Volume 60 — Massachusetts Reports

<p>This was a bill in equity, in which the plaintiff alleged, that in February, 1847, he made an oral agreement with the defendant, that the plaintiff should convey his farm to the defendant, in consideration for which conveyance, the defendant agreed that he would “ obligate ” himself to furnish a suitable, proper, and comfortable support to the plaintiff and Lydia, his wife, in sickness and in health, during the term of their natural lives, and would also “ obligate ” himself to pay to the estate of the plaintiff, at his decease, the sum of five hundred dollars ; that in pursuance of this agreement the plaintiff conveyed his farm by warranty deed to the defendant in fee, and the defendant, at the same time, made and delivered a quitclaim deed of the same to the plaintiff and his wife, to be held by them for and during the term of their natural lives; that the magistrate who drew the deed was then interrupted, and could make no farther or other papers at that time; that within a few days after this, the plaintiff requested the defendant to give him the obligation necessary to secure the support of the plaintiff and his wife during their natural lives, and the payment to be made to the estate of the plaintiff, after his decease, of the sum of five hundred dollars; that the plaintiff had since frequently made a like request; and that the defendant had wholly refused to give such obligation, and had not furnished support to the plaintiff and his wife, according to the agreement, and had refused to reconvey the estate to the plaintiff, though requested so to do; but had held and now held the lega, title to the estate under the plaintiff’s deed, without any good, legal, or valuable consideration, and by fraud. The prayer of the bill was that the defendant might be decreed to reconvey the estate to the plaintiff, and for other and further relief.</p> <p>The defendant demurred generally.</p>

<p>This was an action of trespass for taking, carrying away, and selling a horse alleged to be the property of the plaintiff. The defendant specified in his defence, that he seized and sold the horse, as a deputy-sheriff, to satisfy an execution in his hands in favor of one Brooks against Avery Pierce, the father of the plaintiff, and that the horse was the property of Avery Pierce.</p> <p>At the trial, before Byington, J., in the court of common pleas, the plaintiff having given evidence that the horse belonged to him, and that at the time of the taking and sale he claimed the horse as his, and forbade the sale, the defendant then offered evidence to prove, that by an arrangement between the plaintiff and Avery Pierce, the latter was authorized to make a sale of the horse, at a time when he went from his home with him; that the plaintiff authorized Avery Pierce to call the horse his own, if be could thereby the better effect a sale; that Avery Pierce did offer the horse for sale, calling him his own; but such offer and declaration were not made to the defendant or to the execution creditor; that the plaintiff, on different occasions, spoke of the horse as the property of his father; that a few days before the seizure, an agent of the execution creditor went to the plaintiff’s stable, where the horse was kept, and without disclosing his agency, or any interest he had in the subject, inquired of the plaintiff who was the owner of the horse, in answer to which the plaintiff stated, that the horse belonged to Avery Pierce, his father; and that the horse was seized on the execution and sold by the order of the judgment creditor.</p> <p>The defendant thereupon requested the judge to instruct the jury, that if the facts in evidence were proved, the plaintiff was estopped to deny that Avery Pierce was the owner of the horse at the time of the seizure.</p> <p>But the presiding judge instructed the jury, that if the agent of the execution creditor, having disclosed his agency and purpose, inquired of the plaintiff who was the owner of the horse, and the plaintiff replied that his father owned him, then the plaintiff would be estopped to claim property in the horse; but that if the agent did not disclose his agency or purpose, or that he had any interest in knowing whose the horse was, and the plaintiff had no knowledge that he had any such interest, the plaintiff would not be estopped from showing that the horse was in fact his; though such declaration would be evidence that the horse belonged to Avery Pierce.</p> <p>The jury were further instructed, that if the plaintiff, by an arrangement with Avery Pierce, permitted him to call the horse his own, and to exercise acts of ownership over him, and Avery Pierce did so, in pursuance of such arrangement, and if the plaintiff, in speaking of the horse to others, called him Avery Pierce’s; then, unless the defendant had notice that the horse was the property of the plaintiff, the plaintiff was estopped to claim the ownership thereof; but if the plaintiff, at the time of the seizure, notified the defendant that the horse was his, and forbade the seizure and the sale, he would not be estopped from proving that the horse was his; though these declarations would be evidence to show the property in Avery Pierce.</p> <p>The jury, under these instructions, returned a verdict for the plaintiff, and the defendant excepted.</p>

This was an action of assumpsit, tried before Byington, J., in the court of common pleas, by the plaintiff, as the payee, against the defendant, as the drawee and acceptor of a draft drawn by one George Clay, dated the 2d of January, 1848, of which the following is a copy: — “ Mr. Brigham, Dear Sir : You will please pay Elisha Wells $30, which is due me for the two-horse wagon bought last spring, and this may be your receipt” The plaintiff declared on the common counts, and…

<p>This was an action to recover dower in certain lands in the town of Leverett in this county, and was submitted to the court upon the following agreed statement of facts:—The demandant was married on the 4th of March, 1819, to Curtis Wedge, who died on the 10th of May, 1849. The tenant has been in possession of the whole premises, in which dower is claimed, since 1835, receiving the rents and profits, and a demand was made upon him for dower on the 16tb of July, 1849. Curtis Wedge derived bis title to all the premises except a parcel called the mill lot, on which there was a sawmill, from his father, Thomas Wedge. He also had a deed from said Thomas of one half in common and undivided of the mill lot, bearing date November 14th, 1821, and from that time till the year 1832, he occupied the whole mill lot, as well as the other premises, occupying the whole in the same manner. In 1823, Curtis Wedge mortgaged the whole mill lot to one Chittenden, the demandant not releasing her dower therein. In 1824, he mortgaged all the premises excepting the mill lot, to the Massachusetts Hospital life insurance company, to secure the payment of $400, the demandant releasing her dower therein. In May, 1830, he mortgaged the whole premises including the mill lot to Aretas Ferry and Francis Richardson, to secure the payment of notes amounting to between $300 and $400, in which conveyance the demandant did not release her dower. Ferry and Richardson afterwards obtained possession of the whole premises under their mortgage; paid and procured to be discharged the mortgages to Chittenden and to the Massachusetts Hospital life insurance company, without the knowledge or consent of the mortgagor; and conveyed the whole premises to the tenant by a deed with general warranty.</p> <p>The question of the value of the rent of the premises was submitted to a jury, who returned a verdict, assessing the yearly value of the whole premises at $130.41, and of the mill lot alone at $65.</p> <p>If upon the foregoing facts, the demandant is entitled to dower in the whole premises, judgment is to be rendered in her favor, and damages assessed at the rate found by the jury; and if she is entitled to dower only in the mill lot, damages are to be assessed at the rate found by the jury, as applicable to the mill lot.</p>

<p>These were actions of trover, each for a horse, which were tried together, before Wells, C. J., in the court of common pleas, and verdicts rendered therein for the defendants in both cases. The questions of law which were raised, and to the decision of which exception was taken, were the same in both.</p> <p>It appeared in evidence, that one Donalson was formerly the owner of a mare, which, in 1841, he mortgaged to Charles and Hollis Thompson. In 1843, certain transactions took place, by which, as the defendants contended, the mare by agreement with Donalson was taken possession of by the mortgagees, for foreclosure under the mortgage, or under an agreement that she should be taken and accounted for, at her value, or sold, and the proceeds of the sale applied to the payment of the debt, for which the mortgage was given. The plaintiff contended, that no possession for foreclosure was taken under any such agreement. Both parties introduced evidence in support of their respective positions on these points, which was left to the jury under instructions not material to be stated.</p> <p>The horses in controversy were both foaled from this mare, after the transaction alluded to supposed to amount to a taking of possession; and the defendants derived title to the same respectively, by a sale from the Thompsons, either directly or through intermediate sales.</p> <p>In August, 1847, Donalson gave a note to the plaintiff, for $454.60, for an alleged balance due on settlement. The fact )f indebtedness was controverted by the defendants, and evilence was introduced with reference thereto, and submitted to the jury under instructions which were not objected to. There was evidence also that at the time the note was given, Donalson promised to secure the same by a mortgage of personal property.</p> <p>About the 17th of December, 1847, Donalson, who lived in Coleraine, procured an attorney there to make out a mortgage to the plaintiff of certain property including the horses, and took the mortgage, after it was made, sealed, and signed, and witnessed, to the office of the town clerk of Colerain, and caused it to be recorded. Whether the mortgage deed was ever delivered to the mortgagee, was the subject of controversy between the parties. The plaintiff introduced evidence, that it was delivered soon after it was recorded, and the defendants introduced evidence that no delivery ever took place. It was testified to, and not contradicted, that soon after the recording of the mortgage, the plaintiff took possession of a cow and other animals mentioned therein, and appropriated them to his own use. Previous to the commencement of these actions, the plaintiff took a copy of the recorded mortgage from the town clerk’s office, and demanded the horses of the respective defendants, who severally refused to give them up.</p> <p>On the trial, the plaintiff produced evidence of the loss of the original mortgage, and a copy from the town clerk’s office was read to the jury.</p> <p>On the subject of a delivery of the mortgage deed, the presiding judge instructed the jury, that if the mortgage, after being recorded, was lost, stolen, or destroyed, without any actual or constructive delivery of the same, no title to the property could pass to the plaintiff by virtue of the mortgage ; and that neither the taking possession of a part of the property specified in the mortgage, nor thé obtaining of a copy of the mortgage from the town clerk’s office, nor demanding the property in controversy of the defendants, claiming title to it as mortgagee, was equivalent to a delivery of the mortgage; nor would all the above acts be equivalent to a delivery.</p> <p>The other points, which arose upon the trial, and which were the subjects of. exception, became immaterial.</p>

<p>A special contract, that one party shall remain with the other and carry cn his farm, until the decease of the latter, and shall then receive the farm in compensation of his services, is broken and determined by a sale of tbe farm or a part of it by the owner, although for the purpose of paying an antecedent debt</p> <p>If a special contract to carry on a farm for the owner during his life, in consideration of receiving the same in compensation of such services, at the decease of the owner, is broken and determined by a conveyance of a part of the land, the other parly may treat the contract as at an end, and recover, on the common counts, the value of the services previously rendered.</p>

This was an action of assumpsit on a promissory note signed by the defendant, payable to Daniel Whitney or order, on demand, and indorsed by Whitney. The note was dated on the 12th of August, 1849, and was put in suit on the 22d of October following.

<p>In order to give effect to the contract of a third person in favor of a married woman, or to enable her to hold bank shares transferred to her in her own right, so that such contract or transfer shall enure to her .sole use and benefit, after the decease of the husband, it is only necessary that there should be a clear and distinct act, on the part of the husband, indicative of his assent thereto, and the formal introduction of the wife’s name, as the party having the legal interest.</p> <p>A deposit of money by a husband in a savings bank, in the name and to the credit of his wife, he declaring that the money is hers, and that he wishes it put in her name, and delivering the deposit-book to her, will enure to her sole benefit after his decease, against the heirs and legatees of the husband. So, where a deposit is made by the husband, in the name of the wife, he at the same time keeping a separate deposit account in the same bank in his own name.</p> <p>Under a bequest by a testator to his wife of a certain sum “ to be taken out of such property as she shall think proper,” real estate of the testator cannot be transferred to the wife by her merely signifying her election to take it; but personal estate may be so transferred, to be received by the wife at the actual market value thereof, as ascertained by proper and competent judges; and where, upon an appeal to this court, the value of property so taken was found by a jury, the verdict was held to establish the actual value, at which the same was to be received. Where a husband, at the time of his death, is away from home, attended by his wife, and she does not return home immediately afterwards, she will not be entitled to charge the estate for her support, during the forty days succeeding his decease.</p>

This was an appeal from a decree of the commissioner of insolvency, for the county of Franklin, disallowing a claim of the appellant against the estate of Charles and Hollis Thompson, insolvent debtors.

This was an action of debt on judgment, brought against William B. Fellowes and Newbury Day. The declaration averred that the plaintiffs, at the court of common pleas, held at Greenfield, on the second Monday of November, 1846, “ recovered judgment against the said Fellowes and Day, by the name of William B. Fellowes and-Day.” and that said judgment was unsatisfied. The defendant Fellowes was defaulted ; but Day pleaded the general issue.

<p>This was an action of trespass to certain land described in the writ, the fee of which was in the plaintiff’s wife, the land having been conveyed to her before her marriage. After the marriage, the plaintiff conveyed his interest in the land, in trust, to Elias Harris, by a deed of quitclaim with special warranty.</p> <p>By this deed, the plaintiff conveyed the land in question to the grantee, in the following terms, namely: “ All my right, title, and interest, being a life right for and during the joint lives of myself and my wife, Fanny Gibbs.”</p> <p>The deed contained the following clauses : —</p> <p>“ To have and to hold the aforementioned premises, with all the privileges and appurtenances thereto belonging, to him, the said Elias, his heirs and assigns forever, so that neither I, the said Isaac, nor my heirs, or any other person or persons claiming from or under me or them, or in the name, right, or stead of me or them, shall or will, by any way or means, have, claim, or demand, any right or title to the aforesaid premises, or their appurtenances, or to any part or parcel thereot forever.</p> <p>“Provided, however, and be it always understood, that the said Elias, his heirs and assigns, shall hold the said interest above conveyed, during my natural life, t > the uses and upon the special trusts and confidence following, that is to say: — tho said Elias, his heirs and assigns, may let or demise the said premises,' and make such repairs thereof as he may in his discretion think best, or he may managi said premises at his discretion, to the best advantage, and he shall apply the net pro ceeds of such lettings, demisings, and carrying on, after deducting reasonable ex penses and charges, to the support of the said Eanny and her family, during my life, according to the best discretion of the said Elias, and the receipt of the said Eanny shall be a sufficient discharge and justification to said Elias for all payment! made to her in fulfilment of this trust.”</p> <p>At the time this conveyance was made, the plaintiff was owing debts, which were subsequently proved against him, as an insolvent debtor.</p> <p>On the 18th of March, 1844, the plaintiff went into insolvency, and his property was assigned by the master in the usual form.. The assignee was directed by the master, in the due course of proceeding, to sell the property and rights of the insolvent; and, in pursuance of such order, and according to its tenor, sold all the assignee’s interest in the land, which was the subject of this action, by public auction, to the plain tiff, who received from the assignee a conveyance thereof duly executed.</p> <p>The plaintiff entered upon the premises and demanded possession thereof from the defendant, who was in the occupation of the same under Harris, and who refused to yield possession.</p> <p>The case was submitted to the court upon the foregoing statement of facts, and was argued in writing, after the adjournment, by G. T. Davis, C. Devens, Jr., and C. Allen, for the plaintiff, and E. Dickinson and E. G. Bowdoin, for the defendant.</p>

<p>In a deed, whereby the grantors “ remise, release, grant, bargain, sell, and forever quitclaim ” to the grantee certain land described, together with all the estate, right, title, interest, use, property, claim, and demand which the grantors now have, or at any time heretofore had, of, in, or to, the premises, these words, “ to have and to hold all the aforegranted and bargained premises to the grantee, his heirs and assigns forever, so that neither we, the grantors, nor our heirs, nor 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, challenge, or demand any estate, right, title, or interest, of, in and to the aforesaid premises, or any part or parcel thereof forever,” are a good covenant of warranty against the grantors and their heirs and other persons claimfcg under them, to the extent of the estate and interest then belonging to the grantors, but do not estop them from setting up a new and distinct title afterwards acquired to the same land.</p> <p>A reversioner is not bound to enter immediately, for a disseizin of, or forfeiture by, the tenant for life, but a new right of entry accrues on the death of such tenant, and the statute of limitations begins to run against the reversioner from that time, how long soever the tenant for life may have been disseized.</p>

<p>If the application for life .insurance forms a part of the policy, the representations contained in it constitute a warranty, which must be strictly true, and any misstatement in which, whether intentional or not, will avoid the policy.</p> <p>Bj in the representation, on which a life insurance is effected, a material fact is untruly stated or concealed, the policy will be void, though no specific questions are asked respecting such fact, and though such statement or concealment is-the result of accident or negligence and not of design; provided a general question is put, which would elicit that fact.</p> <p>Where an applicant for life insurance answered an interrogatory, whether he had ever been afflicted with pulmonary disease, in the negative; and in answer to an interrogatory, whether he was then afflicted with any disease or disorder and what, stated, th^t he could not say that he was afflicted with any disease or disorder, but that he was troubled with a general debility of the system; and the applicant was then in a consumption, the symptoms of which had begun to develop themselves five months before, and were known to him; but were not disclosed to the insurers, although sufficient to induce a reasonable belief on the part of the applicant, that he had such disease ; it was held, that whether these statements amounted to a warranty or not, they were so materially untrue as to avoid the policy, although the insured, at the time of his application, did not believe that he had any pulmonary disease, and the statement made by him was not intentionally false, but according to his belief, true.</p> <p>The knowledge of the condition of the insured, on the part of the agent of the insurers, in a life insurance, is immaterial as to the question of misrepresentation or concealment.</p>

<p>Where, on the organization of a corporation, the' number of shares of the capital stock, and the sum to be paid for each, are fixed by vote, and inserted in the agreement of subscription, the subscribers are not bound to proceed, and may refuse to pay. any part of their subscriptions, until the requisite number of shares is subscribed for, at the rate fixed by the vote; and where the price of shares is fixed, a subscription, on condition that the shares shall be paid for, share by share, by other stock of the same nominal value, but the market value of which is less, is not a compliance with the agreement.</p>

<p>This was an action of covenant broken, brought on the following instrument: — “Memorandum of agreement made this 15th day of February, 1848, by and between the Hadley Falls company, by their agent, of the first part, and Abner B. Abbey, of Cabotville, of the second part, witnesseth, that the party of the second part hereby agrees to deliver the following memorandum of best quality sound white pine timber, to said party of the first part, at Ireland depot, or Irving ferry, west side river, on or before the 1st day of October ■ next. Said timber to be hewn in a workmanlike manner, and of sufficient size to finish to the following dimensions. No stick to crown more than two inches, and that crown to be uniform through the whole length of it, and when finished to have not more than one inch wane on any part of it.” [Here was inserted a memorandum of the dimensions of nine classes of sticks.] “ The party of first part agree to pay said party of second part, for the above timber, the sum of twenty-four dollars per thousand feet, board measure, when the same shall have been delivered, as above, to the party of the first part, agreeably to said contract. In witness whereof, the parties hereunto have set their hands and seals, on the day and year above written.</p> <p>Abner B. Abbey, [seal.] John Chase, Agent, [seal.]</p> <p>This bill amounts to about 258,336 feet. $24— $6200.” The plaintiff’s declaration alleged a performance of the foregoing contract by him, and a breach thereof by the defendant. At the trial, in the court of common pleas, before Wells, C. J., the defendant contended that the contract was that of the Hadley Falls company, and executed by him only as their agent; but the judge ruled, “ that the form of executing the contract was such as to bind the defendant personally, although it was capable of being proved that he was the agent of the company, in fact.” A verdict was returned for the plaintiff, and the defendant alleged exceptions.</p>

<p>A house built by one person upon the land and partly with the materials of another, with an agreement that upon payment of a specified sum by the builder, for the land and materials, the owner shall convey the house and land to him, is not the personal estate of the builder, but the real estate of the owner of the land</p>

<p>Since the repeal of St. 1789, c. 14, by St. 1793, c. 34, a settlement in any town in this commonwealth is not lost by the acquisition of a settlement in another state while the St. of 1789 was in force.</p>

This was a proceeding under the Rev. Sts. c. 49, relating to the maintenance of bastard children. On the 11th of January, 1844, the female complainant, then sole, by the name of Jane C. Rice, made a complaint before a magistrate against the respondent, accusing him of being the father of a bastard child, of which she had been delivered.

