declared that he was willing to accept payment in American coin, provided the plaintiff would pay the additional sum of $304.44, as an equivalent for not paying in Spanish dollars; tint being the amount of premium, which Spanish dollars bore over American coin, in the markets of New York and Boston at that time; but the plaintiff declined making such farther payment. The demand of payment was then renewed, and the Ackbar being at that time in New York, taking on board a cargo for another voyage, the plaintiff" was apprehensive that the holders might libel the vessel and take possession of her under the bottomry bond, if he refused to pay .the sum demanded, and thereupon inquired of the defendant, whether if he should omit to pay the acceptance as demanded, the defendant would resort to his bottomry bond; to which the defendant replied, that he would resort to all legal remedies for its collection. The plaintiff then paid the sum due on the bill, together with the said further sum" of §304.44; protesting, however, at the same time, that he paid the last-mentioned sum under coercion, all legal remedies therefor being threatened; declaring that he should reclaim the money so paid as unlawfully claimed and paid under coercion; and notifying the defendant not to pay over the said sum of §304.44 to his principal.</p> <p>This action was brought to recover back the sum of §304.44, so paid by the plaintiff.</p>

<p>This was a writ of entry, brought to recover possession of two houses situated on the westerly side of Oxford street, in Boston. The writ was dated January 14th, 1848, and the case was tried before Dewey, J., by whom it was reserved and reported for the consideration of the whole court.</p> <p>It was in evidence, that on the 17th of February, 1842, the plaintiff entered into a building contract with Abijah S. Johnson, who was then the owner of the premises, relating to the houses demanded in this suit, which contract was duly recorded, as required by the Rev. Sts. c. 117, § 2, on the 30th Of May, 1842; that on the 30th of June, 1843, Johnson mortgaged the demanded premises to the plaintiff, by a deed duly acknowledged and recorded on the same day, to secure the payment of all such sums of money, as Johnson should be indebted to Robinson ; that at the date of the mortgage, Johnson was indebted to Robinson in the sum of $3940.59, and on the 25th of November following this indebtedness was increased by the sum of $207.63; that at the January term, 1844, of the court of common pleas for this county, the plaintiff filed a petition therein to enforce his lien under the building contract aforesaid; that such proceedings, all of which were admitted to be regular, took place thereon, that, at the next April term of the court, the plaintiff obtained a decree, and execution was issued accordingly, for the sale of the premises subject to the lien, and an application of the proceeds to the discharge of the plaintiff’s demand; that the execution was delivered for service to Daniel J. Coburn, a deputy sheriff, who made service thereof, and sold at public auction to the plaintiff, all the right which Johnson had in the premises on the said 30th of May, 1842, (having first given public notice of the time and place and purpoaes of the sale,) and conveyed the same, on the 24th of July, 1844, by his deed of that date, to the plaintiff; that at the time of filing the petition, Johnson was in possession of the demanded premises, and received the rents thereof until after the sale of the premises to the plaintiff, as above stated; that on the filing of the petition, notice thereof was ordered by the court to be given and was given to Johnson, as the owner of the land, and to all persons interested, as required by the Rev. Sts. c. 117, §§ 7, 8; but it did not appear, that any notice was given or ordered to be given to the defendant, although it was stated in the record of the proceedings, that notice had been given to all persons interested.</p>

<p>Whore the vendor of an article received in payment therefor a promissory note of a third person, falsely and fraudulently represented by the vendee to be solvent, together with an order on a third person for goods, which was duly paid, and the vendor returned the note to the vendee, on discovery of the fraud; it was held, that the vendor might maintain an action of assumpsit to recover the price of the article sold, deducting therefrom the amount of the order, without returning the latter.</p>

<p>This was an action of covenant, to recover aamages for the non-performance of an award, tried before Bigelow, J., in the court of common pleas.</p> <p>On the 3d of May, 1847, the parties signed and sealed an indenture of two parts, by which they agreed to a submission of certain matters between them to the award of arbitrators, in substance, as follows: —</p> <p>The submission first recites, that the defendant had determined to dissolve the copartnership existing between him and the plaintiff as bookkeepers and accountants and had proposed to the plaintiff, to leave all questions arising from such dissolution, and the rights and claims of each partner upon the other, and all matters and affairs growing out of the co-partnership, to the arbitration of two disinterested persons, who should hear the parties touching all matters of difference between them, and their respective claims upon each other, to which proposition the plaintiff had consented.</p> <p>The parties then agree to submit to the decision of the two persons, whose names should be indorsed on the back of the instrument, one of whom was chosen by each of them, respectively, all matters and questions relating to the partnership,— the dissolution thereof,— the transactions growing out of the same, — and all their respective claims and demands against each other, from whatever cause arising.</p> <p>The arbitrators awarded, that the defendant should give up to the plaintiff two notes (particularly described) which he held against the plaintiff, for the sum of $375, each ; that the defendant should assume all the liabilities of the firm, of every kind and nature, including all the expenses connected with the dissolution thereof, and of the reference; that the defendant should execute to the plaintiff a satisfactory bond to hold the plaintiff harmless from all such claims, liabilities, and expenses ; that the defendant should pay in cash to the plaintiff, the sum of six hundred dollars; that the defendant should have all the personal property and ■ books of debt due to the firm; and that the plaintiff should make and deliver to the defendant a transfer of all his interest in the same.</p> <p>The defendant objected to the award : — 1st, That the arbitrators had not passed upon all matters submitted to them; inasmuch as the submission embraced all personal liabilities, as well as those of a copartnership nature, and all claims for damages as well as claims on account; whereas the award only set forth, that the arbitrators had passed upon the co-partnership matters and the dissolution, and was silent as to all the other matters submitted. 2d, That the arbitrators, in awarding that the defendant should give up the two notes mentioned in the award, had exceeded their authority ; inas-' much as it did not appear by the award, that the notes were</p> <p>in any manner connected with the partnership or business transactions, upon which the arbitrators reported that they nod passed; and in order to give arbitrators the p iwer to inquire into the ownership or disposal of chattels, it must be expressed in the articles of submission.</p> <p>These objections were overruled by the presiding judge.</p> <p>The defendant then called one of the arbitrators as a witness, and offered to prove by him, that, although the award produced was signed by him, it was not in fact his award; because, upon the hearing, it was admitted by the parties, that forty-nine pupils had paid in advance to be instructed by them in the branches which they taught; that it would be worth ten dollars each to complete the instruction of these pupils; and that the party who should assume the liabilities of the firm should be credited with incurring an expense to that amount. The witness would also testify, that after hearing the parties, the arbitrators agreed upon and fixed the sum of six hundred dollars to be awarded in favor of the plaintiff-, that, in comparing the accounts and in fixing upon the amount due, they did not take into account the expense of completing the instruction of the forty-nine pupils, but entirely overlooked the same, thus making a difference against the defendant of four hundred and ninety dollars; and that the witness did not discover the mistake or omission, until after the arbitrators had made and published their award.</p> <p>The presiding judge ruled, upon this offer of evidence, that the defendant under his specification, that the award was made by mistake and misunderstanding, as to the matters submitted, by or on the part of one of the arbitrators, could not show that both the arbitrators overlooked or omitted to credit the defendant with the amount agreed to be credited for instruction ; and that if but one of the arbitrators was mistaken or omitted to make such allowance, the evidence was inadmissible, because the mistake, if proved, would not be sufficient ground for invalidating the award.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>If a tenancy at will, under a verbal lease, dependent on a condition, is terminated by a breach thereof, neither of the parties is entitled to notice under the Rev. Sts. c. 60, § 26 ; and if the tenant holds over, he is a tenant at sufferance.</p>

<p>This was an action of replevin, for six hundred barrels of flour, tried before Dewey, J., and reported by him for the consideration of the whole court. The material facts are as follows : —</p> <p>The plaintiff, in October, 1847, by his agent, Joseph B. Gardner, of Buffalo, in the state of New York, purchased six hundred barrels of flour, which the agent caused to be put on board a canal-boat at Black Rock, on the 23d of October, 1847, to be transported to Albany. The boat was owned by a company, known by the name of the Old Clinton line, engaged in the business of common-carriers between Buffalo and Albany. On receiving the flour, the agent of the company executed and delivered to the plaintiff’s agent duplicate bills of lading, by which the company undertook to deliver the flour to Witt, the agent of the Western railroad, at East Albany. One of the bills of lading was sent to Witt, and the other to the plaintiff, at Boston.</p> <p>On the arrival of the flour at Albany, November 5th, 1847, Monteath and company, the agents there of the Old Clinton line, called on Witt, and informed him that the six hundred barrels of flour had arrived, and asked him if he would take it off the boat that day. Witt said he would not, without mentioning any time when he would receive the flour; but only that the boat must take its turn. Boats arriving at East Albany, consigned to Witt or to the Western railroad, were discharged in their turns ; and in the months of October and November, 1847, there was a detention at East Albany, in unlading, of from one to three days.</p> <p>The agents of the Old Clinton line at Albany thereupon shipped the flour to the city of New York, by a company known as the Albany and Canal line, engaged as common-carriers in the transportation of merchandise between the city of New York and Albany, and received from the agents of the company $433.08, as and for the freight of the flour from Black Rock to Albany, and requested the company to ship the flour from New York to Boston, for the plaintiff.</p> <p>On the arrival of the flour at New York, Hoyt, the agent of the Albany and Canal line there, shipped the same for Boston on board the schooner, Lady Suffolk, of which the defendant was master, consigned to Horafce Scudder and company, agents of the Albany and Canal line, at Boston; and Hoyt at the same time remitted to Scudder and company a bill of- exchange, drawn by him, as agent, upon the plaintiff, payable to Scudder and company, for $494.33, which included the freight from Black Rock to Albany, and from Albany to New York, with instructions to Scudder and company to deliver the flour to the plaintiff, on his paying or agreeing to pay the amount of the said bill of exchange, and, m addition thereto, the freight upon the flour from New York to Boston.</p> <p>On the arrival of the defendant’s vessel at Boston with the flour, November 23d, 1847, the plaintiff demanded the same, and the defendant refused to deliver it, on the ground that he had a lien thereon for the freight. The plaintiff refused to pay the freight, and commenced this action of replevin to recover the flour.</p> <p>It was in evidence, also, that in the spring of 1847, the plaintiff made a contract with the Western railroad corporation, to transport over their road all the flour which he might have during the year at Albany, or at places west of Albany, the quantity not to be less than twenty thousand barrels ; in consideration of which the railroad corporation agreed to transport the same from East Albany to Boston for thirty-two cents a barrel, being three cents a barrel less than the usual charge of transportation; but there was no proof that this contract was known to any one but the parties to it.</p> <p>It was further in evidence, that the usual time for the transportation of merchandise from Albany to Boston over the Western railroad was two days ; and that the price of flour at Boston, between the 10th and the 30th of November, 1847, declined from fifty to seventy-five cents a barrel.</p> <p>The plaintiff also introduced a letter addressed to him, under date of the 5th, and received by him on the 8th of November, 1847, from William Monteath and company, at Albany, in which they inform him that they had shipped his flour to New York, to be shipped from thence to Boston; that they had done so in consequence of the inability of the railroad corporation to receive the flour; and that this course would be better for the plaintiff than to have stored the flour, until the railroad company was able to receive it, which would have subjected the plaintiff to considerable expense. The plaintiff, in his answer, dated November 16th, 1847, which was also in evidence, desired to know by what authority Monteath and company sent the flour to New York; and informed them that there would be a loss upon it in consequence, of from $300 to $400. He added, that he should make his claim for damages as soon as the flour had arrived and been sold.</p> <p>The plaintiff, upon this evidence, requested the judge to instruct the jury as follows : —</p> <p>1. That the Old Clinton company never acquired any claim against the plaintiff for freight; because the flour was not delivered at East Albany to Witt, as by the bill of lading the company contracted to do.</p> <p>2. That the Old Clinton company, by diverting the course of the flour, and sending the same by the way of New York, if such diversion was without the consent of the plaintiff, lost the lien which they might otherwise have had for the freight thereof from Black Rock to East Albany.</p> <p>3. That the Old Clinton company, by parting with the possession of the flour, if this was done without the consent of the plaintiff, lost the lien which they otherwise might have had for the freight of it from Black Rock to East Albany.</p> <p>4. That the defendant was bound to ascertain the title of the Old Clinton company and of the Albany and Canal company ; and if these companies, or either of them, diverted the course of the flour, without the consent of the plaintiff, the defendant had no lien or right to detain the flour against the plaintiff, for the freights claimed by the companies, or for his own freight.</p> <p>5. That the defendant, by notice of the lien sought to be enforced in favor of the Old Clinton company, and of the Albany and Canal line, was so far put upon inquiry, that he must be considered as having knowledge of the terms and obligations, under which the Old Clinton company received the flour.</p> <p>6. That usage or custom was not competent or admissible for the purpose of controlling the express provisions of a written contract.</p> <p>The defendant objected, that to have carried the flour across the river from Albany to East Albany, would under the circumstances have been a vain and useless ceremony ; and that the offer of it made by Monteath to Witt was sufficient; and he asked the court to instruct the jury, that the plaintiff had ratified the diversion, if any, by Monteath and company, by reason and as a consequence of his neglect to reply to the letter of November 5th until the 16th of November.</p> <p>The presiding judge having stated, that assuming the rule of law to be correctly laid down by the counsel for the plaintiff, upon the first, second, third, and sixth points, presented as questions of law; yet, nevertheless, if the defendant received the flour at New York from an agent of a forwarding line from Albany, with a request to transport the same to Boston, for the lawful owner thereof, and the defendant received the flour in the ordinary course of his business and in good faith, for the purpose of transporting it to Boston, and in entire ignorance of the original contract for the transportation of the same by the Old Clinton line to East Albany, and that the plaintiff desired its transportation thence by railroad to Boston, but under the belief, that this was an ordinary case of transportation of flour put into his charge by an authorized agent; if the defendant had performed the service of transportation from New York to Boston, under such circumstances, he would be entitled to his reasonable charges for freight, and had-a lien upon the flour therefor, which he might enforce, and might lawfully detain the flour until the same was paid; and that irrespective of the other questions of law raised, this would justify the defendant in refusing to deliver the goods, until the payment was made for such freight.</p> <p>It was then proposed to have the jury inquire, whether or not Witt, the agent at East Albany, authorized or consented that Monteath and company should send the flour by the way of the city of New York to Boston ; upon which a verdict was returned, as appears of record, that Witt did not authorize Monteath and company to forward the flour by the way of New York.</p> <p>If the instruction to the jury was correct, or if the more ex tended claim of the defendant, namely, to recover for money paid, for transportation to Albany and thence to New York, is well sustained, then judgment is to be entered for the defendant, with a proper entry as to a return of the goods replevied.</p> <p>If upon none of these grounds, or others properly open upon the case stated, the defendant has a lien upon the flour, or a right to detain the same, then judgment is to be rendered for the plaintiff, with nominal damages.</p>

<p>In this case, which was an action of assumpsit, tried before Bigelow, J., in the court of common pleas, to recover the amount of a promissory note signed by the defendant, and indorsed to the plaintiff by Perley R. Slater, after the same •had become due and payable, the defendant filed an account against Slater, in set-off, consisting of various items, among which was a charge for three months’ labor, $90; a charge for a promissory note of David Olmstead, $86; and a charge for cash lent, $50; in proof of which, he offered his book of original entries, supported by his suppletory oath.</p> <p>The plaintiff objected to the admission of the book in evidence to prove the second and third items of charge, and the judge sustained the objection; and, when the case was closed on both sides, the judge instructed the jury, that the book was equally incompetent to prove the charge for three months’ labor ; and that unless they should be satisfied by other evidence, that the charge for work was true, they ought not tv allow it in set-off in favor of the defendant.</p> <p>The jury returned a verdict for the plaintiff, and the defendant excepted.</p>

This case was submitted to the court of common pleas, • and to this court by appeal, upon an agreed statement of facts, from which it appeared as follows : — On the 5th of January, 1848, Bradbury entered into a written contract with Sargent, to erect a house for the latter in Brighton, and soon after caused a quantity of lumber, consisting of boards and timber, to be carried to Sargent’s premises, for the purpose of being used in the construction of the house.

