Volume 63 — Massachusetts Reports

<p>This was a petition to the court of common pleas, sitting as a board of county commissioners for this county, for the assessment of damages done to the land of the petitioners by the respondents, by raising and grading Tremont street, in Boston, at the place where it is crossed by the track of the respondents. The case came into this court by exceptions, to the ruling of Perkins, J.</p> <p>The respondents, on the 28th of October, 1844, by their directors, presented their petition to the mayor and aldermen of Boston, setting forth that they were desirous of making snch a change of the level of Tremont street, in that part adjoining their railroad, that the travel thereof might pass above the railroad by means of a bridge; and requesting authority to build a bridge of sufficient height to allow a locomotive to pass under it, and raise the street by a grade to pass over the same. They also requested that such conditions might be agreed upon in regard to the mode of construction, and the compensation for damages to the adjoining estates as should appear to the board just and reasonable.</p> <p>The board of mayor and aldermen thereupon resolved: “ That the corporation be permitted, at their own expense, to raise Tremont street, in that part in which their present railroad crosses it, to a height not exceeding fourteen feet and six inches above the level of their bridge over the empty basin,” on several conditions, of which the following is the only one, apparently bearing upon the present case, namely:—</p> <p>“ That the said corporation shall give bonds to the acceptance of the mayor' and aldermen, to indemnify the city of Boston against all claims for damages to private property which may be occasioned by such alteration of the said street.”</p> <p>The application on the part of the petitioners to the mayor and aldermen, for an assessment of damages was made in September, 1847, and it was conceded that more than a year had elapsed after the raising of the street prior to the filing of the application.</p> <p>The petition in this case was filed at the October term of the court of common pleas, 1849.</p> <p>It was conceded that the raising of the street was executed by the respondents, in conformity with the requisitions made by the mayor and aldermen, under the direction of the committee of the latter on pavements, appointed for that purpose.</p> <p>On this state of facts, the respondents contended that they were not liable at all to this process, inasmuch as they acted, in the raising of the street, in subordination to, and as agents or servants of the city, and not by virtue of their independent corporate powers. But the judge overruled the objection.</p> <p>The respondents further contended that, if they were ever liable for damages for the raising complained of, they were no longer so, after the expiration of one year from the completion of the work, whether viewed as an act done in subordination to the authority of the city, or in the exercise of their own corporate rights.</p> <p>This objection was also overruled, and the jury found a verdict for the petitioners.</p> <p>cited Parker v. Boston & Maine Railroad, 3 Cush. 107,116; Heridia v. Ayres, 12 Pick. 334, 344; Sudbury Meadows v. Middlesex Canal, 23 Pick. 36; Harrington v. Harrington, 1 Met. 404; Parks v. Boston, 8 Pick. 218 ; Brown v. Lowell, 8 Met. 172; Nichols v. Bertram, 3 Pick. 345; Goddard v. Boston, 20 Pick. 407; Stone v. Boston, 2 Met. 220; Hea/rd v. Middlesex Canal, 5 Met. 81; • Cha/rlestown Branch Railroad Company v. County Commissioners, 7 Met. 78; St. 1831, c. 72; Rev. Sts. c. 39, § 56; c. 24, § 55; c. 25, § 6; St. 1833, e. 91, § 2.</p> <p>cited Rev. Sts. c. 39, § 67, 68; St. 1831, c. 72, § 11; St. 1833, c. 91.</p>

<p>This was a bill in equity for the specific performance of an alleged contract in writing by the respondents to issue stock to the complainant. It was heard upon the pleadings without any proofs taken.</p> <p>From the bill, answer, and replication, it appeared, that by an act of the general court of Massachusetts, the respondents were authorized to increase their capital stock by the creation of not more than 5,000 shares of $100 each; and that afterwards, in pursuance of that authority, the directors of the company passed a vote, some time in May or June, 1846, by which vote 4,500 shares of new stock were created, to be distributed to the stockholders in the company in the proportion of one new share for every four shares of the old stock, to persons holding stock at the close of business on the 30th of June, 1846, who might avail themselves of the privilege by subscribing for the new stock on or before July 10,1846; and the new stock was to be paid for by three instalments of $33.33 each on every share, the first payable July 10th, the second September 1st, and the third December 31st, then next; that the stockholders of the corporation, some time in the early part of July, passed a vote, that the time for subscribing for the new stock should be extended to August 1st, then next; and that, after that time, all shares and parts of shares not taken, should be sold by the company for the benefit of the shareholders who should not avail themselves of the privilege; that the complainant had not been able to see of procure copies of the two votes above mentioned, though he had applied in writing to the clerk of the corporation for a copy thereof, or leave to examine the records and take copies; the clerk, by order of the directors, having declined giving the complainant such copies, on the ground that he was not entitled thereto at the time he sought therefor; that in June and July, 1846, the complainant purchased from sundry stockholders in the corporation, for sundrv valuable considerations, the rights which they had, as owners of 584 shares of stock in the corporation, to subscribe for shares of new stock under the votes above mentioned; which rights of subscription to new stock said stockholders duly assigned to the complainant, whereby he became entitled to subscribe for 146 shares of new stock; that afterwards, during July, 1846, the complainant exhibited to William S. Tuckerman, the treasurer of the corporation, the assignments above mentioned, and thereupon subscribed for and agreed to take 146 shares of the new stock, amounting to $14,600; that the complainant failed to pay the first instalment on the shares subscribed for by him, within the time limited by the votes of the corporation; in consequence whereof the corporation refused and still refuses to issue to him a certificate of his being the owner of 146 shares of the new stock; that, under and by virtue of a vote of the directors, passed October 8,1846, “ that the president be authorized to dispose of the new shares that were not taken by the shareholders, whenever he may deem it expedient,” these 146 shares, with others, were sold, from time to time, in lots, at private sale, at 2 per cent advance, by the president of the corporation in October and November, 1846; that the treasurer, on or about November 13, 1846, informed the complainant that the 146 shares had been sold, and that he, as treasurer, would pay the complainant the premium, which, however, he declined receiving, and then protested against the right of the directors to sell the shares, and against their selling them at that price, as being far below the market price of the stock; and that the same had been sold without notice to him of such intended sale; that the complainant never received from the respondents any notice of the intended sale, or of any time or place of sale, other than is contained in the votes and publication hereinbefore mentioned; that the complainant, one or more times after August 1,1846, requested a certificate for the 146 shares, and, at the same time, stated he would pay therefor the price subscribed for the same.</p> <p>The bill alleged that the respondents, by Tuckerman, theix treasurer, agreed to give the complainant credit for the assessments on the new stock, and not to call on him for t ayment thereof at the times specified in the votes, but to wait for the same, without giving any specified term of credit; that, when the complainant was informed by Tuckerman, that the shares had been sold, he protested that he had had no opportunity to pay for the same before the sale; that the stock was worth more than 2 per cent advance, to wit, 4 per cent advance, at the time of the alleged sale; and that he had repeatedly offered to pay for the 146 shares, but that Tuckerman and the respondents had wholly refused to receive the price of the same.</p> <p>All these averments were denied by the respondents, who admitted that their treasurer did, some time, without then knowledge, consent, or ratification, propose to the complainant that, if he would pay $5 upon each share of the new stock, and give his note for the balance of the cost thereof, payable December 31,1846, and leave his new stock in the hands of the treasurer, he, the treasurer, would assent to receive the same in lieu of the instalments provided for by the votes; but the complainant declined to accede to the proposal when made, and stated that he could not pay $5 on each share as proposed; and they are only informed by the bill, and no otherwise, that he is still ready to pay for the shares, and tenders payment thereof.</p> <p>The respondents aver that both the votes above mentioned were published in the daily newspapers in Boston for two or more weeks.</p> <p>The prayer of the bill was, that the respondents might be decreed to give the complainant 146 shares of the new stock and a certificate that he is the owner thereof, on his paying the respondents $14,600, adding thereto lawful interest, and deducting therefrom all dividends of profits which have been declared on the new stock, and for other relief.</p>

<p>This was an action of covenant, founded upon a lease executed by the parties, March 12, 1845, for five years from May 1, of the same year.</p> <p>The premises were described in the lease as “ a certain wharf called ‘ Atkins’s wharf,’ situated in Commercial street, in said Boston, and is bounded on said street fifty-nine feet, and bounded on one side by James Bartlett’s land and flats, and on the other side by land and flats of James S. Wiggin, being the same premises now in the occupancy of B. Abra-hams & Co., together with all the rights, privileges, and appurtenances to said wharf, and to the flats belonging thereto, or in any ways appertaining.” The lease contained the usual covenants of quiet use and enjoyment of the premises during said term.</p> <p>It appeared in evidence, on the trial before Metcalf, J., at the sitting in October 1850, that, in the year 1808, an agreement, duly executed and recorded, was entered into by William Mills, then owning Bartlett’s wharf, and Edward and Hannah Proctor, then owning Atkins’s wharf, fixing the boundary line between their estates and the boundaries and dimensions of the dock between their wharves, and reducing the dock from a width sufficient to admit two vessels lying abreast, to twenty-five feet, so that only one vessel could occupy it at a time, and regulating the future use of the reduced dock by the parties.</p> <p>Until about one year subsequent to the execution of the lease, the dock remained of its original width, and the occupants of Atkins’s wharf enjoyed the entire use of their part of it. In 1846, the proprietors of Bartlett’s wharf, availing themselves of their rights, under the agreement above mentioned, filled up the space on the south side, next to their wharf, reducing the dock to twenty-five feet, as specified in said agreement, and enforced the provisions of the agreement securing to them the joint occupancy of the dock. And from that time to the date of the writ in this case, the dock was jointly occupied by the plaintiffs and the proprietors of Bartlett’s wharf.</p> <p>The defendants contended that the plaintiffs enjoyed all they were entitled to under the lease, and that there was no breach of their covenants in the same ; and asked the judge so to instruct the jury.</p> <p>As this point of defence was not suggested until after the plaintiffs had introduced their evidence as to the damages sustained by them in consequence of the filling up aforesaid, by the proprietors of Bartlett’s wharf, the judge, for the purpose of the trial only, ruled otherwise, and the jury returned a verdict for the plaintiffs. To this ruling the defendants alleged exceptions.</p> <p>1. The instruction asked was well refused, because it was the province of the jury, under directions of the judge, to ascertain the identity and extent of the land demised.</p> <p>2. It was competent for the plaintiffs to show the nature and extent of occupancy which had been, and, at the date of the lease, was enjoyed by Abrahams & Co., because, by the terms of the lease, this was made an essential element in the description of the property demised. 1 Platt on Leases, 730, 731; Worthington v. Hylyer, 4 Mass. 196; Waterman v. Johnson, 13 Pick. 261.</p> <p>1. The contract between the parties was in writing, and there was no pretence of fraud to justify the admission of parol testimony.</p> <p>2. The sentence, “ with all the rights, privileges, and appurtenances to said wharf, and to the fiats belonging thereto, or in any ways appertaining,” means lawfully belonging, for there can be no such thing as unlawful right.</p> <p>3. The preceding tenant may have been trespassing upon others during all his term, or may have been enjoying an easement on the land of others by sufferance, and we should not be held to give the same privileges to his successor without special agreement.</p> <p>4. The restriction of privilege complained of was matter of record, and therefore presumed in law to be known and public.</p> <p>5. There can be no ground for the idea that the preceding description of the premises as a “ wharf,” with certain lateral boundaries, strengthens the plaintiffs’ case; because, if it is to be construed literally, and not as a mere descriptio loci, it would describe an actual wharf of the width of fifty-nine feet, without any lateral docks, bounded by land and flats of Bartlett and land and flats of Wiggin. It is not pretended bv the plaintiffs that such would be the right construction.</p>

<p>This was an action of covenant, and was tried in this court before Fletcher, J., by whom it was reported substantially as follows: —</p> <p>The writ bore date the 7th of July, 1848. The plaintiff declared on an indenture between himself and the defendants, dated April 25, 1845, wherein the plaintiff agrees to serve the defendants, as superintendent of their flour mill, about to be erected at East Boston, for the term of five years, and for the salary of twenty-five hundred dollars, payable semiannually, and a certain portion of the profits of the business, and subject to certain qualifications and limitations set forth in the indenture. The plaintiff avers in his declaration, that he commenced serving the defendants on the 1st day of July, 1846, in the capacity of superintendent, and so continued to serve the corporation in that capacity, doing all his duty in that respect, as expressed in the indenture, until and up to the 5th day of January, 1848; and that, ever since that day, he has been ready and willing, and hath continually tendered and offered to serve the corporation in the capacity of superintendent, and to do all things which belonged to him to be done, agreeably to the covenants and agreements therein contained ; but the plaintiff further avers that the corporation refused to permit him to serve them, and did, on the 5th day of January, 1848, discharge him, against his will and without his consent, from the office of superintendent, and did forcibly eject and expel him therefrom, and from the mill, store-houses, and other premises of the corporation, and still do keep and hold him out from their service.</p> <p>The plaintiff also sets forth, as the breaches by him relied upon, and for which he claims damages, the omission and refusal to pay him two quarter-yearly payments of six hundred and twenty-five dollars each ; one due on the 1st dar of April, and the other on the 1st day of July, 1848, and the omission and refusal of the corporation to pay him the share and amount of profits due to him, appearing by the books of the company, as made up by the treasurer thereof, on or about the 8th day of March, 1847; the share thereof belonging to the plaintiff, as claimed by him, being about the sum of one thousand dollars.</p> <p>The defendants pleaded the general issue, and filed a specification of their grounds of defence.</p> <p>To prove his case, the plaintiff gave in evidence the original indenture, the execution of which was admitted. It was also admitted by the defendants, that the plaintiff was ejected and expelled from their mill and premises on the 5th day of January, 1848, in pursuance of certain votes passed by the directors, and that they had ever since refused to receive his services.</p> <p>The ground of defence was that the original contract had been subsequently altered by mutual consent, by which alteration either party might terminate their relation to each other, by a notice of three months, and that the defendants had given such notice, and that the plaintiff had been paid to such termination of the contract. To prove such alteration the defendants introduced two letters from the plaintiff to the president of the' Boston Steam Flour Mill Co., as follows :—</p> <p>October 19,1847.</p> <p>“ I think it will be for the mutual advantage of all parties interested in the contract with me for my services, entered into on the 25th day of April, 1845, that either party have the liberty of annulling the same, by giving three months’ notice of such intention in writing.”</p> <p>And again, to the same address, October 25,1847:—</p> <p>“ A few days ago I addressed a note to you, in which I suggested the making an additional clause to the contract with me for my services.</p> <p>“ I would also make one request in relation to said contract, about which it is evident that there is some misunderstanding. I wish that my duties, marked out under that contract, may be clearly and explicitly defined. If this is done, I think that much bad feeling may be saved in future. I am extremely anxious to know just what is expected of me.”</p> <p>On the 7th of December, the defendants informed the plaintiff that they had “ voted to accept, as an amendment of the contract with William W. Allcott, the alteration or amendment proposed by him, in his letter, of the 19th of October last, to wit, — “that either party have the liberty of annulling the same, by giving three months’ notice of such intention in writing; — and the alteration is considered as made, and may be indorsed upon the contract at once.”</p> <p>The defendants also introduced Elijah D. Brigham as a witness, who stated that, in October, 1847, he was general agent of the defendants, and that in that month, either on the 15th or 16th, as he thought, an informal meeting of several of the directors, viz: Messrs. Sturgis, Lombard, Hendee, and Soule, was held at the lodgings of the witness, at the Albion, at which the plaintiff and witness were present; that, at that interview, the plaintiff addressed himself to those of the directors" present, and stated that, to show he had only the best interests of the concern in his mind, he would propose an addition to his contract for services, — that he would propose that either party should have the right to annul it, by giving the other three months’ notice. One of the directors said it struck him favorably, and desired the plaintiff to make his proposition to the directors in writing. All were pleased with the proposition. The witness thought the plaintiff said he would make it in writing. The plaintiff in reply to the defendants’ letter of the 7th of December, wrote on the 10th to them, saying: “ Under existing circumstances, I am not disposed to agree to any modification of the contract existing between us. To avoid all mistake, I wish to be understood as saying that I refuse to agree to the proposition contained in your letter above referred to.”</p> <p>The plaintiff also put into the case the vote of the directors of the corporation, passed December 11,1847 :—</p> <p>“ That Messrs. Hendee and Soule be a committee to confer with Mr. Allcott, and see if an arrangement can be made with him to give up his off-e as superintendent.”</p> <p>Richard Soule, in behalf of the plaintiff, testified that he was one of the directors of the defendants; that, in pursuance of the vote of the directors above mentioned, Mr. Hendee and himself had an interview with Alleott, at witness’ dwelling-house ; their object was to obtain from Alleott the terms upon which he would quit his post; that they discussed the matter, and Alleott agreed to furnish to them in writing the terms-upon which he would do so.</p> <p>At the suggestion of the judge, it was agreed that the case should be submitted, upon the foregoing evidence, to the whole court.</p> <p>If the court shall be of opinion that the evidence is sufficient to show, and does show, a change or modification of the contract, and that covenant will not lie to enforce any claim of the plaintiff for compensation arising subsequently, the plaintiff is to be nonsuit; otherwise, the case is.to be sent to an assessor or master, to determine whether any, and if any, what sum is due to the plaintiff, under such instructions as the court may give, and judgment for the plaintiff or defendants is to be entered upon such report, as confirmed by the court.</p> <p>There was no offer, or proposal, or promise, on the part oí the plaintiff, to make any change or modification; he merely suggests the subject for consideration ; see his letters to Lombard, and Brigham’s testimony. The letters were addressed to Lombard, the president of the corporation, and not to the directors, as were his communications designed for the corporation.</p> <p>The indenture between the plaintiff and defendants, al-hough under seal, may be modified, changed, or altered by parol. Mill Dam Fowndery v. Hovey, 21 Pick. 417, 429, 436; Cummings v. Arnold, 3 Met. 486.</p> <p>The letters between the parties do constitute a contract between them, and alter the indenture aforesaid. Kennedy v. Lee, 3 Merivale, 441; Mactier v. Frith, 6 Wend. 103, 116, 122; Averill v. Hedge, 12 Conn. 424; Adams v. Ldndsell, 1 B. & Aid. 681; Foster v. Boston, 22 Pick. 33; Ihmlop v. Higgins, 1 Clark & Finnelly, (N. S.) 381.</p>

<p>A. railroad company, receiving upon its track the cars of another company, placing them under the control of its agents and servants, and drawing them by its locomotive, over its own road, to their place of destination, assumes towards the passengers coming upon its road in such cars, the relation of common carriers of passengers, and all the liabilities incident to that relation.</p> <p>The contract created between a railroad company and a purchaser of one of it? tickets, and the rights and liabilities of the parties to such contract, are the same, whether the ticket was purchased at one of the company’s stations, or at a station of a contiguous railroad, or of any other authorized agent of the company.</p>

<p>This was an action of assumpsit, with the usual money counts, on the following written agreement, under date of “ Boston, May 20,1843,” addressed to the plaintiff and signed by the defendant: “Sir, — I will sell you the house No. 42 Myrtle street, on the 1st day of October next, if you will pay what it has and may cost me, with my charges for the same.”</p> <p>The case was tried in this court at the March term 1850, before Fletcher, J., and reported by him.</p> <p>At the trial, the plaintiff gave in evidence the above agreement and a deed of the same premises from himself to the defendant, dated April 29,1843. He also offered several letters written to himself by the defendant, the admission of which, though objected to by the defendant, was allowed by the presiding judge. The following witnesses were then called by the plaintiff and were allowed to testify, notwithstanding the defendant’s objection.</p> <p>Edmund Hooper testified, that he carried letters between Mr. Steams and Hall, when Stearns was in jail, and was present when the deed was made. Hall was to act as agent, and Stearns was to have his house back on paying Hall what he paid Mr. Dexter, and for repairing the house and his commission in six months. Stearns wished Hall to give him a wri ting to this effect. Hall said he would not give him one there in jail, but that he would give him a writing, if he would call at his office when he came out. Stearns thereupon executed the deed. He came out of jail that day.</p> <p>Enoch Martin testified, that Mr. Stearns employed him to sell the house. I called on Hall about a week before the time mentioned in the written contract was out. Hall said we need not,distress ourselves ; and if we could find a purchaser within thirty days, he would convey the estate. I got Mr. Richards. I brought Richards and Stearns together. Stearns at first refused Richards’s offer. Richards afterwards informed me that Stearns had accepted his offer, and wished me to see Hall. I told Hall, Richards had bought the estate. I called on Hall for a deed. He said Stearns had not been there. I called again, and he said he could not get a settlement with Stearns, and he would do no more about it. Hall gave further time; I think thirty days. I got Richards within the time, and notified Hall. I don’t recollect the exact time.</p> <p>Reuben Richards testified, that he purchased the estate of Mr. Stearns, for about $5,000. I purchased it through Mr. Martin. Hall delivered this deed (the deed drafted by Hall, dated October 9, 1843, and not signed, being shown to the witness) to me. I called on him with the money in my hand Mr. Stearns was with me. Mr. Hall replied, he should do no more about it. I thought I had got a good bargain. Hall refused absolutely to do any thing about it. This was in October, 1843, about the date of the deed Hall drafted. I think I earned $5,000 in money. I presume I told Mr. Hall I was prepared to pay him the money, as I went for that purpose. When I went to pay the money, Stearns was with me.</p> <p>The defendant introduced no evidence, but contended that the evidence of the plaintiff contravened the statute of frauds, and was not admissible by the rules of evidence. But the judge ruled that it was admissible, and did not contravene the statute of frauds.</p> <p>The case, thereupon, was taken from the jury, by consent oí parties, to be reported to the full court; if the court shall be of opinion that the ruling was right in point of law, and if the evidence was competent to go to the jury to maintain the plaintiff’s case, the defendant to be defaulted and an assessor appointed to ascertain the amount the plaintiff shall recover under such rules and instructions as the court shall give; otherwise, the plaintiff to be nonsuited, or the case sent to a jury for trial, as the court shall deem the rights of the parties require.</p> <p>1. The evidence establishes the fact, that the time of performance fixed in the written contract was waived or extended, and that, within the extended time, the plaintiff offered to do, and did, all that was required of him.</p> <p>2. The terms of a written contract may be varied by a subsequent parol contract, though the original contract falls within the statute of frauds. Rev. Sts. c. 74. Cummings v. Arnold, 3 Met. 486, and cases there cited; Cuff v. Penn, 1 M. & S. 21; Blood v. Hardy, 3 Shepley, 61, and cases cited; Borden v. Borden, 5 Mass. 69; Sivan v. Drury, 22 Pick. 485 ; 1 Greenl. Ev. § 304, and cases cited ; JVP Combs v. McKennwn, 2 Watts & Sergeant, 216; Fleming v. Gilbert, 3 Johns. R. 528; 3 Starkie Ev. 1050; Coke Lit. § 343 et seq.; Keating v. Price, 1 Johns. Cas. 22; Ratcliff v. Pemberton, 1 Esp. R. 35.</p> <p>Where the original contract is for the sale of lands, and thus within the first section of the statute of frauds, and is subsequently varied in its terms by a parol contract, a party cannot be held liable for a breach of the contract as thus varied. Goss v. Nugent, 5 B. & Ad. 58; Stowell v. Robinson, 3 Bingham, N. C. 928; Stead v. Dawber, 2 Perry & Davison, 447; Marshall v. Jjynn, 6 M. & W. 109; Blood v. Goodrich, 9 Wend. 68.</p> <p>This case is not within the principle decided in the case of Cummings v. Arnold, 3 Met. 486; because the defendant, in that case, merely relied upon the parol agreement, as a matter of defence to a suit brought on a written contract; and here the party relying on the parol agreement seeks to charge the defendant upon it in direct contravention of the statute. f</p>

