Volume 62 — Massachusetts Reports

<p>It is no ground of exception, that the presiding judge, on the trial of an indictment, instructed the jury, that if any of the jury differed in their views of the evidence from the majority of their fellows, they should be thereby induced to doubt the correctness of their own judgments, and be led to reexamine the facts of the case, for the purpose of revising their opinions.</p>

<p>The declarations of one occupying land, that he occupies it as tenant of another person, are admissible in evidence, as part of the res gestee, to prove such other’s possession, in an action brought against him by a third person claiming title to the land.</p> <p>In an action of trespass quore clausum fregit, brought against one claiming to hold the premises under a lost deed from the plaintiff, a witness, who has testified to a conversation, at which the plaintiff was asked, “ whether he had received pay for the land,” and answered in the affirmative, cannot be asked by the defendant what land he understood the conversation to refer to. »</p> <p>In an action of trespass guare clausum fregit, the defendant, claiming title by adverse possession, put in evidence a will containing a devise by the testatrix to certain of her grandchildren, under whom he claimed; and the plaintiff gave evidence of subsequent declarations of the testatrix, that she did not cwn the land when she made the will, and did not intend to buy it, unless certain arrangements could be carried out, because it would be giving the devisees more than her other grandchildren. It was held, that the plaintiff might then put in evidence the final account and the decree of the probate court on the settlement of the estate of the testatrix, to show what the shares of the other grandchildren would be, compared with those of the devisees, if they held this estate.</p>

<p>A will contained the following provisions: “ I give, bequeath, and devise unto a part of the inhabitants of the town of B. and unto a part of those persons who may become inhabitants of said town of B., to wit, all that are now, cr may become, inhabitants of said town of B., excepting” nine persons named, “and their descendants,” a certain sum of money, “ upon the following conditions,.to wit, said town of B. is to loan said sum and secure the payment of the principal and interest by a mortgage or mortgages upon real estate, the principal is to be kept as a permanent fund, the interest is to be expended yearly after two years from my decease, in the support of one school, to be kept near the centre of said B., in which such academical instruction shall be given, as said town shall decide to be most useful,” “ said school is to be free to all persons who are now or may become inhabitants of the town of B., excepting such persons as do not conform to proper rules and regulations that shall be established in said school by said town, and such persons as said town shall determine to be of an unsuitable age, and the aforesaid ” nine persons “ and their descendants, who are excluded from attending said school for the term of one hundred years, and after the expiration of said term of one hundred years, the school is to be free to all the inhabitants of said town of B. who comply with the rules of said school.” “ Said town of B. is to be paid, by my executors, the aforenamed sum within two years from my decease with interest on the same from the day of my decease.” “ Whenever the town of B. shall fail to fulfil the above conditions, the said” sum of money “shall become the property of my legal heirs.” “I also give, bequeath, and devise unto the same aforenamed inhabitants of the town of B., to whom I bequeathed ” the money, certain land described, upon condition that “ said land is to be used for the purpose of erecting a school-house upon it for the use of the school aforenamed, and to become the property of my heirs, whenever said land shall be used for any other purpose, after the expiration of two years from my decease.” It was held, that' these provisions constituted a valid legacy and devise to the town in its corporate capacity, for the support of a public school for the benefit of all the inhabitants; and that the condition, excluding certain persons and their descendants from the school, being repugnant to the nature of the grant, and contrary to law and public policy, was inoperative and void.</p>

<p>A vote of the proprietors of Worcester, in 1733, recorded in their book of records, but not in the registry of deeds, “ that one hundred acres of the poorest land on Millstone hill be left common for the use of the town for building stones,” constituted, even as against grantees under subsequent conveyances duly recorded in the registry, a grant of the quarry to the town, not for their use in a corporate capacity, but for the use and benefit of those only who were or might become inhabitants thereof, for all purposes for which such materials, in the progress of time and the arts, might be made useful.</p>

This was a proceeding under the Rev. Sts. c. 104, commenced on the 3d of July, 1848. At the trial in the court of common pleas, before Mellen, J., the following facts were in evidence: The defendant mortgaged the premises to Asa Cutler, himself remaining in possession.

This was a proceeding under the Rev. Sts. c. 104, commenced on the-24th of June, 1850; and was submitted to this court upon the following statement of facts: The defendant entered on the premises described in the writ, on the 1st of April, 1850, under a parol agreement with the plaintiff, that he should hold them for one year, in consideration of his taking care of certain young trees on the premises.

<p>A person in possession of an estate, under a bond from the owner, conditioned to convey the estate to him on payment of his note for a certain sum with interest semiannually, is not, on a failure to pay such interest, liable to the landlord and tenant process provided by Rev. Sts. c. 104, § 2.</p>

<p>This was a real action to recover six parcels of real estate in Blackstone, and was tided before Fletcher, J., who reported the case for the consideration of the full court. The opinion exhibits the whole case.</p>

This was a writ of entry, brought against Welcome Farnum and Francis Deane, Jr., to recover an undivided part of two several tracts of land, situated in Blackstone, formerly Hendon, in the county of Worcester, and called in the writ “ the Dexter Taft lot,” and “ the Canal lot.” At the trial before Fletcher, J., the demandant proved that Esek Pitts died seized of said tracts, and that he was one of said Esek’s children and heirs at law.

<p>A mortgage, made by A. to B., was assigned by B. to 0., to secure a debt, upon condition that if B. should pay the debt, the assignment should determine and become void, and the assigned premises should revest in B., his heirs and assigns. It was held, that a purchaser of both A.’s and B.’s interests in the premises might maintain a bill in equity against C. to redeem the mortgage, upon paying the amount due from B. to 0.</p>

<p>Several parties, by agreement in writing, “associated together to construct and maintain a reservoir, and therein to raise and reserve a head of water for the use and benefit of their several mills and water privileges, situated below said reservoir upon M. river,” and fixed the number of shares to be held, and the proportion of the expenses to be paid by each, and agreed that “ the times and seasons when, and the quantity and manner in which, the said water may be drawn off for the use of the parties interested therein, shall be subject to the will, order and direction, of a majority in interest for the time being of the owners of the reservoir,” “ the right to draw off and exhaust the water from said reservoir, at any and all times, to supply the mills and water privileges below the reservoir on said river, being subject exclusively to the control and direction of a majority in interest of the proprietors for the time being of said reservoir, as hereinbefore provided.” It was held, that the majority, even though they should have no occasion to use the water themselves, had no right to require the minority to pay any rent or compensation for the use of the water, although the minority had heretofore made such payments without objection; and that the majority were not authorized by the agreement to let the water run to waste, without regard to the interests of the minority, and should be restrained by injunction from so wasting the water.</p>

<p>This was an action of assumpsit to recover the amount of a tax assessed upon the plaintiff in 1849, and paid by him to the defendants under protest.</p> <p>The case was submitted to the court upon the facts herein» after stated. Annexed to the statement of facts was a copy of the valuation of the plaintiff’s estate by the assessors of the city of Worcester for the year 1849, as taken from their books, consisting of fourteen items of real estate, and five items of personal estate, of which the only ones material to be stated are the following : —</p> <p>“ Eeal — Estate he lives on between Elm and Cedar streets,.........$32,000</p> <p>“ Three lots south side Elm street,........................ 6,000</p> <p>“ Six acre lot west of M. B. Green’s,...................... 4,800</p> <p>“Eour lots on Oak and Cedar streets, near E. P. Angler’s,.. 3,200</p> <p>“ Strip of land south side of Elm street,.................... 300</p> <p>“Estate occupied by Wm. S. Lincoln, and the remainder of home farm,........................................ 12,000</p> <p>" Four houses on Thomas street,.......................... 7,500</p> <p>“Personal — Bank, Eailroad, and other stocks,.................... 11,700</p> <p>Most of the land taxed to the plaintiff, including' the land on the south side of Elm street, was one farm thirty years ago, and occupied by the plaintiff. The three lots on the south side of Elm street have for more than thirty years been cultivated by the plaintiff, and the produce thereof stored, mingled and used, with the produce of his said farm. The six acre lot west of M. B. Green’s is a part of said farm, and separated from the residue of the farm by fences only, has always been occupied as a cow-pasture in connection with said farm, is surrounded by the plaintiff’s other land, and across it lie the necessary and only ways whereby the plaintiff’s'teams pass for the purpose of cultivating the adjoining parts of the farm. Oak street is a private street, made by the plaintiff in 1847, and still owned by him. The original farm of the plaintiff had been reduced by sales of portions of it at different times. Until the year 1849, no part of said estate, except houses and gardens occupied by tenants, had been valued separately in the assessment of taxes, but the whole of said estate had been valued and taxed as his home farm, or the estate on which he lived, or by some general description. The plaintiff owned no land which would answer the description “ Estate of Wm. S. Lincoln, and the remainder of home farm,” except those parts of his original farm which he had not sold, and two lots purchased within six years, and since occupied in connection with his farm. The “ four houses on Thomas street,” with the land on which they stood, were owned by the plaintiff; two of them, on the north side of the street, having been acquired by will; and the other two, on the south side, having been acquired by purchase, at different times and from different .persons; and the four houses were occupied by different tenants, one of whom held under a parol lease and without any agreement as to the payment of taxes.</p> <p>The plaintiff owned stock, in his own right, in the Boston and Worcester and other railroad corporations, and in various banks in the commonwealth; and also held nine shares in -the Boston and Worcester railroad corporation, as the guardian of Sarah Sever, who was of full age, and resided at Kingston, where she was taxed for her property. These nine shares were included in the valuation of stock assessed to the plaintiff in his individual capacity. The stocks held by the plaintiff were of different values, some above par, and some much below.</p> <p>The plaintiff gave in to the assessors no list of his taxable property for the year 1849.</p>

<p>This was an action of assumpsit, to recover the taxes assessed upon and paid by the plaintiff for the support of schools in the town of Harvard, in 1843,1844,1845 ; and also to recover his proportion of the sums paid by said town, from 1841 to 1847, inclusive, for the expenses of the burial of persons not paupers. The case was submitted to the court of common pleas, and upon appeal to this court, upon the following facts: —</p> <p>The town of Harvard, ever since the year 1842, has been duly divided into eight school districts. At the annual town meetings in 1843,1844, and 1845, the town voted to raise certain sums of money for the support of schools, and apportioned the same among the several districts. And these sums were duly assessed, collected, and paid into the treasury of the town. The plaintiff was an inhabitant of school district No. 5, and had three children, embraced in the census of the district, whom he sent during those years to the school in Bolton, as being more conveniently situated. The warrant calling the annual town meeting in March, 1845, contained the following article: “ To see if the town will let Stephen Withington have his proportion of school money, so long as he may send his scholars to Bolton to school.” On this article, the town, at this meeting, voted “ that Mr. S. Withington draw his proportion of school money; ” and, at an adjournment of the meeting on the first Monday of April, voted to reconsider this vote.</p> <p>From the years 1841 to 1847, inclusive, the town of Hai vard expended certain sums to defray the expenses of the burial of all persons, whether inhabitants or not, residing, and dying and being buried, at Harvard, although not town nor state paupers, nor transient persons, nor needing nor asking aid from the town as paupers. These sums were all raised by town taxes duly assessed and collected and paid into the town treasury; and the plaintiff paid the proportion of such taxes assessed to him in each year.</p> <p>The plaintiff, before bringing this action, demanded of the selectmen and of the town treasurer of Harvard, the several sums sued for, and of the prudential committee of school district No. 5, the school money sued for; and they severally refused to pay him such sums or any of them.</p>

<p>It is no ground of objection to the acceptance of the verdict of a jury, assessing damages occasioned to adjoining land by the raising or lowering of a highway, that there was no such determination of damages by the selectmen or mayor and aldermen, as to authorize the county commissioners to issue a warrant for a jury. But such objection, if relied upon, must be taken before the county commissioners.</p> <p>In a proceeding against a city or town to assess damages occasioned to adjoining land by the raising or lowering of a highway, a person, who, though not residing in the city or town, has a claim against the respondents of like character to that in controversy, and feels himself aggrieved and injured by the alteration in question, is not competent to sit on the jury.</p>

This was an action of trespass quare clausum fregit, brought to try a question of boundary.

This was an action of assumpsit, to recover for expenses incurred in the support of Henry Williams, a pauper.

<p>This was an action on a policy of insurance, whereby the defendants insured the plaintiff “ two thousand dollars on his machine shop, a watchman kept on the premises; with the privilege to insure $2,000 at the Fitchburg office, $500 at the New England office, Concord.”</p> <p>At the trial, which was before Fletcher, J., the only ground of defence relied on was, that there was not “ a watchman kept on the premises,” and that the plaintiff therefore could not recover. To meet this defence, the plaintiff called a witness, who testified that on the 14th of November, 1849, he was hired to watch the building a quarter of each night, leaving it about half past seven in the evening; that on the 38th of November, he was hired to watch what was called half the night, going in at half past five, and leaving at half past ten o’clock, and continued to do so until the 8th of December, when the fire occurred, which destroyed the building, about one o’clock in the morning. No question was raised as to the manner in which the watch was kept. But the defendants contended that employing a watchman for the times above stated was not such a compliance with the terms of the policy as would entitle the plaintiff to recover.</p> <p>The plaintiff, to show that in different establishments there was a difference in the horns of keeping a watch, called two agents and managers of insurance companies, who were allowed, against the objection of the defendants, to testify that the usages of different establishments which employed watchmen varied very much, some keeping a constant watch; some only for a limited period of time, for certain specified hours; some requiring an examination to be made at a certain time after the workmen had left the building, &c.; that this was generally a subject of particular inquiry at the time of making insurance, and depended upon the stipulations made at that time; and that it was the general usage of companies, accustomed to insure large factory buildings, to put to persons applying for insurance the question, “ Is there a constant watch ; if not, what is your arrangement in regard to it ? ” to which the answers were various, as above stated.</p> <p>One of the tenants, who was concerned in employing the watchman, being called as a witness for the defendants, testified that he thought it safe to be without a watchman the latter part of the night; that until the 7th of June, 1849, a watchman had been kept on the premises all night, when the time was changed to what was called a quarter watch; and that there were four separate tenants of the building, who em ployed about one hundred and fourteen hands. Two manu - facturers testified that on their premises they employed watchmen to watch all night, from the time the workmen left till they came to work again in the morning. And two witnesses, engaged in the management of a mutual insurance company for insuring manufacturing establishments, testified that, in a large proportion of the establishments insured by them, the custom was to have a watchman enter the building before the workmen left and watch till they returned in the morning. The secretary of the defendants testified that the plaintiff, in a conversation with him about the premises, at the time of applying for this insurance, stated that there was a watch kept there, and mentioned a tank of water kept in the attic, and other facilities for extinguishing fires; and that upon this representation as to a watch, he inserted the clause in the policy upon that subject.</p> <p>Upon the foregoing evidence, the presiding judge instructed the jury, that the clause in the policy on which this case turned was “ a watchman kept on the premises; ” that the clause did not speak of a constant watchman, but a watchman, some watchman; some watchman must therefore have been kept on the premises in order to comply with this clause. It must not have been a pretence merely, or only a colorable keeping of a watchman. But if in good faith and without fraud, a watchman was kept on the premises, and such a watchman, and for such portion of the time, or at such specified hours, as in the honest exercise of ordinary care and prudence, was deemed sufficient for the safety of the building, that would be a compliance with the provision of the policy; and that in order to determine whether or not a watchman was kept on the premises, in good faith and in the exercise of ordinary care and prudence, the jury might refer to the evidence in the case, as to what was common and usual in regard to keeping watchmen in other similar buildings.</p> <p>The jury returned a verdict for the plaintiff, and the defend* ants alleged exceptions.</p>

This was an action of assumpsit on a policy of insurance, whereby the defendants insured the plaintiffs against damage or loss by fire to the amount of $13,100, of which “ $1,500 on their old mill (woollen) and fixtures; $1,500 on machinery therein; and $2,000 on stock therein.” The policy contained the following proviso : “ If the representations made ” in the plaintiffs’ application for insurance “ do not contain a just, full, and true exposition of all the facts and…

