Volume 64 — Massachusetts Reports

<p>If an executor be also appointed trustee in the will, bnt give bond only as executor, he is chargeable in that capacity for the property in his hands, until he has given bond as trastee, and charged himself with the property as trastee.</p>

<p>Where a state pauper, for whose support provision is made in one town, voluntarily and without any cause of complaint, leaves the place of such support and goes into another town where the pauper is not in any need of immediate relief, and is there supported by an individual, the latter acquires no cause of action thereby against the last-mentioned town, under the Rev. Sts. c. 46, § 18.</p>

<p>The proprietors of a i ailroad have a right to cut the trees growing on the strip of land which they have taken for their road, whether such trees are for shade, oma. ment, or fruit, and whether such cutting be at the time of laying out their track, or afterwards; and there is no burden of proof on such proprietors, to show, in their justification, that the trees are cut for the purposes of their road.</p>

<p>Petition for a writ of prohibition. The petitioners averred that on the 17th December, 1847, they presented a petition to the county commissioners of Franklin, setting forth that they found it necessary, in the construction of their road, to raise the highway leading from the town of Erving to the town of Greenfield, at a point near Grout’s corner, in the town of Montague, so that convenient access may be had to their depot grounds situated there, and praying that said commissioners would order and direct the manner of raising said highway, to cross said railroad on a level; that the said commissioners did thereupon, with the consent of the selectmen of Montague, order and adjudge that said railroad company be authorized to alter said highway, by raising the same to cross on a level with said railroad; also specifying the time and manner in which such alteration should be made. By said order, also, the company were required to raise a bridge over Miller’s river, which bridge was supported by the towns of Erving and Montague, and was part of the highway aforesaid.</p> <p>The present petition then averred that on the second Tuesday of December, 1849, the towns of Erving and Montague presented a joint petition to said county commissioners, complaining “ that the railroad company had not complied with the previous order of said commissioners of December 17, 1847, and praying the commissioners to modify their former order in such manner as should be best for all parties, or to assess damages for the non-fulfilment of said order; ” but this last petition did not aver any unreasonable neglect on the part of the railroad company to comply with such former order.</p> <p>On this petition of Erving and Montague, the county commissioners, on the 10th of June, 1850, against the protest of the railroad company, modified their order of December 17, 1847, and postponed the proposed raising of the highway and bridge for “ many years,” and directed the railroad company to pay to the towns of Erving and Montague seventy-five dollars each, as damages. The town of Montague accepted said amount, but the town of Erving, feeling aggrieved by this estimate of their damage, refused to receive the same, and on the 4th day of March, 1851, applied to the county commissioners, for a warrant for a jury to assess said damages, which warrant was ordered by the commissioners, on the 7th day of September, 1852.</p> <p>The present petition prayed for a writ of prohibition, re» straining said commissioners from issuing said warrant for a jury, and averred several grounds of illegality in the proceedings before the commissioners, the only one of which necessary here to mention was; “ Because the commissioners having made their order, as to the manner of altering said highway, on the petition of the railroad company, December 17, 1847, they had no power afterwards, on the petition of Erving and Montague, to change said decree into a payment of money; the only remedy for an aggrieved party being to enforce said decree in the supreme court, or to apply to the commissioners for damages for a breach thereof; and because sections 67 and 68 of the 39th chapter of the Revised Statutes, upon which the claim of Erving is based, apply only to cases where highways are to pass over or under railroads.”</p>

<p>Luther Holland, formerly of Belchertown, in the county of Hampshire, died in New York in 1851, leaving no property in this commonwealth, unless it was real estate in said Belchertown, which he had conveyed to his son, but which conveyance, Joseph Davenport, a creditor of said Holland, contended was fraudulent and void as to creditors. Said Davenport had an action pending in this commonwealth against said Holland, in which he had attached the same real estate. He therefore applied to the judge of probate for the county of Hampshire, to grant administration to E. G. Bowdoin, on said Holland’s estate, the widow and next of kin having expressly declined the trust. But the judge of probate declined to make any appointment, and Bowdoin appealed to this court. The respondent, son of said deceased, opposed the application. The evidence was reported for the whole court.</p>

<p>Assumpsit, brought originally in tms court, and submitted upon an agreed statement of facts, the substance of which sufficiently appears in the opinion of the court.</p>

<p>In an action for the publication of a libel, the defendant asked a news-collector, who wrote a part of the article complained of, “ what inquiries and examinations he made, and what sources of information he applied to, before malting the communications,” which tended to charge the plaintiff with dishonesty and bad faith ? Held, that the question was incompetent, and that the defendant, as a foundation for such question, could not prove that there was a general anxiety in the community, in regard to the facts stated in the publication.</p>

<p>The records of a manufacturing corporation may be competent evidence of their proceedings, although kept by a clerk not sworn, if verified by his oath, when offered in evidence.</p> <p>The general agent of a manufacturing corporation may call a meeting thereof, without any special authority, in the absence of any statute or by-law providing for the calling of meetings.</p> <p>A meeting of a manufacturing corporation may be legally held, although one of its members is incapable from mental imbecility of receiving a notice thereof.</p> <p>A person not a stockholder in a manufacturing corporation may be legally elected a moderator at one of its meetings.</p> <p>The fact that a seal with a particular device has been used by a manufacturing corporation on three occasions, does not make that the exclusive seal of the com pany, the records showing that no particular seal had ever been adopted by vote of the company.</p>

<p>Assumpsit for the price of a quantity of timber sold by the plaintiffs to the defendant. The trial was before Mellen, J. in the court of common pleas, and the defendant admitted the delivery by the plaintiffs, of the timber sued for, and that it was used in a dwelling-house erecting for him, but contended that the same was sold to one Rollins, a contractor,, who had agreed to furnish the materials and build said house. The plaintiffs called their clerk, who produced their books of account, and swore to the entries therein made by himself, charging said timber to the defendant. The defendant objected to these entries as incompetent evidence of the fact to whom the credit was originally given, but the presiding judge admitted the evidence. The verdict was for the plaintiffs, and the defendant excepted. The case was argued in this court, as of the September term, 1851.</p>

<p>One partner may have an insurable interest in a building purchased with partnership funds, although it stands upon land owned by the other partner.</p>

This was originally an action of trespass for an injury to the plaintiff’s property by the defendant’s horse, and tried in the court of common pleas. In that court the plaintiff was allowed to amend his writ, by striking out the original counts, and filing new ones in assumpsit upon an award.

This was an action brought in the court of common pleas, to recover, as set forth in the plaintiff’s bill of particulars, for the board of the defendant’s wife and child, from the 13th of December, 1848, to the 12th of May, 1849, and also for the board of the latter, from the 12th of May to the 29th of September, 1849, and it was submitted to that court, and by appeal to this, upon the following agreed statement of facts: At the May term, in 1849, of this court, for the…

Assumpsit on a promissory note of which the following is a copy: “ $33. Springfield, July 11, 1850. For value received, I promise to. pay I. Rindge, Jr. or order, Thirty-three dollars — cents on demand with interest.” In the court of common pleas, the defendant pleaded a discharge under the insolvent law, St. 1838, c. 163, dated April 23, 1851, the first publication being October 11,1850.

This was an action of trespass against the defendant, as a constable of the town of Wales, for taking two harnesses, the property of the plaintiff, originally brought before a justice of the peace, and amended into an action of the case. The cause was submitted to the court of common pleas, and by appeal to this court, upon an agreed statement of facts.

<p>Assumpsit on a special contract to perform certain work for the plaintiff within a stipulated time, and upon materials to be furnished by the plaintiff. The declaration alleged that the plaintiff furnished the materials to the defendant within the stipulated time, but that the defendant abandoned his contract, and the plaintiff was obliged to employ others, and was otherwise damnified. The case was tried in the court of common pleas before Hoar, J.</p> <p>The plaintiff offered evidence tending to show that soon after the date of the contract, the defendant commenced doing the work, and employed from ten to twelve hands to assist him; that it was not completed at the time stipulated, but the defendant continued to work upon it with his men for several months’ longer, when he left it incomplete, and the plaintiff employed men to finish it.</p> <p>The defendant offered evidence tending to show that the plaintiff did not furnish him with forged work for making the articles mentioned in the contract, as he had engaged to do, in sufficient season to enable him to complete it at the stipulated time. And that the lock frames mentioned in the contract were not prepared till after the defendant left the work. Also that a considerable part of the work was to be done on the plaintiff’s milling machines, situated in his factory, and that these machines were so much used by the plaintiff’s other hands in the factory that the defendant could not have them to use as much as they were needed by him to do his work in season, and that this increased the expense and delay of the work.</p> <p>The defendant contended that if the jury were satisfied that he was prevented from completing the work at the time stipulated, by the neglect of the plaintiff to furnish him either with materials or machinery, according to the plaintiff’s contract, then the plaintiff’s declaration was not sustained, and the judge ruled that this would be so if the defendant had chosen to take advantage of it, and had not waived the performance of these conditions. But the judge instructed the jury that although they might be satisfied that the work was not done at the time stipulated in the contract, on account of the fault or neglect of the plaintiff, yet if the defendant continued to work upon the job, and treated the contract as a subsisting contract, it was evidence tending to show that the defendant had waived his rights in this respect; and that if they believed upon the whole evidence in the case, there was such waiver, and that the parties understood that the contract continued in force, and the time of the performance only was waived, and the defendant left the job incomplete several months’ after-wards, without a reasonable cause existing at the time, and without the consent of the plaintiff, the plaintiff’s declaration was sustained.</p> <p>The jury found a verdict for the plaintiff, and the defendant excepted to the foregoing rulings and instructions.</p>

<p>On a trial for breaking and entering a dwelling-house, with intent to commit a rape, the government may prove the effect of the force upon the person violated.</p> <p>In such a trial, the defendant has no ground of exception to an instruction that the jury must convict or acquit of the entire charge.</p> <p>In such an indictment, it need not be alleged that the defendant “then and there ” intended to commit the rape, nor need the offence of rape be fully and technically set forth.</p>

Bill in equity, in which the complainants, ten in number, described themselves as citizens of the town of Granville and tax payers therein, liable to be assessed and to pay taxes in that town.

In this case, which was a bill in equity for the redemption of a mortgage, the point is sufficiently stated in the opinion. This case was argued and decided as of the September term, 1851.

<p>A party cannot impeach his own witness by proof of statements contradictory to his testimony in court, although he may prove a fact to be otherwise than his own witness states it.</p>

Indictment upon Rev. Sts. c. 128, § 19, for falsely pretending to be a sheriff. It contained two counts.

<p>The plaintiff residing in Barre, hired a store in Boston every year, from the 1st of December to the 1st of March, and kept a stock of goods there for sale during that period, but had no establishment there on the 1st of May. Held, that the stock was not taxable in Boston, even since St. 1839, c. 139.</p>

<p>A charge of a single sale of intoxicating liquor on the first day'of March .is sustained by proof of a sale on the seventeenth of the same month.</p> <p>The St. 1844, c. 102, imposing upon the defendant the duty of proving a license, in all prosecutions for selling “ spirituous " liquors, applies to the St. 1850, c. 232, against selling “ intoxicating ” drinks.</p>

<p>In this case, which was argued by E. Washburn and S. T. Spaulding, for the complainants, and P. C. Bacon and D. Foster, for the respondents, the facts appear in the opinion of the court, given by</p>

<p>A husband who, being sued with his wife for her debt dum sola, allows judgment by default against himself alone, after her death, has no claim against her estate for the amount paid by him on such judgment.</p>

<p>A widow joined with all but one of her husband’s heirs, in a bond to sell their respective interests in her husband’s real estate at public auction, reserving to herself for her dower estate, according to the usual rates of allowance. The entire estate was bid off May 13, 1851, but no sufficient memorandum was made to bind either party, and the other heir had not then agreed to sell. On May 17, 1851, the widow died, not having executed any conveyance of her interest, and on the 9th of June following, all the heirs conveyed the entire estate to the highest bidder at said auction, and the deed was dated as of the auction sale. Held, that the widow’s administrator had no claim to any portion of the purchase-money.</p>

<p>Action upon the case for damages caused by the breach of a written warranty in which the defendant agreed “ to deliver to the plaintiffs one hundred tons of iron as soon as convenient within one month, warranted to be suitable for the purpose of manufacturing at the plaintiffs’ works, and at least as good as the last sent them, and to be determined by their agent Warren Hunt; if it was not, to be returned at the defendant’s expense.” The trial was in this court.</p> <p>The defendant contended that if the iron was unsuitable and not as good as the last sent to the plaintiffs, they might return the iron at the expense of the defendant, and that, upon refusal of the defendant to receive back the iron, the plaintiffs might have sold it and recovered of the defendant the loss by such sale; but that a return at the.expense of the defendant was his only liability and the only remedy of the plaintiffs. But the presiding judge, Metcalf, J. instructed the jury that the plaintiffs were at liberty to return the iron if not conformable to the warranty, but that they might recover damages for a breach of the warranty if they did not return it.</p> <p>The defendant contended that the decision of the plaintiffs’ agent must have been made within a reasonable time, and that this was a question of law to be determined by the court, but the presiding judge instructed the jury that the question was for them to determine. A verdict was returned for the plaintiffs, and the defendant excepted.</p>

<p>This case was tried in the court of common pleas before Merrick, J. and came up on exceptions by the defendant, to the rulings and instructions of the judge.</p> <p>The facts are set forth in the opinion of the court.</p>

<p>The commencement of a suit by a mortgagee in possession, to foreclose the mort gage by action, is not an abandonment of his possession.</p> <p>A mortgagee not in actual possession may, after condition broken, maintain trespass against the mortgagor for cutting and carrying to market timber trees standing on the premises.</p>

<p>The answer and statements sworn to by the person summoned as trustee, are to be considered as true, in deciding how far he is chargeable ; and neither party can , allege and prove any other facts, except such, as are not stated nor denied by the supposed trustee.</p>

<p>A bond by B. that “ he, his heirs and assigns, shall convey certain real estate to H., his heirs and assigns, provided H., his heirs and assigns shall pay B. his heirs and assigns, a certain sum,” is broken by a tender to B. of that sum by H.’s assignee of the bond, and such tender need not be made to the then owner of the land under a conveyance by B., made subsequent to the bond.</p>

<p>Trespass for assault and battery, and false imprisonment. The defendant, by virtue of an execution in favor of Albert Brown, against George A. Trull, arrested the plaintiff and committed him to gaol.</p> <p>The defendant offered to show that said execution was delivered to him as one of the constables of the city of Worcester, to whom it was directed, to be duly served; that the judgment upon which said execution issued, was rendered in a suit commenced by said Albert Brown against the plaintiff, wherein the plaintiff was called George A. Trull; that the plaintiff owed to Brown the debt, for the recovery of which said suit was commenced and prosecuted; that the writ sued out by Brown, was intended to be, and was in fact against the plaintiff for the recovery of said debt; that said writ wherein the plaintiff was called by the name of George A. Trull, was duly served upon the plaintiff, and after such service, was duly entered before John A. Dana, Esquire, a justice of the peace, before whom the same was returnable; that being so entered, and the defendant in said action not appearing, and no person appearing in his behalf, the said justice after duly calling George A. Trull, entered up judgment for said Brown upon the default of the defendant in said action, and afterward duly issued the execution aforesaid; and that said execution was in fact issued against the plaintiff by the name of George A. Trull.</p> <p>In the court of common pleas Merrick, J. ruled that these facts showed a legal justification for the arrest, and constituted a good defence to this action. The plaintiff alleged exceptions.</p>

<p>The plaintiff having a claim against a firm by the name of Newton and Thompson, both parties entered into a submission pursuant to Rev. Sts. c. 114, to refer the matter to three arbitrators, who returned their award into the court of common pleas. The plaintiff there moved for its acceptance, and judgment thereon. The defendants objected, because, among other reasons, it did not appear either in the' submission, or the award, who composed the firm of Newton and Thompson. The submission was signed simply “ Newton and Thompson,” and the award was, that the plaintiff recover a certain sum of “ Newton and Thompson.” The presiding judge, Merrick, J. admitted evidence from both parties, as to the members of that firm, and decided that Paul Newton and William Thompson, (the defendants,) were members of said firm, and that it was uncertain whether Samuel L. Thompson was or was not a partner, and the award was accepted, and judgment entered against the defendants. They alleged exceptions.</p>

This case came from the court of common pleas, on the following bill of exceptions: “ Trover for a watch.