<p>This was an action on the case, tried in this court before Fletcher, J., in which the plaintiffs sought to recover damages for an injury alleged to have been received by the female plaintiff, in consequence of a defect in a highway in the town of Tyngsborough, which the defendants were legally bound to keep in such condition that the same might be safe and convenient for travellers, with their horses, teams, and carriages, al ill seasons of the year. The alleged defect consisted in a hole left open at the end of and extending around the mouth of a culvert, unguarded by any railing or covering.</p> <p>There was evidence that the culvert extended across the road, and was covered with flat stones and earth, for a space of about twenty-three feet, and that the hole complained of was about six feet from the wheel rut ordinarily travelled, nearest to it; that there was no covering or railing over or around this place, or any thing to warn travellers of the existence of such a hole. As to the particular admeasurements of the size and depth of the hole, there was some variance in the testimony. It was represented to be from one to three feet deep, and from one foot six inches to six feet in length, and from ten inches to four feet in width.</p> <p>The plaintiffs offered the deposition of John Kendall, that “ there was a bad place at the side of the road, where they put in the culvert. — There had been a culvert put across. The condition of it was bad. At the mouth of the culvert, it was a steep right down.”</p> <p>The plaintiffs also offered the deposition of one George Wright, “ that there was a bad place near there; a culvert that I thought a dangerous place. I should judge it was about eighteen inches deep and three feet wide, and I should think not far from six feet from the cart rat. It was a common across the road and end open.”</p> <p>The above answers were, on the trial, objected to by the defendants’ counsel, on the ground that they conveyed an opinion. The counsel for the plaintiffs contended that they conveyed no opinion as to whether there was a defect in the road, but were simply descriptive expressions used by the witness, and qualified and explained by him.</p> <p>The judge overruled the objection, and admitted the testimony.</p> <p>The plaintiffs also introduced the deposition of one Lydia Kendall, in which were the following interrogatories and answers: —</p> <p>Int. 9. “ At the time when he (the doctor) was called, and while engaged in such examination, what did he say concerning such injury, its nature, and extent ? ”</p> <p>Ans. 9. “ I heard him say that it was a very serious injury > and it would be three months, if not longer, before she would have the use of her limb.”</p> <p>Int. 11. “ At the time when (if ever) the doctor was called to Mrs. Lund, when she was injured, what did he say was the injury to the same ? ”</p> <p>Ans. 11. “ He said it was more injured than though the bone was broken; that the ligaments were torn from the bone, and broken.”</p> <p>The defendants objected to the admission of these answers, upon the ground that they were hearsay evidence. It was admitted that Dr. Pierce, the surgeon mentioned in the deposition of Lydia Kendall, had died since the accident complained of, and previous to the taking of the deposition. The counsel for the plaintiffs urged the admission of his sayings and acts at the time of the accident, as part of the res gestee.</p> <p>The judge overruled the objection, and admitted the testimony. The jury returned a verdict for the plaintiffs, and the defendants alleged exceptions.</p> <p>as to the inadmissibility of the answers' of John Kendall and George "Wright, cited 1 Greenl. Ev. §§ 440, 441; Gibson v. Williams, 4 Wend. 320;, Lester v. Pittsford, 7 Vt. 158; and, to show the doctor’s declarations inadmissible, 1 Greenl. Ev. §§ 124-126; Gray v. Goodrich, 7 Johns. 95; Haynes v. Rutter, 24 Pick. 242; 1 Starkie Ev. 47. •</p>

<p>This was an action on the case, brought by the plaintiff, an inhabitant of the city of Buffalo, in the state of New York, to recover for the non-acceptance and non-payment of three drafts drawn upon the defendant, an inhabitant of Boston, by Hawkins, Austin, & Co., a firm doing business in Buffalo. ' It was tried in this court before Fletcher, J.</p> <p>The plaintiff’s writ contained the money counts, and a specification of claim that while doing business under the name and as the bank of Lake Erie, on the dates hereinafter mentioned, he advanced the sums hereinafter stated, on drafts or bills of exchange drawn by Hawkins, Austin, & Co., at the defendant’s request, on hogs forwarded to the defendant at his request, by Hawkins, Austin, & Co., and the defendant’s promise to Hawkins, Austin, & Co., to pay the drafts or bills so drawn, upon the faith of which, the bills or drafts on which this action is brought, were so drawn and discounted; and which drafts or bills were made payable to T. M. Janes, cashier, the agent of the plaintiff in that behalf, and have never been paid.</p> <p>1848. December 19. On draft payable 10 days afterdate . . . $753.00</p> <p>“ “ 20. “ “ “ 12 “ « « . . 265.00</p> <p>“ “ 23. “ « “ “ « « « . . . 700.00</p> <p>$1,718.00</p> <p>The defendant pleaded that he did not assume and promise in manner and form as alleged, and filed a specification denying that he promised to pay or accept any such drafts to any body; that if he made any promise to pay the drafts to any body, it was to Hawkins, Austin, & Co., and not to the plain tiff, and that the plaintiff has no right to sue on any such promise; and that, if he authorized Hawkins, Austin, & Co., to draw any such drafts, it was on certain terms and conditions which were not complied with.</p> <p>The plaintiff offered, in support of his claim, the deposition of Homer B. Hawkins, one of the firm of Hawkins, Austin, & Co. The defendant objected to the testimony of Hawkins, on the ground that he was incompetent by reason of interest, and offered the laws of New York, where Hawkins, Austin, & Co., and the plaintiff reside, and where the draft was drawn, that the drawer is liable to pay damages. The presiding judge, for the purposes of the trial, ruled that the witness was competent.</p> <p>It appeared that the plaintiff was and always had been the sole owner and proprietor of the bank of Lake Erie, an individual bank, doing business under the general banking law of New York; that the firm of Hawkins, Austin, & Co. were merchants in the city of Buffalo, engaged in the produce and commission business; that the defendant was a commission merchant in the city of Boston ; that, from the fall of 1847 to December, 1848, (the time when the drafts for the non acceptance and non-payment of which this suit was brought were drawn,) Hawkins, Austin, & Co. forwarded corn, pork, and butter, to the defendant, to be sold by him, and drew drafts against the same; that this business had amounted to the sum of twenty thousand dollars during this time; that the plaintiff had discounted other drafts on the defendant, drawn as above stated, to the amount of six thousand dollars, which had been accepted and paid.</p> <p>Numerous letters of Hawkins, Austin, & Co. and the defendant, were introduced in' evidence, of which the following are the most material:—</p> <p>Under date of December 1, the defendant writes: “ I am in hopes you will get prices down to three and a half or three and three quarter cents, as it is well to start low. It has been rather dull market with us the past four or five days, weather warm, and good hogs selling at five and a quarter and five ind a half cents; but, the first snap of cold weather, buyers .vill bite sharper, and pay up to six cents, which will be about he ruling rates this winter. It will be well to have them joming along in lots of twenty, thirty, or forty, and you may lraw at ten or twelve days. I would not advise you to pay >ver four cents, and as much less as possible, and please draw ls light as possible along at first.”</p> <p>Hawkins, Austin, & Co. wrote to the defendant, on the L9th of December, 1848, as follows: “ Will you please say in four next how we can draw, or how much you will accept or, that we can show the bank. Patchins to day said, if we would telegraph and get your authority to draw, he would give us the money; he said, if the weather was warm you would not accept. Mr. Barney, president of the bank of Lake Erie, gave us the money, though very short of currency.” And Hawkins testified that in the first part of the last letter he referred to Patchins’s bank, and the bank of Attica.</p> <p>In a letter of December 28, Hawkins, Austin, & Co. write to the defendant: “ In ours of the 19th, we asked you to say-how much you would accept for, that we can show the bank, as we cannot get money without your -written authority to draw.”</p> <p>It also appeared that the drafts for the non-acceptance of which this suit was brought, were drawn on the day they bear date, by the firm of Hawkins, Austin, & Co., in pursuance of the supposed authority they had from the defendant, in his letters to them; that Hawkins, Austin, & Co., upon the faith that, by these letters, they were authorized to draw drafts upon the defendant, forwarded to him, before drawing, certain hogs; that each of the drafts was drawn upon a separate parcel of hogs, forwarded on the dates mentioned in the receipts annexed to the drafts; that Hawkins, Austin, & Co. procured the drafts to be discounted by the plaintiff on the day of theL respective dates ; and that, for the purpose of procuring such discount, they exhibited several of the defendant’s letters to the plaintiff, and the receipts attached to the drafts were respectively presented and delivered to the plaintiff, at the time of procuring the discounts, and annexed to the drafts; and that the discounts were made upon the faith of the supposed authority in the letters, and after the plaintiff had received the receipts; that the drafts were made payable to T. M. Janes, as he was the cashier of the plaintiff’s bank of Lake Erie ; that they were discounted at the legal rate of interest of one fourth of one per cent for collecting the same, on two of the drafts, that being the difference of exchange between Buffalo and Boston, — on the other draft no charge was made for difference of exchange; that the drafts had always been and are still the property of the plaintiff’s bank; that the letter of December 1, before referred to, was exhibited to the plaintiff in the presence of Janes, and had been referred to, to the knowledge of Janes, when Hawkins, Austin, & Co. applied to have drafts drawn on the defendant for a longer time than twelve days discounted, which request was refused, on the ground that the letter did not authorize drafts on a longer time; that the drafts had been regularly protested for non-acceptance and non-payment.</p> <p>After the opening for the defence, the case was withdrawn from the jury, and reserved for the full court. If, in the opinion of the court, the plaintiff cannot maintain this action, á nonsuit is to be entered ; otherwise, such disposition is to be made of the case as the decision of the court upon the several points therein shall require.</p> <p>1. The legal title to the drafts is in Janes, and parol evidence is not admissible to prove the contrary. Stackpole v. Arnold, 11 Mass. 27; Hunt v. Adams, 7 Mass. 518; West Boylston Mamufactwring Co. v. Searle, 15 Pick. 225.</p> <p>2. The defendant’s promise to Hawkins, Austin, & Co. was not negotiable. Brooke’s Notary, 84; Bank of Ireland v. Archer, 11 M. & W. 383 ; Story on Bills, § 249; Chitty on Bills, (8th ed.) 308; Birckhead v. Brown, 5 Hill, 634. Russell v. Wiggin, 2 Story’s E. 213, was a letter of credit addressed to all persons, and designed to be exhibited for the purpose of inducing persons to advance money. In Carnegie v. Morrison, 2 Met. 381, the letter of credit was addressed to the plaintiff by name. In the case at bar, the letters were nevei intended to be shown to third persons. They contain internal evidence that they were merely familiar, confidential letters between business men.</p> <p>New York law, which governs the case, is clearly for the defendant. 5 Hill, 646.</p> <p>Further, the rule in America, as to bills, applies only to bills payable on demand, or a fixed time after date. Story on Bills, § 249 ; Wildes v. Savage, 1 Story’s R. 22.</p> <p>3. The authority to Hawkins, Austin, & Co. was, in legal effect, to draw at ten or twelve days after sight, not after date. Greele v. Parker, 5 Wend. 414, 418 ; Ulster County Bank v. McFarlan, 3 Denio, 553.</p> <p>4. The defendant’s promise was conditional; to wit, that Hawkins, Austin, & Co. should first put him in funds to the amount of $1,000, at least.</p> <p>5. Hawkins was inadmissible as a witness, on the ground of interest.</p>

<p>This was an action of debt, to recover on the common counts, for materials furnished and for. work and labor done by the plaintiff, in the erection of a frame dwelling house on land belonging to the defendants in Boxbury. The writ contained also a special count in debt.</p> <p>The case was referred to an auditor by a rule of court, “ his decision on the facts to be final.” The following statement is condensed from the auditor’s report.</p> <p>After the opening, by the plaintiff, certain objections to his right of recovery were filed by the defendants, of which the following were the most material.</p> <p>“ An objection to any evidence under the special count in debt, because the plaintiff seeks thereby to recover unliqui-dated damages under a contract under seal; also to any evidence under the common counts for work and labor, and materials done and furnished, under special contracts which remain open, unrescinded, and unperformed.”</p> <p>An agreement under seal was executed in duplicate by the parties, bearing date November 20,1845. By this agreement, the plaintiff promised and agreed with the defendants, to furnish all the materials and do all the work, “ except digging and stoning the cellar and building up the brick chimneys,” necessary for the thorough and complete erection, on land of the defendants in Roxbury, of a frame dwelling-house, which was to be built according to plans and specifications referred to in the agreement. The agreement provided that the defendants “ shall dig and stone the cellar, and build up the brick chimneys, and find all the materials for the same.” The plaintiff was to have, for the work and materials, $3,200, to be paid by instalments as the work advanced.</p> <p>The plaintiff was to have until the 1st of May, 1846, and no longer, to complete the house according to the terms of the contract; but the contract did not specify when the defendants should have the cellar dug and stoned, although the plaintiff could not commence the erection of the house until that was done. The plaintiff prepared his frame and other stock, and carried them from Boston to Roxbury by the middle of March; but the digging and stoning of the cellar were not completed by the defendants until some time between the 15th and 20th of April.</p> <p>It was wholly impossible for the plaintiff to complete the house between the time when the foundation was ready and the 1st day of May, the time fixed by the contract for its completion. Accordingly, on the 30th of April, 1846, an agreement between the parties under seal was indorsed on the original contract, extending the time for the completion of the contract until the 20th day of June then next. At the same time, an additional contract was entered into between the parties for the erection, by the plaintiff, of an observatory on the house, for which the defendants agreed to pay him the further sum of one hundred and fifty dollars, of which one hundred and thirty were paid him when the contract was made.</p> <p>From the time when the plaintiff commenced the erection of the house, he prosecuted the work with ordinary and reasonable diligence until the 20th of the ensuing June, having, during the whole time, a gang averaging eight hands at work on the premises, and being himself there about two hours daily, seeing to the progress of the work. It would have been possible for the plaintiff to complete the house on the 20th of June, by putting on an extra number of hands ; but there were as many men employed as could work to advantage, and as many as are usually employed in the erection of such a house.</p> <p>On the 20th of June, the plaintiff was prosecuting his work on the house, having eight men employed thereon, when one of the defendants went on the premises and took possession of the house, directing the plaintiff’s men to quit, saying the time was up and he was going to have the work stopped; and, on the same day, the defendants left a written notice at the plaintiff’s house in Boston, the contents of which were proved to be in substance, that the plaintiff’s contract had expired, and that the defendants did not want or would not have any more of his work on the house. The plaintiff’s men left the premises, as directed by the defendants, and no work was subsequently done by the plaintiff on the house, nor was there any evidence that he subsequently offered to complete his contract.</p> <p>No evidence was offered by the defendants to show that any notice of any kind, other than that of June 20, either before or after that date, was given by them to the plaintiff. The defendants took the house as it was on the 20th of June, and finished it at their own expense. The work left unfinished might, in the exercise of reasonable and ordinary diligence, have been completed within three weeks.</p> <p>The size and general plan of the house conformed to the specifications referred to in the contract, but in some details there were variations from the specifications. There was no evidence, other than the fact of the variations themselves, tending to show that these departures from the specifications were the result of any intent on the part of the plaintiff, wil-fully to wrong the defendants, and skilful mechanics, who were produced as witnesses, differed in the opinions expressed by them as to the effect of these variations upon the permanent strength and durability of the structure and its substantial value. It appeared in evidence that one of the defendants, who were themselves builders, visited the premises oftener than once a week, while the plaintiff was going on with the work, and, when there, was in, upon, and around the house. The only instances in which it was shown that any dissatisfaction was expressed by the defendants, while the work was in progress, were that, while the plaintiff's men were at work getting out the frame in Boston, one of the defendants complained to. the plaintiff’s foreman, that the floor joists, were too far apart, and that they should have been tenoned instead of being gained; that the foreman mentioned it to the plaintiff, who said he was sorry that they were not placed nearer to centres, and, after the house was raised, the same defendant complained to the same foreman that the studs were too far apart.</p> <p>The auditor’s report on the above facts was “that up to June 20, the plaintiff was going on with his work, with an honest intention to go by the contract, and that, so far as he had then proceeded, there had been a substantial execution of it, although there were deviations as to some particulars not the consequence of fraud or gross negligence, and which were of such a character that skilful and experienced mechanics differ as to their effect upon the permanent strength and substantial value of the structure; that the materials furnished and the work done are valuable and beneficial to the defendants, and that the plaintiff is entitled to recover on a quantum meruit for the work and labor done, and on a quantum valebant for the materials furnished; and, in determining the amount which he is so entitled to recover, I have charged the defendants with the prices according to the two contracts, and have credited them with the payment made by them to the plaintiff, and with a further sum sufficient to cover their reasonable expenses incurred after June 20, in the completion of the house according to the contract, and to indemnify them for the defects in materials furnished, and for any diminution in the permanent value of the house, by reason of deviations by the plaintiff from the terms of the contract.</p> <p>By the original contract, the balance due to the plaintiff was to be settled at the expiration of thirty days from the time when the building shall be completed, and I have found that the defendants might have completed the building by the 11th day of July, I have considered that the plaintiff is entitled to interest on the balance due him, from the expiration of thirty days after July 11, to the date of the plaintiff’s writ, and I have charged the defendants in said account with interest accordingly.</p> <p>The result of the account so stated shows the amount due from the defendants to the plaintiff, at the date of his writ, to have been thirteen hundred and fifty-three dollars and twenty-six cents. ($1,353.26.)</p> <p>The defendants claimed to have allowed them the amount of a certain order drawn on them by Bassett, desiring them to pay G. N. Black & Co., or order, nine hundred dollars, when the house I am now building for you under contract, dated November 20, 1845, is finished according to said contract.’</p> <p>The said order was accepted by the defendants, who agreed ‘ to pay the same when the said Bassett has finished' the house according to the terms of the contract.’</p> <p>And a receipt was indorsed on the original contract of nine hundred dollars, by accepting an order in favor of G. N Black & Co. No payment has ever been made on said acceptance, and G. N. Black & Co., at the hearing before me, tendered the said acceptance to the defendants ; but the defendants did not accept said tender, and said acceptance was surrendered to me to be placed on the files of the court for the defendants’ use, and the same has been delivered by me to the clerk of the court, and has been filed by him with the papers in the case. I disallowed the amount of their acceptance as a credit to the defendants.”</p>

This was an action of debt on a bond given by the defendant, as surety of John Delay, on Delay’s obtaining a license to sell the real estate of certain minors, of - whom he was guardian. The writ was dated October 15, 1849, and the case was tried in this court before Metcalf, J., by whom it was reported for the consideration of the whole court.

<p>A., being seised of an estate in fee, by his deed, dated December 26, 1777, conveyed to B. and others, and the survivor of them, as joint tenants, but without words of limitation to their heirs or to the heirs of the survivor, in trust to and for the use of a Lodge of Freemasons, to the only proper use, benefit, and behoof of the lodge forever. A., by his last will, gave all his real and personal estate to his children and grandchildren, and, at the death of one of the sons, his share of A.’s estate descended to the plaintiff. The plaintiff brought an action ■to recover her undivided part of the estate conveyed to the lodge; but it was held, that the conveyance was in trust, and the estate did not descend to the heirs of the grantor.</p>

<p>Debt on a bond. It was submitted to this court on an agreed statement of facts.</p> <p>The plaintiffs recovered judgment against "William Gibbs, the father of the defendant, at the court of common pleas holden at Boston, within and for the county of Suffolk, on the first Tuesday of January, 1848, for the sum of two thousand seven hundred and fifty-eight dollars, and eleven cents debt, and seven dollars and twenty-six cents costs of suit, upon which judgment execution issued, bearing date March 4, 1848. Upon this execution, William Gibbs was arrested and duly committed to the commonwealth’s jail at Concord, in the county of Middlesex, on the 27th day of March; and on the same day he was discharged from confinement, on giving a bond for the prison limits, in the usual form, executed by himself as principal, and two sureties duly approved by two justices of the quorum, as by law is required. On the same day, he gave notice of his desire to take the poor debtor’s oath, and the thirtieth day of March was fixed upon for the examination under the statute, and notice thereof was duly served on the plaintiffs. At the appointed time and place, the examination commenced, but,- before it was concluded, it was agreed between the creditors and debtor, that the plaintiffs should take a bond duly executed by William P. Gibbs, the defendant, with the same conditions usually annexed to a bond for the prison limits, and that, thereupon, the plaintiffs should release the sureties upon the prison limits bond, by a sealed release in due form. The Dlaintiffs executed a release accordingly, and William P. Gibbs executed a bond according to his agreement, being the bond on which this action was brought.</p> <p>The proceedings at the examination were adjourned to the 27th day of April then next, and afterwards to the 23d day of May then next; and, William Gibbs not appearing at the time and place of the last adjournment, no further proceedings were had.</p> <p>After the execution of the bond, the debtor went at large without the exterior limits of the prison, and never instituted any other proceedings for his discharge, and never has surren* dered himself to the jailer, nor been surrendered to be held in close confinement.</p> <p>Upon the foregoing statement of facts, the case is submitted to the whole court for their adjudication, as to them shall seem meet, and law and justice may require. If the court shall be of opinion that the bond declared on is not wholly void, and that the defendant has a right to show the actual damage sustained by the plaintiffs, the case is to be sent to a jury for the assessment of damages under the direction of the court.</p> <p>cited The Bank of Northern Liberties v. Oresson, 12 S. & R. 306 ; Thom v. Savage 1 Blaekf. 51; Keene v. Deardon, 8 East, 298; People v. Judges of Dutchess County, 5 Cowen, 34; Clap v. Cofran, 7 Mass. 98; Freeman v. Davis, 7 Mass. 200; Burroughs v. Lowder, 8 Mass. 373; Bartlett v. Willis, 3 Mass. 86; Flagg v. Tyler, 3 Mass. 303; Hall v. Cashing, 9 Pick. 395; Glezen v. Rood, 2 Met. 490 ; Posterne v. Hanson, 2 Saunders (Wms.) 59 a, n, St. 23 Henry VI. c. 9, in Vin. Abr. Bail, E ; Raven v. Stock dale, Vin. Abr. Bail, F; Johns v. Stratford, Cro. Car. 309, Hall v. Carter, 2 Modern R. 304; Benson v. French, Lat. 98 Sid. 132.</p> <p>If the instrument declared on is any thing, it is a bond for the prison limits, but it is invalid as such a bond, because not executed by William Gibbs, the person committed on execution. Clap v. Cofran, 7 Mass. 98; Clapp v. Hayward, 15 Mass. 276 ; Simonds v. Parker, 1 Met. 508. It is also invalid at common law; for, though bonds varying in some respects from the requisitions of the statute have been held to be good at common law, yet, in all those cases, the parties to the instrument are right, while in this case they are not right. Bean v. Parker, 17 Mass. 591; Purple v. Purple, 5 Pick. 226 ; Bull v. Clarke, 2 Met. 587.</p> <p>This bond is in the nature of a wager, and is void as against public policy, for various considerations.</p>

This was an action on a probate bond, against Cunningham, as executor of Samuel H. Hewes, and the sureties in the bond. The executor and one of the sureties were defaulted. The other surety denied the execution of the bond, and an issue thereon was submitted to the jury and found for the plaintiff. The case was then submitted to a master, to ascertain the amount of the estate of Hewes, which had come to the hands of Cunningham, as executor, and for which he had not accounted.