<p>This was an action of assumpsit to recover, on the money counts, a sum of money paid by the plaintiff to the defendant. The case was tried before Byington, J., in the court of common pleas, and came to this court by exceptions.</p> <p>The plaintiff annexed to his writ a specification of claim, in which he set forth, that, on or about the 30th of September, 1847, the defendant made an agreement with him, to execute and deliver to the plaintiff a good warranty deed of a certain piece of land, with the buildings thereon, in Milford, when the plaintiff should have paid the defendant the sum of §500, as a consideration therefor, §100, on the delivery by the defendant of his bond conditioned to be void if the defendant should fulfil the agreement on his part, and §50, every six months thereafter, and should demand the deed at the defendant’s residence ; that, in pursuance of the agreement, the plaintiff, on or about the said 30th of September, paid the defendant §100, and took possession of the premises ; that the buildings on the premises were soon afterwards accidentally destroyed by fire, whereby the principal part of the consideration of the agreement, on the plaintiff’s part, failed; and that the plaintiff had rescinded the agreement, if there was any, and demanded the sum paid by him, and had delivered possession of the premises to the defendant: Wherefore, and because the agreement was void for fraud and misrepresentation on the part of the defendant, and for not being expressed in writing signed by the plaintiff, the plaintiff claimed the sum of money paid as above, and brought this action to recover the same.</p> <p>The plaintiff introduced one Reed as a witness, who testified, that in September, 1847, he saw the plaintiff pay the defendant §100 ; that he witnessed a bond given at the same time by the defendant to the plaintiff, concerning the land for which the money was paid; that he did not hear the bargain, nor much said about the house; that he understood, that the house foi which the payment was made was in Milford, though he did not hear the parties say, that the payment was for the house ; that after the bond was executed, he helped tc compare it with the defendant’s deeds, in order to see that the land was correctly described in the bond; that he did not know whether the plaintiff took the bond or notthat after the plaintiff paid the money, the defendant said that if he failed to meet the payments, he would forfeit what he had paid; that the defendant did not say how many payments were to be made, but that $500 was to be paid in all, and that the remaining payments were to be made semi-annually, and it would take four years to complete the payments.</p> <p>At this point in the trial, the defendant insisted that the evidence given by Reed, in connection with the specification of the plaintiff, so far showed that there was an agreement in writing between the parties, in relation to this payment, that the plaintiff ought to produce such agreement, or account for its non-production, before proceeding further with his paroi evidence as to the agreement of the parties. The plaintiff objected, that there was not sufficient evidence, that he had accepted or received the bond, or that it was ever executed, in order to require him to produce it, or account for its non-production. But the judge ruled otherwise, and required the plaintiff to produce the bond.</p> <p>The plaintiff thereupon denied that he ever accepted the bond; and the defendant’s counsel then stated and admitted, that the bond witnessed by Reed, soon after its execution, and on the same day, was redelivered to the defendant by the plaintiff, because of some error therein in the description of the premises; and that a new bond, similar in all respects to the first, except that the error in the first was corrected, was executed and delivered by the defendant to the plaintiff, and was substituted and received in place of the bond first executed; and that the first bond, being thereafter of no use, was lost or destroyed, and was not in possession of the defendant.</p> <p>The plaintiff then called one Grant as a witness, who testified, that at the request of the defendant, in the fall of 1847, he witnessed the defendant’s signature to a bond, which, the witness presumed from what was said, was to the plaintiff</p> <p>The plaintiff thereupon produced and read in evidence a nond signed by the defendant, and witnessed by Grant, and proposed to make it a part of his case only as evidence of the defendant’s admission of the facts therein stated; insisting, at the same time, that he had not received or accepted it, in lieu of the first bond, and that the defendant was bound to prove that he had so accepted it.</p> <p>The presiding judge ruled, that the admission of the defendant, by his counsel, must be taken all together; that in connection with the plaintiff’s possession of the second bond, and his specification of claim, it was evidence to show, that the plaintiff had accepted the second bond in lieu of the first; and that the plaintiff could not, as the case stood, restrict the effect of the bond, when given in evidence, and consider it merely as a written admission of the contract of the parties, and not as itself the contract between them.</p> <p>It appeared that a demand had been made before the commencement of the action; and it was admitted, that the house on the premises in question was burned down, whilst in the possession of the plaintiff, a few weeks after the bond was executed.</p> <p>The plaintiff having no further evidence to produce, the presiding judge ruled, that he could not maintain his action in the present form, and directed the jury to find a verdict for the defendant, which they accordingly did, and the plaintiff excepted.</p>

<p>A testator, having devised the use and improvement of his real estate to his wife, for her life, and the remainder after her decease to his daughter, E. B., and the children of his daughter, M. P., and the children of his daughter, M. L., to them and their heirs and assigns forever, in fee, “ in manner following, namely: one third part thereof to my said daughter, E. B.; one third part thereof to the children of my said daughter, M. P., and the survivor or survivors of them; and one third part thereof to the children and survivor or survivors of them, of my said daughter, M. L.” It was held, that the children of M. L. took vested remainders, as joint tenants, on the death of the testator.</p>

<p>The owner of a vessel having covenanted with the mortgagee thereof, “ forthwith as soon as may be ” to sell the vessel, “ for the largest sum that he could reasonably obtain for her,” and to pay the proceeds, deducting certain expenses and charges, to the mortgagee; it was held, that the owner was entitled to a reasonable time, such as a man diligent in business would require, within which to make the necessary preparations for and to effect a sale, and that if the vessel was lost in the mean time, the covenant was at an end.</p>

<p>This was an action of assumpsit, to recover the price of a quantity of Pictou coals, alleged to have been sold and delivered by the plaintiff to the defendants. The declaration contained four counts, namely, a general count, charging the defendants, among other things, with being indebted to the plaintiff for goods sold and delivered, and on an account annexed ; two counts on promissory notes, described therein, alleged to be subscribed by the defendants by the name of Horace Gray and company; and a special count on an alleged agreement, made on the 12th of May, 1847, between the plaintiff and the defendants, for the sale and delivery of a quantity of Pictou coals, and averring a delivery of certain specified cargoes thereof, in pursuance of the agreement.</p> <p>The defendants pleaded the general issue; and, requiring the plaintiff to prove his declaration, for specification of matters not proper to be given in evidence under the general issue, upon which they should rely, they alleged : 1st, A payment of each and all claims against them, which the plaintiff might establish under the general issue; 2d, Accord and satisfaction of all claims which the plaintiff might so establish ; and 3d, That an exclusive credit was given by the plaintiff to the mercantile firm of Horace Gray and company, for all the demands set forth in the declaration.</p> <p>The case was tried in this court, before Dewey, J., by whom it was reserved and reported for the consideration of the whole court, in substance as follows: —</p> <p>The defendants were a manufacturing corporation, established by an act passed on the 13th of June, 1822, by which they were entitled to all the privileges, and made subject to all the duties and requirements, of manufacturing corporations, as contained in the act of 1808, c. 65, for defining the general powers and duties of those corporations.</p> <p>The plaintiff produced the notes declared on, and also in support of his action, gave in evidence a paper dated May 12th, 1847, addressed by him to the Boston Iron company, by which he agreed to deliver to the latter, at suitable wharves in Boston, during the then present year, from one to three thousand chaldrons of coarse Pictou coals, (accidents at the mines that might prevent the delivery of the same excepted) at $6.60 a chaldron, custom-house measurement, on a credit of six months.</p> <p>It was also in evidence, for the plaintiff, that several cargoes of coals were delivered by him, pursuant to the agreement, at wharves in Boston designated by the defendants through the agency of Horace.Gray and company, some of them at the works' of the Massachusetts Iron company at South Boston; that bills were thereupon made out, by which the defendants were charged as the debtors for the coals so delivered, which bills were sent to the counting-room, occupied in common by the defendants, and by Horace Gray and company ; and that notes for corresponding amounts and terms of credit were returned therefor, which were received by the plaintiff in payment of the bills rendered ; the notes given in payment for the cargoes delivered at South Boston, among which were the notes declared on, being signed “ Horace Gray & Co.,” and the others “ Boston Iron Co., by Horace Gray & Co.”</p> <p>The defendants contended, that the contract in question was not made with the Boston Iron company, but with Horace Gray and company; that the paper declared on and in evidence was not the contract; that the coals sued for were not all delivered to the defendants, but that the defendants paid for all they had received; and that if the contract was made with the Boston Iron company, and the coals were delivered to them, the plaintiff had received payment of the price, by taking the notes of Horace Gray and company for the greater part of the sum due.</p> <p>The plaintiff contended, that the coals were delivered to the defendants, according to the order of Horace Gray and company, who were the sole agents of the defendants; and he offered to give up to the defendants the notes of Horace Gray and company declared on, to be cancelled, if the defendants would receive the same, which the defendants declined to do. The plaintiff also contended, that the notes of Horace Gray and company were received by him through mistake and ignorance, occasioned by the acts and fault of the defendants; and, therefore, that he had a right to maintain this action against the defendants, who were originally liable; and, further, that the defendants and Horace Gray and company had so transacted their business, as to hold themselves out to the world as one and the same concern ; and, therefore, that the defendants were bound by the notes of Horace Gray and company given in payment of the debts of the former, and had adopted such notes as their own.</p> <p>It appeared in evidence, that the defendants were duly organized and engaged in the business of manufacturing iron, employing workmen for that purpose, and buying and selling iron, and transacting other business, incidental thereto, at the Mill-dam, in Boston; that for several years prior to May, 1847, the persons constituting the Boston Iron company had been reduced to a small number, of whom Horace Gray was the largest proprietor; that they had no meetings for business, except their annual meetings ; that their whole business, for some years, had been conducted, in fact, by Horace Gray and company as agents, though it did not appear that there was any vote on their books appointing them as their agents, or appointing any agents, or defining or limiting the powers of agents, except votes giving Horace Gray and company general authority to sign and indorse notes for payment of money in behalf of the defendants; that the house of Horace Gray and company was a mercantile firm, consisting of Horace Gray and Nathaniel Francis, engaged in business in Boston, and having the care and agency of many other companies and works for the manufacture of iron, having distinct names, of which Horace Gray was the sole or principal proprietor; that the coals for all these establishments were bought, and contracts made, and their business conducted by Horace Gray and company, generally in their own name, they receiving a commission for so doing, and often giving their notes for debts thus incurred; that Horace Gray and company and the defendants transacted their business in the same counting-room, upon which each had a sign affixed; and that after the notes declared on were given and before they became due, Horace Gray and company failed, and went into insolvency, and were, in fact, insolvent.</p> <p>The plaintiff introduced witnesses, who testified, that they had had dealings with the Boston Iron company, and with Horace Gray and company, and supposed them to be one and the same concern; that they had made and sent bills to the Boston Iron company, and to the Massachusetts Iron company, and had received in payment thereof, especially of the latter, the notes of Horace Gray and company; that the Boston Iron company had paid the wages of persons engaged in the works at South Boston; and that the title to the land and water-power in the occupation and use of the Boston Iron company was in Horace Gray’s name.</p> <p>The defendants offered evidence to prove, that the Boston Iron company kept their accounts distinct from those of Horace Gray and company, and that they gave notes signed “ Boston Iron company, by Horace Gray and company,” for the debts of the company; and, further, that for one of the cargoes of coals delivered by the plaintiff, they sent back a bill made out therefor by the plaintiff to the Boston Iron company, and requested two bills to be made out and returned, one for a portion of the coals to the Boston Iron company, and the other, to the Massachusetts Iron company, for the former of which a note was given in the form above described, and for the latter the note of Horace Gray and company.</p> <p>Upon the foregoing evidence, the defendants prayed the judge to instruct the jury, as follows: —</p> <p>1. That the plaintiff, having counted on the notes in evi dence, and now seeking to recover on them, could not at the same time aver that he had so surrendered the notes, that they did not amount to payment.</p> <p>2. That, as the defendants’ corporate name did not appear on the notes, and'the notes on their face did not disclose any agency, Horace Gray and company, the signers, and not the defendants, were bound thereby.</p> <p>3. That even if the plaintiff had mistaken the law in the latter respect, this would not give him a right to surrender the notes, and treat them as no longer payment.</p> <p>4. That the plaintiff would not be entitled to surrender the notes, and treat them as no longer payment, unless he should first satisfy the jury, that Horace Gray and company held out to him, that their names signed to these notes bound identically the same parties and no others that the name of the Boston Iron company would do; that he acted on the faith of such holding out; and that such holding out was knowingly sanctioned by the defendants, or was so public and so often repeated, that the jury might justly infer that it was known to the defendants, and sanctioned by them.</p> <p>5. That as the rights of the parties did not turn upon the distinction between a corporation and a partnership, but upon the identity of the persons represented by the different names of Horace Gray and company, and the Boston Iron company, and upon the plaintiff’s belief of that identity, warranted by the conduct of Horace Gray and company, and knowingly sanctioned by the defendants; it was not necessary that the plaintiff should have known that the defendants were a corporation, and immaterial whether he thought them a corporation or a partnership; and that if the jury should find, that such holding out was in a few cases only not shown to have been known by the plaintiff, this would not justify them in finding that the plaintiff knew of such holding out, or acted upon the faith of it.</p> <p>6. That notice to the plaintiff, that there were turn concerns, one trading under the name of the Boston Iron company, and acting by Horace Gray and company, as their agents, and the other trading under the name of Horace Gray and company, acting in their own names, was notice that the name of Horace Gray and company did not bind the Boston Iron company, and that if the plaintiff thereupon assumed, without inquiry, and contrary to the fact, that these concerns were composed of identically the same persons, this assumption was at his own risk, and would not entitle him to surrender the notes, and aver that they were no longer payment.</p> <p>7. That if the plaintiff knew, when the last two cargoes of coals were delivered, that they were delivered to the Massachusetts Iron company, to be used by them, and, in point of fact, Horace Gray and company, as agents of the Boston Iron company, had no authority to make such delivery, the plaintiff could not charge the Boston Iron company for coals so delivered.</p> <p>8. That the acts of Horace Gray and company, and the knowledge of Horace Gray and company, were not the acts or knowledge of the defendants, except in reference to those matters which were within the scope of their authority as agents; and that if Horace Gray and company, without authority from the defendants, held out to the public that their names would bind the defendants, the latter were not bound by the knowledge of Horace Gray and company, that they had so held themselves out; and that to bind the defendants. it was necessary to bring home knowledge to them in some other way than by showing such knowledge on the part of Horace Gray and company.</p> <p>The presiding judge stated to the jury, that the case presented two general questions, namely : 1st, Whether there was an original indebtedness, on the part of the defendants, to the plaintiff, as alleged by him ; and 2d, Whether such indebtedness, if it once • existed, had been discharged by the notes received by the plaintiff, with the signature of Horace Gray and company, to the extent of such notes.</p> <p>The judge then instructed them, as to the first inquiry, that the burden of proof was on the plaintiff, to show such original indebtedness; and that in order to establish such indebtedness, and maintain the present action, it was necessary for the plaintiff to show a delivery of the coals in pursuance of the contract, and at the place stipulated therein, if one was specified, unless the place was changed with the consent of the vendee; but that if the vendee, before the delivery, had signified to the vendor, that he wished to have them delivered at another place, and the delivery was thereupon made in accordance with the directions of the vendee, such delivery would be good and sufficient, and the vendee could not object to the place of the delivery.</p> <p>Upon the second point, the jury were instructed, that the taking of a negotiable promissory note for a preexisting debt was primd facie a discharge of the original indebtedness ; that the burden was on the plaintiff to show some sufficient and legal reason for taking the case out of the general rule; that he must control the effect which the law otherwise gives to the acceptance of negotiable notes, by the case shown upon the evidence, or the receiving of them would operate to discharge the preexisting debts for which they were received ; and that in the present case, as, on the face of these notes, they purported to be the notes of third persons, the plaintiff had the further burden to show some sufficient reason why the receiving of them did not discharge all liability on the part of the defendants, to the amount of such notes.</p> <p>The plaintiff had assumed this burden, and had attemntcd to show: 1st, That the notes in question were in fact the notes of the defendants, who had adopted the form here used, as their mode of signature to contracts of this nature; 2d. That the plaintiff, having a legal demand against the defendants for articles of merchandise sold to them, received the notes on account of such indebtedness, under a misapprehension of fact as to the identity of Horace Gray and company and the Boston Iron company ; the plaintiff acting under the belief, that they were the same, and such belief being wholly caused by the acts of the defendants and their agents, to whom were intrusted the superintendence and control of all their purchases and payments, and the general management of their business.</p> <p>As to the various prayers for instructions made on the part of the defendants, the judge instructed the jury as follows : —</p> <p>1. The plaintiff was not deprived of any right that would attach to a present surrender of these notes, by reason “ of his having counted on them, and now seeking to recover on them,” nor was he barred thereby of his right to recover on the other counts, if upon the case made he was otherwise entitled to recover on such counts, and not upon the notes.</p> <p>2. The jury were instructed, that the second prayer was adopted as correct in principle, and the jury would so consider it; but that this ruling was not to be@ understood to prevent the plaintiff from maintaining his action, if the jury should be satisfied: 1st, That these notes were in fact the notes of the Boston Iron company, executed under a name adopted and sanctioned by them as indicative of their contracts; or, 2d, That the plaintiff received these notes upon a legal demand against the defendants, under a misapprehension of the facts, as to the matter that Horace Gray and company and the Boston Iron company were not the same; the plaintiff acting under the belief that they were the same, and such belief being induced by the acts of the defendants or their legal agents.</p> <p>3. 4, 5. The court adopted the third, fourth, and fifth prayers, and so instructed the jury.</p> <p>6. The court adopted the sixth instruction prayed for, as applicable to the case therein stated and supposed, and instructed the jury, that, in such a case, the notice would have the effect stated; but the jury were further instructed, that such notice, though effectual in the case supposed, would not prevent the plaintiff from maintaining his action, if these notes were, in fact, the notes of the defendants under a name which they had adopted and sanctioned, or if the plaintiff had received them as such, being induced to believe them so by Horace Gray and company, and this belief was sanctioned by the defendants.</p> <p>7. The case was left to the jury, as to this point, upon the instructions heretofore stated as to the delivery. In the view of the presiding judge,, the use to be made of the coals, if the same were to be used by the Massachusetts Iron company, and the plaintiff knew it, was not material; and that it was sufficient if the coals were delivered at the place designated by the defendants’ agent, and accepted by him for the defendants; no suggestion being made of any collusion with third persons, or any fraudulent purpose on the part of the plaintiff to injure or defraud the defendants.</p> <p>8. The judge ruled that the general position taken in the last prayer, and the principle of law therein stated, were correct, but accompanied this ruling with the further instruction, that if Horace Gray and Horace Gray.and company were the general and only agents of the defendants, vested with full powers to act in their behalf, in all matters of purchase and sale and giving notes, and in the business of the defendants generally ; and the concerns of the defendants in the way of business were wholly transacted by such persons and no others, and such had been the case for a series of years, and this had been knowingly sanctioned and permitted by the defendants; then it would be competent for the jury to find, that the defendants had notice of these acts of using the signature “ Horace Gray and company,” for the “ Boston Iron company” as promisors of notes, and to infer that they had sanctioned them: But whether these acts were so frequent and of such a character, as to satisfy the jury that Horace Gray and company, as agents, did so conduct in relation to the business of the defendants, and in giving the signature “ Horace Gray and company,” as the same with that of the Boston Iron company, to the creditors of the latter, as to furnish reasonable grounds for the belief on the part of the plaintiff, that he was receiving the notes of the Boston Iron company, was wholly left to the jury, under the various instructions given in the case.</p> <p>The jury returned a verdict for the plaintiff, for the entire amount of his demand ; and the case was thereupon reserved for the opinion of the whole court, upon the questions of law that arose upon the trial. If the ruling of the presiding judge should be a sufficient ground for a new trial, the verdict is to be set aside and a new trial granted; otherwise judgment is to be rendered upon the verdict.</p> <p>The grounds taken by the counsel sufficiently appear in the report of the proceedings on the trial, and in the opinion of the court.</p>