<p>Trover to recover the value of certain property described in the writ. The evidence tended to show that the articles in dispute were conveyed in a mortgage, given by Leander R. Hapgood to Nahum R. Hapgood, dated May 21, 1850, to secure the payment of a note for $625, on demand with interest, signed by said Leander R. Hapgood: And that this note and mortgage were held by said Nahum R.- as collateral security, to indemnify him against his liability upon two certain notes, signed by said Leander R., payable to said Nahum R., and by him indorsed to Southwick, the plaintiff, and payable three months from May 22, 1850. The evidence further tended to show that upon the 12th day of June following, said Nahum R. and the plaintiff made an arrangement, by which said two notes indorsed by said Nahum R. were given up to him, and the said note of $625 was indorsed to said Southwick, and the mortgage assigned to him, by said Nahum R. Also, that before said notes became due, and notice of foreclosure was given, said two notes were delivered by said Nahum R. to said Leander R., but the evidence did not show that said Leander R. ever assented to the transfer of said mortgage and note to the plaintiff.</p> <p>The evidence also tended to show that on the third day of July, 1850, written notice was given to said Leander R. that said Southwick intended to foreclose said mortgage, for breach of the condition thereof, and said notice was duly recorded in the office of the clerk of the city of Worcester And there was evidence to show a sale of the mortgaged property by Leander R. to Joab Hapgood, one of the defendants, some time during July or August, 1850. On the 12th day of November, 1850, the property in dispute was taken by the defendants from the hands of Martin Wilder, in whose hands it was left, with the understanding that no charge should be made for storage while the property should remain there, and Mr. Wilder was not liable to pay rent for the same.</p> <p>Upon the above facts, the presiding judge of the court of common pleas, Merrick, J. ruled that there was not sufficient evidence to show such a foreclosure for a breach of the condition, as would authorize the plaintiff to maintain this action against the mortgagor or any one claiming and holding his rights. The jury returned a verdict for the defendants, and the plaintiff excepted.</p>

<p>This case came before this court by appeal from the decision of the court of common pleas, Merrick, J. on the following answer of S. B. I. Goddard, Esq. the person summoned as trustee.</p> <p>“ On the afternoon of the 27th day of June, 1850, Tuttle who was then confined, charged with stealing two horses, &c., retained me as his counsel in said cases, and stated he had eighty-eight dollars and fifty-three cents in money in the hands of the jailer; one silver watch, worth eight or ten dollars, one steel chain, one breastpin worth one dollar, one ring worth one dollar and fifty cents. He wished me to take the property, save enough for my fees out of it, and keep the balance for him, and I accordingly took said property; some days afterwards, and before the service of said writ upon me, I had a long conversation with Tuttle; he told me he was charged with stealing horses in Bridgeport, in Connecticut, and other places, and wished to retain me generally as his attorney to defend him in the cases which were liable to come up against him • at the same time told me he was sued by a Boston man, and the cas» would be entered at the September term then following, and desired me to defend it, which I accordingly did; said case was entered in September, and was finally arranged by me without a trial. Upon the writ in said case certain property was attached, and I had considerable trouble about the matter before said trustee writ was served upon me. Tuttle’s money was given to me at the jail. After my second interview with him, I told him I would do the best I could for him in his cases, and promised to arrange some of his business matters for him in Connecticut, which I have done. I told him I had not money enough to do all he desired me to do for him, and he promised to remunerate me for my trouble when he was able. I made one journey to Boston, and spent one day on his business before July 9, 1850, the day of the service of the writ upon me. Tuttle further retained me, July the 3d, to act as counsel for him in procuring a pardon for him after he should be sentenced to the state’s prison, he having then, under my advice, concluded to plead guilty to the three indictments then pending against him.</p> <p>I had not charged Tuttle on my books, except as a memorandum of expenses and trouble which had accrued up to July 9, 1850. I made the charges in this way for the purpose of showing to Tuttle the amounts charged for each separate case of his I had in charge. The amount in my hands will not be sufficient to pay my reasonable charges and expenses for services already done, and to be performed in cases in which I was retained and promised to look after, before the service of said trustee writ upon me.”</p>

<p>Personal property mortgaged cannot be taken on execution against the mort* gagor; and replevin will lie by the mortgagee against a purchaser of the property at the sale on the execution.</p>

Action of contract to recover $1,188.22, and interest thereon, from September 15,1851, paid by the plaintiffs, an incorporated company, under a protest, as a tax assessed by the assessors of Worcester upon bank stock held by the plaintiffs. It was submitted to this court on an agreed statement of facts.

<p>A legacy to a church and society, “ so long as they maintain their present essential doctrines and principles of faith and practice,” which were then Unitarian, is forfeited by a change to a trinitarian system of faith and practice.</p>

<p>Assumpsit on a promissory note, dated December 15,1847, for $550, payable in annual instalments. Defence, want and failure of consideration. The note and $200 in money, were given for a deed of certain premises from the plaintiff to the defendant, which, as the defendant claimed, gave him no valid title. The deed “ granted, gave, remised, released, and quitclaimed one undivided half of a saw-mill, (held in common with the heirs of David Wyman, deceased,) situated in the easterly part of Westminster, and one half of the mill-yard, and water privilege, &c.; and the whole of a certain shop, near the saw-mill; intending to convey the estate, &c., conveyed to the grantor by Plympton Barnes, by a deed duly recorded in book 343, p. 462, to which reference is made; intending to convey, also, all the machinery and belting attached to said shop.” The plaintiff covenanted in said deed that “ he had good right to sell and convey the same, and would warrant and defend against all persons claiming by, through, or under him.” Deed dated December 15,1847. At the trial, in the court of common pleas, before Merrick, J. it appeared that on the 24th of October, 1838, Plympton Barnes, then the owner in fee of said premises, duly mortgaged the same to Nathan Raymond, senior, for $1,030; and, on the 30th of August, 1839, gave the plaintiff a second mortgage to secure $298.68; and soon afterwards abandoned the premises, and never occupied them afterwards. October 15, 1839, the plaintiff duly .took possession to foreclose his mortgage, for breach of condition, and, at the trial, he offered to show that he then went into actual occupation of the premises with the consent of N. Raymond, senior, the prior mortgagee, and with a verbal agreement that he would not interfere with the plaintiff’s possession, but that the plaintiff might pay the interest on the prior mortgage note, and the principal when wanted, and that N. Raymond, senior, should, on such payment, quitclaim his interest in the premises to the plaintiff. He also offered to show that he occupied said estate until 10th February, 1842, when N. Raymond, senior, by an arrangement between the plaintiff and Abijah H. Raymond, quitclaimed his interest in part of the premises conveyed to him by his prior mortgage, namely, in the saw-mill, mill-yard, and privilege of water, to Abijah H. Raymond for $425, which sum, by agreement of all parties, was applied in part payment of the mortgage debt to N. Raymond, senior. This quitclaim deed reserved, however, to the owner of the shop the use of the mill-yard so far as necessary for the use of the shop. Abijah H. Raymond, thereupon, went into exclusive occupation of the saw-mill, but the plaintiff continued to occupy the shop, until his conveyance to the defendant and the giving of the note now in suit, namely December 15, 1847; but during that time, namely, in October, 1842, N. Raymond, senior, took possession of the whole estate to foreclose his mortgage, although he never went into actual occupation. The defendant knew of the existence of the prior mortgage to N. Raymond, senior, and when he took his deed of the plaintiff, the latter verbally agreed to pay said mortgage, and have it discharged, and actually paid towards that object $150, part of the cash payment made by the defendant for the deed.</p> <p>The plaintiff also offered to prove that the defendant then went into actual occupation of the shop and its privileges, together with the machinery and belting, and has ever since occupied the same. Some time afterwards, namely, on the 4th of January, 1848, N. Raymond, senior, in consideration of $300, quitclaimed to the plaintiff a part of the premises, mentioned in the first mortgage of Barnes to him. The report and decision of the supreme judicial court in the case of said Nathan Raymond v. Abijah H. Raymond, 7 Cush. 605, together with the papers therein referred to, was introduced and made a part of this case.</p> <p>For the purpose of showing that all questions and disputes concerning the title acquired under said deed of December 15, 1847, and all demands concerning the consideration for the same were settled and adjusted between these parties, and that the defendant was thereby estopped from setting up this defence, the plaintiff proposed to introduce a bond and agreement under seal, entered into between himself and the defendant, dated February 5, 1849, to refer the whole of said subject-matter to referees, and to abide the decision thereof, and also the award of said referees therein, made and published on the same day, which was as follows, namely: “ 1st. That said Nathan Raymond, junior, has the privilege of using the water for the shingle shop, as heretofore. 2d. That said Nathan Raymond, junior, has no title to the undivided half of the saw-mill. 3d. That $233.67 be deducted out of the note given by N. Raymond, junior, to Milton Raymond in payment of the premises, and that said $233.67 shall be considered as paid on said note, and that the balance of said note now unpaid, after deducting said $233.67, be, and hereby is, allowed to Milton Raymond as his just due.” He also offered evidence tending to prove, that after said award was made and published, the defendant acquiesced therein, and assented to have the said sum of $233.67 indorsed on said note as it now appears thereon, in these words: “ February 5, 1849. Indorsed on the within note $233.67, according to award of referees, this day made.” Also that the defendant has frequently said that at the time he took said deed from the plaintiff, he (the. defendant) well knew that he acquired no title to the saw-mill, but took it in the form he did to trouble his brother Abijah H. But the presiding judge rejected the evidence, and ruled that upon the facts stated, and above set forth, the plaintiff was not entitled to recover, and instructed the jury to find a verdict for the defendant, which they did. The plaintiff alleged exceptions.</p>

<p>It is competent for selectmen, although not their duty, to add the name of a legal voter to the voters' list, after the voting commences; but they cannot, during such time, hold a regular meeting for the correction of the list.</p>

Bill in equity by Abigail B. Kilburn, wife of William Kilburn, and their five minor children, who sue by their father as prochein amy, against the trustees under the will of Eden Baldwin, deceased, father of said Abigail. From the bill, answer, and agreed facts, it appeared that said Eden Baldwin died June 13, 1839, leaving a will, which was duly allowed August 8, 1839.

<p>Exceptions to the form óf a petition to county commissioners, praying for a warrant for a jury to assess land damages, cannot be taken after the warrant has issued and a verdict been returned for the petitioner.</p> <p>The commissioners cannot object to a verdict in such a case, because the jury apportioned the damages to the different joint petitioners, instead of awarding a gross sum.</p> <p>On a petition and warrant for a sheriff’s jury to assess highway damages to the land of “A. B. and wife,” damages cannot also be assessed for injury to land held by A, B. in his own right.</p>

<p>A devise of “ the farm whereon I now live, consisting of about one hundred and thirty acres, with all the buildings thereon,” may pass a tract of land not immediately adjacent to that on which the testator lived, although the two exceed one hundred and thirty acres; the evidence showing that said lot was once a part of the testator’s farm, and not showing that it had ever been severed from it.</p>

Assumpsit on a promissory note made by E. W. Fuller and Alfred Chaffin, for forty-five dollars, dated the 22d day of September, 1849, payable to Justin Howard, or his order, four months from date, and by him indorsed to the plaintiff. It was admitted upon the trial, in the court of common pleas, before Merrick, J. that no demand of payment was made upon the makers at the time of the maturity of the note, and no notice was given to the defendant of its dishonor.

<p>Bill in equity to redeem a mortgage. The material facta sufficiently appear in the opinion of the court.</p>

<p>A., as guardian of an insane person, received a joint note signed by B. and 0. B. being afterwards appointed guardian in place of A., received from him all the ward’s property, including the note, and gave him a receipt in full. Held, that B. could not afterwards maintain an action on the note, in the name of A. against C. as the note was extinguished by such surrender to one joint maker.</p>

Petition under St. 1851, c. 233, § 66, to quiet title. The petitioner was assignee in insolvency of Joseph and Samuel S. Watson, of Winchendon, in this county, insolvent debtors, and, as such, was in possession of certain real estate in said Winchendon, described in the petition, claiming the same under the assignment, and he averred in his petition that he was informed and believed that one George Elliot, of Mason, in the state of New Hampshire, made some claim therein…

<p>Petition under St. 1838, c. 163, § 18, in the nature of an appeal from the order of the respondent, a commissioner of insolvency, directing the petitioner to charge himself with the amount of a certain note.</p> <p>James H. Benchley, the petitioner, was, on the 16th day of September, 1851, duly appointed assignee of the estate of John Leland, an insolvent debtor, and accepted said trust. Among the assets of said Leland was a promissory note, dated July 31, 1851, signed by the firm of Benchley and Jackson, of which Benchley was a partner, payable eight months after date to said Leland or order. This note was secured by a mortgage of real estate and machinery purchased of said Leland at the time of giving the note, and in payment for which the note was given.</p> <p>The said Benchley, before the third meeting of the creditors, sold the said note and mortgage, at public auction, of which due notice was given, and at which several of the creditors of said Leland were present, for the sum of $1,250, payable in thirty days. The assignee had no order from the commissioner to make such sale, but in his account, rendered the 5th day of February, 1852, charged himself with the proceeds of said sale. The commissioner ordered that he be charged with the full amount of said note with interest, to wit, $2,576.66.</p> <p>There were two prior mortgages on the real estate upon which said note was secured. One of said mortgages contained a power of sale in thirty days, and the condition had been broken. There was also a prior mortgage on the machinery for $700. The condition of this mortgage was also broken, and notice to foreclose had been given, and the time of foreclosure expired four days after the day of sale. The firm of Benchley and Jackson were at the time of sale, and ever since have been, unable to pay their debts, though they were then, and ever since have been, carrying on their business of manufacturing. An offer was made at the sale by Benchley and Jackson to quitclaim any interest they had in the equity of redemption of said mortgage.</p> <p>The assignee, feeling aggrieved by the decree of the decision of the court, charging him with the full amount of said note, filed his petition in this court, that as a court of chancery they might make such order or decree in the premises as law and iustice shall require.</p>

Action on the case for the recovery of damages caused by the detention of freight belonging to the plaintiffs.

Action of contract, to recover the amount of two promissory notes, one dated December 19, 1848, for seventy-five dollars; the other dated February 4, 1849, for twenty-five dollars; both signed by Lorenzo Billings, and payable to Joseph Billings, or order, on demand with interest. The defendant admitted the giving of the notes by her intestate; and relied upon proof of their payment and discharge.

This was an action of slander, for charging the plaintiff with adultery and fornication. In the court of common pleas, the defendant moved to dismiss the action for insufficient service, and the following facts were agreed : The defendant was formerly an inhabitant of Hardwick, in this county, but had removed to New York city, previous to the commencement of the suit.

Writ of entry on a mortgage of land described in the writ. The tenants were in possession of the premises under prior mortgagees of the same premises, from the same mortgagor. Possession had been taken on the prior mortgages, in March and April, 1849, for breach of condition, and the tenants paid rent to said prior mortgagees. The demandants never had been in possession.

<p>An owner of a mill on a watercourse cannot maintain a bill in equity to restrain a riparian proprietor above from cutting ice in his pond on the same stream, until the rights of the parties have been determined at law.</p>

This action was tried in this court, at the October term, 1849, before Metcalf, J. under whose rulings a verdict was found for the defendants. The plaintiff excepted to the rulings and instructions, which, with the facts of the case, sufficiently appear in the opinion.

Trespass for tearing down a horse shed, the property cf the plaintiff, and carrying away the materials.