This was an action on a promissory note dated February 14th, 1849, by which the defendant promised the plaintiff to pay him or his order one hundred and fifty dollars on the first day of May then next. There was an indorsement on the note, under date of February 21st, 1849, of fifty dollars and thirty-six cents.

The plaintiff declared, in an action on the case, that, on the 1st of July, 1847, he was and ever since had been lawfully seized and possessed of a certain tract of meadow land in West Springfield, (describing the same,) across which there ran a certain ancient watercourse, leading from the plaintiff’s meadow to a certain lot of land belonging to the defendant; that the water from the plaintiff’s meadow and the rain which fell upon the same, from time immemorial, had been…

<p>Two persons having participated in the composition of a libellous letter written by one of them, which was afterwards put into the post-office, and sent by mail to' the person to whom it was addressed; such participation was held to be competent and sufficient evidence to prove a publication by both.</p> <p>In proving the application of the language of an alleged libel to the person who is the subject of it, witnesses may be asked their opinion, as to the meaning and intent, and what is their understanding, of particular expressions.</p> <p>The responsibility of the writer of a private letter, for the publication of a libel contained therein, is not limited to the consequences of a communication of it to the person to whom the letter is addressed, but extends to the probable consequences of thus putting it in circulation.</p> <p>In judging of the malicious character of an alleged libel, the jury may take into consideration the whole publication; and if it contains statements concerning other persons, which are malicious, the jury may infer therefrom, that what is said of the plaintiff is also malicious.</p> <p>In order to constitute a libel, for which an action may be sustained, the publication need not import a criminal charge; it is sufficient if it tends to subject the party to whom it refers to ridicule or contempt.</p>

This was an action on the case, to recover damages for an injury sustained by the plaintiff, while in the employment of the defendants, in consequence of the gross negligence of their superintendent. The case was tried before Fletcher, J., who being of opinion, upon the facts stated and the evidence offered, that the action could not be maintained, reserved and reported the case for the consideration of the whole court.

The defendant was tried before Hoar, J., in the court of common pleas, and convicted on an indictment charging him with the offence of adultery.

<p>The defendants were tried before Mellen, J., in the court ot common pleas, and convicted, on a complaint originally made to a justice of the peace, in which it was alleged, that the defendants, on the 17th of April, 1850, at Grafton, “ with force and arms, were disturbers and breakers of the peace, and then and there contriving and intending to disturb the peace of said commonwealth, did, in one of the public streets and other public places of said town, utter loud exclamations and out-tries, and other loud noises, and did then and thereby draw together a number of persons, to the great disturbance of divers citizens, in evil example to all others in like cases to offend, against good morals, against the peace of said commonwealth, and contrary to the form of the statutes in such case made and provided.”</p> <p>The defendants moved in arrest of judgment, on the ground, that no offence was set forth and alleged in the complaint The motion was overruled, and the defendants excepted.</p>

<p>If the mortgagor of personal property, after the mortgage has been duly recorded, removes into another town, it is not necessary that the mortgage should be a second time recorded, in the town to which the mortgagor removes.</p> <p>The parties to a mortgage of personal property, having executed an agreement indorsed thereon, that if the mortgagor should sell any of the property, the mortgagee should discharge all claim on the same, upon the receipt of the money therefor; it was held, that this agreement was conditional, and gave no authority to the mortgagor to divest the mortgagee’s interest in the property by a sale, but upon a performance of the condition by paying the purchase-money to him.</p> <p>The vendor of personal property in possession is not a competent witness for the vendee, in an action against him, in which the title to the property is in (ontroversy.</p> <p>In order that a deposition may be excluded, on the ground of the interest of the deponent in the event of the suit, it is not necessary that the objection should have been taken before the magistrate.</p>

<p>This was an action of trespass, for breaking and entering the plaintiff’s close, dwelling-house, and slaughter-house, in Northbridge; to which the defendant specified in defence, under the general issue, that he owned the house and slaughterhouse, and had a license, in law and in fact, to enter upon the close.</p> <p>It was in evidence, on the trial before Mellen, J., in the court of common pleas, that the plaintiff, in 1834, conveyed the premises in question to his sons Ezra and John L. Cooper, who, at the same time, reconveyed the estate to him, for his natural life; that in 1836, the sons, with the knowledge and assent of the father, erected a dwelling-house on the premises, which was occupied, the east half by Ezra, and the west half by John, by themselves or their tenants, from the time of its erection until the insolvency of John in 1847; that in 1846, John, either alone or in connection with Ezra, and with the knowledge and assent of the father, erected a slaughter-house on the premises, and occupied it until his insolvency, on the 101,h of June, 1847, and on the 21st, his estate was conveyed by the master in chancery to one Taylor, who had been chosen assignee; that on the 11th of April, 1848, the assignee conveyed to the defendant in the following terms;—“All the right, title, and interest, which was conveyed, assigned, and transferred to me by Henry Chapin, master in chancery, aa aforesaid, in and to all the real estate situate in said North-bridge, which belonged to said John L. Cooper, on the llth of June aforesaid, and all the right, title, and interest, which the said Cooper had, on said eleventh day of June, to and in any real estate situate in the town of Northbridge aforesaid, ” that after going into insolvency, John moved out of that part of the dwelling-house which he had occupied, and ceased to occupy the slaughter-house ; that this portion of the dwelling-house and the slaughter-house remained unoccupied, until the 1st of September, 1848, when, by a parol agreement of the plaintiff with one Rose, the latter entered and occupied the house about four weeks; that in October, 1848, after Rose left the house, the defendant first went upon the premises and closed the house, and also to the slaughter-house, calling them his own, the plaintiff forbidding him to enter the house ; and that in January, 1849, the defendant let the house to one Parsons, who entered and occupied it for about six months.</p> <p>The writ contained two counts, one for the entry in October, 1848, and the other for the entry in January, 1849. The defendant contended, that if the house and slaughter-house were erected on the premises, by the sons Ezra and John, by the permission and agreement of the plaintiff, they were as to the plaintiff the personal property of the sons, who had a right, as tenants at will, to use so much of the close as was necessary for the occupation of the house and slaughter-house; and that this right passed by the conveyance to the assignee in insolvency of John, and by the assignee’s deed to the defendant, who thereby acquired a right to enter and occupy the same until the tenancy at will was determined. But the presiding judge ruled, that the property in the house and slaughterhouse, by the deed of the defendant, was not personal but real estate.</p> <p>The defendant then requested the judge to instruct the jury, that if the house and slaughter-house were built upon the land aforesaid by John L. Cooper, by the assent or agreement of the plaintiff, John thereby acquired a right to occupy the same, and the land on which they stood, as a tenant at will; that this right passed to his assignee, and from him to the defendant, by the. deeds above mentioned; and that the plaintiff could not terminate the tenancy at will, without written notice to the defendant of his intention to do so.</p> <p>The presiding judge declined to instruct the jury, that any written notice from the plaintiff to the defendant was necessary to terminate the estate at will, but instructed them, that if the premises were vacant, and the plaintiff, with an intention to terminate the tenancy at will, let the house to Rose, as already stated, who entered and occupied it under the plaintiff, and such occupancy was known to the defendant, it was a termination of the tenancy or estate at will of the defendant; and that the defendant thereby ceased to have any right to enter or occupy the buildings, and by a subsequent entry for that purpose, would become a trespasser.</p> <p>The jury, under these instructions, returned a verdict for the plaintiff", and the defendant excepted.</p>

This was a writ of entry, sued out on the 15th of January, 1849, to recover possession of the premises therein demanded, for the breach of the condition of a mortgage thereof to the demandant.

<p>The declarations of a son, while employed in performing a contract for h.s services, made by him as agent for bis father, are not admissible in evidence to pi ove the terms of the contract.</p>

<p>In an action of trespass to land lying adjacent to a railroad, for acts alleged to have been committed by the contractor for building the road, the contract between the railroad corporation and the defendants for building the same is admissible in evidence for the plaintiff.</p>

<p>A lessor demised “ all that farm and outlands, situated in D., now occupied by said lessor, but lately occupied by T., late of said D., deceased,” reserving the house and all the garden and garden grounds; the lessor, at the time of making the lease, occupied as a part of his farm a lot, which had never been owned or occupied by T., but several acres of which were included in the garden and garden grounds; and the lessee immediately entered on this lot and cultivated it during the lease: It was held, that this lot was included in the demise.</p>

This was an action of assumpsit for rent, in which the plaintiff declared that he let certain premises to the defendant by parol, for the term of one year, beginning on the 1st of April, 1848, at a rent, payable quarterly, of $33.33 a quarter; and that the defendant entered and occupied under the lease until the 1st of October following, when the sum of $5.42 became due.

<p>After personal property under mortgage has been attached, and the mortgagee summoned as trustee, he cannot give notice and foreclose the mortgage.</p>

<p>This was an award of arbitrators, made and returned to the court of common pleas, on a submission by the parties under the provisions of the Rev. Sts. c. 114. The submission was da ted March 13th, 1850, and was signed by the plaintiff and by John B. Dexter and Richard Dexter, the'parties of the other part, they being partners in business, under the name of J. B. & R. Dexter, and was acknowledged by the plaintiff, and by John B. Dexter, but was not acknowledged by Richard Dexter. The parties were heard before the arbitrators, who made their award, which was duly returned to the court of common pleas. That court refused to accept the award, but rejected it, on the ground that the submission was not acknowledged by Richard Dexter.</p> <p>To this ruling the plaintiff excepted.</p>

<p>In a proceeding under the bastardy act, (Rev. Sts. c. 49,) it is not necessary, that the original complaint to the magistrate should be in writing.</p> <p>Where a new complaint in bastardy is filed in the court of common pleas, and the respondent is ordered to plead, the new complaint must be taken to be that on which the issue is joined.</p> <p>It is no ground of exception, that in the trial of a complaint in bastardy, at a term of the court of common pleas held for the transaction of criminal business, the respondent was required to file a written plea; that he was not arraigned before the trial; that the jury were impanelled and sworn as in criminal cases; or that the verdict was rendered both orally and in writing.</p> <p>It does not affect the regularity of the proceedings on a complaint in bastardy, that the case was entitled, “ Commonwealth, on the complaint of S., v. H.”</p>

<p>A receiptor of property attached in a suit in this state, having taken the property to his residence in a neighboring state, there pointed it out to an officer, and permitted it to be attached and taken from him on a writ, sued out by the plaintiff in the first action, returnable to the courts of that state: It was held, that the receiptor was not liable in trover to the defendant, on the plaintiff’s abandon ing the suit in this state.</p>

<p>It seems, that the signing by an attorney of the name of his principal to an instrument, which contains nothing to indicate that it is executed by attorney, and Without adding his own signature as such, is not a valid execution.</p> <p>A power of attorney authorized the attorney, in the name and for the benefit and use of the principal, to buy and sell real and personal property, and to execute and deliver deeds to transfer the same; to move and institute all necessary suits for the recovery and collection of his demands, and to assert and vindicate his rights, and to appear and defend in all suits against him; especially to carry on his saw-mill and buy and sell logs, timber, and lumber, and do all necessary things in and about the same; and, in general, to make such contracts, for the profitable improvement and use of such property and other means as he possessed, for the enlargement of his estate: It was held, that the power of attorney did not authorize the attorney to mortgage the real estate of his principal, unless such power was necessary to the execution of the authority given.</p>

<p>An action on the covenant against incumbrances in a deed of land cannot be maintained by an assignee of the grantee.</p> <p>If land subject to a mortgage is conveyed with a covenant of general warranty, and the equity of redemption is then under an attachment as the property of the grantor, and is afterwards sold on the execution, such sale is equivalent to an eviction, and entitles the grantee to maintain an action on the covenant, although he becomes himself the purchaser of the equity of redemption.</p>

This was a writ of entry to recover a tract of woodland, part of a larger lot claimed by the demandants. The tenant pleaded the general issue, and specified title in himself, first by grant, and secondly by disseisin of the demandants for more than twenty years previous to the date of the writ.

<p>This was an action on the case for obstructing a right of way, claimed by the plaintiffs over a strip of land lying on the westerly side of land of the defendant on Pine Meadow street, in Worcester, and extending from the same to land oí the plaintiffs. The obstruction complained of was the maintaining and continuing of a house thereon.</p> <p>The parties submitted the case upon the following statement of facts: —</p> <p>On the 9th of March, 1849, the plaintiffs and the defendant were tenants in common of an estate on Pine Meadow street, there measuring from 100 to 130 feet, and extending back from 300 to 400 feet; the plaintiffs, George Bowen and Horatio A. Tower, owning one half, and the defendant, Conner, the other half, undivided. A division was then made, and the defendant conveyed to the plaintiffs, by deed of quitclaim, all his interest in the northerly part of the estate, and the plaintiffs quitclaimed to the defendant the southerly, being the larger portion of the lot, with the lullowing reservation: “ Reserving forever a right of way over a street which the said Conner is to make from the north-west corner of said granted lot to Pine Meadow road; said street to be thirty feet in width, adjoining the west line of the said granted lot.” At the time of the division a dwelling-house extended over a part of the strip, thirty feet in width, over which the right of way was reserved.</p> <p>The plaintiffs purchased the northerly part of the land, for the purpose of laying out the same, with other land adjoining thereto, into house-lots, (though this fact was not mentioned in either of the deeds,) and the street over which the right of way was reserved was the only access to the lots so to be laid out. It also appeared, by reference to a plan, which was made a part of the case, that the whole of the lot divided was so surrounded by lands of other proprietors, that there was no access to any highway from the original lot, but upon the Pine Meadow road.</p> <p>If the court should be of opinion, that the maintenance and continuance of the dwelling-house, from the date of the deed to the date of the writ, upon the strip of thirty feet, was an obstruction of the plaintiffs’ right of way, judgment was to be entered for the plaintiffs, with damages fixed at the sum of ten dollars, otherwise the plaintiffs were to be nonsuit.</p>

<p>An action of debt will not lie on a bad-bond in this commonwealth.</p>

This was an action on a promissory note, dated on the 2d of October, 1837, and payable to the plaintiff, David Jourdain, or bearer, on demand, with interest. The action was commenced on the 16th of August, 1848, and was tried before Mellen, J., in the court of common pleas.