<p>The board of aldermen of the city of Boston having referred it to a committee to consider of a plan for widening B. street, and the committee having agreed upon a report of a plan for that purpose, an offer was made to the board, by one of the proprietors of land abutting on B. street, that if the city would establish a pro spective line for widening said street, according to the report of fhe committee, and would take from a certain estate, and the proprietors of certain other estates would give, sufficient land from said estates, respectively, for the purpose, such proprietor would give free of charge the necessary amount of land which might be required for the purpose from his estate: It was held, that if such offer was accepted in a reasonable time, and the condition complied with, the contract thereby formed was not invalid by reason of its supposed interference with the duty of the mayor and aldermen, in deciding upon the public necessity and convenience of the alteration proposed; but would estop such proprietor from claiming damages for his land, if taken therefor, and for the obstruction of his adjoining land, during the laying out of the street; that it was not necessary the mayor and aldermen should accept the proposal in direct terms or by a formal vote; but that it was sufficient, if they took seasonable measures to secure the actual fulfilment of the conditions of the offer, by making the necessary orders for carrying the proposed widening into effect, and by actually accomplishing the same; and that a year and four months was not an unreasonable time for this purpose.</p>

<p>In an action of trespass against an officer, for taking and carrying away goods, which he has attached and claims to hold as the property of the plaintiff, the officer is not estopped to deny the property of the plaintiff in the goods.</p> <p>An instruction to the jury, in an action of trespass for taking and carrying away goods, that, in order to entitle the plaintiff to a verdict, he must show a title to the property, or to some part of it, at the time of the alleged trespass, is not erroneous.</p> <p>It is no ground of exception, that paroi evidence was improperly admitted to prove a fact, which was fully proved by other competent evidence.</p>

<p>This action, which was assumpsit by the plaintiffs as the assignees of Laban and William T. Adams, insolvent debtors, against the defendants, for money had and received by them, as the property of the insolvents, was submitted to the court of common pleas, and came by appeal to this court, upon the following agreed statement of facts :—</p> <p>On the 3d of January, 1848, Laban Adams, Jr., and William T. Adams, then copartners in business in Boston, made their promissory note for $478.60, payable to the order of Emery and Tirrell, in one month after date. On the 15th of January, Emery and Tirrell indorsed the note, and procured it to be discounted, in the regular course of business, at the Boylston bank; and thereupon received from the bank the amount of the note, less the interest, and delivered the note to the bank, where it has ever since remained, in the possession and under the control of the bank. If the question, whether the note thereby became the property of the bank, is a question of fact, the plaintiffs admit that it did so; if it is a question of law, the court are to decide it upon the facts agreed.</p> <p>On the afternoon of the 4th of February, 1848, the promisors applied for the benefit of the insolvent law; whereupon, on the same day, a warrant was issued against their joint and separate estate, in pursuance of which, notice was given of the insolvency, by the publication of an advertisement thereof in two newspapers printed in Boston.</p> <p>The messenger, in his return upon the warrant, stated that the first publication of the notice was made on the 5th of February, 1848. Th^ advertisement, containing the notice duly signed, was delivered by the messenger, at or before five o’clock, on the 4th of February, to the printers, at the offices of publication of the newspapers in which the same was published, with orders to print the same in the next papers. It was put in type, and struck off on paper, at or before half-past eleven o’clock, P. M., of the same day, and the first delivery of the newspapers containing it was made at or before four o’clock, A. M., of the 5th of February, which was the next regular day of publication.</p> <p>The first meeting of creditors was held on the 18th of February, at which the plaintiffs were duly chosen assignees.</p> <p>The insolvents, before and at the time of filing their petition, had an account as depositors with the Boylston bank, and on the 4th of February, when the petition was filed, had the sum of $520.14, standing to their credit as depositors on the books of the bank.</p> <p>The messengers and the assignees, respectively, immediately after their appointment, duly demanded of the defendants the money deposited to the credit of the insolvents, which demands the defendants refused to comply with, claiming to hold the money as a set-off to the note above mentioned, which had not been paid by the insolvents. On the 19th of February the note was charged by the defendants in account against the Adamses, and on the same day, it was entered to the debit of the latter, in their account with the bank. At the time when the note became payable, Emery and Tirrell, the payees and indorsers, by whom the same had been discounted, had deposited to their credit in the Boylston bank an amount of money more than sufficient to pay the note, and then were and still are responsible and able to pay the same. Emery, one of the indorsers, was and is a director in the Boylston bank, and on the, 5th of February, 1848, called at the bank, and in behalf of the indorsers, waived the demand and notice required by law, and, at the same time, on behalf of Emery and Tirrell, agreed to give, and Emery and Tirrell afterwards did give, the defendants a bond or writing to indemnify them for holding the money in set-off, as above stated.</p> <p>On the 3d day of the October term, 1848, of the court of common pleas, the defendants paid into court the sum of forty-four dollars, which sum was to be considered as then stricken from the declaration.</p> <p>On the above statement of facts, the court of common pleas gave judgment for the defendants, and the plaintiffs appealed to this court.</p>

This was an action on the case, brought by Sarah C. Roberts, an infant, who sued by Benjamin F. Roberts, her father and next friend, against the city of Boston, under the statute of 1845, c. 214, which provides that any child, unlawfully excluded from public school instruction in this commonwealth, shall recover damages therefor against the city or town by which such public instruction is supported.

<p>This was an action of assumpsit on an award, to which the defendant specified in defence, among other things : 1st. That he was not a party to the submission; 2d, That the award was void, because evidence was received by the arbitrator in the absence of the defendant; and 3d, Because the award was made before the hearing was closed.</p> <p>At the trial, before Bigelow, J., in the court of common pleas, the plaintiffs produced the submission, the signatures to which were admitted. The defendant signed the same “ George Griggs, Agent ” ; and it did not appear, that he disclosed, or that the plaintiffs knew, the name of his principal. The plaintiffs produced the award, and called the arbitrator, as a witness, to prove the same, who testified that it was the award signed by him, and sent by him to the parties.</p> <p>The arbitrator was then examined by the defendant, and testified as follows : “ The hearing took place at the defendant’s office, and when it was closed, the defendant was told, in my presence, by Winsor, one of the plaintiffs, that there was a particular document in existence, which the defendant doubted, and we all went to Swan’s office to get it. Swan was not in his office, and the paper was not obtained. As we were coming away, I told the defendant and Winsor that I should like to have the document. Winsor said, 1 We will get it.’ When we separated, the defendant did not intimate that he wanted another meeting. The document was after-wards obtained by Winsor, and sent to me, without any thing further being done or said by him. I did not notify the defendant, that I had received the document, before I made the award, and I gave him no opportunity to be heard about it.” The witness, being then examined by the plaintiff, said, that 11 Griggs was present, when Winsor spoke of getting the bill, and assented to it; the evidence was closed; they said they had nothing more to say; Griggs did not say, that when the document was produced, he wanted to be heard on it.”</p> <p>No further evidence being produced, and it being admitted that the plaintiffs, after receiving the award, duly demanded performance of it by the defendant, the case was withdrawn by consent from the jury, and submitted to the court upon the above evidence, as upon an agreed statement of facts. The court of common pleas rendered judgment for the plaintiffs, and the defendant appealed to this court.</p>

<p>This was an action of assumpsit to recover for the work and labor of the plaintiff on the defendant’s farm. The defendant specified in defence, that the work and labor done for him by the plaintiff, if any, was performed under a special and entire contract, by which the plaintiff undertook to work for the defendant eight months, (embracing the period during which the labor sued for was performed,) which was broken by the plaintiff, and for the breach of which the defendant specified damages to an amount exceeding the services rendered.</p> <p>At the trial, before Wells, C. J., in the court of common pleas, after the counsel for the plaintiff had proceeded in the opening of the case, so far as to read to the jury the writ and declaration and specification of defence, a suggestion was made by the judge, as to one item of charge in the plaintiff’s bill of particulars, which the plaintiff thereupon abandoned, and the defendant then filed the following admission of the plaintiff’s claim : — “In this case, the defendant, to obtain the benefit of the forty-first rule of this court, admits that the plaintiff can make out a primd facie case for the cause of action set forth in his writ; and thereupon prays to be allowed to open and close the case to the jury, relying on the specific matter in defence heretofore filed by him.”</p> <p>The defendant contended that he was thereby entitled to the opening and close of the case; but the judge ruled otherwise, and the trial proceeded. The plaintiff having obtained a verdict, the defendant excepted.</p>

<p>If a lease for years provides, that in case the rent is not paid when due, the lessor may enter “ without further notice or demand,” and devest the lessee of his estate, no previous demand of rent is necessary, in order to entitle the lessor to enter.</p> <p>A clause in a lease for years, that, upon the breach of any of the covenants therein, the lessor may enter and expel the lessee, and remove his effects by force, if necessary, is not in contravention of the Rev. Sts. c. 104, § 1, requiring entry into lands and tenements to be made in a peaceable manner; and, in expelling the lessee under this clause, the lessor cannot lawfully resort to such a degree of force and violence, as would tend to a breach of the peace, but is limited to such an amount only as would sustain a plea of molliter manus impomit.</p> <p>If a lessee underlets a part of the demised premises, and the sub-tenant is recognized as such, and rent demanded of him. by the lessor, the lessee and sub-tenant are not jointly liable to the lessor, for the mesne profits of the whole premises.</p> <p>Where a joint action of trespass for mesne profits was brought against a lessee for years and his sub-tenant, the former of whom alone was liable therefor, the plaintiff was allowed to amend his declaration, by striking out the name of the defendant who was not liable.</p>

<p>A watchman of the city of Boston, who, while in the discharge of his duty as such, discovers a person setting fire to a building, and prosecutes him to conviction, is not entitled to claim a reward offered by the city government for the detection and conviction of an incendiary.</p>

<p>If one of several partners becomes an insolvent upon his own petition, setting forth that he is individually and as a partner insolvent, and an assignment is accordingly made of his separate estate, and of his interest in the joint estate of the partnership after payment of the debts of the firm, he cannot afterwards institute proceedings in insolvency against the firm, on a petition alleging the insolvency of the partnership, unless he allege also that the partners are individually insolvent.</p>

<p>This was an action of debt for two quarters’ rent, from the 1st of September, 1847, to the 1st of March, 1848, at the rate of five hundred dollars a year, reserved in a lease for years, from the plaintiff to the defendants, of certain premises in Woburn, known as the “Hills Mills.” The case was tried before Bigelow, J., in the court of common pleas.</p> <p>The plaintiff, by an indenture of the 1st of September, 1844, leased the premises to the defendants, Horace Collamore and Theodore Collamore, for five years, at an annual rent of five hundred dollars, payable quarterly on the first days of March, June, September, and December, in each year; and the lessees covenanted to pay the rent, except only in case of fire, or other unavoidable casualty, as specified in the lease. . The lessees also covenanted, among other things, that they would keep all and singular the premises in such repair, as the same were in at the commencement of the term, or might be put in by the lessor, or his representatives, during the continuance thereof, reasonable use and wearing thereof, and damage by accidental fire, or other inevitable accidents only excepted, and that neither the lessees, nor their representatives, should require the lessor or his representatives, to make any repairs upon the pre mises during the term, but that all the repairs should be made by the lessees or their representatives.</p> <p>The lease also contained the following clause:—“And provided, also, that in case the premises or any part thereof shall, during said term, be destroyed or damaged by fire, or other unavoidable casualty, so that the same shall be thereby rendered unfit for use and habitation, then and in such case, the rent hereinbefore reserved, or a just proportionate part thereof, according to the nature and extent of the injury sustained, shall be suspended or abated, until the said premises shall have been put in proper condition for use and habitation, by the lessor; or these presents shall be determined and ended, at the election of the said lessor or his legal representatives.”</p> <p>In the description of the demised premises, it was stated, that the mill on the street had a nine feet breast-wheel, and the south mill a fifteen feet breast-wheel, which latter was entitled to all the water flowing through the canal, except a six-horse power, reserved for the use of the factory belonging to Jacob Richardson.</p> <p>The defendants, having filed a specification of their defence, offered evidence that the two wheels mentioned in the lease had been in use in the mills for several years prior to the date of the lease, and during that time had been often out of order and repaired; that the larger wheel was out of order at the date of the lease, and had been so for two years previous, although it was then and had been constantly in use; that in the spring of 1846, this wheel broke down while running at its ordinary rate of speed; that in the fall of 1847, the other wheel also broke down, and was found to be rotten in several of its parts.</p> <p>The defendants also offered the testimony of millwrights, who had examined the wheels, that they were so rottsi. old, out of repair, and worn out, as to be almost worthless and that after they had broken down, they were nearly “ wrecks,” and not worth enough to be repaired; but the defendants offered no evidence, that the condition of the wheels, as described by the witnesses, was owing to any special cause, sudden event, or any accident, other than as above set forth.</p> <p>The defendants further offered in evidence the declarations of the plaintiff, made subsequent to the date of the lease, and some of them made after the wheels had broken down, for the purpose of showing how the plaintiff understood and construed the terms of the lease. For the same purpose, also, they offered in evidence a bill for one quarter’s rent of the premises, next preceding the two quarters sued for, receipted by the plaintiff, in which there was a credit of ¡$50, “ for an allowance on account of wheel.” The evidence was rejected.</p> <p>The defendants proposed to ask the millwrights introduced by them as witnesses, as experts, “ whether putting in a new wheel is considered a repair of a mill ? ” But the question was not allowed to be put.</p> <p>The plaintiff then offered the evidence of a millwright, who had examined the wheels, in order to show that they could be repaired without difficulty, and at a moderate expense.</p> <p>The presiding judge instructed the jury, that the evidence offered by the defendants, as to the condition and state of the wheels, did not show any unavoidable casualty, which would abate any portion of the rent, or suspend the same, and that upon the foregoing evidence the plaintiff was entitled to recover.</p> <p>The jury thereupon returned a v&dict for the plaintiff, and the defendants alleged exceptions.</p>

<p>The holder of a promissory note, secured by a mortgage of the real estate of the maker, is not obliged, as a condition precedent to maintaining an action thereon, to release his interest under the mortgage.</p>

<p>This was a bill in equity, brought by the plaintiff, as the only surviving son and heir of Hannah Keating, against Jonathan P. Hall and Thomas C. Smith, 'he executors and trustees under the will of Hannah Keating, for a conveyance to the plaintiff of the real and personal estate to which he was entitled, under the said will. After the cause had been heard, all persons interested were made parties to the bill, and appeared, namely, Oliver Keating, a brother of the half blood, and the children of Ruth Tuckerman, a deceased sister, also of the half blood, of the plaintiff.</p> <p>The case was submitted to the court upon the following agreed statement of facts : —</p> <p>Hannah Keating, widow, died on or about the first of March, 1845, having made her last will, which was duly proved and allowed, and which contained, among other provisions not material to this case, the following: —</p> <p>“ I give, convey, devise, and bequeath to my executors, hereinafter named, or the survivor of them, their heirs or assigns, all the rest and residue of my estate, real, personal, and mixed, to be held by them or the survivor of them, their heirs or assigns, for the following uses: The income to be paid semiannually to my daughter, Anna Storer Keating, and in case of her marriage, the trust to remain the same, the interest still to be paid to her on her own receipt. Further, the investment of the property shall be entirely at the discretion of the trustees. I hereby appoint Jonathan P. Hall and Thomas C. Smith to be the executors of this my said will, and trustees for my said daughter.”</p> <p>The testatrix, at her decease, left two sons and one daughter, who were her only heirs at law, namely, Horace Keating, Augustus Keating, and Anna Storer Keating.</p> <p>Augustus Keating died unmarried, without issue, and intestate, on the 5th of May, 1846; and Horace Keating, the plaintiff, and Anna S. Keating, brother and sister of the whole blood, and Oliver Keating, a brother of the half blood, and the children of Ruth Tuckerman, a sister of the half blood, deceased, were the only heirs at law of Augustus.</p> <p>Anna Storer Keating died on the 13th of November, 1846, having made her last will, bearing date the 7th of November, 1846, which was duly proved and allowed, by which she gave all her personal estate, after sundry specific legacies, to her brother Horace, and then added: “ All my right, title, and interest in the real estate, which I can devise, I give, devise, and bequeath to my aunt, Anna W. Storer, for life, and after her decease to said Horace and his heirs.”</p> <p>The defendants, Hall and Smith, hold by virtue of the will of Hannah Keating, the mother, certain personal estate of the value of about five thousand dollars, and real estate- in Boston of the value of $2100, or thereabouts.</p> <p>The case was argued in writing, on the bill and answer, at the last March term, by W. JDehon, for the plaintiff, and S. E. Guild, for the defendants.</p>

<p>The plaintiffs, on the 25th of October, 1849, filed a bill in equity in this court, alleging that they, together with the defendant, had entered into a copartnership, under the name of Hale, Rice and Amory, to continue for three years from the 15th of January, 1847, unless sooner dissolved; that the plaintiffs were each to furnish the sum of $12,500, as a capital, which they had accordingly done ; that the profits, losses, and expenses of the firm were to be shared and sustained equally by each of the members; that the firm had commenced and carried on business, until the 30th of June, 1849, when it was dissolved by mutual consent; that at the time of the dissolution, the business of the concern had resulted in a loss of several thousand dollars, all of which had been paid out of the capital of the firm, but that the exact amount of the loss could not then be ascertained, because the final accounts had not been stated ; that the defendant had not contributed towards the payment of any part of the loss, but would be found indebted to the plaintiffs, as his share of the loss, in at least the sum of $3000, for which the plaintiffs had no security ; that the defendant had informed each of. the plaintiffs, that he intended to proceed to California on the 13th of November 1849, with the intention of remaining there an indefinite neriod ; and that the plaintiffs’ claim, as above stated, would oe greatly endangered, if the defendant should be allowed to depart out of the commonwealth. The bill concluded with a prayer for discovery, account and contribution, and that a writ of ne exeat might be issued to restrain the defendant from departing beyond the jurisdiction of the court.</p> <p>The plaintiffs also filed a petition, at the same time, praying the court to issue the writ of ne exeat as prayed for in the bill, and setting forth the same facts as were stated in the bill, accompanied by their affidavits, that the defendant was indebted to them in the sum of §3000 and upwards; thai this sum was the least amount which the defendant owed them, but they believed the amount would be much larger upon a final settlement of the accounts of the concern ; that this sum was the proportion of loss which the plaintiff was bound to contribute, according to his agreement in the articles of co-partnership ; and that the defendant had informed each of the plaintiffs of his intention to depart beyond the jurisdiction of the court, on the 13th of November, 1849.</p> <p>This application was argued ex parte at chambers on the 26th of October, 1849, before all the judges, except Metcalf, J., by I. J. Austin, for the petitioners.</p>