<p>Bill in equity, in'which the complainant prays that the respondent, as administrator of the estate of Benjamin Gleason, late of Cambridge, deceased, may be decreed to transfer to her, ten shares of the capital stock of the State Bank, Boston, standing in the name of said Gleason on the books of the bank at the time of his decease.</p> <p>The bill states that on 2d December, 1831, the complainant, a sister of Gleason’s wife, was a domestic in his family. His wife then was and ever after continued to be lame and feeble; that on 2d December, 1831, Gleason, as an inducement to complainant to continue in his family, and take care of his wife, by his memorandum* delivered to the complainant, in consideration and as an equivalent for her future services in the family during her life, gave her a certificate of ten shares in the State Bank, and appointed her his attorney to receive the dividends, and hold said property as her own ; upon the back of which memorandum was an indorsement in these words, namely, that Gleason “ delivered to complainant the certificate of said shares, issued by the bank; ” which memorandum and certificate have ever since been, and now are, in her possession; that said shares during all this time stood, and now stand, in Gleason’s name on the books of the bank; and were, and are, transferable only at the bank by Gleason in person, or his attorney. The complainan* avers that she is and ever has been a single woman, and from December 2, 1831, to about December 1, 1844, in consideration of said gift, and from motives of humanity, continued to reside in Gleason’s family—talcing care of his wife, and his affairs, except when absent on occasional visits to relations, &c. That by an agreement between Gleason and the respondent in December, 1844, Gleason discontinued housekeeping, and his wife went to reside in the respondent’s family, where she remained until her death in December, 1846, and in consequence thereof, the complainant ceased to reside as a domestic in Gleason’s family; that Gleason died in September, 1847, and at his death, left property sufficient to pay his debts, without requiring said shares.</p> <p>That Gleason ever after December 2, 1831, received the dividends, which he paid to the complainant from time to time, as she wanted them, and she says that she has never received any other compensation for her services. The bill avers that the respondent was appointed administrator, on Gleason’s estate, October 12,1847, and since his appointment has received the dividends on said shares, amounting to $150 ; that the complainant cannot sell or dispose of said shares, or obtain the dividends, or derive any income from them, so long as they stand in Gleason’s name, as they now do; that since his appointment, she has applied to the respondent for relief, and exhibited to him said certificate and memorandum as evidence that the shares had been given to her by Gleason, and that she was the true owner of them, and urged him to transfer them to her, and to pay her the dividends received by him, and especially on the 2d August, 1849, did she so request him. But he has refused and still does refuse, &c.</p> <p>The prayer of the bill is, that he may be ordered to transfer said shares to the complainant, and account for, and pay over the dividends received by him, and for further relief.</p> <p>The most material allegations of the bill were admitted in the answer; a few minor points were denied, but they were either found by the court to be true upon the evidence, or were considered by the court as immaterial to the decision of the case.</p> <p>The cause was set down for hearing before the whole court upon the bill, answers, and depositions.</p> <p>The questions for the court are, first, whether upon the execution and delivery to the complainant of the memorandum in writing mentioned in the complainant’s bill, accompanied with a delivery to her at the same time of the original certificate of the bank shares, the legal title to the shares was transferred to and vested in the complainant, absolutely or conditionally, or whether the title to and property in the shares still remained in said Gleason. And if in said Gleason, then, second, whether the delivery of the memorandum and certificate of stock to the complainant, amounted in legal construction to such a declaration or agreement on the part of Mr. Gleason, that the shares should become her property, upon her remaining single and as a domestic in Gleason’s family, as stated or implied in the memorandum, as to make him a holder of the shares in trust for the complainant. And if so, then, third, whether, upon the facts in the case, the complainant is entitled to have the shares transferred to her, and an account taken of the dividends thereon received by the respondent as prayed in the bill.</p>

Action on the case for injuries sustained by the plaintiff, a laborer in the employment of the defendants, by the negligence of their servants and agents. It was tried in this court before Bigelow, J. by whom the evidence was reported for the consideration of the whole court. From this evidence it appeared that the plaintiff was a common laborer, employed in repairing the defendants’ road-bed, at a place several miles from his residence.

Trespass on the case, for damages to the plaintiff’s premises in Lowell, described in the writ. The only plea was the general issue.

<p>The only remedy for damages to land necessarily caused in the construction of the aqueduct from Long Pond to Boston, trader St. 1846, c. 167, is by petition to the court of common pleas under § 6 of that statute, although such injury is to land not finally taken for the location of the aqueduct, but only adjacent thereto.</p>

<p>Complaint under Rev. Sts. c. 46, § 6, praying the court to assess, and apportion to the respondent, a part of the expenses of the support of certain grandchildren of the respondent, by consanguinity, who had been maintained entirely by the complainant, for the period stated in the complaint. At the hearing in the court of common pleas, before Mellen, J. the respondent objected to the complaint because it did not allege, and to the sufficiency of the evidence, because it did not prove, that said grandchildren were “paupers;” or persons who had been a public charge. The presiding judge ruled that such fact need not be averred or proved; and ordered the respondent to pay the sum of two dollars per week for the support of said grandchildren. The respondent excepted to this ruling.</p>

<p>Writ of entry to recover a tract of land in Waltham.</p> <p>The demandant claimed title through Nancy Brown, one of the heirs at law of Samuel Stearns, by deed dated March 27th, 1848. At the trial in this court before Bigelow, J. it appeared that said Samuel Stearns, owning a farm in Waltham, including the premises in dispute, died in 1817; that in 1820, partition of his real estate among his heirs at law, was duly made by commissioners appointed by the supreme court, and that the premises now demanded were set to Nancy Brown, the grantor of the demandant, and some of the adjacent land was set to the tenant, another heir at law. It also appeared that at the time of said partition, the premises in controversy; and the parcel of land set to the tenant, were in common, and enclosed by one fence and enclosure, and have ever since so remained, Until since the date of the conveyance to the demandant. At the date of said partition, the tenant was a married woman, and so remained until 1832, when her husband died intestate. Since his death she has remained a widow. The land set to the tenant as above stated, and also the demanded premises, were mostly used as pasture land, and were approached in two ways, both of which led across the latter. The tenant proved that during the life of her husband the premises in dispute, and' the parcel set to her, had been used by him, and since his death by her, by turning cattle into the parcel set to the tenant; and that they thence went into and depastured the tract in controversy. It also appeared that the tenant had gathered apples from the trees on the latter place, and driven cattle over and across the same. This use, as aforesaid, was exercised by the husband of the tenant from 1820 till 1832, and from that time till the date of the writ, by the tenant herself; more than thirty years in the whole.</p> <p>The deed from Nancy Brown to the demandant first gave a description by metes and bounds, and then added, “ all these measurements being according to a plan made by A. Moore, dated March, 1848, to which reference is made ; meaning and intending to convey all that lot or lots of land set off to me as my part of the estate of Samuel Stearns, deceased, that bound upon Thomas Wright, Hannah Kendall, and land now held by N. Plympton, and by the same bounds as stated by the commissioners who discharged that duty in their report to the supreme judicial court, except in so much as embraces the line or lines near the dower set off to Mary Stearns, my mother. These last lines or line to be agreeably to the plan of A. Moore, and not as stated by the commissioners.”</p> <p>And it appeared that the boundary lines and plan mentioned and described in said deed did not include the demanded premises, but that the partition before referred to, and mentioned in said deed, did. The tenant thereupon asked the judge to rule that the demanded premises were not therein so described as to convey them to the demandant. But the judge ruled that the deed from Nancy Brown to the demandant conveyed all the premises set off to her by the partition aforesaid, as one of the heirs of Samuel Stearns, and that it being admitted by said partition that the demanded premises were set off to said Nancy Brown, the deed from her to the demandant conveyed the land in question.</p> <p>The tenant then contended that she had acquired a good title to the demanded premises as against said Nancy Brown and her grantees, by an adverse use, by her husband during his lifetime, and by herself since his decease, and on this question wished to submit the case to the jury; but it appearing that the use, if otherwise sufficient, had not continued in the tenant for twenty years, and that she could claim title thereby, only by tacking her husband’s possession during his lifetime to her own since his decease, in order to make twenty years, the judge was of the opinion that the tenant could not maintain her defence on this ground.</p> <p>A verdict was therefore taken for the demandant, which is to be set aside, if the foregoing rulings, or either of them, are erroneous*</p>

Writ of entry for a tract of land in Cambridge. At the trial in this court before Bigelow, J. the demandant relied upon a deed of the premises from Patrick Shields to himself, dated 22d September, 1848. The tenant claimed under an execution in his favor against said Patrick Shields, levied on said premises 9th November, 1850, and founded on a judgment for a debt existing prior to the demandant’s deed, and he contended that said deed was fraudulent and void at common law.

<p>Debt upon a jail bond dated February 14, 1851. The breach assigned was, that the defendant Perkins, the principal in the bond, did not surrender himself within ninety days to the jailer, and was not lawfully discharged.</p> <p>The defence was that he was lawfully discharged, by taking the poor debtors’ oath, within ninety days from the date of his commitment, and at the trial his discharge was proved.</p> <p>The plaintiffs objected to the validity of the proceedings by which said Perkins was discharged, and they produced in evidence the certified copy of the citation of his intention to take the oath, which by law is required to be served upon the creditor, and which was directed to Charles C. Eastman and others, instead of Charles S., and which also recited the execution as being in favor of Charles C. and others. The original citation, the officer’s return thereon, the magistrates’ certificate of discharge, and the bond in suit, all described the plaintiffs correctly, and the only error was in the copy of the citation served on the plaintiffs. The officer returned that he served a true copy of the original citation. The plaintiffs did not attend the examination.</p> <p>Upon these facts, the presiding judge in the court of common pleas, Bishop, J. ruled, that this error in the name of one of the creditors in the copy of the citation, did not vitiate the notice, but that the proceedings of the examining magistrates under it were legal. The verdict was for the defendants ; and the plaintiffs alleged exceptions.</p>

<p>In an action for goods sold, the jury may allow interest on the account, upon proof of a custom among merchants to charge interest in similar cases, with the knowledge of the defendant thereof.</p>

<p>An injunction will not be granted under St. 1847, c. 37, to restrain the payment of money illegally voted by a town, if the petitioners have been guilty of gross laches, and knowingly have permitted others to incur liabilities in good faith, relying upon such appropriation for reimbursement.</p> <p>In this commonwealth towns have no authority to expend money, or pledge their credit, to celebrate the anniversary of the surrender of Cornwallis.</p>

Assumpsit to recover for board and other necessaries furnished to the defendant’s wife, by the plaintiff, her father, from February 24,1849, to February 24, 1850.

Assumpsit upon a written guaranty by the defendant for the payment of the rent reserved in a certain lease from the plaintiff to one Manning. The lease was dated March 31st, 1849, and the guaranty was on the back without date. The guaranty was signed and delivered to the plaintiff on a Lord’s day, between sunrise and sunset; but the lease, although then prepared, was not executed and delivered until a week day following.

Trespass for removing the plaintiff and his goods from certain premises occupied as a dwelling in Wilmington, in the month of December, 1849.

<p>An objection to the competency of testimony, not taken at the trial, is not open on a hearing for a new trial before the whole court.</p> <p>It is a question of tact for the jury, and not of law for the court, whether a town has used ordinary care in the construction of its roads, and whether the latter are reasonably safe.</p>

<p>Assumpsit to recover for a cow sold to the defendant in the summer of 1848. At the trial in the court of common pleas, the defendant, as a defence to the action, and also to reduce the damages, offered evidence tending to show that the sale was made with a warranty that the cow was sound and right, and he contended there was a breach of said warranty.</p> <p>The plaintiff then introduced evidence tending to prove that after the defendant was in possession of the cow, under sai A sale, there was a dispute between the parties respecting their contract, and that in October, 1848, they met and settled their disputes by agreeing that the plaintiff himself should go the next day to the defendant’s house in Concord, and cany him the receipt of the plaintiff’s son (who had made the sale to the defendant, as the plaintiff’s agent) for the cow, and that the defendant would thereupon return and deliver back the cow to the plaintiff, retaining to his own use the calf which had been calved after the defendant came into possession of the cow; that the defendant exacted, of the plaintiff that he should come himself, because he, the plaintiff, had charged the defendant with stealing the cow, and the defendant wanted everything straight, so that no further trouble would come of it.</p> <p>The plaintiff further produced evidence tending to show that on the said day he did not go himself to the defendant’s, but sent his authorized agent and servant, together with the receipt from the plaintiff’s son for the cow. The servant and agent of the plaintiff went to the defendant’s and presented said receipt to him, and requested the defendant to deliver the cow to him for the plaintiff; but the defendant refused, because the plaintiff did not personally come for her; and he has ever since kept the cow. The agent of the plaintiff, who was sent for the cow, testified that the plaintiff told him not to take the cow from the defendant unless the defendant would furnish a man to assist in driving the cow from Concord to Acton, where the plaintiff lived; but it did not appear from his testimony whether, when he demanded the cow of the defendant, and offered the said receipt, he made known to him the directions of the plaintiff respecting said assistance or not.</p> <p>The defendant’s counsel contended that it was an essential part of the bargain between the parties, that the plaintiff should personally go to Concord and carry said receipt to the defendant, and receive from him the cow; and that the defendant was not bound to deliver the cow, or pay the price of her, because the plaintiff had directed his agent and servant not to receive her from the defendant unless the defendant would agree to furnish a man to assist in driving the cow to Acton. But the presiding judge of the court of common pleas, Merrick, J. ruled that it was not an essential part of the bargain and agreement between the parties, that the plaintiff should personally go to Concord and carry said receipt to the defendant, and that if the plaintiff sent an authorized agent and servant to do for him all that he was required to do by the terms of the bargain and agreement, and if said agent did do all that was so required, that would be a sufficient performance of the contract by the plaintiff, so far as it was to be performed by him; and as to the said directions of the plaintiff to his servant, respecting said assistance, the judge ruled that they were immaterial if they were not made known to the defendant, and if he refused to deliver the cow to the plaintiff’s servant and agent, solely upon the ground that the plaintiff had not personally come for the cow.</p> <p>The jury found a verdict for the plaintiff, for the whole sum. claimed. The defendant excepted to the aforesaid ruling.</p>

<p>In an action against A. for goods delivered to B., the plaintiff having offered evidence to show generally that B. was purchasing such goods on A.’s account, and as his agent, the defendant may show that B. made such other purchases on his own account.</p>

Trover for a quantity of dry goods bought by the plaintiff of I. F. Woodman and company, January 31st, 1849. At the trial in the court of common pleas, before Bishop, J. it appeared that in December, 1848, the goods had been transferred to the defendants, by George C. Varney and O. M. Soper, acting for said I. F. Woodman and company, and that a bill of parcels was at the time given by said Varney and Soper to the defendants in this form: “ Messrs.

<p>An attachment of personal property is not lost, although a third person, without the consent of the attaching officer, remove it from its place of deposit into the highway, where it is attached by another officer.</p>

<p>Assumpsit on a promissory note, not negotiable, made by the defendant to the plaintiff, dated July 24th, 1847, for $209.00, payable on demand, with interest. The defence was a want of consideration. At the trial in the court of common pleas, before Mellen, J. it appeared that the note in suit was given by the defendant to the plaintiff on the day of its date, in part payment for a note of $400, then indorsed in blank by the plaintiff to the defendant, and the balance was paid by the defendant to the plaintiff in money.</p> <p>The note for $400 was dated March 3, 1847, signed by Daniel Leland, Jr., Jesse Fogg, and Willard A. Harrington, and payable to the plaintiff or order, in six months from date, with interest. No evidence was offered of a demand and notice to charge the plaintiff as indorser of said note.</p> <p>It was admitted for the purposes of the trial, that said $400 note was obtained by the plaintiff of said Leland, and the other makers, by false and fraudulent representations, made by the plaintiff, and that the present defendant was defeated in a suit brought by him upon said note, against the makers thereof, by reason of such fraud, and thas he, the defendant, took the said note without notice of the said fraud.</p> <p>Upon which evidence the presiding judge insrnxaed the jury, that upon the foregoing facts the plaintiff was entitled to a verdict, and a verdict was accordingly rendered for the plaintiff. The defendant excepted to this ruling.</p>

<p>In this commonwealth no action lies on a judgment, on which execution has issued, if the debtor being imprisoned thereon, has given bond according to law for the prison limits; although the only surety in such bond has successfully defended a suit thereon, on the ground of infancy. The only remedy of the creditor against the principal debtor in such case is on the bond.</p>

<p>A married woman, whose husband had temporarily deserted her, and had been absent from the country several years, bought a tract of land and immediately mortgaged it back to secure the purchase-money. Held, that the mortgage was void, and not merely voidable.</p>

Action on the case for a malicious prosecution. The case was tried before Shaw, C. J. who made the following report: “ The declaration alleges, that the defendant Farley, at a court of common pleas, held at Lowell, February 1845, made a complaint before the grand jury, charging the plaintiff with the crime of peijury, in testimony given before the grand jury in 1843.

