Volume 65 — Massachusetts Reports

<p>An agreement, which is void in part under the statute of frauds, is not necessarily void in toto.</p> <p>A. contracted to do certain work for B. but suspended labor because of B.’s failure to pay according to the contract. C. told A. to finish the contract, and he would pay him in full. A. did so, relying upon C.’s promise. Held, that A. could recover of C. for the work performed after such promise, but not for that before.</p>

<p>Assumpsit upon two promissory notes made in Toronto, Canada West, where the defendants resided, to the plaintiffs, residents of New York. The suit was commenced November 22,1849, and the only defence was, that after the commencement of this action the same plaintiffs commenced another suit against the same defendants, on the same notes, and recovered judgment thereon, in the court of Queen’s Bench, in York County, Canada West, which judgment had not, however, been paid or in any way satisfied. The parties agreed that if such judgment was a defénce to this suit, the plaintiffs should become nonsuit; otherwise judgment to be entered for the amount of the notes and interest.</p>

<p>Slander. The declaration contained two counts; in each of which it was alleged that the defendant uttered certain defamatory words of and concerning the plaintiffs. After a general verdict for the plaintiffs in the court of common pleas, Wells, C. J. arrested judgment, because “ the plaintiffs were joined in the same suit for a joint slander upon both, and joint damages were demanded and given for the joint slander of both.” The plaintiffs excepted to such decision.</p>

<p>Trover will lie against the Iona fide purchaser of loads of earth wrongfully taken from the plaintiffs’ land, and without any demand and refusal, although the defendant was ignorant of the trespass when he converted the earth to his own use.</p>

<p>This was scire facias against bail, and was submitted to this court on facts agreed, of which the following are the most material: The plaintiff sued out a writ from the court of common pleas against Alfred B. Tilton, on the 11th day of January, 1850, on which being arrested, said Tilton gave a bail bond with the defendants as sureties. Judgment was rendered in said suit, at the October term of said court, 1850, and execution was issued on the 4th December following. This execution was returned in January, 1851, non est inventus, and in no part satisfied. This action was commenced January 14th, 1851, and was entered at the next April term. On the 31st March, 1851, said Tilton appeared at the jail and gave bond for his reappearance at the jail on the thirtieth day of April following, and on the same day the defendants gave the plaintiff written notice that they had surrendered Tilton to the jailer. On the 21st of April, 1851, the plaintiff sued out an alias execution against Tilton, on which he was arrested and gave bond for the prison limits. He was duly discharged as a poor debtor, May 15th, 1851. On June 7th, 1851, the defendants paid into court in this action, $21.92, the amount of the legal costs to that day, which was then taken out by the plaintiff. The parties submitted to the court upon these facts whether the plaintiff was entitled to recover, either the original debt or the costs of this suit, or whether the defendants were entitled to costs since June 7,1851.</p>

<p>Assumpsit for money had and received, commenced July 8, 1850. The case was submitted to this court on an agreed statement of facts, of which the most material are as follows *. On the 10th January, 1832, the defendant was duly appointed by the court of probate, guardian of the plaintiff and his sister, Rebecca Brooks, both minor children of Caleb Brooks, and on the same day gave bond as such guardian, with two sureties, both of whom were dead before the plaintiff became of age. One condition of said bond was, that said guardian “ at the expiration of his said guardianship, shall adjust and settle his accounts with the judge of said court, and pay and deliver over all balances and sums of money or other property that may be found due upon his accounts, examined and allowed by the judge, unto the said minors, if then of full age.”</p> <p>On the 18th March, 1834, the defendant was licensed by the court of probate to sell certain real estate belonging to the plaintiff, and gave bond to the judge with sureties, “ for the purpose of putting out and securing the proceeds of the sale, on interest, for the benefit of said minors.” One condition of said bond was, “ to account for and make payment of the proceeds of said sale, agreeably to the rules of law, and moreover shall put out and secure the same on interest for the benefit of said minors.” The defendant sold the plaintiff’s real estate under said license, on the 22d April, 1834, and received therefor the sum of $158.56, which had never been accounted for by him, nor paid over to the plaintiff. No inventory of his ward’s property had ever been returned by the defendant into the probate court, and he had never settled any account there or elsewhere, relating to his said guardianship. The sureties on the last bond were both dead. The defendant was formerly a resident of this commonwealth, but since 1836 had resided elsewhere. The plaintiff, after he became of age, demanded the proceeds of said real estate, but no proceeding had ever been had in the probate court.</p> <p>If the action can be maintained the damages are to be assessed by a jury, otherwise the plaintiff to become nonsuit.</p>

Complaint under Rev. Sts. c. 46, § 6, for the support of a pauper. It was submitted to the court of common pleas, and by appeal to this court, upon an agreed statement of facts. The respondent is the father of James Flood, who is wholly unable to support himself by labor, and is without property. Said James left his father’s house in the year 1841, and was supported by an aunt until September, 1847.

<p>Complaint for forcible entry and detainer under Rev. Sts c. 104, commenced January 11th, 1851. Upon appeal in the curt of common pleas, the complainant filed written interrogatories to the respondent under St. 1851, c. 233, § 98, (reenacted in St. 1852, c. 312, § 61,) and gave him due notice thereof on the 17th October, 1851. Two Sundays intervened between the 17th and the 28th October, but neither of those days was Sunday. On the 28th of the same month, said interrogatories not having been answered, and no further time have been allowed for answering, Perkins, J., on motion of the plaintiff, ordered the respondent to be defaulted, from which judgment he appealed to this, court.</p>

<p>A master in chancery has power under St. 1838, c. 163, to allow a creditor who has by mistake proved his claim against an insolvent debtor, to withdraw the same; and if so withdrawn, the claim is no more barred by the discharge than if it had never been proved.</p>

<p>A discharge of an insolvent debtor under St. 1838, c. 163, is invalid, if the debtor does not, at the second meeting of his creditors, take and subscribe the oath required by section 7 of that statute.</p> <p>The recital in the certificate of discharge, that the debtor has “ in all things conformed himself to the directions ” of the insolvent law, is not prima facie evidence that he made and subscribed the oath required of him by that law.</p>

Audita querela. It was submitted to the court of common pleas, and by appeal to this court upon a statement of facts, which, so far as material, were as follows: The present defendants, on the 15th March, 1850, commenced an action on a promissory note against James Whiting 5c company, of which firm the present plaintiff was a member.

Assumpsit to recover $1,203.35 upon an award, dated March 16, 1850. At the trial, before Fletcher, J. it appeared that the parties to this suit and one John D. Clapp had formerly been copartners under the name of Capen & company; that disagreements having arisen between them, they agreed to refer the subject to arbitration.

Assumpsit for the keep of four horses from May to October 1850, at $14 per week. The principal defence was infancy.

Replevin for certain articles of personal property mortgaged to the plaintiff by Alvah Blaisdell, June 7, 1849, to secure the payment of a promissory note of that date for $200 in thirty days after date. The defendants had attached the property on a suit against said Blaisdell, on the 5th July, 1850.

<p>A defendant, by filing an admission of the. plaintiffs’ case, in order to obtain the right to open and close, under the forty-first rule of the court of common pleas, is not thereby estopped from setting up in Science the statute of limitations.</p>

<p>Assumpsit on a bank bill, of the denomination of fifty dollars, issued by the Dorchester and Milton Bank. The bill was admitted to be genuine, and signed by the president and cashier of said bank. On or about the middle of November, 1850, Messrs. Mumford and Cannon, of Philadelphia, sent the bill to Messrs. Lyman and Wyer, of Boston, with instructions to collect the same, and soon after it was received by Lyman and Wyer, it was presented to the bank and payment was refused. The plaintiff of record, Wyer, had no property or interest in the bill, but permitted his name to be used in the suit for the benefit of Mumford and Cannon, of Philadelphia, so as to dispense with an indorser on the writ.</p> <p>The defendants showed that the bill was stolen from the bank on or about the second day of June, 1850, and that the bank had never received any value for the same. It was contended on the part of the defendants, that the plaintiff had no title in the bill, and had no right to bring the suit, and that having proved that the bill was stolen from the bank, it was incumbent on the plaintiff to show that he had paid a good and sufficient consideration for the same, or that Mumford and Cannon had paid value for it. Upon this evidence, Wells, C. J. in the court of common pleas, directed a verdict for the defendants. To this ruling the plaintiff excepted.</p>

<p>It is no defence to a promissory note made by A. to B. that it was given to release C. from an unlawful arrest.</p> <p>An agreement by a creditor to forbear prosecuting his claim and an actual forbearance, is a good consideration for a note from a third person to the creditor.</p>

Trespass quare clausum, with the aggravation of taking possession of the plaintiff’s store of goods and keeping possession of it.

<p>if one member of a partnership settles a demand due from him individually, by setting off and discharging a demand due from his creditor to the partnership, although this is a fraud upon the partnership, no action at law can be maintained in the name of the partnership to recover the demand due it from such creditor, the latter having acted in good faith.</p>

<p>Assumpsit to recover the value of a case of merchandise. _ The plaintiff claimed to charge the defendants only as ware-housemen. The case was admitted to have been transported by the defendants over their railroad from Providence to Boston, and to have been received at the depot in Boston on the 18th of March, 1850; that it was called for on the 18th of April following by the plaintiff’s agent, and could not then be found. The defendants introduced evidence tending to show that the way bills of merchandise, received at the defendants’ depot in Boston, were copied into a book, and that when merchandise was delivered from the depot, the name of the person to whom the merchandise was delivered, was inserted in pencil in the margin of said book, against the article delivered, and that this was the only evidence taken by the defendants of the delivery. The plaintiff contended that this was a careless mode of doing such business, and offered evidence that all the other railroad companies in Boston adopted a different mode, namely, that of taking receipts of the parties who received merchandise; but Hoar, J. in the court of com mon pleas, ruled that the evidence was inadmissible. The plaintiff further contended that the burden of proof was on the defendants to show not only the loss of the case of merchandise, but the manner of the loss. The judge ruled that to maintain the action, it was only necessary for the plaintiff, in the first instance, to show the receipt of the goods by the defendants and their failure to deliver them upon demand; that this imposed upon the defendants the duty of accounting for them; but that the defendants were not bound to show affirmatively in what precise manner the loss occurred; but only, if they were unable to prove how it occurred, to show clearly that they had exercised ordinary care respecting the goods, and that the loss did not happen from any negligence or want of ordi- , nary care on their part. , The judge further ruled, that if the case was taken by mistake from the depot, and the defendants exercised ordinary care in the matter, the defendants would not be answerable for a loss under such circumstances; but that if the agent of the defendants delivered it by mistake to a wrong person, the defendants would be responsible.</p> <p>The jury found a verdict for the defendants, and the plaintiff excepted to the above rulings.</p>

<p>Under St. 1851, c. 233, §§ 98-109, it is the duty of the interrogated party, although • living out of the commonwealth, to take out the commission to take his signature, and oath, and answers to be filed by him, in reply to the interrogatories filed by the adverse party.</p>

Assumpsit upon two promissory notes made by the defendants, of Roxbury, in the county of Norfolk, payable to the order of Whitney and Brothers, who resided out of the commonwealth, and by them indorsed to the plaintiff, a resident of New Jersey. The notes were dated Boston, September 15,1847, and payable generally.