<p>This was an action of trespass on the ease, the trial of which was commenced in this court before Fletcher, J. The case was taken from the jury by consent of parties, and reported for the consideration of the whole court.</p> <p>The action was founded on an alleged breach of a supposed warranty by the defendant, that a certain building or warehouse, the lower floor and basement of which had been hired by the plaintiffs of him, was reasonably fit for occupancy and use as a dry goods warehouse, in the several stories thereof. To sustain the action, the plaintiffs introduced a written agreement between George W. Gerrish on the first part, and Dutton, Richardson & Co. on the second part, as follows: — “ That the first party agrees to let the warehouse, first floor and basement, in Federal street, next to that of S. Parsons & Co. for the term of five years from January 1,1848, for the sum of eighteen hundred and fifty dollars per annum, payable quarterly, and to put the same in such repairs and order, with'such furniture as the party of the second part may require, and much in the same manner as that done for Messrs. Parsons & Co.; the party of the second part also to pay taxes; the party of the second part also agree to lease the store now occupied by them to the party of the first part, for the remainder of the term that said store is leased to the party of the second part, and at the said terms. It is also agreed, that the rent of neither store is to be paid by the contracting parties till from and after the 1st of April next.</p> <p>The parties of the first and second part hereby agree to take said store, as above stipulated, and to make leases as soon as convenient. It is also agreed, that such furniture and fixtures as are now owned by D., K,., & Co. may be removed or sold for their benefit. ■ And it is also understood and agreed, that the quarterly rent and taxes of store in Water street shall be deducted from the quarterly rent and taxes of store in Federal street, and the excess only be paid by the parties of the second part to the parties of the first part; and also the parties of the first part agree to whitewash the walls reflecting the light in the store in the rear.”</p> <p>The plaintiffs then offered to prove that under and in pursuance of this agreement, they put their goods into the parts of the building specified in the agreement, and that, shortly after, the building fell down, by means of which the plaintiffs’ goods were damaged to a great amount, for the recovery of which damage the suit was brought.</p> <p>The plaintiffs further offered to prove that the building was a new, large building, the plaintiffs, and others who hired the other parts of the building about the same time, being the first occupants; that the defendant was a master builder, and that the building was erected by himself, and under his own direction and inspection, and was badly, improperly, defectively, and insecurely built, so that it was not reasonably fit for occupancy as a dry goods warehouse; and that, by reason of its being badly, improperly, defectively, and insecurely built by the defendant, all which was unknown to the plaintiffs, and could not be discovered by them, the warehouse fell down and broke up, and injured and destroyed the plaintiffs' goods.</p> <p>The plaintiffs further offered to prove that, before the written agreement between the parties was made and entered into, one of the plaintiffs asked the defendant if the building was sufficiently strong; he replied that it was, and that he would warrant it would stand if filled with pig lead.</p> <p>The plaintiffs did not charge or offer to prove any actual fraud on the part of the defendant.</p> <p>The plaintiffs claimed that, upon the agreement between them and the defendant, and the proofs offered, they were entitled to maintain their action, upon the ground of an express or implied warranty by the defendant, that the building was reasonably fit for occupancy and use, as a dry goods warehouse.</p> <p>On the part of the defendant it was insisted that, upon the agreement between the parties, and the proofs offered, there was, in point of law, no warranty on the part of the defendant, expressed or implied, on which this action could be maintained.</p> <p>If the court are of opinion that the action cannot be maintained, then judgment is to be entered for the defendant, as on a statement of facts or on a nonsuit, as may be directed by the court. If the court are of opinion that the action can be maintained, then the case is to be sent to the jury for trial, open to any defence which the defendant may be able to make.</p> <p>The party agreeing to lease, in this case, impliedly warranted that the store was reasonably fit for the purpose for which it was leased, he being the builder and knowing its defects, the same being great. Howard v. Hoey, 23 Wend. 350; Smith v. Marrable, 11 M. & W. 5 ; Sutton v. Temple, 12 M. & W. 52; Hart v. Windsor, lb. 68 ; Salisbury v. Marshall, 4 C. & P. 65 ; Edwards v. Etherington, Ryan & Moody, 268; Collins v. Barrow, 1 Moody & Robinson, 112; Pickering v. Dowson, 4 Taunt. 779; Jones v. Bright, 5 Bing. 533; Brown v. Edgington, 2 Man. & Gran. 279; Gardiner v. Gray, 4 Camp. 144; Gallagher v. Waring, 9 Wend. 20 ; Vam, Bracklin v. Fonda, 12 Johns. 468; Bluett v. Osborne, 1 Starkie’s R. 384; Gray v. Cox, 4 B. & C. 108; Laing v. Fidgeon, 6 Taunt. 108; Chitty on Con. 6th Am. ed. 440; 1 Cushing’s Domat, 266 ; 1 Evans’s Pothier on Obligations, 43-148.</p>

This was a bill in equity, brought to redeem a parcel oí real estate, situate on the northerly side of Franklin street, in Boston. It was filed on the twenty-first day of December, 1849.

<p>If a party, not the indorsee, places his name in blank on a note, before it is nego tiated or passed, the holder may fill up the blank so as to charge such indorse] as a joint and several promisor and surety.</p> <p>In a suit by the payee of a promissory note, against one who indorsed it in blank at the time it was given, parol evidence is admissible to show the real nature of the transaction.</p>

<p>These were two actions for injuries sustained by the plaintiffs’ intestates, while crossing the defendants’ track. The trial in both cases was in this court, before Bigelow, J., who ruled that the actions could not be maintained. The facts sufficiently appear from the opinion of the court.</p>

<p>This was an action on the case, in which the plaintiff, a minor, seventeen years of age, sues by his father, as his next friend, to recover damages alleged to have been sustained by him, by reason of an accident, occasioned by a defect in the switch, at the junction of the Brookline branch with the main track of the railroad of the defendants.</p> <p>At the trial, which was in this court, before Bigebw, J., it appeared that the plaintiff, a minor, with his father’s consent was in the employment of the defendants, as an apprentice in their machine shop. At the immediate time of the accident however, he was acting as fireman to a locomotive, but without any additional compensation.</p> <p>The plaintiff contended, that the accident was caused by the breaking of the joint of the switch rod, and that the same was insufficient for the purposes for which it was used, and of an improper construction, and that the defendants were guilty of negligence, in the construction of the rod and joint, for which they were responsible to the plaintiff in damages, although guilty of no misconduct or gross carelessness.</p> <p>But, upon the foregoing facts, the judge having intimated an opinion that the plaintiff was not entitled to recover, even if the defendants had been guilty of the negligence contended for by the plaintiff, it was agreed by the parties, that the case should be taken from the jury and reported to the full court. If the court should be of opinion that the plaintiff could maintain his action, the case was to stand for trial on the merits ; but if the court should be of the opinion that the plaintiff could not recover, a nonsuit was to be entered.</p>

This was an action of assumpsit for goods sold and de* livered, to which the defendants pleaded the general issue. It was tried in this court before Bigelow, J., and reported by him to the full court. The facts are sufficiently stated in the judgment.

This was a bill in equity, brought by Robert Hooper, executor and trustee under the will of his father, Robert Hooper, of Marblehead, deceased, for the purpose of obtaining the direction of this court, in regard to the true construction of the will, and his duties under it.

These were actions of covenant. John H. Braynard, on the 1st day of January, 1844, executed two promissory notes, by each of which he promised to pay to William J. Walker or order, the sum of thirty-seven hundred dollars, in three years from date, with interest semiannually, at the rate of six per cent.

<p>A. agreed to carry B. in his vessel to California, if B., who was a carpenter, would do what worjc was necessary in preparing her for sea, and during the voyage. Before the vessel was ready for sea, A. refused to carry B., except on condition of his paying $25 and signing the shipping papers. B. signed the papers, and, at the same time, gave the shipping master a note for $25. On the day the vessel sailed, A. turned B. out of his vessel, giving as a reason the non-payment of the $25. B. brought an action for a breach of contract, and it was held, that A. might show that the original parol agreement was, subsequently and before the sailing of the vessel, modified by further stipulations entered into between the parties, and that such modified agreement needed no new consideration to make it the basis of future liabilities between the parties; that it was a question for the jury whether the shipping agent had authority to take the note of B. for $25, as cash, and so, whether the modified agreement had been fully performed byB.</p> <p>When the instruction to the jury is such that the ground upon which the verdict was rendered cannot be ascertained, it must be set aside.</p>

<p>In an action by a mutual insurance company against one of its members, for an assessment made on a deposit note, where the note itself recites the receiving of a policy, such recital is primó, facie evidence that a policy has been issued; and it is no ground for a new trial, that only an abstract of the policy was introduced in evidence by the company.</p> <p>The promisor in a deposit note, given to a mutual insurance company at the time of taking out a policy, is estopped from setting up, in an action for an assessment made on the note, the want of an insurable interest in the property.</p> <p>An assessment may be made by a mutual insurance company on the whole amount of a deposit note, although the promisor has an insurable interest in a part only of the property covered by the policy.</p> <p>A mutual insurance company need not proceed, after every loss happening to it, to compute the assessments on its deposit notes requisite to meet such loss, but may adopt a rule of proceeding that will approximate as near as is practicable and reasonable to the above method.</p>

<p>Ownership of personal property once proved, is presumed to continue until an alienation is shown; merely parting with the possession is not conclusive evidence of a change of title.</p> <p>Possession of personal property with the consent of the true owner, does not raise a legal presumption of title against such owner.</p> <p>In trover, a demand and refusal is evidence of a conversion, conclusive if not rebutted, or explained.</p>

<p>Under a will by which all the residue and remainder of the testator’s estate is given to trustees, in trust to pay over and distribute the income to and among his five children, one fifth to each, during their respective lives, with remainder over, such children are entitled to their respective proportions of the income of such residue from the decease of the testator.</p> <p>Under a will by which the testator gives all his property in trust, with power to the trustees to sell and reinvest, and to make partition and division of the same, and to pay to the beneficiaries the income of the respective shares assigned to them, if the property remains undivided, each beneficiary is entitled to his proportion of the income actually earned by the trust fund, whether it exceeds six per cent or not.</p>

These were actions of assumpsit for money had and rev ceived. They were heard in the court of common pleas, before Bigelowi J., on the following agreed statement of facts, and, judgment having been ordered for the defendant in all of them, the plaintiffs appealed to this court. In the evening of August 16,1848, a general meeting of the friends of Ireland was held in Faneuil Hall, in Boston.

This was an action of covenant, tried in the court of common pleas, before Wells, C. J., and brought before this court by exceptions taken by the defendant.

<p>This was an action of covenant brought by the plaintiffs, as trustees under the will of the late Edward Tuckerman, to recover of the defendants the sum of sixty-one dollars and sixty-six cents, being the taxes assessed by the city of Boston for the year 1848, upon certain premises on Washington street, occupied by the defendants.</p> <p>At the trial, before Bigelow, J., in the court of common pleas, the plaintiffs, to prove their case, offered in evidence a lease from themselves to the defendants of the premises above mentioned, for the term of three years from the 1st of May, 1845, whereby the defendants covenanted that they would, during that term, and for such further time as they should hold the premises, pay unto the plaintiffs, their successors, and assigns, a certain yearly rent, and all taxes and assessments whatsoever, which might be payable for or in respect of the premises during the term, or during such further time as the defendants might hold the premises. It appeared that the defendants had occupied the premises under the lease, and paid the rent from May 1, 1845, until August 1, 1848, having continued in possession of the premises for three months aftei the expiration of the term, by agreement with the plaintiffs. It also appeared that the plaintiffs, prior to the commencement of this suit, had paid to the city the sum of sixty-one dollars and sixty-six cents, for taxes assessed on the premises for the year 1848.</p> <p>The judge ruled that, under the covenant relating to taxes, the defendants were liable to pay the taxes assessed on the premises for the year 1848.</p> <p>The defendants then proved that the plaintiffs made a lease of the premises to one Thomas F. Norris, for five years from the 1st of August, 1848, containing a similar covenant relating to the payment of taxes; and that Norris began to occupy the premises on the 1st of August, 1848.</p> <p>Noras, being called as a witness by the defendants, testified that, about the 1st of October, 1848, a bill for two months’ rent of the premises, and for sixty-one dollars and sixty-six cents for taxes, was presented to him by the plaintiffs, and that he paid the same, including the charge for taxes, to William Sohier, Esquire, who acted as agent for the plaintiffs; and that, on or about February 24, 1849, the defendants paid to Norris a bill containing the following items: “ For rent of rooms from August 1,1848, to October 1,1848, $58.33; for taxes on rent from May 1 to August 1, 1848, $15.41; for taxes on rent from August 1,1848, to October 1,1848, $4.50.” On cross-examination, Norris testified that when the above bill was presented to him by Mr. Sohier, he objected to paying the taxes therein charged, on the ground that he was not, by the terms of the lease, liable to pay the taxes for the year 1848, but that these objections were overruled by Mr. Sohier, by whom he was told he was liable to pay the taxes for the year 1848 under his lease, and that, on reference to his lease, he came to the conclusion that he was liable for the taxes for the year 1848, and he accordingly paid the same as the taxes for the year 1848. He further testified that Mr. Sohier, at the time he paid the taxes, said something about his deriving some advantages at the end of the term, in being released from paying the taxes for that year, but he concluded it was doubtful whether he should realize any such advantages.</p> <p>The plaintiffs then called William Sohier, Esquire, who testified that he called on the defendants for the tax for the year 1848, and they refused to pay, and, at their suggestion, he called on Norris for the payment of the tax ; that he made out the bill, charging taxes sixty-one dollars and sixty-six cents, and presented it to Norris ; that Norris asked if he was liable for the taxes; that he told Norris he thought he was not liable in law; that Norris said he was willing to pay taxes for the number of years he occupied, and preferred paying the first year’s taxes to those of the last year of his term; that, thereupon, he agreed with Norris to take the sum of sixty-one dollars and sixty-six cents, for the taxes for the year 1853 ; and that Norris paid that sum, and he received it for the taxes for the year 1853.</p> <p>It appeared in evidence that Sohier acted in the matter throughout as the agent of the plaintiffs, and that he was, in connection with his copartner, Mr. Lowell, the attorney of record in this case, and that the writ was made at their office. This was the substance of all the testimony in the case. The credit due to the testimony of Mr. Norris on the one hand, and Mr. Sohier on the other, was fully argued on both sides, and was submitted to the jury.</p> <p>The plaintiffs asked the judge to rule, that a payment made under such circumstances would not constitute a bar to the plaintiffs’ claim; but the judge instructed the jury that, if they were satisfied, by the evidence, the burden of proof being on the defendants, that the plaintiffs had demanded and received of Norris payment in full for the taxes on the premises for the year 1848 and not for 1853, and that the defendants had knowledge of this payment and assented to or ratified the same, then the plaintiffs could not recover in this action.</p> <p>The jury found a verdict for the defendants, and the plaintiffs alleged exceptions.</p> <p>cited Rev. Sts. c. 7, §§ 7, 8; Hcmkshaw v. Rawlings, 1 Strange, 23; Young v. Ruddle, 2 Salkeld, 627; Merriam v. Bacon, 5 Met. 95; Graham on New Trials, 271.</p> <p>cited Itev. Sts. c. 7, §§ 7, 19-24; Train v. Collins, 2 Pick. 145; Thompson v. Lothrop, 21 Pick. 336; Thorndike v. Boston, 1 Met. 242; Frothingham v. Haley, 3 Mass. 68; Lent v. Padelford, 10 Mass. 230, 236, Odióme v. Maxcy, 13 Mass. 178; Same v. Same, 15 Mass. 39, Story on Agency, §§ 239, 243-247; and, as to what constitutes ratification, §§ 253, 256; Foster v. Bates, 12 M. & W. 226; Hull v. Pickersgill, 1 Brod. & Bing. 282.</p> <p>This case was argued and decided at a former term.</p>

<p>A member of a congregational church, who is elected its treasurer, to receive and invest, in his individual name, the funds of the church, and who does so invest them, holds the funds as a trustee for the church, and is subject, as such trustee, to the jurisdiction of a court of equity.</p> <p>The phrase, “ or other similar officers,” in Rev. Sts. c. 20, § 39, means officers of similar character and with corresponding functions with those of deacons in congregational churches, and church-wardens in episcopal churches. Other officers, such as a treasurer, not of a character similar to that of deacons, can hold property of the church only as trustees.</p> <p>A congregational church is neither a corporation nor a quasi corporation.</p>

<p>These suits came before this court on an agreed statement of facts, -which sufficiently appear in the opinion of the court.</p> <p>The first is an action of assumpsit, brought by the plaintiff against Coffin and his associates, in their capacity as assignees of the insolvent estate of Horace Gray & Co., to charge the assets in their hands with the payment of the sums due from the Boston Iron Company to the plaintiff. The declaration alleges that the defendants were, in their capacity as assignees, members and stockholders of the corporation, at the time when the corporation, by reason of the plaintiff’s payments for its use and benefit, and on its account, became indebted to the plaintiff for the amounts so paid, and that the assets in the defendants hands were more than sufficient to pay him; that these sums were, at the date of the writ, still due from the corporation to the plaintiff, but that the corporation was unable and had refused to pay them; that, by reason of these facts, the estates and funds in the hands of the defendants are by law liable to pay the same to the plaintiff, and that it is, therefore, the duty of the defendants to pay him, but though requested, they have refused, &c.</p> <p>The second is an action of assumpsit, brought by the plaintiff against the corporation, to recover judgment for the sums of money due from it to the plaintiff, on account of the payments above stated.</p> <p>The third of the above-named suits is a bill in equity, filed by the complainant as a creditor of the corporation, in which the corporation and the individual stockholders are respectively made respondents, including Coffin and his associates, as proprietors of the eighty-four and a half shares formerly owned by Horace Gray & Co., the complainant describing himself as the proprietor of eighty shares. The bill sets forth the facts above stated, and, if the complainant has not a light, as he contends he has, to claim the whole amount paid by him from any stockholder, or from the corporation, a right which he does not waive by bringing his bill, at least he contends that, under his bill, he has a good claim for contribution against all the stockholders, in the proportion of the number of shares which they hold to the whole number of shares of the capital stock. The prayer of the bill is for an account, for a decree for contribution against the individual respondents, and for further relief.</p> <p>If the court shall be of opinion that the first action, against Coffin and his associates, and the assets in their hands, can be sustained upon the facts agreed, judgment is to be rendered for such amount as the court shall direct, otherwise, the plaintiff is to become nonsuit in said action; unless the court shall be of opinion that Coffin and his associates are personally liable to the plaintiff for the debts due to him from the corporation, in which case the writ and declaration in the first action are to be amended accordingly, and the plaintiff is to take judgment in accordance with such amendment.</p> <p>If the court shall be of opinion that Coffin and his associates are not liable to the plaintiff, either personally or officially, nor that the assets in their hands are liable for the debts due to him from the corporation, such judgment is to be rendered in favor of the plaintiff in the second action, as the law requires; and in case the court are of opinion that the plaintiff has no remedy against Coffin and his associates, under the first action, the plaintiff submits that he is entitled to the relief sought in his bill in equity.</p> <p>The plaintiff has not offered to prove any claim against the estate of Horace Gray & Co., founded upon the premises, before the master in chancery.</p> <p>The statutes which apply to this corporation are St. 1808, c. 65, § 6 ; St. 1817, c. 183 ; and St. 1821, c. 38, which made members directly liable. The subsequent acts of 1826, c. 137, and 1829, c. 53, are applicable only to such corporations as may adopt them, which this corporation has not done.</p> <p>A member who has a debt against a corporation has the rights and remedies of other creditors. Peirce v. Partridge, 3 Met. 44, 48 ; Revere v. Boston Copper Co. 15 Pick. 351.</p> <p>Hooper, Bullard, and Coffin are members of this corporation. Overseers of the Poor of Boston v. Sears, 22 Pick. 122, 130; In re Long Islcmd R. Co. 19 Wend. 37; Ex parte Holmes, 5 Cowen, 426; Ex parte Barker, 6 Wend. 509; Ex parte Willcocks, 7 Cowen, 402; Ellis v. Essex Merrimack Bridge, 2 Pick. 243; Sargent v. Essex Marine Railway, 9 Pick. 202; Chester Glass Company v. Dewey, 16 Mass. 94 ; Eames v. Wheeler, 19 Pick. 442; Gilbert v. Manchester Iron Mammfactwring Co. 11 Wend. 627 ; Quiner v. Marblehead Inswramce Co. 10 Mass. 476; Sargent v. Franklin Insurance Co. 8 Pick. 90 ; Insolvent Act of 1838, c. 163, §§ 5, 11. See also the proxies under which one of the defendants has acted at meetings of the corporation, above recited.</p> <p>Assignees in bankruptcy may make themselves liable to the burdens imposed on the estate which comes to their hands. Copeland v. Stephens, 1 B. & Aid. 593; Welch v. Myers, 4 Campb. 368; Thomas v. Pemberton, 7 Taunt. 206; Clark v. Hume, 1 Ry. & Mo. 207; Page v. Godden, 2 Starkie R. 309; Hanson v. Stevenson, 1 B. & Aid. 303; Gibson v. Cowrth ipe, 1 D. & R. 205 ; Carter v. Warne, 4 C. & P. 191 ; Turner v. Richardson, 7 East, 335; Hastings v. Wilson, F. L Holt, 290; South Staffordshire Railway v. Burnside, 2 Eng. Law & Eq. R. 418.</p> <p>The liabilities of the members of this corporation, under the act of 1821, are full and direct, without any distinction as to the capacity in which the member holds his stock. These liabilities have not been modified by subsequent legislation; or, if they have been modified, the trust estates of members who hold as trustees are left liable to creditors. St. 1826, c. 137, §§ 4, 5 ; Kelton v. Phillips, 3 Met. 61.</p> <p>If the defendants, Hooper, Cofiin, and Bullard, are not liable, personally or officially, under the act of 1821, their trust estates are liable under Rev. Sts. c. 38, § 34. An analysis of this chapter will show that this section applies to all manufacturing corporations, and St. 1838, c. 98, § 1, makes this clear.</p> <p>If the defendants, Hooper, Coffin, and Bullard, are not liajfie under the act of 1821, or under Rev. Sts. c. 38, § 34, to pay the plaintiff his whole debt, they and all the other stockholders are liable in equity to a contribution. The remedy in equity is given by Rev. Sts. c. 44, § 22. The liability to contribute depends upon the broad principle of equity, that, where a common burden is discharged by one, all are bound to contribute. Gheesebrough v. Millard, 1 Johns. Ch. R. 409 ; Stevens v. Cooper, Ibid. 425; Campbell v. Mesier, 4 Johns. Ch. R. 334; Dering v. The Earl of Winchelsea, 1 Cox, 318; S. C. 2 Bos. & Pull. 270; Craythorne v. Swinbwrne, 14 Yes. 160 ; Kemp v. Finden, 12 M. & W. 421: 1 Story’s Eq. Juris. §§ 492, 496.</p> <p>1. These defendants are not members of the corporation for the debts of which they are sought to be charged, within the meaning of the acts imposing an individual liability; because their interest as assignees does not make them such, and because the shares owned by the insolvent have never been transferred to them, and they do not appear to be shareholders on the books of the company. Dodgson v. Bell, 3 Eng. Law & Eq. R. 542; Weald of Kent Canal Cor. v. Robinson, 5 Taunt 801; Copeland v. Stephens, 1 B. & Aid. 593; South Staffordshire Railway Co. v. Burnside, 2 Eng. Law & Eq. E. 418.</p> <p>2. If members, they are not under any personal liability to pay debts or contribute towards payment, because they hold, if at all, as trustees. St. 1827, c. 137, § 4.</p> <p>3. The suit at law cannot be maintained, the plaintifi and defendants being both shareholders. Andrews v. Callender, 13 Pick. 484; St. 1829, c. 53, § 11; Harris v. First Parish in Dorchester, 23 Pick. 112; Bailey v. Baucker, 3 Hill, 188; Brigden v. Cheever, 10 Mass. 450; Stedmm v. Eveleth, 6 Met. 114. Nor is a member liable to a suit at law by a creditor. St. 1808, c. 65; St. 1817, c. 183; St. 1821, c. 38; St. 1826, c. 137; St. 1829, c. 53; Eev. Sts. c. 38; Stone v. Wiggin, 5 Met. 316 ; Knowlton v. Ackley, 8 Cush. 93; Eev. Sts. c. 36, § 11.</p>