<p>The term “ will,” in St. 1843, c. 92, includes every kind of testamentary act, taking effect from the mind of the testator, and manifested by an instrument in writing.</p> <p>An inhabitant of this state, while in the state of New York on a visit, being sick and in apprehension of death, executed an instrument, in the presence of two witnesses who attested it at his request, in the following terms: “ It is my wish that the will that I made be destroyed, and my estate settled according to law.” Before signing his name thereto, the paper was read aloud to the testator, and he was asked if it would answer, to which he replied that it would. It was held, that this instrument was executed in the manner, and with the formalities prescribed bylaw, to admit it to probate in the state of New York, as a testamentary instrument or codicil, and therefore, that under the statute of 1843, c. 92, § 1, it might be proved, recorded, and proceeded in as such in this state.</p>

<p>A pound-keeper, who receives and impounds beasts, for going at large, and refuses to deliver them to the owner, on demand, unless his fees and those of the field driver are paid, is not liable therefor in an action of replevin.</p>

<p>In an action on the case, for rescuing sheep distrained for going at large, not under the care of a keeper, on the common and undivided lands of the island of Nantucket, it is no defence, that the place where the sheep were taken, and the place where they were rescued, were uninclosed lands, held in severalty; that between the taking and the rescue, the sheep were continuously on said lands; and that the defendants were the proprietors of such lands, and the owners of the sheep rescued.</p>

<p>The statute of 1838, c. 7, for establishing a fire department in the town of Nantucket, having provided that the firewards chosen in pursuance thereof should organize themselves into a board, and should appoint three of their number as directors, to have “ the general direction of all the operations at fires; ” and having also authorized the board to establish by-laws for certain specified purposes, amongst which that of empowering a single member to exercise the authority of the board was not included; the directors of the board made a by-law, by which one director was authorized in urgent cases to exercise the power of the whole board: It was held, that the by-law was void, on the ground, that the board had no power to make any by-law on the subject, and also as repugnant to law, and that one such director could not lawfully exercise the authority conferred upon firewards, by the Rev. Sts. c. 18, §§ 3 and 4, relative to the pulling down or destruction of buildings to prevent the spreading of fire.</p>

<p>This was an action brought by the plaintiffs, Charles W Cartwright, Simon Greenleaf, and William H. Gardiner, as the trustees of the Brunswick Land company, to recover the amount due on three promissory notes given to them in that capacity by the defendant, on a purchase by him at a public sale.</p> <p>The defendant, in compliance with the terms of sale, paid one fifth part of the price in cash, and, at the same time, gave the plaintiffs his four promissory notes for $293 each, with interest, payable respectively in one, two, three and four years. He afterwards paid the note, which first became payable, and also the interest for one year on the three other notes; but refusing to pay the interest which accrued subsequently, or the principal of the latter, this action was brought to recover the amount due thereon.</p> <p>The plaintiffs, at the time of the sale, signed an agreement to the defendant, by which they undertook to convey to him the several lots which he had purchased, on payment of the notes given by him therefor, and a compliance on his part with the other stipulations contained in the agreement; and the plaintiffs had always been and still were ready and willing, upon the terms and conditions of the agreement, to execute and deliver to the defendant a good and sufficient deed, with warranty, of the lots purchased by him, and to perform all the stipulations and conditions on their part to be performed.</p> <p>The defendant filed a specification of defence, in which he alleged, substantially, that the notes were given upon assurances by the plaintiffs, which had not been fulfilled, and under expectations erroneously indulged in by all parties, which had failed; and so that there was a want or failure of consideration.</p> <p>The case was referred to John M. Williams, Esq., as arbitrator, upon whose report the questions principally arose, which were considered and decided by the court.</p> <p>The facts sufficiently appear in the opinion.</p>

<p>This was an action of trespass for an assault and false im prisonment commenced by a writ sued out on the 23d of February, 1846, in which the plaintiff alleged, that the defendant laid hold of him and took him, through the public streets in Boston, to the common jail, and there caused him to be imprisoned for the space of fifteen hours.</p> <p>The defendant specified, in his defence, that at the time of the alleged arrest and imprisonment, he was a constable of the city of Boston; and that in the discharge of his duty, as such, he arrested the plaintiff, and committed him to jail, as an offender against the laws.</p> <p>At the trial before Wells, C. J., in the court of common pleas, it was in evidence for the plaintiff, that the defendant, at about seven o’clock in the evening of the day alleged in the writ, without any legal process, arrested the plaintiff, and took him to the jail, where he remained until about nine o’clock the next morning, when he was discharged.</p> <p>It was in evidence, on the part of the defendant, (it being admitted that he was a constable of the city of Boston,) that about six o’clock in the evening of the day when the arrest was made, he was applied to by John C. Clements and Emerson Ballou, to go with them to the plaintiff’s place of business, they alleging that the plaintiff had in his possession certain articles of personal property, which had been stolen from Clements; that in compliance with this request, the défendant went to the plaintiff’s place of business, and there found a portion of the stolen property, the remainder of it having been previously sold by the plaintiff; that after holding a conversation with the plaintiff, and endeavoring to recover the whole of the stolen property, he took the plaintiff to jail, where he remained until the next morning; when the defendant having made an unsuccessful application to the police court for a warrant against the plaintiff, as a receiver of stolen goods, knowing them to be stolen, discharged the plaintiff from further custody; and that in malting the arrest, the defendant acted without any request or direction from the owner of the goods or any other person.</p> <p>The defendant also introduced evidence which was contradicted by evidence for the plaintiff, that the defendant was guilty of the offence of receiving stolen goods, knowing them to be stolen ; and that at the time of the arrest, the defendant had reasonable and probable ground to suspect the plaintiff of being guilty of that offence.</p> <p>Much other evidence was introduced on both sides, which it is unnecessary to state, as the decision of the case turned upon the correctness of the instructions to the jury, with reference to the above, which were as follows: —</p> <p>“ That if they were satisfied beyond a reasonable doubt, that the plaintiff was guilty of receiving the stolen goods, knowing them to have been stolen, they should return a verdict for the defendant: or, that if they were satisfied beyond a reasonable doubt, that, at the time of the arrest and imprisonment, the defendant had reasonable ground to suspect the plaintiff of having committed the crime of receiving stolen goods, knowing them to be stolen; and, also, that there was reasonable and probable necessity for the arrest, for the reason, that there was danger that the plaintiff would escape, or secure the stolen property, before a warrant could be procured, the defendant would be justified; but that the defendant would not be justified by proving beyond a reasonable doubt, that there was reasonable and probable ground to suspect the plaintiff of the crime, unless he also should prove to the satisfaction of the jury, that there was an immediate necessity for the arrest, arising from the probability that the plaintiff would escape or secrete the property, before a warrant could be obtained.”</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>The offence of stealing from the person, upon an indictment and conviction thereof in the court of common pleas or municipal court, is punishable by imprisonment in the state prison, as provided in the Rev. Sts. c. 120, § 16, although the property alleged to be stolen does not exceed five dollars in value.</p>

<p>1’he proprietors of certain land held in common and undivided, who managed the same as a corporation, under the act of 1785, c. 53, (Rev. Sts. c. 43, §§ 20-43,) caused the land so held to be surveyed and divided into lots, and partition thereof to be made among the several proprietors, and entered together with a plan of the same upon the records of the proprietary; which partition, not being made in conformity with the requisitions of the statute, had only the legal force and effect of a partition by paroi. The proprietor, to whom lot number one was assigned in such partition, conveyed a portion thereof to one who was not a proprietor ; and the residue of the same was seized on execution and set off to a creditor of such proprietor, who was himself a proprietor. The proprietors subsequently made partition by deed duly executed and delivered, according to the division above mentioned, in which the whole of lot number one (the original proprietor thereof having fled the country, and his grantee not being a proprietor) was conveyed to the execution creditor, who never made any claim to that part of the lot which had been conveyed by the original proprietor, but suffered the grantee thereof, and those claiming under him, to remain in posses sion. It was held, that the deed of the original proprietor of lot number one, of a part thereof, was not void, but voidable only by his co-tenants; and that the proceedings of the proprietors, instead of disaffirming, were a confirmation of the same.</p> <p>Where a boundary line of land conveyed is described in the deed as running parallel with, and within seven inches of, a certain wall, but its length is not given, the line is to run as far as the grantor has a right to extend it, in order to give effect to the grant.</p>

<p>An averment in an indictment for murder, that the defendant committed the crime at a place specified, “ in some way and manner, and by some means, instruments, and weapons, to the jurors unknown,” is sufficient, when the circumstances of the case will not admit of greater certainty in stating the means of death.</p> <p>The right of a party, who is put on trial for a capital offence, to a peremptory challenge of jurors, must be exercised, if at all, before the jurors are interrogated by the court concerning their bias and opinions.</p> <p>An opinion, formed by one called as a juror, not strong enough to lead him to prejudge the case, or to be likely to prevent a candid judgment on hearing the evidence, does not disqualify him to be sworn as a juror.</p> <p>One who is opposed to capital punishment, and fears that his opinion may influence others of the jury, is, notwithstanding, competent to be sworn as a juror, if he believes he can give an unbiased verdict.</p> <p>The court, in a capital case, allowed the jury to take a view of the premises, attended by officers of the court, and by one counsel for the defendant, and one for the commonwealth.</p> <p>In a capital case, the court directed, that each witness should be fully examined to the extent of his knowledge upon all points of inquiry, and not be examined in part only at one stage of the trial, with a view to being afterwards recalled on other points.</p> <p>On a criminal trial, an expert in handwriting may testify whether, in his opinion, anonymous letters, written in a disguised hand, and calculated to divert suspicion from the defendant, are in the defendant’s handwriting, and may give his reasons for his opinion.</p> <p>On a criminal trial, an expert in handwriting, who has testified that, in his opinion, certain anonymous letters, written in a disguised hand and calculated to divert suspicion from the defendant, are in the defendant’s handwriting, and that some parts of them could not have been made with a pen. cannot be asked whether those marks were made with a peculiar instrument found in the defendant’s pas session.</p> <p>After evidence has been introduced by the defendant in a trial for murder, that the person alleged to have been murdered was seen alive afterwards, the government cannot call witnesses to prove, that about the time of the alleged murder, a person so strongly resembling the person alleged to have been murdered, as to have been mistaken for him by persons well acquainted with the latter, was seen in the neighborhood where the murder was alleged to have taken place.</p> <p>On the trial of an indictment for murder, the fact of killing being first proved, all the circumstances of accident, necessity, or infirmity, are to be satisfactorily established by the party charged, unless they arise out of the evidence produced against him.</p> <p>In order to warrant a conviction of a crime on circumstantial evidence, each fact, necessary to the conclusion sought to be established, must be proved by competent evidence beyond a reasonable doubt; all the facts must be consistent with each other, and with the main fact sought to be proved; and the circumstances taken together must be of a conclusive nature, leading on the whole to a satisfactory conclusion, and producing in effect a reasonable and moral certainty, that the accused, and no other person, committed the offence charged.</p> <p>Where the defence, on the trial of an indictment for murder, is made to rest on the fact, that the person alleged to have been murdered was seen alive after the time when the murder was alleged to have been committed, it must be made out by satisfactory proof.</p> <p>On a trial for murder, testimony to the defendant’s good character, though entitled to less weight than in trials for offences of a lower grade, is competent evidence in defence.</p>

<p>P. died, leaving a will, whereby he bequeathed nothing to his eldest son, S., except certain debts due from S. to P., but devised the bulk of his property to a younger son, H., and appointed as executors of his will his widow, E., and his son H., who jointly took out letters testamentary. Afterwards, E. being still alive, S. and H. submitted to arbitration “ all matters and things whatsoever arising out of the will and estate of P., and the just and equitable division thereof, as also any promise, agreement or contract alleged to have been made by H. to S., touching the settlement of said estate, and all demands between the parties relating thereto.” It was held, that H. entered mto the submission in his individual capacity, and not in his capacity of executor.</p> <p>P. by his will devised and bequeathed the bulk of his property to a younger son, H., and nothing to his eldest son, S., except certain debts due from him. S. was subsequently declared a bankrupt, and his property assigned to an assignee. After receiving his discharge, S. entered, with H., into a submission to arbitration, “ to determine on the broadest principles of law, equity, and substantial justice and right, under all the circumstances existing, and in full view of the relation of the parties as brothers, and as children and heirs at law of P., what sum of money, or what amount of property, H. should pay or secure to S. or his heirs, as a just and fair and equitable equivalent for his portion of the estate of P., or to fulfil any agreement or promise of H. to S., touching the settlement of the same.” The arbitrators, after taking into consideration the previous bankruptcy of S., made an award in his favor. It was held, that the title to sue thereon was in S., and not in his assignee in bankruptcy.</p> <p>Where all claims and demands between the parties are submitted to arbitration, it will be intended, that the arbitrators have decided all matters submitted to them, although they do not so state in their award, unless the contrary appears ; especially when the arbitrators testify, that they heard and investigated all claims and demands between the parties, to which they wished the arbitrators to direct their attention.</p> <p>Where a submission to arbitration, to determine what amount H. should pay S., and “ for a full release to H. of all S.’s claim to the estate of P.,” of whose will H. was executor, provided that the arbitrators should “ fix the terms and times of payment, and the forms of all releases ”; it was held, that an award in favor of S., fixing the terms and times of payment, and directing that S., on payment of the sums awarded, should by deed forever discharge H. and the estate of P. from all and every claim and demand whatever, sufficiently followed the submission.</p> <p>Under a submission giving power to the arbitrators to award as to costs, an award that one party shall pay to the other the costs of reference, taxed at a certain sum, is good.</p>

<p>On information filed in this court by the public prosecutor, to enforce a trust for purposes of general charity, the complainant is not obliged to appear personally, but he may appear and conduct the cause by other counsel. By Shaw, 0. 3.</p> <p>The power of the attorney-general or public prosecutor, to institute a proceeding for the enforcement of a public charity, is a common-law power, incident to the office, and does not depend, for its exercise, upon the requirement of the governor, or either branch of the legislature, as provided in the Rev. Sts. c. 13, § 30. By Shaw, C. J.</p> <p>Where, on a hearing in equity before this court, when held by a single judge, a question of fact is decided by the udge upon the evidence, no exception to the decision can be taken; though the case may be farther heard by the full court, if no objection is made, upon evidence and questions of fact not considered at the previous hearing.</p> <p>The funds of a congregational church, derived from the voluntary contributions of members on communion days, from other donations not specifically appropriated by the donors, and from accumulations of interest, though invested with other funds specifically appropriated, to which such contributions and donations were added by the donors, are held by the church in their own right, to he appropriated at their discretion, both as to principal and interest, and not by the deacons, in trust, for the society connected with the church, or for any purpose of general charity to be enforced by an information filed by the public prosecutor.</p>

<p>This was an action of debt on a bond .executed by the defendants, Bradbury C. Bartlett and Elvinus J. Morrison, to the plaintiffs, John T. Tasker and Daniel N. Pickering, Jr., on the 2d of March, 1849, in a penalty of $7000, and containing the following condition : —</p> <p>“ That whereas the said Tasker and Pickering have, upon the representation of said Bartlett and Morrison, become purchasers' of one undivided portion of certain flats in South Boston, and have advanced large sums of money and become liable by their notes for divers other large sums, without being fully satisfied as to the title of said Bartlett to said flats : Now therefore if said Tasker and Pickering shall, within one year from this date, elect to reconvey to said Bartlett all the property or interest in and to said flats by him this day conveyed to them, and give to the said Bartlett notice of such intention in writing, then if the said Bartlett shall, within sixty days from the end and expiration of said one year, pay to the said Tasker and Pickering eighteen hundred and eighty-one dollars, and deliver up to them the said Tasker and Pickering all their said notes, on tender by them of such reconveyance as aforesaid, then this bond shall be void, otherwise shall remain in full force.”</p> <p>The breach assigned was, that the plaintiffs, within the time mentioned in the condition, elected to reconvey the flats to Bartlett, and gave him notice thereof in writing, and tendered him a deed accordingly; and though the time limited had long since elapsed, the defendant Bartlett had not paid the plaintiffs, or either of them, the said sum of $1881, or any part thereof, but had wholly neglected and refused so to do.</p> <p>The case was tried before Wells, C. J., in the court of common pleas.</p> <p>To prove the breach, the plaintiff called a witness, who testified, that on the 1st of May, 1848, at the request of Pickering, one of the plaintiffs, he accompanied him to the house of the defendant Bartlett, having with him a deed of the flats mentioned in the condition. Upon knocking, a woman came to the door, who said she was the wife of Bartlett, and that her husband was absent in Pennsylvania. No further inquiries were made, and the deed was not shown; but Pickering and the witness went away, upon receiving this information.</p> <p>There was evidence also, that Bartlett was at this time absent in Pennsylvania. The defendant, though inquired of whether he had any evidence on this point, did not offer to prove, that Bartlett left any agent for the transaction of this business during his absence.</p> <p>The defendant objected, that the evidence was insufficient to prove a breach of the condition, for two reasons: —</p> <p>1st. The plaintiffs, upon ascertaining the absence of Bartlett, should have made a demand upon Morrison, the other defendant.</p> <p>2d. They should have made known their business to Bartlett’s wife, and tendered the deed to her, and demanded a performance of the condition of the bond of her, as the agent of her husband; if she was not such agent, they should have inquired of her and from other persons, whether Bartlett had left an agent to act for him in this matter, during his absence, and if he had, should have made the tender to such agent.</p> <p>The defendant also objected, that the deed was insufficient, inasmuch as it purported to be signed by four persons, and upon inspection, appeared to have but three seals affixed. There was no evidence to explain or account for this circumstance. The deed was a deed of quitclaim, and signed by the two plaintiffs, against each of whose names there was a seal, and by their wives, against both of whose names there was but one seal, which was of paper with an impression upon it, apparently spread with gum on its under side, and affixed to the deed by moistening the gum, without the addition of any wafer or wax. The deed, after the clause of release of dower, concluded: “ In witness whereof we the grantors have hereunto set our hands and seals,” &c. The original deed was made a part of the bill of exceptions.</p> <p>The presiding judge instructed the jury, that in the absence of any proof, the deed was to be taken to be the deed of the four persons who signed it, and was therefore sufficient; that if the plaintiffs caused a sufficient deed to be executed and went with it to the house of the defendant Bartlett, for the purpose of delivering the same, provided Bartlett would perform the condition to be performed on his part, and were told that he was absent from the commonwealth, and he was so in fact, then nothing more was incumbent on the plaintiffs to make out a primd facie case; that if the wife of Bartlett, or any other person, was authorized and prepared to perform on his part, it was incumbent on the defendants to prove such authority, and the question would then arise, upon such evidence as might be introduced, whether the plaintiffs were bound to know of the existence of such agent, and to make a demand upon him; that it was not necessary to make a demand upon the other defendant; and that it was not necessary to tender the deed at the house of Bartlett, at the time Pickering and the witness were there.</p> <p>The jury returned a verdict for the plaintiffs, and the defendants alleged exceptions.</p>