<p>iTnder Ttev. Sts. c. 85, 5 13, an appeal lies from a judgment of nonsuit rendered by a justice of the peace, as well as from a judgment on the merits; and on such appeal the whole case is to be tried on the merits in the appellate court.</p>

<p>Assumpsit, m which the plaintiff declared specially upon the following promissory note: “ Boston, Feb. 22, 1849. $800. Four months after date, I promise to pay to the order of C. A. Trowbridge, eight hundred dollars, value received, with interest. Joseph M. Brown, Treasurer Ontonagon Copper Co.” Under the common counts, six other notes were specified of the same form, for different sums, and payable at different times, and all indorsed in blank by C. A. Trowbridge. The writ was dated Oct. 22,1849 ; and the defendants, residing in this commonwealth, were sued as partners doing business under the name and style of the Ontonagon Copper Company. At the trial before Dewey, J. the plaintiff offered in evidence the act of incorporation of the Ontonagon Copper Company, and called Joseph M. Brown, who testified, that the said company was organized April, 16, 1846, and has existed ever since. He produced and verified the books of the company; he also verified certain letters of credit signed by him, authorizing C. C. Cushman to draw on him as treasurer; also, certain letters, written by him as treasurer of the company to the plaintiff.</p> <p>He further testified, that it appeared by the books of the corporation, that Scudder and Hobbs, two of the defendants, were original members, and still continued such; that Coffin, another defendant, became a member May 15th, 1846, and continued such till August 22d, 1849 ; that Brockway, a fourth defendant, became a member November 14th, 1846, and always continued such; that two of the defendants, Scudder and Hobbs, were directors in 1848 and 1849; that said company had never done any thing in or concerning the business of manufacturing copper in Salem, Massachusetts: that in April, 1846, they engaged in the business of mining copper in Ontonagon County, Michigan, taking a lease of government lands for that purpose, and never had engaged in any other business; but that no ore, except specimens, had been received in Massachusetts from the mines; that letters, containing reports of investigations and operations at the mines, were from time to time received from persons in the employ of the company, and read at annual and special meetings of the company in Boston; that he recollected that Scudder, Hobbs, and Coffin, were present at such meetings. They resided in Boston; that he did not remember seeing Brockway there; he resided in Newburyport; the records did not always show who were present; that he had frequently conversed with Scudder, Hobbs, and Coffin, in relation to the mining business, and did not remember conversing with Brockway but once before this suit was commenced, when he, Brown, went to Newburyport to obtain payment for an assessment; but could not say certainly that any conversation passed, except on the subject of the assessment; had seen and conversed with Brockway since this suit was commenced; he never intimated ignorance of the affairs of the company.</p> <p>He further testified that no assessments had been paid when he became treasurer; that all the assessments were laid after the company engaged in the mining business; that eight assessments were voted at different meetings of the company, the defendants Scudder, Hobbs, and Coffin, being present; and that all the defendants paid part or all of the assessments upon their respective shares.</p> <p>He further testified that supplies of gunpowder, tools, provisions, &c. for the mines were obtained at the West, by vote of the company; and that the plaintiff furnished two bills of supplies; one bill at his, Brown’s, directions, given by telegraph to the plaintiff, in October, 1848, and the other a short time previous, by the orders of one Cushman, an agent of the company in Michigan, authorized to "act in the premises by letters of credit from, and votes of the company; that the obtaining of these supplies was, to his knowledge, known to the defendants Scudder, Hobbs, and Coffin, and that Scudder and Hobbs, two of the defendants, who were directors, were consulted by him in relation to the ordering of supplies, and that he ordered them with their immediate advice and approval; that the plaintiff drew on him as treasurer of the company, by his directions, for the supplies furnished by his order, and presented for payment the drafts of Cushman on the company, in the plaintiff’s favor, for the supplies furnished by Cushman’s order. He further testified, that all these drafts were accepted by him for the company, and were protested for nonpayment; that the plaintiff came to Boston and rendered an account of the drafts, costs of protest, &c.; that there was then due the plaintiff the sum of $3,020.52; and that he, Brown, having consulted the directors, Scudder and Hobbs, and with their approval, gave the notes in this suit, in behalf of the company, amounting to $3,020.52, to the plaintiff, for the drafts and other items of his account; that the fact that the plaintiff furnished supplies to the amount claimed in this suit had never been disputed.</p> <p>Upon this evidence, and upon the books, letters, and papers thus introduced, the presiding judge proposed to rule that this action could not be maintained, and by consent, a nonsuit was entered, subject to the opinion of the full court on the foregoing evidence.</p>

<p>Writ of entry to foreclose a mortgage of real estate in Boston, originally brought in the court of common pleas at the January term, 1850, and removed at the first term into this court, upon the motion and affidavit of the tenant, in which he averred that the property claimed exceeded in value the sum of six hundred dollars, &c. The damages demanded, and the value of the property, as alleged in the writ, did not exceed six hundred dollars. On the opening of the ease to the jury, Metcalf, J. ruled that this court had no jurisdiction of the action, and declined to proceed in the trial.</p> <p>If this ruling was wrong, the case is to stand for trial; if right, it is to be remanded to the court of common pleas, for trial in that court. The case was argued and determined at the November term, 1852.</p>

<p>Filing an answer to the merits under St- 1851, c. 2.33, $ 23, [Si. 1852, c. 312, § 12,] before filing any answer in abatement or motion to dismiss, is a waiver of all matters of abatement not affecting the jurisdiction mentioned in § 32.</p> <p>An indorsement “ From the office of ” the attorney who brought the action, is a sufficient indorsement of a writ under Rev. Sts. c. 90, § 10.</p>

At the trial of this action before Fletcher, J. the plaintiff put in evidence copies of certain votes of the directors of the defendant company. When the cause was submitted to the jury, the defendants objected that said copies, not having been compared and verified, the original records of the company should go to the jury in place of the copies, and the same was done.

<p>To terminate a lease at will by a notice, under Eev. Sts. c. 60, § 26, when the rent is payable monthly, a month’s notice must be given, which must either specify the exact day on which the next month expires, or state generally that the tenancy will be terminated in one month from the next rent day.</p>

Assumpsit against the defendants, as common carriers of passengers, for loss of baggage, The delivery of two trunks containing baggage, and the nondelivery of one of them at the place of destination, and a demand therefor, and its value, were fully proved. The contents of the lost trunk consisted of the wearing apparel of the plaintiff.

Action against the defendants for negligence in the transportation of a fishing seine, so that it arrived at its destination too late for the season. It was submitted to the court of common pleas, and by appeal to this court, upon an agreed statement of facts.

<p>The decree of the court of probate, duly allowing the final account of an administrator, cannot be impeached in an action at law against the administrator, for services rendered the deceased. Any objections to such account should be raised by appeal to the supreme court of probate.</p>

Assumpsit by an indorsee, to recover the instalment due July 1st, 1850, on a promissory note of the following tenor: “ Boston, June 5th, 1849.—For value received, I promise to pay George Roberts, or order, fourteen hundred dollars, as follows, to wit: fifty dollars and interest, July 1st, 1849; three hundred dollars and interest, January 1st, 1850; five hundred and twenty-five dollars and interest, July 1st, 1850; five hundred and twenty-five dollars and interest, January…

<p>In a bill in equity by the assignee of a chose in action, the assignor is a necessary party, if there remains any right or liability in the assignor which may be affected by the decree.</p> <p>A. B. and C. were jointly interested in the profit and loss of a speculation in real estate, the conveyance of which was by agreement made to A. alone. A. disposed of the property at an advance, receiving in payment to a great extent, notes and mortgages, but not cash. B. conveyed all his interest in the contract to C. and C. brought a bill in his own name against A. for his share of the profits. Held, that as there might be a final loss in the transaction, for which B. would still be liable, he must be a party to the bill.</p>

<p>These two actions were tried by consent to the same jury. They were both actions brought to recover the contents of the promissory notes set forth in the writs respectively. The notes were signed, in the firm name of Roylance, Briggs, and company. Roylance and Briggs were defaulted, and B. H. Strobridge alone defended; and the only question was whether Strobridge was a partner with the other defendants.</p> <p>At the trial in the court of common pleas, to prove that he was such partner, the plaintiffs introduced in evidence the declarations of Strobridge to two clerks employed by the firm.</p> <p>The defendant called as a witness William C. Locke, who testified, that Roylance and Briggs were partners in Boston; that their business was a general commission business; that the witness made arrangements to go to Springfield to take charge of their business there, and that he was the head clerk and had the general charge of the business there; that he went on the 4th day of September, 1849; that the business there was the dry goods retail business, which was at first conducted under the firm of Briggs and company; that on the 24th day of September, of the same year, they moved into a new store, and that on that day a new sign was put up with the name of Roylance, Briggs, and company, upon it, under which firm the business was conducted. Strobridge came there the same day.</p> <p>For the purpose of explaining evidence which had been introduced by the plaintiffs, tending to prove that the conduct and duties of the defendant from the time he went into the store, were more of a partner than of a clerk, the defendant offered to prove by this witness that an agreement was made at or about the time, between Briggs and Strobridge, that he, Strobridge, should have a salary, and might, if he wished, subsequently become a partner. This was objected to by the plaintiffs as not competent, but Wells, C. J. overruled the objection and admitted the testimony; and the witness testified that an agreement was made that Strobridge might come to learn the business. If he liked it, he was to go in as a partner; till he did so, he was to be on salary. Witness did not then know what the salary was, and not until the books were settled.</p> <p>The defendant then offered to prove that on a certain occasion, an account of stock was taken, and that the said Strobridge was paid a certain salary. This was objected to by the plaintiffs. The presiding judge overruled the objection, and admitted the testimony. The witness then was permitted to state, that in the latter part of February, 1850, an account of stock was taken, and that Mr. Strobridge was paid $400 per year, and it so appeared on the books, which books were not produced; and that the settlement was made in the witness’ presence. On cross-examination, on this point, he subsequently stated that nothing was paid to Strobridge at the time, but that the account was settled, and the balance was carried to new account. To this evidence, the plaintiffs objected, as not competent; but the judge admitted the same.</p> <p>The plaintiffs introduced evidence tending to prove that on various occasions, the defendant had stated that he was a partner, or interested in the concern of Roylance, Briggs and company. To meet this, the defendant offered to prove by the same witness, that on another occasion, when neither of the plaintiffs, nor the two witnesses called by the plaintiffs, were present, a lease was brought to the store of Roylance, Briggs and company to be executed, by a Mr. Walker, the owner of the store; and that Mr. Strobridge declined to execute the same, on the ground that he was not a partner. This was objected to by the plaintiffs, but the judge overruled the objection and admitted the evidence. The witness then stated that in March, 1850, soon after an addition was made to the store— but he could not be positive as to the time—witness was present with Strobridge, Walker, and Briggs, in the store. Mr. Walker brought in a lease. Strobridge did not sign it. The question was then put: “Did Strobridge refuse to sign the lease?” This was objected to, and the objection was overruled, The witness answered, “ He did.” The question was then put: “What was it said to be ?” This was objected to, and the objection was overruled. Witness answered, “ A lease.” “Of what?” This was objected to and ruled in. The witness answered, “ I don’t know what it was. He was asked to sign a lease of the store which we occupied.” This was objected to, but admitted. The question was then put: “ What did Strobridge say ? ” This was objected to, but admitted. The witness answered, “ that he was not a partner in the firm of Roylance, Briggs and company,” and he did not sign the lease.</p> <p>The defendant then offered to prove that upon another occasion, the witness went with Briggs to the office of Henry Morris, Esq. an attorney at law, to have a writ made on a demand in favor of Roylance, Briggs and company, and that directions were left to have the writ made; that soon after a messenger came from Mr. Moras to their store, and inquired who were the company of Roylance, Briggs and. company; that this was asked of Mr. Strobridge, and that Mr. Strobridge said he was not, and that this was in the presence of Briggs, this witness, and Strobridge. This was objected to, but admitted by the judge ; and the witness stated that it was so, and that Strobridge was at the desk, and when the question was put to him, answered, “ I am not.” It did not appear that either of the plaintiffs or either of the witnesses called by them were present at this time.</p> <p>To meet the position of the plaintiffs, that the change in the sign at the time Strobridge went into the store, tended to prove that Strobridge then went in as a partner, the witness, upon being interrogated by defendant, further testified, that he, the witness, had the sign painted for Roylance, Briggs and company; that witness had his directions from Mr. Briggs, in regard thereto. The witness was then asked, “ What reason did Briggs give you for having the firm changed ? ” This was objected to, but was admitted. The witness answered, “ That the old firm of Briggs and company had not done well, and he thought if the firm was changed, it would do better as a branch of an importing house.” Neither the plaintiffs nor either of the witnesses called by them were present at the time.</p> <p>The plaintiffs offered evidence that the defendant Strobridge had at one time been in the habit of drawing money from the bank by signing the company’s name. To meet this evidence, the defendant offered to prove by the same witness that in the month of October or November, 1849, after the witness had recovered from a fit of sickness, the witness ascertained that the defendant Strobridge had opened an account in the name of the firm of Roylance, Briggs and company, at the Agawam Bank, and that witness saw him signing a check in the name of the firm ; that witness told him, Strobridge, that it was not right; that it would be a forgery, if he was not a partner, and that he would make himself liable as a partner; that no check was afterwards signed by the defendant Strobridge, and that the bank account was soon after changed to the name of the witness. This was objected to, it not appearing that either of the plaintiffs or the witnesses called by them were present; but the objection was overruled and the testimony admitted. The witness then testified that about 1st of November, 1849, lie saw Strobridge sign the name Roylance, Briggs and company, to a check on the Agawam Bank. Witness told him that it was wrong; that he had no right to sign that name unless he was a partner, and that he would be holden if he did so. Strobridge said that he was ignorant; that he did not know that it was wrong, and that he was not a partner; that he had signed the firm name at the bank when he opened the account; that the bank account was immediately changed to W. C. Locke, and the balance transferred by a check in the name of Roylance, Briggs and company, drawn by Strobridge, and that after that the witness drew the checks. All this was objected to, but ruled in.</p> <p>To show the improbability that the defendant Strobridge would enter into partnership with Roylance and Briggs, the defendant Strobridge offered to prove by the same witness that the firm of Roylance, Briggs and company, was insolvent when Strobridge went into the store; and the witness had so told Strobridge on his inquiry and a conversation being had on the propriety of his joining the firm. This was objected to, but the objection was overruled and the testimony admitted, it not appearing that either of the plaintiffs or the witnesses called by them were present. The witness then testified that he had several conversations with the defendant on that subject. The first was in November, 1849 ; that he advised him not to go into the firm, and told him that he thought the firm was insolvent.</p> <p>The jury returned a verdict for the defendants in each case, and the plaintiffs excepted to all the aforesaid rulings.</p>