<p>This was an action of assumpsit on a promissory note, bearing date the 20th of December, 1848, payable to the plaintiff or order on demand, subscribed by John E. Stanley; and on which the defendant’s name was indorsed in blank. The trial was before Hoar, J., in the court of common pleas.</p> <p>The declaration contained four special counts; in the first of which the defendant was sought to be charged as an original promisor; and in the others as a guarantor. The consideration alleged in the three last counts was a forbearance to sue John E. Stanley.</p> <p>It was in evidence for the plaintiff, that the defendant, on the 19th of February, 1849, paid a part of the note; that at the time of making the payment he said that he had signed a note for his brother John E. Stanley; that he had become surety for his brother to the plaintiff, who furnished him with goods and thereby helped him; that he, the defendant, was secured, and held a bill of sale or a mortgage of the goods and effects of John E. Stanley to secure him; and that the plaintiff was pressing him for payment.</p> <p>The defendant then introduced evidence tending to show that he did not put his name on the note until the 14th of February, 1849. The defendant also put in evidence the deposition of Horace Mecorney, who testified, that, in the latter part of February,.or the early part of March, 1849, the plaintiff called on John E. Stanley to pay or secure a note which the plaintiff held against him; that John replied, that He would try to get his brother Douglas, who was in the next room, to sign with him, and asked the plaintiff if he would accept of that, to which the plaintiff answered that he would; that John then went into the room where his brother was, and both came together, immediately, into the room where the witness and the plaintiff were; that the defendant then said to the plaintiff, that if he would not ask him for payment nor call on him for it in less than six months, he would sign with his brother; that the plaintiff then said he would not, and they made a writing to that effect, which the plaintiff signed; and that thereupon the defendant indorsed his name on the note.</p> <p>The plaintiff, upon these facts, insisted, that the defendant was liable on the first count in the declaration, if not on the others. But the judge ruled and instructed the jury, that if the defendant did hot put his name on the note at the time it was given, but at the time and in the manner stated in the deposition of Horace Mecorney, he was not liable on the first count; and that to sustain the three last counts, it was not sufficient for the plaintiff to prove a forbearance to sue John E. Stanley; but that he must prove an agreement, binding upon the plaintiff, to forbear to sue John E. Stanley; that an agreement not to sue the defendant would not be sufficient; and that there seemed to be no sufficient evidence in the case, from which the jury could infer an agreement to forbear to sue John E. Stanley, leaving that question, however, to the decision of the jury.</p> <p>The jury returned a verdict for the defendant, whereupon the plaintiff alleged exceptions.</p>

<p>This was an action of assumpsit on a special contract in writing, on a count for money had and received, and on the general money counts.</p> <p>At the trial in the court of common pleas, Hoax, J., ruled that the action could not be maintained, upon the evidence in the case, which is sufficiently stated in the opinion. The plaintiffs thereupon alleged exceptions.</p>

<p>An omission to elect a clerk, pursuant to Eev. Sts. c. 38, § 4, at an annual meeting of a manufacturing corporation, which elected a clerk the year before, who continued to act as such during the year in question, does not work a dissolution of the corporation.</p> <p>The only remedy against stockholders of a manufacturing corporation, who are jointly and severally liable for the debts of the corporation, under Eev. Sts. c. 38, § 16, is, either to take their persons and property on a writ of attachment or execution issued against the corporation according to § 30, or to bring a bill in equity against them under § 31; and no action at law will lie against the stockholders on a contract originally made with the corporation.</p>

<p>An indorsement on a writ, the plaintiff in which is not an inhabitant of this state, m these words, “office of A. B.,” made by A. B., an attorney of this court, is sufficient, under Kev. Sts. c. 90, § 10.</p>

<p>The petitioner, on the 19th of September, 1851, filed a petition under oath before Henry Chapin, a commissioner of insolvency for this county, setting forth that she was a creditor of Prince Davis, who was within one year previous a resident in said county, but now supposed to be in California; that her debt, the nature of which she particularly described, amounted to one hundred dollars, and was provable against the estate of Davis according to the provisions of the insolvent laws: That on the 28th of April, 1851, all the right and interest of Davis, in and to certain real estate in the county of Worcester, was attached on mesne process, for the sum of one hundred dollars and upwards, in a civil action founded on a demand in its nature provable against Davis’s estate under the insolvent laws, on a writ sued out of the court of common pleas by Ridolpho Wolfe of New York, and returnable to the last June term of that court: That Davis being then out of the commonwealth, an order of notice to him was taken out, and duly published, returnable at the September term of that court, at which term Davis appeared by attorney to defend the action: And that Davis did not dissolve the attachment within fourteen days from the last named return day. And the petitioner prayed that a warrant might be issued to take possession of Davis’s estate, so that it might be seised and distributed according to law; and that such further proceedings might be had in the premises as the law in such cases prescribes.</p> <p>On this petition an order of notice to Davis was issued by the commissioner, returnable before him on the 25th of September, and was duly served on Davis, who appeared before the commissioner at the time appointed. At the hearing before the commissioner, the allegations of the petition were duly proved; and it also appeared that the real estate attached was described by metes and bounds in the officer’s return. But the commissioner refused to grant the prayer of the petitioner upon the ground that the petition was not filed within ninety days after the expiration of the June term of the court of common pleas; and ordered the petition to be dismissed.</p> <p>The petitioner, on the 30th of September, presented a petition under oath to this court, setting forth the above proceedings ; and praying that the commissioner might be summoned to appear and show cause why a writ of mandamus should not be issued, commanding him to issue his warrant to a messenger to take possession of the goods and estate of Davis according to the provisions of the insolvent laws; and that such other proceedings might be had touching the premises as law and justice might require.</p>

<p>A discharge of an insolvent debtor is invalid, under St. 1844, c. 178, § 8, if the debtor, within one year before the filing of the petition in insolvency, paid or seemed a preexisting debt, although the creditor, receiving the preference, had no reasonable cause to believe the debtor insolvent.</p>

<p>The fifth section of St. 1844, c. 178, providing that no discharge under the insolvent laws of a debtor a second time insolvent, and whose assets fail to pay fifty per cent of the claims proved against him, shall be granted or valid, unless three fourths in value of his creditors, whose claims are proved, shall assent thereto in writing, is not repealed by St. 1848, c. 304, § 9, providing that no insolvent debtor, whose assets do not pay fifty per cent of the claims proved against his estate, shall receive a discharge, unless a majority in number and value of his creditors, who have proved their claims, shaft assent thereto in writing, within six months after the date of the assignment.</p> <p>The creditors, “ whose claims are proved,” the assent of three fourths of whom is required by St. 1844, c. 178, § 5, to the discharge of a debtor a second time insolvent, include only those creditors, whose claims are proved within six months after the date of the assignment, and do not include a creditor, whose claim has been presented for proof, and disallowed by the commissioner, although an appeal has been taken from the disallowance of the claim, which is afterwards sustained, and the claim allowed.</p>

On the petition of Richard Baker and William Baker, co-partners in trade under the name and firm of R. & W. Baker, the commissioner of insolvency for this county issued a warrant to a messenger to take possession of then joint and separate estates, and subsequent proceedings in insolvency were had according to law; and the assets of Richard’s separate estate paid fifty-five per cent on all debts proved against it; but neither the assets of William’s estate, nor of the joint…

<p>Where the charter of a railroad corporation provides that the capital stock shall consist of not more than a certain number of shares, “ the number of which shall be determined from time to time by the directors thereof,” the directors have no power to levy assessments upon subscribers for stock, before determining the whole number of shares.</p>

<p>The first of these eases was an action upon the case brought by the owner of land bordering on a salt water creek, in which the tide regularly ebbed and flowed, to recover damages for injury done to his land and the buildings thereon, by means of the flowing caused by a dam erected by the defendant across the creek, for the purpose of working a mill, solely by the ebb and flow of the tide.</p> <p>The defence was that the creek was a stream not navigable, and that the plaintiff’s remedy was by complaint under the Rev. Sts. c. 116, commonly called the mill act.</p> <p>The parties submitted to the decision of the court the question, whether the defendant could avail himself of this defence, irrespective of the question of the navigability of the creek; with the agreement that if he could not, the defendant should be defaulted; otherwise, the case should go to trial.</p> <p>The case was argued at the October term, 1849.</p>

<p>This was an action of trespass quare clausum fregit. At the trial in the court of common pleas, before Wells, C. J., it appeared in evidence that the plaintiff was tenant at will, and the defendant the general owner, of the locus in quo; and that the wife of the defendant, in company with a person employed for the purpose, entered the house occupied by the plaintiff, and cut off and carried away a copper pump, used for drawing water from the well; no resistance being made, and no violence used. And thereupon the presiding judge ruled, that if at the time of the trespass complained of, the plaintiff was tenant at will of the locus in quo under the defendant, he could not maintain this action. The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p> <p>This case was argued in Boston, in January, 1850.</p>

<p>In a complaint, filed on the 9th of August, 1849, before a justice, of the peace, under Rev. Sts. c. 104, the plaintiff set forth “ that the defendant is in possession of certain lands and tenements” (described,) “which he holds unlawfully and .against the right of the plaintiff.” After a hearing before the justice, and judgment for the plaintiff, the defendant appealed to the court of common pleas. The parties submitted the case to that court upon a statement of facts, which stated that “ this complaint was for forcible entry and detainer of the premises by the defendant,” and from which statement it appeared that the plaintiff, being the holder of several mortgages of the premises from the defendant, entered thereon, on the 14th of October, 1848, for breach of condition of said mortgages, and for the purpose of foreclosing the same. The court of common pleas (Perkins, J., presiding) gave judgment for the plaintiff ; and the defendant appealed to this court.</p> <p>This case was argued and decided at the sittings in Boston in February, 1851.</p>

<p>One occupying land under a parol lease from a tenant at will is estopped to deny his lessor’s right to recover possession of the land on a complaint under Eev. Sts. c. 104, § 4.</p> <p>A release, made after the commencement of a landlord and tenant process under Eev. Sts. c. 104, by one of two plaintiffs to the other, of all his interest in the premises sought to be recovered, is no defence to the action, if not pleaded within the time allowed for a plea in abatement, although specified in defence as soon as it comes to the knowledge of the defendant. And it seems, that such release, if duly pleaded, would not abate the action.</p> <p>Where a lessee at will is the plaintiff, in a proceeding to recover possession of the demised premises, under the Eev. Sts. c. 104, § 4, of a subtenant, and obtains a verdict, a subsequent entry of the superior landlord, and a dispossession of the plaintiff by him, are no bar to a judgment in favor of the plaintiff.</p>

<p>This was an action of assumpsit on a policy of insurance, dated the 15th of February, 1842, whereby the defendants insured Benjamin Wilde against loss or damage by fire, “ under the conditions and limitations expressed in the act of incorporation” of the defendants, (St. 1825, c. 141,) “and subject to the lien upon the buildings insured, together with the land under the same, created by said act, for seven years,” “the sum of $2,000, viz.: $1,000 on his dwelling-house No. 1, and $1,000 on his dwelling-house No. 2, [in Lowell,] payable in case of loss to John A. Lowell, Esq., of Boston, mortgagee.”</p> <p>The trial was in this court, when the following facts were admitted by the parties: In October, 1841, the plaintiff, then owning the land, gave Wilde a bond to convey to him in fee the land on which said dwelling-houses were afterwards erected, and to loan him $2,000 on mortgage thereon, besides the purchase-money; upon Wilde’s erecting buildings thereon of such value that Wilde could procure insurance on them to the amount of $2,000, and upon his procuring such insurance payable in case of loss to the plaintiff; the deed to be given on or before the 1st of April, 1842; and the mortgage to secure the loan and purchase-money to be made at the same time, payable in ten annual instalments, with interest annually. Wilde accordingly erected said dwelling-houses, each of the value of at least $1,500, on said land, and procured this policy thereon. The application, (which was not referred to in or made a part of the policy), was dated at Lowell, the 15th of February, 1842, signed by Benjamin Wilde, and pm-ported to be “ taken and transmitted by Joel Adams, agent; ” and. contained eight printed questions, and written answers thereto, the eighth of which questions and answers was as follows: “ 8. Whether incumbered, by what, and to what amount ? If not incumbered, say so.” Answer. “ Mortgaged to John A. Lowell for $2,000, including about eight thousand feet of land.” This application was filled up by Joel Adams, one of the directors and an agent of the company, and the rate of premium was fixed by him.</p> <p>On the 1st of April, 1842, the plaintiff conveyed said land to Wilde in fee, and loaned him $2,000; and Wilde mortgaged the premises to the plaintiff, to secure the payment of Wilde’s note of the same date for $3,842.75, payable in ten annual instalments, with interest annually; said note being given for the loan of $2,000, and the purchase-money of the land. On this note and mortgage $2,042.75, and interest from April 1,1848, were due and unpaid on the 16th of May, 1848, and still remain unpaid. . On the 12th of April, 1842, Wilde conveyed one undivided half of said land to James Bowers, to whom, on the 21st of March, 1845, he conveyed all his remaining interest in the land. On the night of the 16th of May, 1848, the dwelling-house No. 1, was wholly destroyed by fire; of which the defendants’ directors had due notice, but refused to determine the amount of the loss, or to allow or pay the same.</p> <p>Benjamin Wilde testified, that before he closed the bargain with Lowell, he went, to Adams to see if he could get the insurance before he had a deed of the land; that he then took the bond of the tenor above stated, and showed it to Adams to see if it was right, and Adams examined it; that in February, 1842, he carried the bond to Adams to have the insurance made; that Adams prepared the application, and he signed it, but did not notice it particularly; that Adams had read the bond through, and knew the whole of it; and that the buildings were worth and cost more than $3,000, besides the cost of the land, which was twenty-five cents a foot. It was also in evidence that Adams had notice of the conveyances from Wilde to Bowers, when they were made.</p> <p>Joel Adams testified, that he was an agent and director in the defendants’ corporation; that he wrote the application, and supposed it was drawn from facts stated by Wilde; that he did not recollect what was stated by Wilde, nor that he saw the bond; but that he might have seen it, as Wilde was often in his office; that on the 30th of December, 1846, an assessment was ordered by the company, payable on or before the 30th of January following; that within three or four months after the 1st of January he called on both Wilde and Bowers to pay the amount assessed on the premium note given by Wilde at the time of procuring this policy; but it had never been paid; and that within thirty days after receiving said assessments from the company for collection, he paid them in advance on the same $1,000 at one time, and other sums afterwards, so that, before the time of the fire, he thought he had paid the company all that would be coming to them on the assessments, above his fees. There was no evidence that the plaintiff ever knew of the assessments, or of the conveyances to Bowers.</p> <p>There being no fact in dispute, the case was taken from the jury by consent of parties, to be submitted to the full court, with the agreement that the court, on the foregoing facts, and so much of the above testimony as was competent evidence, might enter such judgment, as in their opinion the law might require.</p> <p>The case was argued at Boston in January, 1850.</p>

<p>The owner of mortgaged real estate obtained insurance thereon, payable to the mortgagee in case of loss, from a mutual fire insurance company, whose by-laws provided that no mortgaged estate should be deemed to be alienated, so as to avoid the policy, until the mortgage should be foreclosed, and that any policy, payable to a mortgagee in case of loss, should continue so payable, notwithstanding any subsequent alienation of the estate. A third person afterwards purchased the equity of redemption, and also obtained an assignment of the mortgage and of the policy. It was held, that the mortgage was thereby merged in the fee, and that no action could be maintained on the policy for a loss subse quently occurring.</p>

<p>The provision of the Eev. Sts. c. 91, § 15, “that the bail” of any person arrested in a civil action, who shall surrender him, as provided in § 12, “ shall within fourteen days after such surrender, deliver to the jailer a copy of the original writ or process whereby the prisoner was arrested,” is directory merely, and not a condition precedent; and a failure to deliver such copy within fourteen days is not fatal to the subsequent proceedings.</p>