Action on a policy of life insurance, issued by the defendant company, February 16,1850, insuring the plaintiff, in the sum of $1,000, on the life of William C. Morrell, with leave to make a journey to California and back, and also to reside there.

<p>A complaint under the bastardy act, Rev. Sts. c. 49, is a civil process within the law allowing amendments, and may be amended by the insertion of a middle letter to the respondent’s name.</p> <p>After such amendment, and parol evidence of the identity of the respondent with the person prosecuted before the magistrate, the record of such proceedings ia admissible, notwithstanding the discrepancy of name.</p> <p>To constitute the mother of an illegitimate child a competent witness on a complaint under Rev. Sts. c. 49, § 3, she need not at the time of her travail declare, in so many words, the respondent to be the father of the child, nor need her declaration be in answer to interrogatories by others.</p>

<p>A. in good faith, took up B/s cattle damage feasant, and C. a field driver, at A/s request sold them at auction and received the money. The proceedings were irregular, and A. and 0. were in fact joint trespassers. Held, notwithstanding, that A. could recover of C. the money received for the sale of the cattle.</p>

<p>A wife, with the consent of her husband, may indorse in her own name a promissory note made payable to her during coverture, and pass a good title to the indorsee.</p> <p>The allegation in a writ that a note was indorsed to the plaintiff before action brought, is not legal evidence of that fact.</p>

<p>The city of Boston did not, by St. 1846, c. 167, acquire the fee of land taken for the construction of the aqueduct from Long Pond, but only such an easement therein as is necessary for the purposes of the waterworks.</p>

<p>An agreement by the holder of a negotiable promissory note never to sue the maker thereon, and not to call on the indorser for a period of nine months, suspends, but does not destroy, the claim against such indorser.</p>

<p>Motion to disallow the plaintiff any costs, founded upon the following state of facts. The same plaintiff on the 2d of March, 1850, commenced another action against the same defendant to recover an account, returnable before the police court of Lowell, on the 25th of the same month. The present action, commenced March 19, 1850, was also on an account, consisting of several items, all of which were due when the first action was instituted. Both were duly entered, and in both, judgment was duly rendered against the defendant, and he appealed to the court of common pleas. In that court he was duly defaulted in both actions, and in the former action judgment for damages and costs had been rendered. Mellen, J. overruled the motion to disallow costs, and rendered judgment for damages and costs in this action also. The defendant appealed to this court.</p>

<p>If a several right of fishery on the land of another can be acquired by prescription, it must be by an actual and exclusive occupation and enjoyment of the fishery, adverse to the riparian proprietor, and continued for at least twenty years.</p> <p>An adverse occupation by A. for a number of years, but afterwards abandoned, cannot be added to a subsequent occupation by B. to give B. a prescriptive right, although A., after such abandonment, released all his right in the fishery to B.</p> <p>An occupation of a fishery for several years by B. in the employment of A. cannot give B. any prescriptive rights against C., although A. himself claims adversely to C.</p>

Assumpsit. The action was entered in the court of common pleas for this county, at the September term, 1849, and the defendant duly filed an account in set-off. At the September term, 1850, the action was referred to an auditor, but no rule was taken out or applied for, and at the September term, 1851, the action was for that cause dismissed.

<p>Action on the case for the obstruction of a private right of way. It was tried in this court before Bigelow, J. on the general issue. The plaintiff being the owner of land on the north side of Main street, in Waltham, which runs east and west, conveyed the front portion thereof situated on the street, to Darius Wellington, “reserving however the right to have all the passage way kept open east of the buildings, as now standing, forever.” At the time of this conveyance, and ever since, the plaintiff owned a barn and stable on the adjoining back land not conveyed to Darius Wellington, to which barn was the passage way mentioned in the deed; and the controversy was, how wide this passage way should be under the reservation in said deed.</p> <p>There was on the land conveyed to Darius Wellington at the time of the conveyance, a dwelling-house fronting on Main street, and about ten feet therefrom, but the rear ox kitchen part of said dwelling-house extended about ten feet more easterly than the main part, and towards the Waltham bank lot, and the principal question was whether the reservation in the plaintiff’s deed secured a right of way, only as wide as the space between the kitchen part of said dwelling-house and the Waltham bank lot on the east, or whether the plaintiff had also a right of way over the jog made by the projection of the kitchen part easterly, beyond the east line of the main part of the dwelling-house.</p> <p>It appeared that at the time of said conveyance, a path led from the front door of the projecting kitchen part, along by the east side of the main building to a gate about three and a half feet wide in the front fence. On each side of this gate was a post about seven inches square; and a cherry tree about eighteen inches in diameter stood near the gate on one side, about in a line with the east side of the main part of the house. There was no fence between the path to the kitchen door and the passage way on the east, nor between the passage way and the bank lot adjoining, nor east of the gate aforesaid, nor in front of the bank lot.</p> <p>Said Darius Wellington erected a piazza on the east side of the main part of said house, and in front of the kitchen end, which the plaintiff claimed not only obstructed his passage over the jog aforesaid, but also projected somewhat further east than the kitchen part, and therefore obstructed in some degree the main passage way to his premises in the rear. He afterwards conveyed the whole estate to the defendant, making the same reservation as in the plaintiff’s deed to him. The piazza remained as before, which was the injury complained of,</p> <p>The case was by consent taken from the jury and submitted to the court on the foregoing facts, with the agreement that if the court shall be of opinion that the plaintiff, by the terms of his reservation, is entitled to have only the space east of the L or projection kept open, judgment is to be for the defendant.</p> <p>But if the plaintiff is entitled to have the whole space east of the main house kept open, judgment is to be entered for the plaintiff, and the case is to be sent to an assessor to ascertain the plaintiff’s damage.</p>

<p>An action of contract, by the plaintiff, a deputy sheriff, upon a receipt signed by John Barron, the defendant’s intestate, as follows: “ August 23, 1847. Received of Joseph Butterfield, deputy sheriff, the following property this day attached by him on a writ in favor of Lewis Loomis, against John M. Carter, of Lowell, returnable to the court of common pleas next to be holden at Lowell, on the first Monday of September next; namely, six boxes brown Havana sugar, of the value of forty dollars each; ah which we promise to deliver to said Butterfield on demand, or the value thereof, as above. John M. Carter, John Barron.”</p> <p>The action of Loomis v. Carter, on which said property was attached, was duly entered in court, and judgment rendered for the plaintiff, September 17, 1851. On the execution which issued on said judgment, the property in suit, on the 15th of October, 1851, was duly demanded of said Carter, and of the defendant, who had been in the mean time appointed administrator of said John Barron, and they refused to deliver the same, or pay its value.</p> <p>The defendant relied upon the following facts, as a bar to this action, viz: That said Carter, the judgment debtor before the rendition of said judgment in favor of said Loomis, namely, in the summer of 1850, petitioned for the benefit of the insolvent laws of this commonwealth. The first publication of notice was September 3, 1850, and an assignee was duly chosen, September 23, 1850. The attachment on the property in question was not ordered to survive by the commission of insolvency, and therefore was dissolved by the proceedings. The sugar attached never went into the hands of the defendant or his intestate, nor into the hands of the assignee of said Carter, but was redelivered to said Carter when the receipt in suit was given, and was used by him in his business before the commencement of the insolvent proceedings. Carter never obtained his discharge.</p> <p>' The case was submitted to this court, upon these agreed facts, and judgment was to be entered according to the opinion of the court thereon.</p>

<p>Since St. 1851, c. 233, § 97, and St. 1852, c. 312, § 60, the assignee and owner of a chose in action is a competent witness for the nominal plaintiff in an action thereon.</p> <p>In an action to recover for advertising the defendant’s business card in the plaintiff’s newspaper, the defendant asked a publisher “ what was a fair price for advertising such a card,” to which the presiding judge added, “ in the manner published by the plaintiff.” Held, that no exception existed to such question by the judge.</p>

Action for breach of a covenant not to underlet or permit any other person to occupy certain premises, mentioned in a lease between the parties dated May 8,1846.

<p>A testator appointed J. P. his executor, and S. wife of J. P. executrix, jointly and. severally. He then gave a legacy of $200, to be paid by his executor or executrix, to a certain charitable society, in one year after his decease, and he said,“to enable my executor or executrix to pay this legacy, I give unto them, or either of them, forever, a lot of land,” described; “ this lot of land being devoted for the payment of this legacy, is to be delivered to said society, unless payment is made by my executor or executrix ” as aforesaid. The will was proved in 1801, and J. P. alone accepted the trust as executor, and paid the legacy according to the will, his wife S. never having qualified or acted as executrix, and J. P. and S. his wife, jointly occupied the premises until 1827, when J. P. died intestate, leaving several heirs. His widow S. never having had her dower set out to her, continued to occupy the whole premises until 1847, when she died, leaving heirs by a former husband. Held, that by the devise, the fee of the estate vested in J. P. in severalty, upon the payment of the legacy.</p>

<p>It seems that this indorsement on a policy of insurance, “Eor value received, pay tba within, in case of loss to E. and H.,” made to a purchaser of the property insured, is rather an order or assignment of a right to the money in case of loss, than a regular transfer of the contract of insurance.</p> <p>To render such an indorsement operative as a perfect assignment of the policy, the assignees must at least show that the company, when assenting thereto, knew that the property insured had been sold to the assignees, and that they had given a new deposit note, as required by the by-laws of the company, in case of an alienation and formal transfer of a policy.</p> <p>Proof in such case, that at the time of the company’s assent to the assignment, a new deposit note had been delivered to an agent of the company, who resided in a different town, and was authorized to receive applications and deliver policies, and transfers of policies, and who did deliver the policy in question, is not sufficient; and the assent to such assignment indorsed on the policy by the president of the company, does not impose on the company the burden of proving that such new deposit note was not then known to have been given.</p> <p>In such a case, evidence that the president and secretary, when assenting to the assignment, did not know that the property had been sold to the assignees of the policy, or that they had given a new deposit note to the agent, is competent and relevant for the company.</p> <p>The policy in suit being on a stock of goods in a certain store, another policy between the same parties, made at the same time on the building, or a copy thereof, if the original be lost, is admissible in evidence as explanatory of the whole transaction.</p>

<p>Assumpsit upon a policy of insurance on a dwelling-house and other buildings in Reading, known as the “ Littlefield Place.” The policy, dated 23d June, 1848, was originally issued to Daniel Flint, and by him assigned to the plaintiff in these words: “ I hereby assign and transfer the within policy, to Jacob M. Phillips, for his benefit in case of loss. Daniel Flint.” This assignment was assented to by the defendant company as follows: “ Assented to, 8amuel Merrill, President. And recorded, 1848, November 4. Attest. Samuel Gray, Secretary.”</p> <p>The plaintiff acted as agent for said Daniel Flint, in procuring the original insurance, and in his application to the defendant company set forth the title to the property in these words: “ The property belongs to Daniel Flint, of which Jacob M. Phillips has a bond for a deed.”</p> <p>At the trial in the court of common pleas, before Mellen, J. it appeared that the plaintiff, when the policy issued, was in possession of the premises under a bond for a deed from said Daniel Flint, dated 1st April, 1841, and that he remained in such possession until the destruction of the buildings by fire, namely, 6th November, 1849. The plaintiff had paid said Flint in part, for said premises, according to the tenor of the bond, but no deed was in fact ever executed by said Flint to the plaintiff, and no other consideration was proved for the assignment of the policy to the plaintiff, than his interest in the premises under the bond. After the fire, the plaintiff gave up his claim to the premises, and the bond was cancelled.</p> <p>The defendants contended that they were not bound by the assent of their president to the assignment to the plaintiff, without the consent of their directors, and referred to their By-laws, Art. 5, fully set forth in the opinion. On this point the president of the company testified, that he had always acted in the same way, in assenting to the assignment of policies, and that no objection had been made by the directors or the corporation. Due notice to the defendants of the loss and demand of payment were proved at the trial, but the presiding judge ruled that, upon the foregoing facts, the plaintiff could not recover, and the verdict was for the defendants. The plaintiff excepted to the said ruling.</p>

<p>Assumpsit upon a policy of insurance on a dwelling-house, owned by the plaintiff, but in the occupation of one Elbridge Smith. The tenant’s minor son carried a cask of gunpowder into the attic, without the plaintiff’s knowledge, and fired it with a match, doing the damage stated in the opinion of the court. The case was submitted upon an agreed statement of facts to the court of common pleas, Perkins, J. who rendered judgment for the plaintiff for the whole amount of damage. The defendants appealed to this court.</p>