<p>Assumpsit on a promissory note of the defendant, dated at Lowell, February 28th, 1849, for $100, payable to George Lambert or order, in six months from date. At the trial in the court of common pleas, before Perkins, J. it was admitted that the plaintiffs were assignees of George Lambert, an insolvent debtor, and had a right to recover, if said Lambert could, had he remained solvent. The defendant contended and offered evidence tending to show that the defendant gave the note in suit as collateral security for the fulfilment of a contract between his son John P. H. Wentworth and others, of one part, and said George Lambert and one Henry Lambert of the other part, and that said contract related to an adventure to California. Under it said John P. H. Went-worth and others were to go to California, remain there with said George and Henry Lambert about one year, and in the employment of said Lamberts; said Lamberts were to find for said J. P. H. Wentworth and others, all necessary implements for working, also provisions and employment, and passage out free; and said Lamberts were to give Wentworth and others one half the net proceeds. It appeared that said J. P. H. Wentworth and others did go to California in the vessel provided by the Lamberts under said contract. The defendant further offered evidence tending to show, that on the arrival of the vessel with said J. P. H. Wentworth and others in California, said Henry Lambert, who transacted the business of the concern in California, (said George then residing in Boston,) proposed to J. P. H. Wentworth to give up and release to him (Wentworth) the contract, on Went-worth’s giving his note for a certain sum, viz: $400; that J. P. H. Wentworth then gave the note for $400, and received a release from said contract. There was some other evidence of the agency of Henry Lambert for George Lambert, besides the fact of his being united with him as one of the parties to the contract. There was evidence in the case, derived from what purported to be a copy of said contract, that it was a sealed instrument. It did not appear that there had ever been any further action under said contract, but the parties separated, and said J. P. H. Wentworth and others went to another city, and there worked by themselves.</p> <p>The plaintiffs’ counsel argued to the jury that by the terms of said receipt, which was in evidence, said George Lambert was bound to account for the proceeds of said note upon a settlement with said J. P. H. Wentworth; that he had nothing to do with the defendant about it; that it was given him as an advance to pay the passage of the son to California, and to be accounted for on a final settlement; and he contended to the jury, that upon the receipt and other evidence in the case, they ought so to find. He further denied that said Henry Lambert had any authority to discharge said contract, or that the evidence was sufficient to show such authority.</p> <p>The judge instructed the jury, that if the defendant had made out to their satisfaction the defence stated by him, and which his evidence tended to establish, to wit, that the defendant gave the note in suit as collateral security of the performance of said contract, and the said contract had been released and discharged before its termination by the plaintiffs, or had been so altered and changed as to make it a new and different contract, or it had been released, and another and different contract substituted in its place, and without the consent of this defendant, he would no longer be held; but this would be a defence to his note.</p> <p>The judge ruled that the jury must be satisfied by defendant that the said Henry Lambert had authority to do the act alleged to have been done by him in reference to releasing or changing the contract, and for this they must look to the evidence. As to the above-named receipt and contract, both parties having argued their construction and effect to the jury, and no ruling on the same being requested from the cotirt, as matter of law, the court left them, without objection on either side, to the jury, making such remarks in reference to. them and the effect to be given them as was deemed pertinent.</p> <p>The jury found a verdict for the defendant, and the plaintiffs excepted to these rulings.</p>

<p>In assumpsit against B. B. M. for $112.50, the price of a pew, the plaintiff proved the following entry in the auctioneer’s book of sales: “ Sale of pew in Bulfinch Street church, for ace. Belinda Fessenden, (the plaintiff.) Monday, March 24, 1845. Pew No. 18. Benj. Mussey. $112.50. Charges, advertising, and commission, $5.” Held, a sufficient memorandum within the statute of frauds, if made at the time of sale by the auctioneer or under his direction; the omission of the middle letter of the defendant's name not being fatal, if it could be shown by paroi that he was the person intended, or that he was known by one name as well as the other.</p>

This was an action on a negotiable note, payable to the defendant’s order, and by him indorsed to the plaintiff, for $105.37, dated June 10, 1845. The defendant pleaded the general issue, and relied on the following receipt: “June lOj 1845. Received of W. B. K. his note for $105.37, in full, for execution of Richard Fletcher v. Thomas Lamson et al., issued June 20, 1843, given to Pratt, which I will return to the said W. B. K., namely, the execution.

<p>In an indictment upon St. 1852, c. 322, § 12, for being a common seller, it is suffi. cient, as under former statutes, to allege that the defendant was a common seller, without being duly licensed, &c: the particular sales need not be averred; and if defectively stated, such allegation may be rejected as surplusage.</p> <p>Such an indictment need not allege that the liquors sold were not imported in original packages, or that they were not cider for other purposes than thdt of a beverage, or not the fruit of the vine, for the commemoration of the Lord’s Supper.</p>

Indictment found at the September term, 1852, for feloniously receiving goods alleged to have been stolen by a person unknown, and to be the property of a person unknown.

<p>An indictment for larceny from the person of “ sundry gold coins, current as money in this commonwealth, of the aggregate value of twenty-nine dollars, but a more particular description of which the jurors cannot give, as they have no means of knowledge,” and containing similar allegations as to bank bills and silver coin, is sufficiently specific to warrant a judgment upon a general verdict >f guilty.</p>

The defendant was indicted for larceny in a shop, of “ sundry bank bills, current as money in this commonwealth, then due and unpaid, and of the aggregate value of $367; but a more particular description of which the jurors cannot give as they have no means of knowing,” &c. Being found guilty in the municipal court of Boston, of “ stealing sundry bank bills of the value of $317, and not guilty as to the residue,” he moved in arrest of judgment, for the same cause as set…

<p>The first of the abovenamed actions was for a trespass apon certain land described in the writ, and cutting and carrying away wood thereupon. It was commenced January 8th, 1850, by Robert T. Barnard, administrator of Stephen Stevens, but on his decease pending the suit, Billings Palmer was admitted to prosecute the action, as his administrator de bonis non. The premises upon which the alleged trespass took place, were conveyed by said Stephen Stevens to Mary Sumner, March 8th, 1841, and on the same day mortgaged back by her to Stevens, who held the same at his death. After his decease, his administrator, Robert T. Barnard, obtained judgment and execution for possession of the mortgaged premises, March 13th, 1848, in order to foreclose the mortgage. The trespasses were alleged to have been committed at various times between February 1st, 1849, and January 8th, 1850. Jonathan C. Stevens, one defendant, was a son of said Stephen Stevens, and Ensign D. Stevens, the other defendant, was a son of said Jonathan C. The latter, however, bad conveyed all his interest in the premises to other parties, December 1st, 1846.</p> <p>At the trial in the court of common pleas, before Mellen, J. thé defendants contended that an administrator of a mortgagee having taken possession to foreclose, could not, before the expiration of the three years allowed to redeem, maintain trespass against one of the heirs of the mortgagee, the estate •not being needed for the payments of the intestate’s debts; but the presiding judge overruled the objéetion.</p> <p>The defendants claimed title to the premises in controversy from the Lower Housatonic Proprietary, by virtue of locations made by said Jonathan C. Stevens, under a deed from the heirs of Joseph Goodrich, deceased, dated March 17th, 1843. They also offered a certified copy of a deed of the same premises to said Goodrich from Peter A. Fundy, dated February 15th, 1792, acknowledged before Seth Jenkins, “ Mayor of the city of Hudson,” and recorded in the registry of deeds at Great Barrington, in January, 1802. The plaintiff objected to the admission of the first of said deeds, for reasons unnecessary to be reported, and to the last because it was not acknowledged before an authorized person, and, therefore, not properly recorded, and not capable of proof by a registry copy; but they were both admitted de bene esse. The locations under which the defendants claimed the premises, were made September 9th, 1843, and they offered the records of the proprietary in proof of such locations. The plaintiff objected that at the time of such location there was no organization or legal officers of said proprietary, and no legal locations thereof upon the records, and the presiding judge so ruled. The verdict was for the plaintiff, and the defendants filed their exceptions</p>

Bill in equity, alleging that on July 5th, 1847, Bartlett Doten, William Mansfield, Albert Mansfield, and Graham A. Root were trading and doing business in partnership under the name and firm of Doten, Mansfield, and Root, and on said day, for a good and valuable consideration, they gave to the complainant a promissory note of the following tenor: “ $2000.