<p>This was an action on the case, brought originally before a justice of the peace, and tried before Mellen, J., on appeal, in the court of common pleas, to recover for an injury occasioned by an alleged defect in a highway, which the defendants were bound to repair. After a verdict for the plaintiff's, the defendants moved in arrest of judgment, on the ground, that no cause of action was set forth in the declaration.</p> <p>The declaration alleged, that on the 10th of January, 1849, there was a certain highway in Southborough, leading from Marlborough to Westborough, over which all the citizens of the commonwealth had the right to go, pass, and repass, at all times of the year, at their free will and pleasure, and which the defendants were bound by law to keep in repair, and safe, and convenient for travel at all seasons of the year; that the defendants, well knowing the premises, wilfully and negligently suffered the said highway to be obstructed and incumbered by snow, on the said 10th of January, and for the space of ten days previously, so as to endanger the lives and property of the citizens ; and that by reason of the snow so negligently and unlawfully suffered by the defendants to remain in such highway, the horses and sleigh of the plaintiffs were prevented from passing thereon, as they otherwise would and ought to have done, but were so delayed and obstructed, that the plaintiffs were put to great trouble and expense and loss of time in extricating the same.</p> <p>The court of common pleas overruled the motion, and the defendants excepted.</p>

<p>This was a real action to recover seizin and possession of one undivided half of a certain farm in Sutton, and was submitted to the court upon the following agreed statement of facts: —</p> <p>Nathaniel Sibley, on the 10th of May, 1825, being then the owner of the whole farm, made a mortgage thereof to Darius Russell, to secure the payment of $ 1000 and interest.</p> <p>On the 21st of April, 1836, Nathaniel Sibley, for a valuable consideration, conveyed one undivided half of the farm by a warranty deed, to his son Sylvester Sibley. On the same day, he conveyed to his son Reuben Sibley the other undivided half of the farm, by a deed of warranty, containing various trusts and stipulations, not necessary to be. particularly stated, for allowing the grantor and his wife a part of the produce of the farm, and a support and maintenance thereon during their lives. The deed to Sylvester was duly recorded at or soon after the time of its execution. The deed to Reuben was not recorded until the 14th of November, 1840.</p> <p>On the 29th of May, 1838, Sylvester Sibley, for a valuable consideration, and by a deed with warranty, recorded on the next day, conveyed his undivided half of the farm to the den and ant.</p> <p>Reuben Sibley died in February, 1846. Sylvester Sibley was appointed administrator of his estate; and under a license from the probate court, sold and conveyed, on the 6th of January, 1847, all Reuben’s interest in the farm to the tenant, for the sum of one dollar.</p> <p>On the 29th of May, 1846, Darius' Russell, the mortgagee,• having died, his administratrix assigned the mortgage to the demandant, who, on the 11th of August following, commenced an action for possession under the same, against Na i"haniel Sibley and Sylvester Sibley. On the 17th of March, 1847, the demandant recovered judgment for possession, unless the tenants in the action, or their heirs or assigns, should pay the demandant the sum of $1531.50, the sum due on the mortgage, with the costs of suit; which sums the tenant in the present action thereupon paid.</p> <p>If the court should be of opinion, that the demandant is entitled to. recover without contributing towards payment of the mortgage, judgment is to be rendered in her favor, with costs; otherwise judgment is to be rendered for the tenant.</p>

<p>This was an action of assumpsit to recover the balance of a claim for labor and services, originally commenced before a justice of the peace, and brought by appeal to the court of common pleas, where it was submitted to the court and jury upon a statement of facts and evidence substantially as follows : —</p> <p>At a preceding term of the court of common pleas, the plaintiff brought an action against the defendant to recover about the sum of $52 for labor in his service. The action was duly entered, but was subsequently withdrawn, on account of some defect in the service of the writ. Soon after-wards, and before this action was commenced, the plaintiff’s attorney received of the defendant’s attorney $35, in the manner and under the circumstances in evidence as follows :</p> <p>A witness who was present in the court-house, where the tender was made, at the time, testified, that the attorney for the defendant made a tender of $35 to the attorney for the piaintiff, as and for the claim of the plaintiff against the defendant, before this action was brought; and that the attorney for the plaintiff took the m'oney and went out of the courthouse, without making any reply.</p> <p>The attorney for the defendant testified, that at the June term of the court of common pleas, 1849, as such attorney, he tendered the plaintiff’s attorney $35 in gold, “for all that Woodbury was owing Donohue ; ” and that the attorney for the plaintiff took the money, kept it, and made no reply.</p> <p>The attorney for the plaintiff testified, that the defendant’s attorney handed him some money as “from Woodbury for Donohue,” when he (the witness) was about leaving the courtroom ; that he did not hear the defendant’s attorney make use of the word “ tender,” or of the words “ for all that Woodbury was owing Donohue,” or any other words implying that meaning ; but that he took the money as a common tender.</p> <p>This action was afterwards brought to recover the balance of $17.</p> <p>Upon the foregoing evidence, the presiding judge, Mellen, J., instructed the jury, that if, before action brought, a sum of money was proffered by the defendant to the plaintiff, or to his duly authorized agent, or to an agent whose acts were after-wards ratified by the plaintiff, for all that Woodbury was owing Donohue, the amount due not being then a fixed and ascertained sum, and the sum so proffered was accepted by the plaintiff or his agent, before action brought, such acceptance would be a bar to the present claim of the plaintiff; and also, that if, at the time of such proffer, the words above stated, “ for all that Woodbury was owing Donohue,” were spoken by the defendant, so that they might, with ordinary care, under the circumstances, have been heard by the plaintiff’s agent, though through inattention and carelessness, on his part, they were not heard, and the offer accompanied by these words was accepted by him, such, acceptance would be a release and discharge of the plaintiff’s claim.</p> <p>The jury thereupon rendered their verdict for the defendant, and the plaintiff excepted.</p>

<p>This was an appeal from a decision of commissioners, appointed by the judge of probate to receive and examine the claims of creditors against the estate of Rufus Shumway, deceased, the same having been represented insolvent, disallowing a claim presented by the appellant. The case was submitted to the court upon the following agreed statement of facts: —</p> <p>The estate of Rufus Shumway, the appellee’s intestate, having been represented insolvent, commissioners were appointed thereon by the judge of probate on the 2d of January, 1849, and were directed, in the warrant issued to them, to give notice of the time and place of their meetings, and make a return of the warrant and of their proceedings under the same, within three months from the date thereof.</p> <p>The commissioners gave the notice required by law, and made their return of the warrant dated on the 2d of July, arid filed in the probate office on the 3d of July, 1849. Among the claims presented before the making of this return, and included therein, was the claim of the appellant, which, as appeared by the return, was disallowed by the commissioners. On the application of creditors, who had not presented their claims, the judge of probate allowed further time for that purpose, from- the 7th of August, 1849, for thirty days, and the warrant was again committed to the commissioners, who duly made their return of the same, and of their proceedings under it, in pursuance of the extension. ■ The appellant did not present his claim for allowance subsequent to the first return of the commissioners, but filed his appeal on the 15th of October, 1849.</p> <p>The claim of the appellant consisted, in part, of the amount-due on a note for $24.35, and interest, dated April 8th, 1820, on which was indorsed under date of December, 1823, six dollars, and under date of March, 1837, twenty dollars. The residue of the appellant’s claim was for the amount of a note for $265.03, dated March 3d, 1826, and signed by the appellant and the appellee’s intestate, jointly and severally, which had been paid by the appellant more than six years prior to the 29 Lh of August, 1848. No other debts, than as above stated, were known to have been owing to the appellant from the appellee’s intestate.</p> <p>After the intestate’s death, there was found among his papers a mortgage, duly executed by him to the appellant, of a pew, to secure the payment, as expressed in the same, “ of one hundred dollars towards demands he has against said Shumway.” This mortgage was dated the 29th of August, 1845, and was recorded on the 1st of September following. It was never delivered to the appellant, nor did he know of the existence of any such instrument, until he was informed by the administrator, that it had been found among the papers of the deceased.</p>

<p>This was a complaint, under the Rev. Sts. c. 116, for flowing, tied before Mellen, J., in the court of .common pleas.</p> <p>The respondent admitted that he flowed the land of the complainant as set forth in the complaint, but contended that he had a right to flow the same by virtue of a parol agreement entered into between him and the complainant prior to erecting his dam and mill, in pursuance of which agreement, the respondent had erected and continued his dam and mill.</p> <p>The respondent also contended, that if a license and permission by parol to flow the complainant’s land was given to him by the complainant, there never having been any revocation of such license and permission other than might be inferred from the filing of this complaint, the complaint could not be maintained.</p> <p>The respondent introduced evidence to prove the agreement alleged by him; and the judge, for the purpose of ascertaining the facts, directed the jury to find what agreement, if any, was made between the complainant and respondent; but ruled that if they found such a parol agreement, as the respondent set up, yet the agreement, and the acts of the parties in pursuance thereof, would be no bar to this complaint; and also that no other revocation of the license or permission to flow was necessary to maintain the present complaint than the filing of the complaint, which was the only revocation insisted upon by the complainant.</p> <p>The jury under these instructions found a general verdict for the complainant, and also “that the complainant agreed by parol with the respondent, prior to erecting his dam and mill, that if the respondent would erect the same, the complainant would give the respondent the privilege of flowing his land, as long as he kept up a mill, and that the respondent in pursuance of the agreement proceeded to erect and did erect and has continued his dam and mill to the present time.”</p> <p>To the foregoing rulings and instructions of the presiding judge, the respondent excepted.</p>

<p>This was an appeal from a decree of distribution, made by the probate court, of the personal estate of Frances E. Knapp, late of Dudley, in this county, deceased, intestate, and was submitted to the court on the following agreed statement of facts: —</p> <p>The said Frances E. Knapp died intestate, and Solomon Severy was appointed her administrator at a court of probate held at Worcester, October 2d, 1849. The administrator presented his account, which was allowed by the judge of probate, whereby it appeared, that a balance of $11,004 remained to be distributed amongst the next of kin of the intestate. It appeared, that the intestate left Mary E. Knapp, the appellant, who was the mother of the intestate’s father, and the appellees, William Windsor and Eunice Windsor, his wife, who were the father and mother of the intestate’s mother, and no other next of kin. The judge of probate ordered the balance of the estate to be divided into three equal parts, and to be distributed to and amongst the said Mary E. Knapp and the said William Windsor and Eunice Windsor. From this decree of distribution Mary E. Knapp appealed, on the ground, that the judge ought by law to have decreed, that one half of the balance should be paid to the appellant, whereas the decree was, that only one third thereof should be paid to her.</p>

<p>This was a writ of entry, tried before Wilde, J., on the plea that the tenants never disseized the demandant. The writ was dated March 27th, 1850. After the evidence had been introduced, the case was withdrawn from the jury by consent, and reported by the judge for the consideration of the whole court, who were to make such disposition thereof as they should think proper.</p> <p>The case was as follows: — On the 23d of February, 1849, Alvarez Lawrence conveyed the demanded premises, by a deed which was never recorded, to the tenants, Barnard Stratton and Levi H. Stratton, who at the same time executed to the grantor a mortgage of the premises, which was duly recorded, to secure the payment of two notes given by them for a part of the price of the land, the first of which fell due on the 1st of April, 1849, and no part of which had ever been paid.</p> <p>On the 7th of July following, Barnard Stratton, in the presence of Alvarez Lawrence and Abijah Lawrence, stated to the scrivener by whom the instruments were drawn, that he had sold the estate to Abijah Lawrence, and wanted to know if the deed which he had taken could not be given up with the mortgage and destroyed, and a new deed made from Alvarez to Abijah Lawrence. The scrivener answered and advised that it might be done ; and thereupon the deed of February 23d, 1849, from Alvarez Lawrence to the Strattons, was destroyed, together with the notes secured by the mortgage, and Alvarez made a deed of the demanded premises to Abijah Lawrence, the demandant, dated the 7th of July aforesaid, and recorded November 23d, 1849.</p> <p>The mortgage was subsequently given up by Alvarez Lawrence to Barnard Stratton, who produced the same on notice at the trial. The demandant, Abijah Lawrence, for the consideration of the deed from Alvarez to him, made two notes, one to Alvarez Lawrence, and the other for the balance to Barnard Stratton.</p> <p>Barnard Stratton went into possession of the premises under the deed to him and Levi H. Stratton, and remained in possession, by agreement with Abijah LaVürence, after the' first deed was destroyed, and the second deed made. Levi H. Stratton, by a deed of quitclaim, dated on the 6th and recorded on the 7th of November, 1849, conveyed one half of the demanded premises to Palmer, one of the tenants.</p> <p>The demandant relied on the deed to him from Alvarez Lawrence of July 7th, 1849. The tenants relied on the unrecorded and destroyed deed from Alvarez Lawrence to Barnard and Levi H. Stratton, of February 23d, 1849, and the deed from Levi H. Stratton to Palmer.</p>

<p>This was a complaint for flowing, wherein the complainant averred, that he was seized and possessed of a certain tract of land, which then was and had been for one year previous overflowed by means of a dam erected across a certain stream called Muddy Brook, which darn, and the water-mill therewith connected, were and had been for a year previous owned by the respondent. The complaint was dated May 29th, 1850, and notice thereof was served on the defendant, June 3d, 1850. The parties submitted the case to the court bn the following statement of facts.</p> <p>It was agreed, that the complainant was seized and possessed of the lands mentioned, and that they were overflowed and damaged, as averred, by a certain dam connected with a water-mill; that Hollis B. Wood, by his deed, dated November 15th, 1849, conveyed to the respondent the land under and about the dam and mill, which deed was duly recorded November 16th, 1849; that at the same time and as a part of the same transaction, the respondent made and delivered to Wood a bond of defeasance, binding him to reconvey the premises to Wood, at the end of two years, on certain conditions, and farther covenanting, that Wood should remain in possession of the premises during the two years, which bond was recorded on the 19th of June, 1850; that Wood was at the date of the bond and had been ever since in possession of the premises, and that Andrews had never been in possession; and that the complainant had no notice of the existence of such bond, except from the fact, that Wood remained in the occupation of the premises.</p> <p>If upon this state of facts the respondent was liable for damages, a warrant was to issue for a jury to assess the same; if he was not liable, judgment was to be entered for the respondent.</p>

<p>This was an action of assumpsit, commenced on the 12th of February, 1849, by the plaintiff, as the administratrix of Francis Sibley, to recover the amount due on a promissory note, of which the following is a copy: —</p> <p>“ Windham, May 6, 1840. $3000. On demand I promise to pay to Francis Sibley three thousand dollars with interest, value received. James Phelps. Witness, Earned Brown.” Upon the note were the following indorsements: “ 1844, February 27. Then received one hundred ninety-six dollars. 1844, September the 1st day. Then received one hundred and fifty dollars in part. January 1, 1849. Value received, pay the within to Israel Sibley or order without recourse. Susannah Sibley, administratrix of Francis Sibley.”</p> <p>The trial was before Wells, C. J., in the court of common pleas. Among the grounds of defence, specified by the defendant, was the statute of limitations; to avoid the effect of which, the plaintiff relied upon the fact, that the note was attested, and that payments had been made upon it within six years and indorsed thereon. In regard to the first ground, the presiding judge ruled, that the attestation of the note, it not being negotiable, did not take it out of the statute. There was no evidence in regard to the first indorsement. In regard to the second, it was in evidence or admitted that the amount was indorsed on the note by Sibley, at the request of Phelps, who was present and saw it done; Sibley asked Phelps to indorse it, but Phelps declined, and said to Sibley, “ do you indorse it;” which he did, and after looking at it, Phelps said it was correct.</p> <p>The plaintiff’s counsel contended, that this was a payment which took the case out of the statute, but the presiding judge ruled that it was not, and that the debt was barred by the statute. A verdict was accordingly rendered for the defendant, and the plaintiff excepted.</p>

<p>The examination of jurors, further than is provided for by the Rev. Sts. c. 95, § 27, with a view to ascertain whether they stand indifferent in the cause, is a matter wholly within the discretion of the judge; both as to putting additional questions, and the manner of putting them, whether by the judge or the party.</p> <p>Where a jury is completed from the bystanders, if such persons are not qualified and liable to be drawn as jurors, objection must be taken before they are placed upon the panel.</p> <p>When jurors are returned from the bystanders, in a criminal case, it is not necessary that the indictment should be read to them, before making the inquiries prescribed by the Rev. Sts. c. 95, § 27; it is sufficient to state to them, in general terms, the offence charged, and the party to be tried therefor.</p> <p>The statute of 1849, c. 231, § 2, prohibiting the setting up or maintaining, without license, of any public show, amusement, or exhibition, does not apply to a school for the teaching of dancing, although admittance thereto is paid for on each evening.</p> <p>An indictment may be returned for an offence committed at any time previous to the finding thereof, although after the commencement of the term; but in such case, it should appear in the caption of the indictment, that the same was found at a term begun and holden, &c., and continued by adjournment to a day named, being after the time of the alleged offence.</p>

<p>The defendants were indicted and tried in the court of common pleas, before Wells, C. J., for breaking and entering the office of the Boston and Worcester railroad corporation, to wit, the depot building of said corporation, with intent to commit the crime of larceny therein. The defendants moved to quash the indictment, because it alleged that the office which was broken and entered was a railroad depot, which they contended was not an office.</p> <p>The presiding judge refused to quash the indictment, but directed the trial to proceed, in order, among other things, to ascertain what the building was, which was alleged to have been broken open and entered.</p> <p>The depot buildings consist of a passenger building, a freight house, and a wood-house. The passenger building has two rooms, one for males, and the other for females. In the room for males, there is against the wall an inclosure about seven feet square, about seven feet high, and reaching to within about eighteen inches of the top of the room. This inclosure is furnished with a window and a door, which is locked. In this inclosure the books of the company are deposited; and the tickets are there kept, and are' usually sold, by a person placed within the inclosure, through an opening in the same. A letter-box is fastened to this inclosure. Tickets are sold by an agent, standing outside of the inclosure. The principal use of the room, distinct from this inclosure, is, to accommodate male passengers, stopping when going to or leaving the railroad at this point. Occasionally, when the freight house is full, some freight is deposited therein. The alleged breaking and entering was into this room, without breaking or entering the inclosure.</p> <p>The defendants contended, that neither the depot building, nor the male passenger room, was within the meaning of the statute an “ office ”; and that if there was any office at this place, it was the small inclosure.</p> <p>The presiding judge overruled the objection, and instructed the jury, that the male passenger room, having within it this inclosure, and being used for the purposes and in the manner above specified, was, in contemplation of law, an office ; and that it was sufficiently described as such in the indictment.</p> <p>The defendants were convicted, and after conviction, the presiding judge, being of opinion that the foregoing questions were so important and doubtful .as to require the decision of the supreme judicial court, and being thereto requested by the defendants, reported the case for the consideration of this court, as provided in the Rev. Sts. c. 138, § 12.</p>