<p>A debtor, surrendered by his bail, and discharged on giving bond, pursuant to St. 1837, c. 198, conditioned to surrender himself at the prison on a certain day, commits no breach of such bond by being without the prison limits until that day.</p>

<p>A right of -way, appurtenant to land, over and upon adjoining land, is not extinguished by the vesting of both estates in the same person as mortgagee, under separate mortgages, until both mortgages are foreclosed.</p>

<p>The Merrimack Manufacturing Company having been summoned as trustees of Lawrence, the principal defendant, a workman in their employ, and having been served with a copy of the writ on the 7th, 11th, and 26th of February, 1848; in their answer admitted that they had in their hands, at the time of the service on them, the sum of $33 due the principal defendant for wages, unless the same was transferred to Cochran & Paige, by an assignment, executed by Lawrence, a copy of which they annexed to their answer, and which was as follows : “ Know all men by these presents, that I, Charles Lawrence, of Lowell, in the county of Middlesex, and commonwealth of Massachusetts, laborer, in consideration of one hundred dollars to me paid by Matthew H. Cochran and Simon B. Paige, both of said Lowell, in said county of Middlesex, traders and copartners under the name and style of Cochran & Paige, the receipt whereof is hereby acknowledged, do hereby assign, transfer and make over to the said Cochran & Paige, all that is due me in money from the Merrimack Company, a body corporate in said Lowell, for services rendered, and also whatever may become due me from said company till April the 1st, 1848, and I hereby empower the said Cochran & Paige to receive the money earned by me of the said company for the time aforesaid, and to receipt for the same, in my name and stead on the said company’s books, for the sums earned during the before stated time. Witness my hand and seal this twenty-first day of January, A. D. 1848.”</p> <p>Cochran & Paige having appeared, and been admitted as parties to the suit, claimed the wages in question, by virtue of this assignment. On the trial in the court of common pleas before Byington, J., of an issue framed to test the validity and effect of this assignment, it was in evidence that the assignment was left at the counting-room of the company, in the hands of their paymaster, and was accepted by him on the 7th of February, 1848, and always afterwards, except when in the hands of counsel, had remained in the possession of the paymaster; that the claimants had refused to supply the defendant with goods for his family, unless he would give them an order for his wages; that the consideration for the assignment was a promissory note for $15.32, due from the defendant to the claimants, an account, the amount of which was not stated, and an undertaking by the claimants (which had been complied with by them) to furnish the defendant’s family with groceries from day to day, as they might need.</p> <p>The claimants upon this evidence requested the judge to instruct the jury, that the assignment, being an entire assignment of the defendant’s wages for three months to April 1st, 1848, was an indivisible contract, and by its terms passed to the claimants all the defendant’s interest in his wages, for the term specified, in the absence of fraud; that the corporation were not chargeable as trustees, unless the defendant had a right of action against them, and was therefore entitled to his wages; that the claimants, having an assignment of the defendant’s wages for three months, in consideration of present indebtedness and future advances of goods, had a vested interest in the wages, and that the defendant had no right to the wages,, but that the claimants had such right, and the right of delivering goods to the defendant, in exchange for them.</p> <p>The presiding judge declined to instruct the jury as requested, but did instruct them, that the assignment having been made to secure to the claimants the sum then due to them from the defendant, and also to secure them for what he might thereafter become indebted to them for advances they might make, they would have a right to hold, of the wages due at the time of the service of the writ, an amount equal to the debt due them when the assignment was made, and to all advances made after that time, and up to the time of the service of the writ; and that if the sums so due, and the advances so made were together equal in amount to the sum due for wages, they would not be chargeable as trustees; but if the sums, so due to the claimants from the defendant, were less than the amount in the hands of the supposed trustees, they would be liable as trustees for the difference.</p> <p>The jury returned a verdict for the plaintiff; whereupon the claimants alleged exceptions.</p> <p>This case was argued and decided at the last October term.</p>

<p>In an action on the guaranty of a promissory note, tried in the court of ’ common pleas, and brought before this court on exceptions, it cannot be objected that the declaration contains only the money counts, unless that objection was taken at the trial.</p> <p>Where a guaranty is made on a promissory note before it is delivered by the maker to the payee, no proof of a distinct consideration is necessary in order to charge the guarantor; and in an action against the latter, when the guaranty is without date, and there is no direct proof of the time when it was made, it may be left to the jury to find that it was simultaneous with the note itself</p> <p>The guarantor of a promissory note, who in his guaranty expressly waives demand and notice, is liable to an action thereon without previous demand or notice.</p>

<p>One who indorses a promissory note, inserting over his signature a waiver of demand and notice, is not entitled to any demand and notice on the non-payment thereof by the maker.</p> <p>The maker of a promissory note, as an inducement to the indorser thereof to extend the time of his liability thereon, obtained the note of a third person, and delivered it to the indorser as security for the payment of the first note; and the indorser indorsed the second note to the holder of the first, who agreed to such extension of time. When the second note fell due, the maker thereof refused to pay it until the first note was delivered to him; which was done; and he then paid his note. It was held, that such payment discharged the indorser from liability on the first note.</p>

<p>The general school committee of a city or town have power, under the laws of this commonwealth, in order to maintain the purity and discipline of the public schools, to exclude therefrom a child whom they deem to be of a licentious and immoral character, although such character is not manifested by any acts of licentiousness or immorality within the school.</p>

This was an action of assumpsit, commenced on the 7th of March, 1849.

<p>This was a writ of entry on a mortgage, and was commenced on the 5th of November, 1847. The tenants pleaded the general issue.</p> <p>At the trial in the court of common pleas, before Byvngton, J., the demandants, to prove their case, produced and proved a mortgage to them from Daniel Leland, Jr., and James Luke, Jr., of the land described in their writ, and the notes secured by the mortgage, made by Leland and Luke to the demand-ants. The mortgage and notes bore date the 31st of August, 1846; and the mortgage was duly executed, delivered, acknowledged, and recorded. The demandants then rested their case.</p> <p>The tenants introduced no evidence; and requested the judge to instruct the jury, that the demandants had not made out a primd facie case, and that merely showing a mortgage by Leland and Luke to them of the demanded premises, without showing some possession or seizin or title in the mortgagors, or some connexion between the mortgagors and the tenants, would not be sufficient evidence to warrant a verdict for the demandants. But the judge refused so to instruct the jury, and instructed them, that if they were satisfied by the evidence, that the mortgage was duly executed, delivered and recorded, and that the notes were executed by Leland and Luke to the demandants, and that there was something due to the demandants on the mortgage, they would be entitled to recover.</p> <p>The judge further instructed the jury, that the tenants having pleaded the general issue, the demandants were not required to show that the tenants were in possession of the demanded premises.</p> <p>The jury returned a verdict for the demandants, and the tenants alleged exceptions.</p>

<p>A grant of land was made in 1740 “to the inhabitants of the west precinct in S.” The town of S. then consisted of two parishes; but the east parish was in 1780 incorporated as a separate town. The town maintained a school-house, on the land granted, from 1735 to 1798, and then removed it. In 1823 the town voted to permit the school-district to move the school-house back to its original site, which was accordingly done; and the school-house remained there for eight or ten years, when it was again removed by authority of the town. The west parish was first organized as a corporation distinct from the town in 1836. In 1847 the town built a new school-house on the site originally occupied by the old one. The land in question was part of the common, which had been used as a training field for more than one hundred years, and on which the meeting-house of the west parish always stood. It was held, that the original grant of the land to “ the precinct ” impressed upon it a parochial character; that it retained that character, whilst the corporation exercised the functions of both town and parish; and that, upon the separation, it remained the property of the parish. It was held, also, that the erection of the new school-house having been unauthorized by the parish, the town were not entitled to remove it.</p>

This was an action of trespass for breaking and entering the school-house of the plaintiffs on the 16th and 17th of March, 1848; and was submitted to the court on the following statement of facts: — In the year 1832, the town of Natick was divided into six territorial school districts, of which the plaintiffs were one.

<p>Where the owners of land in a city open and dedicate it to public use, as a root-way, placing a fence across it, which allows foot passengers to pass, but is dangerous to horses and carriages, the city, whether they have accepted the way or not, are not liable for an injury occasioned by the fence to a horse and carriage, though driven with ordinary care and skill.</p>

<p>This was a special action on the case on the Rev. Sts. c. 109, § 78, for the alleged false statements under oath, of the defendant, made by him in answer to a trustee process. The trial was before Mellen, J., in the court of common pleas.</p> <p>The plaintiff having brought an action in the police court of Lowell, in which the defendant was summoned as the trustee, the defendant was defaulted, and the plaintiffs thereupon sued out a writ of scire facias against him, in answer to which the alleged false answers were given.</p> <p>The defendant appeared to the writ of scire facias, and filed a plea or answer thereto, to which he made oath, denying his liability as trustee, and submitting himself to a further examination on oath. Interrogatories were then proposed to him by the plaintiff, which he answered, and was thereupon discharged. It appearing from the writ and declaration, that the plaintiff relied, in support of his action, upon the statements made by the defendant in his said plea or answer, and the examination therein set forth, the defendant thereupon objected that the answer, not being required to be sworn to by law, and not being a part of the examination, could not be made the substantive matter of this action. But the judge overruled the objection.</p> <p>The defendant then objected, that there was a variance between the proof and the declaration, inasmuch as the declaration alleged that the false matter was sworn in the “ trustee examination,” whereas the proof was, that it was in the answer. This objection was also overruled.</p> <p>The plaintiff then introduced evidence tending to show the answers to be false in various particulars; but his whole proof was the testimony of one witness only to each fact; whereupon the defendant requested the judge to instruct the jury, that the defendant could not be proved guilty by the testimony of one witness only; but that something more was needed, than the testimony of one witness, to the falsity of each of the statements, in order to justify a verdict for the plaintiff.</p> <p>The judge declined so to instruct the jury, but instructed them, that if they were satisfied beyond a reasonable doubt, on the testimony of one witness only, that the answer of the defendant was knowingly and wilfully false, in that part thereof, in which the defendant answered that no more than the sum of four dollars and fifty cents was due from him to the principal defendants in the trustee process, at the time of the service thereof upon him, the testimony was sufficient to warrant a verdict of guilty against the defendant.</p> <p>- The jury, under the above and other instructions not material to be stated, returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Admissions by the payee, after indorsement, of a note payable on demand, are not admissible in a suit by the indorsee against the maker, notwithstanding St. 1839, c. 121, § 1, authorizing any matter to be given in evidence in such a suit, which would be a legal defence as against the payee.</p> <p>Where evidence is offered for a specific purpose, and rejected, the party offering it cannot, on exceptions, maintain its admissibility on a ground not stated at the trial.</p> <p>Where one of two partners, during the existence of the partnership, gave a promissory note in the name of the firm for his private debt; and the other partner afterwards, knowing these facts, by a promise to pay the note, induced the holder to forbear attempting to collect it; it was held, that a jury would be warranted in returning a verdict against both in an action on the note, without expressly finding that the note had been ratified by the other partner.</p>

<p>These were indictments against the defendant; the first, for an assault upon William H. Clemence, a constable of Lowell, for the purpose of hindering and opposing him, in the discharge of his duty in the service of a warrant against one Francis Roark, other than the defendant; and the second, for an assault for the same purpose on one Crowell, the assistant of Clemence, in the service of the warrant. Both assaults, if any, were committed at the same time, and the indictments were tried together.</p> <p>At the trial in the court of common pleas before Wells, C. J., the warrant was not produced; and the district attorney, for the purpose of proving its loss, called one Caverly, a justice of the peace residing in Lowell, who testified, that sometime in July previous, he received, at Lowell, a complaint made by one Crowell, for an assault upon him by one Francis Roark, within the city of Lowell; and that he issued a warrant thereon, and delivered it to Crowell. Crowell testified, that he gave the warrant to Clemence, who testified, that he arrested Roark and brought him before the justice of the police court of Lowell, and returned the warrant to the office of the court, and that nothing further was done with Roark upon the complaint and wan'ant; that the defendant did not plead thereto and was not discharged therefrom; that no notice was taken of the warrant; and that a new complaint was made by the city marshal of Lowell, against Roark, upon which Clemence arrested and returned him before the police court of Lowell, taking no notice of the former warrant.</p> <p>Nathan Crosby, Esq., the standing justice of the police court, was called as a witness, and testified, that he remembered no such warrant; that it was not unusual, when a person was' brought before him on a complaint received and warrant issued by a justice of the peace, where such process was considered to be defective or unsuitable, to make out a new complaint and warrant, upon which the accused was arrested and tried; in which case, it was his custom to put the first complaint and warrant on file, without any further action upon it, with the new one issued; that he presumed he had done so in this case; but he had searched diligently and could not find any such warrant, and had no record thereof whatever.</p> <p>The district attorney then offered parol testimony of the contents of the first complaint and warrant, to which the defendant objected; but the judge overruled the objection and admitted the evidence. The district attorney then called the said Caverly, to prove the contents of the warrant. The defendant objected to any such evidence, unless the witness could swear to the contents of the complaint and warrant, word for word; but the judge overruled the objections, and allowed the attorney to prove that there was a precept substantially complying with all the requisites necessary to constitute a warrant.</p> <p>The defendant further requested the judge to rule, that if Clemence did not continue his custody of the said Francis Roark, other than the defendant, in virtue of the warrant upon which he first arrested him, but abandoned that warrant, and arrested and held him under a new warrant for the same offence, he thereby became a trespasser ab initio, so far as the defendant was concerned; and that the defendant could not be convicted upon the indictment, for obstructing an officer in the discharge of his duty in the service of the precept thus afterwards abandoned. The judge refused so to instruct the jury, but did instruct them, that the acts of the officer, under the warrant, before it was so abandoned, were justified by the warrant; and that an interference and opposition to the service of the same before it was so abandoned would support this indictment.</p> <p>The evidence tended to prove, that the complaint and warrant were in the usual form, and were received and issued by said Caverly and made returnable before the police court in Lowell. The defendant requested the judge to rule, that it appearing that the complaint was received and the warrant issued by a justice of the peace, at Lowell, for an offence committed within the city of Lowell, the warrant was illegal and void, because the police court of Lowell had exclusive jurisdiction of such offences ; and that all complaints, for offences committed within the city of Lowell, must be received by some justice of that court, and all warrants upon such complaints and for such offences must be issued by them. The judge declined so to instruct the jury.</p> <p>The defendant, being convicted, alleged exceptions to the foregoing rulings and instructions.</p>

<p>To constitute the offence made punishable by the Rev. Sts. c. 125, § 15, the article* stolen must be carried away by the robber, and must be the property of the person robbed, or of some third person; and these facts must be alleged in an indictment on that section, in the same manner, as in an indictment for robbery, at common law.</p>

<p>Where the damages, awarded by the county commissioners for land taken to construct a railroad, are reduced by a jury, on the application of the railroad corporation, and the verdict of the jury is accepted by the court of common picas, neither party can recover of the other costs accruing after the award of the commissioners ; and the party appealing to this court, from the decision of the court of common pleas refusing to allow such costs, must pay to the other the costs of the appeal.</p>

<p>A writ of error will not lie for error in fact, which contradicts the record, and which might have been put in issue and tried; more especially, where it was actually put in issue and tried; even when, if the error were as alleged, the court that tried the case had no jurisdiction.</p>

<p>This was a bill in equity to compel the specific performance of a contract for the sale of land by the plaintiff to the defendants, and the purchase of the same by them; and wart submitted to the court upon the following facts: —</p> <p>The plaintiff, on the 20th of January, 1847, executed a. bond to the defendants, in the penal sum of one thousand dollars, conditioned that the plaintiff should, on or before the first day of June, 1847, and upon payment to him by the defendants of the sum of two hundred dollars, convey to the defendants, in fee simple, so much of his land in Groton as should be taken under their charter or by authority of law, for the purpose of locating, constructing and completing their railroad with a double track, not exceeding five rods in width.</p> <p>On the 20th of March, 1847, the defendants entered upon the land mentioned in the bond, and took a certain portion thereof for the purpose of locating, constructing and completing their road, pursuant' to their charter, and not exceeding five rods in width. On the 1st of June, 1847, the plaintiff tendered the defendants a deed of the land so taken, conform-ably to the condition of the bond; and requested them to accept of the same, and to pay him two hundred dollars, and to comply with the other conditions of the bond; all of which they refused to do.</p> <p>It was agreed that the bond was not signed or sealed by the defendants, or by any person in their behalf; and that they were not liable in this suit, unless they were so by virtue of the bond, and of their taking the land as aforesaid.</p>