<p>In an action against common carriers, an objection that the declaration does not allege that the defendants were common carriers should be made in the court below, or it is not open on a bill of exceptions.</p> <p>The consignors and owners of goods sent by common carriers, are the proper parties to sne for negligence in the transportation.</p> <p>A receipt given by the consignees of goods to the carrier, acknowledging their receipt in good order, and in which the consignees are requested to notice any errors therein in twenty-four hours, or the carrier will consider himself discharged, does not estop the consignor from suing the carrier for damages caused by negligence in transporting the goods, although no notice was given thereof to the carrier.</p>

<p>In this action, Mellen, J. in the court of common pleas, refused to nonsuit the plaintiff upon the defendants’ motion, for not filing answers to interrogatories in ten days under St. 1852, e. 312, § 63, on the ground that the plaintiff not being an inhabitant of this commonwealth, it was the duty of the defendants to take out.a commission to take the answers of the plaintiff to their interrogatories. To this ruling the defendants excepted.</p>

<p>Writ of entry. The demandants claimed title by virtue of the levy of an execution against said Daniel Sturtevant and James Sturtevant, in favor of Elijah M. Paddleford. The case turned upon the validity of this levy. The officer’s return thereon, so far as material, was as follows:</p> <p>“ Berkshire, ss. June 17th, 1823. The debtor within named failing to satisfy this execution by money or other specie, and the creditor within named finding no personal estate to his acceptance wherewith to satisfy this execution, and thinking proper to levy the same on the real estate of the within named Daniel Sturtevant to satisfy this execution and the judgment on which it was rendered, and all fees, I have this day caused Elisha Kingsley, yeoman, Nathan Putnam, Esq. and Obadiah Ingraham, yeoman, all of Adams and Savoy, in the county, and freeholders, being three disinterested and discreet men, to be duly sworn, faithfully and impartially to appraise according to their best skill and judgment, such real estate of the within named Daniel, as should be shown to them to satisfy this execution and all fees, as will appear by the foregoing certificate of the justice; the said Elisha Kingsley being chosen by the creditor’s attorney or agent, the said Obadiah Ingraham by the debtor within named, and the said Nathan Putnam, Esq. by myself, and the aforesaid tract of land which is particularly bounded and described in the following return of the said appraisers, having been shown to the said appraisers by the said Homer Bartlett, agent to said attorney or creditor, as the real estate of the said Daniel Sturterant, and the said appraisers having this day reviewed the premises, appraised the same on their oaths, &c.”</p> <p>The certificate of the magistrates who administered the oath to the appraisers, and the certificate of the appraisers themselves, were as follows:</p> <p>" Berkshire, ss. May 27th, 1823. Personally appeared, Obadiah Ingraham and Nathan Putnam, freeholders of said county, and made oath that they would appraise such real estate as should be shown to them to satisfy this execution at its present value in money, according to their best skill and judgment. Before me, Edward Mason, justice peace.”</p> <p>“ Berkshire, ss. June 17th, 1823. Personally appeared, Elisha Kingsley, and made oath that he would appraise such real estate as should be shown to him according to its present value in money, to satisfy this execution. Before Nathan Putnam, justice peace.”</p> <p>“ Berkshire, ss. June 17th, 1823. We, the subscribers, all freeholders within the said county of Berkshire, and having all been duly chosen, appointed, and sworn to the faithful and impartial appraisement of such real estate of the within named Daniel Sturtevant and James Sturtevant, as should be shown to us to be appraised, in order to satisfy this execution and all fees, have this day viewed a tract of land, lying in Savoy, in said county, shown to us by Homer Bartlett, the attorney of the within named creditor, as the estate of the within named Daniel Sturtevant, which said tract of land is bounded as follows, &c.”</p> <p>To the validity of this levy, the tenant objected because, 1. It did not appear that the appraisers were sworn according to law. 2. It did not appear that the debtor whose land was taken (Daniel Sturtevant) was notified to choose, or did choose one of the appraisers. These objections were overruled by Metcalf, J. and the verdict was for the demandants. The tenant excepted to this ruling.</p>

<p>An insolvent debtor, the second meeting of whose creditors is not held until more than three months after the date of the warrant, is not entitled to a discharge under St. 1838, c. 163.</p>

<p>A motion to dismiss a replevin suit, because the replevin bond did not contain s certain article of property mentioned in the writ and actually replevied, is too late after pleading to the action.</p>

<p>To prove that the 24th day of a certain month was a reasonable time in which to perform a certain contract, the record of a former judgment between the same parties establishing that the 22d day of the same month was within a reasonable time is not competent evidence.</p>

Assumpsit upon two promissory notes dated October 23d, 1851, payable to the plaintiff or order, made by the defendant The only defence was a failure of consideration, to prove which, the defendant produced the following receipt: “ Received, Pittsfield, October 23d, 1851, of A. D. Stevens, his notes of one hundred dollars, one dated October 23d, for twenty-five days, and one for forty-five days, (the notes in suit,) for which I am to send him his note for one hundred and…

<p>After a "warrant to the commissioners has issued on .a petition for partition, it is too late for the petitioner to object to the existence or validity of the respond dents’ title to some interest in the land.</p>

<p>The charter of the Tenth Massachusetts Turnpike Corporation was forfeited by a failure for many year's to comply with the provision therein “ that said corporation should annually exhibit to the governor and council a true account of the income or dividend arising from the tolls, with the annual disbursements on the road.”</p>

Indictment under Rev. Sts. c. 23, § 5, for neglecting to keep a high school; alleging in substance in one count that the defendants, from the 1st day of January, 1848, to the finding of the bill, July, 1852, had neglected to maintain, &c. The second count alleged such neglect to have continued from the 5th July, 1849, to the time of finding the bill. After a general verdict of guilty in the court of common pleas, the defendants moved in arrest of judgment. 1.

This is an action of trespass. The parties stated a case. John R. Cole mortgaged to the plaintiff the premises described in the writ, the mortgagor. remaining in possession of the premises. Subsequent to the execution of the mortgage, the mortgagor erected on said premises a small frame building.

<p>A holder of shares in a manufacturing company by an absolute certificate thereof, is liable for the debts of the company, under Rev. Sts. c. 38, § 16, in the same manner as any member, although he had agreed to retransfer said shares to his vendor upon the performance of certain conditions, and although the transfer was intended merely as collateral security.</p> <p>A retransfer of shares of stock in a manufacturing company by B. to A., in pursuance of an agreement to do so, made contemporaneous with the original transfer by A. to B., terminates B.’s liability as a stockholder, under Rev. Sts. c. 38, § 16, for the debts of the company, although made for that very purpose.</p> <p>Under Rev. Sts. c. 38, § 16, a member of a manufacturing company may be liable for the debts of the corporation contracted while he was a member, although he ceases to be such before the debts become payable; but he is not liable for debts contracted before he became a member, if his membership expires before the debts become payable, and action brought.</p>

<p>Petition for a certiorari, alleging that the county commissioners of Hampshire had committed errors in laying out a town road through the town of Belchertown, and ordering the town to pay the expenses thereof, and praying that their proceedings should be quashed. The order of the county commissioners was passed upon the petition of Samuel A. Shaw and others, representing that they had petitioned the selectmen of said town to lay out said road, and that the selectmen had unreasonably refused or neglected so to do. Upon this petition the respondents adjudged “that common convenience and necessity required the prayer of the petition to be granted.” Several errors were alleged in the proceedings of the county commissioners, but the final decision of the case renders the report of them unnecessary.</p>

<p>A notice to quit seasonably given by a landlord to his tenant, and correctly stating, either in general terms or by a specific designation of day and date, the time when the tenant should quit the premises, is sufficient, although it do not state the cause of giving it.</p>

<p>This was an action of tort, in which the plaintiff alleged in substance, that across certain land belonging to him there was a certain brook, the water of which has been accustomed to run in its natural channel- from time immemorial, and from said land across the land of Allen Wolcott, (one of the defendants,) and thence into Ashley’s pond; and that the defendants did fill up the channel of said brook, and construct and maintain an embankment or dam across the same, and thereby caused the water of said brook to set back and overflow the land of the plaintiff, to the injury of the same, &c. The defendants denied that there was a certain brook as described in the declaration, the water of which has been accustomed to run as therein alleged, &e.; and also denied that they had constructed and maintained across said brook, if any such there was, an embankment as set forth in the declaration.</p> <p>At the trial before Metcalf \ J. the plaintiff introduced testimony tending to prove that, for a great number of years, the water from his land had been discharged through an outlet, leading into the land of Allen Wolcott, one of the defendants, through a small ridge that divided his land from that of the plaintiff, and that the defendants had obstructed said outlet and thereby injured the plaintiff, by preventing the flow of the water as it formerly used to pass.</p> <p>The defendants introduced evidence tending to prove that there never was any channel through the aforesaid ridge; that there was only a slight depression in one part thereof, and that when the water was high in the spring and autumn, or when great rains fell in the summer, the water set over at the place where said depression was; but that there never was any current of water there; that for most of the year the water was too low to pass over the ridge, even at the depression, and did not pass over it, and that there was no ditch or drain through the ridge. The defendants also contended that the overflowing of the plaintiff’s land, alleged in his declaration, was caused by himself, in shutting up an outlet at the southwest part of his land, through which the water from his land formerly passed off, and they introduced testimony tending to show this fact. But the plaintiff introduced testimony to the contrary. The evidence was entirely contradictory as to both said alleged outlets.</p> <p>The defendants contended that the . plaintiff could not maintain this action, if the jury believed that the water passed over or through the ridge, which divides the parties’ lands, only when the water was high, and that there was no current of water, or any standing water there during a considerable part of the year; the plaintiff having alleged the obstruction of a brook as the cause of the injury to his land ; and they requested the judge so to instruct the jury. But the jury were instructed that if they were satisfied by the evidence that the water had been accustomed to drain off from the plaintiff’s land, upon the land of Allen Wolcott, in the spring and autumn, and at other times when the water was high, and the defendants had obstructed such passage of the water, to the plaintiff’s injury, then this action might be maintained, although there was no stream, within the channel of which the water regularly run. [See Ward v. Metcalfe, Clayt. R. 96.]</p> <p>A witness introduced by the defendants in testifying concerning the existence and condition of the outlet for water at the southwest part of the plaintiff’s land, stated that he had long known such outlet, and that from twenty-six to thirty years ago, he and another lad were engaged in damming up said outlet for the purpose of putting in a little water-wheel, and that Elisha Ashley (the plaintiff’s father) who then owned the land now belonging to the plaintiff, caught him and the other lad so damming up the water, and struck him (the witness) two blows with a cartwhip, both of which blows drew blood and left marks on his breast and arms which were there still, and which he could show. The defendants’ counsel asked the witness to show said marks to the jury; but the judge refused to allow the witness to show them. The verdict was for the plaintiff, and the defendants excepted to these rulings and instructions.</p>

<p>It is no defence to an action on a bond given under Eev. Sts. e. 49, § I, that no costs had been taxed and no process issued against the respondent in the original bastardy process, and that he had no property.</p>

This was an action of contract commenced April 16th, 1852, to recover the amount of a promissory note dated October 7th, 1851, and payable to the bearer by the 1st day of January, 1852.

<p>At the hearing before a sheriff’s jury, to assess damages to the petitioners’ land, caused by laying out a highway, the presiding officer admitted the testimony of several "witnesses as to their opinion of the comparative market value of the estate of the petitioners before and after the alteration. And also the testimony of one witness, that the alteration would enhance the value of the land considerably, if cut up into building lots. The petitioners objected to all this evidence.</p> <p>The respondents also offered in evidence the record of the proceedings of the county commissioners in laying out the highway. The petitioners objected, unless the whole was read, and the presiding officer admitted the whole record, including the adjudication, the laying out, and the assessment of damages.</p> <p>The petitioners requested that the jury be instructed that the benefits arising from the alteration must be certain and not contingent, and on this point they were instructed that there must be a reasonable certainty that the estate would be benefited by the proposed alteration, and that evidence that the estate would be increased in value for building lots, was one means of proving the benefit arising from the alteration, but in estimating the benefits, they were not to inquire how much the owners might realize by speculation in building lots, as if such must be the future use of the property; but that they might adopt as a guide for their consideration, how fai the alteration of the highway would add value to the property by using it hereafter as men of common and ordinary prudence, economy, and wisdom would improve the advantages to be derived from such alteration. To these instructions the petitioners excepted, and in the court of common pleas objected to the acceptance of the verdict of the jury, but Wells, C. J. ordered the same to be affirmed, and the petitioners excepted to such decision.</p>

Assumpsit for work and labor performed for the defendants, in their paper mills. At the trial, in the court of common pleas, before Byington, J. the plaintiff offered the deposition of James H. Walbridge, another laborer in the same mills, as follows: “ Mr. Perry, the superintendent of the mills, having charge of the hiring of hands, and running the mill, came to me and asked me if I would run one of the machines. I asked him what he intended to pay on the machines.