<p>Action on the case commenced in this court, March 24, 1851, for obstructing the natural and usual flow of water, in a stream in Malden, to the injury of the plaintiffs’ mill on the same stream below. At the trial before Bigelow, J. it appeared that the plaintiffs were the owners of a dyeing mill in Malden, situated on a stream flowing from Spot pond, and Eel pond; the defendant was the owner of a grist mill, a short distance above the plaintiffs’ works, and the injury complained of was that from the first day of June, 1850, to the date of the writ, the defendant shut down his gates every morning, and detained the water during the day to fill his own pond, and began to use and let down the water late in the afternoon of each day, and continued to run during the whole or greater part of the night, shutting down again the next morning, and so continuing to do from day to day; whereas, if he had let down continually during the daytime, only a part of the water, the plaintiffs would have had suf ficient to run their works during each entire day. The defend ant, in addition to the general issue, claimed the right to use the water in such manner as his interest or convenience dictated.</p> <p>The plaintiffs introduced no documentary evidence of title to the premises described in the writ, but proved by parol that they, and their father, William Barrett, had occupied the same premises for more than forty years, in carrying on their present business. The defendant admitted that the plaintiffs owned the land where their mills were situated, and a privilege to use the water for their mills, but to show that this was a limited privilege, the defendant offered the following deeds, namely, 1. A deed from Samuel Tufts to William Barrett, the plaintiffs’ ancestor, dated March 19, 1803, of about one acre of land on Mill lane, and the Reading road, and east of said Tufts’s new mill, “ with a right to the free use and benefit of the water, as it runs in the brook, but not in any way to obstruct the passage.” At the time of this conveyance, said Tufts owned the mills, dams, and water privileges now owned by both parties to this suit, and said deed conveyed a piece of land situate below said grantor’s mill.</p> <p>2. A deed from said William Tufts to George Odióme and others, dated October 2, 1806, of lands, mills, and mill privileges, now owned by the parties to this suit, and situated above and adjoining the premises conveyed to William Barrett, March 19, 1803, as aforesaid, and conveying also “ the right to the mill stream running from Spot pond, and the waters of said pond, except what I have conveyed to Mr. Barrett.”</p> <p>3. A deed from George Odióme and others to said William Barrett, dated April 16,1810, of a part of the premises bought of William Tufts, as aforesaid, and described as “ a parcel of land with the privileges and appurtenances thereof, with our right in the mill-dam, grist-mill, and buildings thereon, in Malden, with the right of flowing the water in said mill-pond to the heighth of the street on the bottom of said Odiorne’s new factory water-wheel, where the grist-mill stood, and a right to flow six inches higher when there is an overflow of water at said factory, provided the weather is not so cold as to freeze under said water-wheel to the injury of the factory.”</p> <p>At the time of this last conveyance, there was a grist-mill on the premises, as stated in said deed, and also a more ancient mill above, on the premises now owned by the defendant, and both were in operation at the time of said conveyance.</p> <p>At the trial, the plaintiffs expressly disclaimed any rignt to damages for the defendant’s omission to open the gates and let down the waters of Spot pond, and claimed damages only for the detention of the water flowing into the stream below said pond, and from other sources. They admitted also that the defendant’s mill privilege was more ancient than that of the plaintiffs. It was also in evidence, that from 1810, until the defendant’s purchase, about three years before the date of the writ, the works at the defendant’s privilege were regularly used and in operation, (except during a short period, when they were destroyed by fire, and sometimes for a day or two, while repairing the mills, or in a very dry time,) and that whenever they were used at all, they were used in the day time. If there was a surplus of water, they sometimes ran during the night, or a part of the night, after they had run during the day, but had never run during the night, and stopped during the day. The works of the plaintiffs require less water than those at the same place in 1810, and whenever any works are in operation at the defendant’s place, there is an ample supply of water at the plaintiffs’ works. It appeared that when during the dry season, the plaintiffs and their grantors were short of water at their mills, the owners and occupiers of the defendant’s premises, were accustomed to let down the water at their request.</p> <p>The defendant contended and offered evidence to show that he and those under whom he claimed, by an adverse user of twenty years and upwards, had acquired the right to use the water at said upper mill, at such times and in such manner as to prevent the plaintiffs from running their mills, except at such times as the owners of the upper mills saw fit to let the water down through their g'ates, and that during the time alleged in the writ, he had used and run his mills in the same manner as they had been run and used uninterruptedly and without objection for twenty years and upwards, previously, by himself or those under whom he claimed. Evidence was offered by the plaintiffs to rebut this, and the whole testimony upon this point was submitted to the jury, with instructions which were not excepted to by either party, and with directions to the jury that if they found such user to have existed, as claimed by the defendant, the plaintiffs were not entitled to recover. Much evidence was also offered upon both sides as to whether the defendant had used his mill in a reasonable and proper manner, for the usual, necessary, and ordinary purposes of his business; or whether it had been used by him in an unreasonable, irregular, and wanton manner, and not for the necessary prosecution of his business, by running the same in the night time, and shutting it down in the day time, as before stated, all of which was submitted to the jury.</p> <p>The defendant requested the presiding judge to instruct the jury:</p> <p>1. That the deed of 1810, from the Odiornes to William Barrett, conveyed nothing in terms but the land described, with the appurtenances—the mill-dam, grist-mill, and buildings thereon—and that neither the right to have the water of the stream run and flow in its usual natural and accustomed course to the plaintiffs’ mills, nor the right to have the water at the defendant’s dam and mills used and let down to the plaintiffs’ mills, as now claimed by the plaintiffs, passed either as incident to the estate granted, or by implication.</p> <p>2. That the defendant, being the owner of the upper mill, has the right to use the water at his dam for the working of his mills, in the prosecution of his regular and ordinary business, during such part or portion of the day or night, or both, as might be most beneficial to him, and convenient to those for whom he did business at his mills—he acting bona fide, and with no intent to injure or incommode the plaintiffs—and that he was not bound to use the water at his mills during such parts or portions of the twenty-four hours as the interest or convenience of the plaintiffs might require.</p> <p>The presiding judge did not give these precise instructions, not deeming them in all respects applicable to the case, but did instruct the jury substantially as follows: That by the deed of Samuel Tufts, of March 19, 1803, to William Barrett, the plaintiffs’ ancestor, they acquired a right to the free use and benefit of the water as it then flowed in said stream, for the purpose specified in said deed, without any right to obstruct its passage, and subject to such rights and use of the water above the land thereby conveyed, as then existed upon said stream. That under the deed of 1810, from the Odiornes to William Barrett, as the Odiornes then owned both privileges on said stream, the one now owned by the plaintiffs, and that now owned by defendants, the rights of the parties were mainly derived; that the deed itself did not contain any precise and definite limit by which the rights of the grantee to the use of the water were to be ascertained and controlled; that the grantee under said deed took a right to such use of the water as then appertained and belonged to the mill and premises thereby conveyed ; and that it was a question of fact in this case for the jury, upon the evidence, to determine what did in fact appertain and belong to the premises conveyed by said deed, to be ascertained by the nature and extent of the use of the water as it was shown to have existed at said mills at and previous to the date of said deed; that in the absence of any express limit or regulation to the use of the water in the deed, the rights of the parties thereto must depend (unless modified by subsequent usage) upon what was shown to have been the usual, common, and ordinary use of the water at the respective mills of the parties, at and previous to the time of said grant.</p> <p>That the defendant, in the absence of any evidence showing a paramount right to the use and control of the water by the owners of the mills and dam now owned and occupied by him, had no right to detain or hold the water back, and let it down at improper times and seasons, and in an unreasonable manner, so as to injure the plaintiffs, and prevent them from using and driving their mills and works at proper times and in a reasonable manner. That where mills were situated on the same stream, one above another, those which were lowest on the stream necessarily took the water subject to the previous rights of those above to use and employ it for their mills and works, and to do all that is necessary and usual for the purpose, by building dams, and forming mill-ponds, and erecting gates, and such other structures and apparatus ns may be convenient and proper; but that the owners of mills, situated above other mills upon the same stream, were bound to use and employ the water in a reasonable and proper manner, conformably to the usages and wants of the community, and not inconsistent with a like reasonable and proper use of it by others on the same stream below. And if the jury were satisfied on the evidence, that there was no paramount right in the owners of the upper mill and dam, as against the plaintiffs, to use and control the water, at and previous to the date of the deed to the plaintiffs’ ancestor, and that none had been acquired by subsequent user; and if the jury were further satisfied that the defendant had not used the water in a reasonable and proper manner, for the regular prosecution of his. business, but during the time alleged in the plaintiffs’ writ, had used it unreasonably, wantonly, and unnecessarily, by running his mill at unusual and unreasonable hours, and holding back the water, and letting it down to the plaintiffs’ works at improper times of the day and night, so that the plaintiffs were thereby deprived of the reasonable, ordinary, and proper use of their mills, and were thereby injured, they would be entitled to recover such sum in damages as they had shown to have been sustained by them in consequence thereof.</p> <p>The jury returned a verdict for the plaintiffs. The case was reported for the consideration of the whole court.</p>

<p>Paschal P. Coburn, of Dracut, died insolvent. The commissioners on his estate, appointed by the judge of probate, under Rev. Sts. c. 68, § 2, allowed the Androscoggin Bank a claim against his estate, from which allowance, his administrator, John R. Kimball, appealed to this court.</p> <p>At the trial before Bigelow, J. it appeared that the intestate and two others, gave a note to the firm of Kimball and Coburn, of $7,500, payable in two years from date ; that the note was not dated when the said P. P. Coburn signed it, but that afterwards, one of the firm of Kimball and Coburn, without the assent or knowledge of said P. P. Coburn, inserted the date of “ Boston, May 30, 1846,” which was about ten days earlier than the day of actual signing, and then indorsed the note to the Androscoggin Bank, for a loan to said firm.</p> <p>The note was originally given for the accommodation of said firm of Kimball and Coburn, and the proceeds were entirely for their use. There was some evidence tending to show, that the said P. P. Coburn did not know that the note was without date, when he signed it, and the administrator asked the court to instruct the jury, that if, after the signing, the note was antedated by one of the promisees without the express assent and knowledge of the intestate, it was a material alteration and would avoid it; the judge declined so to rule, but did instruct the jury that if the intestate signed the note in suit, not knowing it was without a date, but supposing and believing it to be dated, when in fact it had no date, then the payees had a right to insert only the true date, to wit, the day when the note was signed and delivered to the payees. But if the jury were satisfied by the evidence in the case, that the intestate signed the note, knowing it bore no date, and delivered it to the payees with the date in blank, purposely, for their accommodation, to be used by them in renewal of other notes, or to raise money, or by discount, at their convenience, then the jury might infer an authority or assent of the intestate to the payees, to fill the blank and insert a date in the note, such as would enable them to use the note for the purpose for which it was given to them by the intestate; and if the jury found that the note was so given, and the date so inserted, then the insertion of the date in question would not be a material alteration of the note, so as to avoid the note in the hands of the indorsees. The jury found a verdict for the claimant.</p>

Trespass for an arrest and false imprisonment. At the trial in the court of common pleas, before Mellen, J. it appeared that the defendant, Shed, a constable of Lowell, arrested the plaintiff, and committed him to jail on an execution in favor of J. L. Kenniston, the other defendant, which issued from the court of common pleas, dated September 5, 1849, and returnable to said court on the second Monday of December, 1849, which was more than three months from the date thereof.

<p>A usage among the manufacturing corporations at Lowell, to give an honorable discharge to an operative who has worked faithfully with them for twelve months, and has given a fortnight’s notice of an intention to leave, whereby such operative may obtain employment in other mills at Lowell, does not render it obligatory upon those corporations to give such discharge in all eases where the foregoing conditions are complied with; but the giving of such discharge is a matter of discretion and judgment with the corporation.</p>

<p>The owner of an estate in fee, and a person to whom he has given a bond for a deed on the hlfilment of certain conditions, may both join in a petition, under Rev. Sts. c. 24, § 48, for damages to such estate caused by taking it for a railroad, although the condition of the bond is not then performed. In such case, the railroad company cannot object that the damages are awarded in a gross sum, and not apportioned to each petitioner.</p> <p>A railroad was constructed across a watercourse without making a culvert, thereby setting back the water and injuring land at some distance from the railroad. Held, that the damages could not be recovered by petition under Rev. Sts. c. 39, § 56.</p> <p>Depreciation in the value of real estate not abutting on a railroad, caused by laying a railroad across the street leading thereto, is not damages recoverable under Rev. Sts. c. 39, § 56.</p>

<p>Assumpsit upon the money counts, with a specification of claim, under the count for money had and received, for one hundred dollars and interest, which the female plaintiff while sole, by the name of Betsey Tilton, advanced to the defendant, October 14, 1842.</p> <p>At the trial in the court of common pleas, before Mellen, J. the plaintiffs produced and relied upon a note, of the following tenor: "Lowell, October 14, 1842. $100. For value received, the pastor and deacons of the First Freewill Baptist Church in Lowell, in behalf of said church, promise to pay Betsey Tilton, or her order, the sum of one hundred dollars; to be paid in two years, if called for, by giving one month’s notice, with interest annually. S. D. York, Agent for the First Freewill Baptist Church in Lowell.” In addition to the note, the signature to which was admitted, the plaintiffs proved an oral admission by the defendant of his receipt of the money, and that he expected to pay the note, at a month’s notice.</p> <p>The defendant contended that he signed said note merely as agent of the said church, a religious association of individuals, or as agent of the pastor and deacons of said church, and that being duly authorized so to do, he was not personally liable on the note; and he offered evidence tending to show the votes of said church, directing him to give the note in suit. The particulars of this testimony, as also several other questions raised at the trial, did not become material to the final decision of the case. Upon the whole evidence, the presiding judge instructed the jury, among other things, that the note in suit was, in its legal construction, the note of the churcti, and that, as no authority had been shown in the church to give such note, the defendant acted therein without legal authority; and that the defendant, if he received the money himself, would be liable under the count for money had and received, and the jury returned a verdict for the plaintiffs. To this ruling the defendant excepted.</p>

<p>Money acquired by the illegal sale of intoxicating liquor may nevertheless be the subject of larceny from the possessor.</p>

<p>This was an indictment, which alleged that the defendant, at Lowell, “ on the twenty-first day of November, in the year eighteen hundred and fifty-one, contriving, and unlawfully and wickedly intending to injure, vilify, and prejudice Benjamin F. Butler, did print and publish a certain false, scandalous, and malicious libel, of and concerning the said Benjamin F. Butler, in a certain newspaper then and there published and extensively circulated, called ‘ Lowell Courier and Journal,’ in a certain part of which said newspaper and publication there were and are contained the following, false, wicked, and scandalous matters of and concerning said Benjamin F. Butler, &c.,” setting forth the libel at large.</p> <p>At the trial in the court of common pleas, before Hoar, J. the defendant moved the court to quash the indictment, because it did not contain any description of Benjamin F. Butler, as to his calling, profession, or place of residence. But the court refused so to do. The district attorney offered to the jury, as evidence of the libel, an article contained in a newspaper called Lowell Courier and Journal, purporting to have been printed and published by the defendant on the 19th day of November, 1851. To this evidence the defendant objected, because the indictment alleged the libel to have been contained in a newspaper, called Lowell Courier and Journal, printed and published by the defendant on the 21st day of said November. But the court admitted the evidence. The jury found the defendant guilty, and he alleged exceptions. The case was argued at Boston, in January, 1853.</p>

The defendant, being convicted before a justice of the peace, and on his appeal, also in the court of common pleas, on a complaint for a single sale of intoxicating liquor, contrary to Rev. Sts. c. 47, § 2, and St. 1850, c. 232, moved to arrest the judgment, because the complaint did not sufficiently aver that the sale was in his house or other building.

The defendant was convicted before a justice of the peace, on a complaint against him for selling intoxicating liquor, and thereupon appealed to the court of common pleas.

<p>Assumpsit to recover the expenses incurred by the plaintiffs in the support of Nancy Michaels, a colored pauper, whose settlement was alleged to be in Tisbury.</p> <p>At the trial, in the court of common pleas, before Hoar, J. the plaintiffs offered to prove that Rebecca, a colored woman, was brought from Africa, before the year 1780, and sold to, and owned as a slave by Cornelius Basset, of Chilmark, and was actually a slave, long before the adoption of the state constitution ; that she was never married, but that, in 1772, she gave birth to Nancy, the pauper; that said Basset died in 1778, and that administration of his estate was duly had; that said Nancy was inventoried and appraised as a part of his property, and was sold at auction to Joseph Allen of Tisbury; that she was taken by him, on the day of the auction, (which was before the adoption of the constitution,) to Tisbury, where he lived and died, having a legal settlement; that said Nancy continued with him several years ; that she had a child, named Lucy Ann, who was born about the year 1810. But the judge ruled that if the above stated facts were proved, they would not give a settlement to said Nancy in Tisbury.</p> <p>The plaintiffs then offered to prove the following facts: That Lucy Ann, the above-named child of Nancy, was an infant, in 1811, between one and three years old, and that the plaintiffs were obliged to furnish to her, (and, as they contended, thereby constructively to her mother,) support and maintenance, and did so accordingly; that they commenced an action against the defendants, in the county of Barnstable, to recover the expenses incurred for said Lucy Ann’s support; that counsel were employed and depositions taken; that judgment was rendered and execution issued, in that action, against the defendants, and that the execution was satisfied; that this occurred in the year 1813, and that all the records of the court in Barnstable county, in that year, were, in 1817, destroyed by fire. As the only evidence of these alleged facts, the plaintiffs offered the depositions taken in said case, the receipt of Kilborn Whitman, Esq. counsel for the plaintiffs, in that action, and a copy of a note given by John Hancock, agent of the defendants, in settlement, as was contended by the plaintiffs, of said judgment and execution. (It is unnecessary to copy these papers, inasmuch as the most which they tended to prove is stated in the opinion of the court.) The plaintiffs contended that these papers were admissible, under the circumstances, as evidence of such judgment; and that such judgment was evidence of the settlement of Nancy, the pauper, in Tisbury. But the judge ruled that the evidence was not legally competent to prove the settlement of the pauper to be in Tisbury; and that if it were admitted, it would not authorize the jury to find a verdict for the plaintiffs. Á verdict was thereupon found for the defendants, and the plaintiffs alleged exceptions to the foregoing rulings.</p>

The county commissioners of Plymouth, on the petition of Edward Mitchell, issued their warrant for a sheriff’s jury to assess damages to his real estate in Bridgewater, in said county, by reason of “ the raising and grading of a highway ” in said town, which raising and grading was alleged to have been done by order of the defendants.