<p>The administrator of a mortgagee, who during his lifetime recovered a conditional judgment on a writ of entry to foreclose the mortgage, may maintain a writ of entry in this court against a disseizor to recover possession of the mortgaged premises.</p>

<p>An administrator, having sold land of his intestate under license from the probate court, in an action against a party who bids it off and signs the memorandum of sale, and then refuses to pay the price, so that the administrator is obliged to sell it again, may recover the full difference in price, if the land sells for less at the second sale than at the first; although the amount obtained at the second sale is sufficient to pay all debts of the testator and charges of administration.</p>

<p>This action, which was tried before Fletcher, J., was brought in this court, on the 10th of November, 1849, to recover damages of the defendants for not making and maintaining two fences, one on each side of their road in Waltham. The action was founded on a contract, dated November 11th, 1843, which is in the following words : “ It is agreed by the Fitchburg Railroad Company, in 'consideration of an amicable settlement with George Lawton of Waltham, for land taken by them for the use of their road; that they will remove from the part of the land now being excavated all the soil for his use; that they will allow him to have the fences and the walls in his ice-house; that they will build and maintain two fences, the one on the south side of the railroad, like the one between him and Mr. Boyden, and one on the north side, like the one on the street that runs nearly parallel with the railroad, and build him a wooden bridge twelve feet wide, and a gate on each end of the bridge.”</p> <p>The defendants relied, as special matter of defence, on a performance. The 'defendants’ road was constructed through the plaintiff’s land in the winter and spring of 1844. The excavation through the plaintiff’s land was twelve or fourteen feet deep. No claim was made by him on account of the bridge, gates or removal of the soil mentioned in the contract, but only for the fences. No fence had been built by the defendants, on either side of the road, at the time this action was commenced, nor had any been built by the plaintiff.</p> <p>After the commencement of this action, to wit, in November and December, 1849, the defendants erected a fence on the south side of their road, and in the spring of 1850 they built one on the north side. These fences respectively were built like those referred to in the contract; and the defendants introduced evidence to show that these fences were erected with the consent and approbation of the plaintiff; but this was denied by the plaintiff, who insisted, and endeavored to show, that he in no way consented to, but opposed the erection of the fences.</p> <p>The defendants, admitting that they did not erect the fences referred to in the contract, until after this action was brought, contended, that having erected them since and before trial, whether with the consent and approbation of the plaintiff oi not, the plaintiff could only recover damages for the injury he had sustained by the defendants not erecting the fences within a reasonable time after the making of the contract, and could not recover the cost or value of the fences themselves.</p> <p>But upon this point the jury were instructed, that if the fences were erected by the defendants, after the institution of this suit, without the consent or approbation of the plaintiff, the erection of them would not take away the plaintiff’s right, as it existed at the time of the institution of the suit, to recover damages for the breach of contract by the defendants, and that the damages, which the plaintiff would be entitled to recover for the failure of the defendants to perform their contract, would be the amount which it would fairly cost to erect the fences according to the contract. A verdict was found for the plaintiff, and the defendants excepted to the said instructions.</p>

This was an action on the case to recover damages for the breach of a written contract, dated the 19th of April, 1844, whereby the defendant, in consideration of certain payments to be made, and notes to be cancelled by the plaintiff, promised to convey to him, within twenty days from the date, certain lands in Stoneham and Malden.

<p>This was an action of assumpsit to recover the amount of a tax assessed upon -the plaintiffs, and paid by them to the defendants; and was submitted to the court upon the following statement of facts: —</p> <p>The Boston and Maine Railroad Extension Company, incorporated by St. 1844, c. 172, located their road five rods wide, and on the 13th of February, 1845, filed the location thereof as required by law. By St. 1845, c. 224, § 1, the company was authorized “ to erect a sea-wall across the flats between the channels of Charles and Miller’s rivers, on the westerly side of their road, as now located, across said flats, one hundred and fifty feet, from the centre line of their bridge, as now built, and parallel thereto, and inclose and fill up the said flats below or easterly of said wall, not exceeding ninety feet easterly of said centre line, for the location of engine-houses, wood-houses, and other purposes for the use of said road.” A sea-wall was built accordingly, and the said flats, which are within the limits of Cambridge, were filled up, and the same are now, and always have been, used exclusively for the purposes of the road. The third section of the act last referred to is as follows: “ The provisions of this act shall in nowise affect the legal rights of any other persons or corporations whatever.” By St. 1845, c. 159, the Boston and Maine Railroad Extension Company and the Boston and Maine Railroad were authorized to unite themselves in one corporation, to be called the Boston and Maine Railroad, which was soon after done.</p> <p>In May, 1849, the assessors of Cambridge assessed a tax on so much of the flats so filled up, as are outside of the limits of said railroad as located by the plaintiff, and was paid by the plaintiffs to the collector of the defendants under protest; and this action is brought to recover the sum so paid with interest. Judgment is to be rendered as the court shall direct.</p>

This was an indictment for a nuisance in placing sand and gravel in a highway in Stow. The defendants pleaded not guilty. The trial was in the court of common pleas before Wells, C. J., who reported the case for the decision of this court on certain questions of law hereinafter stated.

<p>A town voted, in 1741, that the common lands belonging to the town, lying in a certain part of the town, should “ lie forever for the use of that part of the. town for a burying-place and other public uses, as they shall have occasion.” In 1765, the town authorized the inhabitants of that part to fence the burying-ground at their own expense. In 1769, the town voted to that part of the town two acres of the land “to build a meeting-house upon, and for the convenience of said house; ” and this grant was accepted. In the same year a new parish was incorporated, which embraced all that part of the town, and from that time had the uninterrupted possession and use of those common lands; and in 1807, the town passed a vote, recognizing the title of the parish to all those common lands, and authorizing them to retain them. It was held, that the vote of 1741 did not constitute a grant or dedication of the land to the inhabitants of that part of the town; but that the vote of 1807 conveyed to the parish all those common lands, including the burying-ground.</p> <p>A parish, in 1769, erected a meeting-house on land granted them by the town, and some of the parishioners built horse-sheds on the land. In 1801, other horse-sheds were built by authority from the parish. In 1815, the old sheds were destroyed by the wind; and the parish, being about to build a new meeting-house on a new site, voted not to authorize the proprietors of the old horse-sheds to erect them again where they formerly stood, and appointed a committee to regulate the place and manner of building new horse-sheds ; and the proprietors of the old sheds erected new ones, under the direction of the committee, on other parts of the land. It was held, that the parishioners acquired no easement, adverse to the parish, in the land on which their sheds stood, but merely a right under permission of the parish, which the parish might revoke at their pleasure.</p>

<p>This was a writ of entry, brought on the 9th of April, 1850, and was submitted to the court upon an agreed statement of facts, the material part of which was as follows: —</p> <p>Thomas Russell, on the 7th of April, 1796, died intestate, seized of an undivided tract of land in Charlestown, now Somerville, called “ the Three Pole Lane Farm; ” and on the 14th of March, 1797, this farm, together with sixteen other parcels of land of the deceased, lying separate from each other, in various parts of Suffolk and Middlesex, were set off for her dower to Elizabeth, his widow, who afterwards married Sir Grenville Temple. Thomas Russell left four heirs: John Miller Russell, Daniel Russell, Elizabeth, who, in 1797, married John L. Sullivan, the brother of the demandant, and Sarah, who, in 1804, married the demandant.</p> <p>On the 29th of April, 1800, John Miller Russell conveyed all his right, being one fourth of the reversion, in the lands assigned to the widow as dower, to John L. Sullivan, who, on the 22d of June, 1801, reconveyed the same to him. On the 6th of May, 1800, Daniel Russell conveyed to John L, Sullivan all his right, being one fourth of the reversion, in the dower lands; and on the 22d of November, 1802, conveyed to John L. Sullivan “ the reversion of one undivided fourth part” of the Three Pole Lane Farm. In October, 1804, Daniel Russell died, never having been married.</p> <p>Before the year 1807, and after the birth of issue alive, Elizabeth Sullivan had become insane, and has continued uninterruptedly insane to the day of the date of the writ. On the 17th of June, 1807, and the 2d of March, 1810, the legislature passed resolves appointing trustees with authority to convey the real estate of which Elizabeth Sullivan was seized in fee simple, and to release all her rights of dower. The trustees thus appointed were living in 1811, and died before 1846. They never made any conveyance of Elizabeth Sullivan’s right in this farm.</p> <p>In 1809, Elizabeth Temple, widow of Thomas Russell, died. And in 1810, the heirs of Thomas Russell severally entere^ upon certain parcels of the dower lands, and quietly occupied the same; but whether a partition of the dower lands was made, and whether the heirs entered and held as tenants in common, or in severalty, is not agreed.</p> <p>In 1810, Richard Sullivan, as husband of Sarah, by whom he had issue then living, entered on the farm, and occupied the whole of it as a sheep pasture. And he continued to occupy it as a sheep pasture, a cow pasture, and for tillage. He leased many parts of it to brick-makers, and sold the clay to them; and made written leases of other parts to various persons, executed by himself as lessor, and reserving rent to himself alone; and continued so to lease the farm from 1812 to the day of the date of the writ. And since 1810, he has received all the rents and profits of the farm, and has rendered no account thereof; has paid the taxes, and all other charges and expenses, and has claimed no repayment thereof from any person whatever; and during all this time has fenced the land, and run the fences in such directions, and divided the farm into such sections, as he thought fit.</p> <p>On the 1st of January, 1811, John Miller Russell released to Richard Sullivan and wife his interest in two parcels of the dower land, one of which was the Three Pole Lane Farm. In 1819, John L. Sullivan, being insolvent, assigned certain property to Richard and William Sullivan, to secure them against then liability as his indorsers, but no right in the farm was included in the assignment. In 1822, John L. Sullivan left Massachusetts, and never afterwards returned. On the 6th of October, 1823, John Miller Russell executed a deed of his interest in the farm in question to Sarah Sullivan.</p> <p>On the 13th of February, 1824, John L. Sullivan made to the demandant a deed, which the demandant contended conveyed to him all the grantor’s right, title and interest in this farm, but which the tenant insisted passed only the grantor’s tenancy by the curtesy. As the court gave no opinion on this point, the form of the deed is not material to be stated. On the 30th of June, 1830, Richard Sullivan and wife conveyed to Edward Cutter, by metes and bounds, a parcel of the farm. In 1831 Sarah Sullivan died, leaving issue.</p> <p>On the 7th of March, 1846, the legislature, on the petition of Richard Sullivan, authorized John L. Sullivan, in behalf of Elizabeth Sullivan, (still insane), to confirm to the heirs of Sarah Sullivan the title of Elizabeth to three undivided fourth parts of the farm.</p> <p>In 1846, John L. Sullivan petitioned the legislature to authorize some suitable person to sell the interest of Elizabeth in the remaining fourth part of the farm. This petition was supported by the affidavit of the petitioner, taken in New York, to be used on this application to the legislature, in which affidavit he testified as follows: That on the decease of Elizabeth, widow of Thomas Russell, in 1809, her dower interest reverting to the heirs at law, the said heirs, to wit •, John Miller Russell, Elizabeth, wife of said John L. Sullivan, and Sarah, wife of Richard Sullivan, caused Oliver Holdeh and Nathaniel Austin, Jr., to be appointed commissioners to appraise and make division of the dower estate of said widow amongst said heirs, and the commissioners, being duly qualified, proceeded to execute their commission, and thereafter made report of their appraisement and division to the parties in interest, namely: said John Miller Russell having an interest of two fourth parts; and John L. Sullivan, in right of his wife, and Richard Sullivan, in right of his wife, each having an interest of one fourth; and that this appraisal and division, which were set forth in the affidavit, were approved and adopted by the parties in interest or their legal representatives: That the fourth part assigned to Richard Sullivan, in right of his wife, contained three fourth parts of the Three Pole Lane Farm, and the remaining one fourth part of that farm was nowhere mentioned or disposed of in the division; but there was an understanding among the parties in interest, or their legal representatives, that Richard and his wife should take by purchase the interest of the other heirs in this unappropriated part, and they purchased the same accordingly, and paid the full value thereof, and were thereupon put in quiet and peaceable possession of the whole of said farm, and the other heirs, to wit* John Miller Russell, and John L. Sullivan in right of his wife, were also put in quiet and peaceable possession of their respective portions of the dower estate, in conformity with the report of the commissioners: That at the time of the purchase by Richard and wife of the interest of the other heirs in this unappropriated quarter part, the wife of John L. Sullivan was through bodily sickness deprived of her reason, and he therefore, in addition to his own deed of quitclaim of all his interest, executed an obligation in writing by which he bound himself to procure Richard and wife a full title to his wife’s portion of this one fourth part; and that by reason of his wife’s continued disability, he has never been able to fulfil this obligation, nor had he done any thing to secure such title to Richard and his wife and then- children, except to procure to be executed by his children when they came of age, deeds of release of any interest they might at any time have in the land in question by inheritance: And he admitted that the children of Sarah, wife of Richard, were now in equity and justice, in right of their mother, deceased, entitled to the interposition of the legislature, if it should see fit, authorizing a conveyance of his wife’s interest in said farm to them as heirs at law of their mother. The tenant objects that this affidavit is not competent evidence for any purpose whatever.</p> <p>On the 12th of March, 1846, the legislature passed a resolve, authorizing Thomas C. Amory, Jr., to sell and convey the interest of Elizabeth Sullivan in said undivided quarter part. On the 14th of May, 1846, John L. Sullivan made to Edward Cutter a deed pm-porting to confirm his title under Richard Sullivan’s deed of June 30th, 1830; and to the heirs of Sarah Sullivan a deed pm-porting to convey the interest of Elizabeth Sullivan in three undivided fourth parts of the farm. On the 16th of May, 1846, Thomas C. Amory, Jr., executed a deed purporting to convey to the same heirs the interest of Elizabeth Sullivan in the remaining fourth part of the farm. And the title of the other heirs in the farm was, on the 1st of August, 1846, duly conveyed to Richard Sullivan, Jr.</p> <p>In 1846, the demandant and Richard Sullivan, Jr., caused the farm to be surveyed and" laid out into streets and house lots; and advertised the lots for sale as their property; and between August 1st, 1846, and January 1st, 1850, made deeds of eleven parcels of the farm to divers persons, and eight houses were built thereon by grantees claiming under such deeds.</p> <p>On the 14th of January, 1850, an execution issued from the court of common pleas, on a judgment recovered by the tenant against John L. Sullivan, for $2,351, and was levied and extended upon the farm; and three undivided thirty-second parts of the farm were set off to the tenant in satisfaction of the execution.</p> <p>On the 6th of April, 1850, the demandant and Richard Sullivan, Jr., openly entered together upon the farm, and while thereon Richard, Jr. delivered to the demandant a deed releasing all his right, title and interest in the farm.</p> <p>The parties agree that the court may make all such inferences of fact as it would be competent for a jury to make, and that a nonsuit or default be entered, according to the judgment of the court.</p>

This was an action on the case against the defendants, as assessors of the first parish in Sherburne for the years 1846 and 1847, for negligence in assessing the taxes voted by the parish for those years. The case was submitted to the court of common pleas, and upon appeal to this court, upon a statement of facts, in substance as follows: The defendants were duly chosen assessors of the parish at the annual meetings thereof in 1846 and 1847, but were never sworn.