<p>This was an action of covenant broken, commenced on the 15th of August, 1849, against George D. Dutton, Ormond Dutton, George C. Richardson, and Charles W. Pierce, composing the firm of Dutton, Richardson & Co.; and Augustus Brown and Joseph Dix, composing the firm of Augustus Brown & Co., upon their joint and several covenant, reciting that “whereas Augustus L. Welles has made to Elbridge Brown a certain chattel mortgage for the purposes therein expressed, and whereas the said Elbridge Brown has consented to take possession and dispose of the said mortgaged property, and for that purpose hath appointed the said Augustus Brown and George C. Richardson, jointly and severally, his lawful attorneys: now these presents witness, that in consideration of the premises, and of ten dollars to us paid, we, the said Dutton, Richardson & Co., and Augustus Brown & Co., do hereby, jointly and severally, covenant and agree with the said Elbridge Brown, and his assigns, as follows, viz: that the said firm of Dutton, Richardson & Co., so soon as the cash shall be realized by the sale and disposition of the said mortgaged property, shall pay to the said Elbridge Brown the sum of five hundred dollars to his sole use; that the said firm of Augustus Brown & Co., so soon as the cash shall be realized by the sale and disposition of the said mortgaged property, shall pay to the said Elbridge Brown the further sum of five hundred dollars to his sole use.”</p> <p>The plaintiff alleged, in his declaration, “ that the cash has been realized by the sale and disposition of said mortgaged property, in the manner contemplated by the said deed ; yet that neither the said firm of Dutton, Richardson and company, nor the said firm of Augustus Brown and company, nor any of the persons composing either of those firms, have or hath paid either of the said several sums of five hundred dollars, so as aforesaid to be paid to the said plaintiff, or any part thereof, but wholly neglect and refuse so to do, though thereto requested since the cash was realized, as aforesaid ; nor have the said defendants, or either of them, paid the same to the plaintiff, since the neglect and refusal of the said firms so to do ; and so the plaintiff says that the said defendants their covenants aforesaid have not kept, but have broken the same.”</p> <p>Augustus Brown and Joseph Dix were defaulted.. The other defendants pleaded the general issue.</p> <p>At the trial before Bigelow., J., in this court, it appeared that Augustus L. Welles of Detroit, on the 21st of March, 1848, mortgaged personal property to the plaintiff, to secure payment of $10,973, in equal instalments of three, six, and nine months. Eleven hundred and fifty dollars of this sum were due to the plaintiff; $4,043.65 were due to Augustus Brown & Co.; $4,779.35 to Dutton, Richardson & Co.; and $1,000 to Bramhall, Fairbanks & Co.- The condition of the mortgage was thus: “ In case default shall be made in the payment of said sums, or any part thereof, at the times above limited, or in case the said Brown,” (the plaintiff,) “ who herein represents the interests of Augustus Brown & Co., and Dutton, Richardson & Co., as well as his own, or, in case of his decease, Augustus Brown & Co. shall deem it for the interest of all concerned, then it shall be lawful for the said Brown, (the plaintiff,) his executors, administrators, or assigns, or his or their authorized agents, to enter upon the premises of the said Welles, or any place or places where said goods or chattels, or any part of them, may be, and take possession thereof, and sell and dispose of the same, at the best prices which can be obtained therefor, at private sale or public auo tion, as he may deem meet and best, and ont of the money arising therefrom to pay and retain the said sum of money above mentioned, and all charges of said sale, (if so much there shall be,) rendering the surplus moneys, if any, to said Augustus L. 'Welles.”</p> <p>It also appeared that, on the 5th of April, 1848, the plaintiff (mortgagee) gave a power of attorney to Augustus Brown and George C. Richardson, one of them being a member of the firm of Augustus Brown & Co., and the other of the firm of Dutton, Richardson & Co., (whose debts, as well as that of the plaintiff and that of Bramhall, Fairbanks & Co., the mortgage was given to secure,) authorizing them, in his name and behalf, to take possession, manage and dispose of, and convert into money, the property mortgaged as before stated, and the proceeds to distribute and divide, to and among the several persons mentioned and provided for in the mortgage, at their risk and expense, without any charge for personal services. The plaintiff also, in the power of attorney, authorized his attorneys to substitute one or more attorneys under them. And they afterwards substituted Joseph F. Dickinson.</p> <p>It further appeared, that on the same day on which the power of attorney was made to Augustus Brown and George C. Richardson, the individual members of the two firms of Augustus Brown & Co., and of Dutton, Richardson & Co., executed the instrument, above set forth, and on which this action was brought.</p> <p>It also appeared from the testimony of Joseph F. Dickinson, the substituted attorney, that he went to Detroit, in April, 1848, and took possession of the property mortgaged by Welles to the plaintiff, and sold most of it to Lyon, Farnsworth & Co. and others, partly for cash and partly for their notes, payable at different times; the last of the notes being payable in November, 1849. That he gave up to Welles the residue of the property, worth from $1,000 to $1,200, and discharged the mortgage; that the amount of the proceeds of the property, which he disposed of, was $9,795.76, of which between $3,000 and $4,000 he paid in expenses and. in discharge of prior mortgages on the same property ; that on the 3d of July, 1848, he delivered to Dutton, Richardson & Co. notes taken for the property so sold by him, (which notes were secured by mortgage,) to the amount of $3,575.48, and goods, part of the mortgaged property which was not sold, worth $325; and to Augustus Brown & Co. notes, taken for goods sold, to the amount of $2,899.56.</p> <p>It did not appear that either or all of the defendants had received $1,000 in cash, from the sale and disposition of the mortgaged property, before the commencement of this action. Six or seven hundred dollars only were shown to have been so received; although it was in evidence that, at the time of the trial, much more than $1,000, in cash, had been so received by the defendants.</p> <p>The case was taken from the jury, by consent of the parties, with an agreement that if the whole court should be of opinion that the plaintiff, on the foregoing evidence, is entitled to recover, the four defendants, who pleaded to issue, should be defaulted; otherwise, that the plaintiff should become nonsuit so far as relates to those defendants.</p>

<p>This was an action of trover, brought to recover the value of nineteen and one third barrels of clam bait, alleged to have been converted by the defendants to their own use. It was tried in the court of common pleas before Mellen, J., who signed the following bill of exceptions : —</p> <p>“ It appeared in evidence that the clam bait was shipped by Thomas Donaldson, from Halifax to Boston, in the schooner Boston, consigned to the plaintiff. On the arrival of the vessel in Boston, the bait was put in charge of the defendants, agents for the owners of the véssel, with instructions not to deliver the same till the freight and the passage of Mr. Donaldson, who came in the same vessel, was paid; it being alleged that it was agreed at Halifax, that the passage of Mr. Donaldson, the father of the consignor, should be paid from the proceeds of the bait.</p> <p>Several questions arose in the course of the trial; but it was unnecessary to report any, except such as relate to an alleged tender, made by the plaintiff to the defendants, of the freight and wharfage of the bait.</p> <p>The plaintiff contended that he did certain acts, previous to bringing this action, which amounted to a tender to the defendants of their whole freight and wharfage of the bait and of their whole claim, except ten dollars, the passage of Mr. Donaldson. He further also admitted that, unless he had made a tender, he could not maintain this action.</p> <p>The defendants admitted certain acts to have been done by the plaintiff on two several occasions, to wit, on the 22d and 29th days of June, 1848, as alleged by the plaintiff, but they denied that they amounted to a tender.</p> <p>Upon the evidence bearing upon the question of tender, the court instructed the jury, first, that, in order to constitute a tender, the plaintiff must have offered the defendants the money unconditionally, so that it could have been received by the defendants, if they wished to take it, unless they waived, by their declaration or act, such production of the money; second, that, if the defendants were ready and willing to receive the money offered, but declined to give up the property till a larger sum was paid, and thereupon the plaintiff refused to leave his money, but went away, taking his money with him, saying he would see about it, such an act would not constitute a tender; third, that the defendants’ asking a larger sum than the amount tendered would not, of itself, amount to a waiver of the production of the money.”</p> <p>The jury found a verdict for the defendants, and the plaintiff excepted.</p> <p>cited Thayer v. Brackett, 12 Mass. 450; Boring v. Cooke, 3 Pick. 48; Breed v. Hurd, 6 Pick. 356; Richardson v. Boston Chemical Laboratory, 9 Met. 42; 3 Stephens’s Nisi Prius, 2602.</p>

This was an action of assumpsit for work and materials. At the trial, in the court of common pleas, the plaintiffs’ books constituted their only evidence, except as to the value of day labor. It was stated that the entries were originally made on a slate by one plaintiff, and subsequently copied into the daybook by the other, and the suppletory oath of both plaintiffs was offered in verification.

<p>This was a writ of entry to recover a parcel of real estate, situated at the corner of Centre and Southac streets, in Boston. The writ was dated July 8, 1850. The tenant pleaded the general issue, with a suggestion of improvements made by him more than six years prior to the date of the writ, and also relied on the statute of limitations.</p> <p>The action was tried in this court before Bigelow, J., and reported by him for the consideration of the whole court.</p> <p>To prove his case the demandant offered the following documentary evidence, namely: —</p> <p>1. A deed bearing date April 30, 1829, from John Low and others to George B. Holmes, the brother of the demandant, conveying the demanded premises.</p> <p>2. The will of George B. Holmes, bearing date September 2, 1829, and duly proved and allowed, September 14, 1829, whereby the demandant and his brothers and sisters were made residuary devisees of the estate of the testator, of which the demanded premises formed a part. George Putnam and James Burr were appointed executors of the will.</p> <p>The demandant then offered evidence to show that George B. Holmes, the testator, died seised of the demanded premises in 1829 ; that Solomon Holmes, the demandant, Elizabeth Holmes, Rosanna Holmes, Israel Holmes, Samuel Holmes, and William Holmes, were the brothers and sisters of the testator at the time of his death; that all of them, except Elizabeth, were minors at the time of the testator’s death; that the demandant was then ten or eleven years of age ; that Samuel and William were younger than the demandant; that their father died before the death of the testator; that the demandant and the other children, who were minors, had no guardians legally appointed at any time; that two of his brothers, named as devisees, namely, Samuel and William, had died before suit brought. Samuel died fourteen and William five years before suit brought.</p> <p>It further appeared that no person was in possession of the demanded premises after the death of the testator, until the sale thereof by the executors of the will, as hereinafter stated</p> <p>The tenant then offered in defence the following doeumen tary evidence, namely: —</p> <p>1. Letters of executorship, dated September 14, 1829, to George Putnam and James Burr, as executors of the will of George B. Holmes, from the probate court for Suffolk county.</p> <p>2. A list of debts due from the estate of Holmes, amounting to ¡§534.88, presented to the probate court April 26,1830, subscribed, and sworn to by the executors.</p> <p>3. A petition, presented May 10, 1830, to the judge of probate, by the executors, for leave to sell real estate sufficient to pay debts, &c., with the order thereon.</p> <p>4. A letter of license to the executors to sell so much real estate as will raise the sum of $416.63, and $60 for incidental charges, bearing date June 14, 1830, the executors to give notice of time and place of sale by posting, or publication, three weeks successively, in the Daily Commercial Gazette, published in Boston, first taking the oath by law required, &c., but requiring no bonds.</p> <p>5. A deed from the executors to Alexander Townsend, dated July 10, 1830, duly acknowledged and recorded, conveying the demanded premises, reciting that they were sold at public auction, and covenanting that the executors were duly qualified, and had taken on themselves the trust, and had full authority to execute and pass the deed; that Holmes’s estate was solvent; and that the premises were free from all incum-brances from Holmes, the executors, or either of them.</p> <p>6. A deed from Alexander Townsend to Madison Beal, dated June 29,1831, duly acknowledged and recorded, conveying the demanded premises.</p> <p>Two objections to the validity of the sale by the executors to Townsend were relied upon by the demandant. 1. That some of the residuary devisees under the will of George B. Holmes, were minors at the time of the sale, to whom no guardian was' appointed. 2. That the proper oath was not taken, nor the proper notice of the sale given by the executors. But the evidence on these points became immaterial to the decision of the case.</p> <p>It was admitted that the demandant had resided in this commonwealth for five years after attaining his majority, and after his title, if any, to the premises had accrued; and that he was then about thirty-three years of age.</p> <p>On the foregoing facts, the judge instructed the jury to return a verdict for the tenant.</p> <p>H the court shall be of opinion that any of the foregoing evidence was wrongly admitted, and that, excluding such evidence, the demandant is not barred by the statute of limitations from claiming title to any portion of the premises, but has a legal title to any part thereof, the verdict is to be set aside and a new trial granted, or such other order is to be passed by the court as they shall think proper; otherwise judgment is to be rendered for the tenant on the verdict.</p>

<p>This was an action on the case for a libel, published on the 5th day of July, 1850, in a newspaper called the “Boston Pilot,” of which the defendant was publisher and proprietor. The trial was in this court, before Bigelow, J., who reported the case to the full court.</p> <p>The defendant pleaded the general issue, and also the truth of the statements contained in the article', the contents of which do not seem material to the present case.</p> <p>The presiding judge gave full and explicit instructions on the question of damages, to which no exceptions were taken by the defendant. The jury returned a verdict for the plaintiff, and assessed damages in the sum of eighteen hundred dollars.</p> <p>The defendant thereupon filed his motion to set aside the verdict, and grant him a new trial, on the ground of excessive damages.</p>

<p>This was an action of assumpsit, brought to recover the sum of seventy-one dollars and eighty-five cents, with interest, which the defendants received from the plaintiff through the collector of taxes, and which was delivered to the collector under protest, to prevent a levy upon and sale of the plaintiff’s land, for the collection of a tax assessed by the city on land of the plaintiff, under the circumstances set forth in an agreed statement of facts, which are sufficiently stated in the opinion of the court.</p> <p>If the court shall be of opinion that the plaintiff, upon these facts, can maintain his action, judgment is to be entered for the plaintiff for the above sum of $71.85, with interest from payment; otherwise, the plaintiff to become nonsuit.</p> <p>Judgment having been ordered by Bigelow, J., for the defendants, the plaintiff appealed to this court.</p> <p>cited Boston v. Shaw, 1 Met. 130; Goddard, Petitioner, 16 Pick. 504.</p> <p>cited Boston v. Shaw, 1 Met. 130, and cases there cited; Osborn v. Danvers, 6 Pick. 98; Preston v. Boston, 12 Pick. 7.</p>

<p>This was an action of debt, for the rent reserved in a written lease, signed and sealed by the parties, which stipulated^ bo far as material, that Charles C. Foster, doth hereby “ lease, demise, and let unto S. M. Peyser, a certain brick dwelling-house, situated on Harrison avenue, in Boston, to be used as a private dwelling-house only, and not as a boarding-house; and it is understood and agreed that the owner shall not be called upon or liable for any repairs whatsoever on said premises during the lease, the house being now in perfect order. To hold for the term of three years ‘from the fifteenth day of August, 1848, yielding and paying therefor the rent of three hundred and fifty dollars per annum. And the said lessee doth promise to pay the said rent in four equal quarterly payments, on the fifteenth day of November, February, May, and August, during the lease, and to quit and deliver up the premises to the lessor, or his attorney, peaceably and quietly, at the end of the term, in as good order and condition, reasonable use and wearing thereof, fire and other unavoidable casualties excepted, as the same now are, or may be put into by the said lessor, and to pay the rent, as above stated.”</p> <p>The plaintiff declared in this suit for the quarter’s rent, which became due by the terms of the above lease on the 15th day of May, 1850. The trial was in the court of common pleas, before Bigelow, J., and the case came before this court on the defendant’s exceptions.</p> <p>It was admitted that the defendant had paid to the plaintiff all the rent which had previously become due under the lease, being six quarters.</p> <p>The defendant offered evidence to show that, soon after the execution of the lease, and about the time when the defendant went into occupation of the premises, a noisome and filthy stench existed in the house, which rendered it disagreeable to the inmates and injurious to their health; that, soon after the defendant moved into the house, some members of his family suffered from sickness, and that there was much sickness in his family while he remained on the premises; that this sickness was occasioned or aggravated by the bad state of the air of the house; and that this stench continued without abatement, from the time the defendant moved into the house until he removed therefrom, in April, 1850. The evidence of the defendant also tended to show, that this stench was caused by a defect in, or want of repair of, the drain of the house, and it would have cost from two to three hundred dollars to put the drain in repair, so as to remedy the difficulty, but it did not distinctly appear by the evidence what the precise difficulty was in the drain, nor that such outlay was necessary to put it in good order.</p> <p>The defendant also offered evidence to prove that, soon after he moved into the house, he complained to the plaintiff of the stench in the house, and that he repeated these complaints several times subsequently. It also appeared that the plaintiff, in answer to these complaints, expressed his ignorance of the cause of the stench, and that he sent a mechanic to the premises to examine into and remedy the difficulty; that this person, sent by the plaintiff, did go to the premises on several occasions, and made such repairs as he thought necessary, all of which proved unsuccessful.</p> <p>It further appeared, that the defendant abandoned the occupation of the premises, on or about the first day of April, 1850, and notified the plaintiff that he should no longer continue to pay the rent of the premises under the lease, alleging that the house had become untenantable. The plaintiff offered evidence to show that the stench did not exist to the extent described by the witnesses of the defendant.</p> <p>It was admitted by the defendant that, during the second quarter of his occupation of the premises, he caused pipes and fixtures for the use of gas to be put into the house, having obtained an agreement from the plaintiff to pay one half the cost thereof, at the termination of the lease. It was also in evidence that, during the fifth quarter of the defendant’s occupation, the plaintiff, at the request of the defendant, purchased and caused to be set up in the house a cooking-range, and that the defendant agreed to pay one third of the expense thereof.</p> <p>On the foregoing evidence, the defendant asked the judge to instruct the jury, (1) that if, at the time of letting the house, the plaintiff knew of the nuisance, and did not disclose it to the defendant, and that the defendant hired the house, supposing it to be in perfect order, then such letting was a fraud on the defendant, and he was not bound by the lease ; and the judge so instructed the jury; (2) that there was an implied agreement, in the letting of a house for a private residence, that it is reasonably fit for habitation ; (3) that, in this case, there was an express covenant or warranty on the part of the plaintiff, that the house was, at the time of the execution of the lease, in perfect order ; that, therefore, if the jury should find that the house was not in perfect order at the time of the execution of the lease, but was, owing to the nuisance aforesaid, not reasonably fit for habitation during the time the same was occupied by the defendant, he was not fiable in this action.</p> <p>The judge refused to instruct the jury as requested by the defendant, on the second and third points above stated.</p> <p>The jury were requested by the judge to find, whether the house was in perfect order at the time of the execution of the lease. The jury found a verdict for the plaintiff, and, in answer to the inquiry by the judge, stated that they found the house was not in perfect order at the time of the execution of the lease, but that the fact was not known .to the plaintiff at the time.</p> <p>cited Taylor’s Landlord & Tenant, 184; Collins v. Barrow, 1 Moody & Rob. 112; Smith v. Marrable, 11 M. & W. 5; Cowie v. Goodwin, 9 Car. & P. 378; Salisbury v. Marshal, 4 Car. & P. 65.</p> <p>cited Sutton v. Temple, 12 M. & W. 52; Hazrt v. Windsor, lb. 68; Dutton v. Gerrish, ante, 89; Fowler v. Bott, 6 Mass. 63 ; Phillips v. Stevens, 16 Mass. 238; Bigelow v. Collamore, 5 Cush. 226 ; Westlake v. De Graw, 25 Wend. 669.</p>

<p>A release by two of three joint obligees is a bar to a suit by the third, brought in the name of the three, for one third of the benefit of the contract. In such joint action the plaintiffs cannot set up that such release was a fraud on one of their number, and thus deprive the defendant of a legal defence to the claim of the three.</p> <p>No action at law can be maintained on a joint agreement by the plaintiffs and defendants, who were all members of the same joint stock company, formed to purchase a vessel of the plaintiffs.</p> <p>Parol evidence that a contract, signed by the plaintiffs jointly with the defendants, and apparently a joint undertaking by all the signers, was in fact signed by tho plaintiffs as one party, and by the defendants as a second party, is inadmissible as tending to contradict or control a written instrument.</p>

<p>In an action against A. and B- on a promissory note, signed by A. & Co., the point in issue being whether B. was a partner in the firm of A. & Co. at the date of the note, evidence that until A. commenced business under the firm of A. & Co., his credit was bad, is entirely irrelevant.</p> <p>In an action against two, as alleged copartners, evidence of statements and declarations, which would be admissible only upon the assumption of the existence of the copartnership, is incompetent to prove such copartnership.</p> <p>On the reexamination of a witness, no questions can be put which do not relate to matters inquired into on the cross-examination.</p> <p>The fact sought to be established by the plaintiffs in a suit being the existence of a copartnership between the defendants, under a certain name, a judgment recovered by the same plaintiffs against the same defendants, as copartners, under such name, on a note given at the same time with the one in suit, is admissible, though not conclusive evidence of that fact.</p> <p>In an action on a promissory note, against A. & B., as copartners, under the name of A. & Co., B. denying that he was a partner of A. at the date of the note, a letter written by a third party, who was a salesman and purchasing agent of A. & Co., to B., in which the writer said, that A. had stated to him that a copartnership had been formed between A. and B., and that he wrote to ascer tain whether B. was “ really responsible, as one of the partners, for the payment of the goods bought for this store/’ adding, “ this proceeding is rendered necessary, from the fact that you will need, or, at least, do need now a credit, in order to carry on the business successfully,” and “ I write this with the knowledge of A,” which letter was never replied to by B., — taken in connection with a subsequent conversation between the writer and B., in which the letter was talked about, and B. was again asked by the writer, whether he was a partner in the firm of A. & Co., to which he replied, that he should neither admit nor deny it,— is competent evidence to be submitted to the jury, in connection with the other testimony, to prove the copartnership.</p>