<p>Writ of error. The defendants in error recovered a judgment, in the court of common pleas held in the county of Essex, against Ebenezer A. Bishop. Upon the decease of said Bishop, William Ide, of Seekonk, was appointed administrator of his estate, and brought this writ of error, in the county of Bristol, to reverse the aforesaid judgment.</p>

<p>Trover to recover the value of a certain bale of cloth delivered to the defendant. At the trial in the court of common pleas, the plaintiff introduced the following evidence: Moses Whitherell testified that, in October, 1848, he received a bale of cloth directed to the plaintiff, and marked James Bowlin. That he brought it home, and the next morning stopped at the defendant’s house and took in some bales into his own wagon for him and carried them all, including the bale for the plaintiff, down to the landing, and Captain Nye’s boat came along and he delivered the bales to Mr. Potter into the boat. That he had a conversation with Captain Nye in the spring of 1849; asked him what had become of the bale of cloth. He said he did not know; he thought that he must have landed it at Hutchinson’s Island through mistake'. (Hutchinson’s Island is south of Charleston.) That he would write out and see if he had left it there or not.</p> <p>Mr. Potter testified that he was mate of The Pearl in 1848. “ In the fall of that year received from Whitherell some bales which he said contained cloth. There were some four or five bales. Received them at North Falmouth landing into the boat, carried them on board the vessel, and put them down in the hold. There was one bale larger than the rest. Thought he hoisted it in; sure that he delivered all the cloth which he received on board the schooner. Have tallied with Nye; he told me he did not know what had become of the bale in question did n’t know as he had ever received such a bale; he put ashore all that he received at Charleston and at Hutchinson’s Island.” On being cross-examined, the witness added “ tha1 he could not remember any marks upon the cloth, nor the exact number of bales ; thinks there were four or five. Supposed that it was my business to attend to receiving and delivering, under the direction of the Captain. All the bales on board the vessel went out either at Charleston or Hutchinson’s Island, some went out at both places. The largest bale went on shore at Charleston. Saw it put on the trucks. When Captain Nye came on board, he told him he had received some cloth of Captain Whitherell; he said he knew about it, and it was all right.”</p> <p>There was no evidence as to the direction on the bale in question, except that it was marked “ James Bowlin,” and no evidence tending to show that any order was given where it should be left, or any instructions of any kind in reference to its delivery.</p> <p>Upon this evidence, the defendant asked the judge, Bishop, J. to rule, first, that the action could not be maintained; secondly, that it could not be maintained without proof of a demand and refusal, there being no act of conversion shown. But the judge declined so to do, and instructed the jury that they might find a conversion if they were satisfied that the defendant had appropriated the property to his own use, or had so managed as to interfere with the rights of the plaintiff to, and control over, the property in question, so that the plaintiff had lost the same. The verdict being for the plaintiff, the defendant excepted.</p>

<p>This was an action of trespass to recover damages for an arrest and imprisonment of the plaintiff. The defendant specified, as his defence, that he was an assessor of the town of Taunton, for the year 1845, and that he and the other assessors issued a tax warrant, on which the plaintiff was arrested for non-payment of a school district tax.</p> <p>At the new trial, which was ordered by this court, (4 Cush. 487,) and was had in the court of common pleas, before Wells, C. J. the only alleged illegality in said tax was, that there were no legal school districts in Taunton.</p> <p>The defendant contended that the burden of proof was on the plaintiff, to prove this alleged illegality affirmatively. But the judge ruled that the burden of proof was on the defendant, to show that the town was legally districted. It was then admitted or proved, that for more than forty years there had been local school districts, de facto, throughout the town, and that they had acted, in all respects, as ordinary school districts. But the plaintiff contended that these were family districts, and had not territorial limits. The defendant then introduced parol evidence tending to prove that, for forty years, these districts had certain reputed territorial lines and boundaries. And the plaintiff introduced parol evidence to the contrary. The defendant introduced evidence that the town record books, preceding the year 1804, had been destroyed by fire, and called a witness, who stated that one of said books contained a record of what purported to be a districting of the entire town; but whether such districting was before or after the St. of 1789, c. 19 was passed, or whether it was by families, or by territorial lines, the witness could not state.</p> <p>Upon this evidence, the defendant contended that the presumption of law was, that the school districts had a legal origin. But the judge ruled that although this was evidence tending to prove the legality of the districts, the burden was still on the defendant to prove that the entire town had been territorially districted. The jury found a verdict for the plaintiff, and the defendant excepted to the judge’s rulings.</p>

<p>Assumpsit on a promissory note dated May 4, 1846, for one thousand dollars, payable to the plaintiff on demand, with interest, signed by Sheffel Reed as principal, and F. R. Whitwell as surety.</p> <p>The plaintiff did not produce the note at the trial before Shaw, C. J., but stated that it had been fraudulently obtained from him by Reed, one of the signers, and he tendered and put on file a satisfactory bond of indemnity to the defendant, against any subsequent payment of the same. To prove the loss, the plaintiff offered the following affidavit:</p> <p>“ I, George Almy, of Dartmouth, in the county of Bristol, on solemn affirmation, declare, that I was the owner and holder of a promissory note, dated May 4, .1846, for the sum of one thousand dollars, signed by Sheffel Reed and F. R. Whitwell, and payable to my order on demand, with interest, after date, a copy of which is as follows:</p> <p>“ Fairhaven, May 4, 1846. $1,000. For- value received, I, Sheffel Reed, as principal, and F. R. Whitwell as surety, bintly and severally promise to pay the order of George Almy, one thousand dollars with interest, after date.</p> <p>“ S. Reed. F. R. Whitwell.”</p> <p>Sundry small payments and indorsements having been made on this note, in the month of April, 1849, it was agreed by the said Reed and myself, that a new note should be given by the said Reed and Whitwell, for the balance due on the said one thousand dollar note, and to take up the same. In pursuance of this arrangement, on the eighteenth day of April, 1849, I applied to James Thornton, to cast the interest on the one thousand dollar note, aforesaid, which he did, and gave me a statement thereof. [Not material to this case.]</p> <p>According to said computations, the amount due on the said note on that day, was $782.50. Said Reed then proposed to give a new note of himself and said F. R. Whitwell for the $700, and to pay the balance due on the thousand dollar note in cash. He wrote the note for $700 at that time, and took it for the purpose, as he said, of getting Whitwell’s signature to it. A few days after, I called upon him, and he produced to me the said seven hundred dollar note, purporting to be signed by himself and the said Whitwell, and which I verily believed to be the true and genuine note of himself and the said Whitwell; and I then received the same as the genuine note of himself and the said Whitwell, and the balance in cash, and thereupon gave up to him the said one thousand dollar note, and the said Reed received the same. And since then I have not seen the said one thousand dollar note. It has not been in my possession, nor have I any knowledge of the same, and I have reason to believe, and do believe, that the same is destroyed. The said one thousand dollar note has never been paid, nor has it been given up in any manner other than above stated.”</p> <p>Upon this affidavit two questions were reserved for the consideration of the whole court:</p> <p>1. Whether this is competent evidence, and sufficient proof of loss, to let in secondary evidence ?</p> <p>2. Whether it is competent evidence to go to the jury, to prove the facts stated in it ?</p> <p>The plaintiff offered the testimony of Luther Potter, as follows: “ I was present when the note in question was made, and one of like tenor was given to me at the same time. The name of the payee was left blank; I wrote Mr. Almy’s name in it, and took it to him, and he gave me the money for it. I carried the money to Mr. Reed. At the expiration of the • year, in May following, I went to get a year’s interest due on my note, when I received a year’s interest on Almy’s note, and when I saw him I gave it to him. I have talked with Mr. Whitwell several times on this subject after Capt. Reed failed. He said something about this note. Said he pitied Almy. He said if this was all the forging of Capt. Reed’s, he would pay it, and that would be an end of it. I said, I suppose you have security for this note, and his reply was, 'I don’t say but what I have.’ At another time speaking of security, he said, perhaps there would be some way to hitch it on.” On cross-examination, witness said; “ These notes were made at the same time. I received mine and George Almy’s, and went with Reed to Isaac R. Gifford, and he got the money on his. I did look at the notes, knew Whitwell’s handwriting, thought it his.”</p> <p>William Tucker testified as follows: “ I had conversation with Whitwell, after Reed left, about June, 1849, about a note for $700, held by George Almy. He looked at the note and said it was not his signature. I asked him if he did not give a joint note with Sheffel Reed, for $1,000, three or four years before, and he said he did, and referred' to his book and stated the date. I asked him if he could not pay this to George Almy, as the $700 was nearly all he had except a small poor farm, and that he (Whitwell) was the party substantially relied upon. He said he could not do it in the present state of Reed’s affairs, but he would think of it. Said he, shall I pay a note I never signed ? I may have to pay the $1,000 note which is out. I told him he should have a good bond of indemnity. I asked if he did not take security for notes he had signed with Reed, and he said he had taken property to secure payment of notes, and I think he said he had it then in his possession. He made no distinction between this and other notes. He said he had no knowledge that the $1,000 note was not in the hands of Almy, until he was so informed by Almy. I asked him if he had signed a $700 note for Almy, and he said he had not. I asked if one had not been left at his counting-room to be signed, and he said no, and he referred to his clerk and inquired if he had seen such a note, and he said no.” On cross-examination, the witness said; “ He did not tell me he had received security for some notes and not for others. He did not tell me what kind of security he had received.”</p> <p>James Thornton testified as follows: “ The $1,000 note was handed to me, for the purpose of making a computation of the amount due thereon in the spring of 1849. I deducted the payments indorsed, and computed the amount, according to the memorandum produced, and found due, $782.62, due April 18,1849.”</p> <p>A verdict was taken for the plaintiff by consent, subject to the opinion of the whole court, upon the competency and sufficiency of the evidence, to warrant a verdict for the plaintiff, the court to draw such inferences from the evidence, as a jury ought to draw. If upon the evidence adjudged to be competent, the court are of opinion that the plaintiff is not entitled to recover, the verdict is to be set aside, and the plaintiff becomes nonsuit; otherwise, judgment to be rendered on the verdict for the plaintiff.</p>

<p>The defendant covenanted with the plaintiffs to proceed to California, as one of a joint stock company, there to labor for two years, and agreed to remit the plaintiffs one half of the net proceeds of one share in said company, as often as dividends should be made. The other members of the company, while on the way to California, contrary to the wishes of the defendant, abandoned the joint enterprise, and sold their vessel and cargo. Held, that the defendant was not liable on his covenant to proceed to California.</p>

<p>It is no defence to an action by an insurance company on a premium note, that the company is insolvent, or that they voted to cancel all their policies, if the assured did not also assent to such cancellation.</p>

<p>Assumpsit on an account annexed, and on the money counts.</p> <p>In addition to the general issue, the defendant pleaded infancy. At the trial in the court of common pleas, the plaintiffs offered evidence that Jireh Swift, Jr. and four other persons, were owners, and Swift & Allen were agents, of the Ship Tacitus; that in the summer of the year 1844, the defendant contracted to go on a whaling voyage in said ship, in the capacity of boat steerer; that O. H. P. Brown & Co. furnished the defendant with the usual and necessary outfit of clothing for such a voyage, and received therefor the following order : “ New Bedford, June 25,1844. Agent and owners of ship Tacitus. Six months from date, for value received, pay O. H. P. Brown & Co., or order, seventy-five dollars, and charge the same to account. Daniel Bennett.”</p> <p>This order was presented, and paid by the plaintiffs at its maturity, to O. H. P. Brown & Co..</p> <p>On the part of the defendant, it was proved that at the time he was furnished with his outfit, and the date of the order, and its payment, he was an infant. The plaintiffs claimed to recover on the ground that the articles furnished were necessaries. The defendant’s counsel objected to the introduction, by the plaintiffs, of the books of account of O. H. P. Brown & Co., and to the testimony of William H. Wrightington, one of the firm of O. H. P. Brown & Co., which were offered for the purpose of proving that necessary articles of clothing were furnished to the defendant, and paid for by the plaintiffs at his request, and contended that such evidence was inadmissible to maintain the money counts in the writ. But the judge overruled the objection, and admitted the evidence. The defendant also contended that an infant, living with his mother, if the father was dead, could not bind himself even by a contract for necessaries. But the judge instructed the jury that if the goods furnished by O. H. P. Brown & Co. were necessary clothing for the defendant on his intended voyage, and that the defendant gave an order on the plaintiffs in payment therefor, which order was subsequently accepted and paid by the plaintiffs, the plaintiffs could maintain their action on the count for money laid out and expended by them at the defendant’s request for necessaries furnished to him.</p> <p>The jury returned a verdict for the plaintiffs. And to the foregoing rulings the defendant excepted.</p>

<p>A citation from a poor debtor to his creditor, under Rev. Sts. c. 98, § 2, which recites that the debtor stands committed on an execution issued from a certain term of the court, is not fatally defective, although the commitment was in fact on an alias execution issued after said term, but founded on a judgment rendered at that term.</p> <p>Nor is such citation invalid because interest on the judgment is not added to the original debt and costs, in stating the amount for which the debtor is committed.</p> <p>It is not necessary that a jailer should discharge a poor debtor who has given bond for the prison limits under Rev. Sts. c. 91, and has been duly discharged within the ninety days, by two justices. Their certificate is the only authority necessary to his going at large.</p>

Assumpsit on a policy of insurance, dated February 22, 1850, on a building in New Bedford. At the trial in this court before Metcalf, J. it appeared that the plaintiff, in his application for insurance, in answer to the question, “ Is the property incumbered; if so, how much; ” stated “ About $3,000.” The incumbrance was a mortgage, and was proved to have been for $4,0Q0.

<p>If a by-law of a mutual fire insurance company provides that “ the policy shall be void, unless the true title o'f, the insured be expressed in the application,” a representation that the property belongs solely to the insured, when in fact it was partly owned by another person, avoids the policy.</p> <p>In such a case, if the application represents, the property to be unincumbered, when in fact it has been sold for non-payment of taxes, it is a misrepresentation, and avoids the policy, although a right of redemption still remained in the insured; for by the sale the purchaser has a lien on the estate for the price paid, with ten per cent, interest and costs.</p> <p>Such misrepresentations avoid such a policy, although not maSe.with a knowledge of their falsity, nor with an intent to deceive. x</p>

<p>Writ of entry to recover a farm in Seekonk. It was tried before Shaw, C. J., who drew up the following report:</p> <p>“ Welcome Leonard died seised of the premises, intestate, leaving a widow and one child. Laura P. Leonard, the widow, was duly appointed guardian of Elizabeth Leonard, only child and heir of Welcome Leonard. The guardian obtained a license to .sell the estate, and offered the same at auction, and executed a deed to the demandant, as the purchaser, conveying her ward’s interest; also, a deed in her own right, of her own right of dower in one third: these deeds were dated December 16,1847.</p> <p>To prove the execution, the demandant called the attesting witness, Viall Medbery, who testified as follows: ‘ I saw both deeds executed, witnessed them, and took the acknowledgments; I acted as the agent of Mrs. Leonard, sold the estate for her, and officiated as auctioneer at the sale. The highest bidder was Robert Burlingame, and not Jeremiah Baggot. The sale was made November 20, 1847, and the deed dated December 16. Mr. Fleming, the defendant, was there, and has occupied the premises ever since. I was employed to sell the estate, and posted notices accordingly. The estate was offered at the time and place advertised, and Mr. Burlingame bid it off. The terms were payment in ten days, and the deed to be then given. Burlingame, Fleming, and Baggot were all at the auction. At the expiration of the ten days, I called on Mr. Burlingame, and he wanted the time extended to December 16. He said I might make out the deed, leaving a blank for the name, of the purchaser. ’ u the 16th of December, Burlingame, Fleming, and Baggot, came together. I told them I must make out the deed to the highest bidder, or, if he was agent, then to his employer. They all three stepped out, and when they came back, they all said I might make out the deed to Mr. Baggot, and there would be no trouble about it. Burlingame witnessed the deed; he witnessed both deeds. At the auction, Mr. Burlingame told me that he bid off the estate for another, or as agent, or something to that effect.’</p> <p>The tenant, on opening his defence, submitted as matter of law that this sale was not valid, because Baggot was not the highest bidder, that in fact if Burlingame was agent for anybody, he bid off the estate, as an agent for Fleming, and not for Baggot. To establish the fact, the tenant offered</p> <p>Robert Burlingame, who testified: 'I bid off the estate; don’t recollect that I made any statement at the auction, that Ibid as agent; I stated this to Deacon Medbery, after the sale; cannot say whether the same day or not; I was acting for Mr. Fleming; I was not employed by Mr. Baggot. When the deed was given, I was present, and Mr. Baggot and Mr. Fleming. According to my best recollection, Mr. Baggot was to furnish the money, and the deed was to be taken in his name, and Mr. Fleming was to give him security on an estate in Providence ;■ this was on the 16th of December; Deacon Medbery was present; I was there and witnessed both deeds.’</p> <p>It seemed to me that the only question of fact for the jury would be, on the evidence, whether the respective parties consented and agreed that the deed should be taken to Baggot, as the purchaser, and in this the parties acquiesced. Whereupon I proposed to instruct the jury, that if at, or soon after the auction, the actual bidder informed the auctioneer and agent of the guardian, that he acted for another, and when the purchaser came to take the deed and make payment, Burlingame, the actual bidder, Baggot, the plaintiff, and Fleming, the defendant, were present together, and consented that the deed should be made out to the demandant, as the principal, and notice to that effect was given to the auctioneer, and the deed from the guardian .was executed to him accordingly, the tenant could not contest the demandant’s title in this action.</p> <p>Upon this suggestion, a verdict was taken for the demand-ant, by consent, subject to the opinion of the whole court, whether this direction was right; verdict to be set aside, or judgment to be entered accordingly. If the verdict is to stand, the case is also subject to the opinion of the whole court, whether the tenant can claim betterments, whether such claim was seasonably made, and if so, the question of betterments may be referred to an assessor.”</p>

Assumpsit upon a promissory note alleged to have been given by the defendant to the female plaintiff, while sole, then Lydia Shaw, dated June, 1846. The defendant filed the general issue, and for a specification of defence denied the signature.