<p>The defendant was indicted in the municipal court, and there tried before Mellen, J., for an attempt to commit a larceny from the person.</p> <p>The indictment alleged, that the defendant, on the 19th of May, 1849, at Boston, in this county, “ did attempt to commit an offence prohibited by law, to wit, did attempt, with force and arms, to steal feloniously and take and carry away from the person of a certain man, whose name to said jurors as yet is not known, his personal property then in his pocket and in his possession, the name of said property not being known to said jurors, and the value of said property not being known to said jurors, that being an offence prohibited by law, and in such attempt did then and there do a certain overt act towards the commission of said offence, to wit, did then and there, with force and arms, feloniously and with intent then and there feloniously to steal, take, and carry away said person’s said property, then and there being in his pocket on his person, thrust, insert, put and place his said John’s hand into the pocket privily and secretly of said man, without his knowledge and against his will, but said John then and there did fail in the perpetration of said offence of stealing from the person of said man, and was intercepted and prevented in the execution of the same, against the peace, &c.”</p> <p>At the trial, there being no evidence on the part of the prosecution, that the individual, from whom the defendant was charged with an attempt to steal, had any property upon his person, at the time of the alleged attempt, the defendant asked the judge to rule, that the indictment could not be sustained.</p> <p>The defendant also objected, that the indictment, not containing any allegation that the party had any property upon his person, was wholly insufficient in law.</p> <p>But the presiding judge ruled otherwise upon both points, and the jury thereupon returning a verdict of guilty, the defendant excepted.</p>

<p>In this case, which was argued by J. L. English, for the claimants, and by Clifford, attorney-general, for the commonwealth, the facts sufficiently appear in the opinion of the court, which was delivered at the March term, 1851.</p>

<p>This was an action of trespass on the case, in which the plaintiffs alleged substantially in their declaration the following facts: — -</p> <p>The Boston and Lowell railroad corporation, by their act of incorporation, passed on the 5th .of June, 1830, (St. 1830, c. 4,) were authorized and empowered to construct a railroad, at or near the city of Boston, and thence to Lowell, in such manner and form as they should deem most expedient, and to lay the same out four rods wide throughout its whole length; with the right to collect and receive tolls for their sole benefit from all passengers and property, which might be carried on their road, at such rates as might be agreed on and established by the directors. By the twelfth section of this act, it was enacted as follows: “ That no other railroad, than the one hereby granted, shall, within thirty years from and after the passing of this act, be authorized to be made, leading from Boston, Charlestown, or Cambridge, to Lowell, or from Boston, Charlestown, or Cambridge, to any place within five miles of the northern termination of the railroad hereby authorized to be made; ” “ provided that the state might authorize any company to enter with another railroad at any point of the Boston and Lowell railroad, paying for the right to use the same, or any part thereof, such a rate of toll as the legislature might prescribe, and complying with such roles and regulations as might be established by the Boston and Lowell railroad corporation, by virtue of the fifth section of this act of incorporation.”</p> <p>On the 15th of March, 1833, by an act of the legislature then passed, (St. 1833, c. 109,) the Andover and Wilmington railroad corporation was established, with power to construct a railroad, four rods wide, commencing at or near the south parish meeting-house in Andover, and thence to the Boston and Lowell railroad in Wilmington, so as to form a branch thereof, in such manner and form as they might deem expedient ; and with power to enter with their railroad, on such part of the Boston and Lowell railroad, as should be deemed most expedient; paying for the right to<use the same, or any part thereof, such a rate of toll as the legislature might prescribe, and complying with such other rules and regulations, as might be established by the Boston and Lowell railroad corporation, by virtue of the fifth section of their charter.</p> <p>The Boston and Lowell railroad was constructed and completed, in pursuance of the authority conferred by the charter, passing through Charlestown and Wilmington to Lowell, and provided with engines and cars for the transportation of freight and passengers; and the Andover and Wilmington railroad was afterwards constructed and completed, as authorized by the charter, and united with the Boston and Lowell railroad, so as to form a branch thereof.</p> <p>The Andover and Wilmington railroad corporation, by an act passed on the 7th of April, 1835, (St. 1835, c. 134,) were authorized to extend their road, and did extend it accordingly from Andover to Haverhill. The road was further extended, by virtue of an act passed on the 5th of April, 1837, (St. 1837, c. 113,) to the line of the state of New Hampshire. These acts provided, that any railroad company, then or afterwards to be incorporated, might be authorized by the legislature to enter with their road, at any point of the road thereby granted, paying for the right to use the same, or any part thereof, such rate of toll as the legislature might prescribe, and complying with such rules and regulations as might be established by the Andover and Wilmington railroad corporation, by virtue of their act of incorporation. By the act of 1837, c. 113, the name of the Andover and Wilmington railroad corporation was changed to that of the Andover and Haverhill railroad corporation, and by a further act passed on the 3d of April, 1839, (St. 1839, c. 82,) to that of the Boston and Portland railroad corporation.</p> <p>By an act of the legislature of New Hampshire, passed in 1835, a corporation was established by the name of the Boston and Maine railroad company, for the purpose of construct ing a railroad from the termination of the Boston and Port land railroad in Massachusetts, to the boundary line between New Hampshire and Maine, and to be united with the latter. The roads, thus authorized, were built accordingly, constituting one continuous line of railroad from the boundary line between Maine and New Hampshire, to the Boston and Lowell railroad ; and the several corporations, in pursuance of acts of the legislatures of New Hampshire and of this commonwealth, (St. 1841, c. 56,) were afterwards united under the name of the Boston and Maine railroad.</p> <p>On the 10th of March, 1844, a corporation was established by an act of the legislature, (St. 1844, c. 172,) by the name of the Boston and Maine Extension railroad corporation, with authority to build a railroad from Boston to a place in Wilmington, on the line of the Boston and Maine railroad, not nearer to the Boston and Lowell railroad than a brook called Lubber brook, there to intersect and unite with the then existing Boston and Maine railroad, at a point between the Boston and Lowell railroad and Andover, and less than two miles from the Boston and Lowell railroad. This act authorized the Boston and Maine railroad, to subscribe for the stock of the corporation thereby established, and they did accordingly subscribe for the whole number of the shares thereof, except one hundred out of five thousand, and the two corporations chose the same directors, with the exception of one on each board.</p> <p>The corporation last established proceeded according to the authority given by their charter, and built the road above described, from Boston to a point on the Andover and Wilmington railroad, within two miles and some feet of the Boston and Lowell railroad. After the road was completed, the two corporations were authorized to unite, by an act passed on the 19th of March, 1845, (St. 1845, c. 159,) and did afterwards unite, and form one corporation, under the name of the Boston and Maine Railroad, and connected the newly-made road with the road before established and known as the Boston and Maine railroad.</p> <p>The plaintiffs averred, that they had constructed and furnished their road, upon the faith of their charter, at an expense of one million nine hundred thousand dollars, and, at the time of the grievances complained of in this action, were using the same for the purpose of carrying passengers and freight, with great benefit to the public and reasonable profit to themselves: That the Andover and Wilmington railroad corporation having constructed their road, and connected the same with the Boston and Lowell railroad, so as to form a branch thereof, as prescribed in their charter, thereby acquired the right of using the Boston and Lowell railroad, for the conveyance and transportation of all passengers and freight, brought upon the Andover and Wilmington railroad and destined for Lowejl or Boston, or any intermediate place; or brought upon the Boston and Lowell railroad, and destined for Andover, or any intermediate place; or of having such passengers and freight so transported and conveyed by the Boston and Lowell railroad corporation, in manner and form as provided in and by the charters of said companies, upon payment of the tolls therein provided for: That by reason of the construction of the several railroads constituting the Boston and Maine railroad, and the several acts authorizing the same, the corporation known by that name acquired the right of using the Boston and Lowell railroad for the conveyance and transportation of passengers and freight, brought upon the Boston and Maine railroad, and destined for Lowell or Boston, or any intermediate place on the Boston and Lowell railroad, or brought upon the Boston and Lowell railroad, and destined for the termination of the Boston and Maine railroad or any intermediate place on the same; or of having such property and passengers so transported and conveyed by the Boston and Lowell railroad corporation, in manner and form as prescribed in and by the respective charters of said corporations, upon payment of tolls as aforesaid : That the plaintiffs, thereupon, and by reason of the premises, be« came obliged to furnish reasonable accommodation and facili ties for such conveyance and transportation of passengers and freight; and did expend divers large sums of money for that purpose in laying new tracks, procuring new cars, carriages, locomotive engines, and other customary apparatus, tools, and utensils, and in enlarging their station-houses and depots and constructing others, and in the employment of numerous other and further engineers, conductors, and other officers and agents, requisite for the expeditious, proper, and safe management and transaction of the increased business and affairs, which they were thus obliged to accept and take charge of, and in various other necessary expenditures; and did, in pursuance of their said obligation, and of arrangements made between them and the said Boston and Maine railroad company, conformably to the provisions in their respective charters, receive, transport, and convey all the property and passengers to and from all and singular the towns, cities, and places aforesaid, for the benefit and on account of the said Boston and Maine railroad company, and for certain tolls and hire agreed to be paid upon such passengers and freight by said last-named corporation; and before and at the time of the grievances complained of, were, by means of the premises, in the receipt of large sums of money, as and for such tolls or hire, and as a compensation for the risk, skill, labor, service, and expense of the plaintiffs, in that behalf, amounting to a large sum of money, to wit, the sum of forty thousand dollars, annually : That the plaintiffs, by reason of the premises, at the time of the- grievances complained of, namely, on the 30th of June, 1845, had acquired and were in the possession and enjoyment of, and by reason of the premises, the Andover and Wilmington corporation had therefore impliedly promised and undertaken that the plaintiffs should thenceforth enjoy, the sole and exclusive right of transporting and conveying, by means of any railroad, to Boston and Wilmington and all places between the same, all such passengers and freight as should be transported and conveyed by the Boston and Maine railroad, upon and over that portion lying between the south parish in Andover and said Wilmington or any part thereof, destined to be transported and conveyed by means of any railroad to Boston or Wilmington, or any intervening place; and all such passengers and freight as should be conveyed and transported, by means of any railroad, from Boston and Wilmington or any intervening place to any part of the defendants’ road lying between Wilmington and the south parish in Andover: That the defendants, from the time of the construction of the newly-made road from Boston to Wilmington, by the Boston and Maine railroad extension company, until the day of service of the plaintiffs’ writ, have used the said newly-made road, and have transported and conveyed over and upon the same, in their own cars, and by their own engines, to Boston and places between that city and Wilmington, great numbers of passengers and great quantities of freight, transported and conveyed by the defendants upon and over their road lying between the south parish of Andover and Lubber brook, and which would otherwise have been transported and conveyed by the plaintiffs over and upon their road to Boston and other places between that city and Wilmington, for such tolls as the legislature might from time to time prescribe, or as might be agreed upon between the plaintiffs and the defendants; and have also in like manner transported and conveyed over this newly-made road great numbers of passengers and great quantities of freight, which would otherwise have been in like manner and for like tolls transported and conveyed by the plaintiffs, over and upon their road from Boston and other places between that city and Wilmington, to the road of the defendants lying between Wilmington and the south parish in Andover; whereby the transportation and conveyance of said passengers and freight have been diverted from the railroad of the plaintiffs, which would otherwise have been carried thereon, to the great damage of the plaintiffs, and to the nuisance of their railroad ; and by reason thereof, the plaintiffs have been and are defrauded of the tolls and other profits and advantages which they might and otherwise would have had.</p> <p>The defendants demurred to the declaration.</p>

<p>Decisions in matters of law, made by this court during the progress of a .capital trial, have the same final and conclusive character, as the decisions of a full court on a bill of exceptions.</p> <p>When an indictment for a capital crime is found and returned by the municipal court of the city of Boston, nothing further is necessary to give this court jurisdiction to try and decide it, except that it be brought to their judicial notice by being certified and transmitted according to law. It is not necessary that the municipal court should adjudicate that the indictment be received.</p> <p>If, at the time an indictment for a capital crime is returned into the municipal court, the accused is in custody, that court need not issue process for his arrest.</p> <p>The statute of 1844, c. 44, § 4, does not make it necessary for the municipal court to adjudicate as to the time, at which an indictment for a capital crime, found in that court, shall be entered in the court.</p> <p>The requisites of the statute of 1844, c.44, § 4, that on the return of an indictment for • a capital crime to the municipal court, the accused shall be served with a copy of the indictment by the sheriff or his deputy, with an order of court giving notice to the accused that the indictment will be entered at the next term, or at any intermediate session, of this court, in this county, are merely directory, and a noncompliance with them will not affect the jurisdiction of this court.</p> <p>The provision of the statute of 1844, c. 44, $ 4, that the clerk of the municipal court shall give notice to the chief justice of this court of an indictment in that court, for a capital crime, is merely directory, and not necessary in order to give the court jurisdiction.</p> <p>If the municipal court or its clerk should fail to transmit an indictment returned to that court, for a capital crime, to this court, it would be competent for this court, under its jurisdiction of all capital offences, to cause the indictment to be brought to the court by certiorari, and to order in the accused by habeas corpus, or warrant to arrest, and then proceed to trial.</p> <p>A. judgment in a capital case, that the prisoner “ be taken to the jail from whence he came, and thence to the place of execution, and there be hanged by the neck until he be dead,” does not take from the executing officer the power conferred on him by the Eev. Sts. c. 139, § 13, to execute the sentence within the walls of the prison, at his discretion; and is not erroneous.</p> <p>The judgment in a capital case need not declare that the execution shall take place at such time as the executive shall appoint.</p>

<p>¡since me statute of 1849, c. 211, § 7, which provides that “ all fines and forfeiture* incurred under the general laws, or the special laws applicable to any town or city, or the ordinances, by-laws, and regulations of any town or city, relating to health, shall enure to the use of such town or city, and may be recovered by complaint in the name of the treasurer,” such fines and forfeitures are recoverable only by complaint in the name of the treasurer of the city or town, and in no other manner.</p> <p>The ordinances and by-laws of the city of Boston, concerning burying-grounds and the burying of the dead, are regulations relating to health, within St. 1849, c. 211, § 7.</p>

<p>Where, in a sentence of excommunication from a church, read by the pastor on Sunday, in the presence and hearing of the congregation, it was lecited, that the offendc ''ad “ clearly violated the seventh commandment,” and in a subsequent part of the sentence, it was declared, “ that this church does now as always bear its solemn testimony against the sin of fornication and uncleanness; ” it was held, that the charge of violating the seventh commandment did not import the crime of adultery, in its legal and technical sense, as an indictable off! nee.</p> <p>Congregational churches, in this commonwealth, have authority, to which every member, by entering into the church covenant, submits, to deal with their members for immoral and scandalous conduct; and for that purpose, to hear complaints, to take evidence, to decide, and upon conviction, to administer punishment by way of rebuke, censure, suspension, and excommunication; and all persons, who participate in the exercise of this authority, whether by complaining, giving testimony, acting and voting, or pronouncing the result, orally or in writing, provided they act in good faith, and within the scope of the authority of the church, are protected by law.</p> <p>When a vote of excommunication from1 a church has been passed, and the offender thereby declared to be no longer a member, the sentence may nevertheless be promulgated, by being read in the presence of the congregation, by the pastor.</p>

<p>This was an action of assumpsit to recover for the services of William R. Warren, a minor above the age of fourteen years, alleged to be the plaintiff’s apprentice.</p> <p>At the trial, before Mellen, J., in the court of common pleas, it was in evidence or admitted, that the services in question had been performed by the minor; that they were of the value of $5.50; that the defendant was previously notified that the plaintiff claimed the services of the minor as his apprentice, and that the minor had left the service of the plaintiff, and entered that of the defendant, with his father’s approbation.</p> <p>In order to prove the apprenticeship, the plaintiff gave in evidence a paper, purporting to be an indenture of apprenticeship, executed by the plaintiff, by Josiah Warren, the minor’s father, and by the minor himself; but the instrument contained no expression of the consent of the latter, as required by Rev. Sts. c. 80, § 3, unless it was to be found in the following clause : “ In testimonies whereof, we, Josiah Warren, Edward Harper, and William R. Warren, have hereunto set our hands and seals, on the day above written.”</p> <p>The defendant offered to prove, that when this writing was made, the minor and his father both declined to have the minor bound as an apprentice, or to sign an indenture of .apprenticeship ; and that when this paper was made, they were told by the plaintiff, that it was not an indenture of apprenticeship.</p> <p>The presiding judge ruled, that this evidence was inadmissible, and that the paper was an indenture of apprenticeship; whereupon the jury returned a verdict for the plaintiff, and the defendant excepted.'</p>