<p>A. and B. entered into an entire contract, by which B. was to do a specific piece of work for A. Before it was completed, B. addressed to A the following note* “ I hereby authorize B-. B-. to finish the job already commenced . . . and to take the balance, whatever may be due;” and A. indorsed thereon, “Whatever balance may be due on the within job, when completed, as per agreement, shall be paid to R. R.” B. subsequently brought an action against A. on the contract, in his own name, and it was held that the action could not be maintained.</p>

<p>These were two cross-actions between the same parties, and arising out of the same transaction.</p> <p>The first was an action of assumpsit with the money counts, to recover back the purchase-money of the barque Averon, sold by the defendants to the plaintiffs.</p> <p>At the sale there was no warranty, but the sale was made under representations as to the condition of the timbers and fastenings of the vessel. After the sale, the plaintiffs had the vessel examined, when they found some of the timbers unsound ; they attempted to repair these, and, in doing so, made further discoveries as to the condition of the timbers and fastenings, and immediately offered to return the vessel to the defendants.</p> <p>At the trial, in the court of common pleas, the plaintiffs introduced evidence that, with the defendants’ knowledge, they bought on the faith of these representations; that the representations were materially false, and were known to be so by the defendants at the time they were made.</p> <p>The defendants refused to receive the vessel, and contended that this action would not lie, inasmuch as the mechanics employed by the plaintiffs to make repairs, after the sale, had a lien on the vessel for their labor, at the time of the return, by force of the statute of 1848, c. 290. The plaintiffs admitted that such lien existed by law, but offered to prove that the labor of the mechanics was for the purpose of putting the vessel in the condition in which she was fraudulently represented to be at the time of the sale; that this work was stopped, as soon as the extent of the defects was ascertained ; that the plaintiffs employed the mechanics on a personal contract only, and were personally liable to them for their charges; that no lien or security on the vessel was given in terms, or alluded to in the contract between the plaintiffs and the mechanics ; that the plaintiffs had not refused to pay the bills of the mechanics, nor had the mechanics demanded payment of their bills of either party, or made any attempt or offer to enforce their lien, at the time of the offer to return. It further appeared that, after the offer to return, the plaintiffs did no further acts of ownership, and the mechanics libelled the vessel in admiralty, to enforce their lien, and the vessel was sold by a decree of that court, neither of the parties to this suit appearing as claimants.</p> <p>The presiding judge, Wells, C. J., ruled that, under no state of the evidence, could the plaintiffs return the vessel and maintain this action, if the mechanics, at the time of the return, had, in fact, a lien on the vessel, which they had a legal right to enforce. To this ruling the plaintiffs excepted.</p> <p>Afterwards, the plaintiffs amended their declaration, by altering their action to an action for deceit, in which the verdict was for the defendants on the merits.</p> <p>The second of these actions was assumpsit, brought to recover the balance (part having been paid in cash) of the purchase-money of the barque Averon, sold by the plaintiffs to the defendants, in Boston, on the 20th of February, 1849, under a written agreement of that date. It was tried with the former action.</p> <p>The defendants pleaded the general issue, and filed a specification of defence, alleging, 1st, a warranty of the soundness and thorough fastening of the vessel, and a breach of the warranty ; 2d, fraudulent misrepresentations in regard to the condition, soundness, and fastenings of the vessel; 3d, that the vessel was worth less than the defendants had already paid for her, and they had abandoned the purchase and returned her to the plaintiffs.</p> <p>The plaintiffs proved the agreement and sale, and rested their case.</p> <p>The defendants introduced the evidence of the broker who negotiated the sale on the part of the defendants, to show the circumstances of the sale and the representations made. Among other representations, there was evidence that Cast ner, one of the owners, and agent of the others, and ship’s husband, stated, prior to the sale, that Jordan, a co-owner, told him that he had examined, repaired, and bored the vessel, fifteen months previously, and found her sound; and that, at the time of the repairing, he had put in a new piece of the thick streak; but of which Castner knew nothing of his own knowledge, and referred them to Jordan, then in Boston.</p> <p>The defendants next called Enos Holbrook, a shipwright, who was employed by the defendants, at the time of their purchase, to repair the vessel in Boston, and fit her for a voyage to California; and he testified to the general defective state of the vessel. The defendants asked the witness, whether, in his opinion, judging from the condition of the timbers, as seen by him, in March, 1849, it would be possible for a man to have taken off a piece of the thi.ck streak and replaced it with new, fifteen months before, without discovering that the timbers under it were decayed. The plaintiffs objected to the competency of the question, but it was admitted by the judge, on‘the ground that it was a proper question to an expert. To this ruling the plaintiffs excepted.</p> <p>The defendants having introduced the above evidence, that Castner represented that Jordan had informed him that he had examined, bored, and repaired the vessel, fifteen months prior to the sale, but of which he knew nothing of his own knowledge, and having shown that Castner, at the time of making the statement, had referred them to Jordan, who was then in town; and it being proved that the defendants, thereupon and prior to the purchase, had an interview with Jordan, the plaintiffs requested the judge to instruct the jury, that the burden of proof was on the defendants, to satisfy the jury, 1st, that Jordan made the statements alleged by Castner to have been made; 2d, that the statements, if any, made by Jordan, were fraudulent. The plaintiffs also requested the judge to instruct the jury that, when Castner, one joint-owner, and the agent of the others, innocently states a fact not of his own knowledge, and as told to him by Jordan, another joint-owner, and, at the same time, refers the party to Jordan, who is thereupon seen by them, Castner is not responsible for the truth of such fact.</p> <p>• On these points, the judge instructed the jury, that, if •Jordan had not made these statements to Castner, Castner was guilty of a fraud in stating to the defendants that he had made them, but that the legal presumption was that Castner told the truth, when he stated that Jordan had made these representations; that, if the jury were satisfied that Jordan made these representations, it was for them to determine, from the evidence, whether the representations were false and fraudulent, or not, and that the burden of proving the fraud was on the defendants.</p> <p>The judge further instructed the jury that if Jordan, being part-owner of the vessel, employed Castner to sell her, and made these representations to him, and authorized him to repeat them to persons treating for the purchase of the vessel, and Castner, acting on this authority, did make these representations to the defendants, as an inducement for them to make the purchase, the plaintiffs were, in law, responsible for their representations so made and repeated, in the same way as if they had been made directly by Jordan to the defendants, although Castner was innocent of any fraudulent intent, and believed that Jordan’s representations were true.</p> <p>The judge further instructed the jury that if, at the inter ■view between Jordan and the defendants, Jordan made a correct representation of the appearance of the vessel at the time of her repair, the plaintiffs would not be affected .by the statements of Castner.</p> <p>The law of fraud, as applicable to this case, was fully laid down by the judge, and the instructions on this head were not objected to by the plaintiffs.</p> <p>The defendants having brought a cross action on the case, for deceit in the sale of the vessel, to recover damages, the plaintiffs objected to any evidence being given in this suit, to avoid the contract, or reduce the damages on the ground of fraud, contending that the defendants were not entitled to avoid the contract or reduce the damages in that action, and also sustain their cross action, but must elect one or the other remedy. But the judge ruled that the defendants might give such evidence in the plaintiffs’ action, to avoid the contract, or reduce the amount claimed by the plaintiffs to the extent of that amount; and that, if the damages sustained by the defendants, by the fraud and misrepresentations, exceeded that sum, the defendants might recover such excess in their cross action ; but, by setting up this defence, they precluded themselves from recovering any thing but such excess in their action.</p> <p>To this ruling the plaintiffs excepted.</p> <p>The jury found a verdict for the defendants, and the plain tiffs moved for a new trial, for the following reasons, to wit:—</p> <p>1st. Because Mr. Ballard, one of the jurors by whom the verdict therein was rendered, had, prior to the time of the trial, examined the barque Averon, the subject of that suit, about the time of'her abandonment by the defendants, and had then formed an opinion of the condition of the vessel at the time of her sale to the defendants, and was not an unprejudiced and unbiased juror, and was thereby rendered incompetent as a juror in the cause.</p> <p>2d. Because Ballard, after the cause was committed to the jury, and before the verdict, stated to his fellow-jurors, not in the presence of the judge, and not as a witness under oath, that he had “ examined the vessel and knew all about her • that she was more rotten than she was proved to be at the trial, and that she was rotten throughout; that he would bet five hundred dollars that, if she were opened now, it would be found that she was rotten in places where one of the plaintiffs’ deponents said he had found her sound’when he repaired her; for he, Ballard, saw rot in those places when he looked at her.”</p> <p>All which matters and things were unknown to the plaintiffs until after the verdict was rendered; whereby the plain tiffs were prejudiced, and suffered manifest wrong and injury by the improper conduct of the juror. And the plaintiffs prayed that the verdict in the cause might be set aside, and a new trial ordered.</p> <p>On the hearing of this motion, the plaintiffs offered to prove, by Ballard and by the foreman of the jury, the truth of the facts stated in the motion for a new trial, in respect of Ballard; but the presiding judge ruled that the testimony of these witnesses could not be received; that the jurors were not competent witnesses to prove the facts stated in the plaintiffs’ motion for a new trial, it appearing that the plaintiffs proposed proving that these statements were made while the jury were together, deliberating upon the verdict they should render.</p> <p>To this ruling the plaintiffs excepted.</p> <p>cited Jameson v. Drinkald, 12 Moore, 148; Sills v. Brown, 9 Carr. & P. 601; Jefferson Insurance Co. v. Cotheal, 7 Wend. 72; Farar v. Warfield, 8 Martin, (N. S.) (20 La. R.) 695; Harger v. Edmonds, 4 Barb. R. 256 ; Stone v. Denny, 4 Met. 151.</p> <p>cited Bridge v. Eggleston, 12 Mass. 245; Dorr v. Fenno, 12 Pick. 521; Hannum v. Belchertown, 10 Pick. 311; Murdock v. Sumner, 22 Pick. 156; Meade v Smith, 13 Conn. 346; Clugage v. Swam,, 4 Binney, 150 ; Clum v. Smith, 5 Kill, 560 ; Brownell v. McEwen, 5 Denio, 167, Tenny v. Evans, 1U N. H. 462; Erase v. Delaval, 1 T. R. 11 Owen v. T'Pcw&Wj rawi, 1 New Rep. 326.</p> <p>The plaintiffs cannot prove the bias of a juror, if they failed to interrogate Mm on the voir dire. Commonwealth v. Flanagan, 7 W. & S. 415 ; Simpson v. Pitman, 13 Ohio, 365; Billis v. The Staie, 2 McCord, 12; Vennum v. Harwood, 1 Gilman, 659.</p>

<p>The St. 1851, c. 87, relates to writs of error on past as well as future judgments, and such a construction does not make it an ex post facto act.</p>

This was an indictment for cheating by false pretences, tried before Byington, J., in the municipal court of the- city of Boston; and the defendant, being there convicted, filed his exceptions, upon which the case came into this court.

<p>This was an indictment, containing two counts, one for larceny of bank bills, belonging to John S. Fowler, and the other for receiving the bills, knowing them to have been stolen. King, one of the defendants named in it, was tried in the municipal court of the city of Boston, before Perkins, J.; and Albion L. Mellen, the other defendant, pleaded guilty generally.</p> <p>There was evidence that Mellen, the other person named in the indictment, was in the employment of Fowler, as his clerk and servant, and was in the habit of receiving money on checks drawn by Fowler, for Fowler, and doing other Dusiness for Fowler, as he was directed; that, on the morning of the eighth day of December, 1851, Mellen received from Fowler a check on the North Bank, in Boston, for fourteen hundred and fifty-seven dollars, with directions to draw the same from the bank, and, with the money received, to take up certain notes of Fowler, then due and payable at other banks in Boston, the money being, at the time, on deposit at the North Bank, in Fowler’s name. Some time previous to the eighth day of December, 1851, Mellen and King, having a knowledge that the above check was to be drawn on that day by Fowler, and would come into the hands of Mellen, agreed that they would take the money which should be drawn thereon by Mellen, and appropriate it to their own use; but, on the day before the eighth day of December, in consequence of some fears and misgivings on the part of King, about carrying out some of the terms of the agreement, Mellen supposed that the agreement might not be carried out; and when, on the morning of the eighth, Mellen received the check from Fowler for fourteen hundred and fifty-seven dollars, he was not certain that he should meet King; and if he did not meet him, he expected that he should receive the money and apply it according to Fowler’s directions. But, while Mellen was on the way to the bank, with the cheek in his possession, King met him, and ascertained that he had the cheek in his possession, and they then proceeded to carry out their original agreement above stated. They went into the building where the bank was, and Mellen went into the bank, while King remained in another room of the building near by. Mellen drew the money and immediately joined King, and gave him four hundred dollars of the money; and they both went off to get the money each had received changed into the bills of other banks, for the purpose of preventing detection and securing the money. They secreted themselves in Boston for a time, and afterwards went to some other place, where they were arrested, and a part of the money found on each was secured.</p> <p>The defendant, King, contended that the jury had no right to find, on these facts, that a larceny had been committed by anybody, and so they could not convict the defendant on either of the counts in the indictment. But, there being evidence that when Mellen took the check, on the morning of December 8th, he had not the purpose of converting the money to his own use, and nothing to show the contrary, the judge ruled that, although Mellen might have received the .check without any positive intent, at the time, to appropriate the money to be received thereon to his own use, yet if, while he had the check in his hands, and was on his way to the bank, he met King, and the two then agreed that Mellen should use the check in pursuance of the previous agreement and combination, as a trick or contrivance to obtain the money of Fowler then in the bank, with the present purpose of appropriating it to his own use; and, thereupon, Mellen and King should feloniously appropriate the money so obtained to their own use, against the will and without the knowledge of Fowler; and Mellen, in pursuance of this agreement and understanding, did use the check as a contrivance for getting Fowler’s money out of the bank into his possession, with the above intent, and in the manner agreed, and did obtain Fowler’s money thereon, and King received the money in the manner charged and set forth in the second count of the indictment, the jury would be justified, all other facts necessary to constitute the larceny being proved, in finding, on these facts, that the money was taken by larceny, for the purpose of this indictment, in the second count thereof.</p> <p>The jury found the defendant, King, guilty of receiving four hundred dollars of the money charged to have been received in the second count of the indictment, in manner as set forth; whereupon he alleged exceptions to the above instructions.</p>

<p>A. trustee who refuses to deliver on the execution, any goods, &c., of the principal debtor, or to pay any money, is liable to a scire facias, although the principal debtor was committed on execution.</p>

<p>A determination expressed by a testator, in a codicil to his will, to make an alteration in the will in one particular, negatives by implication any intention to alter it in any other respect.</p> <p>A .testator, by his last will and testament, gave to A., B., and C., a legacy of $2,000 each, and also to each an equal share with others named in the residue of his estate. By a codicil, which recited that his intention in respect to the legacies to A., B., and C. was not carried into effect by his will, he provided as follows : '• I, therefore, in this particular, declare my will to be, that the sum of $6,000 shall be taken by ” A., B., and C., “ or those of them who shall survive me, they to share alike; but if all these persons shall die in my lifetime, then the said sum shall sink into the residue of my estate. I declare this provision for said legatees to be in lieu of, and as a substitute for, that made in their behalf by the aforewritten will, and this writing shall be taken as a codicil thereto, hereby ratifying said will in all other particulars ; ” — and it was held that this codicil did not revoke the residuary gift in the will to A., B., and C.</p>

<p>L. & B., booksellers and publishers in B., owned a building in C., which was leased by them to B. & H., printers, and N. & R., bookbinders. B. & H. contracted to do all L. & B.’s printing, so far as they were able, and N & R. their binding; but L. & B. had printing and binding done at other establishments. L. & B. had stereotype plates and paper stored at C., in fire-proof buildings on the same lot of land with the above-mentioned building, B. & H. having a right to enter and take out the plates whenever they had occasion to use them for printing. L. & B. paid a tax in the city of B. for personal property of the firm, and L. also paid a personal tax in C. where he resided. The City of C. imposed a tax on the stereotype plates and paper stowed there, and it was held to be illegal, L. & B. having no “ place of business ” at C. within the meaning of Rev. Sts. c. 7, § 13</p>

<p>This was an action of assumpsit to recover one half of the proceeds oí the sale of the wreck of the brig “ Maria L. Hill,” the plaintiff claiming to be part owner. It was submitted to this court upon the following agreed statement of facts:—</p> <p>On the twenty-third day of November, 1843, Ira W. Brown, of Perry, in the State of Maine, was owner of a brig named the Maria L. Hill, then lying in the port of Perry. On the same day, Brown, by a bill of sale, conveyed one undivided half of the said brig to Henry Eice, of Boston, in consideration of two thousand dollars, in which bill of sale was contained the usual clause of defeasance.</p> <p>The bill of sale was duly recorded on the same day in the records of the town of Perry.</p> <p>On the same 23d day of November, Brown, in consideration of the sum of five thousand dollars, conveyed the brig to Messrs. Gregerson & Sumner, of Boston, subject to the lien created by the mortgage to Henry Eice before mentioned, by a bill of sale containing this clause of defeasance:—</p> <p>“ That if the said Ira W. Brown pay, in six, nine and twelve months, in three equal payments, unto the said Greg-erson & Sumner, the sum of thirty-three hundred dollars, and also such sums as they shall hereafter pay for insurance, and all their commissions on business done or to be done for said brig, then this instrument to be void.”</p> <p>On the 24th day of November, 1843, Brown conveyed one fourth part of the brig to Alfred Hill, by a bill of sale, the consideration in which was fifteen hundred dollars, ño mention being made in the bill of sale of the previous conveyances to Eice and to Gregerson- & Sumner.</p> <p>On the 2d day of December, 1844, Gregerson & Sumner caused the brig to be insured by the Equitable Safety Insurance Company, in Boston, for the sum of seventeen hundred dollars, on account of whom it might concern, the loss payable to Gregerson & Sumner. The risk was for a month from the 1st day of December, 1844. In the policy, the brig was valued at nine thousand dollars. On the 3d day of December, 1844, Gregerson & Sumner caused .the brig to be insured by the Warren Insurance Company, at Boston, for the sum of five thousand dollars, for whom it might concern, the loss payable to them. The risk was for one month from the first day of December, 1844. In the policy, the brig was valued at nine thousand dollars. The above insurance was effected by Gregerson & Sumner, to cover the interest of Alfred Hill in the brig, as well as their own, they having been duly authorized thereto by Hill. Nice did not take possession under his mortgage.</p> <p>In the month of December, 1844, within the time covered by the policies, on her passage from New York to Boston, the brig met with a total loss, and was abandoned to the underwriters, who paid to Gregerson & Sumner the whole amount of the two policies before mentioned. Gregerson & Sumner have duly accounted to Mr. Hill for his interest in the payment made under the policies.</p> <p>The hull, sails, rigging, and materials of the brig, thus abandoned to the underwriters, were sold by the defendant as the agent of the underwriters, on the 12th of March, 1845, and produced the net sum of one thousand and fifty-six dollars and nineteen cents. The sums paid to the Equitable and Warren Insurance Companies severally, out of the proceeds of the sale, were, according to the proportion which the amount insured at each office bore to the estimated value of the brig; that is to say, fifty-ninetieth parts, being five hundred and eighty-six dollars and seventy-eight cents, were paid to the Warren Insurance Company, and seventeen-ninetieth parts, being one hundred and ninety-nine dollars and fifty cents, were paid to the Equitable Insurance Company; and the remainder, two hundred and six.ty-nine dollars and ninety-one cents, were reserved for the plaintiff by the defendant, and he has always been ready and willing to pay the same. The insurance companies have refused to pay the amounts claimed of them.</p> <p>The plaintiff contends that, under his mortgage, he is entitled to the sum of five hundred and twenty-eight dollars and nine cents, being one half the net amount received by the defendant, with interest from March 12th, 1845, the time the same was received by the defendant, and this action is brought to recover that sum.</p> <p>An action has been also commenced in this court by the plaintiff, against Ira W. Brown upon his notes above mentioned, in which Gregerson & Sumner have been summoned as trustees. That action is still pending, and Gregerson & Sumner, in their answers, deny that the plaintiff has any right to any of the money received by them from the insurance offices. [See the next case.]</p> <p>Judgment is to be entered for the plaintiff, for such sum as, in the opinion of the court, he may be entitled to recover from the defendant and the Equitable and Warren Insurance Companies.</p>

<p>This was an action to recover the sum of fifteen hundred dollars and three cents, being the amount of three promissory notes, dated the 28th of November, 1843, payable in six, nine, and twelve months, with interest from the date. The writ was dated the 26th of December, 1844. The defendant was defaulted; and the only question was as to the liability of W. H. Gregerson and F. A. Sumner, summoned as his trustees. The question was submitted to this court upon an agreed statement of facts, which, so far as material, are stated in the opinion of the court. The case was argued at a former term.</p>

This was an action of trover, by the plaintiff, as assignee of David Austin, to recover the value of a quantity of carpeting and furniture. It was submitted to the court of common pleas on an agreed statement of facts, whence it came to this court by appeal. David Austin was a furniture and carpet dealer, in Boston, and, on the ninth day of November, 1848, he sold out his stock of goods to one Royal Chase, who came to Boston, from Swansey, about that time.

This was an action on the case, to recover damages of the defendant, as a deputy of the sheriff of Suffolk, for taldng insufficient bail on mesne process, in a suit of Danforth against one Charles Pierce and others.