<p>The defendant, in an action of slander for having charged the plaintiff and ms partner with a fraudulent sale of their property to a third person, with an intention to cheat the creditors of the firm, in pursuance of a conspiracy for that purpose between the plaintiff and his partner and the purchaser, having justified the charge, on the ground that it was true; it was held, that evidence of the purchaser’s insolvency, at the time of the purchase, was admissible to prove that the sale was fraudulent.</p> <p>The original papers and record of proceedings in insolvency, deposited in the probate office, and produced by the register of probate, are admissible in evidence equally with certified copies thereof, under St. 1838, c. 163, § 14.</p> <p>In an action of slander, for charging the plaintiff with a conspiracy with his partner and another person, to cheat the creditors of the firm by a fraudulent sale to the latter, evidence of the conspiracy having been introduced by the defendant in justification; it was held, that the defendant might then prove, that before the partnership was entered into, the purchaser recommended the plaintiff’s partner to the witness, as “ a safe and suitable person to sell goods to on credit,” and that the witness sold goods accordingly to the firm, on that recommendation, for which he had not been paid.</p> <p>If the opinion of a judge upon evidence is liable to exception, the objection should be stated at the trial, and all the facts having any bearing upon it inserted in the report.</p> <p>Where a witness, who is called to testify to what was said by a witness on a former occasion, makes a statement thereof from his recollection, assisted by a reference to his minutes taken at the time, it is not the right of the adverse party, on cross examination, to require him to state again in detail, without referring to his mi ñutes, what was said by the witness.</p> <p>A sale of goods, for the purpose of preventing them from being attached by the creditors of the vendor, is a fraud in law, which, in an action of slander, will justify the application of the epithets “ cheat ” and “ swindler ” to the parties concerned in it.</p> <p>The terms “ cheat ” and “ swindler ” are not actionable, unless spoken of the plaintiff in relation to his business.</p>

<p>The members of an incorporated poll-parish are not individually liable on a judgment and execution against the corporation.</p>

<p>The deed of a married woman, executed by her alone, relinquishing her dower in land previously conveyed by her husband by his separate deed, does not bar her dower therein, either under the revised statutes or the statutes previously in force. A demand of dower need not be made in writing.</p>

<p>The terms and conditions of a public sale of land were, that warranty deeds should be given; that purchasers should have ten days to examine the title; that upon these terms, the vendor would execute deeds to purchasers; and that purchasers should make their payments, and take their deeds, within twelve days from the sale, provided the deeds were made according to the conditions of sale. A purchaser at such sale, having ascertained, by an examination of the records in the registry of deeds, that there was no record therein of any title in the vendor to the premises in question, but only a record of a mortgage thereof by the vendor to a person from whom he purchased the same, and that such person derived a part of his title from one whose wife did not appear by the record to have released her dower in the premises,- refused to make payment and receive a deed. It was held, that the vendor was bound, by the terms of sale, to make a good title to the land, and that the purchaser could not be compelled to complete the purchase, upon receiving a warranty deed from the vendor.</p> <p>It was held, also, that an offer made by the purchaser, after examining the title, to take the land if he might pay in notes of other parties, which offer was not accepted by the vendor, was no waiver of the right to refuse the deed.</p>

<p>Where a testator, owning land on a stream, devised a portion of it to A., and another portion, situated below, with a mill thereon, to H., “ together with the privilege of the stream, so as not to damage the mills ” near the testator’s house, which were below the land devised to H.; it was held, that the devise to H. did not give him a right as against A., to maintain his dam any higher than it was kept up by the testator, or to build a separate dam in another place.</p>

This was an action of assumpsit, commenced on the 17th of March, 1848, and tried in the court of common pleas, against the acceptor of an order in writing, dated the 13th of November, 1847, signed by one Parker Bolles, of which the following is a copy: “ Mr. Michael McDonough pay to A. Folsom the sum of two hundred dollars, when I shall have finished your building on Charles street in Lowell, and done all the work thereon according to contract; for value received.” The order…

<p>A payment of interest by the. maker, on a promissory note from which he has been discharged in bankruptcy, will not revive his liability to pay the note.</p> <p>Where one, who had agreed to make a loan of money on a mortgage of real estate by the borrower, received instead thereof, at the request of the latter, as security for the loan, the note, guaranteed by him, and mortgage,of a third person, who, being present at the transaction, did not -disclose the fact, that he had been discharged from the note in bankruptcy; it was held, that the promisor was not estopped by such concealment, to set up his discharge in bankruptcy in defence to an action on the note.</p>

This was an action of assumpsit to recover the amount of an account annexed to the writ. The defendant, who appeared by guardian, pleaded the general issue, and relied in defence on a set-off filed in the case.

<p>Tins was an action of trover, commenced originally by the female plaintiff, when sole, under the name of Emma Laroyd, and tried before Byington, J., in the court of common pleas, to recover the value of a horse and harness. The defendant pleaded the general issue, and specified in his defence, that as a deputy-sheriff he attached the horse and harness, as the property of Augustus H. Walcott. The plaintiff claimed the property in virtue of a mortgage from Walcott. The defendant alleged that the mortgage was fraudulent and void as against creditors.</p> <p>The plaintiff produced in evidence, and claimed the property under, a mortgage from Walcott, bearing date the 3d of April, 1848, and recorded in the office of the city clerk of Lowell, on the 7th of July, 1848, by which he mortgaged to her the property in question, namely, a roan mare, six years old, valued at $100, and a wagon-harness, valued at $15, together with a bread-wagon, valued at $75, and a sleigh-bottom, valued at $50, the whole amounting to $240, as security for a note given by Walcott to the plaintiff for $213.</p> <p>It was in evidence, that at the time of the making and delivery of the mortgage, Walcott, the mortgagor, was an inhabitant of Boston, resident there; that the property, which had been purchased by him on the 30th of March preceding, was then in Lowell; that Walcott was described in the mortgage as of Lowell, to which place he removed shortly after the mortgage was made, but before it was recorded, and before the property was attached; that after the mortgage was executed, the plaintiff delivered it to the mortgagor, with directions to get it recorded in Lowell; that the mortgagor took the mortgage to Lowell, and put it into his trunk and there kept it, until the 7th of July, 1848, when he took it out and caused it to be recorded.</p> <p>The property was attached by the defendant on the 7th of August, 1848, and on the 9th of September following, the plaintiff demanded payment of the money due to her from Walcott, which she claimed in virtue of a mortgage described as bearing date the 21st of July, 1848.</p> <p>It appeared in evidence, that Walcott made a second mortgage to the plaintiff, dated July 6th, and recorded July 7th, 1848, of the same property included in the first, (that of April 3d,) together with other property, to secure the same debt, for which the first mortgage was given, and another note from Walcott to the plaintiff of $300.</p> <p>It appeared, also, that there was a third mortgage from Walcott to the plaintiff, dated the 21st of July, 1848, and recorded the 29th, of the property sued for in this action, namely, a roan mare, valued at $175, and a harness, valued at $20, to secure a debt of $213.</p> <p>The plaintiff did not rely upon either of the two last-mentioned mortgages, to sustain her title to the property in question, but only upon the first.</p> <p>The defendant objected:—</p> <p>1st. That the mortgage relied upon, (possession of the property under the same not having been taken or received by the plaintiff,) was not valid against the defendant, because the mortgage was not recorded in Boston, where the mortgagor resided at the time it was made and delivered.</p> <p>2d. That as there was, in fact, a mortgage between the same parties of the same property, to secure the same debt, with the mortgage of April 3d, 1848, and corresponding in date with the mortgage described in the notice, and also another mortgage of the same property, to secure the same debt, but of another date, the demand and notice were so uncertain, that the defendant could not know therefrom, under and by virtue of which mortgage the plaintiff claimed the property.</p> <p>These objections (with others not material to be stated) were overruled by the presiding judge, and the plaintiff obtained a verdict; whereupon the defendant excepted.</p>

This was an action of assumpsit, tried before Perkins, J., in the court of common pleas, to recover the expense of building a sidewalk on the south side of Lee street, in the city of Lowell, in front of a lot of land owned by the defendant, on which there was a dwelling-house. The jury returned a verdict for the defendant, and the plaintiffs excepted. Several exceptions were taken, only one of which was considered by the court, and is fully stated in the opinion.

This action was brought to recover the expense incurred by the plaintiffs in the construction of a sidewalk of brick and stone, in 1849, in front of the defendant’s land and dwelling-house in Gorham street, in the city of Lowell. The case was submitted to the court of common pleas, and by appeal therefrom to this court, upon an agreed statement of facts; the only question being whether the plaintiffs had a right to tax the defendant for erecting the sidewalk in question.

This was an action of assumpsit, commenced on the 7th of April, 1847, to recover damages for a failure of the plaintiff’s title to two thousand six hundred and sixty-two pounds of brass wire, alleged to have been sold to him by the defendant.

<p>This was an action of debt on a bond given by Ira Hay as principal, and the other defendants as sureties, to Benjamin F. Richardson and two others, (the selectmen of the town of Stoneham, at the time when the bond was executed,) and their successors in office, for the faithful performance of the duties of collector and treasurer of the town, by the principal obligor.</p> <p>The action was not commenced in the name of the persons named as obligees in the bond, but in the name of the present plaintiffs, who were the legally chosen selectmen of the town of Stoneham, at the time of the commencement of this action.</p> <p>The presiding judge, Metcalf, J., before whom the case was tried, ruled that the action could not be sustained in favor of the present plaintiffs.</p> <p>If the court should be of opinion that this ruling was correct, then the plaintiffs are to become nonsuit, otherwise the action to stand for trial.</p>

<p>This was an action brought by the plaintiff, as the holder, against the defendants jointly, as the makers, of á promissory note, signed by them, of which the following is a copy:—</p> <p>“ Lowell, July 11th, 1848. Four months from date for value received, we, Frederic Brinsley as principal, and Robert Hope and Albert F. Dyer as sureties, jointly and severally promise to pay the president, directors, and company of the Appleton bank, or order, one hundred dollars.”</p> <p>The note was indorsed: “ Without recourse, J. A Knowles, Prs.”</p> <p>It appeared in evidence, that the note was presented to the Appleton bank, of which Knowles was president, to be discounted, but the directors declined discounting it, on account of the state of the money market; that the bank had no interest in the note; and that the indorsement was made about a month after the note became due.</p> <p>It algo appeared, that ten or twelve days after the date of the note, the defendant Brinsley had the note in his possession, and sold it to the plaintiff for $90; but the sureties were not present at this transaction, and had nothing to do with it; nor did it appear, that they had any knowledge of it.</p> <p>The presiding judge of the court of common pleas, Byington, J., before whom the case was tried, being of opinion, that the evidence was not sufficient to establish a joint promise by the defendants, as alleged in the declaration, directed the jury accordingly, who returned a verdict for the defendants, and the plaintiff excepted.</p>

This was an action of covenant, brought by the plaintiff as the grantee of Nathaniel Holden, senior, against the defendant as the executor of Joseph Fletcher, deceased, on the covenants in a deed of land from the defendant’s testator to the plaintiff’s grantor.

This was an action of assumpsit, commenced on the 12tb of July, 1848, to recover the amount of three promissory notes, signed by the defendant, and indorsed by the several payees thereof to the plaintiff on the day of the commencement of the action.

<p>In this case, which was an action of trover, tried before Mellen, J., in the court of common pleas, for a quantity of muriatic acid, the defence was, that the property was attached by the defendant Butterfield, a deputy-sheriff, as the property of one Cummings, on a writ against him in such defendant’s hands for service; and, in order to prove his justification, the defendant produced and offered in evidence an original writ against Cummings, returnable at a term previous to the commencement of this action, on which was indorsed a return signed by the defendant, stating that he had attached the acid in question thereon, as the property of Cummings, but not stating that he had made any further service or return of the writ.</p> <p>The presiding judge admitted the writ and return as primd facie evidence of the attachment by the defendant, and ruled further, that, although the acid might have been, rightfully attached, yet if the writ was never duly returned, the defendant could not justify the taking, &c., by virtue of it; and that the burden of proof was on him to show that the writ was duly returned.</p> <p>The jury found a verdict for the plaintiff; whereupon the defendants excepted.</p>

This was a proceeding before a sheriff’s jury, summoned to estimate the damages sustained by the petitioner, in consequence of the taking of his land by the respondents, for a highway. The selectmen of Framingham, on the 20th of October, 1848, laid out a highway over the petitioner’s land, and made a report of their doings, which was accepted by the town at a legal meeting thereof, called and held for the purpose, on the 9th of November following.

<p>The offence of selling spirituous liquors, in contravention of the Rev. Sts. c. 47, $ 1,. may be committed by a sale of such liquor mixed in small quantities with other unknown ingredients, and called for and sold as beer.</p>

<p>The clerk of a city or town is the proper certifying officer to authenticate copies of the votes, ordinances, and by-laws thereof; and such copies are admissible in evidence, when purporting to he duly attested, without any verification of the clerk’s signature.</p> <p>A by-law of the city of Lowell, which provides generally that the owners of dogs shall not suffer them to go at large in the city, or to escape from their master’s premises, without being safely muzzled, is valid, and may be enforced against all persons who are inhabitants of Lowell.</p>

<p>An action on the case, brought by a father for the enticing away of his son from his service, is not maintained by proof that the son left his father’s service in another state without his father’s consent, and offered his services to the defendant who, knowing him to be a minor, at first refused to employ him, and did employ him only at his urgent solicitation and upon his representation that he had his father’s consent.</p>

<p>Where the owner of beds let them for hire, at a stipulated price by the month, payable in advance, and the hirer, before the expiration of the month for which the last payment was made, abandoned the house in which he used the beds, leaving them there and sending word to the owner, that they were ready for him; it was held, that the owner thereby became entitled to immediate possession of the beds, and might maintain an action of trover therefor, before he received knowledge of the abandonment.</p>

<p>A right ol way, appurtenant to land, passes by a deed of the land without express mention of such right or of privileges and appurtenances.</p> <p>A., the owner of several contiguous tracts of land, conveyed some of them to B^ by a deed containing this clause: “ I hereby reserve liberty for myself, and my heirs and assigns, to pass and repass through any of the aforesaid tracts of land, to my own land; and the like liberty is hereby given to the said B., his heirs and assigns, to pass and repass through my land.” A. afterwards conveyed his other lands to C., by a deed granting him a right of way over B.’s land; and in this deed was this clause: “ Reserving to B., his heirs or assigns, liberty to pass and repass through the said premises, in the manner heretofore granted to him and them, hy a deed from me.” B. afterwards conveyed to D. the lands which A. conveyed to B., without mentioning ways, privileges, or appurtenances, and added these words : —•* I reserve the same privileges of passing and repassing that I have in my deed ” from A.: I). afterwards conveyed to E. a part of the land which B. conveyed to D., and in his deed to E. inserted these words:— “ Reserving the same privileges of passing and repassing through said land as was reserved when deeded from B. to myself.” Another part of the land which B. conveyed to D. came into the possession of E. by mesne conveyances, and E. conveyed it to G. subject to a right of way over it in those to whom such right had theretofore been reserved. It was held, that a right of way passed by vir tue of B.’s deed to D., and D.’s deed to E., and that E. had a right of way over G.’s land, notwithstanding the words of reservation that were inserted in those two deeds.</p>

<p>This was an action of debt on bond, tried before Mellen, J., in the court of common pleas, and brought into this court by exceptions.</p> <p>The plaintiff and the defendant Leland, having formerly been copartners, referred certain difficulties existing between them, growing out of their partnership, by a submission entered into before a justice of the peace, to the arbitration and award of Walter R. Mason, Henry M. Chamberlain, and Joseph G. Smith, and the defendants gave a bond to the plaintiff, conditioned that the defendant Leland should abide, perform, and keep the award, and should fulfil the same, without waiting the judgment of the court, in respect of all matters submitted. The arbitrators awarded, among other things, that the defendant Leland should execute and deliver to the plaintiff a good and sufficient bond of indemnity, with one or more sureties, to be approved by the arbitrators, to pay all the debts and discharge the liabilities of the firm, and to indemnify and save harmless the plaintiff from the same, on performance by the plaintiff of the award on his part, which was, that he should pay the defendant Leland five hundred dollars on or before the 19th of July then next, (1847,) for and in consideration of the execution and delivery of the oond.</p> <p>It was in evidence, for the plaintiff, that a bond of indemnity, purporting to be in pursuance of the award, was executed by the defendant Leland, and the other defendant, Willard A. Harrington, as his surety, in Boston, when the plaintiff was not present; and that the defendant Leland carried the bónd away with him.</p> <p>It was in evidence, also, for the plaintiff, by the testimony of Mason and Chamberlain, two of the arbitrators, .that a meeting of the arbitrators was held on the 23d of July, 1847, at the office of the latter, the object of which was to ascertain whether the plaintiff had paid the $500, as required by the award, and if so, to approve a bond, which appeared to have been placed in Chamberlain’s hands by the defendant Leland for the purpose, and to deliver the same to the plaintiff. The plaintiff produced and exhibited to the arbitrators a receipt for $500, purporting to be signed by the defendant Leland, bearing date the 21st of July, 1847; and the arbitrators, being satisfied that the plaintiff had performed the award on his part, approved the bond, by putting their signatures thereon, and left it with Chamberlain to be delivered to the plaintiff, who delivered the same accordingly. The bond thus delivered to the plaintiff was the bond in suit.</p> <p>The testimony of Mason was objected to by the defendants, on the ground, that he was a creditor of the late firm of Luke and Leland; but the objection was overruled.</p> <p>The defendants contended, that the $500, mentioned in the receipt signed by the defendant Leland on the 21st of July, 1847, was not paid on the award; and upon this point, there was evidence on both sides, which was left to the jury. To make this payment, the plaintiff gave up to the defendant Leland a promissory note for $400, dated the 3d of March, 1847, and signed by Leland, as principal, and the defendant Harrington, and one Fogg, as sureties, payable to the plaintiff or order, and gave him the balance in money.</p> <p>It appeared that the award had not been returned to the court of common pleas.</p> <p>The defendants ••equested the presiding judge to instruct the jury: —</p> <p>1. That the award was void, (and consequently the bond given in pursuance thereof,) because it did not follow the submission.</p> <p>2. That the award was void, because it was not returned to the court of common pleas within one year, as required by law; and that the placing of the bond in the hands of the arbitrators, in compliance with their directions, as expressed in the award, was not such an acquiescence therein, as to render the same binding on the defendants, or supersede the necessity of returning it to the court of common pleas.</p> <p>3. That as the $500 was not paid within the time limited in the award, the defendants were entitled to a verdict; that although the defendant Leland received the money on the 21st, intending to waive the non-payment of it on the 19th, he could not do so without the consent of the defendant Harrington, so as to bind him ; and as there was no positive evidence, that Harrington consented to such waiver, the plaintiff was not entitled to recover against him.</p> <p>4. That as the money was not paid on the 19th, the arbitrators had no authority afterwards to deliver the bond to the plaintiff", so as to bind the defendant Harrington; although the payment might have been received by Leland on the 21st, with an intention to waive payment on the 19th.</p> <p>The presiding judge declined so to instruct the jury, but instructed them, that if the terms of the award had been complied with by the parties, before the expiration of the year, within which the same should have been returned to the court of common pleas, such performance dispensed with the necessity of returning the award; and that if the defendant Leland, on the 21st of July, accepted payment of the $500, intending thereby to waive the payment thereof on the 19th, such acceptance would be a waiver of his right to insist on such pay ment, and would authorize the arbitrators to deliver the bond to the plaintiff, so as to bind the defendant Harrington without his consent.</p> <p>The jury thereupon returned a verdict for the plaintiff, and the defendants excepted.</p> <p>The case was argued in writing by G. M. Browne, for the defendants, and E. Buttrick, for the plaintiff.</p>

This was an action of assumpsit, brought in the court of common pleas, in which the principal defendant was defaulted; and the trustees, having been charged on their answer, appealed to this court. The facts are sufficiently stated in the opinion.