<p>This was ail action to recover the sum of $250, being one half of the expense of building a brick partition wall. The case was tried before Bigelow, J., in the court of common pleas.</p> <p>The plaintiff alleged in his declaration, that the defendant, on the 2d of April, 1832, in consideration that the plaintiff would erect a partition wall on the boundary between an estate on Bowdoin street, in Boston, owned by the plaintiff, and an estate adjoining thereto, on the same street, agreed to pay the plaintiff for one half of the wall, if at any future time the defendant should have occasion to use the same for any other purpose than the wall then on the premises was used; and the plaintiff averred, that he did erect on the boundary line a partition wall, the cost of which was five hundred dollars, and that the defendant had used the same for a different purpose than that for which the old wall was used, prior to the 2d of April, 1832.</p> <p>To prove his case, iha plaintiff introduced two letters, one from him to the defendant, dated March 31st, and the other from the defendant to him, dated April 2d, 1832.</p> <p>The letter from the plaintiff to the defendant was as folows: —</p> <p>“ I am about to build on the southerly line of your estate in Bowdoin street, and it has occurred to me, that if your wall were entirely removed, and the wall of my house placed six inches upon your land, there would be an obvious advantage to ns both. It would give you about eight inches more space in your shed, and me six inches in my house.</p> <p>“ Yen wall is considerably broken and the under part extends a good deal upon my land. The above arrangement will obviate these difficulties. Now, sir, if you are willing to make this arrangement, you will please let me know as soon as I raeticable.</p> <p>“ The wall which I want may hereafter be used to advantage, if you should make any other disposition of your estate than the present.”</p> <p>The defendant’s letter to the plaintiff was as follows : —</p> <p>“ I am willing to accede to your proposition in relation to the wall, provided it can bt done without subjecting me to present expense. I will also agree to pay for one half of the wall, if at any future time I shall have occasion to use it for any other purpose than the present one is used.”</p> <p>The plaintiff also offered evidence, that the new partition wall was built by him between the two estates, soon after the dates of the two letters, and that the same was not used for any other purpose than the old one, until some time in the year 1847, before the commencement of this action.</p> <p>It further appeared in evidence, that, at the date of the letters, the estate adjoining the plaintiff was vested in certain trustees, who held the same in trust for the wife of the defendant, by virtue of a marriage settlement; that the defendant had no legal title to the premises whatever; that on the 25th of March, 1845, the trustees conveyed the estate to one Greenleaf C. Batchelder, in fee, to which conveyance the defendant and his wife were parties, by signing and sealing the same in token of their consent to the conveyance; that the deed contained no mention of or reference to the partition wall; and that Batchelder, after the conveyance, did make use of the partition wall, for a different purpose from that for which the old one had been used, prior to the dates of the letters above mentioned.</p> <p>There was no evidence to show, and the plaintiff did not pretend, that the defendant had ever used the wall for any other purpose than the old wall was used for, unless the sale by the trustees to Batchelder, and his use of the wall was in contemplation of law a use by the defendant.</p> <p>Upon this evidence, the judge instructed the jury, that according to the agreement of the parties, the evidence of a use of the partition wall by Batchelder alone, for a purpose different from the use made of it prior to April 2d, 1832, was not sufficient to render the defendant liable in this action.</p> <p>The jury thereupon returned a verdict for the defendant, and the plaintiff excepted.</p>

<p>A clerk and salesman, in the employment of a retail dry-goods dealer,1 is not authorized as such, in the absence of his employer, to deliver goods in payment of, or as security for, a note signed by his employer; and if he does so, without authority, either express or implied, from his employer, the assignee in insolvency of the latter, subsequently appointed, may maintain an action for the goods so delivered.</p>

<p>Where written instructions are given by one person to another, with respect to the transaction of certain business of the former, and such instructions are received and acted upon by the latter, paroi evidence is not admissible to control them whether considered as a contract in writing between the parties, or as an author itative direction in writing from a principal to his agent.</p>

The defendant was indicted and tried in the municipal court for the wilful and malicious burning of an outhouse, called a privy, situated in the town of Chelsea.

<p>This case, which was a bill in equity against Elias T. Aldrich, Charles R. Scribner, and Henry Cooledge, was argued upon a demurrer to the bill by S. Bartlett, for the defendants, and G. W. Cooley and E. F. Hodges, for the plaintiff.</p>

<p>The defendant having been convicted in the police court of the city of Boston, on a complaint charging him with a violation of the rules established by the mayor and aldermen for the regulation of hackney-coaches and other vehicles, appealed to the municipal court; and being there tried before Bigelow, J., and convicted, he brought his case to this court by exceptions.</p> <p>The mayor and aldermen, under the authority conferred by the act of 1847, c. 224, adopted a code of regulations or bylaws, on the 1st of October, 1847, relating to hackney and other carriages and vehicles, of which the following are the sixth and seventh sections : —</p> <p>Sect. 6. No owner, driver, or other person, having the care or ordering of any chaise, carryall, hackney-carriage, truck, cart, wagon, handcart, sleigh, sled, hand-sled, or any other vehicle whatsoever, new or old, finished or unfinished, with or without a horse or horses, or other animal or animals, harnessed thereto, shall suffer the same to remain in any street, square, lane, or alley, of this city, more than five minutes, without some proper person to take care of the same, or more than fifteen minutes in any case; and any person so offending shall be liable to a fine of not less than three or more than twenty dollars for each offence.</p> <p>Sect. 7. In any street, or square, where stands are assigned for any vehicles of burden, or at any theatre, museum, or other place of public entertainment, where hackney-carriages attend for passengers, the mayor, or any person or persons by him authorized, may give directions respecting the standing of such carriages, while waiting for their passengers, and the route they shall go when going to or leaving any such place of entertainment; and if any owner, or driver, or other person hay ing the care of such carriages, shall refuse to obey such ord"' ' r directions of the mayor, or other person or persons by him authorized, he or they shall be liable tc a fine of not less than five, nor more than twenty dollars for each offence.*</p> <p>The complaint was as follows: — “ That the said Robertson, on the ninth day of November, in the year of our Lord eighteen hundred and forty-nine, at Boston aforesaid, with force and arms, did have the care and ordering of a certain hackney-carriage, having two horses harnessed thereto, and did suffer the said carriage to remain in Tremont.street, the same being a public street of said city, for more than fifteen minutes, without license from the mayor and aldermen of said city so to do; against the peace of the commonwealth, and the form of the statute of the commonwealth and the by-law of said city in such case made and provided.”</p> <p>It was in evidence, on the part of the prosecution, that the public authorities of the city, in pursuance of the seventh section above cited, had arranged for the standing of vehicles, to wait for passengers coming out of the Boston museum, which was a place of public amusement; that such vehicles were disposed by the police along the sides of the street, leaving a space of about thirty-five feet in front of the doors of the museum, where the carriages might drive up, and take their passengers as they came out of the door, and where, by the regulations of the police authority, no vehicles were allowed to stand; that between the hours of half-past eight and ten o’clock in the evening of the 9th of November, 1849, the defendant drove his hackney-coach on to this space, occupying about twenty-one feet of it, and on being ordered by the police officers to remove, refused to do so, but remained there with his carriage and horses for an hour and a half.</p> <p>The defendant requested the presiding judge to instruct the jury, that the act done by him, if in contravention of either of the sections above mentioned, was within the seventh and not within the sixth, upon which the complaint was founded and therefore would not support the charge in the complaint; but the judge instructed the jury otherwise, who thereupon returned a verdict of guilty, and the defendant excepted.</p>

<p>This was an action on a promissory note for $1835.19, dated January 31st, 1835, signed by the defendant in the presence of an attesting witness, and payable to the plaintiffs, or their order, on demand.</p> <p>At the trial, before Fletcher, J., in this court, the defendant, among other grounds of defence specified, relied on the statute of limitations.</p> <p>The plaintiffs, having proved the execution of the note in the presence of the witness, the defendant then proved, that on the 2d day of February, 1842, the plaintiffs petitioned for the benefit of the bankrupt law of the United States, and were duly declared bankrupts, on the 8th of March, 1842; and that such proceedings were had upon their petition, that the note in suit, with other estate belonging to the plaintiff', passed without indorsement, to the assignee in bankruptcy, Henry Winsor, and was duly sold by him, as such assignee, at public auction, to the plaintiff Drury, and delivered to him without indorsement or writing, in the month of August, 1842. The defendant, upon this proof, insisted that the action could not be maintained: 1st, Because the note had passed by operation of law to the assignee in bankruptcy, and not being indorsed, the action could only be maintained in the assignee’s name ; 2d, Because the said Drury, having taken the note as a purchaser, and not in the right of the payees, was not entitled to use the names of the payees as plaintiffs, in this suit, to save the note from the operation of the statute of limitations, by force of the exception therein contained applicable to witnessed notes. But the presiding judge ruled otherwise upon both points, and the jury returned a verdict for the plaintiffs ; whereupon the defendant excepted.</p>

<p>fn a writ of error to reverse a judgment of the municipal court, rendered in favor of the commonwealth, on a recognizance taken in the police court, the errors assigned were, that it did not appear from the record, that the recognizance was taken in a criminal proceeding, in which case alone, the municipal court by the statute of 1844, c. 44, had jurisdiction; or that the police court had any jurisdic tian to require, or proceeded legally in taking, the recognizance upon which the action was brought; or whether the recognizance was returnable into the municipal court, or in what court the record thereof was remaining; and also that the condition of the recognizance was not set out in the declaration, or any sufficient breach thereof, to justify the proceedings of the police or municipal court in the premises: It was held, that these defects, if they actually existed, were amendable within the Kev. Sts. c. 100, 23 and 24, and therefore no sufficient ground for reversing the judgment.</p>

<p>ú. F. and M. F. his wife having entered into a submission to arbitration with T R. of “all demands between said parties, or all demands which either of them has against the other; ” and the arbitrator having awarded, “ that T. R. did not owe J. and M. F., or either of them,” “ upon any demands, which they or either of them had against him; ” it was held, that the award sufficiently followed the sub mission.</p> <p>Where one of the parties to a submission to arbitration had given the other a writing, acknowledging that he held in trust for him a specified sum, which was then invested in real estate, and which he promised “ to make over ” to such other party, subject to a deduction of all payments which he might make on account thereof; and this writing was presented to the arbitrator as a claim under the submission, after the trustee had paid or become liable to pay more than the sum specified on account of such obligation; it was held, that the claim, thus presented, did not involve a submission to the arbitrator of the title to real estate.</p> <p>If an award is recommitted generally, the authority of the arbitrator is not restricted, by such recommitment, within any narrower limits than are prescribed by the original submission.</p> <p>Where an award was recommitted generally, and the arbitrator, understanding from the counsel of the respective parties, that the object of the recommitment was to ascertain the exact claims made by one of the parties, for that purpose, annexed to his award the original papers, constituting the evidence of the only claims which were made and insisted on by the plaintiffs’ counsel, in his closing argument, and also stated the grounds upon which he had made the award; it was held, that the arbitrator had not thereby exceeded his authority.</p>

This was a bill in equity for the enforcement of a trust in favor of the plaintiffs, created by the will of John Hawes, deceased, and was submitted to the court upon the following agreed statement of facts : — In the twenty-second clause of the will of John Hawes, which was proved in March, 1829, the testator devised to the defendants a lot of land at South Boston, with a dwelling-house thereon, “ to hold for the use of all such persons as shall hereafter reside at said…

These were actions on the case for obstructions to the plaintiff’s road, tried before Mellen, J., in the court of common pleas.

<p>This was an action of assumpsit, on a written contract of guaranty, signed by the defendant and expressed in the following terms: —</p> <p>“ In consideration of loans of money heretofore made by the president, directors, and company of the Merchants Bank, unto James Haughton and .company, and of other loans hereafter to be made upon the faith of this guarantee, and of one dollar to me paid, I do hereby covenant with the said corporation, that the said James Haughton and company shall punctually pay all and singular any sums of money, which shall become due and payable by reason of any loan or discount heretofore made, or which shall hereafter be made to them, or for their benefit; and if they shall omit so to pay the same, I will immediately, upon demand, pay the full amount thereof, with interest, costs, and expenses of every description, which the corporation have incurred by reason of the non-payment thereof, or any proceedings upon the security given therefor; provided, however, that the aggre gate sums of money which I may be called upon to pay by virtue of this guarantee, shall not exceed in all the sum of twenty-five thousand dollars, and that I shall not be responsible for any loan made after the expiration of twenty-four months from the twenty-seventh day of October, 1841.”</p> <p>The plaintiffs averred in their declaration, that, on the 18th of June, 1842, and within twenty-four months from the 7th of October, 1841, in pursuance of this contract, and relying upon the same, they loaned to James Haughton and company the sum of $4,036, which sum, though often requested, Haughton and company had omitted and refused to pay; of all which the defendant had notice, but though requested, had not paid the same or any part thereof.</p> <p>The case being on trial before Wilde, J., and the judge hay nig intimated an opinion, that the question seemed to be one of law, whether the transaction in evidence was a loan within the meaning of the guaranty, a nonsuit was entered, to be set aside and a new trial granted, if the whole court should be of opinion, that the action could be maintained upon the evidence, which was to be reported.</p> <p>The conclusions of fact to which the court came upon the evidence, will be found stated in the opinion.</p>

<p>This was a petition to this court, in the exercise of its general superintendence and jurisdiction, as a court of chancery, of all cases under the insolvent laws, given by St. 1838, c. 163, § 18, to supersede and set aside all proceedings in insolvency against William D. Leavitt, and his partner John McDaniel, in the county of Essex, and pending before John G. King, Esq., commissioner. The petition seeks to set aside the proceedings, on the ground, that the commissioner had no jurisdiction; that the proceedings in this commonwealth were irregular and not warranted by law; and that the petitioner had a right to avoid them, as an attaching creditor.</p> <p>The petition sets forth, that Leavitt and McDaniel resided and carried on business as manufacturers, at a place called Fisherville, in Boscawen, New Hampshire, until September or October, 1849; that the petitioner, George McDaniel, residing at Barrington, in the same state, was a creditor of the firm; and to secure his debt, made an attachment on their property on the 19th of September, 1849, in Massachusetts, by a writ returnable to the court of common pleas in Suffolk, at the January term, 1850 ; that the suit was duly entered and was then pending; that McDaniel and Leavitt gave up their business in New Hampshire in September or October, 1849, and Leavitt came to Lynn, but in November or December following left Lynn and went to St. Louis, Missouri.</p> <p>The petition avers that Naylor and company, claiming to be creditors of the firm of Leavitt and McDaniel, petitioned the respondent, King, as commissioner of insolvency for the county of Essex, that a warrant might issue, &c.; and the petitioner further stated, that he was not informed on what ground the petition to the commissioner was rested.</p> <p>The petition then averred, that neither Leavitt, nor John McDaniel, on the 25th of January, 1850, nor at any time previous thereto, were citizens of this commonwealth, or residing within the same; nor had they at any time been liable or capable to be or to be made insolvent debtors, within the meaning of the statute of 1838, c. 163, and the acts in addition thereto, or subject to their provisions; but on the contrary that John McDaniel, then and now, was and is a resident citizen of Concord, New Hampshire, and Leavitt then and now was and is a resident citizen of the city of St. Louis, Missouri, whither he removed, as the petitioner believes and is informed, at some time in or near October, 1849, up to which time he was and continued to be a citizen of New Hampshire, resident and having his domicil in Boscawen, in that state.</p> <p>The petition then sets forth, that on the 2d of February, 1850, a warrant was issued appointing the respondent Merritt as messenger, and fixing the first of March following as the time for the first meeting; it alleges that these proceedings were instituted in order to prevent the petitioner from availing himself of his attachment on the property' of Leavitt and McDaniel, they not being in any way subject, nor their goods, credits, or estates liable, to be proceeded against in insolvency; and that such proceedings were had without right, the commissioner having no jurisdiction in or about the matters aforesaid, all which they were ready to verify.</p> <p>This petition was duly filed, and an order of notice issued thereon returnable at the present term of this court. The commissioner made no answer, but answers were filed by the petitioning creditors, and the messenger.</p> <p>It appeared by the record of the proceedings, that the petitioning creditors were Naylor and company, as creditors of Leavitt and McDaniel, describing Leavitt as formerly of Boscawen, New Hampshire, but now or lately of Lynn, in the county of Essex, and John McDaniel as of Concord, New Hampshire, traders and partners; alleging that Leavitt had had a residence in this commonwealth within a year, to wit, at Lynn aforesaid, as the ground for the proceedings ; that the goods and estate of Leavitt and McDaniel were attached on mesne process, in three actions, returnable at the January term, 1850, of the court of common pleas for this county; that the fourteenth day of the term was past, and that the attachment had not been dissolved, and praying a warrant Notice was ordered and given, at the time fixed, and on return of the order of notice served, the commissioner adjudged the facts to be true, and issued a warrant accordingly.</p> <p>Several depositions were offered by the petitioner, to show that Leavitt never acquired a residence at Lynn, and one on the other side to show the contrary. The facts, contained in these depositions, are sufficiently stated in the opinion of the court.</p>

<p>This was an action of assumpsit, tried before Bigelow, J., in the court of common pleas, and brought into this court by exceptions. The declaration contained two counts. The first count alleged that the defendant, on the 14th of March, 1848, was indebted to the plaintiff in twenty dollars for so much money before that time had and received by the defendant of the plaintiff, contrary to the act of congress for the government and regulation of seamen in the merchant service, passed on the 20th of July, 1790, whereby an action hath accrued to the plaintiff to demand and have of the defendant the sum of forty dollars, (being twice the amount of the sum received by the defendant,) according to the provisions of said act; yet the defendant, though requested, had not paid, &c. The second count set forth, that the defendant, in consideration that the plaintiff would ship and hire one Herman Myers, to go on board the bark Cleora, and would pay to him an advance of twenty dollars, undertook and promised, by signing upon a certain article, called a shipping-article, that Myers should proceed on the voyage therein mentioned; and that, if he should not so proceed, the defendant should refund the advance money with like amount to the plaintiff; that the plaintiff, confiding in such promise and undertaking, did ship and hire Myers and did advance to him the sum of twenty dollars; and that afterwards, and when the bark was ready for sea, Myers wholly refused to go on board the vessel, and did not go on the voyage; neither had he refunded the money with like amount; whereby an action hath accrued to the plaintiff to demand and have of the plaintiff forty dollars, according to the terms of the agreement.</p> <p>The substance of the shipping-paper, and the facts proved on the trial, sufficiently appear in the opinion of the court.</p>

<p>A deed, signed in the presence and at the request of P., and in the presence of an attesting witness, in these terms, “ P. by M.,” the whole deed, including the signature, being written by M., is properly executed as the deed of P.</p>

<p>This was an action to recover the amount of a promissory note for $300, signed by the defendant, dated April 8th, 1843, and payable to the plaintiffs on demand, with interest. The case was submitted to the court of common pleas, and by appeal to this court, upon an agreed statement of facts.</p> <p>The defendant had been legally discharged from all his debts, including the note in suit, by virtue of a discharge in insolvency, granted to him on the 16th of February, 1844; the note in question not having been proved against his estate.</p> <p>On the 6th of December 1844, a' written contract was made by the parties, by which, among other things, it was agreed, that Pike should finish and complete two houses for the plaintiffs, for the sum of $1,000, and that he should receive his pay therefor as follows, namely, $500 in money, from time to time, as the work should proceed ; $200 in money when the contract should be entirely executed; and the remaining $300, at the same time, to be indorsed on the note now in suit.</p> <p>The defendant proceeded to execute the contract, on his part, and demanded that the plaintiffs should perform the contract, on their part, by making the remaining payments and indorsement. This the plaintiffs refused to do, alleging that the defendant had not performed the contract on his part The defendant thereupon commenced a suit in the court of common pleas, against the plaintiffs, to recover the amount due him on the contract.</p> <p>At the trial of the cause, the defendants therein (the present plaintiffs,) by direction of their counsel, indorsed $300 upon the note now in suit. The jury found a verdict in favor of Pike for $480.20, as damages for the non-performance of the contract, on the part of the plaintiffs, and judgment was rendered accordingly, under an agreement, that if the Kelleys would pay over to Pike the amount of the judgment, excepting the $300, they might retain that amount, as security, in their hands, until final judgment in this suit should be entered ; and if entered for Pike, then the $300 should be paid over with interest, in full satisfaction of Pike’s judgment in the action against the Kelleys; but otherwise it should be appropriated to satisfy the claim of the plaintiffs against the defendant in this action.</p>

This was an action of assumpsit, commenced originally in the justices’ court, and carried by appeal to the court of common pleas, where it was tried before Wells, C. J. The alleged cause of action was a verbal promise by the defendants to pay the plaintiff the amount of a bill originally due him from one Augustus A. Coffin.