<p>This was ah action of assumpsit to recover the amount of taxes assessed upon the plaintiff, and paid by him to the defendants. The case was submitted to the court of common pleas, from whence it came to this court by appeal, upon an agreed statement of facts, as follows: —</p> <p>The first parish in Sherburne was duly organized as such before the year 1830. On the 27th of March, 1848, the annualmeeting of tne parish was held, at which a clerk, assessors and collector were chosen, and the meeting was adjourned, to the 1st of May, then next, at which time it was held and dissolved. The clerk was sworn at the meeting, and the assessors on the 8th of May following, by the parish clerk, but not at any meeting of the parish; and the collector, in the same manner, on the 8th of October following.</p> <p>Another meeting was called and held on the 20th of April, 1848, at which it was voted “ to raise the sum of seven hundred and fifty dollars for the Rev. Richard C. Stone’s salary and other necessary parish expenses the ensuing year.” This vote was duly certified to the assessors.</p> <p>The plaintiff, on the 21st of April, 1848, legally withdrew from the parish, complying with the.rule laid down in the Rev. Sts. c. 20, § 4.</p> <p>After the 8th of May, 1848, the assessors put up a notice, requiring all persons who were members of the parish on the 20th of April previous, to bring in a valuation of their taxable estates; with which request the plaintiff did not comply.</p> <p>The parish did not at any time pass a vote appropriating the money voted to be raised to any specific expenses, or to any specific object other than that mentioned in the vote. No valuation of the estate of any members of the parish had been called for, nor any tax actually apportioned amqng the members, before the 8th of May, 1848, by the assessors, or either of them. The assessors took the valuation of the taxable estates of the members of the parish, about the middle of May, 1848, and amongst others, that of the plaintiff, and assessed a tax upon him of twenty-nine dollars and sixty-five cents, about the 1st of July following. The tax list was duly committed to the collector with a warrant for its collection.</p> <p>The collector made a demand on the plaintiff for payment of the tax assessed upon him, and the same not being paid, he seized the goods of the plaintiff, who thereupon paid the tax under protest.</p>

<p>This was an action of replevin commenced on the 30th of October, 1849, and returnable at the December term, 1849, of the court of common pleas. The goods sued for were described in the writ as “ nine moulded pine doors, belonging to Henry B. Jaques aforesaid.” The writ was served without any previous appraisal of the goods by a constable of Charles* town, who took a bond in twice the amount of the damages .aid in the writ, which amount was twenty dollars.</p> <p>The cause came on for trial before Merrick, J., at the December term, 1850, and the defendant then, before issue was joined, moved to dismiss the action, on the following grounds : 1st. Because the damages therein demánded did not exceed the sum of twenty dollars; 2d.' Because it did not appear that the value of the goods therein alleged to have been unlawfully taken and detained was more than twenty dollars; 3d. Because there was no appraisal of the goods previous to the service of the writ; and 4th. Because the writ was served by a constable.</p> <p>The plaintiff thereupon moved to amend his writ by adding to the description of the goods sued for the words “ of the value of twenty-five dollars.” The defendant objected to the allowance of the amendment on the ground that the court had no jurisdiction; but the presiding judge overruled the objection and allowed the amendment. The motion to dismiss was then overruled, and the case proceeded to trial. The defendant pleaded the general issue, which was joined, and the plaintiff obtained a verdict.</p> <p>The defendant thereupon alleged exceptions, which he reduced to writing, in substance as above, and presented to the presiding judge for allowance, before the adjournment of the court without day. The plaintiff objected to their allowance, because they were not presented within three days after the verdict, as prescribed by the rules of court; and the judge rejected them on that ground, although he found them to be conformable to the truth of the case.</p> <p>And to this refusal of the judge to allow this bill of excep tions, the plaintiff alleged exceptions, which were allowed and signed by the judge.</p>

This was a petition by the administrator of Susanna Adams against the city of Boston, under the act of 1846, c. 167, “ for supplying the city of Boston with pure water,” empowering the respondents to take land for the purposes of the act, for the appointment of a committee to estimate the damages suffered by the petitioner’s intestate, during her lifetime, by reason of the respondents’ taking a parcel of her land, for the purposes set forth in the act.

<p>This was a petition, under the act of 1846, c. 167, for supplying the city of Boston with pure water, to recover compensation for damages sustained by the petitioner, in consequence. of the taking of her land by the respondents for the purposes mentioned in the act. The estate taken consisted of a piece of land, and also of a mill privilege and land adjoining. The trial was before Merrick, J., in the court of common pleas.</p> <p>At the trial, which resulted in a verdict for the petitioner, under rulings to which the respondents excepted, several questions were made, the only one of which insisted upon in this court was as follows: Three witnesses were severally called by the petitioner to testify to the value of the lands taken; and having stated that they were farmers, that they were the owners of lands adjoining the lands taken by the respondents, and were acquainted with the nature and character of the lands so taken, and that they had heard or known of sales of land in the neighborhood, were then inquired ot what in their opinion was the value of the land taken. This question was objected to by the respondents, but admitted by the judge, and answered by the witnesses.</p>

<p>In an action brought originally in the court of common pleas, on St. 1840, c. 85, to recover damages of a railroad corporation for injury done by fire from their engines to the plaintiff’s land, the plaintiff, if he recover less than twenty dollars damages, is entitled for his costs, under Rev. Sts. c. 121, § 3, to no more than a quarter part of the damages, unless the title to real estate is in fact concerned.</p>

<p>One occupying land, under a joint lease in writing from the owners in severalty of different parts thereof, is estopped to deny the right of his lessors to maintain a joint complaint to recover possession of the land under St. 1847, c. 267, § 2.</p> <p>A notice to quit, for a failure to pay rent according to the terms of a written lease, is not sufficient to determine the lease under St. 1847, c. 267, j 1, if it requires the tenant, “ being in arrears of rent,” to deliver up the premises “ forthwith." And on such a notice no proceeding to recover possession of the premises under § 2 of the same statute can be maintained, although commenced more than fourteen days after the notice.</p>

This was an action of debt on a bond for the prison limits, executed on the 19th of July, 1850, by Tristram Bird, as principal, and Horatio N. Perkins, as surety, conditioned as required by the Rev. Sts. c. 97, § 63, that the said Bird, who had been committed on an execution that issued on a judgment recovered against him by Follansbee, the present plaintiff, would not go without the exterior limits of the jail in Cambridge, until he should be lawfully discharged; and that…

<p>This was a petition for a writ of certiorari to be issued to the respondents, directing them to bring before this court the record of the proceedings of the selectmen of Lexington, and of the town, in the location and establishment of a private way, on the petition and for the accommodation of David Harrington and James Sanderson.</p> <p>The respondents appeared, and moved the court to dismiss the petition, on the ground, that certiorari would not lie, in the case set out in the petition.</p>

<p>The condition of a bond, given in a prosecution under the bastardy act, (Rev. Sts. c. 49,) that the accused shall appear and abide the order of the court, is broken by a failure to pay such money as the court may order for the maintenance of the child, although it does not appear by the record that the accused was de faulted.</p>

<p>This was a review, sued out and tried in the court of common pleas, of a judgment rendered in that court in favor of Lehan against Good, in an action brought on a promissory note, purporting to have been signed by Good as maker, and in which action Good was defaulted.</p> <p>No issue having been joined in the original action, Good, the defendant in that action, now pleaded to the original declaration the general issue, which was joined; and under that issue gave notice that he should deny, and should require Lehan to prove, that he (Good) made, or signed, or in any way executed or became a party to any such note as was mentioned in the declaration.</p> <p>Upon the trial of this issue before the jury, Lehan having produced the note declared on, and a copy of the original judgment rendered against Good on default, contended that he had made out a primá facie case, and that in the absence of all evidence on the part of the defendant, Good, he was entitled to a verdict for the amount of the original judgment. But the presiding judge (Merrick, J.) ruled otherwise, and directed a verdict for the defendant. And to this ruling, Lehan, the plaintiff in the original action, (defendant in review,) alleged exceptions.</p>

<p>This was a writ of review, sued out from the court of common pleas on the 28th of November, 1848, to reverse a judgment recovered in that court at the September term, 1848, by Lehan, in an action brought by him against Good, in which action Good was defaulted.</p> <p>At the December term, 1849, of the court of common pleas, Lehan pleaded in abatement of the writ of review, that the same had been materially altered and changed since the issuing of the same. Upon this fact of the material alteration, issue was joined and submitted to the jury, who returned a verdict, that the writ had not been materially altered and changed since the issuing of the same, in manner and form as the defendant in his plea in abatement had alleged. The plaintiff in review then moved for judgment on the verdict; and on this motion the case was continued to the March term, 1850, when the court ordered that the parties should replead; but the defendant in review refusing to comply with this order, the court gave judgment for the plaintiff in review. And the defendant m review alleged exceptions to the ruling and orders of the court.</p>

<p>A defendant, against whom judgment had been rendered, obtained a supersedeas of execution, on giving a bond conditioned, among other things, to “ sue cut and prosecute to effect a writ of review of the action on which said judgment was rendered, commencing the same to be entered at the next term ” of the court in which the judgment was rendered; and afterwards obtained an order for a review in general terms, without specifying the term at which it should be entered; and not being able, before the expiration of the time of service for the term mentioned in the bond, to procure a service of the writ of review on the original plaintiff at the place where he was informed by his attorney of record that he resided, though he might have served it on said attorney, altered the writ so as tó make it returnable at the next ensuing term of the court, and duly served and entered it at that term. It was held, that this condition in the bond was valid; that it was not controlled by the generality of the subsequent order granting the review; that it was broken by the failure to enter the review at the term specified; and that the facts of the case constituted no justification for such failure, and no defence to an action for such breach.</p> <p>Judgment and satisfaction, in an action on a bond given to dissolve an attachment, constitute no defence to an action on a bond given to obtain a review of the action in which the attachment was made, for a breach of a condition to enter such review at the next term of the court.</p>

<p>This was an action of assumpsit to recover for the board of three of the defendant’s workmen.</p> <p>The defence relied on was, that subsequent to the time when the board was furnished, there was a submission of all demands between the plaintiff and defendant to arbitrators, and an award in favor of the defendant, upon which judgment was rendered for a balance of $17.37, and costs.</p> <p>At the trial, which was in the court of common pleas, before Hoar, J., it was in evidence, that at the time of the submission, the plaintiff had commenced and was prosecuting actions for the amount claimed in this suit against the workmen themselves ; that the hearing under the submission was in June or July, 1848; that at that hearing the plaintiff made no claim against this defendant for this amount, and that it was not mentioned to or considered by the arbitrators; that after the judgment upon the award, at the next December term, there was a trial of the actions against the workmen; that the defendant Savory was a witness in those actions, and testified “ that he engaged the plaintiff to board his help; that it was his own contract and his own debt, that he was liable, and if he had not paid it, he meant to; ” and on being asked what he meant by saying “ if he had not paid it,” replied that he meant, “ if it was not included in the reference, which he could not tell, as he had not the papers; ” that upon this evidence the defendants in those actions prevailed; and that the defence in those actions had not been stated or disclosed till the day of trial.</p> <p>The defendant contended that the submission and award was a conclusive defence. But the judge ruled that upon this evidence the jury would be warranted in finding for the plaintiff. Whereupon a verdict was taken for the plaintiff; and the defendant alleged exceptions.</p>

This was an action of replevin for six cows, commenced in the court of common pleas.

<p>At the December term, 1848, of the court of common pleas, this action, which was assumpsit on a promissory note, was tried, and a verdict returned for the plaintiff, and the defendant moved for a new trial, as appears by a written motion filed in the case, because the verdict was against the evidence, and also on account of newly discovered evidence. No entry of such motion appears on the docket; but at the same term of the court, there is an entry upon it in the following words: “ Verdict set aside and new trial granted.” The action was then continued from term to term, to the December term, 1849, on the docket of which term, there is an entry as follows : “ Judgment on the verdict; ” and the action was thence continued from term to term to the December term, 3 850.</p> <p>At that term, the plaintiff" produced, from the file of papers in the case, the written motion of the defendant for a new trial, with an indorsement thereon, made by the judge before whom the motion was argued, directing in substance that the motion should be overruled and judgment be entered upon the verdict; and the plaintiff thereupon moved that judgment be rendered upon his aforesaid verdict. To this the defendant objected, because it appeared from the entry on the docket of December term, 1848, that the verdict had been set aside and a new trial granted.</p> <p>The plaintiff contended that the entry was erroneous and had been made by mistake; and he offered to the court parol evidence thereof, in addition to the written motion and the indorsement thereon.</p> <p>The defendant insisted that the memorandum on the docket constituted a record of the proceedings in the case; and denied the authority of the court to alter and annul the record of the doings of the court at a former term; and objected to the competency of the evidence offered by the plaintiff to prove the alleged errors and mistakes. But the presiding judge (Merrick, J.) overruled the objections, and received the evidence, and passed, and directed to be entered on the docket, the following order: “ And now it appearing to the court here, that the entry on the docket at the December term, 1848, ‘ Verdict set aside and new trial granted,’ is erroneous and was made by mistake, and that no such order was ever made by the court, it is now ordered that the said minute be struck out and erased, and it also further appearing that the entry in the docket at the December term, 1849, ‘Judgment on the verdict ’ is erroneous, and that the same ought to be arrested, it is ordered by the court here that the said minute be struck out and erased. And now at the present term of the court, it is ordered and determined by the court, that the motion of the defendant for a new trial be overruled and disallowed, and that judgment be now entered on the verdict.”</p> <p>The defendant alleged exceptions to the rulings of the pre-' siding judge.</p>

<p>A . gave a bond to convey land to B. by a quitclaim deed at a day named, on payment of a certain sum of money; on the day named B. offered to pay the money, which he had within his reach and control, though not actually in hand, bat made no formal tender of the money; but A. refused to convey the land simultaneously with the payment of the money, insisting that the money should be paid first. It was held, that B. was entitled in equity to a decree for a quitclaim deed of the land, free from incumbrances created by A. since making the bond.</p>

<p>This was an action of assumpsit to recover certain tolls of the defendant for passing over the plaintiffs’ bridge; and was submitted to the court upon the following facts: —</p> <p>The plaintiffs, by then charter (St. 1824, c. 110), were authorized, among other things, to erect a bridge over the Merrimack River, to have and use a common seal, and to sue and be sued in their corporate name. The third section of then- charter was as follows: “ That, for the purpose of remunerating the said proprietors the money by them to be expended in building and supporting said bridge, a toll be and hereby is granted for the sole use and benefit of said proprietors, equal to that now allowed by law to the proprietors of the Middle-sex Merrimack River Bridge at Pawtucket Falls, which toll shall commence on opening said bridge for passengers, and be continued for the term of seventy years; provided, nevertheless, that the legislature shall have the right, at the expiration of eighteen years, to regulate anew the tolls to be received by said proprietors; and provided, also, that whenever the receipts of toll and income shall have amounted to a sum equal to the expense of building, repairing, and sustaining said bridge, with nine per cent on the first cost, said bridge shall revert to the commonwealth for public use; or whenever the inhabitants of the towns of Dracut and Chelmsford, shall remunerate said proprietors for the expenses of said bridge (deducting what may have been received for toll) the same may be opened free of toll.”</p> <p>On the 27th of May, 1833, the plaintiffs, for certain valuable considerations by them received, executed an instrument under seal to Josiah Wood, Jr., and Israel Hildreth, Jr., the owners of certain lands in Dracut described therein, by which instrument the plaintiffs do “ give, grant, sell and convey to said Hildreth and Wood, their heirs, successors and assigns, that they together with their families shall pass, the Central Bridge in all usual ways wholly free of toll, during the natural lives of the said Hildreth and Wood, if the bridge shall so long remain the property of said corporation; and it is further granted, that all persons, who may now or hereafter reside and have their homes on any of the before described lands, shall pass said bridge wholly free from toll, so long as the same shall be the property of said corporation, in all the usual ways of travel.” This contract contained a condition and covenants, which, it was agreed, had been complied with by Hildreth and Wood.</p> <p>The defendant, as well as his hired servants, who drove and had charge of his team, resided and had their homes in the defendant’s dwelling-house on one of the lots of land described in the agreement with Wood and Hildreth; but the team was boarded and kept in a stable on the opposite side of the way standing on land not included in the agreement, and both the defendant and his servants, in the usual course of business, as they were in the habit of passing from the house and stable to the defendant’s other land in Dracut not described in the agreement, and from thence to Lowell and back, sometimes to the land last named, and sometimes to the house and stable, passed over the bridge, for which the tolls were charged, which were sought to be recovered in this action. The defendants claimed a right, under the contract made by the plaintiffs with Hildreth and Wood, to pass over the bridge free of toll.</p>