This was an action of trespass for breaking and entering the female plaintiff’s close, situate in Shirley, and cutting, taking, and carrying away certain trees then and there being and growing. The action was commenced on the 29th of September, 1849, and was submitted to the court upon the following statement of facts: — Lucy Fletcher died September 17th, 1817, seized in fee of the real estate in question, and leaving children, of whom the female plaintiff was one.

<p>This was an action of trespass for breaking the plaintiffs’ close, to which the defendants pleaded the general issue, and specified, in defence, that the place in question was a public highway in the city of Cambridge, called Oxford street.</p> <p>At the trial before Byington, J., in the court of common pleas, the defendants offered in evidence the following extracts from the records of the city of Cambridge: —</p> <p>“ Wednesday, August 11th, 1847, at 3 o’clock P. M., the mayor and aldermen met in ward one by special assignment. Present, the mayor, and aldermen Hastings, Wood, and Saunders. Ordered, that Oxford street, as delineated on a plan now before this board, be and the same is hereby laid out and established as a public highway, from Kirkland street to a private way called Everett street; said Oxford street to be fifty feet in width through its whole extent, between the points before mentioned.”</p> <p>This order was concurred in by the common council, at a meeting held on the 12th of October, 1847.</p> <p>The defendants also offered in evidence a plan of Oxford street, Kirkland street, and Everett street, embracing the locus in quo and the surrounding lands and buildings. This plan had upon it a certificate in the handwriting of the city clerk, signed by him, and bearing date the 11th of August, 1847. The plaintiff objected to the admission of the plan in evi dence, on the ground that it did not appear by the records of the location of Oxford street, that this was the plan which was before the mayor and aldermen at the time of such location; but he admitted that the defendant could prove, if parol evidence was competent for that purpose, that the plan offered was the plan referred to in the record; that the certificate ot the city clerk thereon was made by him, at or about the time that it purported to have been made ; that the plan was placed on file in the city clerk’s office, where it had ever since remained ; and that by means of the same, a competent surveyor could ascertain the location and boundaries of Oxford street, on the land, as laid out, with reasonable certainty.</p> <p>The presiding judge ruled, that parol evidence was admissible to identify the plan, and to show that it was the plan, which was before the city authorities at the time of the location of the said Oxford street, and referred to in the record of the same.</p> <p>The jury returned a verdict for the defendants, and the plaintiffs excepted.</p>

<p>This was an action of covenant on an agreement under seal by the defendants to the plaintiffs, to indemnify them against a payment of $700 made by them to Perley Hale, at the request of the defendants, after the plaintiffs had been summoned and charged as the trustees of Hale.</p> <p>The case was tried before Mellen, J., in the court of common pleas.</p> <p>After a verdict for the plaintiffs, the defendants made and filed a written motion to set aside the same, as being against the weight of evidence. But after the motion had been on file for several days, the defendants withdrew it, and tendered a bill of exceptions to the rulings and instructions of the judge at the trial. The plaintiffs objected to the allowance of the exceptions, on the ground, that the making and filing of the motion to set aside the verdict was a waiver thereof; but the objection was overruled and the exceptions allowed; whereupon the plaintiffs excepted.</p> <p>The defendants’ exceptions, and the grounds of them, are sufficiently stated in the opinion of the court.</p>

<p>In an action of trespass, for an assault and battery, brought in this court or in the court of common pleas, the plaintiff will be entitled to full costs, though he does not recover more than twenty dollars damages, provided the title to real estate is drawn in question on the trial, although not appearing upon the record or pleadings.</p>

This was an action of assumpsit, against the defendants described in the writ as a body corporate for certain purposes, on a paper writing, of which the following is a copy: — “ $244. Lowell, November 9th, 1842.

<p>An assignment, for a good consideration, from the assured in a life policy, by an indorsement in writing thereon, of part of the sum assured thereby, notice of which is given to the insurers, but the policy retained in the hands of the assignor, does not transfer to the assignee such an interest in the policy as will entitle him, if the estate of the assured proves insolvent, to recover the whole sum assigned to him of the assured's administrator, who has received the whole amount of the policy from the insurers.</p>

Jambs H. Wheelock, a native citizen of the United States, but resident and domiciled at Tahiti, in the Society Islands, died there leaving a will, executed on the 18th of March, 1846, which was a valid instrument according to the laws and usages of the place where it was made.

<p>This was an action of trespass for assault and battery, originally commenced against George IL Kendall, the defendant, who died pending the suit, and his executrix was summoned in.</p> <p>It appeared in evidence, on the trial, which was before Wells. C. J., in the court of common pleas, that two dogs, belonging to the plaintiff and the defendant, respectively, were fig.iting in the presence of their masters; that the defendant took a stick about four feet long, and commenced beating the dogs in order to separate them; that the plaintiff was looking on, at the distance of about a rod, and that he advanced a step or two towards the dogs. In their struggle, the dogs approached the place where the plaintiff was standing. The defendant retreated backwards from before the dogs, striking them as he retreated ; and as he approached the plaintiff, with Ills back towards him, in raising his stick over his shoulder, in order to strike the dogs, he accidentally hit the plaintiff in the eye, inflicting upon him a severe injury.</p> <p>Whether it was necessary or proper for the defendant to interfere in the fight between the dogs; whether the interference, if called for, was in a proper manner, and what degree of care was exercised by each party on the occasion; were the subject of controversy between the parties, upon all the evidence in the case, of which the foregoing is an outline.</p> <p>The defendant requested the judge to instruct the jury, that “if both the plaintiff and defendant at the time of the blow were using ordinary care, or if at that time the defendant was using ordinary care and the plaintiff was not, or if at that time both plaintiff and defendant were not using ordinary care, then the plaintiff could not recover.”</p> <p>The defendant further. requested the judge to instruct the jury, that, “under the circumstances, if the plaintiff was using ordinary care and the defendant was not, the plaintiff could not recover, and that the burden of proof on all these propositions was on the plaintiff.”</p> <p>The judge declined to give the instructions, as above requested, but left the case to the jury under the following instructions : “ If the defendant, in beating the dogs, was doing a necessary act, or one which it was his duty under the circumstances of the case to do, and was doing it in a proper way; then he was not responsible in this action, provided he was using ordinary care at the time of the blow. If it was not a necessary act; if he was not in duty bound to attempt to part the dogs, but might with propriety interfere or not as he chose; the defendant was responsible for the consequences of the blow, unless it appeared that he was in the exercise of extraordinary care, so that the accident was inevitable, using the word inevitable not in a strict but a popular sense.”</p> <p>“ If, however, the plaintiff, when he met with the injury, was not in the exercise of ordinary care, he cannot recover, and this rule applies, whether the interference of the defendant in the fight of the dogs was necessary or not. If the jury believe, that it was the duty of the defendant to interfere, then the burden of proving negligence on the part of the defendant, and ordinary care on the part of the plaintiff, is on the plaintiff. If the jury believe, that the act of interference in the fight was unnecessary, then the burden of proving extraordinary care on the part of the defendant, or want of ordinary care on the part of the plaintiff, is on defendant.”</p> <p>The jury under these instructions returned a verdict for the plaintiff; whereupon the defendant alleged exceptions.</p> <p>This case was argued at the sittings in Boston, in January last, by J. G. Abbott, for the defendant, and by B. F. Butler and A. W. Farr, for the plaintiff.</p>

<p>Under the Rev. Sts. c. 74, § 5, and St. 1843, c. 72, § 2, when a mortgagee of personal property has caused his mortgage to be recorded in the town where the mortgagor resided and had his place of business, it is not necessary, upon the subsequent removal of the mortgagor’s residence or place of business to another town, that the mortgage should be recorded again in that other town, in order to make it valid against third persons.</p>

This was a complaint under the Rev. Sts. c. 116, for flowing the complainant’s land, by means of a dam erected by the respondent across Finney’s meadow brook in Plymouth for the purpose of driving certain mills situated upon and near the same.

This was a petition for a writ of certiorari, by certain persons representing themselves in part as the parish committee of the first congregational society of North Bridgewater, in part as the owners of certain sheds standing on land of the society, and all of them as residents and tax-payers of the town of North Bridgewater, and setting forth, that they were aggrieved at the doings of the respondents, in laying out a highway over the lands of the society, taking in its…

<p>This was an action on the case, tried before Fletcher, J., in this court, for the criminal conversation of the defendant with the plaintiff’s wife.</p> <p>The plaintiff, having first proved that the bonds of matrimony between him and his wife had been dissolved by a decree of this court, subsequent to the time of the alleged criminal intercourse, offered the wife as a witness to prove the charge in the declaration. The defendant objected to the witness as incompetent; but the judge ruled otherwise, and allowed her to testify.</p> <p>The jury found for the plaintiff, and the defendant excepted.</p>

<p>The inhabitants of a town, having voted to build a town-house according to a plan and specifications agreed upon, and appointed a committee to contract for and superintend the erection of the same, “ with power to make any slight alteration in the plan which should in their wisdom be deemed just and proper; ” it was held, that whether the authority given to the committee to make such slight alterations would justify them in employing an architect to draw plans for the purpose, was a question for the jury.</p>

<p>In an action on a written guaranty of the payments of George Winchester and company, it appeared, on the face of the instrument, the signature to which was admitted, that the same had been altered by an interlineation of the words “ and company,” written in a different handwriting from that of the rest of the instra ment, and in a different ink. It was held, that the burden of proof, was on the plaintiff to show, that the interlineation was made before the instrument was executed.</p>

<p>This was an action of assumpsit, to recover for the expenses incurred by the plaintiffs, in the support of Phebe Allen, a pauper, alleged to have her settlement in the town of Rehoboth.</p> <p>The case was tried before Dewey, J., by whom it was reported for the consideration of the. whole court.</p> <p>It was in evidence, among other things, not material to be stated, that Phebe Allen was the wife, and had the settlement of Richard Allen, who was a lineal descendant of Benjamin Allen, through his son Joseph Allen, from whom Richard Allen derived his settlement; that Joseph Allen was the legitimate son of Benjamin, born on the 25th of May, 1696 ; that Benjamin Allen resided in the old town of Rehoboth, where he had a settlement, from the year 1694, to the year 1723, in which year he died, then having his residence on territory, which was afterwards included within the limits of the present 'town of Seekonk, which was incorporated on the 26th of February, 1812, from a part of the old town of Rehoboth ; that Joseph Allen, between the years 1720 and 1746, resided for more than twelve months continuously upon territory, which was included within the limits of the town of Barrington, as the same was incorporated by the province of Massachusetts bay, in 1717, without being warned to depart therefrom, but that the true boundary line, between the then colony of Rhode Island and the then province of Massachusetts bay, was in dispute; that in the year 1741, the line was ascertained by commissioners duly appointed, whose decision was confirmed on appeal to the king in 1746; that Rhode Island thereupon took jurisdiction up to the line so established, which left the territory, upon which Joseph Allen had resided, and where he continued to reside until his death, about the year 1775, in Rhode Island; that the province of Massachusetts bay, after the decision aforesaid, and in the same year, 1746, annexed Barrington in Massachusetts to the towns of Rehoboth and Swanzey; and that jurisdiction has ever since been held by both states in conformity with the line ascertained and esta hlished as aforesaid.</p> <p>The defendants contended, that as Benjamin Allen, the ancestor of Richard Allen, lived in that part of Rehoboth, which was afterwards included within the limits of the present town of Seekonk, the settlement of the pauper, if in any town composed of territory, which was a part of the old town of Rehoboth, was in the town of Seekonk.</p> <p>They also contended, that Joseph Allen, the son of Benjamin, acquired a settlement in Barrington, in Massachusetts, by residing therein more than twelve months between the years 1720 and 1746, and thereby lost his previous settlement in Rehoboth.</p>

<p>It is not-the duty of an administrator, at the request and for the benefit of the heirs at law of his intestate, to inventory, or to institute proceedings to recover, certain real estate which once belonged to the intestate, but which has been set off on an execution issued against him, upon a judgment obtained by fraud.</p>

<p>An act of the legislature, authorizing commissioners to enter upon the lands of individuals, to ascertain certain boundaries for public purposes, without making compensation to the owners, is not unconstitutional, as appropriating private property to public uses without compensation.</p> <p>The legislature having authorized a town to make by-laws for the regulation of the public landing-places therein, and required them, as soon as practicable, to ascertain the true boundaries of such landing-places ; it was held, that commissioners, duly appointed by the town to ascertain such boundaries, might enter upon the land of an individual, for that purpose, without being guilty of a trespass, provided the entry was reasonably necessary, not too long continued, and accompanied with no unnecessary damage.</p>

This was an action of assumpsit originally commenced and tried before Samuel Wilbur, a justice of the peace for this county, and on appeal tried before Hoar, J., in the court of common pleas.

<p>This was an action of trespass to land, originally brought in the police court of Taunton, and earned by appeal to the court of common pleas'. The original writ was issued out of the police court, signed by the standing justice. At the return day, the standing justice refused to try the cause, for the following reason, which was assigned on the record : “ This action is tried by the special justice, the standing justice having, before the action was commenced, heard the facts in the case, as stated by the plaintiff, and being therefore somewhat interested in the plaintiff’s favor. The defendant, by his counsel, objected to the case being tried before the special justice of said court.” The special justice proceeded to try the ease and rendered judgment for the plaintiff; from wlrifh judgment fhe defendant appealed</p> <p>In the court of common pleas, the defendant filed his motion to dismiss the action, because the special justice had no jurisdiction to hear and determine the same. But the presiding judge overruled the motion, and ordered the cause to proceed to trial.</p> <p>The jury returned a verdict for the plaintiff, and the defendant excepted.</p>

This was an action of assumpsit on a contract hereinafter set forth.