<p>if acts of ownership and possession relied npon as proof of a title by disseisin are not of a nature to work a disseisin, they cannot be made more effectual for that purpose, by proof that they were known and not objected to by the legal owner.</p>

<p>In an action of replevin, the question being whether the plaintiff’s title was real or only colorable, evidence is admissible that the .plaintiff paid for the goods, although the payment was after action brought.</p> <p>In such a trial the plaintiff may show in support of his title that he assumed liabilities concerning the property of such a character as might naturally be expected of a bona Jide holder.</p>

<p>Debt on a judgment recovered in June, 1840. The defence was a discharge under the United States bankrupt act of 1841, dated September 15th, 1843, the defendant’s petition having been presented March 7th, 1842. The plaintiff alleged that said discharge was void, “ because said Moore was guilty of fraud and wilful concealment of his property, viz: a note against Nathaniel. Eager, for thirty dollars, which he conveyed away and concealed, to defraud the plaintiff; and also that he preferred one Thomas Moore, another creditor, by conveying to him said note, and reserving money to pay said Thomas Moore; and further that the defendant did not return upon his schedule of property in bankruptcy, a claim of thirty dollars which he had against Thomas Moore, but collected the same for his own benefit.”</p> <p>At the trial in the court of common pleas, before Byington, J. the plaintiff offered evidence that the defendant shortly before he went into bankruptcy, held a note of about thirty dollars against said Eager, dated in December, 1841, which the defendant withheld from his creditors, and converted by him for his own benefit, or transferred by him to one of his creditors, giving such creditor a preference.</p> <p>The plaintiff also offered evidence tending to show that the defendant in 1837, said he did not intend to pay the plaintiff’s debt which he then held against him, but would cheat him out of it; that the defendant the same year by a bill of sale, sold and delivered certain personal property to one Sylvester Belden, Jr.; that said property was afterwards attached by the plaintiff as the property of the defendant; that the defendant encouraged said Belden to sue the plaintiff for taking said property, and promised to aid him with money to carry on the suit; that the suit was prosecuted by Belden for the benefit of the defendant, and he recovered judgment against Cook, and received from him the amount of the said judgment, and accounted to the defendant for it, and in a reference of this claim of defendant and other claims between Belden and the defendant, in January, 1842, a balance was found due to the-defendant, and he took the Eager note in payment of said balance.</p> <p>The plaintiff offered the evidence for the purpose of showing when and how the defendant obtained title to the Eager note, and that it was his property, and to show under what circumstances he had first expressed an intention to cheat the plaintiff out of his debt. And the plaintiff offered further evidence that the defendant said that the rest of his debts, besides what he owed Cook, did not amount to $100, and he should pay them. A witness called by the plaintiff, testified that the defendant told him he should not sign over if it was not to get rid of Cook’s debt.</p> <p>To all the foregoing evidence the defendant objected as not contained in any specification of fraud filed by the plaintiff, and as having no tendency to prove any fraudulent act specified. The objections were overruled and the evidence admitted by the presiding judge.</p> <p>It appeared by the schedule of the defendant, returned by him in bankruptcy, that there were two notes returned as his property: one against Daniel Moore, and one against Albert Henry, being the only debts so returned by said Moore. The plaintiff offered witnesses to prove that said Moore and Henry were irresponsible men, and that said notes were of no value, and that the defendant so informed his assignee. The defendant objected to the evidence, but the objection was overruled, and the evidence admitted.</p> <p>The defendant requested the presiding judge to instruct the jury that no evidence offered by the plaintiff to prove an intent on the part of the defendant to defraud him or other creditors was to be considered by them, unless it was proved to their satisfaction that at the time he had such intent, he intended to defraud them by his proceedings under the bankrupt law. The judge declined so to instruct the jury, but did instruct them that the question for them to determine was, whether at the time the defendant made the preferences or concealment of property, as the evidence tended to show he did, shortly before he went into bankruptcy, he did so in fraud of the bankrupt law, by preferring creditors, contrary to said law, or wilfully concealing his property for his own use: that proof of an intent to deprive or defraud the plaintiff of his debt, prior to the passage of the bankrupt law, would not affect or avoid his discharge; but as there was evidence tending to show that the defendant declared his purpose of going into bankruptcy was to defraud the plaintiff of his debt, and fuat for the purpose of showing such was his intent, the plaintiff might show a similar intent of the defendant in relation to the same debt due the plaintiff prior to the passage of said law.</p> <p>A verdict having been returned for the plaintiff the defendant excepted to these instructions.</p>

<p>In this commonwealth an action of replevin mil not lie for goods of less value than twenty dollars, and such action will be dismissed for want of jurisdiction, eveu after verdict.</p>

<p>This was an action of tort, alleging in substance that the defendants, in excavating a cellar on their own land, opened a covered ditch or drain to a stream of water on the easterly side of Main street, in Springfield, and negligently left said ditch or drain open and unobstructed, so that the water flowed from said stream up said ditch or drain, and into and across the defendants’ cellar, thence through an adjoining cellar into the basement of the plaintiffs’ store, to the injury of the same, and the goods therein.</p> <p>At the trial before Metcalf,, J. it appeared that on the 25tb of March, 1852, John Mills leased to the plaintiffs the southerly part of a lot on the west side of Main street, Springfield, to erect a dry goods store upon. Soon afterwards he leased to Hutchinson and company the middle part of the lot. Both lessees proceeded to erect stores, and about the 1st of October the plaintiffs filled their store, including the basement, with dry goods, and opened it for trade. On the 13th of November, Mills contracted to sell to the defendants a lot adjoining the lot of Hutchinson and company, on the north, and on the 15th of November gave them a warranty deed of the same. The defendants, on the same day, employed men, and commenced clearing out the earth and rubbish, and laying the foundation of a store. On the east side of Main street, under the sidewalk, is the town brook, so called, running through a channel, walled up and covered. And from the northerly part of the aforesaid lot was a drain running into the town brook. At the point where it entered said lot, it was so near to a level with the brook that a slight rise of water would cause it to set back upon the lot, unless the drain was kept closed. It became necessary for the defendants to break down the drain in order to lay their foundation; and both before and after they did this, they were cautioned that it would be necessary to close it again to prevent the water from flowing back into the cellar. After leaving it open several days, they caused it to be closed on the 26th, by filling it with brick, mortar, and sand. But it had already begun to rain, and continued to rain through the day and night; and in the course of the night the water broke through the obstructions, filled the cellar, and from thence flowed through the cellar of Hutchinson and company, and into the basement of the plaintiffs’ store, and did great damage to the plaintiffs building and stock of goods. The plaintiffs contended that, though the defendants had a right to suffer the water to flow back into their own grounds, yet they had no right to leave their cellar in such condition that the water would escape from theirs into the plaintiffs’ premises, and that it was negligence to do so. But the judge instructed the jury that the defendants were bound to use only ordinary care in stopping the drain, and that if they used such care, that is, such care and caution as men of common prudence usually exercise in the management of their own concerns, they were not liable to the plaintiffs for the injury occasioned to them. The jury found a verdict for the defendants ; and the plaintiffs excepted to the foregoing ruling and instruction.</p>

<p>A was in possession of certain premises, as tenant at will of B. who claimed title under C. D. levied an execution against C. on the premises, alleging that the deed to B. was void; Held, that the process of forcible entry and detainer under Bev. Sts. c. 104, would not lie by D. against A., the question of title not having been determined between D. and B.</p>

<p>This was an action of tort for the conversion oí a quantity of brick, upon which the plaintiff claimed a lien for theii manufacture. It was submitted to this court on an agreed statement of the evidence, of which the most material portion was as follows: The defendants, a corporation, contracted in writing with Charles Stearns to erect a brick factory on their land at Indian Orchard, and to furnish all the materials for the same, to be completed January 1st, 1852.</p> <p>The defendants also stipulated " that during the continuance of said contract, said Stearns might use sufficient ground in some convenient place or places, for a brickyard and lumber-yard without charge, and also for one year after the expiration of the contract at a moderate rent; said Stearns to remove all rubbish and leave the ground in as good order as when he takes possession of it.” Stearns selected a place on the defendant’s land for a brickyard, and employed the plaintiff to make and burn on said lot two millions of brick, on or before November 1st, 1851, Stearns to furnish all the materials and apparatus necessary for making the same, and the plaintiff to perform all the labor. A complete understanding of the case requires this contract to be set out in full.* In pursuance of this contract, the plaintiff finished burning the brick on the 6th September, 1851, and his foreman, Mr. Cowles, remained on the yard and continued to count out brick for Stearns until September 13th, 1851, when he notified the latter that he had other work to do elsewhere, and could'not count out any more, and that Stearns must do it for himself; that after that time Stearns’s men did go on and count out the brick. The. defendants admitted that on the 20th September, 1851, by virtue of a bill of sale of that date, and delivery from said Stearns to them, they took 1.594.876 of the brick so manufactured by the plaintiff, which was the conversion complained of.</p> <p>A witness for the plaintiff testified that he was present on 24th September, 1851, when the plaintiff demanded of said Stearns a settlement for making the brick, and forbade his moving them till he was paid, and also on the same day when the plaintiff notified the defendants’ agent not to take the brick. The defendants proceeded to take the brick after said notice.</p> <p>Cowles, the plaintiff’s foreman, also testified that he was directed by the plaintiff not to open another kiln after the first, until some arrangement was made about the pay; that Stearns’s agents requested him a number of times towards the close of his stay on the yard, to open the second kiln, but that he refused, alleging the plaintiff’s instructions. He also stated that he continued to oversee the plaintiff’s work on the yard till September 13th, 1851, when he left; that he had charge of the hands, of whom there were from fifteen to twenty, while making the brick, that he never delivered any of the brick to Stearns or his agents, or had any orders to do so, except to count out the brick which they drew away while he was at work there ; and that he had no other authority than to count out the brick as the teams came there to take them; that the plaintiff himself was only occasionally on the yard, as he lived at a distance in another town.</p> <p>The defendants proved by one Putnam, foreman for Stearns, that Stearns’s workmen were at work on the brickyard during the whole summer, until September, enlarging and filling up the ground; that they were so at work while the plaintiff was striking the brick, and that the kiln ground was not prepared when the plaintiff began making the brick, but was provided by Stearns as the plaintiff needed it; that the plaintiff and his hands, while at work on the yard, occupied ground enough to burn the brick on. The court were to render the proper judgment.</p>

<p>This was a petition to this court under St. 1838, c. 163, § 18. The whole case sufficiently appears in the opinion of the court.</p>

<p>A mechanic’s lien under Eev. Sts. c. 117, is lost if the contract is subsequently modified and the alteration is not recorded, or if the petition to enforce it is not brought within six months from the time the last instalment according to the original contract becomes due and payable.</p>