This was an action of assumpsit to recover certain tolls of the defendant for passing over the plaintiffs’ bridge, and was submitted to the court upon the following facts: — On the 10th of March, 1832, the legislature passed an act (St. 1832, c. 117,) providing that “ the Central Bridge Corporation shall have power and authority to reduce the tolls, which are granted by the act of incorporation, and to compound the same in all cases in which the said corporation may deem it…

<p>The legislature, in an act dividing a town into two precincts, described the dividing line as “ a straight line,” and appointed a surveyor to run the line, which was done. One of the precincts was afterwards incorporated as a separate town, and the line run by the surveyor was perambulated from time to time by the select- ' men, and acquiesced in by the two towns for more than one hundred years. It was held, that the line run by the surveyor was the true dividing line between the towns, although not a perfectly straight line. It was held, also, that an entry on the records of the town, made four or five years after the passing of the act, and purporting to be a copy of the report of the surveyor, was admissible in evidence, the original report being lost, to prove the line actually run by the surveyor.</p> <p>Where a dwelling-house is so divided by the boundary line between two towns, as to leave that portion of the house in which the occupant mainly and substantially performs those offices which characterize his home, (such as sleeping, eating, sitting and receiving visitors,) in one town, he is a citizen of that town, and has no right to elect to reside and be taxed for his personal property in the other town.</p>

<p>This was an action of assumpsit brought against the defendants, constituting the firm of S. C. Shapleigh & company, by Cyril Coburn, on the 29th of November, 1847, and now prosecuted by John A. Knowles, as his assignee. The declaration contained two counts. The first count alleged that the defendants on the 1st of September, 1842, by an agreement in writing made between them and Coburn, agreed with Co-burn, that if he would, within four weeks, build them a shop on a lot of land in Lowell, of which he had a lease for five years from the 21st of June, 1842, from the Proprietors of the Locks and Canals on Merrimack river, the owners of the land, and of parts of which he had made under-leases to different persons, which had all been assigned by the lessees to the defendant, and would also assign to them all his interest in the under-leases, and if they should be permitted to occupy the shop during the term of three years, free from molestation or payment of rent to any persons whatever, they would, at the expiration of the three years from the completion of the shop, reassign the under-leases to Coburn: That the parties afterwards agreed that Coburn should ■ have further time to complete the building, and that upon completion thereof the defendants would comply with the contract on their part: That Coburn completed the building accordingly, and that the defendants, on the 1st of November, 1842, entered into occupation of the same, and from thence till now had been permitted to use and occupy the shop free from molestation or payment of rent to any person whatever; and that although three years had' elapsed since the completion of the building, and although Coburn, on the 30th of March, 1846, demanded of the defendants a reassignment of the eases; yet, they had not complied with their agreement in this particular, but had neglected and refused so to do. The second count was for use and occupation of the lot of land mentioned in the agreement, from the 1st of November, 1842 until the 21st of June, 1847. The defendants specified in defence the submission and award hereinafter stated.</p> <p>At the trial, in the court of common pleas, before Perkins J., there was evidence tending to prove all the allegations in the declaration. It was also in evidence that on the 26th of January, 1843, Coburn and the defendants executed the submission of which the following is a copy: 11 Whereas a difference of opinion exists between Cyril Coburn, on the one part, and S. C. Shapleigh & company on the other, it is hereby agreed that said difference of opinion shall be referred to George G. Farr, Jefferson Bancroft, and Ransom Reed, as referees, and all papers pertaining to a certain store and lot now occu pied by said Shapleigh & company, together with all the facts in the case, shall be committed to them; and they shaL judge in said case and report to us what in their judgment is just and right to be done between us; and fix the term of time, which the said Shapleigh & company shall occupy said store and lot, as full compensation for what is their rightful due. I, the said Coburn, hereby agree to furnish a good and sufficient lease of said store and lot to the said Shapleigh & company for said term. And we all hereby bind ourselves to abide their judgment; all of which shall be attended to as soon as practicable. If either party fail to comply with this agreement, they shall forfeit and pay to the other party the sum of five hundred dollars.”</p> <p>On the same day the parties were heard before the arbitrators, and the arbitrators made, signed, and delivered to the parties their award, whereby they awarded, “ that the said Cyril Coburn shall give to the said S. C. Shapleigh & company a good and sufficient lease of the store built by the said Coburn, and now occupied by the said S. C. Shapleigh & company, for the term of two years and six months, from the first day of November, 1842, it being in full and sufficient satisfaction for the sum of eight hundred and fifty dollars, paid by the said S. C. Shapleigh & company,” (the items oí which were specified in the award, one of the items being for “ loss sustained by said S. C. Shapleigh & company, on account of the delay of the said Cyril Coburn to fulfil his contract in the erection of said store, fifty-five dollars,”) “ and that the said Cyril Coburn is to have until the tenth day of February next to furnish the said Shapleigh & company with a good and sufficient lease of the aforesaid store with all the appurtenances thereunto belonging.” There was evidence tending to show that the plaintiff had complied with the award on his part, and that the defendants refused to comply with it.</p> <p>The presiding judge ruled, that on the foregoing facts the plaintiff could not maintain his action on the special count for the breach of the agreement, because the agreement declared on was merged in the agreement to refer and the award thereon; and that he could not recover on the other count, for the use and occupation of the land and buildings in question after the expiration of the two years and a half mentioned in the award. The jury returned a verdict for the defendants, and the plaintiff alleged exceptions.</p>

<p>In an action of trespass, a count for breaking and entering the plaintiff’s dwelling-house, and taking and carrying away goods therefrom, is not supported by proving a trespass in taking and carrying away goods only.</p>

<p>In this case, which was argued at a former term, by J. G. Abbott, for the plaintiff, and B. F. Butler, for the defendant, on exceptions taken by the plaintiff to the rulings of the court of common pleas, the facts are sufficiently stated in the opinion.</p>

<p>This was an action of trespass quare clmsum fregit, originally brought before a justice of the peace; and was submitted to the court of common pleas, and, upon appeal, to this court, upon the following statement of facts: —</p> <p>“ It is admitted that the plaintiffs are the proprietors of the tract of upland described in their writ, with the flats adjoining, at Powder Point, so called, in Duxbury, bordering upon the bay. The defendants, inhabitants of Duxbury, wrent in their boat upon said flats, and there, at low water, dug five bushels of clams, and put them into their boat, and carried them away. The place where the defendants dug these clams was between high and low water mark, and within one hundred rods of the shore of the plaintiffs’ upland. If the court shall be of opinion that the defendants had a right so to dig and carry away said clams, the plaintiffs are to become nonsuit; otherwise, the case is to be sent to a jury.”</p> <p>The arguments were made at Boston, in January, 1849.</p>

<p>A writ, in a civil action pending before a justice of the peace, which directs the officer “to attach the goods or estate of [blank] to the value of twenty dollars, and for want thereof to take the body of the said W. D.,” may be amended, by leave of the justice, by inserting the defendant’s name in the blank space. •</p>

<p>Where a mortgagee, before the Eev. Sts., with the consent of the mortgagor, made open and peaceable entry upon the mortgaged premises, in the presence of the mortgagor and of two witnesses, and took actual possession thereof, for a breach of condition, and for the purpose of foreclosure, and the mortgagor signed a certificate of the same to the mortgagee; it was held, that the mortgage became absolute at the end of three years from such entry, although the mortgagor after wards remained in the occupation of the premises, in the same manner as before, for a longer period than the three years.</p>

<p>This was a petition for a mandamus. The petitioner set forth that in 1846 the county commissioners of the county of Bristol laid out a section of the Taunton and Providence turnpike as a common highway, which was duly accepted and recorded by the commissioners at their meeting in September 1846. The petition then set forth various orders of the commissioners afterwards made, as appearing on their records, ordering the town of Taunton to make and repair said road, appointing an agent, in default of the town, to make and complete the same, allowing the account of the agent, and ordering a warrant to issue against the town for the sum paid to the agent, which last order was passed on the 5th of April, 1848; and that this warrant was returned duly satisfied.</p> <p>The petitioner then averred that he was seized of a certain tract of land adjoining said highway; “that he was injured in his said property by means of the making and completion of the said highway; that before and at the time of the completion of the said highway, the petitioner notified the saidv commissioners of his claim for damages in consequence of the injury so sustained by him, and that at the same time he notified the selectmen of Taunton of his said claim: That the said selectmen came to no determination till March, 1849, when they determined to award the petitioner no damages for his injury as aforesaid; but whether the said commissioners have found any determination or estimate of his said damages their records do not show, and the petitioner is not informed: ” That at a meeting of the commissioners, held on the 15th of August, 1849, he filed his petition praying for a jury to assess his damages, which petition was dismissed on the 25th of September, 1849; and on the same day the petitioner filed his petition, praying the commissioners to complete and make known to him their estimate of his said damages, which petition was also dismissed.</p> <p>The prayer of the petition was that this court would issue a writ of mandamus, commanding the commissioners to complete and make known their estimate of the petitioner’s damages as" aforesaid, and to issue their warrant for a jury to assess the same.</p> <p>This case was argued and decided at the last October term.</p>

<p>On a bill in equity, brought by the owner of a mill-dam, to restrain a town from opening certain sluice-ways therein on the ground that the dam, by raising the water over certain highways, is a nuisance, a temporary injunction will not be granted, or, if granted on application ex parte, will be dissolved, when it appears that the refusal to grant, or the dissolution of the injunction cannot lead to any injury, or cause any loss to the plaintiff, which cannot be repaired in damages, or affect the merits of the controversy on a trial in due course.</p>

This was an action on a probate bond given by the defendants on the 4th of February, 1817, as administrators of the estate of Benjamin Bennett. The action was for the benefit of .Henry Bennett, a son and heir at law of the deceased, born November 16th, 1814.

<p>One who agrees to work for another a year for a certain sum named, payable monthly, if the former wishes, may at any time during the year demand payment of the wages due him for the entire months then elapsed; and his right to monthly payments is not waived by neglecting to demand the same monthly.</p>

This was an action of assumpsit, to recover the sum of thirty-one dollars and sixty-nine cents, for the support of Joseph C. Barney, a pauper, whose settlement was admitted to be in the town of Eehoboth.

<p>In this case, which was a complaint under the Rev. Sts. § 116, to recover compensation for damages occasioned by flowing the complainant’s land by the respondents’ dam, the respondents pleaded in abatement, that if any such dam was kept or maintained, or such damage done, as alleged in the complaint, it was by the respondents jointly with certain other persons named; and that such persons should have been joined in the complaint as respondents. To this plea there was a general demurrer and joinder, on which the court of common pleas gave judgment for the respondents, and the complainant appealed.</p>

<p>A discharge of an insolvent debtor from “ all debts founded on any contract made by him,” obtained under proceedings in insolvency instituted by him in his individual capacity and also as member of a late firm, discharges him from his liability for the debts of such firm.</p> <p>Where a discharge in insolvency was pleaded to a subsequent action against the debtor, and was sought to be impeached on the ground that the debtor did not file schedules of his debts and assets before the commissioner; a statement in the record of the proceedings before the commissioner, that the debtor did produce such schedules, was held to be sufficient evidence of that fact, in the absence of evidence to the contrary.</p>

<p>This was an action of assumpsit, commenced in the court of common pleas on the 11th of March, 1850, on a promissory note for two thousand dollars, dated July 1st, 1848, and payable to the plaintiff on demand with interest.</p> <p>At the April term of that court, 1851, the defendant pleaded a certificate of discharge under the insolvent laws, granted to him on the 23d of November, 1850, under proceedings commenced about the end of April, 1850.</p> <p>The plaintiff, by way of replication to the defendant’s plea, and in avoidance of the discharge, filed specifications, charging that the defendant did not deliver all his property to the messenger appointed by the commissioners of insolvency, but withheld a large amount thereof, (the items of which were specified), for his own use; also that the defendant, being insolvent and in contemplation of insolvency within six months previous to the commencement of said insolvency proceedings, paid large sums of money and conveyed a large amount of property, (the particulars of which were mentioned,) to divers persons named, being existing creditors of the defendant, intending thereby to prefer said creditors.</p> <p>The defendant objects that inasmuch as the plaintiff presented and proved his claim before the commissioner of insolvency, while this action was pending in court, (which fact is admitted,) the plaintiff cannot further prosecute this action. The defendant further objects, that the matter of the allegations now made by the plaintiff, having been inquired into before the commissioner by the creditors in person or by attorney, and having been passed upon by the commissioner, and no appeal having been taken by the assignee or by any other person from the decision of the commissioner granting the discharge, the plaintiff cannot in this action reexamine the case before this court.</p> <p>The parties submitted the case to the court upon the foregoing statement, with the agreement that such judgment might be rendered thereon as the court should deem proper.</p>

This was assumpsit on a promissory note for $200, made by the defendant to the plaintiff, and dated June 24th, 1841. The defendant specified in defence a discharge by a release, dated the 24th of November, 1842. At the trial in the court of common pleas, before Mellen, J., the plaintiff, to maintain the case on his part, read the note declared on, and a paper signed by the defendant, of which the following is a copy: “ January 25,1843.

<p>A conviction of the offence of maliciously obstructing the passing of cars on a railroad does not render the convict an incompetent witness.</p>

<p>A marriage in this state by a woman, previously married in another state, and there divorced for acts of hers which would not be a cause of divorce in this state, is valid here, though contracted while her former husband is still living.</p>

<p>This was a writ of entry to recover three lots of land in Attleborough. The opinion of the court exhibits the whole case.</p>

This was assumpsit on a policy of insurance. The declaration contained two counts, the first of which set forth the interest of the plaintiffs in the premises insured at the time of the insurance and of the fire, the making of the policy by the defendants, whereby they promised the plaintiffs, within three months after a loss by fire and notice thereof in writing, to ascertain and determine the amount of the loss and pay the same to the plaintiffs; a loss by fire within the…

<p>This was an action brought in the court of common pleas by a counsellor at law, to recover for his services in defending the wife of the defendant against a libel for a divorce a vinculo, filed against her by the defendant, in which the wife prevailed, and obtained a judgment dismissing the libel. At the December term, 1850, the court of common pleas ruled that the defendant was not liable for these services, and gave judgment in his favor. The plaintiff appealed to this court.</p>

This was an action of assumpsit, brought to recover the amount of an account annexed to the writ, and tried in the court of common pleas before Mellen, J., who signed the following bill of exceptions: — “ To sustain the action, the plaintiff’s book of original entries supported by his suppletory oath was offered in evidence.

This was a proceeding on the Rev. Sts. c. 104, commenced before a justice of the peace, and submitted to the court of common pleas upon the following facts: David B. Kempton, then and still seized in fee of the premises in question, on the 19th of March, 1850, made a written lease thereof to the plaintiff for the term of two years.

<p>A deed, attested by two subscribing witnesses, who are both out of the comrc on wealth, may be read in evidence to the jury, upon proof of the handwriting of the grantor and of one of the Witnesses.</p>

This was a petition for partition of land, which the petitioners claimed to hold under a deed from Obed Richardson. At the trial before Merrick, J., in the court of common pleas, the petitioners produced the deed. One of the respondents, Leonard, required them to produce both the subscribing witnesses to the deed, they being both in court, one of whom was the attorney for the petitioners.