<p>In this case, which was argued by T. D. Eliot, for the plain tiff, and T. G. Coffin and C. B. Farnsworth, for the defendants, the material facts appear in the opinion of the court.</p>

<p>This, was an action of assumpsit, tried before Fletcher, J., in this court, against the defendants, a corporation established by the laws of New Hampshire, and doing business at Concord in that state, on a policy of insurance executed by them, dated on the 18th of May, 1848, and numbered 1094, for $2200, on the plaintiff’s “ Tavern House ” in Fairhaven. The policy also included an insurance for $300 on the plaintiff’s shop, which had been alienated by him, before the commencement of this action, and for the loss of which he made no claim. It was agreed, that this shop, after the alienation, was occupied by the purchaser as a dwelling-house, without notice to the defendants. The buildings insured were entirely destroyed by fire on the morning of the 31st of December, 1848.</p> <p>The plaintiff’s application for insurance, upon which the policy was issued, provided, that in case of insurance, he should be bound by the act of incorporation and by-laws of the company.</p> <p>The act of incorporation contained the following provisions.</p> <p>Sect. 7. That when any person shall sustain any loss by fire, of buildings or other property insured by said company, he shall, within thirty days after such loss, give notice thereof in writing, at the oifice of said company; and the directors, upon a view of the same, or in such other manner as they may deem proper, shall ascertain and determine the amount of said loss or damage.</p> <p>Sect. 8. That the directors shall settle and pay all losses within three months after notice shall have been given as aforesaid, unless they shall judge proper, within that time, to rebuild, repair, or replace the property destroyed.</p> <p>Sect. 12. That all applicants for insurance shall give notice to the secretary, of any existing policy on the property to be insured; and if any other insurance shall be obtained on any property insured by this company, notice shall be given to the secretary, and the consent of the directors obtained; otherwise, the policy issued by this company shall be void.</p> <p>Sect. 13. That when any property insured by this company shall in any way bo alienated, the policy shall, thereupon be void, and should be surrendered to the directors, to be cancelled.</p> <p>The eleventh article of the by-laws required, that all persons insured by the defendants, and sustaining loss or damage by fire, should forthwith give notice thereof, as required by the act of incorporation, and, also, as soon thereafter as practicable, should furnish the office with a particular account of such loss or damage, signed and verified by their oath or affirmation, as provided in the article. The same article also declared, that “ when, in conformity to the charter, a double insurance exists, the company, is only liable to a ratable proportion of any loss which may be sustained.”</p> <p>It appeared, by the testimony of George F. Barnard, the defendants’ agent at New Bedford, that he knew of the destruction of the plaintiff’s building; that soon after the fire, the plaintiff called on him and that the witness told him, either that he had communicated the loss, or would make it known, to the defendants; and being applied to by the plaintiff’s agent, told him that he had written a letter to the defendants’ office, communicating the loss.</p> <p>The letter referred to, of which the following is an extract, . was dated on the 1st of January, 1849: —•</p> <p>“We had a fire yesterday morning by which propertv insured by policy 1094 was totally destroyed; also property insured by policy 3838, was thrown into confusion and damaged by being wet and removed ; 3838 is in such a state that immediate action would be desirable; please direct what shall be done, unless some of the directors should think best to come and see for themselves, which course would be satisfactory to me.”</p> <p>The agent testified' further, that about a week after this letter was sent, the defendants’ president came to Fairhaven and New Bedford; that the witness saw him after he had been, as he said, to the ruins; and that they had a conversation respecting the loss, which the president declined paying altogether.</p> <p>. The witness was at the same time the agent of the Bowditch mutual fire insurance company, a corporation established by the laws of this commonwealth, and doing business at Salem; from which company, through the agency of the witness, the plaintiff obtained further insurance on the same building insured by the defendants, by a policy dated on the 25th of August, 1848. In the application for this policy, the sixteenth interrogatory was as follows: “ State whether or not incumbered, and to what amount.” To this, the plaintiff answered : <l None.” But, it was agreed, that the plaintiff, before making application for such additional insurance, had mortgaged the premises to secure the payment of about $400, which mortgage was outstanding at the time of the loss.</p> <p>It was also agreed, that previous to the loss, the premises had been set off on an execution against the plaintiff; that the judgment creditor had not taken possession, though legal seizin had been received by his attorney; and that the plaintiff’s right to redeem the premises was in full force at the time of the commencement of this action.</p> <p>The defendants objected: — 1st. That the plaintiff had not given notice of the loss, in the manner and within the time required by the defendants’ by-laws. 2d. That the shop insured in the same policy had been alienated by the plaintiff. 3d. That the plaintiff, subsequent to the date of his policy, had obtained additional insurance upon the same property by the Bowditch mutual fire insurance company, without such notice to the defendants, as is required by the twelfth section of their act of incorporation. 4th. That the levy of an execution upon the insured premises was an alienation which avoided the policy.</p> <p>The court were to draw such inferences from the facts above stated, which were reported by the presiding judge for the consideration of the whole court, as a jury would be authorized to draw therefrom, and to order a nonsuit, default, or new trial, as they should think proper.</p>

<p>An attorney, having directed the clerk to enter his appearance for one only of three defendants, the two others being out of the commonwealth, and the clerk, by mistake, having entered it generally for the three, a judgment was subsequently rendered by default against the two; it was held, that the court, on petition, at a succeeding term, might authorize the clerk’s docket to be amended, by restricting the entry thereon of the appearance of the attorney to the party for whom he in fact appeared.</p> <p>The return of an officer on a writ, that the defendant therein has no last and usual place of abode within his precinct, is to be understood only as a return, that no such last and usual place of abode is known to the officer; and the defendant may show, notwithstanding, by evidence, that he has such last and usual place of abode, in order to abate the writ, or to reverse a judgment thereon by writ of error.</p> <p>If the service of a writ on an absent defendant, who has a last and usual place of abode within the commonwealth, is not made by leaving a summons or copy, as required by the Rev. Sts. c. 90, § 45, at such place of abode, the defendant may take advantage of the defect of service, either by a plea in abatement, or by writ of error.</p> <p>One who owned real estate, on which he lived, and where he carried on business in this state, until the year 1841, when he removed to another state, where he continued to reside, was held, in 1843, to have a last and usual place of abode in this state.</p>

<p>A payment on a note, made before it is barred by the statute of limitations, by one of two joint promisors, and indorsed thereon, will take the case out of the statute as to the party making the payment, but not as to his co-promisor; and an acknowledgment by one promisor, of such payment generally, will be binding on him alone, and not on the other.</p>

This was an action of trover brought by the plaintiff, as the assignee in insolvency of one Sabin Blake, to recover the value of certain articles of personal property, alleged to belong to the estate of the insolvent. The case was tried before Bigelow, J., in the court of common pleas.

<p>This was an action of assumpsit, tried before Fletcher, J., in this court, on a note of which the following is a copy: —</p> <p>“ $1500. Faii-haven, Jan. 23,1838. For value received, we, Ivory H. Bartlett as principal, and Thomas Cole as surety jointly and severally promise to pay Hannah B. Delano administratrix of the estate of the late Flavius Delano of Fair-haven, deceased, fifteen hundred dollars on demand with interest. I. H. Bartlett. Thomas Cole.”</p> <p>The plaintiff produced the note, and the signatures being admitted, there rested her case.</p> <p>The defence relied on was a want of consideration.</p> <p>On the back of the note was the following memorandum, signed by the plaintiff: —</p> <p>“ It is agreed by Hannah B. Delano, administratrix to the estate of Flavius Delano as named within, that payment shall not be demanded on the within note, until the adjustment of the sale and charter of the schooner Clarion shall take place, and that no more shall be demanded than shall be due said estate, after deducting said Bartlett’s interest in the said settlement as owner of the schooner Clarion, and this memorandum is not to affect any larger interest said Bartlett may have in said settlement.”</p> <p>It appeared that this memorandum was made on the back of the note, some time after the note was given, and the money received by Bartlett, but how long after did not distinctly appear.</p> <p>To maintain the defence, the defendants offered evidence, that the sum received by Bartlett of the plaintiff, and for which the note was given, was his own money, part of the proceeds of the sale of the schooner Clarion, of which he was part owner, by the master, the plaintiff’s intestate; that, of the proceeds which came to the hands of the plaintiff, as administratrix, the sum now claimed was a portion, and was in fact less than the portion really belonging to the defendant Bartlett, and was paid to him by the plaintiff, supposing him entitled to it, and the note taken for it on the understanding and agreement, that if, on settlement between Bartlett and the plaintiff’s intestate, it should appear, that Bartlett was not entitled to the money, then the plaintiff might call for it on this note; but that unless it appeared on such settlement, that the sum in question, or some part of it, belonged to the share of the plaintiff’s intestate no part of the sum should be collected of the defendants; and that in point of fact, upon such settlement, the whole sum for which the note was given belonged to Bartlett, and was less than he was entitled to, and that no part of it belonged to the plaintiff’s intestate.</p> <p>All the evidence was submitted to the jury, to be considered and weighed by them, in settling the questions of fact involved in the defence.</p> <p>The plaintiff, relying upon the note, as making out a primá facie case, requested the judge to instruct the jury, that the burden of proof was on the defendants, to establish a want of consideration. But the presiding judge, considering that the defendants had produced evidence tending to disprove or overcome the primá facie case on the part of the plaintiff; that the proof on both sides had been applied to the affirmative or negative of the same issue; and that the plaintiff was the party whose case required proof of a consideration, instructed the jury, that the burden of proof was throughout on the plaintiff, to satisfy them upon the whole evidence in the case of the fact of a consideration for the note.</p> <p>The jury returned a verdict, under these instructions, for the defendants, and the plaintiff excepted.</p>

In these cases, which were argued by T. D. Eliot, for the plaintiffs, and H. G. O. Colby, for the defendants, the facts sufficiently appear in the opinion of the court, which was delivered at the October term, 1852.

<p>This was a qui tarn action to recover a penalty of the defendant for setting, drawing, and stretching a seine for the taking of alewives in Jane’s cove, in the town of Edgartown, in contravention of the St. 1783, c. 5, § 4,* (1 Mass. Special Laws, 51.) The action was originally brought before a trial-justice for the county of Dukes county, who gave judgment for the plaintiffs, whereupon the defendant appealed to the court of common pleas.</p> <p>At the trial before Mellen, J., in that court, several points (chiefly relating to matters of form) were taken for the defendant, which, as they were not passed upon by this court, are not material to be stated.</p> <p>From a plan in the case, it appeared, that the great pond mentioned in the act is a pond in Edgartown, two and a half miles long, and of very irregular shape, having several bays,' arms, or coves on its northerly, and easterly sides. One of the smallest or northernmost of these is called Jane’s cove, and is about one hundred and seventy rods long, twenty-two rods wide at its mouth, thirty-five rods wide midway of its length, and thence gradually tapering to a point at the end. From the easterly end of the great pond, an artificial canal or outlet leads into and through two very small (Crackatuxet and Monuquoy) ponds, and thence to Mattakesset bay, which communicates with Edgartown harbor. These passages, connecting the great pond with Mattakesset bay, are now and always have been known as the Mattakesset creeks, and are about a mile in length.</p> <p>The plaintiffs, at the trial, called a witness, who testified, that the defendant, with two other persons, went up to Jane’s cove, and, acting together, there set, drew, and stretched a seine and hauled the same, and thereby caught some alewives; that the seine was set about eighty-two rods from the mouth of Jane’s cove; that from where they hauled the seine was about twenty-five rods to the brush, and that the creek runs up beyond that fifty or eighty rods ; that the alewives generally go up through the creeks to the head of the coves in the great pond, to cast their spawn in the early part of the season; and that between the harbor and the great pond, and not connected with the great pond except by the artificial creeks, were two or three small ponds, as above described, but that no fish were ever known to cast their spawn there.</p> <p>The defendant admitted the facts, as testified to by the witness; but objected, that upon this evidence, the plaintiffs were not entitled to recover, on the ground, that the statute declared upon only prohibited the acts complained of in any pond adjacent to and not connected with the great pond, and that Jane’s cove was a part of the great pond itself, and so not within the provisions of the statute. But the judge overruled this objection, and proposed to instruct the jury, upon this evidence, that the words of the statute were broad enough t<r embrace the coves and creeks connected with the great pond,, including Jane’s cove, where the acts complained of were committed.</p> <p>A verdict was thereupon taken for the. plaintiffs, and the defendant excepted.</p>

This was an action of assumpsit to recover for the services of the plaintiff, as an attorney and counsellor at law, rendered in behalf of the defendants. At the trial before Hoar, J., in the court of common pleas, the following facts appeared : — The town of Stoughton, on the 13th of March-, 1837, elected three trustees to receive and take charge of the town’s share of the surplus revenue of the United States, amounting to $3.600.

<p>A town having appointed a committee for an illegal purpose, with authority to do fend all suits which might grow out of the same, and also voted, that all costs, expenses, and trouble, which the committee might incur in the premises, should be paid by the town; it was held, that the town were not liable for the services of the committee rendered in effecting the purpose of their appointment, but were liable for services performed by them, in defending an action brought against the town on account thereof.</p>

<p>The magistrate, by whom a deposition was taken, certified thereon, that the “ cause assigned by the plaintiff” for taking the same was the deponent’s being about to leave the commonwealth, not to return in time for the trial; and at the trial, it appeared, that a subpoena had been issued to the deponent to appear as a witness, upon which a constable of the place, where the deponent resided, had returned that he had made diligent inquiry and search for the witness, and could not find him; it was held, that this was proof of sufficient cause then existing for using the deposition.</p>

<p>This action was brought for an injury received by the plaintiff in December, 1847, by reason of a defect in a highway, which the defendants were bound to keep in repair. The trial was in the court of common pleas, before Hoar, J., to whose rulings and instructions the plaintiff excepted.</p> <p>The highway in question passed through a marsh, and was made smooth and passable for the width of at least thirty-one feet; and, 6n each side, at the edge of and along the road there was a row of posts about six feet apart, extending on each side for twenty rods or more, which had been standing for many years. The plaintiff drove his chaise against one of the posts, so that one wheel passed outside of and locked upon the post; and this accident was the occasion of the injury complained of. It appeared that two or three of the posts, at about the place where the accident occurred, were broken down or removed. The alleged defect was the want of a railing at the place where the accident occurred; the plaintiff contending that some railing was necessary to keep travellers from passing into the marsh; or, if this were not so, that the posts themselves, without a railing, were dangerous to travellers. Evidence was given, on both sides, as to the actual condition of the road, and the mode in which it was travelled, at the time of the accident and for a long time before.</p> <p>The plaintiff, having introduced evidence of the injury, and of the circumstances under which it occurred, proposed to prove, by one Sprague, that before the happening of the accident complained of, the witness was riding over the same road, at or near the same place, and under similar circumstances, and that an accident similar to the one in question then occurred, which was caused by the same alleged defect, and without any neglect or fault on the part of the witness. But the plaintiff stated, at the same time, that he did not expect to prove, that the defendants had any notice of this accident. The proposed evidence being objected to, the presiding judge ruled, that for the purpose of proving notice to the town, the plaintiff might show, that any inhabitant of Dorchester had known or heard of accidents upon the highway in question; but, that for the purpose of proving the way defective, the plaintiff could not be allowed to show the circumstances of another accident alleged to be similar, as that would raise a collateral issue, and result in testing one point in dispute by another. The evidence was accordingly rejected.</p> <p>The plaintiff offered in evidence the records of certain meetings of the defendants legally held in March and April, 1845, with the reports of certain committees, and the action of the town thereon, relating to the condition of the highway in question, for the purpose of proving, as being admitted or recognized by such reports, the existence of the alleged defect, namely, the want of a suitable fence, and also notice thereof to the town. The evidence was held to be competent for tne latter purpose, but not for the former.</p> <p>The presiding judge, in his charge to the jury, instructed them that towns were not ordinarily bound by law to fence their highways; but he afterwards instructed them, that' towns were bound to erect fences or railings at such places as, without them, would be unsafe or inconvenient for travellers exercising ordinary care.</p>

This was an action to recover for relief afforded to sundry paupers found residing within the town of Braintree, by way of nursing and other attendance, previous to the 27th of June, 1849, the date of the writ. The case was tried before Hoar, J., in the court of common pleas.

<p>This was a bill in equity for the specific performance of a written contract, by which the plaintiff agreed to sell, and the defendant to buy, certain real estate described in the bill. The plaintiff had tendered a deed of the same in fee to the defendant which the latter had refused to accept. The prayer of the bill was, that he might be decreed to do so. The question submitted to the court, upon the bill and answer, and agreed statement of facts, was, whether the plaintiff could convey a good title in fee-simple to the estate in question.</p> <p>The plaintiff’s title depended on the following facts : In the year 1843, Aaron P. Cleveland, father of the plaintiff, died testate, and his will was duly proved and allowed, by the judge, of probate for the county of Suffolk, on the 21st of August, 1843. The executor and trustee therein named having declined the trust, William Minot, esquire, was duly appointed administrator, with the will annexed, of the estate, and accepted the trust, and has ever since acted as trustee under the will.</p> <p>The will of Aaron P. Cleveland contained the following clauses, relating to the appointment of a trustee, and to the estates therein devised for the benefit of Stephen H. Cleveland, the plaintiff: —</p> <p>“ I give, devise, and bequeath, all my estate both real and personal that shall remain after the payment of my just debts and the expenses of settling my estate to Henry Strong, esquire, of the town of Norwich, in the county of New London and state of Connecticut, and to his heirs and assigns forever, to his and them own use and behoof; but upon the trusts nevertheless and to and for the ends, intents, and purposes hereinafter declared concerning the same: that is to say, that the same shall be held, used, and applied for the benefit of my children and their heirs as hereinafter mentioned. And said trustee may from time to time at his discretion sell and convey any part of the estate by him held in trust, pursuant to the provisions of this will, and the proceeds thereof pay over and distribute as hereinafter provided, or as occasion may require, may loan out the same upon satisfactory security or invest the same in other property to be held upon the like trusts.</p> <p>“ And for the purpose and as the basis of making a just and equal division of my estate among my said children and their heirs, there shall be added to the amount of my said estate which shall remain as aforesaid, all such advancements as I have heretofore made or shall hereafter make to my said children so far as the same have been or shall be by me charged to them respectively in my leger or other books of account; and also such sums as I have paid or shall hereafter pay for and on account of my son-in-law, Edward McLellan, and which shall be then unpaid.</p> <p>11 And my will is, and I do hereby order and direct, that such part of my estate remaining as aforesaid as will, with the advancements which shall have been made by me to my son Stephen H. Cleveland as aforesaid, amount to one third part of said whole estate, shall, by said trustee be had and held to and for the use of my son, Stephen H. Cleveland; and said trustee shall from time to time pay over to him for the benefit of himself and family the rents, income, and profits of such part of said estate so in trustee’s hands as aforesaid. And said trustee is hereby authorized at his discretion to loan to said Stephen H. Cleveland, upon the security of his own notes, or other obligations, any part of such share of said estate. And should said trustee at any time think it expedient to dissolve said trust as to the whole or any part of such share of said estate, he may, at the request of said Stephen H. Cleveland, made by him in writing under his hand and seal, pay to him all or any part of said share of said estate as said trustee shall consider will best advance the interest and promote the comfort of said Stephen H. Cleveland and his family: and all such part of said share of said estate, as shall be remaining in said trustee’s hands at the decease of said Stephen H. Cleveland, shall be by him paid or transferred or conveyed to such person or persons as he the said Stephen by his last will and testament duly executed and approved shall order and appoint. And in default of such appointment, the same shall be paid, transferred, and conveyed to the widow and children of said Stephen H. Cleveland as by law provided for the distribution of intestate estates.’ ”</p> <p>On the 19th of March, 1844, Joseph Howe and Mary Howe his wife, being seized in fee of certain real estate in her right, by a deed duly executed and recorded, and for a valuable consideration therein expressed to be paid by William Minot, “ as he is "trustee for Stephen H. Cleveland,” conveyed the same tr the said Minot, “ in trust as aforesaid.” The habendum, was as follows: —</p> <p>“ To have and to hold the above-granted premises with the privileges and appurtenances thereto belonging to the said William Minot, in trust as aforesaid, and assigns, to his and their use and behoof forever. And we the said Joseph Howe and Mary Howe, for ourselves and our heirs, executors, and administrators, do covenant with the said William Minot, trustee, and assigns, that we are lawfully seized in fee of the aforesaid granted premises, that they are free from all incumbrances, that we have good right to sell and convey the same to said William Minot, trustee, as aforesaid, and that we will, and our heirs, executors, and administrators shall warrant and defend the same to the said William Minot, trustee, as aforesaid, and assigns forever, against the lawful claims and demands of all persons.”</p> <p>' On the 2d of June, 1845, Minot, by a quitclaim deed, wherein he described himself as the trustee of Stephen H. Cleveland, conveyed the same estate to him in fee.</p> <p>The consideration of the deed from Howe and wife to Minot was the value of the fee therein, at the time of the conveyance, and was paid by the plaintiff, and not out of the trust-funds. The deed was made to Minot, with his consent, but by the request and direction of the plaintiff.</p>