<p>In an action for slander, not made in direct terms, but by expressions, gestures, and intonations of voice, it is competent for witnesses who heard the expressions, to state what they understood the defendant to mean by them, and to whom he intended to apply them.</p> <p>To impeach the plaintiff’s character in mitigation of damages in an action of slander, the inquiry should be confined to the plaintiff’s general character for integrity and moral worth, or to conduct similar in character to that with which he was charged by the defendant.</p> <p>A witness in an action of slander, who has stated that the plaintiff’s character fat moral worth is bad, may be asked, on cross-examination, what immorality is imputed to him.</p> <p>A witness called by the plaintiff in an action of slander, in support of the plaintiff ’a general character, stated that some spoke very ill and some very well of it. Held, that the presiding judge might permit the plaintiff to ask the witness in what particulars some people spoke against him.</p> <p>A witness called to impeach the plaintiff’s character in an action of slander, stated on cross-examination that it was generally reported that the plaintiff had not treated his family well, and had turned his daughters out of doors. Held, that the plaintiff could not ask his son, living in his family, whether he ever heal’d that the plaintiff had so treated his daughters, it being immaterial.</p> <p>The plaintiff, in an action of slander, cannot show, in order to enhance the damages, that it was currently reported in the neighborhood that the defendant had charged the plaintiff with the crime alleged in the declaration.</p>

<p>4 justice of the peace in and for one county has no authority to direct a warrant under Rev. Sts. c. 49, to a constable of a town in another county, although the respondent resides there: and an arrest-by such constable upon such warrant being illegal, a promise of marriage made by the respondent while under such arrest is void.</p> <p>Not only is a direct promise void, if made under duress and an illegal arrest, but so is an admission thus made of a former promise, and the jury cannot inquire whether such admission was made because it was true, or because the party was under duress.</p>

<p>Under St. 1852, c.3I2, § 60, a person interested in the suit, if not a party to the record, is a competent witness, although he ought to have been joined in the suit with the party calling him.</p>

<p>This was an action upon two promissory notes, signed by the defendant,of Cummington, in the county of Hampshire, payable to S. D. Reed, or bearer, and held by the plaintiff. At the trial, in the court of common pleas, before Merrick, J. it appeared that after the defendant received notice that said notes had been transferred to the plaintiff, he went into Vermont, where the plaintiff and said S. D. Reed resided, for the purpose and with the intention of being there sued as trustee of said S. D. Reed in an action brought by Willard Conkey. After said action was entered in court in Vermont, the present defendant appeared and answered that the notes were due from him, and made no objection to the jurisdiction of the court, although by the Rev. Sts. of Vermont, c. 29, § 46, no person could be summoned as a trustee, unless at the time of the service of the writ, he resided in the state. The present plaintiff also appeared in the action of Conkey v. 8. D. Reed and Trustee, and claimed the funds in the hands of said trustee (the present defendant) as belonging to him, but after a full hearing in that court, the transfer of said notes to the present plaintiff was adjudged fraudulent and void, and the present defendant was adjudged a trustee for the full amount of said notes, and afterwards paid the same to the plaintiff in that action, on execution. This payment was relied upon as a defence to this action, and the presiding judge so ruled. The verdict being for the defendant, the plaintiff excepted to the ruling.</p> <p>The arguments were at Boston, in January, 1854.</p>

<p>A person accustomed to raise cattle and estimate theirweight, and test his estimate by comparing it with the bills of their weight, is a competent witness to give his opinion of the weight of cattle he has himself raised.</p>

<p>This was an action of contract, commenced February 20th, 1852, by one tenant in common against his cotenant, to recover one half of certain moneys expended by the plaintiff for the joint benefit of the parties, and also one half of the amount received by the defendant, as the rents, profits, and sales of their joint estate.</p> <p>From the report of the auditor, to whom the case was referred, it appeared that on the 26th June, 1839, the par-ties purchased a large farm for $8,497.12, then being under mortgages to the amount of $4,664, which they jointly assumed to pay. It was verbally agreed between them to sell such part of the farm as might be- necessary to extinguish the mortgages and repay them their advances for the purchase, and the defendant was to have charge of the sales and the application of the funds received therefrom, and from the rents. Several sales were made, and large sums of money received by the defendant therefor, mostly in the years 1840 and 1841, and a comparatively small amount was received by the plaintiff. In the years 1845, 1846, and 1847, the plaintiff was compelled to pay and did pay, at different times and in different sums, over $3,000 more than he had received, for the discharge of the original mortgages, and in settlement of the covenants of warranty contained in the joint deeds of the parties of the land held in common; the first item of which payment was $132.50, paid October 13th, 1845, and the defendant, besides his other grounds of defence, relied upon the statute of limitations as a bar to this item, the action not having been commenced within six years. It also appeared that the defendant had, in various sales and rents of the estate, received several thousand dollars more than he had paid out, the greater part of which was in his hands when the plaintiff was compelled to discharge the mortgages from his own funds. There were no outstanding liabilities growing out of the original purchase, except between the plaintiff and the defendant; the incumbrances having all been discharged by the plaintiff. About one hundred and seventy acres of the original purchase remained still undisposed of and held in common. Upon these facts, and others not material, the parties agreed that this court should render such judgment as the law requires. The case was argued in Boston in January, 1854.</p>

This was an action of trespass for a false imprisonment, it appeared at the trial in the court of common pleas, that on the 10th day of July, 1850, the plaintiff, a minor, was Brought before the defendant, a trial justice for the county of Worcester, on a warrant issued by Francis Dean, Jr. a justice of the peace fm said county, on a charge of assault and battery.

<p>A policy of insurance stipulated that “ if the insured should effect subsequent insurance and should not with all reasonable diligence give notice thereof to the company and have the same indorsed on the policy, or otherwise acknowledged by them in writing, the policy should cease and be of no further effect.” The insured effected subsequent insurance, and exhibited a memorandum thereof to the agent of the company authorized to receive notices of subsequent insurances, and to enter them on his book of policies. The agent took the memorandum to make the entry thereof, and returned it to the assured, saying that he had entered it and that it would be the same as if indorsed on the policy. In fact the agent did not enter on his book all the subsequent insurances contained in said memorandum. Held, that the stipulation in the original policy was not complied with, and that the policy was void.</p>

This was an action against the defendant as indorser of the following note: “ $45. Worcester, September 22d, 1849. Four months after date, I promise to pay to the order of Justin Howard, forty-five dollars, value received, with interest. E W. Fuller. The defendant pleaded the general issue, and denied that he had due notice of the nonpayment of said note.

<p>On a policy of insurance issued to “A. & Co.,” a recovery cannot be had by A. and B., tenants in common of the property insured, although B. is heir at law of the other partner in the firm of “ A. & Co.,” who was dead at the issuing of the policy.</p>

<p>This action of contract was brought October 29th, 1851, to recover the amount of two promissory notes: one of $100 on demand with interest, dated January 25th, 1851, originally given by the defendants to Ashbell Goddard, and by him indorsed to the plaintiffs without recourse; the other for $80, on demand with interest, dated February 5th, 1851, originally given by the defendants to Peter Woodbury and by him indorsed to the plaintiffs without recourse. At the trial in the court of common pleas, before Merrick, J. the signatures of the defendants, and of the respective indorsers were admitted. The defendants denied “ that the plaintiffs were the just and legal holders of the notes, or that they have any right to maintain this action thereon, because the plaintiffs having no previous interest in said notes or either of them, did procure and obtain said notes of the respective payees thereof, wit h the unlawful and malicious design to commence and prosecute an action thereon for the purpose of injuring, harassing, and oppressing the defendants; and that this action was commenced and is prosecuted for the purpose of carrying into effect the unlawful and malicious design aforesaid,” and they offered to prove by competent testimony that the plaintiffs, in consequence of some imaginary injury inflicted upon them by the defendants, entertaining vindictive feelings against them and with a malicious design to injure, harass, and oppress the defendants, and solely for that purpose, went and procured by paying the full value therefor, the notes declared on in this st lit, which were held for a valuable consideration by the indorsers, for the express and sole purpose of commencing a suit thereon, and did forthwith commence this suit, and that for the same purpose and design the plaintiffs endeavored to obtain and did procure by purchase, one other demand held by another individual against the defendants, and forthwith at the same time this suit was commenced said plaintiffs commenced a suit against these defendants upon said other demand for the express and sole purpose of breaking down, injuring, and oppressing these defendants, which demand the defendants had since paid. And the defendants further offered to prove all the facts set forth in their answer. But the presiding judge rejected the evidence, and ruled that if all the facts were proved as proposed by the defendants it would furnish no defence to this suit, whereupon the defendants, submitted to a verdict for the plaintiffs, and excepted to the ruling.</p>

<p>An action maybe maintained here on a judgment recovered in another state, where, . apparently by the record of the former suit, the court had jurisdiction of the defendant’s person, unless the defendant offers some evidence of a want of such jurisdiction.</p> <p>A recital in the original writ that the defendant was an “ absent and absconding debtor,” being a form prescribed by law in the other state, in case of trustee process, whether the defendant was within or without the state, does not show that the court had not jurisdiction of the defendant’s person.</p>

<p>This was an action of contract on a policy of insurance dated August 30th, 1851, by which the defendants, a company incorporated by the laws of this commonwealth, doing business in Boston, insured the property of the plaintiff therein mentioned, viz: $500 on his factory, water-wheel, and fixtures; $600 on his movable machinery, small utensils, and apparatus contained in said factory, against losses by fire for the term of one year. The case was submitted to this court on the following statement of facts: The property insured was destroyed by fire on the 22d day of October, 1851. In the plaintiff’s application, the company declared that “ plain and definite answers are expected to each of the following interrogatories; ” among which was the following, “ State whether or not incumbered, to whom, and to what amount; ” to which the plaintiff answered in writing, “ mortgaged for about $4,000 to Gen. C. T. James.” After the several interrogatories and answers, occurs the following clause in said application : “And the said applicant hereby covenants and agrees to and with the said company that the foregoing is a just and true exposition of all the facts and circumstances in regard to the condition, situation, value, and risk of the property to be insured, and in case of insurance, holds himself bound by the act of incorporation and by-laws of said company, and that the company shall not be bound by any statement made which is not contained in the application, unless the same is assented to by them in writing.” Among the by-laws of the company, printed in the plaintiff’s policy and made a part thereof, is the following: “ K the representations made in the application for insurance do not contain a just, full, and true exposition of aE the required facts and circumstances in regard to the title, condition, situation, value, and risk of the property insured, the policy shaE be void.” At the date of the application and policy, the property insured was incumbered by a mortgage to C. T. James, dated February 6th, 1851, to secure the sum of $3,600, which, with the interest from its date, remained due and unpaid, and by a mortgage to Joseph Perkins, not including the movable machinery, dated October 20th, 1848, to secure the sum of $1,100, which, with the interest from October 20th, 1850, remained due and unpaid. The mortgage of said James was not recorded in the office of the town clerk of Dudley, where said property was situated, and where the mortgagor resided at the time the mortgage was given. There was but one premium note for the whole insurance, and a lien was secured by the poEcy upon the whole property insured to secure the payment of assessments. It is to be taken as a fact, that the misrepresentations, if such they shaE be held, were not made wilfuEy by the plaintiff, with design to deceive or defraud the defendants. It is further e agreed that the said James, at the request of the plaintiff, was negotiating with said Perkins, for the purchase of his mortgage, at the time the appEcation for insurance was made. If the court shaE be of opinion that the facts above set forth constitute a defence to the whole claim of the plaintiff, judgment is to be rendered for the defendants. If the court shall be of opinion that the plaintiff is entitled to recover for the whole or any part of his claim, the case is to be sent to a jury.</p>

This was an action of tort, for the conversion of personal property specified in the declaration. • The plaintiff’s title was denied.