<p>In an action against the maker of a promissory note, payable at a place certain, no demand at that place need be proved. Exceptions overruled with double costs.</p>

<p>This was an action to recover the amount of three promissory notes, and was tried in the court of common pleas, before Bigelow, J., under whose rulings a verdict was found for the defendant, and the plaintiff filed a bill of exceptions; the facts sufficiently appear in the opinion of the court.</p>

<p>This was an action of assumpsit, tried before Mellen, J., in the court of common pleas. The writ contained the usual general counts and a count upon an account annexed, with a specification of claim, the same as the account annexed, which was as follows : —</p> <p>“ Defendant to plaintiff Dr. in 7,123 lbs. sole leather, at 14 cts. per lb. $997.34.”</p> <p>Subsequently, by leave of court, four special counts were filed, setting forth a contract between the plaintiff and defendant, in which it was alleged that the plaintiff agreed to furnish to the defendant the requisite leather, &c., to be by him manufactured into shoes of various kinds, and which leather the defendant was to take at the plaintiff’s store, and return to the plaintiff at his store when manufactured, for which the plaintiff was to pay the defendant the expenses of bottoming and fitting the shoes, and the sum of seven cents per pair, in full for all other services in the manufacture and return. These counts alleged various breaches of the contract. One of them alleged that a large portion of sole leather, delivered to the defendant for the above purpose, the defendant had converted to his own use, contrary to the above contract, whereby the same was wholly lost to the plaintiff; alleging also the value of the leather so converted. Another of the counts alleged a failure on the part of the defendant to manufacture and return a large part of the sole leather so delivered by the plaintiff to him, either manufactured into shoes, or in any other way, alleging the value of the leather, and that the same was wholly lost to the plaintiff by reason of such breach of contract.</p> <p>Another of the counts alleged that the defendant so negligently and unskilfully conducted himself in such business, that, by reason thereof, a large portion of the sole leather so delivered to him by the plaintiff was wasted and lost. There was also another count, alleging a conversion of the leather by the defendant, by permission of the plaintiff, and an agreement, in consideration thereof, to pay the plaintiff the reasonable value thereof, alleging such value.</p> <p>The defendant pleaded the general issue, and filed a specification of defence, alleging a return to the plaintiff, in shoes, of all the leather delivered.</p> <p>When the action was commenced, the writ contained only the general counts and that upon the account annexed. After two of the special counts had been filed by leave of court, the case was referred to an auditor, who made a report. Subsequently thereto, by leave of court, the remaining special counts were filed, and one of the prior counts amended.</p> <p>The third term after the auditor’s report was returned and filed, the cause came on for trial, when the plaintiff offered the report in evidence, to which the defendant objected; first, because it appeared by the report, that the auditor had erred in admitting the testimony of two of the plaintiff’s witnesses. It appeared that these witnesses were in the employment of the plaintiff at the time of the contract in question, and, by agreement with the plaintiff, were to receive, as compensation for their services, a certain portion of the net profits of the business ; but were under no agreement to pay any losses, any further than such losses went to diminish the amount of such profits. It also appeared that the business was carried on solely in the name of the plaintiff; and that, upon the objection being taken before the auditor, a release had been executed by the witnesses. This objection to the auditor’s report was overruled by the judge.</p> <p>Secondly, the report was objected to, because the plaintiff had filed the amendments above mentioned since the hearing before the auditor. This objection was overruled by the judge, it appearing that no motion had been made by the defendant to recommit the report to the auditor for further hearing, and the defendant declining to move for further time to make such motion.</p> <p>Thirdly, because the auditor erred in reporting as he did, how much was due from the defendant to the plaintiff on a statement of accounts between the parties, instead of simply finding the amount of leather delivered, and the number of shoes returned.</p> <p>The auditor’s report was then read to the jury.</p> <p>The plaintiff introduced evidence that, in the exercise of ordinary care and skill, it would require only 1| or lj lbs. per pair of sole leather, to make the men’s shoes or brogans returned by the defendant, there being no dispute about the amount of sole leather required to make the other kinds oi shoes returned by the defendant; and that, at that rate or estimate, it did not require so much sole leather, to make the shoes returned by the defendant, as had been delivered to him by the plaintiff; and that there was, therefore, a large amount unaccounted for. There was no evidence showing the manner in which the defendant conducted the business of manufacturing the shoes. The plaintiff also gave evidence of the contract, as alleged in the declaration; and it also appeared by the same evidence, that the seven cents per pair, named in the agreement, for the defendant’s services, &c., were to be paid, six cents in money, and one cent upon each pair by allowing the same on account of a prior debt from the defendant to the plaintiff. There was evidence that, on such prior debt, the plaintiff had received a dividend. The declaration contained no allegation touching such method of paying the seven cents per pair. The defendant objected that this constituted a variance, but this was overruled by the judge.</p> <p>The plaintiff also gave evidence that, prior to the com mencement of this suit, he demanded a return of the remaining leather or shoes, and that the defendant replied, that the whole of the leather delivered to him had been returned in the shoes that the plaintiff had received.</p> <p>The defendant’s counsel, in opening his case to the jury, proceeded to comment, by way of argument, upon the testimony already offered by the plaintiff; but the judge declined to permit him to argue such evidence and facts to the jury, and ruled that the proper course was for the defendant’s counsel, in opening, to confine himself to a statement of the grounds of the defence, and of the facts which he expected to prove. There were two counsel engaged in the defence. To this ruling the defendant excepted.</p> <p>Some of the defendant’s witnesses described the sole leather which they supposed had been received by the defendant from the plaintiff. The defendant subsequently called one James W. Soule, who testified that he was a cutter of shoes, and had been so for ten years ; and that, in his opinion, it would take from 160 to 170 pounds of sole leather, of fair quality, to make one hundred pairs of men’s kip brogans, of first quality. The defendant then proposed to ask the witness whether he had heard the testimony of two of the defendant’s witnesses, who had testified respecting the plaintiff’s leather, and how much leather, such as described by them, it would take to make 100 pans; whether, in making this estimate, he founded such estimate on such leather; and if not, wherein it differed; which questions were objected to by the plaintiff, and the objection was sustained.</p> <p>After the testimony was closed, the plaintiff elected to waive the general money counts, and to rely upon the special counts filed in the case.</p> <p>The defendant then requested the judge to instruct as follows, namely: —</p> <p>First, that there was a variance between the plaintiff’s allegation in his declaration and his proof, which was material in this, that the declaration alleges that the defendant was tc. receive seven cents per pair for his services, &c., and the proof was that he was to receive six cents in money and one cent upon a previous debt.</p> <p>Second, that there was no special demand alleged in the plaintiff’s declaration, and therefore the plaintiff could not recover upon the ground of a demand and refusal, or a conversion evidenced by that.</p> <p>Third, that the plaintiff could not recover for the sole leather, or any part of it, in this action ; and if they found that it had been converted by the defendant, or had not, for any cause, been all returned by him in the brogans, then he could not recover in this action.</p> <p>Fourth, that if they found a conversion of the sole leather, unless they found that the same had been sold by the defendant, or converted into money, the plaintiff could not waive the tort and sue in assumpsit.</p> <p>The judge declined so to instruct the jury, but. did, among , other things not excepted to, instruct the jury that there was no material variance between the plaintiff’s proof and declaration ; that the demand was sufficiently alleged in the plaintiff’s declaration ; and that the plaintiff could recover the value of the leather not returned, in this form of action, if the jury found that the defendant had wasted the leather in manufacturing, or had lost it from want of ordinary care, or had converted it to his own use, whether the defendant had converted the leather into money or not; and that the plaintiff might recover in this form of action, although they should find that the defendant had the leather on hand at the time of the making of such demand.</p> <p>The judge instructed the jury to find whether the defendant had the leather not returned and on hand, at the time of the demand, if they found that the whole amount had not been returned by him to the plaintiff. The jury rendered a verdict for the plaintiff; and, on being inquired of, informed the judge that they found that the defendant had not the leather on hand at the time of the demand.</p> <p>The defendant alleged exceptions.</p> <p>cited Baxter v. Buck, 10 Verm. 548; Robbins v. Otis, 1 Pick. 368; Penny v. Porter, 2 East, 2; Whaley v. Pajot, 2 B. & P. 51; White v. Wilson, 2 B. & P. 116; Hockin v. Cooke, 4 Term R. 314; Wallis v. Scott, 1 Strange, 88; Birles v. Trippet, 1 Saunders, 32, and note, 2; Bach v. Owen, 5 Term it. 409.</p> <p>cited Dewey v. Cabot, 6 Met. 82; Bradley v. White, 10 Met. 303; Lord v. Baldwin, 6 Pick. 348; Clarkson v. Carter, 3 Cowen, 84; Bar stow v. Gray, 3 Greenl. 409; Loyd v. Archbowle, 2 Taunt. 324; Leveck v. Shaftoe, 1 Esp. 468; Jones v. Stevens, 5 Met. 373; Barnard v. Stevens, 11 Met. 297; Bradley v. Clark, 1 Cush. 293; Fox v. Hazelton, 10 Pick. 275; Lazarus v. Commonwealth Ins. Co. 19 Pick. 81; Hobart v. Hilliard, 11 Pick. 143; Dyer v. Rich, 1 Met. 180, 190; 1 Chitty PI. 362; Bristow v. Waddington, 2 New Rep. 355; Amory v. Brodrick, 5 B. & Aid. 712; Bowdell v. Parsons, 10 East, 359 ; 28th and 30th rules of the court of common pleas; 1 Chitty PI. 121.</p>

This was an action of assumpsit, to recover the amount oí a draft alleged to have been accepted by the defendants, a corporation duly established by law. The draft was in the following words and figures : — $850. Boston, May 10,1847. Please pay J. S. Gould & Co. or order, eight hundred and fifty dollars, value received, and charge the same to account of yours, , S. AlbeRt Cox. To Norfolk Lead Co.” “ Accepted thus:— May 15,1847.

<p>A judgment in a former action is conclusive, only when the same cause of action •was adjudicated between the same parties, or the same point was put in issue on the record, and directly found by the verdict of the jury.</p> <p>In an action of replevin for a piano, a former judgment between the same parties in an action of trespass quare clausum, in which taking away the same piano was alleged by way of aggravation, is not conclusive; as title to the piano was then only indirectly involved.</p>

<p>This was an action of assumpsit to recover of the defendant a debt originally due from his brother, Richard Haughton. The validity of the claim against said Richard was not in dispute. The case was heard in the court of common pleas,, before Bigelow, J., upon the following agreed statement of facts:—</p> <p>Richard Haughton, of Boston, by his will, dated April 16, 1841, devised and bequeathed all his «state, real, personal, and mixed, to his brother, James Haughton, of Boston, the defendant, who was also named executor in the will. Richard Haughton died April 17, 1841. The will was admitted to orobate May 17, 1841, and letters testamentary were granted to James Haughton, who, as principal, with his partners in Dusiness, George W. Heard and Theodore P. Hale, residents of Boston, and doing business under the firm of James Haugh-ton & Company, as sureties, signed the probate bond.</p> <p>The first account of the executor, containing a list of the lebts owed by the estate of Richard Haughton, verified by the oath of the executor, among which was this debt of the plaintiff’s, was allowed on the 26th day of September, 1842. In this account, the debts of the estate were put at $20,806.76, and the assets, after deducting cash paid for funeral expenses, and the amount of a mortgage upon personal property which had been foreclosed, were stated at $16,082.25.</p> <p>Subsequently, James Haughton, as executor, loaned the sum of $5,000, of the assets of Richard Haughton, to the firm of James Haughton & Company, and the same has never been repaid.</p> <p>On the 17th of October, 1842, on the petition of some of the creditors of Richard Haughton, among whom was the plaintiff, James Haughton was removed from his trust as executor, and on the 14th of November, 1843, E. G. Austin was appointed administrator de bonis non of the estate of Richard Haughton.</p> <p>On the 9th day of March, 1843, James Haughton & Company (George W. Heard and Theodore P. Hale) filed their petition in insolvency, before Joseph Willard, Esq., a master in chancery, and, on the 28th of the same month, each of them received his discharge from his. joint and separate debts.</p> <p>On the 27th of November, 1843, the administrator de bonis non was allowed by the judge of probate to compromise the claim of Richard Haughton’s estate upon James Haughton; and, on the 4th of December, 1843, in pursuance thereof, he gave to James Haughton a discharge and release. In his first account, allowed May 27, 1844, the administrator charged himself with $12,453.32, received under the compromise from James Haughton. A list of debts, to the amount of $16,094.59, was at the' same time filed, the estate was represented insolvent, and William Minot and George S. Hillard, Esquires, were appointed commissioners of insolvency on the estate. No return has been made by the commissioners.</p> <p>On the 10th of March, 1845, in answer to a letter of the plaintiff, of March 5, making some inquiries relative to the estate of Richard Haughton and its settlement, the defendant wrote, informing the plaintiff of the condition of the estate, and said:—</p> <p>“ I have been thus particular to state the facts to you, for I deem it my duty to do so, and if mortification and chagrin would pay the unpaid portion of my brother’s debts, they would have been paid three years since. And now, if I should have the ability, it will be the first act which I shall perform, to place in their hands the amount which was lost by the firm of James Haughton & Company, and which would have paid to them not far from two thirds of their several claims. To you particularly, whose kindness towards my brother was always so affectionately spoken of by him, I must be allowed to say, that I most deeply and sincerely regret that your claim remains unsettled.”</p> <p>For the purposes of the trial, the defendant admits that he is now of sufficient pecuniary ability to pay this claim of the plaintiff’s and the amount belonging to Richard Haughton’s estate, lost by the firm of James Haughton & Company.</p> <p>If, upon the foregoing facts and pleadings, the plaintiff can maintain this action, he is to have judgment for such- amount as the court shall find due from the defendant. If he cannot maintain this action, he is to become nonsuit.</p> <p>Judgment having been ordered for the defendant, the plaintiff appealed to this court.</p>

<p>This was an action of assumpsit, brought to recover tht amount of a promissory note, bearing date August 31,18 Ml, signed by the defendant, for the sum of $500, payable in nine months from date, to Hall & Lane, or order, and indorsed by them and A. B. Hall, to George W. Chipman.</p> <p>At the trial in the court of common pleas, the plaintiffs proved the handwriting of the several indorsers on the note It was in evidence that Jeremiah S. Hall and Edwin J. Lane, of Lowell, dry goods dealers and copartners, under the firm of Hall & Lane, sold, on the 31st of August, 1849, all their stock of goods to the defendant, who is of Lowell, a grocer, and took therefor six notes, including the note in suit, five for $500 each, and one for $509.70. Thereupon the notes were deposited in the hands of A. W. Farr, the attorney who transacted the business, to be held by him until it should be ascertained whether the creditors of Hall and Lane would undertake to invalidate the sale, and take the stock of goods out of the defendant’s hands. Afterwards, the defendant transferred and delivered the stock of goods to Daniel West, of Lowell, and West gave the defendant a bond, to indemnify him against the notes. After receiving the bond, and upon the fourth day of October, 1849, the defendant told Farr, who held the notes, that he might deliver them to Hall & Lane, and that they and West might settle the matter together. Accordingly, Farr, in the evening of the 4th of October, 1849, gave four of the notes to Hall & Lane, who immediately divided them between themselves, each taking two as his share and property. Hall received the note in suit as one of his; and there was evidence that Hall & Lane, immediately on going out of Farr’s office, gave to each other authority to use the firm’s name in transferring the notes. Of the other two notes, one was, by the consent of all the parties thereto, given up to West, and the other had been reduced by indorsements, and afterwards, by consent of all the parties thereto, on the 4th day of October, 1849, transferred.</p> <p>The day before this division, to wit, on the 3d of October, 1849, Edwin J. Lane, filed his petition for the benefit of the insolvent law, and the warrant thereon against his joint and separate estate was duly issued and put into the hands of the messenger, on the 4th day of October, and the messenger, just after the division of the notes as above mentioned, demanded them of both Hall and Lane. The first publication of the notice of Lane’s insolvency was in the afternoon of October 6; and such further proceedings were had in insolvency, that the joint and separate property was assigned to W. P. Webster, assignee.</p> <p>There was evidence that, on the 5th or 6th day of October, but before the first publication of the notice of Lane’s insolvency, Jeremiah S. Hall went to Boston, and indorsed the note in suit with the name of Hall & Lane, and endeavored to sell it in State street, but without success; and, on the same day, and before such first publication, he made an agreement for the sale of it to A. B. Hall, which was afterwards, on the 12th day of the same October, carried into effect, and the money paid for it, and the note delivered to A. B. Hall, who afterwards sold the note to Chipman, who got it discounted by the plaintiffs. There was conflicting evidence as to the time when Jeremiah S. Hall indorsed the name of Hall & Lane on the note in suit. The plaintiffs received it from Chipman, and discounted it in the regular course of business, and were the bond fide innocent holders of it.</p> <p>The note in suit was indorsed with the name of Hall & Lane in blank; and the plaintiffs, at the trial, before putting the note in evidence, asked leave to write over the name of Hall & Lane the words, “without recourse,” which the presid ing judge, Mellen, J., as all the indorsers consented, allowed tc be done. To this allowance the defendant excepted.</p> <p>The defendant requested the judge to instruct the jury that the partnership of Hall & Lane was dissolved by the proceedings in insolvency ; and that, on the 6th day of October, the property in the note in suit was so changed that, after that day, Hall could not negotiate the note in the name of the firm; and that, although the name of the firm was written on the back of the note by J. S. Hall, on the 5th day of October, yet if it was negotiated in the name of the firm before the 12th of October, it could not be negotiated by him alone.</p> <p>The judge instructed the jury that, if they were satisfied, on the evidence, that the plaintiffs took the note before it became due, for a valuable consideration, in the usual course of business, and without notice, they would not be affected by any transactions between the antecedent parties ; that the copart-nership of Hall & Lane was dissolved from and after the first publication of the notice of Lane’s insolvency; and that, after that date, Hall could not indorse the note in the name of the firm; and such indorsement, if so made, would be void, and, as the plaintiffs must derive their title through it, they could not recover. But if the indorsement was in fact made before the first publication of the notice of Lane’s insolvency, the plaintiffs might recover, although the note was put in circulation after the publication; that the authority to indorse the note, whether implied by the division of the property between Hall and Lane, or given expressly by one to the other, was revoked by the dissolution of the partnership.</p> <p>The jury having returned a verdict for the plaintiffs, the defendant excepted to the above rulings.</p> <p>cited Blakely v. Grant, 6 Mass. 386; Dana v. Underwood, 19 Pick. 99; Peaslee v. Robbins, 3 Met. 164; St. 1838, c. 163, § 21; Arnold v. Brown, 24 Pick. 89 ; 3 Kent’s Com. 58.</p> <p>cited Clarke v. Minot, 4 Met. 346 ; Briggs v. Parkman, 2 Met. 258; Yale v. Fames, 1 Met. 486; Sweetser v. French, 2 Cush. 309; Wheeler v. Guild, 20 Pick. 545.</p>

<p>A witness who is called to discredit another witness, and defeat the effect of hi» testimony, may be asked whether he has had a quarrel with such other witness.</p> <p>In an action of trespass against a deputy sheriff, to recover the value of the stock and produce of a farm which had been seized and sold by him under an execution against A., the occupant of the farm, the plaintiff alleging that the stock and produce belonged to him, and had never belonged to A., and the record title to the farm being in the plaintiff and derived from sources wholly distinct from A., evidence that A., about the time of the conveyance of the farm in question to the plaintiff, had made fraudulent conveyances of other property to other persons than the plaintiff, is inadmissible for the defendant; nor can the title of the plaintiff to the property in question be affected by acts and sayings of A., made in the absence and without the knowledge of the plaintiff.</p> <p>A., a deputy sheriff, levied an execution against B., on certain live stock and produce on a farm occupied by B. C. forbade the sale, claiming that all the property belonged to him, and, at the sale, he bid in most of the stock, including a certain cow. A. gave C. a bill of sale of all the property purchased by him, in eluding this cow, but refused to take pay for the cow, excepting her in the receipt at the foot of the bill, and reciting that the price of her was tendered him by C. In an action of trespass brought by C. against A., to recover the value of the property sold by the latter, A. specified in defence that, after the sale, the cow was returned by him to C., and accepted by C. in full of all damages, if any, he was entitled to; and, a verdict having been rendered for C. for the value of the property including the cow, it was held that he could have judgment on this verdict only on condition that he should remit expressly on the record the price of the cow, and take judgment only for the balance.</p>

<p>Tlie St. 1845, c. 191, -which provides for the appointment of commissioners to fix the compensation which shall be paid by one railroad corporation for the draw ing of its passengers, merchandise and cars over the railroad of another company. does not infringe upon any rights which the latter company may have under its charter to regulate tolls on its own road ; neither is it a valid objection to tlie appointment of such commissioners, in any instance, that the parties agree as to the compensation to be paid for the carriage of passengers, and the petition asks for a commission merely to fix the rate for freight.</p>

<p>This was an action of assumpsit, brought on the 11th day of December, 1849, in which the plaintiffs sought to recover of the defendant the sum of five hundred dollars and interest, upon a certain writing, signed, among others, by the defendant, with the sum of five hundred dollars opposite his name, bearing date, “ Boston, April 21, 1848,” and is fully set forth in the opinion of the court.</p> <p>The defence was, that the plaintiffs had not performed the condition in the writing precedent to their right to recover, in that they did not, within the year eighteen hundred and forty eight, cause Devonshire street, between Milk and Water streets, to be widened, by cutting off the estates on the easterly side thereof, and leaving that portion of Devonshire street 24 feet in width at its narrowest point. And the defendant offered to prove that the buildings standing at the time of the trial, and which had not been cut off by the plain* tiffs, and which were within the line of the street, as contemplated to be laid out of the width of twenty-four feet, were an inconvenience to the public, an obstruction to the passage through the street, and injurious to him as the owner of an estate on Milk street, opposite the end of Devonshire street.</p> <p>But the presiding judge, Bigelow, J., refused to admit the evidence, and ruled that the same was immaterial, and that the plaintiffs, upon the facts proved, if believed by the jury, were entitled to recover.</p> <p>The jury returned a verdict for the plaintiffs, and the defendant alleged exceptions.</p>

<p>A. agreed to serve a flour company as the superintendent of their mill, for a fixed annual salary, “ and five per cent on the net profits, after deducting the expenses of the company, and six per cent on the capital stock.” It was further agreed between the parties, that “ the percentage on the profits of the company shall be made up and paid accordingly once in each year, to commence when the books of the treasurer shall be made up to show the annual state of the company.” A. entered the service of the company in July, 1846, and the mill was not fully in operation till January, 1847. In March, 1847, at an annual meeting of the stockholders of the company, a statement, which had been made up by the president and one of the treasurer’s clerks, was exhibited, showing the assets and liabilities of the company, a statement of what wheat and corn had been bought and ground, and what had been sold. A. having brought an action for his percentage on the profits of the company, as appearing by such statement, it was held, that he could not recover, inasmuch as such statement was a mere “ estimate,” and was not such a making up of the books of the company as was contemplated by the agreement; and that A.’s percentage was intended by the agreement to be calculated upon the profits of an entire year.</p>

<p>Under the insolvent law of Massachusetts, a person whose claim- against the insolvent estate has been formally allowed by the commissioner, but from which allowance an appeal has been taken and prosecuted according to law, is not a creditor, entitled to vote as a creditor, after such appeal has been taken and perfected, and before any judgment upon it has been rendered by the appellate court.</p>

<p>In a suit against a partnership, if one partner is not within the jurisdiction of the court, and is not served with process, and does not voluntarily appear and answer to the suit by hirnself or his attorney, the judgment against the partnership cannot be enforced against him out of the local jurisdiction; even though, by the lex loci, a service on the partner resident within the jurisdiction, is sufficient to authorize a judgment against all the partners.</p> <p>The entry, by an attorney, of his general appearance for the defendants, in an action against a partnership, must be construed to be an appearance for the partners as partners, and for the purpose of defending the action against the partnership, and not as an appearance for the partners individually, severally and personally, so as to render a judgment against the partnership, in such action, binding on an individual partner in another jurisdiction, by whom such appearance was not authorized.</p> <p>One partner has no implied power to enter an appearance in a suit, except for the partnership, and cannot, by such appearance, bind a partner, personally and individually, who is not within the jurisdiction, and has not been served with process.</p> <p>If, by a decree in equity, certain debts are found to be due from the respondent to the petitioner, no action can be maintained against the respondent on the original causes of action, in consequence of any new promise which may be implied by such decree, unless it be brought within such time, subsequent to the date of the decree, as is prescribed by the statute of limitation applicable to such causes of action.</p>

<p>Under St. 1851, c. 233, [since repealed,] a writ cannot Re entered on motion, or by consent of parties, after the expiration of the two days prescribed by § 13 for such entry.</p>

<p>A writ was made returnable to the court of common pleas, under St. 1851, c. 283, on the first Monday in February, and an order was passed, on the second day of the following March, in the court of common pleas, on the affidavit of the defendant, for its removal to this court; and it was held that “the next term” of this court at which, under St. 1840, c. 87, such action must be entered, was not the term which commenced on the same second day of March on which the order for removal was passed, but the next subsequent term.</p>

<p>A petition for partition of real estate, under Key. Sts. c. 103, cannot be granted, where the petitioner is seised of one moiety in his own right, and together with the respondents, as joint trustees with himself, of the other moiety, in trust for a third party.</p>

<p>An instrument, in form an indenture, executed by one party only, if it contains tne requisite clauses to pass the property described, will operate as a deed poll.</p> <p>The record of a mortgage made and certified by a subordinate officer in the customhouse at Halifax, Nova Scotia, for the comptroller, is valid under St. 8 & 9 Viet, c. 85, § 7.</p> <p>A., the owner of a vessel, resident in Nova Scotia, mortgaged her to B., also resident there, who had his mortgage duly recorded, under the laws of the province, at the custom-house, and a memorandum thereof indorsed on the register of the vessel, these acts, by the lex loci, making B. the owner of the vessel so far as was necessary to give him security for his debt; and it was held, that he had thus acquired the possession of the vessel sufficiently to enable him to maintain reple-vin against an attaching creditor here.</p> <p>The action of replevin may be maintained, under the statutes of this commonwealth, for an unlawful detention, although the original taking was lawful.</p>

This was an action of assumpsit, brought in this court, on a policy of insurance, made by the defendants, dated November 7, 1845, whereby they insured the plaintiffs, in the sum of $2,250, on one half of the brig Napoleon, for one year from the 8th day of November, 1845. The brig was valued at $4,500, and the policy was in the usual form of Boston policies. The interest of the plaintiffs was admitted, and the following facts were agreed upon by the parties.