<p>The treasurer of an incorporated institution for savings has no authority, as such, and without being specially autho-ved thereunto, to execute a release j> the name of the corporation.</p> <p>Where the treasurer of an institution for savings became a party to an assignment for the benefit of creditors, and thereby undertook to release one of the promi sors on a joint and several note belonging to the institution, but without any au thority, either general or special, for that purpose; and payments of dividends were subsequently made to the treasurer’s successor in office, and indorsed on the note, and entered in the books of the institution, as so much received of the assignees of such promisor; and the treasurer’s account and cash, including the sum so received, and the notes of the institution, including the note in question, were subsequently examined by a committee and certified as correct; it was held, that these acts did not amount to a ratification of the release.</p>

<p>The proprietors of a railroad are responsible for the damages occasioned by constructing their road through and across a mill-pond, authorized by the legislature to be raised in a navigable river; although in erecting the dam for raising such pond, the conditions of the act are not complied with.</p>

This was an action commenced on the 19th of August, 1849, to recover the amount of a promissory note, dated July 24th, 1841, payable in six months, and signed by the defendants, to which they pleaded the general issue, and in defence relied on the statute of limitations, and discharges under the insolvent law of the state, and the bankrupt law of the United States.

<p>The indorser of a note being called as a witness by the holder in an action thereon against the maker, and having stated on his voir dire, that he sold the note for less than half the sum due thereon, for the purpose of becoming a witness; that if the plaintiff prevailed, and recovered the full amount of the note, he expected the plaintiff would make him some allowance, though there was no such agreement between them; and that if the plaintiff should not prevail, he should proba/bly make some return of the money received by him, though he did not consider himself under any legal liability to that effect; the witness was held to be competent.</p> <p>Where the maker of a promissory note, payable to two persons jointly, after being discharged in insolvency, made a note to each of the payees for one half of the amount of the joint note, as a substitute therefor, but bearing the same date, and received the latter in exchange; it was held, that if the joint note was a valid and subsisting note at the time, an action might be maintained on each of the substituted notes against the maker, notwithstanding his discharge.</p>

<p>A duly attested copy of the report and estimate of county cominis doners, on an application for damages occasioned by taking the petitioner’s land for a railroad, estimating the petitioner’s damages, and also directing the respondents to make and maintain a way therein described for the benefit of the petitioner, is admissible in evidence for the respondents, on a hearing before a sheriff’s jury, to estimate the petitioner’s damages.</p> <p>Where county commissioners, on an application for damages occasioned by the construction of a railroad, direct the respondents to make and maintain a way for the benefit of the petitioner, as required by St. 1841, c. 125, § 1, with which order the respondents neglect to comply; such neglect is no ground for an , allowance of damages, on a hearing before a sheriff’s jury, but the petitioner’s remedy therefor is under the second section of the same statute.</p>

This was a bill in equity, under the act of 1849, c. 333, § 5, to compel the defendants, in pursuance of an order of the county commissioners, to raise a highway, called Washington street, at Wait’s mill, in Roxbury, where the same is crossed by the defendants’ road, on a level therewith.

<p>A by-law of a mutual fire insurance company having provided, that in case of loss the insured should, as soon thereafter as possible, deliver to the secretary of the company an account, on oath, of the property lost or damaged, and of the value thereof, at the time of the loss, and enumerating in such account several particulars stated in the by-laws; and a notice of loss was given, which did not embrace all the details mentioned in the by-law, but no objection thereto was taken on that ground, when the same was given, nor any further or more particular information requested, and the insurers declined paying the loss for other reasons ; it was held, that the want of more full and particular statements in the notice was thereby waived by the insurers.</p> <p>The defendants, in an action on a policy of insurance against fire, having introduced evidence, under their specification of defence, that after the date of the policy, the plaintiff’s ashes had been deposited in wooden vessels, contrary to a stipulation in his application for insurance; the plaintiff called witnesses who testified that they had never known the plaintiff’s ashes to be deposited in wooden vessels; and upon cross-examination by the defendants, stated that they had never known the plaintiff’s ashes to be so deposited since the house was built in 1838 ; it was held, that the defendants could not thereupon introduce witnesses to prove, that, in 1844, which was before the execution of the policy, wooden vessels were the ordinary places of deposit for the plaintiff’s ashes.</p> <p>A stipulation in an application for insurance against fire, which is afterwards effected, that ashes are kept at all times in brick, is complied with, if the ashes are kept in some mode equally safe.</p> <p>If property, insured against fire at less than its value, is partly destroyed, the insured is entitled to be paid his whole loss, provided it does not exceed the amount insured.</p>

<p>The by-laws of a mutual fire insurance company provided, that any policy issued • by the company should be void, unless the true title of the assured should be expressed in the application for insurance; and that every applicant for insurance should make a true representation of the property on which he requested insurance, so far as concerned the risk and value thereof, and of his title and interest therein: An applicant for insurance by the company described the premises on which he desired insurance as his, but without stating any thing specific concerning his title thereto, and in fact had no legal title to the same, but only a bond for the conveyance thereof to him on the performance of certain conditions: And the company issued a policy in his favor, made in express terms subject to the provisions and conditions of their charter and by-laws, and to the lien established by law on the interest of the person insured in any building covered by the policy, and the land under the same, which lien the company declared it to bo their intention to rely upon: It was held, that the policy was void.</p>

<p>This was an action of replevin, commenced on the 21st of April, 1849, for taking and detaining two horses and other property mentioned in the writ, on that day. The trial was before Perkins, J., in the court of common pleas.</p> <p>The defendant pleaded the general issue, and, in defence, relied on a title in himself.</p> <p>The plaintiff, in order to maintain his title to the property replevied, produced a mortgage of the same from one Joseph Slocumb to him, dated the 12th and duly recorded on the 14th of December, 1848, and a release from Slocumb to him of all his interest in the property, dated on the 12th of April, 1849.</p> <p>The taking and detention were proved, and it was admitted that the mortgage and release were duly executed.</p> <p>The defendant then produced a mortgage of the same property from Slocumb to him, dated November 1st, 1847, and duly recorded on the 13th of the same month. The execution of this mortgage was admitted, and also that one of the notes secured thereby remained unpaid.</p> <p>In order to show a discharge of this mortgage, or at least avoid the effect of it, evidence was offered and introduced on the part of the plaintiff, from which the following facts appeared : —</p> <p>The property embraced in the mortgage was a part of the property in a livery-stable in Lawrence, kept by Slocumb, who, on the 1st of July, 1848, sold one half of his interest therein to Erastus Bridge.</p> <p>The purchaser, having knowledge of the existence of the defendant’s mortgage on the property, was unwilling to pay the price until that mortgage was discharged. Slocumb thereupon proposed to the defendant, Goodale, who lived at Woburn, but happened then to be in Lawrence, to take a new mortgage from him of his one half of the property, and to discharge the prior mortgage. The defendant accepted the proposal, and agreed to go back and get the mortgage, “ and come up and fix it.”</p> <p>On the 16th of October, 1848, the defendant wrote to Slocumb from Woburn, as follows: — “I have been unable to find that mortgage of yours. I believe that I once had it, but have laid it by itself and have forgotten where I put it. It will be sufficient for Mr. Bridge for me to agree to discharge it, and below you will find an agreement to that effect.”</p> <p>The paper referred to in the foregoing letter bore the same date, was signed by the defendant, and was as follows: — 111, Asahel W. Goodale, in and for the consideration of one dollar to me paid by Erastus Bridge, of Lawrence, stabler, agree to discharge a certain mortgage of personal property given by Joseph Slocumb to me, said mortgage being misplaced and I am unable to find it at present; and I farther agree to hold the said Bridge harmless in relation to the said mortgage.”</p> <p>Slocumb, on receiving the letter and instrument indorsed, gave the same immediately to Bridge, by whom they were taken to the office of the town-clerk of Lawrence, who thereupon made the following memorandum on the margin of the record of the defendant’s mortgage, and signed and attested the same, namely:—“ This mortgage having been duly can-celled by the mortgagor, and an order for a discharge given by the mortgagee, therefore this record is made this 1st day of November, 1848.”</p> <p>Slocumb never made any new mortgage to the defendant.</p> <p>In November, 1848, Slocumb bought back the property from Bridge, and Stowell, the plaintiff, became his surety to Bridge for the payment of $500, part of the purchase-money. The plaintiff’s liability for this sum was included in and secured by the mortgage to him, which was made, as already stated, on the 14th of December, 1848.</p> <p>The plaintiff asked Slocumb, if the defendant had discharged his mortgage, and Slocumb said, “ You can go to the clerk’s office and see; ” and he then went with the plaintiff to the clerk’s office, and there saw the memorandum of discharge above stated. This was on the day of the execution of the plaintiff’s mortgage.</p> <p>There was no evidence, that the defendant was in Lawrence from the 16th of October, 1848, to the day of the bringing of the action, or that he had any knowledge of what was done with the letter from him, and the instrument accompanying it of that date.</p> <p>The defendant objected to the evidence of the memorandum entered by the town-clerk upon the margin of the record of the defendant’s mortgage, and the presiding judge ruled that it was not admissible, and excluded it from the consideration of the jury, to prove a discharge of the mortgage.</p> <p>The plaintiff thereupon offered the letter and instrument aforesaid, signed by the defendant, and dated the 16th of October, 1848, and the defendant objecting thereto, the judge ruled that the same were not in law a discharge of the defendant’s mortgage, but were evidence of a payment and discharge of the same in fact, to be considered by the jury with the other facts in the case.</p> <p>The presiding judge instructed the jury, that if upon the admissions and statements of the defendant, in the letter and paper of the 16th of October, 1848, and the other evidence in the case, they should be satisfied that the defendant’s mortgage had been in fact paid and discharged; or that in consequence of some other arrangement and settlement between the parties, it had in fact been discharged ; then the defendant could not rely upon it in defence against a subsequent bond fide purchaser or mortgagee ; and that it was not necessary that the discharge should be written on the mortgage itself. Or, if the jury should be satisfied from the paper and evidence aforesaid, that it was understood and agreed between the defendant and Slocumb, the mortgagor, that, for good considerations, the latter might treat the mortgaged property and deal with it as discharged from the defendant’s mortgage, in reference to all persons ; then the plaintiff, knowing of that fact, and purchasing the property and parting with his money bond fide on the strength of that understanding and agreement, would be entitled to hold the property as against the defendant claiming the same under the mortgage to him; and this whether there was any direct evidence or not that the plaintiff was parting with his money and receiving a conveyance of the property. And that the discharge on the margin of the record of the mortgage, in the town-clerk’s office, taken in connection with the fact that the plaintiff was referred to the record by Slocumb, and read the discharge thereon, and the other facts in the case, might be considered by the jury, with reference to the question of thé plaintiff’s knowledge of the understanding and agreement, and for no other purpose.</p> <p>The defendant then requested the judge to instruct the jury, that if the letter and paper of the defendant, above referred to, did not authorize the discharge of the defendant’s mortgage, then, unless it was proved that the defendant was cognizant of what had been done with these papers by others, the defendant was not to be prejudiced in his rights by their acts. But the judge declined so to instruct the jury, and repeated the instructions already stated, relating to the point of the defendant’s knowledge.</p> <p>The jury returned a verdict for the plaintiff, and on being inquired of by the court, stated that they found that there had been a bond fide discharge of the defendant’s mortgage, and also that they found for the plaintiff on the other point. The defendant alleged exceptions.</p>

This was an action of assumpsit, for services rendered by the plaintiff, whilst a minor, having a father alive, and commenced after the plaintiff came of age. The case was tried before Perkins, J., in the court of common pleas.

This was an action of assumpsit, commenced on the 16th of April, 1849, and tried before Perkins, J., in the court oí common pleas. The declaration contained the money counts, and also a count on a special contract in writing made and signed by the defendant, by his agent, of which the following is a copy:— “ Salem, March 3, 1843.

<p>This was a complaint under the Rev. Sts. c. 47, § 2, alleging that the defendant, on the first of January, 1848, at Gloucester, he not being then and there first duly licensed, according to law, as an innholder or common victualler, did sell to a person named a certain quantity, to wit, one half gill of spiritous liquor, to be used in the defendant’s building actually occupied by him as a shop in Gloucester.</p> <p>The justice of the peace, before whom the complaint was originally brought, gave judgment against the defendant, who thereupon appealed to the court of common pleas, and after verdict against him in that court, at the May term, 1850, moved in arrest of judgment, on the grounds:—1st. That the law, under which the complaint was made, had been repealed; and, 2d. That there was no law which authorized the court to enter judgment against the defendant on this complaint.</p> <p>The presiding judge of the court of common pleas, being of opinion that the questions of law arising upon this motion were so important as to require the decision of this court, at the request of the defendant, reported the case for the purpose of presenting those questions.</p>

<p>The maker of a note, indorsed for his accommodation for a special purpose, misapplied the same, by transferring it before it was due as collateral security for a debt, part of which he afterwards paid. It was held, that the party, to whom the note was so transferred, if he took it without notice of the misapplication, might recover of the indorser, in an action on the note, the unpaid balance of the debt thereby secured, but no more.</p>

<p>This was a petition for partition, in which the petitioner alleged, that he was seized and possessed of an undivided half of certain premises on Washington street, in Boston, as a tenant in common with the respondents, and prayed that his half might be set off to him in severalty.</p> <p>The respondent, Taylor, filed a specification of defence, the first ground of which was, that the petitioner, at the time of preferring his petition, had not an estate in the premises in possession, but only in reversion. He also specified other grounds of defence, which are not necessary to be stated; as the arguments of counsel were, by the direction of the court, confined to this ground, and no opinion was expressed on the-other grounds.</p> <p>In regard to the first ground of defence, the facts of the case were as follows: —</p> <p>In June, 1845, John Welles and Hannah J. Taylor, being the owners of the premises in question, as tenants in common, demised the same, by leases executed by them jointly, to several tenants, for five years from the 1st of July, 1845. In 1849, Hannah J. Taylor having died, and the respondent, George A. Taylor having inherited the premises from her, Welles and Taylor made a lease, dated April 1st, 1849, of a portion of the premises for three years and three months from that date. By virtue of these several leases, the premises in question were held and occupied by sundry tenants for years, whose terms expired on the 1st of July, 1850.</p> <p>The petitioner claimed under a deed from John Welles to him, dated December 1st, 1847, of Welles’s undivided half of the premises, subject to the leases above mentioned. The petition was dated on the 9th and served on the 11th of December, 1847.</p>

<p>These were complaints under the Rev. Sts. c. 7, § 39, tor abatement of the complainants’ taxes for the year 1848, preferred to the court of common pleas in this county, exercising therein the powers of county commissioners in other counties, under the Rev. Sts. c. 24, § 57. The cases were heard together by consent, before Wells, C. J., who made an order thereon, abating the taxes in question, to which order, and other orders and directions of the judge preliminary thereto, the respondents excepted.</p> <p>In this court, two principal questions only, of several presented by the bill of exceptions, were considered, namely: — 1st. Whether the complainants had carried in a list of their estates to the assessors so as to entitle themselves to an abatement ; or, 2d. Whether they had shown any good cause for not having carried in such list.</p> <p>The facts, upon which these questions arose, were in evidence substantially as follows:—</p> <p>John Fenno, land agent of the Winnisimmet company, a corporation duly established by law in this comm onwealth, testified, that he had been the agent of the company for fourteen years; that before the 1st of May, 1848, as he thought, or before the assessment was made for that year, and in season for the purposes of the assessors, he gave them a plan of'the lands of the company, marked in such a manner as to designate what lots had been sold and what remained unsold, and also a plan of the Furber marsh, then lately come into the possession of the company, and of which no part had been sold; that it had been the usual practice, for the last eight or ten years, to furnish the assessors with a plan, and they generally asked to have such plan handed in to them in season; and that he gave the plans to Breclr, the clerk of the assessors, at their office.</p> <p>In regard to the Cary estate, it did not appear, that any other statement was made to the assessors, than as set forth in the testimony of two of the board, as follows : — George W. Gerrish, one of the assessors, stated, that some time in the latter part of May, 1848, when the assessors were going round for the purpose of taking the valuation, they called on the complainant Cary, who resided on the place; that Cary gave in the farm at three hundred and fifty acres, and, in answer to an inquiry put to him, stated how much of it was marsh; that the assessors asked him some questions as to the personal property and the stock, which he answered to their satisfaction, and that the information which they received was all which they required for the purpose of taxing the estate. Joseph Breck, clerk of the assessors, testified, that he had been an assessor for five years; that about the middle of May, 1848, the assessors went to the Cary estate; that Cary told them the number of persons in his house; that the witness asked him if the personal estate was the same as last year, to which he answered that it was; that the witness did not ask any questions about the farm, being very familiar with it; that Cary made a reference to his former written statement, handed in one or two years before, and said it was the same now; and that the complainant Cary, and two of his sisters, lived on the farm, the other complainants not being inhabitants of Chelsea.</p> <p>It did not appear that the assessors had given any notice to the inhabitants to bring in their lists, nor did it appear, that they had not given such notice.</p> <p>On this evidence, the respondents contended, in the court below, that the complainants had not made such statements of their taxable property to the assessors, as were required by law to entitle them to abatement, or shown any sufficient excuse for not having done so; but the presiding judge overruled the objections, whereupon the respondents excepted.</p>