<p>Petitions to this court as a court of chancery under section 18 of the Insolvent Act, St. 1838, c. 163. The facts are stated in the opinion of the court, by</p>

& J. Eddy, copartners, insolvent debtors; and also against the separate estate of Jesse Eddy. The claims consisted of two drafts, each for two thousand dollars; one dated February 2, and one February 11, 1846, both payable at six months, and drawn by J. & J. Eddy, upon William R. Hanson & Brother, Philadelphia, payable to the order of Jesse Eddy, and by him indorsed in blank.

<p>Burning a house never occupied by the alleged owner as a dwelling-house is not arson within the meaning of Rev. Sts. c. 126, § 1.</p>

<p>It is not a question of law for the court, whether a certain building is “ within the curtilage of a dwelling-house,” as alleged in the indictment, but a question for the jury upon the evidence, and upon proper instructions from the court as co the definition of curtilage.</p> <p>Curtilage in law means a fence or enclosure of a small piece of land around a dwelling-house, usually including the buildings occupied in connection with the house, and this enclosure may consist wholly of a fence, or partly of a fence and partly of the exterior side of buildings so within the enclosure.</p> <p>An indictment for burning a barn situate at a certain place, which was within the jurisdiction of the court, and alleged to be “ within the curtilage of the dwelling house of A.” need not also aver that the dwelling-house was at that place.</p>

<p>Scire facias on a recognizance to the commonwealth. The defendant moved that the action be dismissed, because the attorney for the commonwealth had not certified that he had investigated the cause of action declared on, and that he was of opinion that it was a fit subject for judicial inquiry and trial, according to St. 1851, c. 233, § 40. In the court of common pleas this motion was overruled by Byington, J. and the defendant filed his exceptions.</p>

<p>It seems, that the holder of a bank bill, which has been stolen from the bank, need not prove how he came into possession of it, in order to recover against the bank.</p> <p>A party taking a bank bill in good faith, may recover upon it, although he be guilty of gross negligence in not ascertaining that it had been fraudulently put in circulation.</p>

<p>The complainant in a bastardy process under Rev. Sts. c. 49, may, if otherwise competent, testify to any facts tending to establish the paternity of the child, although the same facts be known to other persons.</p>

<p>Trespass and false imprisonment against the defendant, a justice of the peace for the county of Norfolk. It was submitted to the court of common pleas, and by appeal to this court on the following facts:</p> <p>The defendant, as a justice of the peace, residing in Brain-tree, convicted the plaintiff of firing crackers in said Braintree in violation of Rev. Sts. c. 58, § 6, and fined him two dollars to the use of the commonwealth. The plaintiff appealed to the court of common pleas, where the proceedings were quashed because the defendant had not jurisdiction, being an inhabitant and tax payer in the town of Braintree, and, as was contended, interested in the penalty prescribed for said offence. On these facts Hoar, J. rendered judgment for the defendant, and the plaintiff appealed to this court.</p> <p>This case was decided at the October term, 1851.</p>

This is an action to recover damages for an injury done to a coach of the plaintiff by a collision with the wagon of the defendant.

<p>An action for money had and received will lie against the assignee of an insolvent debtor under St. 1838, c. 163, who refuses, upon demand made, to pay a creditor the dividend ordered by the master in chancery out of the estate.</p>

<p>An officer acting bond fide may break and enter another’s dwelling-house to arrest him on a criminal charge, although in the mistaken belief that such person is in the house at the time, provided he first requested an entrance, and be guilty of no unnecessary damage or violence.</p>

<p>This was an action of debt on a bond given to the plaintiff, as treasurer of the town of Andover, by the defendant Mills, a collector of taxes in that town, as principal, and the other defendants, as his sureties, conditioned that Mills should “ faithfully collect, account for, and pay over all taxes which he shall be legally required to collect, and also with diligence and fidelity discharge the duties of the aforesaid office.” Mills was defaulted. The other defendants pleaded the general issue and specified, in defence, that after the money became due and payable by Mills, according to the tenor of the bond, he went, with the money, to the plaintiff to pay the same, but that the plaintiff neglected to receive the money, and agreed that Mills should not pay it then, but should have a further time; and that the plaintiff concealed said indulgence from the sureties.</p> <p>At the trial, which was in the court of common pleas, before Perkins, J. the plaintiff produced and read the bond; and it was agreed that Mills had collected some taxes, and that the sum of $504.83 was not paid over when this suit was commenced; and that, if the sureties were liable at all, it was for that sum and such interest thereon as by law they were liable for.</p> <p>The sureties gave in evidence the deposition of Mills, the principal obligor, who deposed as follows: “ Some time in July, 1849, I went to the plaintiff with regard to the money I was owing the town. I told him I had come to see him about that, and to see if he would not let me off on it, and put it along. He said the town wanted the money, and was paying interest for money, and that he had no right to lend the town’s money. I told him I wanted to use all the money I had, and if he would let me off, I would pay him what interest the town had to pay while I wanted it for a month or two. I told him I could pay the money, but that I had a good many notes and bills to pay that month, and that if he would let me off a couple of months or so, I would pay him whenever he wanted it or said it must be paid. He said I had always been pretty prompt in paying up my tax lists before that, and that he wanted to be as accommodating as he could. I told him, if he would let me know when it must be paid, I would certainly pay it, if he would let me off for that time. I asked him not to let my bondsmen know any thing about it, but let me know first, and not say any thing to them; and I undérstood him to say that he would not say any thing to my bondsmen before he let me know. He said if I would pay any time within a month or two, he would let me off; as he did not want to be hard with me. That is the conversation, as near as I can remember it. As near as I can remember, I had with me at the time about eleven hundred dollars. When I went to see the plaintiff, I went with the expectation of paying what was due oh my tax lists if I could not postpone it. I did not tell the plaintiff how much money I had, and he never refused any money offered to him, in sums however small, at any other time.”</p> <p>The judge ruled that the facts stated in the deposition did not constitute a good defence to the sureties. A verdict was thereupon taken for the plaintiff, by consent, for $532.61; and the sureties alleged exceptions to the judge’s ruling.</p>

This action was submitted on the following facts agreed: On the 12th of September, 1850, the plaintiff was a shoe dealer and manufacturer, residing and doing business at Lawrence. The defendants are proprietors of a railroad, extending from Haverhill to Lawrence, and are common carriers of passengers.

<p>A declaration charging that the defendant wrongfully kept a horse accustomed to bite mankind, and that the defendant knew it, need not aver that the injury complained of was received through the defendant’s negligence in keeping the horse.</p>

Trespass quare clausum fregit. The alleged trespass consisted in carrying away a quantity of stones from the plaintiff’s close. The defence was: 1. General issue. 2. The license and authority of Messrs. Blinn and Copeland, who had a certain building contract with the plaintiff, and that the defendants had a stone work contract under said Blinn and Copeland, which was embraced in said building contract.

<p>A. residing in another state, owned a building in Lawrence, in this state, standing, by consent, on the ground of another person. Said building was taxed to A. in Lawrence, as real estate belonging to a non-resident; but was subsequently sold by the tax-collector as personal property. Held, that the purchaser was liable in trespass for entering said building without A’s consent.</p>

<p>This was an action of assumpsit to recover the amount of money paid by the plaintiffs for the support of Stephen Burn-ham, at the lunatic hospital in Worcester. At the trial in the court of common pleas, before Wells, C. J. it was shown that said Burnham was a lunatic pauper, and was taken up in Salem and legally sent to said hospital; that the plaintiffs, upon demand being made on them, paid the expense of his support there; and that they duly demanded repayment from the defendants, which was refused.</p> <p>The question in the case was, whether the pauper’s settlement was in Ipswich. The defendants placed their defence upon the fourth section of the act incorporating the town of Essex (St. 1818, c. 85; 5 Special Laws, 285,) which is hereinafter recited in the opinion of the court. And the evidence tended to prove that the grandfather of the pauper resided in that part of Ipswich which is now Essex, and acquired a settlement there; that the father of the pauper was born in the place where his father resided, about the year 1767, and removed, about the year 1806, into that part which is now Ipswich, and died there in 1816; that he acquired a settlement in Ipswich in his own right by residing in Ipswich for the last ten years of his life, and paying taxes for five years in the ten ; a portion of the same, to wit, four years out of five or more having been assessed upon him and paid by him while he resided in what is now Ipswich ; and that the pauper was born in what is now Ipswich, in 1809, and continued to reside there until after he was twenty-one years of age. But it was not shown that he ever acquired a settlement there in his own right.</p> <p>The judge ruled that this evidence did not prove that the pauper’s settlement was in the town of Ipswich, and the jury returned a verdict for the defendants. The plaintiffs alleged exceptions to the second ruling.</p>

<p>Action on the case for breach of a warranty of a horse. At the trial in the court of common pleas, before Perkins, J. there was evidence tending to show that the horse was warranted sound and kind in every respect. The only alleged unsoundness was the disease known as the glanders. It was proved that the horse in fact had the glanders a few months after the sale, and there was evidence tending to show that the horse, when sold, had bunches or swellings under his throat which some of the plaintiff’s witnesses testified indicated the presence or existence of the glanders, and others stated that they indicated the approach of the glanders.</p> <p>For the defendant there was evidence tending to show that the horse was sound at the time of the sale, that he had no such swellings as testified by the plaintiff’s witnesses, and that if there were such swellings, they did not indicate the presence or necessarily the approach of the glanders. Some of the 'witnesses on the part of the defendant testified that the glanders did not exist until the horse ran at the nostrils, and there was no evidence that this horse ran at the nostrils until pome days after the sale.</p> <p>A veterinary surgeon, called by the defendant, stated that he saw the horse several months after the sale, that when he saw him, the horse had a clear case of the glanders; that he judged the glanders were then in their early stages, and had not been on the horse much over a month, but possibly they had existed longer; that the description of the bunches or swellings given by the plaintiff’s witnesses did not necessarily indicate the glanders; he thought they would more surely indicate a case of cold or catarrh; that swellings of the glands would indicate unsoundness in the horse, but that the glanders did not in fact exist, in his opinion, as a disease until there was a discharge from the nostrils of the horse. The plaintiff contended that if the horse had the seeds of the disease called the glanders, at the time of the sale, which in the progress of events or course of time would ripen into and become the glanders, and diminish the natural usefulness of the horse, this was sufficient evidence of the existence of the disease to show a breach of the warranty, although the disease had not then in fact become developed. The judge instructed the jury, among other things not excepted to, that the question was whether the glanders actually existed in the horse at the time of the sale ; that a state of blood or condition of body which might render the horse predisposed to take the glanders, if he should be so exposed as to contract any disease, would not constitute the disease until the glanders actually existed in the horse ; that any swellings of the glands, or seeds of the disease, which were not in fact the disease, and did not show its actual existence, would not be sufficient. The verdict being for the defendant, the plaintiff excepted to these instructions.</p>

<p>Assumpsit against one of the makers of a promissory no te, of the following tenor: “ Lynn, Oct. 15, 1842. Six months after date, we promise to pay Nathaniel Beal, or order, sixty-four dollars, for value received. Burchstead & Richardson.”</p> <p>The note was made at Lynn, Massachusetts, and there delivered to the plaintiff, who then, and ever,since, has resided at that place. The defendant at that time, and at the time of the maturity of the note, resided in the state of Ohio, but in 1843 removed to Massachusetts, and resided here at the commencement of the action, viz. June 9,1848. Subsequent to his removal to this commonwealth, and before this suit was commenced, the defendant was duly discharged from his debts, under the insolvent law of Massachusetts, St. 1838, c. 163, and the only question involved was, whether the present claim is thereby discharged. It was submitted to the court of common pleas, before Wells, C. J. at the September term, 1849, on an agreed statement of facts, and judgment was given for the defendant. The plaintiff appealed to this court. It was argued and determined at the November term, 1851.</p>

<p>Writ of entry. The demandant gave in evidence a deed from the Essex Company to James D. Ryan, dated May 9, 1846; one from said Ryan in mortgage to said company of same date; a deed of assignment from said company to the demandant, dated April 16, 1850; a deed from James D Ryan to Jeremiah Ryan, dated January 2, 1847; a deed from said Jeremiah to the demandant in mortgage, dated October 3, 1848, and a deed from said Jeremiah Ryan to the demandant, dated January 2,1850, all which deeds contained a description of the premises described in the writ.</p> <p>The tenants produced the record of the case Williams & another v. Jeremiah Ryan, from which it appeared that the premises in controversy were attached upon a writ in favor of the tenants against Jeremiah Ryan, on the second day of February, 1847; that judgment was obtained November term, 1848, and execution sued out and levied on said premises November 24, 1848. It appeared that on the 24th day of November, 1848, there was due on said mortgage from James D. Ryan to the Essex Company, the sum of $104.08. The appraisers, in making the levy, deducted the sum of $300.43 as the amount due on the mortgage.</p> <p>The tenants then called Bailey Bartlett, the officer who served the execution, who swore that after said execution was put into his hands, he endeavored to ascertain the amount due the Essex Company on the mortgage aforesaid, and for that purpose went to the office of the Essex Company in Lawrence, and inquired of Mr. Cabot, a clerk in said office, if any thing had been paid on said mortgage. The answer of Mr. Cabot was objected to and admitted by the court, and the witness said that Mr. Cabot answered “that he believed nothing was paid on said mortgage; that he did not keep the papers, but he believed nothing had been paid.” That he also inquired of Jeremiah Ryan whether any thing had been paid on the said mortgage, and he answered, “ I must look to the records; that would show me.” Said Ryan chose one of the appraisers and gave the officer notice.</p> <p>By consent of parties, the case was taken from the jury, the court to draw any inferences as to facts that a jury might,, and to enter such judgment as is proper.</p>

<p>Indictment for receiving and aiding in the concealment of stolen goods. At the trial in the court of common pleas, before Perkins, J. the district attorney offered as a witness one William H. Dorman, an accomplice. The defendant objected to his competency, because of a want of belief in the existence of God and in punishment for crime. And much evidence was offered on both sides upon that question, which it is not necessary to state, according to the final decision of the case. Upon the whole testimony the presiding judge held that there was ample evidence that Dorman in fact had a religious belief, which qualified him to testify as a witness.</p> <p>A witness for the government, in reply to a question of the defendant’s counsel, stated that he always lived with his wife; that they never separated except temporarily on account of sickness. The defendant’s counsel then asked him, if he had not within two years of his arrest cohabited with a woman other than his wife. The witness replied, that John B. Savory and others had tried to get up such a story to injure him, but that it was not so. The defendant’s counsel then proposed, by a series of questions, to show by this witness that he had stated these things as truth on a former occasion. To these-inquiries the district attorney objected as immaterial, and the judge sustained the objection.</p> <p>The district attorney inquired of a witness whether he had at any time in the summer and fall of 1849, seen Brackett and Dresser, the alleged thieves, go off together and return together. The witness replied, that he had seen them together on many different occasions, particularly in July, August, and October. The defendant’s counsel then contended that the government was bound by these times, as the occasions on which to prove the larceny of the goods in question by the principals. But the judge refused so to rule.</p> <p>Mr. Palmer, the person whose property was alleged to have been stolen, testified that he saw a certain pair of pantaloons on one Hilliard, which he examined, and found on them certain marks by which he knew them to have been once his; that he did not take the pantaloons from Hilliard, but for some reason permitted him to wear them. Palmer was at the time accompanied by an officer, and they took the clothing found on several other persons, and claimed by Palmer. The defendant’s counsel objected to the evidence of Palmer respecting the marks upon the pantaloons, the same not being produced, but Hilliard having been a witness, and having testified that he bought the pantaloons which Palmer saw, of the defendant, and that they were all worn out, the judge admitted the evidence.</p> <p>The indictment contained four counts. The first and sec ond counts described the same offence; the third and fourth counts were each for an offence separate and distinct from that charged in the first and second counts. When all the evidence was in, the defendant’s counsel requested that the district attorney should elect some one count on which he would proceed on the ground that, being for distinct felonies, the defendant could not be tried upon more than one in the same indictment, but the judge ruled that it was competent for the grand jury to present distinct offences of the same general nature, requiring the same mode of trial, and punishment of the same nature, in the same indictment, and that convictions of distinct offences in the same indictment might be sustained; and under the circumstance of this case, as it did not appear to the court, that the defendant would be perplexed in his defence, or unnecessarily embarrassed by the form of proceeding, the judge declined to interfere.</p> <p>The jury found the defendant guilty on the second and fourth counts, and not guilty on the first and third. The defendant excepted.</p>