<p>This was an action of assumpsit, brought in this court, to recover the amount due for nine assessments, of one hundred dollars each, upon one share of the capital stock of The Atlantic Cotton Mills, with interest from the time when they were respectively payable. In January, 1846, a subscription paper was circulated for an intended corporation, and the defendant agreed to take and pay for five shares. It was submitted to the court on an agreed statement of facts, which sufficiently appear in the opinion of the court.</p> <p>If upon the facts, the court shall be of opinion that the plaintiffs are entitled to recover the whole or any part of the sum claimed, judgment is to be rendered accordingly, with costs; otherwise the defendant to recover costs.</p> <p>cited Worcester Turnpi/ce Corporation v. Willard, 5 Mass. 80; Chester Glass Co. v. Dewey, 16 Mass. 94; The Franklin Glass Co. v. Alexander, 2 N. H. 380; The Delaware and Schuylkill Grnal Navigation v. Sansom, 1 Binney, 70; The Huddersfield Canal Co. v. Buckley, 7 T. R. 36.</p> <p>cited The New Bedford and Bridgewater Turnpike Corporation v. Adams, 8 Mass. 138; Phillips's Limerick Academy v. Gilbert, 2 Pick. 579; Chester Glass Co. v. Dewey, 16 Mass. 94; Salem Mill Dam Corporation v. Ropes, 6 Pick. 23; Same v. Same, 9 Pick. 187; Littleton Manufacturing Co. v. Parker, 14 N. H. 543; Rev. Sts. c. 38, §§ 12,13 ; Sargent v. Essex Marine Railway Corporation, 9 Pick. 202; Sargent v. Franklin Inswrance Co. 8 Pick. 90; Eames v. Wheeler, 19 Pick. 442; Franklin Glass Co. v. Alexander, 2 N. H. 380; Delaware and Schuylkill Canal Navigation v. Sansom, 1 Binney, 70; Huddersfield Canal Co. v. Buckley, 7 T. R. 36.</p>

Writ of entry, dated December 30th, 1839, to recover a portion of a wharf and flats, “ bounded and described as follows: Beginning at a point on Sea street, in Boston, on the line which divides the land of said Curtis from the land of said Francis; thence running southeasterly to land of Thomas B. Wales, at a point on the northeasterly side of Wales’s wharf, distant about three hundred and ninety feet from said Sea street; then turning and running more easterly by land of…

<p>A by-law of a mutual fire insurance company, which requires a subsequent insurance on the same property to have “ the consent of the directors signified by a statement thereof in the policy, or by indorsement thereon signed by the secretary,’* is not complied with by the approbation of one of the directors of the company, indorsed npon the plaintiff’s application for insurance, which application states that “the applicant asks leave to insure $1,000 on same property, in some other company; please signify the assent of the company in the policy.”</p> <p>And the company cannot be held to have waived a compliance with the above by-law, and the rights of parties are not altered, because the same person acted as agent for both companies in issuing the two policies, or because the first company, long after the obtaining of the second policy, notified the plaintiff of an assessment due from him, and accompanied such notice with a schedule of losses claimed of the company, in which the claim of the plaintiff was included, and marked “ unadjusted."</p>

<p>The demandant, in a writ of entry, who shows a possession prior in time, is entitled to recover against a tenant who shows no title to the premises, but merely possession at the time of suit brought; although such demandant may be a wrongdoer as to the real owner.</p>

<p>This was an action on the case, brought in this court by the plaintiff, as administrator of Mrs. Hollenbeck, for damage sustained by her, through the .negligence of the défendants’ agents, by means of which she lost her life. The writ was dated February 8,1851, and the following facts were admitted, namely: —</p> <p>That the plaintiff’s intestate was, on the 18th day of October, 1850, between five and six o’clock in the afternoon, riding in an open buggy wagon, upon the highway in Great Bar-rington, at a point where it is crossed by the railroad of the defendants; that she was driving the horse, and was then and there in the exercise of ordinary care; that the horse and wagon then and there came in collision with the cars of the defendants, and the plaintiff’s intestate thereby received such injuries, that by reason thereof she subsequently died; that the accident or collision was caused solely by the negligence and want of care and skill of the defendants; that the plaintiff was appointed administrator of the estate of the deceased, February 5,1851, and that, at the time of the accident, she was a married woman, and the wife of the plaintiff. And if the administrator can maintain an action for the above injuries, all other facts necessary to sustain such action are to be considered as proved, except so far as relates to the time of the death of the intestate, and her mental and physical condition after the injury, which are to be determined by the court from the evidence introduced, from which evidence the court are to draw such inferences, and come to such conclusions of fact, as a jury would be authorized to do. At the suggestion of the presiding judge, it is further provided that, if the court deem it a case that they require to be sent to the jury, then all matters of law are to be settled that are presented upon the evidence.</p> <p>The evidence for the plaintiff was fully set out in the agreed statement, but a report of it here does not seem necessary to an understanding of the principle involved in the case.</p> <p>If, upon the agreed statement of facts and testimony, the court shall be of opinion that a claim for damages for the injuries received can be maintained by the plaintiff, in this or any other form of action, the defendants are to be defaulted, and judgment rendered for five hundred dollars damages, and costs. If the court shall be of opinion that no such action can be maintained, the plaintiff is to become nonsuit.</p> <p>1. The plaintiff’s intestate survived the injury.</p> <p>2. Hence the cause of action accrued, and survived to the administrator, and the mental or physical condition of the party injured is not material to the question in this case.</p> <p>3. The mental and physical condition of the intestate, after the injury, was such, in fact, that it was not impossible for her to have directed the institution of an action after her decease.</p> <p>Mrs. Hollenbeck could not have instituted or maintained an action after the collision; consequently this action cannot be maintained by the plaintiff as her administrator. Carpenter’s Physiology, 292,302, 328,351, 359, 361; Baker v. Bolton, 1 Camp. 493; Carey v. Berkshire Railroad Co. 1 Cush. 475; St. 1786, c. 81, § 7; Rev. Sts. c. 25, § 22; St. 1840, c. 80; Kearney v. The Boston & Worcester R. R. Corporation, ante 108; Mami v. Same, lb.</p>

<p>In an action to recover back usurious interest paid, the original debtor is a competent witness, under Eev. Sts. c. 35, § 4.</p>

This was an action of debt, brought, in the court of common pleas, upon a sealed instrument, being a contract entered into by the plaintiff with the defendants to build for them a dam, according to the specifications and in the manner in the contract contained. There was also a second count in the writ, upon a quantum meruit and quantum valebant, for the work done and materials furnished in building the dam.

<p>A. conveyed by deed to B., “a privilege to make a ditch from the north side «. i the north branch of the Hoosac River, and taking the water from the river for a factory below, to be taken out a buttonwood tree six and one half rods easterly of said A.’s west line and the east line of land owned by said B., then north 57£° west, to the west line of said A.’s lot, the ditch to be fourteen feet wide ; with a privilege of building a dam across the river to take the water into said ditch, the dam not to be raised so high as to raise the dead water below the mouth of said A.’s ditch and above said B.’s dam at low-water mark: ” held, that the grantee acquired no right thereby to flow the land of the grantor without payment of damages.</p>

<p>A defendant in an action of trover, who has induced the plaintiff to believe when demanding the property that it was in his possession and control, is not thereby estopped in law from proving the contrary.</p>

<p>This was an action on the case, to recover damages to the plaintiffs’ property, by an alleged defect of a bridge across the Farmington River, and was submitted to the court of common pleas, and,.by appeal, to this court, upon the following agreed statement of facts : —</p> <p>The accident occurred on the east half of the bridge. The defendants deny that any portion of the bridge is situated within the limits of the town of Tolland, and allege that the east bank of the river forms the west boundary of the town, and the parties propose to submit the question of boundary to the court. If no part of the bridge is within the town of Tolland, the plaintiffs are to be nonsuit; if otherwise, the case is to stand for trial in court or before referees, to be agreed on by the parties or appointed by the court.</p> <p>Tolland was incorporated in 1810, and formerly composed the west parish of Granville, which parish was incorporated in 1785. Granville was incorporated in 1754. The bounds mentioned in the act commence at the southeast corner of Granville, and run thence up the east side of that town, and along the north side, to the southwest corner of Blandford. The description then proceeds as follows : “ Thence the same course 660 perches to a hemlock tree marked, with stones about it, on the west branch of Farmington River, and is the northwest corner of said tract; from thence bounding on said west branch of Farmington River, as the same runs, to a great hemlock tree at the colony line, being the southwest corner of said tract; from thence on said colony line east nine degrees, 3320 perches to the first station.”</p> <p>The “ hemlock tree ” at the northwest, and the “ great hemlock tree ” at the southwest corner of Granville, stand on the east side of the river.</p> <p>Opposite the part of Tolland where the bridge is built, is that part of Sandisfield formerly incorporated as Southfield, and the annexation of the two towns of Sandisfield and Southfield was in 1820.</p> <p>The road on which the bridge is built was the 10th Massachusetts turnpike.</p> <p>The town of Tolland never built or repaired any portion of the bridge.</p> <p>All acts and resolutions and proceedings of the legislature of Massachusetts, relating to the boundary of the counties of Berkshire or Hampden, or to those of the border towns of those counties, and all maps and allotments and surveys of land which properly affect the boundaries of those towns may be referred to.</p> <p>These facts are agreed to only so far as they affect the» boundaries of the above-named towns, and are not to affect the subsequent trial of the case.</p> <p>The presiding judge of the court of common pleas having ruled that, upon these facts, the bridge was not situated within the town of Tolland, and that the defendants were not liable, the plaintiffs appealed to this court.</p> <p>The west line of Tolland is the centre or thread of the river. King v. King, 7 Mass. 496; Lunt v. Holland, 14 Mass. 149 ; Inhabitants of Ipswich, petitioners, 13 Pick. 431; Mayo v. Quimby, 3 Dane’s Abr. 4; Harramond v. M’ Glaughon, 1 Taylor, (N. C.) 136, cited in Angelí on "Watercourses, (4th ed.) § 37; Lowell v. Robinson, 4 Shepley, 357; The State v. Gilma/nton, 9 N. H. 461; Noble v. Omningham,, 1 McMullan, Eq. R. 289; Warner v. Southworth, 6 Conn. 471; Luce v. Carley, 24 Wend. 451; Child v. Starr, 4 Hill, 369.</p> <p>1. The liability of the defendants depends upon the construction of the act of 1754, incorporating Granville. 1 Special Laws, 97; 4 Ibid. 299.</p> <p>2. Though there is an analogy in the construction of an act or a resolve and a deed or a contract, yet that analogy is not strict, and different rules may well be applied. In the first case, reference is had mainly to questions of jurisdiction, and it may be an object that the lines of a municipality should be on the shore of a stream instead of in the thread, for the purpose of avoiding the difficulties arising in the erection of bridges by adjacent towns, or in apportioning the damages sustained by reason of defects in such bridges. In the latter case, regard is had to agricultural and manufacturing purposes, and the interests of conterminous proprietors.</p> <p>3. In the construction of a grant, doubtful words are to be taken most strongly against the grantor, but in case of an act no such implication is raised.</p> <p>4. In the construction both of a deed and an act, the evident intention is to govern, and the reasons and circumstances existing at the time, and the conduct of the parties at and subsequent thereto, will explain any otherwise ambiguous expression. Hatch v. Dwight, 17 Mass. 289, 295, 299Rix v. Johnson, 5 N. H. 520; Angelí on Watercourses, (4th ed.) §§ 10-40.</p> <p>5. The language of the act limits the west line of Tol-land to the east bank of the river; both monuments stand there, and both are declared to be corners. The expression, “ thence bounding on said west branch, as the same runs, to a great hemlock tree at the colony line, being the southwest corner of said tract,” is equivalent to expressions used in conveyancing, “ thence bounding on land of A. B., to a stake,” &c., meaning to follow the outer line of his land, or, in this case, the shore of the stream, or the edge of the ■water.</p> <p>6. The line has been understood so to run, Tolland never having built or repaired the bridge.</p> <p>7. The language of the grant, as compared with other acts, tavors the defendants. 1 Special Laws, 97; 2 Ibid. 393; Ibid. 166 ; 5 Ibid. 280.</p>

<p>An adverse and exclusive possession of land for a period of twenty years is a good bar to a writ of entry to recover the same, although the demandant's title may have been derived through mesne conveyances from the tenant; nor is the tenant estopped, by his covenants of warranty in the deed to his original grantee, from setting up a subsequent title acquired by disseisin.</p> <p>In an action for the recovery of land, the defence to which is an adverse and exclusive possession for a period sufficient to constitute a bar under the statutes of this commonwealth, the declarations of a grantee of the premises, made more than twenty years before the commencement of the action, and subsequently to the date of his deed, that the entire title of the premises, at the time of such declarations, was in the tenant in such action, are competent evidence, as bearing upon the question of adverse possession in the tenant under a claim of right; but the declarations of such grantee, made after his insolvency and the conveyance of his interest in the premises to an assignee, and after twenty years’ adverse possession by the tenant, are inadmissible.</p>

This was an action of assumpsit, brought by the plaintiff in the court of common pleas, to recover of the defendant the value of work and labor done and performed by the plaintiff for the defendant, as stated in the plaintiff’s bill of particulars. The case was referred to an auditor. At the hearing before the auditor, the plaintiff offered his book with his oath, to support his bill of particulars.

<p>This was an action on the case, brought in the court of common pleas, against a physician and surgeon, for so negligently treating the fractured thigh bone of the plaintiff that the plaintiff was rendered a cripple.</p> <p>In the course of the trial, the defendant contended, but it was denied by the plaintiff, that the defendant had placed the fractured limb upon a double inclined plane, at an angle of 45 degrees, or thereabouts. For the purpose of proving this point, the defendant offered the testimony of a witness who was present at the house of the plaintiff when the defendant, brought there the machine, which was afterwards, on a subsequent day, placed upon the fractured limb, and offered to prove by such witness, what statements the defendant himself made to the witness at that time, in the presence of the plaintiff, about the principle upon which the machine operated, and how it might be made a double inclined plane of any angle, by means of a screw. It did not appear that the plaintiff had any knowledge of the method of treating such a fracture, or the proper instrument to be used, nor that he made any reply to the statements of the defendant, although the witness said they were made in the plaintiff’s hearing. It appeared that, at the time these statements were made, the plaintiff lay upon his bed with his thigh broken, and so lay eight days, suffering also under other severe injuries.</p> <p>The plaintiff objected to the admission of this evidence, but the presiding judge, Mellen, J., overruled the objection, and admitted the evidence. The jury having found a verdict for the defendant, the plaintiff alleged exceptions.</p> <p>to the point that the evidence admitted should have been excluded, as being the statement of the party himself in whose behalf it was offered, not accompanied by any assent of the plaintiff, and being no part of the res gestee, cited Commonwealth v. Kenney, 12 Met. 235; 1 Green]. Ev. §§ 197 — 199; Mattocks v. Lyman, 16 Yt. 113; Ca/rter v. Gregory, 8 Pick. 165.</p> <p>1. The evidence was admissible, as part of the res gesta. 1 Greenl. Ev. 120; 1 Stark. Ev. 39, 47-49, 52; Rigby v. Stedmcm, 1 Esp. R. 328; Price v. Earl of Torrington, 1 Salk. 285; Bateman v. Bailey, 5 T. R. 512; Aveson v. Lord Kin-naird, 6 East, 188; Phelps v. Foot, 1 Conn. 387; Enos v. Tuttle, 3 Conn. 247; Pool v. Bridges, 4 Pick. 378; Woods v. Clark, 24 Pick. 35; Robinson v. Wadsworth, 8 Met. 67; Goodhue v. Hitchcock, 8 Met. 62; Salisbury v. Gourgas, 10 Met. 442.</p> <p>2. What has been said by one party in the presence of the other, may be given in evidence. Swift’s Ev. 127.</p> <p>3. The evidence was admissible, as an admission of the plaintiff that the defendant procured the instrument, to use it as a double inclined plane. 1 Stark. Ev. 50.</p>

<p>This was an action of trespass, brought in the court of common pleas, for tearing down a pew in the Old Baptist meeting-house in Hancock, of which the plaintiff claimed to be the proprietor.</p> <p>The defendants filed a specification of defence, by which they justified the taking down of the pew, under and by virtue of a vote passed by the proprietors of the meeting-house, at a meeting held on the 21st day of March, 1850, and called by a warrant issued by a justice of the peace, on the application of five of the proprietors ; at which meeting it was voted to give the meeting-house to the town of Hancock, on condition that the town would erect a new town-house out of the materials of the meeting-house. Two of the defendants were two of a committee of three, appointed by the town at a legal town meeting held on the first day of April, 1850, at which meeting it was voted to accept the proposition of the proprietors, and this committee were chosen to take down the meeting-house and construct a new town-house. The other defendant named in the writ was the contractor who took down the house.</p> <p>The plaintiff, to prove his title to the pew, introduced a deed of the pew from one Southworth to him, dated in 1823, acknowledged and recorded; and evidence that he or his family had, from time to time, occupied the pew on Sundays; and that the house had been occupied as a place of public worship up to the time it was taken down. The defendants objected, that this was not competent and sufficient evidence to prove a proprietorship in the pew; but the presiding judge, Byington, J., ruled that it was evidence from which the jury might infer a proprietorship in the pew.</p> <p>The defendants introduced the records of the town of Hancock, of the meeting held April 1, 1850, and offered the records of the meeting of persons claiming to be the proprietors of the meeting-house, held on the 21st of March, 1850, and the written application to the justice signed by more than five persons; but offered no records of any meeting of the proprietors prior to such 21st of March, or any evidence by whom the house was owned. But the judge ruled that the records of the proprietors’ meeting were not admissible as evidence, without proof that five, at least, of the persons who made the application to the justice to issue'his warrant for calling the meeting, were proprietors in the meeting-house at the time of making the application. The defendants then introduced evidence that five of the applicants were proprietors in the meeting-house at that time, and claimed that it was evidence for the jury to consider. But the judge held that it was his province to determine upon the sufficiency of the evidence, as preliminary to the admission of the record; and, being of opinion that the evidence did not show a proprietorship in the house in five of the applicants, refused to admit the records of the proprietors’ meeting as evidence.</p> <p>There was evidence that two of the defendants, namely, Hadsell and Whitman, had nothing to do with the alleged trespass, except that they contracted, as a committee of the town, with the other defendant, Worden, for the taking down of the house. The defendants requested the judge to instruct the jury that, if they were satisfied that Hadsell and Whitman had nothing to do with the taking down of the house except the making of the contract as agents, then they were not liable in this action ; but the judge declined so to instruct the jury.</p> <p>The defendants further requested the judge to instruct the jury that, if they were satisfied that the meeting-house, at the time of the alleged trespass, had become unfit for the purpose of public worship, the plaintiff was not entitled to recover any thing in this action; and they offered evidence that the house was wholly unfit for the purposes of public worship. But the judge ruled that the facts, if proved, would not justify the defendants’ acts, and proposed to admit the evidence only in mitigation of damages, declining to instruct the jury that the plaintiff would not be entitled to recover, if the house was so unfit for purposes of public worship.</p> <p>Whereupon a verdict was taken for the plaintiff, by consent, and the defendants alleged exceptions.</p> <p>1. The evidence that the five persons who signed the application to the justice, were proprietors in the meeting-house, should have been allowed to go to the jury. Proprietors of Church in Brattle Square v. Bullard, 2 Met. 363; Melvin v. Locks a/nd Ccmals, 17 Pick. 255.</p> <p>2. This action cannot be maintained, if the meeting-house had become unfit for the purposes of public worship. Rev. Sts. c. 20, §§ 36, 38 ; Gay v. Baker, 17 Mass. 435 ; Daniel v. Wood, 1 Pick. 102; Wentworth v. First Parish in Canton, 3 Pick. 344; Howard v. First Parish in North Bridgewater, 7 Pick. 138; Jackson v. Roimseville, 5 Met. 127.</p> <p>1. Whether the applicants were proprietors, was a question, in the first instance at least, for the judge, and not for the jury. The admissibility of the records offered, depended on the fact whether the meeting had been called by a proper application, and this was a preliminary question, which is always for the judge. 1 Greenl. Ev. §§ 49, 177, 425; Russell v. Coffin, 8 Pick. 143; Witter v. Latham, 12 Conn. 392; Foster v. Mac-kay, 7 Met. 531; Page v. Page, 15 Pick. 368; Donelson v. Taylor, 8 Pick. 390; Seymour v Harvey, 11 Conn. 275; Harris v. Wilson, 7 Wend. 57; M’Managil v. Ross, 20 Pick. 99.</p> <p>2. Although the house was unfit for public worship, that was no justification to the defendants. The ruling was sufficiently favorable to them, and should be taken in connection with the fact that the house and pew remained and were in use. Bolivar Manufacturing Co. v. Neponset Manufacturing Co. 16 Pick. 241; Fullam v. Cummings, 16 Yerm. 697.</p> <p>While the house remains, its unfitness is no justification to a trespasser. Proprietors themselves can only take down for the purposes enumerated. Rev. Sts. c. 20, §§ 36-38. Went-worth v. First Parish in Crnton, 3 Pick. 344. Though the house was unfit, the plaintiff with the other proprietors had a right to determine whether it should be repaired, which the defendants’ trespass had rendered impossible.</p>