This was an action of debt on a bond to abide the award of arbitrators, appointed by a written agreement between the parties “ to ascertain and determine, first whether any damage recoverable at law has been done to [certain] meadow lands of said Lincoln; secondly, whether said damage, if any, has been caused by the operation of the mill or works or business of said company; and, thirdly, if any damages, as aforesaid, have been thus caused, to determine and award what amount…

<p>Evidence is not admissible to show, that the name of the grantee in a deed was inserted therein, in consequence of a mistake of the scrivener, in the place of that of another person, who was intended as the grantee, and who entered upon and afterwards occupied the land.</p>

<p>A refusal of the presiding judge to rule, on a motion to that effect, made by the defendant before offering any evidence, that the plaintiff, on the evidence introduced by him, cannot maintain his action, is not a subject of exceptions.</p> <p>A father, owning certain horses and carriages, put them into the possession of his son to enable him to earn his livelihood, making no stipulation as to. the length of time during which the son should keep the property, and telling him that whenever he (the father) should be put to any expense on account of it, he should take it away and sell it. The son established a livery stable accordingly, paying the expenses himself, and taking the profits to his own use ; and on one occasion let a horse and carriage to go to a particular place; but the hirer drove them to another place, where they were attached as the son’s property, on a writ against him, and the attaching officer refused to give them up, when demanded by the father. It was held, that the father had such a right of posses sion as entitled him to maintain trbver for them against the officer.</p>

<p>A bill of exchange, drawn by the master of a vessel on her owners, for supplies furnished in a foreign port, if not accepted or paid, but protested for non-acceptance and for non-payment, and brought into court and filed, is no bar to an action against the owners for the supplies so furnished.</p>

<p>This was assumpsit by the assignee in insolvency of Henry W. Coggeshall, on a promissory note, dated June 3, 1847, signed by Charles Richmond, payable in six months to the defendant, and by him indorsed in blank.</p> <p>At the trial in the court of common pleas, before Merrick, J., the plaintiff, to prove his case, called James P. Ellis, a notary public, who testified, that on the evening of the 6th of December, 1847, he received the note from the cashier of the Bristol County Bank, in Taunton, for protest for non-payment ; that he applied at the place .of business of the maker, and finding it closed, and no one there to pay the note, he protested it, and put into the post-office a notice addressed to the defendant at Dighton; that he did not know where the defendant lived; that he made no inquiries, but that the cashier directed him to notify the defendant at Dighton.</p> <p>In defence, it was proved, that there were two post-offices in Dighton, one called Dighton, and the other North Dighton office; that the defendant lived several miles from both offices, but about one mile. nearer to that at North Dighton; that he carried on the White Birch Factory, which was nearer to the North Dighton office; and he produced evidence, that many letters and papers were addressed to him by his correspondents at the North Dighton office, and that he took and received them from that office. The post-master at North Dighton testified, that the persons in the neighborhood of White Birch Factory pretty much all got then letters at North Dighton; that the other post-office, was near Dighton lower four corners. But no evidence was offered by either party to show whether letters and papers were or were not addressed to the defendant by his correspondents at the Dighton office; or whether the defendant did or did not receive such letters and papers from that office.</p> <p>The defendant also called Henry W. Coggeshall of Taunton, who testified that he owned the note when it became payable and until he became insolvent, and that it was in the bank for collection; that he knew at that time that the defendant was carrying on business at North Dighton, and that if inquired of, he should have directed the notice to him at North Dighton.</p> <p>The judge instructed the jury, that the general rule in relaiion to indorsers was, that seasonably placing a letter containing the notice in the post-office, directed to the town in which the indorser resides, is a sufficient notice ; but if he resides in a town in which there are two or more post-offices, then the letter may be directed to the town, without specifying to which office it should go, unless, upon reasonable inquiry, it could oe ascertained that he was accustomed to receive his letters at one of the offices only in the town, in which latter case it should be sent to th‘e accustomed office, and not elsewhere. And in reference to this particular case, the judge instructed the jury, that it was a question of fact, for them to consider and determine, upon the whole evidence submitted to them, whether the defendant was accustomed to receive his letters from the North Dighton office only; and that if, upon all the evi dence, it was left in doubt and uncertainty whether the defendant was or was not accustomed to receive his letters from each and both the offices in Dighton, the letter from the notary having been directed to Dighton, without designation of the particular office to which it was to go, the notice must be held to be sufficient. But if they were satisfied that the defendant was accustomed to receive his letters only from the North Dighton office, and that that fact could upon reasonable inquiry have been ascertained, then the notice must be held to be insufficient, and their verdict must be for the defendant.</p> <p>The verdict was for the plaintiff, and the defendant alleged exceptions.</p>

This was an action of debt in the court of common pleas on a judgment recovered at the December term of that court for the county of Bristol, 1850.

<p>This case was argued at Boston, in January, 1852, and is stated in the opinion of the court, so far as is material to the understanding of the points of law decided.</p>

Petition for partition. The respondent pleaded sole seizin in himself, denying the title of the petitioners. George H. Winchester and wife, seized in the right of the wife, and claiming as their share one ninth and also one seventy-second of the premises of which partition is sought, were two of the oetitioners.

This was a proceeding to assess the damages occasioned to the complainants, an incorporated parish, by taking for a highway a portion of their land, bounding on land of a private person, and on part of which horse-sheds had been erected by some of the parishioners, by license of the parish.

This was an action of assumpsit on a policy of insurance, dated the 24th of December, 1846, whereby the defendants insured the plaintiffs ten thousand dollars upon their ship, the Isaac Allerton, for one year, from the 16th day of the same December, at noon, against the perils of the sea, and the other customary perils.

<p>The authority of a prochein ami to prosecute a suit may be revoked by the court.</p> <p>The court, on the petition of a minor of twenty years of age, in whose name, but without whose consent, a suit has been brought by a prochein ami, will withdraw the authority of such prochein ami, and stay all further proceedings in the suit, when it does not appear that the rights of the minor will be affected by a postponement of the proceedings until majority.</p>

In this case which was argued and decided at the last October term, on exceptions taken by the respondents to the rulings of Byington, J., in the court of common pleas, the material facts are stated in the opinion.

<p>This was an action by the payee against the maker of a promissory note.</p> <p>The defendant alleged that the note was an accommodation note, given by him to the plaintiff as a loan without consideration; and also filed an account in set off. It appeared by the writ, that the defendant was held to bail thereon, the oath for that purpose being made, on behalf of the plaintiff, by George Dodge, by whom the writ was also indorsed as follows: “ Mr. Officer. Attach sufficient property, or hold to bail. Per order of George Dodge, for said Snow.” The action had been referred to an auditor, who reported that the plaintiff was entitled to recover the amount of the note with interest, and that the defendant had failed to prove any and every item of his set-off.</p> <p>The trial was in the court of common pleas, before Hoar, J., when the defendant, on the ground that the auditor’s report made a primd, facie case for the plaintiff, moved for the opening and close; but the defendant also stating that the consideration of the note was denied, the judge refused the motion, and the plaintiff opened and closed.</p> <p>George Dodge, being called as a witness for the plaintiff, stated upon his examination upon the voir die, that the note in suit had been used as collateral security to secure a note to the Dorchester and Milton Bank, upon which he was indorser and Snow promisor, and had been held by the bank as such collateral security, until the note so secured was paid by Dodge at the office of the plaintiff’s attorney, where the note in suit was then left by the cashier of the bank; and Dodge then or soon after, as agent for Snow, caused this suit to be brought in the name of Snow, by whom the note was indorsed in blank; that he, as agent for Snow, had paid money for the expenses of this suit; that the money so expended by him had been returned to him by Snow; and that he had no interest in this note or suit, but as agent for Snow; and that there were cross claims subsisting between him and Snow, but he could not state which owed the other. The witness was thereupon objected to by the defendant, but admitted by the court.</p> <p>Dodge testified, that after he had caused this action to be brought as aforesaid, the defendant called upon him, and offered to settle this action by paying the costs and one half of the note in cash, and giving his note, with a good indorser, for the residue, and said that he would pay the note last named as soon as his hands could earn it; and that the defendant, during this conversation, said he owed the note in suit. This testimony was specifically objected to by the defendant, but was admitted by the court.</p> <p>The jury, upon the evidence above stated, and other evidence not material to the understanding of the points of law decided, returned a verdict for the plaintiff. The defendant alleged exceptions.</p>

Alvah Kittredge and Francis C. Head, summoned as trustees of the principal defendant, disclosed in their answers, that they were two of the five commissioners of the Roxbury Cemetery, with whom the principal defendant had made a contract in writing, on the 10th of May, 1848, to fence the lots in the cemetery at a certain price; “said fence to be completed by the 15th of June next ensuing; when payment is to be made, or as soon after as the money can be collected from…

<p>The parties to a sale of land, at the time of the delivery of the deed and the giving of a note for the purchase money, executed an agreement in writing, stipulating that if it should be determined, in a suit then pending between other parties, in which one part of a certain line was in issue, another part of which affected the boundaries of the premises conveyed, that the grantor was not entitled to a certain part of the land included in the deed, he should repay to the grantee a certain portion of the purchase money. It was held, that by this agreement the grantor’s right and title to convey was made to depend upon the final decision of the suit between the other parties ; and that if such decision was unfavorable to the grantor, it might be shown in defence, pro tanto, to an action on the note given for the purchase money.</p>

<p>This was an action on the case, tried before Fletcher, J., and, by consent of parties, taken from the jury and reserved for the consideration of the whole court, upon the defendants’ objection, that the declaration disclosed no cause of action. If the court should be of opinion that the action could be maintained, the case was to be sent to a jury; otherwise, the plaintiff was to become nonsuit.</p> <p>The declaration was as follows:</p> <p>In a plea of the case for that, at the time of the wrongful acts and doings of the defendants hereinafter mentioned, there was and still is a town way within the limits of said town, which was duly laid out and accepted, and which said defendants are and at the time of said acts and doings were, legally bound to keep in good and sufficient repair, leading from a point on the Norfolk and Bristol turnpike, in that part of said town known as South Dedham, by, to, and through the lands of the plaintiff hereinafter mentioned; and on the first day of February last, and from that time till the day of the date of this writ, the plaintiff was and still is seized in fee simple, and possessed, and the owner of a large tract of land situated on said town way, being in all about twelve acres, and being the land formerly owned by one Elijah Bullard, and was entitled to, and needed to use and enjoy said way to his said lands; and on said first day of February, and from that date till the date hereof, said town did wrongfully and negligently suffer said town way, at and about the place where said railroad crosses the same near the land of the plaintiff, to be out of repair, dangerous, and impassable altogether, and said defect and want of repair had existed for more than twenty-four hours prior to said first of February, and said town had had reasonable and sufficient notice thereof; and by said want of repair and defect, said town way being dug entirely away to a great depth at said crossing, the plaintiff was for a long time, and is still, deprived of all access to his land aforesaid, and has lost the income thereof, and has lost the sale thereof and said land has been and is greatly lessened in value; and the plaintiff has been put to great trouble and expense in getting to his said lands in other ways, and has been otherwise greatly damaged, to the amount in all of four thousand dollars , and thereby, and by force of the statute of this commonwealth in such case made and provided, an action has accrued to the plaintiff, to recover double the damage by him, as aforesaid, actually sustained, yet the defendants, though requested, have not paid the same, but refuse so to do.</p> <p>And also for that, heretofore, viz., at the time of the wrongful acts and doings of the defendants hereinafter mentioned, the plaintiff was seized in fee and possessed of a certain tract of land in that part of said Dedham called South Dedham, being the premises purchased by the plaintiff of one Elijah Bullard ; and at the same time there was a certain way leading from the Norfolk and Bristol turnpike to said premises, which said way the defendants were and are legally bound to keep in repair, yet the defendants, on the first of February last, and on divers other days and times from that time to the date hereof, contriving in meaning to wrong and injure the plaintiff, did wrongfully and negligently fail to keep said way in repair, though the plaintiff was, as the defendants well knew, lawfully entitled, with his servants and agents, to pass the same, and needed to pass the same to come at his said lands, and omitted to repair the same, and permitted a great chasm to be dug across the same to a very great depth, being as the plaintiff believes, some fifty feet deep, and some two hundred feet wide, so that said way was utterly impassable, whereby the plaintiff was prevented from getting to his said lands, and thereby lost the rents and profits thereof, and lost the sale thereof; and his said lands were greatly lessened in value, and the plaintiff was actually damaged to the amount of four thousand dollars; and the plaintiff avers that the said want of repair had existed more than twenty-four hours prior to said first of February, and that said town and its lawful agents had notice thereof, whereby, and by force of the statutes, the plaintiff is entitled to have and recover of said town double the amount of his actual damage aforesaid; yet the defendants, though requested, have not paid the same, but refuse so to do.</p> <p>And also for that, at the time aforesaid, there was a certain highway leading from said turnpike to the lands of which the plaintiff was and is seized and possessed, which said highway the defendants were and are bound by law to keep in good and sufficient repair, and through and over which, at said times, the plaintiff, with hil servants and agents, had the right and had need to pass; yet the defendants, un mindful of their said duty, did not keep said way in proper repair, but suffered the same to be and remain for a long time and more than twenty-four hours out of repair and in an impassable and dangerous condition, whereby the plaintiff and his servants and agents were unable to pass the same, and whereby the plaintiff was greatly damaged and deprived of the use and benefit of his said lands, and lost the sale thereof, and the same was greatly lessened in value, whereby the plaintiff suffered four thousand dollars actual damage, and by the force of the statute is entitled to recover of the defendants threefold the amount of the said actual damage.</p>

<p>This was an action of assumpsit, to recover for the expenses incurred by the plaintiffs in the support of one Edward A. Capen, a pauper, in the State lunatic hospital. The only question was, whether the pauper’s settlement was in Canton or Dorchester. The case was tried in the court of common pleas, before Byington, J.</p> <p>The pauper was born on the 24th of July, 1822, and derived Ms settlement from Ms father, Ephraim Capen, who, it was admitted, had his settlement in 1821, in the town of Dorchester.</p> <p>It was admitted, by the plaintiffs, that Mille Billings, the widow of Otis Billings, deceased, had her dower in his estate assigned to her in April, 1821, in pursuance of a warrant from the probate court; that the estate so assigned to her as dower was situated in Canton; that she was married to Ephraim Capen early in October, 1821; that, from that time until the decease of Ephraim, on the 3d of June, 1840, she resided with her husband on the dower estate; that, in the years 1822, 1823 and 1824, EpMraim Capen paid the taxes assessed thereon; and that Mille Capen continued to reside on the same from the death of Ephraim to the time of the trial.</p> <p>The plaintiffs then put in evidence a deed of the dower estate from EpMaim and Mille Capen to Jonathan Capen, the father of the latter, bearing date the 25th of June, 1822, and recorded on the 28th of the same month.</p> <p>The defendants thereupon introduced evidence to prove that Jonathan Capen paid no consideration for the conveyance, and that it was made to protect the estate from being attached by the creditors of Ephraim, who was insolvent. The defendants contended, that Jonathan Capen gave back to the grantors a writing under seal of the same date with the deed, (which writing was never recorded,) reciting the deed from Ephraim and Mille to him, acknowledging that the conveyance was made for their benefit, and agreeing to re-convey the estate to them on demand. This instrument was not produced; but the defendants offered secondary evidence of its contents, the particulars of which are not material to be stated.</p> <p>The judge instructed the jury, that if Jonathan Capen paid no consideration for the deed to him' of the 25th of June, 1822, but that conveyance was made to him to keep the estate from the creditors of Ephraim, and for his benefit, and if such an instrument of reconveyance was executed under seal simultaneously with the deed to Jonathan, then it was such an equitable estate of freehold, that Ephraim acquired a settlement in Canton, by three years’ residence thereon subsequent to the year 1821.</p> <p>The jury found that the paper in question was executed and delivered simultaneously with the deed from Ephraim and Mille to Jonathan Capen; and a verdict being thereupon returned for the defendants, the plaintiffs excepted.</p>

<p>A minor child, having the settlement of its deceased father, does not lose it, and acquire the settlement of its mother, on her gaining a new settlement by a second marriage.</p>

<p>Certiorari will not lie from this court to the prohate court.</p> <p>A writ of certiorari will not be issued on the application of a minor, whose guardian ad litem, duly appointed for the occasion, assented to the proceedings sought to be quashed.</p>