<p>The ruling of the presiding judge, limiting the cross-examinatio n of a witness on matters entirely collateral to the issue, is not open to exceptions.</p> <p>On a charge for feloniously receiving stolen goods, the jury may find the guilty knowledge, upon the testimony of an accomplice, corroborated by proof from other sources of an actual possession of the goods by the defendant, whether the accomplice does or does not testify to such possession.</p>

<p>The by-law of a mutual fire insurance company, to which the policy in suit was expressly made subject, provided that the policy should be void unless the true title of the assured was expressed in fhe proposal. The plaintiff, in an application for insurance on real estate, called the property “ his,” but stated it was incumbered. In fact two mortgages then existed on the estate, given by a former owner to third persons ; and the former owner’s equity of redemption had been sold on execution to another person, before the plaintiff acquired his interest in the estate. Held, that as the plaintiff at the time of insurance, had a legal right under Rev. Sts. c. 73, § 24, to redeem the equity of redemption and then to remove the other incumbrances, and thus make his title absolute, there was no misrepresentation of title.</p>

<p>Trover for a stock of goods, formerly belonging to Asa B. Clarke, of Springfield, and which the defendant had taken away and sold.</p> <p>A.t the trial in this court, before Dewey, J. it appeared that the plaintiff was the assignee in insolvency of said Clarke, under St. 1838, c. 163, and claimed the goods in that capacity. The proceedings in insolvency were commenced June 22, 1849, and the goods in question were duly demanded of the defendant July 3, 1849. The defendant claimed the goods under a mortgage from said Asa B. Clarke to him, dated April 2, 1849, and duly recorded, given to secure a note of $400, in three months from date. On this mortgage, possession had been taken to foreclose, and notice thereof given to the mortgagor. The plaintiff contended that this mortgage was fraudulent and void, as against creditors, under the insolvent laws of this commonwealth, and this was the main question in the case. It was admitted by the defendant at the trial that said Clarke was in fact insolvent when the said mortgage was made, but to show that the defendant then had no reasonable cause to believe Clarke was insolvent, the defendant called E. D. Beach, Esq. who testified that Clarke and Kibbee both came to his office, April 2, 1849, and while Clarke was in another room, Kibbee inquired of the witness his opinion of Clarke’s solvency. The witness replied that he considered Clarke perfectly solvent. The witness testified that he knew Clarke, but had not then heard his solvency or insolvency discussed. After the inquiry aforesaid was answered, the witness and Kibbee then went into the room where Clarke was, and in a conversation, which took place between Clarke and Kibbee, the former said he was worth $1000, after paying all his debts, and he had made such arrangements that he could go on easily, if Kibbee would indorse a certain note for him. The mortgage and note of $400 to the defendant was then executed in the witness’ office. To this evidence the plaintiff objected, but it was admitted by the presiding judge.</p> <p>Before the trial, the parties agreed in writing that “ all copies of papers and original papers, filed with the commissioner of insolvency, may be used, if competent evidence, without further proof of their execution, &c.” and the plaintiff put into the case the record of the proceedings in insolvency. It appeared at the trial that the defendant had proved a certain note of $100 against the estate of Clarke, and to explain that this was done by mistake, the defendant offered a copy of some of the proceedings in insolvency, certified by the clerk of insolvency, which contained, among other things not material, a statement that the defendant had proved the mortgage note of $400, “ by mistake,” and a request for leave to withdraw the same and offer the note first intended to have been proved. The plaintiff also objected to the admission of this evidence, but it was admitted by the judge. The verdict was for the defendant, and if any of the foregoing rulings were wrong, a new trial was to be granted; otherwise, judgment on the verdict.</p>

<p>No action lies by a widow against the executor of her husband, to recover the amount of a promissory note given to her by the husband during coverture, although the consideration was money owned by the wife at their marriage, and although the husband by his will gave his wife the amount of said note, with other property, but which provision she waived and claimed her legal dower.</p>

<p>In an action for commencing a suit against the plaintiff without authority, evidence of express malice on the part of the defendant towards the plaintiff, although not necessary, is still competent.</p> <p>If the plaintiff in such action disclaims any special damages for injury to his character, the defendant cannot attack such character, either to rebut the evidence of malice, or in mitigation of damages.</p>

<p>H. O. the indorser of a note being dead, a notice of dishonor sent by mail, directed “ to the estate of H. O. deceased,” is not sufficient to charge his executor, there being no proof that such notice was received by the executor, and the holder not having used due. diligence to learn the executor’s name.</p>

<p>The Rev. Sts. c. 39, § 78, requiring every railroad corporation to carry a bell on every engine passing upon “ their road,” &c. applies to a railroad corporation who have taken a lease of a railroad owned by another corporation, and are running their own engines upon it under such lease.</p> <p>Merely ringing a bell when an engine approaches a railroad crossing, as required by Rev. Sts. c. 39, § 78, will not excuse a railroad company from the consequences of a collision at such crossing, if the jury think that the company ought, under the circumstances of the case, to have used other precautionary measures to avoid a collision, and unreasonably neglected so to do.</p> <p>If one party takes a deposition on interrogatories, a part of which is for the purpose of meeting certain expected testimony from the adverse party, and does not otherwise intend to use such part, he must accompany the interrogatories with a distinct notice in writing of his purpose in taking it; or such adverse party may require the whole to be read to the jury, although he has not introduced the expected testimony, to meet which the deposition was taken.</p>

<p>The first two of these cases were petitions for partition, and the last two were writs of entry. They were all commenced March 11, 1850, and were heard before Fletcher, J. and by him reserved for the whole court, with liberty to draw all such presumptions and inferences from the evidence as a jury would draw, and to enter such judgment thereon as the law requires.</p> <p>From the facts admitted or proved, it appeared that the petitioners and demandants all claimed as heirs at law of Benjamin Hall, deceased, son of Hugh Hall, whose title to the premises in controversy was undisputed. Hugh Hall died in July, 1773, leaving three children, Benjamin Hall, Elizabeth, then the wife of John Welch, and Sarah, wife of Elisha Clark, who was afterwards married to Wensley Hobby, both of whom survived their husbands. Said Hugh Hall, by his last will and testament, which was duly proved and allowed, July 30,1773, among other devises, made the following provision concerning the Chamber street lot, being the premises of which partition is demanded in the first of the above-named suits, viz: “ I order and direct a lot in Chamber street, near the West Meeting-house, to be sold by my executor, and I hereby authorize and empower him to execute and deliver good and legal deed or deeds of bargain and sale to the purchaser or purchasers; and the money arising thereon to be put out at interest by my executor, the interest and principal thereof to be paid and disposed of as follows: the principal to be put to interest in safe hands by my executor, and the interest arising thereon to be by him paid, one half part thereof to my daughter Elizabeth Welch, and the other half part thereof to my daughter Sarah Clark, during the lives of their husbands ; and in case either or both of the husbands of my two said daughters should die before their wives, then an equal share of the principal sum to be paid into the hands of my daughter who survives her husband.” It also appeared that the premises demanded in the three last named suits were not specifically named in said will, but were included in a residuary clause contained in a codicil thereto, in the words following: “ All my estate, both real and personal, that I have not disposed of by my last will and testament, I order to be sold by my executor, and the proceeds to be divided between my two daughters.” There was also in the will a clause in which the testator ordered, if either his daughter Elizabeth or Sarah should die before her husband, that the executor should keep the share of either, or both of them so deceasing, for the benefit of her or their children, the principal to be divided and paid to each child, if daughters, at the age of twenty-one years, or day of marriage; but if sons, not till twenty-one years of age. By other parts of the will, which it is unnecessary here to recite, real and personal estate was devised to the son, Benjamin Hall; and it was admitted by the parties, and appeared by the will, that the testator intended by its provisions to dispose of all the estate, both real and personal, of which he died seised and possessed.</p> <p>Foster Hutchinson, who was named in the will executor thereof, proved the will, July 30, 1773, and was then duly qualified and entered upon the trust. It also appeared, that said Foster Hutchinson was embraced in the act of confiscation of April 30,1779, as a refugee, and that in consequence of his absence from the country, in July, 1779, letters of administration cum testamento annexo, on the estate of said Hugh Hall, were granted to two other persons. No conveyance by the executor, under the power of sale given to him by the will, of the estate above mentioned, and now demanded in these suits, is recorded in the registry of deeds, and there is no direct evidence that such conveyance was ever made, nor is there any conveyance of the demanded premises from said Benjamin Hall, son of the testator. It further appeared that said Benjamin Hall, under whom the demandants now claim, was adjudged a non compos, and a guardian was appointed over him, April 23, 1799, which guardianship was continued till his death, on the 12th March, 1830.</p> <p>Upon these facts, the petitioners and the demandants claimed the estate in controversy, on the ground that under the will of said Hugh Hall, a naked power only to sell the premises was given to the executor; that until such sale the title vested in the heirs at law; and that no sale having ever been made by the executor, a title to a portion of the demanded premises vested in said Benjamin Hall, the only son of the testator, as heir at law, and that his estate therein has come to the petitioners and the demandants, by descent. The respondents and tenants claimed the premises in controversy under sundry mesne conveyances from the daughters of said Hugh Hall and their husbands, the most material of which were: 1. A deed from Sarah Hobby (once Sarah Clark) and her husband, Wensley Hobby, dated November 27, 1793, conveying half of the premises involved in the first above-named suits to H. G. Otis. 2. A deed from said Sarah Hobby and her husband, dated November 19, 1799, conveying half of the premises, demanded in one of the other three suits, to William Walter. Sundry other conveyances were offered by the respondents and tenants, tending to show that the whole premises in controversy had been conveyed to them in fee-simple. They also offered evidence of sundry conveyances by Foster Hutchinson, the executor named in the will of Hugh Hall, under the power given him in said will, made during the years 1773 and 1774, of other premises than those now in controversy. Upon this point also the petitioners in the first suit put in evidence a deed from Elizabeth Welch, the daughter of said Hugh Hall, and her husband John Welch, to William Gridley, dated June 30, 1787, conveying the whole of a lot of land in the westerly part of Boston, which was included in the codicil of the will of Hugh Hall, and was to be sold by his executor in the same manner as the premises now in controversy. This deed contained the clause, “ being the same which the said Elizabeth Welch and Sarah Hobby inherit as heirs to their father, Hugh Hall, Esq. late of Boston, deceased.”</p> <p>Upon the foregoing facts, and others not material to recapitulate, the respondents and .tenants contended: 1. That the power in question was not a collateral power, but vested in the executor an estate or interest in trust for the execution of the power. 2. That if the power was collateral, and its execution was defeated by the death or flight of the executor, the estate was held in trust by the heirs for the persons in whose favor the power was created; and that the heirs can maintain no suit against the persons in whom the beneficial interest vested, or their grantees. 3. That the beneficial interest was by the will given absolutely to the two daughters of the testator, if they survived their husbands, which was admitted to be the fact in this case; and that if said daughters and their heirs entered and conveyed, this, in law, was an election and constructive conversion by them of land for money. 4. That upon the facts’ herein stated in evidence, the court should instruct the jury that they were authorized to presume an execution of the power under which the daughters became purchasers. 5. That the petitioners’ claim was barred by the statute of limitations.</p>

<p>In an action against a bank for negligence in not duly demanding payment of a note left with them for collection, the defence being that the note was duly placed by the defendants in the hands of a competent notary public for demand and protest, and that the negligence, if any, was on his part, the defendants having been the collecting agent for the plaintiffs for more than ten years, and having invariably placed their notes in the hands of a notary for demand and protest, with the knowledge of the plaintiffs, evidence is admissible for the defendants of an invariable usage among the banks in Boston, including the defendants, when notes are sent to them for collection, to keep the same for payment until the close of banking hours, and if not then paid, to put them in the hands of a notary for demand and protest, and that the defendants did so in the present case; and if these facts be established, the defendants are not responsible for the negligence of the notary.</p>

<p>An application for insurance in a mutual fire insurance company stipulated that the statements therein were correct “ so far as regards the risk.” Another clause in the application, to which the policy was expressly made subject, provided that misrepresentation of material facts would destroy any claim for a loss The application contained an untrue representation that the property was unincumbered. Held, that the policy was wholly void, and that the express covenant as to the “ risk ” did not limit the assured’s responsibility for other material misrepresentations.</p> <p>A policy insuring several specific kinds of property, with a separate valuation to each, being made for an entire consideration and creating a lien on the whole property to secure the premium note, is wholly void, if the property be represented unincumbered, and part thereof be under mortgage.</p> <p>If an insurance policy fails to attach because of misrepresentations of the assured, he is entitled to no return of the cash premium.</p>

<p>Petition to this court, as a court of chancery, under St. 1838, c. 163, § 18, by a corporation, called the Somerset Potters Works, setting forth that Horace Gray and Nathaniel Francis, doing business under the name of Horace Gray & company, on the 24th November, 1847, filed a petition before William Minot, Esq. master in chancery, one of the respondents, for the benefit of the insolvent laws of this commonwealth, and that Robert Hooper, William E. Coffin, and William S. Bullard, the other three respondents, were duly-chosen their assignees.</p> <p>The petitioners further alleged that they had proved a claim against said Horace Gray & company of $3,135.31, which allegation was not denied. They also averred, that the partnership between Horace Gray and Nathaniel Francis was merely nominal, and that Horace Gray was the sole owner of all the property standing in the name of the firm, and that said Francis received an annual salary for his services, viz: $4,500, deducting one half of the counting-room expenses, occupied by the firm. This allegation was not admitted by the respondents, and certain facts were agreed upon this point, which sufficiently appear in the opinion of the court.</p> <p>The petition also averred that said Horace Gray individually was indebted to the firm of Horace Gray & company in the sum of $554,465, and that the assignees of the firm ought to be allowed to prove this amount against said Gray’s individual estate, and thus to increase the assets of the company for distribution among the company creditors; and certain facts were admitted concerning the origin and nature of this indebtedness, which, from the view taken of this point by the court, it is unnecessary here to recapitulate, the court not being of opinion that such indebtedness, upon the facts agreed, could with propriety be considered an indebtedness by one partner to the copartnership for specific purchases, for carrying on a separate trade or business.</p> <p>The petitioners also set forth, and contended in argument, that there was no joint property of the firm of Horace Gray & company, inasmuch as said Francis had no interest in any of the property, and therefore that they ought to be allowed to prove their claim against the individual estate of said Horace Gray, and share in his assets pari passu, with his individual creditors; but by the agreed statement of facts it appeared that “the assignees received from the assets of Horace Gray & company the sum of $95,709.70; of which $3,474.36, was cash on hand at the time of the failure. Of the balance some came into their hands unincumbered, and had been sold by them, and the remainder was pledged before the failure ; but the assignees, at the time of filing this petition, had nothing in their hands belonging to the estate of the company.”</p> <p>From the facts agreed it also appeared that individual claims were proved before the master against the separate estates of said Gray and said Francis, and that the assignees had more than sufficient from the individual assets of each partner, to pay his individual debts in full. The master in chancery refused to order, at the request of the petitioners, the assignees to pay the joint creditors of Horace Gray & company out of all the assets in their hands derived from the joint and separate estates, pari passu with the separate creditors of Horace Gray, but directed them to pay the creditors of Horace Gray individually out of the assets of Horace Gray, before paying any thing from said individual estate to the creditors of the company. This petition prayed for a reversal of said order. The proprietors of the Sunder-land Bridge, a separate creditor of said Horace Gray, opposed the prayer of the petition.</p>