<p>If the next term of this court, held for the county of Nantucket, after an appeal taken from the probate court of that county, is the law term of the court for the counties of Suffolk and Nantucket, the appeal is to be entered at such law term, on the Nantucket docket.</p>

<p>An action removed from the court of common pleas to this court, on the affidavit of the defendant or of some one on his behalf, if not entered by either party at the next term of the court, will not be allowed to be entered at a subsequent term.</p>

<p>This was an action of trespass on the case, tried before Fletcher, J., and by him reserved for the consideration of the whole court.</p> <p>The writ was dated March 22d, 1849, and contained two counts.</p> <p>In the first count, it was alleged, that the defendants, on the 15th of April, 1843, and on divers other days, &c., entered upon certain premises situated in West Stockbridge and Richmond, called the Cone ore bed, to the exclusion of the plaintiff, and the utter denial of his right to dig and carry away the iron ore from the premises, and that the defendants unlawfully dug and carried away all the iron ore on said premises, and disturbed and hindered the plaintiff in the enjoyment of his rights thereto.</p> <p>The second count contained a statement of a like injury to the plaintiff’s right to the iron ore in certain other premises situated in West Stockbridge, called the Lane ore bed.</p> <p>The respective rights of the parties, in the ore bed mentioned in the first count, depend upon the terms and conditions of an indenture of November 24th, 1830, between Benjamin Cone, of the one part, and Eli Richmond and Isaac Nicholson of the other; and an indenture of March 3d, 1831, between Samuel Gates and others, of the one part, and Richmond and Nicholson of the other.</p> <p>By the first indenture, Cone demised to Richmond and Nicholson a tract of land in West Stockbridge and Richmond, for the term of one thousand years, “ for the purpose of searching for, digging, raising, depositing thereon or carrying from thence all iron ore, or other metals or minerals, on or from said premises, with the full and perfect right at all times of the right of way, in the most convenient and proper place, for the purpose of digging, drawing, or carrying from thence all the ore or minerals that may be found thereon.”</p> <p>The lessees covenanted, that they would weigh all the ore and keep a just account of the same, when taken from the premises, and pay the lessor fifty cents a ton for each and every ton, when carried away.</p> <p>The lessees also agreed, that they would dig or cause to be dug and taken such quantities as should be suitable and proper, commencing without unreasonable delay; and that in ease they should cease or neglect to improve the ore bed, at any one time, for the space of one year, then the lessor should have the right to repossess the premises, and improve the same for his own use and benefit.</p> <p>By the second indenture, Richmond and Nicholson agreed with Gates and others, to sell them all the ore which they might raise or dig on the premises above mentioned, upon the following terms and conditions, namely: that Gates and others should receive of Richmond and Nicholson four hundred tons annually, or more, if the parties should agree for a greater quantity, for which Gates and others should pay Richmond and Nicholson a duty of fifty cents a ton, in addition to the fifty cents a ton which they had agreed to pay Cone; and that so long as Gates and others should receive from Nicholson and Richmond four hundred tons annually, they should not sell any ore from the premises to any other person whatever.</p> <p>This covenant was subject to the exception, that if Richmond and Nicholson should raise more ore on the premises than Gates and others should want to purchase, in any year, they might sell the overplus to any other persons besides Gates and others; but Gates and others should receive one half of the advance or benefit, which might arise on such overplus, over and above the duty to be paid to Cone, and to Richmond and Nicholson, and the expense of digging or raising it; and the other half of the overplus should go to Richmond and Nicholson.</p> <p>It was also agreed, that if Gates and others should at any time decline taking or receiving the four hundred tons of ore annually, as above stipulated, then Richmond and Nicholson should have full liberty to sell the ore which they might raise on the premises to any other persons, subject to the condition above named, so long as Gates and others should refuse to receive it, but whenever they should be willing to receive the four hundred tons annually, the conditions restricting the sale should be in full force.</p> <p>The parties further agreed, that if Richmond and Nicholson, or either of them should, at any time, refuse or not be able to dig or raise ore at a fair price, Gates and others should have liberty to employ other persons to dig nr raise it for them.</p> <p>The second indenture contained a further provision relative to the payment for the ore, not material to be stated in the present case.</p> <p>The plaintiff had succeeded to the rights acquired by Richmond and Nicholson under these instruments, and the defendants to the rights of Gates and others.</p> <p>The rights of the parties in'the ore bed mentioned in the second count depend upon the terms and conditions of an indenture of the 25th of April, 1832, between David R. Walling and others, of the one part, and James M. Holley and others, of the other part.</p> <p>By this instrument, Walling and others demised a tract of land in West Stockbridge to Holley and others, for the term of nine hundred and ninety-nine" years, “ for the purpose of searching for, digging, depositing thereon, and carrying away all iron ore, or other metals or minerals from thence, that may be found on said premises, with the full and perfect right of way in the most convenient place or places, and also the full and perfect right of way, and the use of all streams of water or water privileges in all places; for the purpose of washing and cleaning any part or parts of said minerals, as well as to dig and to drain all the mines that may be found thereon.” [t was agreed, that Holley and others, after the first year, which was to be experimental, should dig or cause to be dug the amount of three hundred tons, if the ore should be found to be good, for which they were to pay Walling and others, at the rate of seventy-five cents a ton; that they should keep an exact account of all the ore dug and carried away from the premises, and make .out and settle the same on the first of January in each year; that if Holley and others should choose, they might dig as much more as they pleased, paying therefor at the rate of seventy-five cents a ton; and that if at any time they should neglect to improve the premises for more than one year at any one time, then Walling and others should have the right to dig ore themselves, until Holley and others should choose to recommence operations, in which case, they should have the right to enter and improve the premises, whenever they should choose.</p> <p>The plaintiff has the rights of Walling and others, and the defendants those of Holley and others, under this indenture.</p> <p>It was in evidence on the part of the plaintiff, that the defendants had dug iron ore both on the Cone bed and the Lane bed, in each year, commencing in 1843 and ending in 1848.</p> <p>It was admitted, for the purposes of the case, that the defendants had not paid the plaintiff, or his grantors, any duty for ore taken from either the Cone or the Lane ore bed, since the 15th of April, 1843; that neither the plaintiff nor his grantors had ever made any claim or demand upon the defendants for any such payment from the 15th of April, 1843, to the time of bringing the action; that the plaintiff had never-offered to dig ore in the Cone bed, or expressed to the defendants any desire to be so employed, and that his grantors had not dug any in the Cone bed, or sought to do so, since 1843; and that neither the plaintiff nor his grantors had ever remonstrated against or opposed the operations of the defendants in either of the ore beds.</p> <p>The defendants contended, among other things, that whatever might be the plaintiff’s right and title in the premises described in his writ, he was not entitled to maintain against the defendants an action sounding in tort; and the presiding judge being of opinion, upon the facts proved or admitted, that the action could not be maintained, the case was thereupon taken from the jury, to be reported as above for the consideration of the whole court, who were to make such order in the case, as they might think proper.</p>

<p>This was an information, in the nature of a writ of Quo Warranto, filed in this court by the district-attorney for the western district, in pursuance of a resolve of the legislature passed on the 25th of April, 1849, against the Tenth Massachusetts Turnpike corporation, to appear in this court, and show cause, if any they have, why the charter thereof should not be adjudged to be forfeited.</p> <p>The information contained two counts. In the first count, it was alleged, that the Tenth Massachusetts Turnpike corporation, for six years previously thereto, had used and exercised, without any warrant, grant, or charter, and therefore had usurped without right, the liberties, privileges, and franchises, (enumerating them,) and exercised the powers, including that of receiving tolls, usually exercised and enjoyed by turnpike corporations. The second count enumerated a great number of omissions of duty, on the part of the respondents, as grounds of forfeiture of their charter. Among others, it alleged, that Kendall Baird, at the February term of the court of common pleas, 1841, recovered judgment against the respondents for $449.98, damages, and $10 costs; that the respondents permitted execution on such judgment to be levied on their franchise, and the same to be sold to Baird, the creditor, for the term of ninety-nine years ; and that the respondents had neglected to redeem the franchise, but from the day of the sale, had permitted Baird to manage and control the road, and to collect and appropriate the tolls thereon to his own use.</p> <p>The respondents demurred.</p>

<p>The liability of a receiptor for goods attached, which have been demanded within thirty days after judgment, and have not been delivered up to be taken in execution, is not discharged by the subsequent commitment of the debtor on the execution, and the bringing of a suit, and the recovery of a judgment therein by the creditor against the debtor and his surety, for an escape, on a bond given by thsm for the prison limits.</p>

<p>This action, which was trespass for taking and carrying away certain personal property described in the writ, was tried before Byington, J., in the court of common pleas.</p> <p>The defendants admitted the taking, as set forth in the declaration, and justified the same, the defendant Hiram Hubby as mortgagee, and the other defendant as his servant, under a mortgage duly executed and recorded from the plaintiff to the defendant Hiram and two others, Hannah Hubby and William M. Hubby.</p> <p>The consideration for the mortgage was therein expressed to be paid by the mortgagees, severally, each in a certain sum, and the condition of the mortgage was, that the mortgagor should pay the same sums to the mortgagees, their executors, administrators, or assigns, in one year, namely, to Hiram Hubby $75, to Hannah Hubby $150, and to William M. Hubby $175. The mortgage contained no covenant respecting the possession of the property.</p> <p>The plaintiff alleged, that this mortgage, though formally executed by him, was never delivered to Hiram Hubby or to any one else for his benefit; and the plaintiff offered evidence to show, that the mortgage was delivered by him to Hannah Hubby after it was recorded, for her benefit only. The defendants objected to the admission of this evidence on the ground that if the mortgage was delivered to any one of the mortgagees, that would be in law a sufficient delivery to all the mortgagees.</p> <p>The presiding judge ruled, that as the mortgage, though made to the three mortgagees, was made for the purpose of securing a several debt due to each of them, the plaintiff might show, that it was never delivered to the defendant Hiram Hubby, or to any one else for his benefit; and thereupon admitted the evidence.</p> <p>The jury were instructed, that if the plaintiff was in the exclusive possession of the property, and the same was taken from him by the defendants, and by them converted to their own use, the rule of damages was the value of the property.</p> <p>The jury returned a verdict for the plaintiff, and the defendants excepted.</p>

<p>This was an action of trover, brought by the plaintiffs, as the mortgagees of certain personal property, against the defendants, as the assignees of Newell Bliss, the mortgagor, an insolvent debtor, to recover the value of the property mortgaged, which, on the insolvency, came into the possession of the assignees and had been sold by them.</p> <p>The facts, upon which the case waf submitted to the court, were as follows-: —</p> <p>On the 13th of March, 1848, the plaintiffs, under the name of J. Barker and brothers, together with D. &. H. Stearns and Lewis Stoddard, all as the sureties of Newell Bliss, signed a promissory note jointly and severally with him to Thomas Colt and company, for $2000, payable, with interest annually, one half in four, and one half in five years. No part of this note had ever been paid by Bliss, and the plaintiffs were liable therefor in common with the other sureties on the same.</p> <p>On the 20th of November following, Bliss made a mortgage, duly executed and recorded, to the plaintiffs, of all the goods, wares, and merchandise, which he then had in the store occupied by him, and all that he might have therein for five years from date. The condition of the mortgage was, that the mortgagor should save the plaintiffs “ perfectly harmless and free from all expense and damage, on account of their having signed, as sureties for the said Bliss, a certain promissory note given by him to Thomas Colt and company, for the payment of $2000, dated March 15th, 1848.” The consideration of the mortgage, as stated therein, was $666.66.</p> <p>On the 1st of September, 1849, Bliss became an insolvent on his own petition; the defendants were appointed his assignees ; and as such they took possession of and sold all the “goods, wares, and merchandise,” then in the store of the in solvent; Bliss’s estate failed to pay the dividend necessary to entitle him to a discharge, and no certificate has ever been granted to him.</p> <p>The plaintiffs, before the commencement of this action, demanded of the defendants either to deliver up the goods embraced in the mortgage, or else to furnish the plaintiffs with sufficient legal indemnity against loss or damage on account of their liability on the note ; both which requests, the defendants refused to comply with.</p> <p>It was agreed, that Bliss would testify, if the evidence was admissible, and if so, it was to be taken as proved, that, in making the mortgage aforesaid, it was his intention to secure the plaintiffs only to the amount of one-third of the note and interest, under the belief, that the same would be a full and perfect indemnity to them for their liability on the note.</p> <p>If the plaintiffs were entitled to recover the value of the goods, it was agreed, that judgment should be rendered for the plaintiffs for such sums as they would be entitled to retain out of the avails of the mortgaged property, and apply in satisfaction of their liability on the note, together with such further damages, as they should be entitled to for their expenses in this suit.</p>

<p>In an indictment for selling intoxicating liquors, to be used in and about the premises of the seller, it is not necessary to allege, that he was not duly licensed, under the statute of 1850, c. 232, to sell intoxicating liquors, for mechanical and medicinal purposes.</p>

<p>This was a writ of entry, brought by the plaintiff as the administrator of Gideon Canfield, and tried in this court on the issue of mil disseisin before Metcalf J., by whom it was reserved, after a verdict for the demandant, and reported for the consideration of the whole court.</p> <p>The land demanded was part of a farm, originally belonging to the plaintiff’s intestate, -who, on the 6th of February 1846, conveyed the same to his two sons, Theron and Marcus R. for the consideration of" $2000, for which each of the grantees gave his note for $1000, payable on demand, with interest annually, after the 1st of April, 1847, when they were to have possession.</p> <p>The grantor, at the time of this conveyance, stated that ho thought he did not owe but $1500, which sum would pay all his debts; and there was no evidence to show that either the grantor or his sons knew or supposed otherwise; nor was it contended, that there was any intent to defraud the creditors of the grantor, or to avoid payment of his debts; but there was evidence, that the parties regarded the farm as worth more than $2000, and that the value beyond that sum was considered as a gift to the sons.</p> <p>On the 1st of March, 1847, the grantor died, and the plaintiff was appointed his administrator. The estate proved insolvent, and commissioners were appointed, who allowed claims to the amount of $3250.75. The inventory returned was of real estate, $740, and personal estate, $1910.94, amounting together to $2650.94.</p> <p>It having been referred to an auditor to state the condition of the intestate at the time of the conveyance to his sons, the auditor reported that his indebtedness, at that time, was $2754.25; of which sum $970.77 was due on promissory notes, on which the intestate was a joint promisor with his son Theron; that if these notes were for the debts of Gideon Canfield alone and the other joint promisor was a surety, then the sum first named was the amount of the intestate’s indebtedness, at the time in question; but if the last-named sum, or any part thereof, was a joint debt as between the copromisors, then to the amount of such joint debt one half thereof was to be deducted from the sum of $2754.35, and the balance was to be taken as the amount of the intestate’s indebtedness, on the 6th of February, 1846. In regard to the amount of Gideon Canfield’s assets at that time, the auditor reported, that “ evidence was offered tending to show, that the assets of said Gideon, at the time of the conveyance, besides the farm, amounted to $2800.”</p> <p>The demandant, in his capacity of administrator, had received of Theron Canfield $1000.66, and of Marcus- $382.50, being the balance due on their notes of $1000 each, given to the intestate on the purchase above stated, the residue having been paid to the intestate before his death. No part of either of these 'sums had ever been offered to be refunded by the administrator. One of the debts, reported upon and allowed by the commissioner, was in favor of Theron Canfield, for $795.29, being the amount paid by him on the note above mentioned as surety for Gideon Canfield.</p> <p>On the 7th of September, 1847, Theron and Marcus having previously made partition of the estate conveyed to them by their father, Marcus conveyed his share thereof to the tenant, subject to the right of dower of the grantor’s widow, and to a mortgage mentioned in the deed to the tenant; and evidence was introduced to show, that the tenant, at the time of the conveyance, had knowledge of the gift above mentioned.</p> <p>On the 4th of July, 1848, the demandant presented a petition to the judge of probate, setting forth that he was the administrator of the estate of Gideon Canfield; that the estate had been represented and proved to be insolvent; that commissioners had been appointed thereon, who had reported the debts due from the same; that the goods and effects comprised in the inventory had been fully administered, and the proceeds thereof ratably divided among and paid to the creditors, whose claims were allowed by the commissioners ; that there was still due and unpaid to the creditors the amount of $1020.16 ; that several of the creditors had represented to the petitioner, that the intestate, in his lifetime, had conveyed away certain real estate described in the petition, with intent to defraud his creditors; that the intestate died within five years, to wit, on the first Monday of March, 1847; that the creditors above mentioned had requested the petitioner, and had required of him, to make sale of so much of the said real estate as might be necessary for the payment of the sum aforesaid, with interest and charges ; wherefore the petitioner prayed, that he might be authorized and empowered to make sale of so much of the said real estate, as might be necessary for the purpose aforesaid. Due notice of this petitian having been ordered and given to all persons interested, by publishing the same three weeks successively in a newspaper designated by the court, the judge of probate, on the first Tuesday of August following, passed an order reciting the petition and licensing the petitioner to sell at public auction, within one year, so much of the said real estate, as would raise the sum of $1200 for the purposes aforesaid, and to execute conveyances thereof accordingly.</p> <p>The demandant entered upon the demanded premises on the 4th of August, 1848, and the writ was dated the same day.</p> <p>Several objections to the demandant’s right to recover, on this evidence, were taken by the tenant, and overruled by the judge, who instructed the jury, that if in the conveyance from Gideon Canfield, there was a gift of some value beyond the consideration of $2000, which was made and received as a gift, and the tenant knew that fact, when he purchased of Marcus, they might return a verdict for the demandant.</p> <p>The jury, under these instructions, returned a verdict for the demandant subject to the opinion of the whole court. If the. demandant is entitled to maintain this action, such judgment is to be entered as the court may order; otherwise a new trial is to be had, or the demandant is to become nonsuit, according to the direction of the court.</p>

This was a writ of dower, sued out of this court on the 29th of April, 1849, in which the demandant, describing herself as of Cincinnati, in the state of Ohio, widow of the late Douglass W. Sloan, deceased, demanded her dower in certain premises described in the writ, of which she alleged she had made a demand on the 27th of March preceding.