<p>County commissioners, in laying out a turnpike as a highway, have no power to require a town to tend the draw in a bridge over a navigable river and to keep lamps lighted thereon, in the same manner as the turnpike corporation were required by their charter to do; and if the commissioners, as a part of such laying out, require this of the town, the whole laying out is void, and their proceed ings will be set aside on certiorari.</p>

<p>A mill owner, who erects a reservoir dam on his own land, across a natural stream other than the stream on which his mill is situated, and constructs an artificial channel from the reservoir to his mill pond, for the purpose of conducting water from the reservoir to his mill, and also to enable him to use the reservoir for the purpose of holding the surplus water of the mill pond, is liable, notwithstanding the mill act (Rev. Sts. c. 116), to an action on the case for the flowing thereby occasioned of the land of another person situated above the reservoir on the stream across which the. reservoir dam is built.</p>

<p>This was an action of replevin, commenced in the court of common pleas, for “ all the glass ware now in the Norfolk Glass Works in Roxbury, and the buildings belonging to said works; all the moulds in said said glass works so called; all the sand, rosin, soda ash, lime, and other materials for the manufacture of glass, now in or about said works, being the same under attachment by Thomas Adams, sheriff, as the property of one Joseph Foster, over which he has now possession and control; also all the glass, moulds and materials for manufacturing glass, now under attachment by said Adams, wherever they may be in said Roxbury, which he claims as the property of said Foster; all of the value of eight hundred dollars; belonging to Chester Judson, doing business under the style of Judson & Co. of Newton, in the county of Middlesex, doing business in Boston, in the county of Suffolk, and Henry B. Williams of said Newton, merchant, plaintiffs, now attached by Thomas Adams, sheriff of Roxbury, in said county of Norfolk, at said Roxbury, in the county aforesaid.”</p> <p>The writ alleged the taking to be at Boston. The coroner who served the writ returned thereon, among other things, that by virtue thereof he took from the plaintiffs a bond to the defendant with sufficient sureties, approved by the coro ner, in a penalty double the value of the property, as ascertained by agreement of the parties, with condition to prosecute the replevin to final judgment, and to pay such costs and damages as the defendant-should recover against the plaintiffs, and also to return the ■ property in case such should be the final judgment. The bond was in the usual form; but the sureties were described only as “ Baker & Chase, and W. & W. K. Lewis, merchants, of Boston,” and the bond was executed by them respectively by the same names.</p> <p>The defendant pleaded the general issue; and specified in his defence, that as sheriff of this county he attached the goods replevied as the property of one Foster on eight writs against him, and that Foster was the owner or part owner of the property at the time of the attachment.</p> <p>At the return term, the defendant moved to dismiss the action for the following reasons: 1. Because the writ alleged, that the goods replevied were taken at Boston, and therefore the action lay only in the county of Suffolk; 2. Because the writ was not subscribed by, nor did it issue from the office of, the clerk of this court for the county of Norfolk; 3. Because no replevin bond, sufficient in law, was given to the defendant before service of the writ.</p> <p>The plaintiffs thereupon moved to amend by alleging the taking to be in Roxbury instead of Boston; which motion was allowed, and the motion to dismiss overruled, by Byington, J,, before whom the case was afterwards tried.</p> <p>The plaintiffs, in support of their action, introduced in evidence a contract in writing, between them on the one part, and the said Foster on the other, for the manufacture by him of certain articles for the plaintiffs; and it was admitted, that the articles replevied were manufactured by Foster from materials furnished by the plaintiffs, under the contract, and that they were in Foster’s shop at the time of the attachment.</p> <p>The material parts of the contract were as follows: —</p> <p>First, said Judson & Co. and said Williams agree to furnish such materials as are required for the purpose of manufacturing and malting glass bottles and such other glass ware as they may from time to time decide upon to be manufactured. And said Foster agrees to manufacture said materials, furnished by said Judson & Co. & Williams, into such glass ware as they shall direct, and to do the same in a faithful and workmanlike manner, and to give his whole time and attention to said business, and to see that no unnecessary waste is made of any property belonging to said Judson & Co. and said Williams, and that no wares or other property shall be permitted to go from the works, without the consent of and an account of the same being rendered to said Judson & Co. and said Williams (or said Judson & Co. who are to act as agents in conducting the business.) Said Foster furthei agrees to hire the buildings and works necessary to carry on said manufacturing, and to hire and pay all the workmen, and pay all the expense of conducting and carrying on the business.</p> <p>For and in consideration of which, said Judson & Co. and said Williams agree to pay said Foster such amount as shall arise from the profits of the business, after first deducting the cost of all materials furnished, and incidental expenses incurred by said Judson & Co., together with ten per cent on the amount of sales of all ware manufactured at said works.</p> <p>Said Judson & Co. and said Williams to keep a strict and just account of all wares sold, and to make up the sales once a month, and to render a statement thereof to said Foster, if so required, and to pay said Foster the amount which shall be due him, arising from the profits of the business, from time to time as required, reserving to themselves the right to retain in their own hands one quarter of the amount found to be due to said Foster, from time to time, and are not bound to pay the same to the said Foster until a yearly or general settlement is made, but the said one quarter amount shall remain as security for the faithful performance of this agreement, on the part of said Foster.</p> <p>Said Judson & Co. and said Williams agree to deliver to said Foster money from time to time for the purpose of paying off the men employed ; but it is distinctly understood, and agreed, that said Foster is to pay said men employed by him, and all rent for said Eoxbury Glass Works, and that Judson & Co. and said Williams are in no way liable for the labor of said men or rent, unless by special agreement.</p> <p>This agreement to continue during the pleasure of said Judson & Co. and said Williams, and said Foster shall in no case give up or transfer to any person the said works or business, -without the consent of said Judson & Co. and said Williams ; and said Judson & Co. and said Williams shall not discontinue it without first giving said Foster reasonable notice; but if not found to be an object to them to continue to carry on the business, they may at any time discontinue it.</p> <p>The defendant contended that the contract, upon its face, was fraudulent and void as to attaching creditors, and asked the judge so to rule, but the judge refused. The defendant also contended that it was a question to be determined by the jury, upon an inspection of the instrument, whether the contract was fraudulent; but the judge ruled, that the contract was not fraudulent on the face of it, or by any terms contained in it, as to the attaching creditors of Foster, and that whether it was so or not, was a question to be decided by the judge, and not by the jury.</p> <p>The jury returned a verdict for the plaintiffs, and the defendant excepted.</p>

This was an action of assumpsit on the following order, dated at Roxbury, January 23, 1850, addressed to the defendant, and signed by A. M. & S. Osborn: “ Please pay to Lewis Grandy or order one hundred and fifty dollars, when we shall have fulfilled our part of the contract with you, which is dated September 24,1849, and the thud payment mentioned in said contract shall be due from you, and charge the same to us as part of said thud payment.” On the face of this order was…

<p>A testator by his will provided that certain property should be kept on interest, and the interest added to the principal, until the decease of D., and that at D.’s decease the principal and accumulated interest should be paid to D/s children; and in a subsequent clause provided, that if J. should outlive D., the interest of the principal should be paid to J. annually during his life, and at his decease the principal sum should be disposed of as above directed. J. outlived D. It was held, that on the decease of D., the interest which had accumulated during his life should be distributed among his children, and that J. was entitled only to the interest on the original principal during his life.</p>

<p>. is no defence to an indictment for obtaining goods by false pretences, that the party defrauded made false representations to the defendant as to the goods so obtained; nor that the goods were of less value than alleged in the indictment.</p> <p>It is no ground for arresting judgment, on an indictment for obtaining goods by false pretences, that one of the pretences set forth therein is not distinctly negatived, provided the indictment contains an allegation of one or more false pretences, upon which the defendant may be convicted, which are properly negatived and established by the evidence.</p>

<p>This was a suit in equity, heard before Dewey, J., and by him reported for the consideration of the full court. The case was argued in writing by D. Saunders, Jr., for the plaintiff, and N~. Wl Hazen, for the defendant. All the facts are stated in the opinion, which was delivered at the November term, 1852, by</p>

<p>This was an action of debt on a bond, dated the 15th of ■ December, 1847, executed by the defendants, Thomas Wade and John Wade, in the penal sum of four hundred dollars, and conditioned that the defendants should deliver up to the plaintiff, at the expiration of one year from said date, “ the drugs, medicines, fixtures, &c., in the store, occupied by the said Thomas Wade, in as good condition as at present, valued at $319.33, as per schedule of the same hereunto annexed, or return to the said Wildes the same kind of property, the wholesale market price of which shall amount to the said sum of $319.33, or pay to the said Wildes in money the said sum of $319.33.”</p> <p>The case was tried in the court of common pleas, before Perkins, J., who signed a bill of exceptions, the material parts of which were as follow: The plaintiff proved the execution of the bond and read it in evidence, and the schedule thereto annexed, and put in evidence tending to show a breach of the bond, as set out in his declaration. It was proved that Thomas Wade, one of the defendants, had charge of the stock ■ of goods named in the bond, as superintendent of the sales thereof, or in some other capacity, for a short period of time after the date of the bond. But to whom the goods were delivered on the sale by the plaintiff, did not appear otherwise than by the bond. It appeared that Thomas Wade left the store of goods, and one Smith tended the store after Thomas was gone, and had tended for Thomas before he had left, and the two had sold a portion of said goods.</p> <p>There was evidence tending to show, that after Thomas had left, the other defendant, John Wade, who was the father of Thomas, having doubts whether Thomas would return, and fearing a diminution of the property during his absence, without his consent or knowledge, agreed by parol with the plaintiff, that the plaintiff should take possession of said stock of goods, so far as any remained in the store, and apply the value of them towards the payment of the bond. The plaintiff took the stock left, and in the store, on or about the first day of May, 1848, and afterwards sold the same. The whole value of the goods received by the plaintiff amounted to eighty-four dollars less than the amount named in the schedule annexed to the bond. It was not denied that there was an agreement by parol, under which the plaintiff was to take the stock in the store and apply it in payment of the bond, either in whole or in part, at least as far as it would avail to that end. The defendants contended that such agreement thus made in the absence of Thomas, and without his knowledge or consent, avoided the bond as to him. The judge ruled, that upon proof of the due execution of the bond and a breach thereof, the plaintiff would be entitled to recover of the defendants, and that, if the jury found a verdict for the plaintiff, judgment would be rendered for the penalty under the statute, subject to be reduced according to the statute provisions; and that upon the question of the plaintiff’s right to recover upon the bond, the agreement between the plaintiff and John Wade, as to taking back the property, as above stated, would not defeat the plaintiff’s right upon the bond as against Thomas Wade, the other facts necessary to a recovery being established, and the bond not being thereby paid in full or otherwise complied with or discharged. It appeared that while the stock was in the care of said Smith, either when he was tending under the direction of Thomas, or after Thomas had left, and during the absence of said Thomas, the plaintiff went into the store and received from said Smith certain money to the amount of fifty-one dollars, the proceeds of goods sold, for which he gave a receipt, and also some small articles of goods, amounting in value to less than one dollar. There was no other evidence of the amount or value of the stock taken by the plaintiff towards payment of said bond as above stated than the value or price named in the schedule produced, by which it was agreed to be taken, and to show the amount taken.</p> <p>After all the evidence had been introduced, and after the above rulings and directions, the parties agreed that both issues, that of the liability of the defendants on the bond, and that of the amount of damages might be passed upon by the jury at the same time, and on the evidence as in the case.</p> <p>The defendants requested the judge to instruct the jury, " that if they found a breach of the condition of the bond, they should allow whatever was the benefit to the plaintiff of receiving the goods eight months sooner than he was entitled to them; that such anticipated receipt of the goods must of itself, and without any other proof, be regarded as a benefit to the plaintiff, and that, at least, unless something appeared to control it, the benefit to the plaintiff was the legal interest on the amount received from the time when received to the time when by the contract it was to be received. But the radge ruled, that in the absence of all evidence to control the bond, or the effect thereof, upon a proof of breach as above directed, the plaintiff would be entitled to recover the full amount of the sum named, as to be paid, in the obligatory part of the bond, to wit, $319.33; but that there was evidence going to show payment and satisfaction, in part or in full, of the bond, and so far as payment or satisfaction had been made, the jury on the issue on the assessment of damages should deduct that from the sum due by the terms of the bond, and find only the balance for the plaintiff; that as to the money and small articles taken by the plaintiff from the store, as above named, the jury should find the amount and value of them and deduct the sum from the bond; and as to the stock taken by the plaintiff with the understanding and under the agreement between him and John Wade, the jury should find the amount and value on such evidence as they had before them; if there was any evidence of benefit to the plaintiff by the anticipated receipt of the goods, or any thing that had been received, the jury should allow so much as they found that benefit to be; but in the absence of all evidence on that subject, the jury would not assume that there was any such benefit; that in the absence of any agreement or understanding for the allowance of interest, no interest, as such, should be allowed, on the amount of anticipated receipts; and that on the question of payment and satisfaction, and so far as the defendants depended on these in their defence, the plaintiff having established his side of the case, the burden of proof was on the defendants to show such payment and satisfaction and the amount.</p> <p>The judge requested the jury,- in case they found for the plaintiff, to return two verdicts, one on the general question of the liability of the defendants, and the other assessing the damages. The jury accordingly found two verdicts for the plaintiff, and the defendants excepted.</p>

<p>The drawing of a lottery, with the consent and participation of the assured, in a building insured against loss by fire, as “ a shoe manufactory,” does not avoid the policy on the building, nor on the stock therein.</p>

This was an action of assumpsit against the defendant, as the guardian of three minor children, for whose use the plaintiff had furnished necessaries, and was submitted to the court upon the following facts : Thomas Emerson died in October, 1847, leaving a widow and three minor children, to the latter of whom he devised his real and personal estate.

<p>Stockholders in a manufacturing corporation, in a bill in equity against the treasurer and secretary of the corporation and F., set forth that the officers of the corporation mismanaged its affairs, and made a deed of all its property, for a nominal consideration, to the treasurer of the corporation and a person residing in New York ; (but the bill did not set forth that this deed was made upon any trust) ; that the officers of the corporation made certain notes in a form sufficient to bind the corporation, and indorsed them to F., and that F. had brought actions at law upon several of these notes against the corporation, and had attached the real estate of two of the plaintiffs; that the design of the defendants, and especially of F., with whom the other defendants conspired, was to obtain judgments against the corporation, and then, pursuant to Rev. Sts. c. 38, obtain satisfaction of the stockholders individually, the corporation not having complied with the provisions of that statute; and the plaintiffs prayed that the defendants might be enjoined from levying any execution issued or to be issued on judgments so obtained. It was held, on demurrer, that the bill could not be maintained.</p>

<p>The clerk of a school district, under a vote, that future meetings he notified by posting up notices thereof at certain specified places, and “ that the clerk warn all future meetings in said district,” has no authority to call a meeting, but only to notify and warn a meeting called by competent authority,</p>

<p>A deed, describing the boundary line of the land conveyed as running northerly a certain distance to a highway, and from thence upon the highway, passes the land to the centre of the highway, although the distance specified, by actual measurement, carries the line only to the southerly side of the highway.</p> <p>A diversion of a large portion of the water of a natural watercourse, by a proprietor of land through which the watercourse runs, renders him liable to an action on the case by a proprietor of land below, from which the water is thus diverted, although the latter thereby sustains no present actual damage.</p> <p>A statute, authorizing a proprietor of land, through which a natural watercourse runs, to lay a pipe or culvert, from such watercourse, across a highway, to his mill, does not protect him from an action by a proprietor below, from whose land the water is thus diverted,</p>

This was a proceeding before a sheriff’s jury, to estimate the damage sustained by the petitioners, in consequence of the tailing of the petitioners’ land by the respondents for the use of their road.

This was assumpsit brought in the court of common pleas on a, promissory note, dated the 28th of February, 1849, signed by the defendant, payable to Mace & Sawyer, and by them indorsed to the plaintiff.