<p>H., living in Boston, agreed by letter with A., living in Burslem, in England, for the purchase of goods of him, to be paid for by a bill of exchange drawn by A. on C. & Co. of London, at four months, which C. & Co. agreed to accept. The goods were accordingly delivered to H. by A,, who drew his bill therefor at four months on C. & Co., by whom the same was accepted. A. negotiated the bill, in the ordinary course of dealing, for a valuable consideration, and at the time when it became due, it was in the hands of a Iona fide holder, other than the drawer; C. & Co. having become bankrupt, before the maturity of the bill, the same was never paid by them, but was taken up and paid by A., who, having brought an action against H. for goods sold and delivered, produced the bill in court to be delivered up and cancelled. It was held, that the fact of the residence of A. and of C. & Co. in a country foreign to that in which H. lived, was not prima facie evidence that the credit for the goods was given by A. to C. & Co.; that the negotiation of the bill by A. in the usual course of business, and for a valuable consideration, was no discharge of his claim for the price of the goods; and that A. might notwithstanding, recover on the original cause of action against H. for goods sold and delivered; but that in such case the current rate of exchange could not be allowed as part of the damages to be recovered.</p>

<p>The balance of a claim against the estate of a deceased insolvent person, on which a dividend has been paid, is not within the statute of limitations. (Rev. Sts. c. 120, §7.)</p> <p>Administration de bonis non may be granted after the expiration of twenty years from the death of the former administrator.</p> <p>By the statute of 1784, c. 2, the administrator of an insolvent estate could not, under a general license to sell real estate, sell the reversion of land assigned to the widow as dower. Otherwise, it seems, since the revised statutes.</p> <p>A purchaser of the reversionary interest in land of a deceased insolvent person, assigned to his widow as dower, may appeal from a decree of the judge of probate appointing an administrator de bonis non.</p>

This was an appeal from a decree of the judge of probate for this county, approving and allowing an instrument purporting to be the last will and testament of Julia Ann Heath, wife of the appellant. The case was submitted to the court upon an agreed statement of facts.

<p>The defendant, on the 25th of March, 1835, by an instrument in writing signed by him, acknowledged the receipt of certain property from the piaintiifs, who were the assignees for the benefit of creditors of an insolvent debtor, and therein promised to pay for the same on demand; it being stipulated, that the demand should not be made until the assignees had made up their account previous to declaring a second dividend under the assignment. The defendant brought a bill in equity, in 1836, against the plaintiffs, as such assignees, which was pending until March, 1847, and during its pendency prevented the plaintiffs from preparing an account for a second dividend under the assignment. The plaintiffs made a demand, and at the same time presented their account, on the 23d of "May, 1848 In an action on the agreement, it was held, that the defendant could not object, that the last demand was not made on him within a reasonable time.</p>

<p>The defendants, who were dentists in Boston, made an upper and part of a lower set of teeth for the plaintiff’s wife, who lived in Vermont, and delivered and received payment for the same, under an agreement stated in the bill therefor, of which the following is a copy : —</p> <p>“34 Tremont Bow, Boston, 1847. Mrs. Davis to Drs. Ball & Co. Dr. Teeth filled, cleaned, inserted, extracted, and all operations in the best manner. To operations in dentistry, August 20 : Inserting one upper set and part of lower set of teeth on gold plate, warranted for one year; and if on trial they cannot be made useful, the teeth to be returned and the money refunded when called.</p> <p>“$110. Beceived payment, A. Ball & Co.”</p> <p>This action was brought on the warranty, and tried before Byington, J., in the court of common pleas.</p> <p>The plaintiff produced evidence to show a breach of the warranty, by proving that the teeth could not be made useful to the plaintiff’s wife, and that they were returned to the defendants, and the price demanded of them, within a year from the date of the bill.</p> <p>The plaintiff also produced a witness who testified, that she was with the plaintiff’s wife when she employed the defendants, and was present when the contract was made, and that she was also three days with the plaintiff’s wife at her house, after she received the teeth from the defendants. On the cross-examination, the witness having testified that she was present when the bargain was made for the price, the defendants inquired what was the price. The plaintiff objected, because the price appeared by the written contract; and the evidence was rejected. The witness then testified, that she was at the defendants’ when the writing was made, and when the plaintiff’s wife paid the $110 and took the bill; at which time she had been in possession of the teeth for a day or two.</p> <p>The defendants then offered to show by this witness, on cross-examination, that there was a bargain made for the teeth, before the execution of the written one, which prior bargain contained no warranty, but was for the teeth, at the price paid for them; and they contended, that this evidence would show, that the statement of the warranty in the writing was without consideration. But the presiding judge ruled, that as there was a contract in writing executed at the time the money was paid, the evidence was inadmissible.</p> <p>The defendants contended, that there was a latent ambiguity in the words “ made useful,” which would be suggested by the inquiry, “ made useful by whom ? by the plaintiff’s wife, or by the subsequent adjustment of the defendants ? ” They thereupon contended, that parol evidence was admissible, to explain the ambiguity, and, for this purpose, they offered evidence, first, to prove the understanding and contemporaneous construction of the parties, by their conversation at the time; and, second, to prove the custom of the trade or profession by other dentists. The presiding judge being of opinion, that there was no such ambiguity in the contract, rejected the evidence, and instructed the jury, that, according to the true construction of the contract, the plaintiff’s wife was to make trial of the teeth by using them; that if they did not fit her, and she could not make them useful to herself by a fair and proper trial of them, according to her knowledge, and the instructions given her by the defendants at the time of the sale, she had a right to return them-; and that on returning them within a year, the plaintiff had a right to recover back the money which had been paid for them.</p> <p>The jury, under these instructions, found for the plaintiff and the defendants excepted.</p>

<p>An agreement, which is void in part by the statute of frauds, and good for tho residue, will not support a declaration, in which the entire agreement is set out. A contract for the purchase of coals at Philadelphia, and to pay for the freight of the same to Boston, if void by the statute of frauds, as to the sale, is void also and cannot be enforced as to the freight; though the latter part, if it stood alone, would not be within the statute.</p>

This was an action of assumpsit, in which the plaintiff declared originally on the common counts, and on an account annexed for an order drawn by the plaintiff in favor of the defendant on one George C. Goodwin, for matches, and paid by him, and for money furnished by the plaintiff to the defendant. The plaintiff intimated by a note in the writ, that he should afterwards file a special count.

This was a bill in equity, brought by the plaintiffs, as executors and trustees under the will of James Lloyd, to obtain the instructions and directions of the court in the distribution of his estate.

<p>In a declaration in case, for an injury sustained by the plaintiff, by reason of a defect in a highway, a statement that at the time of the accident, by which the injury was occasioned. “ the plaintiff was walking along and across the highway, in the due prosecution of his business, and in a proper manner,” is a sufficient allegation, after verdict, that the plaintiff was, at the time, in the exercise of ordinary care.</p> <p>An inhabitant of another state, who sustains an injury in consequence of a defect in a highway, may bring his action against the town or city bound to repair the same, in any county in the commonwealth.</p> <p>It is the duty of cities and towns to keep that part of the street which lies between the carriage-way and the sidewalk in such repair that foot-passengers may cross any part thereof with a reasonable degree of safety, using such care and caution as are adapted to the nature of the case; and the establishing of raised crossings at proper distances is not a sufficient compliance with this duty.</p> <p>In an action against a town or city, to recover damages for an injury occasioned by a defect in a highway in that part thereof lying between the carriage-way and the sidewalk, the defendants may show, as having a bearing upon the question of ordinary care, that in other towns and cities inequalities in the surface of that nart of the highway are of common occurrence; but evidence that such inequalities are not deemed to be a portion of the highway, required to be reduced to a level, and to be kept in repair for the use of foot-passengers, is inadmissible.</p> <p>The projection of the movable grating of a culvert, from one to two inches above the level of the edge of the sidewalk against which it rests, is not a defect, which shows such a want of ordinary care on the part of the city, as will make them responsible for an injury occasioned by stumbling over the grating.</p> <p>Where a person, who had occasion to cross in the daytime from one side of a street to the other, selected for that purpose a portion of the street, which, having been necessarily and properly appropriated for a drain, was covered by an iron grating, and, in attempting to cross over the grating, fell and was injured, there being no reason for attempting to cross at that place rather than any other part of the street; it was held, that the passenger, in attempting to cross at that particular spot, was not in the exercise of ordinary care, and could not therefore recover.damages of the city for the injury so suffered.</p>

<p>This was an appeal from a decision of Ellis Gray Loring, Esquire, a master in chancery for this county, overruling the motion of the appellant, as assignee of Edward H. Green and company, insolvent debtors, to expunge or reduce the amount of certain claims, proved before the master against the estate of Green and company. The case was submitted to the court upon the following agreed statement of facts: — On the 23d of February, 1846, a warrant was issued by the said master, against the estate of Edward H. Green and John E. Short, both of Boston, merchants and partners, doing business under the firm of Edward H. Green and company. The first publication of the notice required by the warrant was made on the 24th of February, 1846, and, on the 11th of March following, the appellant was chosen assignee, and duly received an assignment of all the insolvent’s estate.</p> <p>Previous to their insolvency, Green and company, as copartners, were employed by Oliver P. Mills, of New York, to make and negotiate certain bills of exchange, drawn on the firm of Major and Wallace, of London ; and from time to time, as opportunity offered, Green and company had drawn on account of Mills various bills of exchange, against consignments of goods in the hands of Major and Wallace belonging to Mills, which bills were sold in the usual course of business to the appellees. Green and company, for a commission paid to them by Mills, had become responsible as the drawers or indorsers of these bills, which were duly accepted by Major and Wallace, but were not paid at maturity. Notice of their dishonor was duly sent to the drawers, and the bills were taken up by the appellees, and proved by them against the estate of Green and company.</p> <p>The appellees, whose claims were thus proved, were Hawes, Gray, and company, proved on the 10th of March, 1846; Benjamin Loring and Levi H. Marsh, executors of Elijah Loring, proved on the 20th of March; Thomas Tarbell and company, proved on the 29th of April, 1846 ; and Samuel May and company, proved on the 18th of January, 1847; the whole amounting to about $26,000.</p> <p>The bills proved by Hawes, Gray, and company were drawn by Mills payable to his own order, and indorsed by him to the order of Green and company, and by them indorsed. The bills proved by the other appellees were drawn by Green and company on account of Mills. All the bills were directed to Major and Wallace, and were by them accepted. The several appellees sent their bills to England in payment of debts or to make purchases there during the months of November and December, 1845; and the bills were at maturity returned to them dishonored, by due course of mail.</p> <p>At a meeting of the parties holding bills drawn by or by the order of Oliver P. Mills held in London, on the 5th of June, 1846, a proposition for compromising their claims against Major and Wallace on these bills was agreed to; and, on the 23d of December following, an indenture for that purpose was drawn up and executed at London by Major and Wallace, by these bill holders, including the appellees, by their respective agents, and by certain trustees appointed under the composition deed. This composition deed recited that Major and Wallace, being unable to pay in full all their debts, had proposed to pay then- creditors, including the parties holding bills drawn by or by the order of Oliver P. Mills and accepted by Major and Wallace, a composition of five shillings in the pound, on the amount of their debts, by three equal instalments, payable at three, six, and nine months from the date of the deed, and to be secured by promissory notes of James Wallace, payable at those periods respectively, in full satisfaction and discharge of tiuch debts; and that their creditors, including said bill-holders, had consented to and agreed to accept such composition ; and that the bill-holders had received in addition to this composition four shillings in the pound in money. Major and Wallace by this deed assigned certain goods to certain trustees therein named, in trust to sell and convert the same into money, and divide the proceeds among the bill-holders, parties to the composition deed; and the bill-holders covenanted not to sue Major and Wallace on said bills of exchange, unless on default of payment of the notes of James Wallace; and that upon payment of those notes to the trustees, the bill-holders would release Major and Wallace from the said bills of exchange. Then followed this clause:—“ Provided always, and it is hereby expressly agreed and declared, that it shall be lawful for the said bill-holders, parties hereto of the second part, to execute these presents without prejudice to their rights and remedies upon the said bills, mentioned in the second schedule hereunder written, respectively, or upon collateral or other securities for the same, respectively, against any person or persons whomsoever other than the said McKedy Major and James Wallace, or either of them, their or either of their heirs, executors, and administrators; and that notwithstanding these presents, or any thing herein contained, they, the said bill-holders respectively, and their respective executors, administrators, and assigns, shall be at liberty to enforce and adopt all or any of such rights or remedies, against any such other person or persons, in the same manner as if these presents had not been executed.” And the bill-holders covenanted to indemnify the trustees, from all claims for or on account of the goods assigned to them in trust, or the payment of any dividend out of the proceeds thereof.</p> <p>The dividends, which were made under this indenture, amounting to four shillings in the pound, have been received by the appellees respectively.</p> <p>On the 4th of August, 1847, the appellant, as the assignee of Green and company, filed with the master in chancery a written motion, that the claims of the several appellees should be expunged from the list of debts proved against Green and company; or, if not expunged, that they should be reduced in amount, by deducting therefrom the payments received by the appellees, respectively, under the provisions of the composition deed; but the master, after due hearing, overruled the motion, and the assignee appealed to this court.</p> <p>It was agreed, that if the court should sustain the master’s decision, judgment should be entered for the appellees, but if the court should reverse the decision of the master, the case might be sent to a jury, to be tried on such issue or issues, as the court should direct, or otherwise disposed of as they should determine.</p> <p>’’The case was argued in writing.</p>

<p>A promise made by a grantee of land to his grantor, as part of the consideration of the conveyance, to assume and pay taxes thereafter assessed on the land as of the first day of May previous, is not within the statute of frauds, either as a contract for the sale of land, or of any interest in or concerning land, or as a promise to answer for the debt of another.</p> <p>A. and B. having agreed by parol, that A. should convey certain real estate to B., and assign to him certain policies of insurance on the estate, and that B. should pay the taxes which might thereafter be assessed on the estate as of the first day of May previous ; A. afterwards conveyed the estate to B by a deed, expressed to be in consideration of a certain sum of money paid by B. to A., and contain ing a covenant against incumbrances; and assigned the policies to B. by indorse ment in writing thereon, expressed to be in consideration of the sale and conveyance of the estate. In an action afterwards brought by A. against B., for refusing to pay the taxes when assessed, it was held, that parol evidence was admissible to prove B.’s agreement to pay the taxes.</p> <p>If a grantee of land, who has agreed with his grantor, in part of the consideration of the conveyance, to assume and pay the taxes which might thereafter be assessed on the land as of the first day of May previous, refuses to pay the taxes when assessed, and brings an action against his grantor on the covenant against incumbrances in the deed, the grantor may sue the grantee immediately for the breach of his agreement to pay the taxes, and, on paying the taxes before trial, may recover as part of his damages the amount so paid.</p>

<p>An assignee, under the insolvent laws of this commonwealth, cannot he charged by the trustee process, as the trustee of a creditor of the insolvent, for money in his hands as such assignee.</p>

<p>Where a plaintiff in a trustee process, brought in the county in which he resides, inserts therein the name of a person residing in another county, as defendant, in his individual capacity, and the same person, in the capacity of administrator, as trustee, the court will not, at the plaintiff’s suggestion, after the defendant has appeared, answered, and been discharged as trustee, treat as surplusage all that part of the writ relating to the trustee.</p> <p>Where the court, in which a transitory action is brought, has jurisdiction of the cause and of the subject-matter, a defendant, who has submitted himself to the jurisdiction of the court, cannot afterwards object to the jurisdiction, on the ground, that by law the action should have been brought in another county.</p> <p>A defendant in a trustee process, who has appeared generally, cannot, after verdict against him, object to the jurisdiction of the court, on the ground, that the action was not brought in the county in which the trustee resided.</p> <p>It seems, that a declaration in assumpsit, stating generally that the defendant, being indebted to the plaintiff in a certain sum, promised to pay the same according to the tenor of certain notes made by the defendant and payable to the plaintiff without stating for what the defendant was indebted, is bad, even after verdict. A count upon a promise made to the plaintiff’s intestate cannot be joined with a count, alleging that the defendant, “ being indebted to the plaintiff as aforesaid,” (the plaintiff having been previously described as administrator,) in a certain sum “ for goods sold and delivered by the plaintiff to the defendant, in consideration thereof promised to pay the same to the plaintiff; ” and a declaration, in which such counts are joined, is bad, even after verdict.</p>