<p>These actions were brought to recover of the defendants money alleged to have been laid out and expended by the plaintiffs for the use of the defendants, and at their request The plaintiffs sought to recover the amount of the first instalments alleged to be due on the agreement following, signed by the defendants, with others, and it was not contended by the plaintiffs that the defendants were liable in any other way than under said agreement: “ We, the undersigned, agree to pay to the treasurer of the Worcester Medical Institution the sum set against our separate names, for the purpose of building a medical college for said institution, to be located and built upón Union Hill, so called, in Worcester, in the County of Worcester, one third to be paid when the walls shall be completed, one third when the roof shall be completed and the building enclosed in, and the other third when the building shall be completed; the building to be such an one as is referred to in the plan and specifications to be made by Elbridge Boyden, and said specifications are to be completed before the contracts of subscriptions are delivered. When the contract shall be closed between the agent of said institution and the builder or builders of said college, we agree that our subscriptions may be converted into notes, payable upon the contingencies above stated.—Worcester, July 19th, 1850.”</p> <p>At the trial, in the court of common pleas, before Merrick, J. the plaintiffs introduced their act of incorporation and the records of their proceedings, and it appeared from them, that the act of incorporation was passed March 17th, 1849, and that the meeting of the corporators named in said act was held on the 27th day of the same March, at which meeting twelve other individuals were elected members of the corporation, and the organization of said corporation completed, the new members acting with those named in the act, by the choice of the president, secretary, treasurer, and other officers, and that no other meeting had been held for the special purpose of further perfecting their organization. It not appearing by the records or any written evidence that notice of the first meeting had been given by the corporators in pursuance of the Rev. Sts. c. 44, § 3, the defendants objected that paroi evidence was not admissible for the purpose of showing said notice had been given; but the judge overruled the objection, and Calvin Newton, one of the corporators. being called, testified that eight or ten days before said meeting he gave written notice thereof according to law, to the other corporators, and that he did not preserve any copy of said notice. The defendants then contended that the plaintiffs could not maintain any action, because their act of incorporation did not take effect till April 16th, 1819, and there had never been any legal organization of said corporation under said act, but the judge ruled that if the plaintiffs subsequently acted as a corporation, it was sufficient to enable them to prosecute an action in the corporate name.</p> <p>For the purpose of proving that the contract, referred to in the subscription paper, had been closed between the plaintiffs and the builder of the college, the plaintiffs introduced a paper entitled “ Memorandum of a contract, made and entered into this 1st day of September, 1850, by and between William T. Merrifield, of Worcester, in the county of Worcester, gentleman, of the first part, and E. M. Parritt, John A. Andrews, Charles Ballard, all of Worcester, in said county of Worcester, and William Johnson, of Boston, in the county of Suffolk, a building committee of the second part,” and signed, “ William T. Merrifield, E. Morgan Parritt, John A. Andrews, Charles Ballard, William Johnson.”</p> <p>It was proved that under this contract, and a subsequent one between the same parties, the building had been erected. The defendants contended that this was not a contract between the plaintiffs and the builder of the college, and that the plaintiffs could not recover for money laid out and expended, but the judge overruled the objections.</p> <p>Elbridge Boyden, the architect mentioned in said contract, called by the plaintiffs, having testified that the walls of the building were up and ready for the roof at the time these actions were brought, and that the walls, which were of brick, were originally designed to be covered with mastic, and were built with reference to receiving said covering, and that said mastic had not been put on, the defendants contended that the walls were not completed until said mastic had been put on, and that this was a question of fact for the jury, but the judge ruled that if the walls were so far completed as to receive the roof, it was a sufficient completion of the walls within the meaning of the contract, to entitle the plaintiffs to recover the first instalment.</p> <p>The defendants contended that the contract had not been closed with a builder for the completion of the building; and that the plans and specifications were not finished at the time of the delivery of the subscription paper to the plaintiffs. These two questions were submitted to the jury with directions to find a verdict for the plaintiffs, if they found that prior to the delivery of the subscription paper the contract had been closed for the erecting of said building, and that the plans and specifications had been completed.</p> <p>The jury having returned a verdict for the plaintiffs, the defendants excepted to the foregoing rulings.</p>

<p>Writ of entry. From an agreed statement of facts, it appeared that the premises were sold at auction, under Rev. Sts. c. 8, § 28, to George Robinson, on the 27th day of June, 1840, for nonpayment of taxes assessed thereon against the demandant, the former owner. The demandant duly tendered said George Robinson the amount of the purchase-money, and all expenses, in pursuance of Rev. Sts. c. 8, § 32, within two years from the time of said auction sale; but on the 3d of August, 1852, said Robinson conveyed the premises to the tenant, who was in possession when this action was commenced, September 8th, 1852. The only question was, whether a writ of entry would lie, or whether the only remedy was by a bill in equity, under St. 1849, c. 213.</p>

<p>This was an action to recover of the defendants a certain sum expended for the support of one Arms, a pauper, whose derivative settlement was from Lathrop Arms, whose settlement was averred by the plaintiffs to be in the defendant town. At the trial in the court of common pleas, the plaintiffs having made out a primd facie case, by showing that at a certain time said Lathrop acquired a settlement in the defendant town, the defendants offered to show, and introduced evidence, that said Lathrop subsequently removed to Brimfield, where he resided seven years, during six of which he hired and lived upon a farm belonging to one Bliss; that he hired the same by a paroi contract at first for three years, and at the close of that term, and each succeeding year, he hired the same for the succeeding year by paroi, no written lease having been made; that the same was set to him in the valuation of the estates in Brim-field each year at from $1,200 to $1,350; that the taxes thereon were set to him and he paid the same six years successively of the seven.</p> <p>The defendants contended that he thereby acquired a settlement in Brimfield; but Merrick, J. ruled otherwise, and the jury having returned a verdict for the plaintiffs, the defendants excepted.</p>

<p>In the absence of any by-law or vote of a town regulating the length of notice for town meetings, seven days’ notice is a reasonable time, and is sufficient to render valid a meeting held upon such notice.</p> <p>The return of a constable upon a warrant for a town meeting that he had “ posted the within warrant, according to law,” is sufficient, without specifying the manner of posting.</p> <p>An article in a warrant calling a town meeting to hear the report of the selectmen in relation to the laying out of a road, (describing it,) “ or act any thing relating to the same,” authorizes the town to accept the report laying out the way, and to appoint a committee to construct it.</p>

<p>The defendant was administrator of one of two mortgagees of real estate, on which was a mill and a reservoir dam. While the premises were in possession of certain persons under license from the other mortgagee, who had subsequently quit-claimed all his interest therein to the defendant, the dam broke away, as the plaintiffs alleged, because of its original insufficiency and subsequent want of repair, and carried away the plaintiffs’ bridges. Held, that if so, the defendant was not liable for the loss, not being in possession by himself, nor by his tenants</p>

<p>Magistrates have no jurisdiction to discharge a poor debtor under Rev. Sts. c. 98, unless such debtor in his application represents in substance that he is unable to pay the debt upon which he is committed.</p>

This action, like the preceding, was on a jail bond, dated April 2d, 1852. Several objections were specified to the validity of the discharge of the principal debtor, which it became unnecessary to report. The representation by the jailer to the magistrates on behalf of the debtor, was in the same form as in Webster v. French, ante, 304.

<p>This was a petition to enforce a mechanic’s lien nnder St. 1851, c. 343, in the following form: “ The petition of James W. Simpson, of Charlestown, in said county, carpenter, humbly shows that by the request and at the instance of William Bragdon, of said Charlestown, and under his direction and supervision, and by virtue of a contract with him, the said petitioner actually performed labor in erecting three brick dwelling-houses, each two stories and one half high, situated -on the corner of Bunker Hill and Linden streets, in said Charlestown; that said houses are situated on a lot of land extending eighty-four feet on Bunker Hill street, as aforesaid, and seventy-five feet more or less on Linden street, as aforesaid; that said labor was by your petitioner performed by virtue of his said contract and agreement with said Bragdon, said Bragdon being the contractor for building said houses, and the supposed owner thereof; that said labor so performed was reasonably worth two dollars per day, and that your petitioner ought to receive that rate of compensation therefor; that said labor was performed by your petitioner as a carpenter in erecting said houses, and that he actually and personally labored thereon in that capacity, one hundred and twenty-one days between the 26th day of August, 1851, and the 13th day of January, 1852; that your petitioner has been paid the sum of $125, and no more for the labor so performed, and that there now remains justly due to your petitioner, a demand of $117 after all just credit given, which is to be a lien upon said property.</p> <p>" And your petitioner farther avers that within sixty days after said labor was by him performed, he filed in the office of the registry of deeds for said Middlesex county, wherein the land lies, a certificate containing a just and true account of the demand justly due to your petitioner after all just credits given, pursuant to the statute in such case made and provided. Wherefore your petitioner humbly prays that the said premises may be sold, and the proceeds ‘of the sale be applied to the discharge of his said claim of $117, and all legal and necessary costs. James W. Simpson.”</p> <p>“ Specification of petitioner’s claim.—Three brick houses on the corner of Bunker Hill and Linden streets, to James W. Simpson, Dr.—To labor as a carpenter on said houses from August 26th, 1851, to January 13th, 1852, one hundred and twenty-one days, at $2.00 per day, $242.00. Credit, by cash, $125. Balance, $117.”</p> <p>The respondent, Willard Dalrymple, was the owner of the land upon which the buildings were erected, and the owner of the buildings also. William Bragdon was the contractor to erect the houses, and Simpson, the petitioner, was employed by him at daily wages.</p> <p>To this petition there was a demurrer, alleging “ that the said petition contains no such statement of the contract alleged to have been made between the petitioner and said Bragdon, as is required by law. 2. That the description of the premises as set forth in said petition, is uncertain, indefinite, and wholly insufficient. 3. That said Bragdon with whom the petitioner is alleged to have contracted, is neither alleged to be the owner of said premises, nor to have contracted with the owner for building the houses described in said petition, or for the purchase of the land for the purpose of building thereon. 4. That the said petition does not set forth that the proper preliminary certificate was filed in the registry of deeds for said county.”</p>

<p>This was an action of contract for goods sold and delivered, the only defence to which was a discharge in insolvency under St. 1838, c. 163, and the acts in addition thereto, dated July 13th, 1852. The plaintiffs sought to impeach the discharge by proof of an unlawful preference by the defendants of one of their creditors, and at the trial in the court of common pleas, before Wells, C. J. it appeared that about the 5th of December, 1851, the defendants borrowed $300 of Henry Reed, giving him a note payable to William W. Reed, from whom the money had been obtained by said Henry. The defendants at that time promised to give security for said note, if at any time it should be requested, but none was then given. On the 18th of the same December, the defendants obtained $315 more of said Henry Reed, and the defendants then agreed to give security for the whole $615, the former note of $300 was given up, and a new note given for the whole amount dated as of the former transaction. Two days afterwards the defendants pledged goods of the value of $500 to secure said note to the said William W. Reed, who retained the same until the second meeting of the creditors of the defendants, when they were surrendered to the assignee and sold for the general benefit of the creditors, said William W. Reed proving his claim and receiving a dividend pro rata with other creditors. There was also evidence tending to show that at the time, the defendants secured said William W. Reed, they were insolvent in fact, and had no reasonable cause to believe themselves solvent. The petition in insolvency was dated January 12th, 1852. The plaintiffs proved their debt and received a dividend out of the estate. Upon these facts and others not material to be reported, the presiding judge ruled “ that if at the time a loan is made or debt contracted, there is an absoldte agreement that the same shall be secured, and security is afterwards given in performance of such agreement, this would not be such a security of a preexisting debt as would invalidate a discharge. And if a loan is contracted for, to be made by instalments, and there is an absolute agreement made to secure the whole of the same, and no security is given until the last instalment is advanced, and then the whole debt is seemed in compliance with the terms of the original agreement, the giving of such security would not invalidate a discharge. But if, at the time the debt is contracted, there is no absolute agreement to give security, but the debtor promises that he will give security if he shall be requested to do so, the seeming of such a debt upon request, would be within the statute and would invalidate a discharge.”</p> <p>The presiding judge also ruled that if security were given upon the note' generally, it would invalidate the discharge. But if the security was agreed to apply to the last loan only, it would not invalidate the discharge, although a note had been taken for that loan and a preexisting debt combined. And that as the property was not given up until after the deed of assignment was passed, this would not purge the illegality of the original transaction, although done in pursuance of a promise and consent of the defendants and pledgee, made before the application for the benefit of the insolvent laws. The verdict being for the plaintiffs, the defendants excepted to the foregoing rulings.</p>

<p>One partner of a firm, even after dissolution, may indorse the note of the firm payable to himself, given before dissolution.</p>

<p>An action will not lie against a justice of the peace for issuing a writ, in favor ot a third person, upon a false claim against the plaintiff, and secreting and destroying the writ after service thereof, and refusing to enter it, or to allow the defendant therein his costs.</p>

To an action of assumpsit, the defendant filed in set-off a claim for $150, one half the amount paid by him on a note, of which the following is a copy: “ Carlisle, November 15th, 1850. In ninety days, for value received, we jointly and . severally promise to pay B. F. Heald, or order, $300. Abel L. Davis, Bradford Heald.” It was admitted that the plaintiff and defendant signed said note, and that it was given for a valuable consideration.