<p>The plaintiff, in an action brought originally in this court, having made oath before a justice of the peace, as required by St. 1840, c. 87, § 1, that the matter sought to be recovered in such action exceeded in amount the sum of $300; and the oath being indorsed on the writ, but without any date; it was held, on an objection taken to the jurisdiction of the court, that the plaintiff might show by paroi, that the certificate was indorsed before the service of the writ.</p> <p>An agreement, between the plaintiff and defendant in an action in which property has been attached and receipted for to the officer by- a third person, that the plaintiff shall not enforce the receipt, until after a specified time, and a forbearance to enforce it accordingly, will not discharge the receiptor from his liability to the officer, although the agreement is made without the consent or authority of the former.</p> <p>A witness, who was present at the making of a verbal agreement, cannot be allowed to state what he understood to be the effect of such agreement.</p>

<p>This was an action on the case, at common law, for flowing the plaintiff’s land in Becket, by means of a dam constructed by the defendant over and across Farmington river. The trial was before the chief justice.</p> <p>The case having been opened, the defendant contended, that if the plaintiff had sustained any damage by means of the cause alleged, his remedy was by complaint, under the mill act, (Rev. Sts. c. 116,) and that an action at common law would not lie.</p> <p>It was therefore agreed, for the purpose of this question, that there is a considerable pond forming one of the sources or feeders of the Farmington river, through or out of which one portion of that river flows ; that hi order to form a reservoir for the use and supply of his mills below, the defendant raised a, dam across the outlet of the pond, which had the effect to raise the water higher, and to keep it up a greater portion of the year, than would otherwise naturally be the ■ case ; that the plaintiff is the owner of land bordering on the pond or its outlet, over which the water is flowed higher and kept up a greater portion of the year, than it would be, if the dam was not so placed there, the effect of which is to injure the plaintiff’s land and impair the value of his crops; that the defendant is the owner of mills below on. the Farmington river, provided with a dam across the river, the supply of water in which is increased in quantity and steadiness of supply, at all seasons of the year, by means of the reservoir and reservoir dam above mentioned, and by means of which the mills below are greatly benefited and improved; that the reservoir dam was erected by the defendant for the purpose of raising a better head of water, and producing a more constant and steady supply to his mills ; that on the same stream between the reservoir dam, and the defendant’s mill, there are two other mill-dams, with mills upon them, belonging to other persons; and that the defendant’s mills are about one mile below the site of the reservoir dam. Upon this statement of the plaintiff’s ease, a nonsuit was entered by consent, subject to the opinion of the whole court.</p>

<p>In an action on a contract of warranty on the sale of a horse, pending in the court of common pleas, the defendant may show, under the general issue, and without any specification of defence, that the contract was made on the Lord’s day, and therefore void.</p>

<p>This was an action on the case, for a malicious prosecution; and the plaintiff having deceased, his administrator appeared, and moved to dismiss the action, on the ground, that it did not by law survive. The court of common pleas, in which the action was pending, granted the motion, and the defendant excepted.</p>

<p>An action on the case for a libel does not survive by law in this commonwealth.</p>

<p>The principal defendant in a trustee process was employed by the supposed trustee in his retail shop, at $6.50 a week, and always received his wages as he wanted them, keeping his own account, and crediting what he received, whether money or goods, on the books of his employer: On Saturday, the process was served on the supposed trustee, by a copy thereof being left at his house, in his temporary absence: At the time of the service, the supposed trustee was icile^ted to the defendant in the sum of $16.07; and on going to his shop early on the Monday morning following, he found that the defendant had given him credit, on his books, for $16 in money, and $7 for a barrel of flour, as received on the Saturday preceding, and, by his cash-book, it appeared, that $16 had been withdrawn from his cash, but he did not ascertain whether a barrel of flour had been taken away: It was held, that such receipt by the defendant was a payment in good faith by the supposed trustee, within the Rev. Sts. c. 109, § 5.</p>

This was an action of assumpsit on a promissory note indorsed in blank by the defendant, who was the payee thereof, of which the following is a copy: — “$750. Housatonic, Sept. I4th, 1848. “ Three months after date we promise to pay to the order of Cutler Laflin, Esq., seven hundred and fifty dollars at the American Exchange Bank, New York. Value received. Housatonic Manuf.

<p>In this case, which was a bill in equity to redeem a tract of land in Lanesborough, argued and decided at the September term 1847 in favor of the defendant, as stated in the report of the case in 12 Met. 494, after the decision had been given, the plaintiff claimed a right, under the bill, to redeem the defendant’s second mortgage, to which the plaintiff’s mortgage had been postponed.</p>

<p>This was an action of trespass, originally commenced by Frederick Dunham, and now prosecuted by his administi 1 ;v, to recover damages for the taking of a yoke of oxen and other property, against the defendant, a deputy sheriff, who had attached the same on mesne process, as the property of one Evander Dunham.</p> <p>The trial was before Byington, J., in the court of common pleas.</p> <p>The plaintiff called as witnesses Evander Dunham and Gustavus Dunham, sons and heirs at law of Frederick Dun-ham, the intestate ; and the defendant objecting to their competency on the ground of interest, the plaintiff then produced two papers, which she contended rendered the said Evander and Gustavus competent witnesses.</p> <p>The first paper, which was signed “ Sylvania Dunham, by Thomas A. Gold, attorney,” but not under seal, was as follows:—11 To Evander Dunham, Gustavus Dunham, and William Bender., In consideration of your release and transfer to me of all your interest in or claim to the oxen and other property sued for in my action against Grove W. Branch, I hereby promise and agree to save you free and harmless from all costs and charges whatever in my said action.”</p> <p>The second paper, signed by Gustavus Dunham and Evan der Dunham, was in the following terms : —</p> <p>“ We the subscribers, as heirs to the estate of Frederick Dunham, deceased, in consideration of a release to us of all liability for costs in the suit of Sylvania Dunham, administratrix, now pending in the court of common pleas, and of ten cents, paid to each of us, we hereby release, acquit, and discharge all our claims to the oxen and other property claimed by the suit of Grove W. Branch, and do hereby assign and sell the same to the said Sylvania Dunham.”</p> <p>Thomas A. Gold, the plaintiff’s attorney, by whom the first paper purported to be signed as attorney, testified, that the plaintiff was present at the time, and that he signed the instrument in her behalf, and by her direction and consent.</p> <p>The defendant contended, that notwithstanding the execution of these instruments, the witnesses were still interested in the event of the suit; and that the papers in question were not in law releases, for want of authority in Gold to execute the first in the manner he did, and for the further reason that they were not under seal.</p> <p>But the presiding judge overruled the objections, and admitted the witnesses, who thereupon gave evidence to prove that the property described in the plaintiff’s writ belonged to the plaintiff’s intestate, and not to Evander Dunham.</p> <p>The jury returned a verdict for the plaintiff, and the defendant excepted.</p> <p>The case was argued in writing.</p>

<p>The owner of real estate, having sold and conveyed the same in fee, and entered into a written contract with the purchaser, by which the latter undertook to sell and reconvey the estate to him at a future day, on certain terms, remained in possession of the same under a paroi agreement with such grantee, who after-wards sold and conveyed the estate to a third person in fee: It was held, that the estate of the first grantor, under the paroi agreement with his grantee, was that of a tenant at will only, which was terminated on the second conveyance, by operation of law; and that the second grantee was thereupon entitled to the process provided in Rev. Sts. c. 104, §§ 2 and 4, to recover possession of the estate</p>

<p>K. and S., living in different towns, made a contract, that K. should sell and convey to S. a certain piece of land, in consideration of which S. should deliver to K. a certain promissory note and a yoke of oxen, and that the deed of the land should be sent, and the note and oxen returned by a brother of K. K., in an action brought for a breach of the agreement, offered evidence that the deed being sent accordingly, and the messenger having returned with the note, but without the oxen, he was inquired of by K. why he did not bring the cattle, and replied, that S. wanted to use them a week or ten days, and would then return them or the money. This evidence was objected to, but admitted as a declaration accompanying an act, and another witness subsequently testified to the same facts without objection. S. called a witness to testify, that he told the messenger that he would not give any thing but the note for the land. This evidence was objected to, but admitted by the judge, who instructed the jury, that the declarations of the messenger were not evidence of the truth of any thing related by him, but that the fact that certain things were said by him to S., when he went to S. for the purpose of delivering the deed, might be considered by the jury, so far as it tended to explain or account for the conduct of the parties. It was held, that the evidence was improperly admitted, even for the qualified purpose stated, and though similar evidence had been previously given for K. without objection.</p>

<p>One who has been a surveyor of highways, at three or four different periods, and has often been employed by the county commissioners, as a surveyor, to assist in laying out roads, as to grades,„but not in the construction of roads, is not competent as an expert, to testify to his opinion concerning the safety and con venience of a particular road.</p>

<p>This was an action on the case against Tryon Winchell, Henry Luddington, and Joseph Powers, for negligently and improperly managing a pair of horses and wagon, whereby the plaintiff’s horse and wagon were injured. The declaration alleged, that the plaintiff, at Northampton, on the 20th of September, 1849, was the owner and possessor of a horse and wagon, which were in the lawful custody of one Isaac Parsons, and lawfully passing over Elm street in Northampton ; that the defendant Powers, as the servant of Luddington and Winchell, the other defendants, and being in their employ, had the care, direction, and management of a certain pair of horses harnessed to a wagon, which were then and there used by the defendant Powers in and about the business of the other defendants; that the defendants, not regarding their duty in this behalf, by the defendant Powers, acting as the servant of the others, so ignorantly, carelessly, and negligently, drove, managed, and guided their horses and wagon, that the wagon was violently drawn and forced against the • horse and wagon of the plaintiff, with such force and violence, that the plaintiff’s wagon was overset, broken to pieces, and destroyed, and his horse lamed, wounded, and otherwise injured.</p> <p>The defendants pleaded the general issue.</p> <p>At the trial of the case, before Horn, J., in the court oí common pleas, it was in evidence on the part of the plaintiff, that the defendant Winchell employed Powers, another of the defendants, as his servant, to take Winchell’s wagon, and a pair of horses belonging to Luddington, the other defendant, for the purpose of going with them about a mile on business of Winchell; and that the injury complained of in the declaration, as there stated, occurred while Powers was on his way for the purpose stated, Winchell not being present.</p> <p>The defendant contended that, on this evidence, the action could not be maintained against the defendants jointly. But the presiding judge instructed the jury, that if the injury complained of occurred in consequence of the negligence of Powers, the action would lie against him ; and that if he was at the time acting in the service of Winchell, the other defendant, Winchell was liable jointly with him.</p> <p>The jury returned a verdict in favor of Luddington, and a verdict of guilty against the other defendants, who thereupon alleged exceptions.</p>

<p>This was a petition for partition, in right of the wife, of several lots of land, three of which, the petitioners contended, descended to the wife and the respondent from their mother Joanna Cook and two deceased sisters, and of which the respondent claimed to be sole seized by devise from his father Gad Cook.</p> <p>Two of the lots in question, described in the will of Gad Cook as the lot bounded east by Middle street, and west by Connecticut river, and the Mountain lot, came to Joanna Cook by devise .from her father Oliver Smith, and the third, called the Hither Aqua Vitae lot was conveyed to her by Elihu and Oliver Smith; and in these three lots, Gad Cook had an estate for his life only, as tenant by the curtesy.</p> <p>Gad Cook died on the 24th of May, 1828, leaving a widow, Joanna Cook; three daughters, Joanna, Sarah, and Naomi, the female petitioner; and one son, Obed, the respondent. Joanna Cook, the widow, died on the 22d of January, 1838; Joanna, the daughter, on the 10th of March, 1841 • and Sarah Cook, on the 26th of February, 1842. Joanna and Sarah made no conveyance or devise, and the female petitioner and the respondent were their only heirs at law</p> <p>The will of Gad Cook was as follows: —</p> <p>“ To my beloved wife Joanna, I give and devise the use and improvement of one third part of all my real estate for and during the term of her natural life; also the right of occupying such part of my dwelling-house, as may best promote her convenience and comfort. I also give to her one cow and all my household furniture, to be at her own disposal. My pew in the meeting-house, I give and devise to my wife and children.</p> <p>“ To my son Obed I give and devise my homestead, including all the buildings; my lot of land bounded east by Middle street and west by the Connecticut river, my Hither Aqua Vitse lot and my Mountain lot, to have and to hold the same to him, his heirs, and assigns forever.</p> <p>“ I give and devise all the residue of my real estate to my son Obed and my three daughters, Joanna, Naomi, and Sarah, to have and to hold to them, their heirs, and assigns forever, in equal shares.</p> <p>“ To my daughter Joanna, I give a cow, and to each of my other daughters I give a heifer, and to each of my three daughters I also give the privilege of occupying a room in my dwelling-house, so long as she shall remain single and unmarried.</p> <p>“ I give and devise all the rest of my personal estate to my son Obed, the payment of my just debts having been first made.”</p> <p>It was in evidence, that no person interested in the estate of Gad Cook opposed the proof and allowance of his will in the probate court, or objected to any of its provisions; that the widow’s dower in his estate was never set off in severalty, but that the widow and children lived upon the estate, without any division of the real or personal property during her life; and that the family continued to live together in the same condition after her death, and the deaths of Joanna and Sarah, and the marriage of the respondent in 1847, until 1848, shortly previous to the marriage of the petitioners.</p> <p>It was also in evidence, that during the whole period after his father’s decease, the respondent had the charge of the farm work, and his mother the charge of all the household affairs, during her life; though for the last three years, in consequence of an accident, she had been able to do but little work.</p> <p>It further appeared, that about a year previous to the filing of the petition, the respondent purchased of the petitioners then: interest in the furniture, which was bequeathed by Gad Cook to his wife Joanna, and for which he paid them'$100.</p> <p>The petitioners contended, that Gad Cook having only an estate for life in the three lots in question, as tenant by the curtesy, the devise by him to the respondent was void; and that the same descended, at the death of Joanna Cook, to her heirs at law, whose interests had all come to the female petitioner and the respondent, as tenants in common.</p> <p>The respondent, admitting that Gad Cook was only a tenant for life, by the curtesy, contended, that having devised the estate specifically to him, Gad Cook thereby asserted his right so to dispose of it; that Joanna Cook the widow, and Naomi, the female petitioner, having each of them a beneficial interest under the will, made no objection to the probate thereof, but received and accepted the provisions therein made in their behalf; that they thereby ratified the provisions under the will, in favor of the respondent, and were consequently estopped to deny the testator’s title to devise the lots in question to him in fee.</p> <p>At the trial before the chief justice, the foregoing facts having appeared in evidence, the case was reserved by him and reported for the consideration of the whole court, who were to pass such order, or enter up such judgment, in the same, as law and justice might require.</p>

This was an appeal from a judgment of the court of common pleas, accepting the verdict of a sheriff’s jury, summoned to revise an award of the county commissioners, as to the damages occasioned by the respondents to the fishing rights of the petitioners, by the construction of a dam across the Connecticut river.

<p>The number and check letter of a forged bank-bill, and the words in the margin, need not be set forth in an indictment for uttering and passing it as true.</p> <p>Dn a trial at Northampton, for uttering as true a forged bank-bill, purporting to be a bill of a bank at Worcester, a witness having testified that he knew the president of that bank; that when the witness last saw him, which was something less than a year before, he lived in Worcester; and that he then told the witness that his wife had bought a place in Oxford, in this state, and his family were going there to reside; it was held, that upon this evidence, the testimony of the president might be dispensed with, and the forgery of his signature allowed to be proved by other witnesses, within the Rev. Sts. c. 127, § 10.</p> <p>A confession or admission by one under arrest on a criminal charge, to the officer having him in custody, made the day after the party had been told by the officer, that “ he could make him no promises, but if he made any disclosures that would be of benefit to the government, the officer would use his influence to have it go in his favor," is not admissible in evidence against such party; although the officer testifies, that he thought the statement was voluntary, and would have been made, if the inducements of the day before had not been held out; and although the judge instructed the jury, that if the statement was not< made freely and voluntarily, or if it was induced by the previous promises, they should exclude it altogether.</p>

The parties having referred a demand, made by the plaintiff upon the defendants, “ for damage for flowage of land in consequence of the dam ” of the defendants, to arbitrators, by a submission before a justice of the peace, in the manner provided by the Rev. Sts. c. 114, the arbitrators made an award of damages in favor of the plaintiff, and returned the same into the court of common pleas, where it was accepted, and judgment rendered accordingly.

<p>In this case, which was an appeal from a decree oi the com missioner of insolvency for the county of Hampshire, allowing the proof of a claim against the estate of Leonard Campbell, an insolvent debtor, the material facts are stated in the opinion of the court.</p>