<p>A party’s book of accounts is inadmissible, in this commonwealth, to prove cash payments above forty shillings in amount; nor is the application of the rule affected by the fact that an auditor, at the hearing before him, has examined the book as a voucher.</p> <p>After a case has been submitted to the jury under the charge of the court, a defendant, who has, throughout the trial, contested an item of the plaintiff’s claim on its merits, will be held to have waived an objection which might have been taken at an earlier stage, that such item was not included in the plaintiff’s bill of particular's.</p>

<p>A testator bequeathed as follows : “ Also to my grandson, T. P. E., son of N. E., deceased, the sum of $2,000, when he becomes twenty-one years of age ; and also unto my four granddaughters, H. P., M. L., C. A., and S. M., daughters of the aforesaid ET., the sum of $1,000 each, at twenty-one years of age: and I furthermore will and decree the above-mentioned grandchildren be supported, during their minority, each out of the legacy which I have bequeathed them.” By a subsequent clause in the will, after repeating the bequest to T. P. E., he proceeded : “ I also give and bequeathe unto my granddaughters, H. P., M. L., C. A., and S. M., daughters of ÍL, deceased, the sum of $1,000 each, when they severally become of age, excepting what may be necessary for their support during their minority; ” and it was held that the grandchildren took vested legacies, so that on the death of S. M., before attaining the age of twenty-one years, her administrator was entitled to maintain an action for such portion of her legacy, with interest, as had not been paid over for her use in her lifetime.</p> <p>When the language of a will is equivocal, leaving it in some doubt whether words of contingency or condition apply to the gift itself, or to the time of payment, courts are inclined to construe them rather as applying to the time of payment, and to hold the gift rather as vested than contingent.</p>

<p>This was an action of contract, and was submitted to the court of common pleas, and, by appeal, to this court, on the following agreed statement of facts : —</p> <p>The plaintiff is the widow of the late David Bowker, and administratrix of his estate. David died December 6,1850, leaving Clarinda, his widow, and two children of the ages of ten and twelve years. David Bowker, and Melvin the defendant, were devisees under the will of their father, Liberty Bowker, the material portion of which is as follows : —</p> <p>“ I give and bequeathe unto my eldest son, Melvin Bowker, his heirs and assigns, my farm that he now lives on, with all the stock now on said farm that belongs to me, also all my farming tools on said farm, by his paying the following sums as hereafter directed; Istly, to my son, David Bowker, one hundred dollars a year for seven years, without interest, the first payment to be in one year from my decease. 2dly, to my daughter Mary, wife of Robert Sturtevant, one hundred dollars, to be paid as soon after my decease as shall be convenient to pay it; also, to my'wife Kata, fifteen dollars per year, in such things as she needs, or money; also, to pay to my daughter Sarah, wife of Jesse W. Johnson, five dollars per year, in such things as she needs, to commence the first year after my decease.”</p> <p>Liberty Bowker died May 21,1846, and his will was duly proved and allowed. The defendant was executor of the will, and accepted the several devises therein made to him.</p> <p>The payments falling due to David Bowker on the 21st of May in each year, from 1847 to 1850, both inclusive, were duly paid by the defendant; and this action was brought to recover the payment alleged to have fallen due on the 21st of May, 1851.</p> <p>If the court shall be of opinion that the plaintiff ought to recover, she is to have judgment for such sum as the court shall direct; otherwise, to become nonsuit.</p> <p>1. The fact that there were no devises over, is a strong presumption, in this case, that it was the design of the testator to give a vested and permanent interest to the devisees in the property devised to them. Baker v. Bridge, 12 Pick. 27, 33.</p> <p>2. The defendant, by accepting the devise to him, has tacitly consented to comply with the conditions of the will. Felch v, Taylor, 13 Pick. 133. He cannot accept its benefits, and release himself from its burdens.</p> <p>3. The presumption of law is in favor of a vested, rather than a contingent devise. 1 Jarman on Wills, 768 ; Skattuck v. Stedman, 2 Pick. 468; Ferson v. Dodge, 23 Pick. 287, 292, Wight v. Shaw, 5 Cush. 56 ; Stimpson v. Batterman, 5 Cush, 153.</p> <p>4. If the postponement of payment appears to have reference to the situation or convenience of the estate, the legacy will vest insta/nter. 1 Jarm. on Wills, 756.</p> <p>5. If futurity is annexed to the substance of the gift, the vesting is suspended, but if it appears to have reference to the time of payment only, the legacy vests instanter. 1 Jarm. on Wills, 759, and cases cited; Shattuck v. Stedman, 2 Pick. 468 ; Goddard v. Johnson, 14 Pick. 352. In this case futurity ha; reference to the time of payment only, being for the advantage of the estate and the convenience of the defendant.</p> <p>6. If the words “ and his heirs ” were inserted in the will, after “ David Bowker,” there can be no doubt that such heirs would be entitled to receive such part of $700 as was unpaid at the death of David. But it is not necessary, even in a devise of real estate, to insert the word “heirs.” Baker v. Bridge, 12 Pick. 27, 30. A fortiori, it is not necessary in a bequest of personal property. ,</p> <p>7. Though it was formerly considered the rule that, when a devise was made to one at twenty-one, or if he attain that age, it was a contingent devise, rather than a vested one, it is now otherwise. Shattuck v. Stedman, 2 Pick. 468; Fv/rness v. Fox, 1 Cush. 134.</p> <p>1. This legacy is charged upon real estate, and, therefore, upon the death of the legatee, sinks into the land. Swinburne on Wills, pt. VII. § 23, pp. 564, 565; Duke of Chandas v. Talbot, 2 P. Wms. 601; Pawlett v. Pawlett, 1 Vern. 204 321; Yates v. Pheitiplace, 2 Vern. 416 ; Jennings v. Looks, 2 P. Wms. 276 ; 1 Roper on Legacies, 650-655, where the above cases with others are commented on; Prowse v. Abingdon, 1 Atk. 482; Gawler v. Standerwicke, 1 Bro. C. C. in note to Green v. Pigot; Harrison v. Naylor, 3 Bro. C. C. 108. There is an exception to the above rule, “ where the payment is postponed from a regard to the convenience of the devisee, or tb circumstances of the estate charged with it.” 1 Roper on Leg. 656-668. This exception does not apply to this case. Again, the legacy is expressly “ without interest,” which distinguishes the case from Paterson v. Ellis, 11 Wend. 259; Jacobs v. Bull, 1 Watts, 370; 1 Roper on Leg. 573. The circumstance that the very next legacy charged upon the same land is “ to be paid as soon ,after my decease as shall be convenient to pay it,” shows that the payment to David was not to be postponed for the convenience of the devisee, and therefore is governed by the rule and not the exception. Unless the whole of this instalment is recoverable, no part can be recovered. Wiggin v. Swett, 6 Met. 194. In Shattuck v. Stedman, 2 Pick. 468, and Furness v. Fox, 1 Cush. 134, the legacies were not charged upon land, and those cases, therefore, are not applicable. The circumstance that the stock on the farm was also given to the defendant, makes no difference, as the farm was the principal thing, and the-legacies were charged upon it. See, also, 1 Jarman on Wills, 755, el seq.; Taylor’s Precedents of Wills, 582, and note; Birdsall v. Hewlett, 1 Paige, 32; Harris v. Fly, 7 Paige, 421; Taft v. Morse, 4 Met. 523.</p> <p>2. It is well settled, that if the clause in question had been in these words, “ to my son David Bowker, one hundred dollars a year, without interest, the first payment to be in one year from my decease,” the payments have terminated with his death. Sauery v. Dyer, Amb. 139. The words “ for seven years,” merely limit the time, and do not in any other way alter the effect of the clause.</p> <p>3. There is no express gift of this legacy to David Bowker previous to the time of the payment, but futurity is of the substance of the legacy. 1 Jarm. on Wills, 760, and note 1.</p> <p>1. This legacy is not charged upon the real estate, but is a personal charge on the defendant, provided he accepts the property devised to him. The expression used in the devise to Melvin, “ by his paying,” has the same meaning as “ on condition of his paying,” which is given as an example of a personal charge upon the devisee in 4 Kent’s Com. 540. See, also, Felch v. Taylor, 13 Pick. 133. The real estate is never to be charged with the payment of legacies, unless the intention of the testator so to charge it is either expressly declared, or fairly and satisfactorily to be inferred from the language of the will. 1 Roper on Legacies, 670 and note, and cases cited, 682, 683; Seaver v. Lewis, 14 Mass. 83 ; Kightley v. Kightley, 2 Yes. jun. 328.</p> <p>2. Even admitting the legacy to David to have been charged on the real estate devised to Melvin, it comes within the exception to the rule contended for by the defendant. It is not necessary that the will should specify, in direct terms, that the postponement of the legacy was for the convenience of the principal devisee, or in reference to the circumstances of the estate, in order that it should come within the exception ; but the court will draw such inference where the circumstances warrant it. The rule adopted by courts would seem to be, that, unless it appears directly from the words of the will, or by just inference, that the testator intended the postponement of the payment to the particular legatee on account of his personal advantage, it will be considered as made for the convenience of the principal devisee, and for the benefit of the estate, and, therefore, be a vested legacy. 1 Roper on Leg. 656-668, and cases there cited; Lowther v. Condon, 2 Atk. 127 ; Ewes v. Hancock, Ibid. 507 ; Wither v. King, 2 Bro. P. C. 135; Sherman v. Collins, 3 Atk. 319; Hodgson v. Rawson, 1 Yes. sen. 44; Timstall v. Brocher, Amb. 167; S. C. 1 Bro. C. C. 124; Manning v. Herbert, Amb. 575; Clark v. Ross, 2 Dick. 529; S. C. 1 Bro. C. C. 120, in notes ; Kemp v. Davy, 1 Bro. C. C. 120, in notes. In Taft v. Morse, 4 Met. 523, the court held the legacy to be charged on the land, because the words " out of the estate ” were used. So in Gardner v. Gardner, 3 Mason, 178; S. C. 12 Wheat. 498. No such words are used in this will.</p> <p>3. It was not real estate only that was devised to Melvin, but all the stock and farming tools also were given to him by the same clause of the will. If it should be considered that here was a charge upon real estate, then the rule applies, that when the legacy is chargeable on the personal as well as real estate, then so much thereof as the personal fund would extend to pay, should go to the executor or administrator. 1 Roper on Leg. 653.</p> <p>4. No such rule as that contended for by the defendant ever existed in this commonwealth.</p>

<p>A person is liable to be taxed in the town where he resides, on the first day of May, although he and his estate may be set off to another town by a special statute, before the assessment is completed, and the tax bill delivered to the collector.</p>

<p>This was an action of debt, commenced May 8, 1851, in the court of common pleas, on a judgment of a justice of the peace, rendered July 27, 1827. The defence mainly relied upon, was the statute of limitations.</p> <p>The plaintiff, in order to take the case out of the statute, introduced two witnesses, who testified that the defendant left the commonwealth some time during the year 1827, or 1828, and had not been in the commonwealth since, and had left no property in the commonwealth except an equity of redemption, which had been seized and sold to satisfy an execution in favor of one Jacob H. Van Deusen, against the defendant.</p> <p>The presiding judge, Mellen, J., instructed the jury that, twenty years not having elapsed, prior to the first of May, 1836, the time when the revised statutes went into operation, hice the rendition of the judgment on which the action was rought, the judgment was still in full force and effect, and an action could be maintained upon it.</p> <p>The jury returned a verdict for the plaintiff, and assessed damages in the sum of $28.41; and the defendant alleged exceptions.</p> <p>cited Smith v. Morrison, 22 Pick. 430 ; Rev. Sts. c. 120, §§ 1, 9; St. 1839, c. 73.</p> <p>1. The action is not barred by any statute of limitations in force prior to May 1, 1836, twenty years not having elapsed. Pease v. Howard, 14 Johns. 479.</p> <p>2. It is not barred by Rev. Sts. c. 120, §§ 1, 9, the defendant having left the commonwealth in 1827, or 1828, leaving no attachable property, and not having resided here since that time. Brigham v. Bigelow, 12 Met. 268; Darling v. Wells, 1 Cush. 508; Wright v. Oakley, 5 Met. 400.</p>

<p>A person summoned as trustee is to be charged or not, according as, on a just view of all the facts, the weight of evidence and of conviction shall fairly preponderate ; and if it be not affirmatively proved by the answers of the alleged trustee, or by the collateral proofs, that he is chargeable, then he is to be discharged.</p>

This was an action of assumpsit, brought in the court of common pleas, by the plaintiff, as treasurer of the Congregational Society in the town of Washington, to recover the amount of the defendant’s subscription on a subscription paper, a copy of which is as follows :— “ This certifies that we, the subscribers, believing that there ought to be a new meeting-house built by the Congregational Society in the town of Washington, therefore we, the subscribers, agree to pay the…

Trespass guare clausum fregit. The writ was dated June 7, 1850, and the case was submitted to the court of common pleas, and, by appeal, to this court on an agreed statement of facts, of which the following are the most material:— The plaintiff was lawfully seized of the land of the alleged trespass, before and up to the time when the deed hereinafter mentioned was executed, and has continued in the actual possession to the present time, without interruption except as…

<p>If the course of a river not navigable changes, and cuts off a point of land on one side, making an island, such island still belongs to the original owner.</p> <p>In such case, if the old bed of the river, being gradually deserted by the current, fills up and new land is formed, such newly formed land belongs to the opposite riparian proprietors respectively, to the thread of the old liver.</p> <p>And if new land be formed in the river above said island, independent of the island and not by a slow, gradual, and insensible accretion to it. such new land above belongs to the opposite riparian proprietors respectively to the Jilum aqum, or thread of the river.</p> <p>The thread of the river in such case would be the medium line between the shores or natural water-lines on each side at the time the new land was formed, without regard to the channel or deepest part of the stream.</p>

<p>A bona fide sale, for a valuable consideration, by one partner to another, of all the partnership effects, is valid and the property so conveyed becomes the separate estate of the purchaser, although the firm and both partners are at the time insolvent.</p> <p>By the insolvent law of this commonwealth, St. 1838, c. 163, § 21, the separate estate of partners must be first distributed to separate creditors, although there be no solvent partner and no joint estate, to which the joint creditors can resort.</p>

<p>When a submission to arbitrators is in the most general form, of all demands whatever, and there is an award of a certain sum of money as balance due from one to the other, it is a full execution of the submission.</p> <p>If, under a particular submission, accompanied with a general submission, award be made concerning the particular things, and also for a money payment, the money payment will be intended to cover all other demands, unless the contrary appears.</p> <p>Every reasonable intendment is to be made in favor of an award.</p> <p>The rule of law, that, in order to be valid, an award must be certain and final, means, not that nothing shall remain to be done to complete the execution of the award, but that the things to be done shall be determined and defined to a reason able certainty.</p> <p>By the common law of Massachusetts, differing in this respect from the English common law, corruption or misbehavior, excess of authority, or gross errors oi mistakes on the part of arbitrators, are pleadable in bar to an action on their award.</p> <p>Partiality on the part of an arbitrator, unless expressly waived by the parties in the submission or otherwise, is a good defence to an action on the award.</p> <p>To act as the agent of one of the parties regarding the matters in controversy, or to receive and act on ex parte representations or evidence, or otherwise permit undue influence from any quarter, constitutes such partiality as will invalidate an award.</p> <p>Testimony as to declarations of an arbitrator, uttered in pais after the making of an award, is not competent evidence to impeach its validity.</p> <p>Though, in general, an arbitrator cannot be received to impeach his own award, especially by declarations in pais, yet he may depose to facts which transpired at or during the arbitration, and which tend to show the award to be void for legal cause.</p>

<p>The St. 1851, e. 315, § 1, requiring a summons to be left with a stockholder of a corporation, before his property can he taken on execution against the corporation, does not require any change in the writ or declaration, from the form before adopted in a suit against such corporation.</p> <p>In an action against a corporation and some of its stockholders, seeking to charge them individually, mere irregularities in the mode of becoming stockholders cannot avail such individuals, if the corporation had waived such informalities, and recognized them as legal stockholders. o</p> <p>In such action, if the corporation admit its own liability by a default, a stockholder cannot in his own defence, even since the St. 1851, c. 315, deny such liability.</p> <p>Where several stockholders in a corporation are summoned to answer in a suit against the corporation, pursuant to St. 1851, c.315, § I, and severally deny their liability they are not entitled to a separate trial by different juries.</p>

<p>A. town, whose overseers of the poor send a lunatic pauper to the State Hospital, without an adjudication by any court or magistrate, may nevertheless recover their payments for his support, of the town of his legal settlement, under St. 1841, c. 77.</p> <p>Such a sending is a “commitment” of the pauper within the meaning of that statute.</p> <p>In an action for such expenses, by the town committing such lunatic pauper, against the town of his settlement, no recovery can he had for expenses incurred more than two years previous to the commencement of the action, nor more than three months’ previous to notice to the defendant town.</p>

<p>The defendant agreed in writing to go to California with a mining company, as a substitute for the plaintiif, to work with- the company two years, and to remit one half of his net earnings to the plaintiff, “ at the expiration of the association.” The company disbanded before the two years expired, and the plaintiff received his share of the profits to the time of dissolution. The defendant continued to labor in California on his own account, but refused to pay over any share to the plaintiff afterwards. Held, he was not bound to do so.</p> <p>A plaintiff, who declares upon and offers in evidence a written contract as his ground of action, cannot introduce the oral declarations of the defendant as to his supposed liability.</p>

The defendant was tried before Bishop, J., in the court of common pleas, for maliciously burning the barn of Jason Powers. Under the ruling of the judge, excluding certain evidence offered by the defendant, he was found guilty, and filed his bill of exceptions to this court. The nature of the testimony offered and rejected, is stated in the opinion.

<p>Petition for leave to file an information under St. 1852, c. 312, § 42, and for an injunction against the further exercise, by the respondents, of certain franchises and privileges not granted them by their charter, St. 1851, c. 277.</p> <p>The petitioner being a stockholder in the corporation, and having had his land taken for the construction of their road, complained that said railroad company was by their charter authorized to construct a railroad, from the depot of the New London, Willimantic and Palmer Railroad, in the town of Palmer, crossing the Western Railroad at or near the depot of said Western Railroad in Palmer, by the most convenient route, northerly through the town of Palmer, in the county of Hampden, and the towns of Belchertown and Amherst, in the county of Hampshire, and of Leverett, Sun-derland, and Montague, in the county of Franklin, to the Vermont and Massachusetts Railroad, at a point the most convenient to intersect the same in said town of Montague; That the capital stock of said company should by law consist of not more than six thousand shares, the number to be determined by the directors of said company; and that no shares should be issued for a less sum or amount to be actually paid in on each, than the par value of the shares first issued: That for the purposes of construction, the road should by law be divided into two sections, one section extending from Palmer to the village of Amherst, and the other from Amherst to Montague; that a moiety of the capital stock should be appropriated and set apart for the construction of each section; that the construction of neither section should be commenced until a certificate should have been filed in the office of the secretary of the commonwealth, subscribed and sworn to by the president of said company, and a majority of directors thereof, stating that all of the stock appropriated and set apart for the construction of said section had been subscribed for by responsible parties; and that twenty per cent, of the par value of each and every share, so appropriated and set apart, had been actually paid into the treasury of said company.</p> <p>The petition averred that the capital stock of said corporation had been fixed by the directors at four thousand shares, of the par value of one hundred dollars each, of which two thousand shares had been duly appropriated and set apart for the construction of the section aforesaid, which extends from Palmer to the village in Amherst; and that said two thousand shares so appropriated and set apart have not been subscribed for, but only sixteen hundred shares; and that twenty per cent, of the par value of each share so appropriated and set apart had not been actually paid into the treasury of said company: And that the subscription for a part of the said two thousand shares, to wit, two hundred shares, was obtained by said company in the following manner, viz: a contract for the construction of the section aforesaid, or a part thereof, had been entered into by said company and Willis Phelps and George Phelps, for a certain price, to wit, the sum of $100,000, and that after the making of said contract, and for the purpose of a fraudulent and illegal evasion of the provisions and requirements of said act, it was agreed between said company and the said Willis and George, and sundry other persons, that $5,000 should be added by said company to said contract price, and that said Willis and George should subscribe two hundred shares, part of said two thousand shares, and that other persons should purchase of said Willis and George shares so subscribed for. as aforesaid, at a sum less than the par value, to wit, the sum of twenty-five dollars per share. In pursuance of which corrupt, illegal, and fraudulent agreement, so made as aforesaid, the said Willis and George became, and were subscribers for two hundred shares, part of the said two thousand shares so set apart and appropriated as aforesaid: And that sundry other persons offered to give certain sums of money, to wit, twenty dollars each, for the construction of said section of said road, but were unwilling to subscribe and pay for one share each; and that for the purpose of evading the provisions of said act, and to make it appear on their subscription lists and books that a larger number of shares, part of said two thousand shares, had been subscribed, than in truth and reality had been done, it was illegally and for the purpose of deception, agreed between the said company and the said last mentioned persons, that each of said persons should subscribe for one share in said company’s stock, part of said two thousand shares, and that neither of said persons so subscribing should ever be called upon to pay the par value of said shares so subscribed for, but that upon the payment of twenty dollars on the share, each of said subscribers should be released from the payment of the balance of the par value of said share; and that no certificate for such share should be issued by said company: And that said shares so subscribed for by said Willis and George, and by said last-mentioned persons, have been considered, treated and counted by the president and directors of said company, as part of said two thousand shares required by the provisions of law to be subscribed for, before the construction of said section of said railroad should be commenced; and that without including said shares, said two thousand shares have never been subscribed for: And that previously to the commencement of the construction of said railroad, the subscribers for a number of shares, part of the said two thousand shares, gave their promissory notes for the amount of twenty per cent, on a share, and that the same were received by said company as actual payment into the treasury of said company, of said twenty per cent.; and that no payment has at any time hitherto been made in money upon said shares; and that, at the time of the corn» mencement of the construction of said railroad, said notes were wholly due and unpaid: And farther; that although the requirements of said act have not been complied with, yet the said company claims to exercise, and does now exercise all the franchises named in said act, and did, on or about the 1st day of April, 1852, commence the construction of said section of said railroad; and on the 16th day of August, 1852, did file in the office of the clerk of the county commissioners, in said county of Hampshire, a location of said section of said railroad, whereby it appears that said section of said railroad is not located from said Palmer to said village in Amherst, as is by law directed, but on the contrary that the northern terminus of said roaa is located at the distance of one half mile from said village, and that said location is the exercise by said company of a franchise and privilege not conferred by law; and further that by such departure from the line of location authorized by said act, the real estate of the petitioner is greatly and unnecessarily injured, and his interests put in hazard.</p>