From the auditor’s report, to whom this case was referred, it appeared that the plaintiff delivered a part of the items of his account, amounting to $36.20, upon the following receipt:— “ Littleton, April 11th, 1845.

<p>No recovery can he had for liquors sold in this commonwealth, the vendor knowing that they were to be retailed here contrary to St. 1852, c. 322, and also contriving to aid the purchaser so to retail the liquors as to evade the penalties of that statute.</p>

This was an action upon a policy of insurance issued by the defendants to the plaintiff upon “ goods running from $2,000 to $3,000 in value, his own, or held by him for others on commission, provided that in case of loss the company will not be liable for more than three quarters of the cash value of the property insured at the time of the loss: ihe same being contained in a one story wooden building situated on the corner of Main and Warren streets, in Concord, as described…

<p>Assumpsit upon a promissory note, the execution of which was not denied, but the defendant filed an account in set-off, and paid the balance into court. The presiding judge of the court of common pleas, Merrick, J. ruled, upon the facts proved at the trial, the most material of which are. stated in the opinion, that the account in set-off could not be allowed, and the verdict was for the plaintiff. The defendant alleged exceptions.</p>

<p>A grantee in a deed cannot maintain an action upon a covenanty of warranty therein, unless there has been an actual eviction, or what is, in law, equivalent thereto.</p> <p>A gran tee in a deed containing a covenant of warranty, who immediately mortgages back the estate to bis grantor, and afterwards gives him possession under the mortgage, becoming his tenant, cannot maintain an action on the covenant of warranty in the deed to himself, on account of an entry and ouster by one having an older and better title than bis grantor, because such entry and oustei is not' against his possession, but against that of his grantor and mortgagee.</p>

<p>Trover for a watch. At the trial in the court of common pleas, the plaintiff called a witness, from whose testimony it appeared that before and up to Saturday the 19th July, the watch in question was the property of the plaintiff; that on that day it was delivered by the plaintiff to Mrs. Manchester at a private interview between them at the house of the witness, and that on the Monday following, the 21st July, the plaintiff demanded the watch of Mrs. Manchester, and that she refused to deliver it to him. The defendants did not denj that the watch formerly belonged to the plaintiff; but contended, first, that at said interview said watch was given by the plaintiff to Mrs. Manchester; and, secondly, that he then and there let her have the possession of the watch with intent thereby to induce her to have criminal intercourse with him. The court instructed the jury that to maintain his action, the plaintiff must prove that he was the owner of the watch, and that at the time of the demand he had a right to its possession, and also that the defendants had converted it to their own use; and as to a conversion, it would be sufficient to show it, if the plaintiff, having a right to its possession, demanded the watch of Mrs. Manchester, and she refused to deliver it to him. The court also further instructed the jury that if the plaintiff gave the watch to Mrs. Manchester at said interview, it became her property, and the plaintiff could not thereafter-wards reclaim it or recover its value; and also, that if the plaintiff at said interview let Mrs. Manchester have the watch, to induce her thereby to have criminal intercourse with him, he could not thereafterwards insist upon its return, or maintain an action of trover against her for its value. And the court further instructed the jury in reference to the beforementioned circumstances and the evidence in the case, that if they were satisfied that the watch belonged to the plaintiff at the time of said private interview, and that he demanded it of Mrs. Manchester on the Monday following, and that she then refused to deliver it to him, he would be entitled to recover, unless the jury were convinced upon a consideration of the whole evidence before them, either that the plaintiff gave Mrs. Manchester the watch, or let her have the possession of it to induce her to have such criminal intercourse as aforesaid with him. The jury returned a verdict for the plaintiff. To this last ruling and instruction of the court, the defendants excepted They also moved for a new trial, the grounds of which sufficiently appear in the opinion of the court. This motion was overruled, and the defendants excepted to such ruling.</p>

<p>A salo of bank shares for nonpayment of town taxes, under 3t. 1846, ;. 195, must be within seven days after the seizure, according to Eev. Sts. c. 8, § 8, or the sale is void, and passes no title to the purchaser.</p> <p>If the return of the tax-warrant shows that such sale was made twenty days after seizure, the bank are not bound to issue a certificate of the shares to the purchaser, for the owner’s title is not devested.</p> <p>In such case the owner cannot maintain assumpsit against the town to recover the proceeds of the sale which have been paid into the town treasury.</p>

<p>The burden of proving that all the proceedings in insolvency, under which a defendant claims a discharge, were regular and conformable to the statute, is upon the defendant throughout the case, but the certificate of his discharge is prima facie evidence of such regularity.</p> <p>A commissioner of insolvency who as assignee of A., an insolvent debtor, has a claim against B., is so interested in B.’s estate that he has not jurisdiction to act as commissioner thereon.</p> <p>The refusal of a commissioner of insolvency to permit a creditor to examine an insolvent debtor will not avoid a discharge. The remedy, if am-, is by an application to the supreme court under St. 1838, c. 163, § 18.</p> <p>For the purpose of proving that the defendant has fraudulently conveyed his real estate to third nersons, copies of the deeds thereof from the registry are admissible, as the originals are-not prestmed tc be in the possession of either party to the suit</p>

Assumpsit for money had and received, and goods sold and delivered. The defendant filed his account in set-off for goods sold and delivered, upon which he claimed a balance due to him from the plaintiff.

<p>This was an action on the case, containing three counts, to which there was a general demurrer. In the court of common pleas the demurrer was overruled, and the defendant appealed to this court. The whole case appears in the opinion.</p>

<p>This action was commenced March 19th, 1852, on a promissory note, dated March 6th, 1851, payable to Hugh Cummiskey, and by him indorsed to the plaintiff. At the trial, in the court of common pleas, before Wells, C. J. the note was not produced, and the plaintiff, to account for its nonproduc’ion, offered evidence tending to prove that a short time before the note in suit became due, he gave it up, upon the delivery to him of another note for the same amount, payable March 7th, 1852, signed by Francis McQuaid, a brother of the defendant, indorsed by said Cummiskey, and that when he took this last-mentioned note, he fully believed that he was negotiating with the defendant personally, and that he took the note believing it to be the note of said defendant, and not of the said Francis, and as a renewal of the former note. The last-mentioned note was produced at the trial, and placed upon the files of the court for the benefit of whomsoever it might concern. There was no evidence of notice or demand given by the plaintiff to the defendant, before the commencement of this action.</p> <p>The defendant offered evidence tending to prove that the plaintiff knew, at the time he was taking the note of said Francis, and did not suppose he was taking the note of said Patrick. This evidence was left to the jury, with instructions to find for the defendant, unless the plaintiff satisfied them that the note of defendant was given up, and that of Francis taken in its place, through mistake and misapprehension on the part of plaintiff, or by means of fraud practised by defendant.</p> <p>The judge ruled that whether the jury found fraud or not on the part of defendant, or any other person acting in his behalf, it was not' necessary for the plaintiff to return said new note to the defendant or any other person, or give any notice to the plaintiff, or make any demand upon him before the commencement of this action, unless the defendant, being an innocent party, had sustained loss or damage by reason of the said mistake of the plaintiff and want of notice, in which case said loss or damage must be borne by the plaintiff.</p> <p>The jury returned a verdict for the plaintiff, and in answer to the inquiry of the presiding judge, said they did not find any fraud. The defendant excepted to the ruling.</p> <p>The case was determined at Boston, in January, 1854.</p>

<p>Assumpsit for goods sold and delivered, to which the defendants pleaded a discharge in insolvency under the laws of this commonwealth. The parties stated a case. The plaintiffs, citizens of New York, there sold to the defendants, of Lowell, in this county, the goods for which this action was commenced, on the 19th day of January, 1851. In the spring of that year the defendants petitioned for the benefit of the insolvent laws of this commonwealth, the first publication of notice being on the 19th of March, 1851, and the assignment being dated April 9th, 1851. At the first meeting the plaintiffs proved the claim now in suit, voted in the choice of assignee, and subsequently received a dividend from the estate, but did not assent to the insolvent’s discharge, which was granted at the third meeting of their creditors held October 6th, 1851. The parties agreed that the court might render the proper judgment upon the foregoing facts.</p>

This was an action for money had and received by the defendant to the plaintiff’s use, November 30th, 1852.

<p>This action was brought to recover back the amount of a poll tax, and a tax on personal property of the plaintiff assessed upon him in the year 1849, by the assessors of the town of Boxborough, and paid to the collector of said town under protest, to free the body of the plaintiff from arrest. At the trial in the court of common pleas, before Wells, C. J. it was not controverted that prior to the 1st day of April, 1849, the plaintiff had been an inhabitant of said town of Boxborough; that in October or November of that year, the plaintiff became and ever since has been an inhabitant of Lunenburg. The question in controversy was whether between April 2d, 1849, and the time when the plaintiff moved to Lunenburg, he had a domicil at Boxborough so as to be liable to taxation in that town. There was evidence tending to prove that prior to April 1st, 1849, the plaintiff contracted with Mr. Clark of Groton, to serve him as a tin peddler, from said 1st day of April, 1849, until he could no longer travel on wheels, in the fall or winter of that year; that on the 2d day of said April, being Monday, the plaintiff did commence serving said Clark, and, as he claimed, making said Clark’s house in Groton his home.</p> <p>The plaintiff introduced evidence tending to prove that when he left Boxborough in April, he did not intend to return there to reside any more, and did not do so. And the defendants introduced evidence tending to prove that the plaintiff engaged with said Clark merely temporarily, and on trial, and that after the plaintiff left Boxborough to serve said Clark, he still continued to have, and claimed his home in Boxborough. As evidence tending to prove that the plaintiff was not a resi dent of Boxborough on the 1st of May, 1849, he offered to prove that he was assessed a poll and personal property tax by the assessors of Groton, for that year; but the court ruled this evidence to be incompetent, unless he further proved that it was done at the plaintiff’s request. Whereupon the plaintiff asked the court to instruct the jury, that if the jury find that at the time the plaintiff left the town of Boxborough to go to Groton to work, he left with an intention of not returning to said Boxborough to live, and he did- not so return, that when he so left Boxborough, he ceased to be an inhabitant of said Boxborough, so as afterwards to be liable to taxation in said town; but the court refused so to rule, and did charge the jury “ That- to make a person liable to taxation he must have his home or domicil in the place where he is taxed; that domicil or home is distinguished from a temporary residence; whenever a domicil is once acquired, that remains until another is acquired, provided the party continues to reside in the commonwealth; a domicil may be acquired by a residence in a place with an intention of making it a permanent residence, or where one resides in a place with the intention of remaining there indefinitely, or until he shall change his mind. But if a person having acquired a domicil in this commonwealth, goes to reside in another place with the intention of not remaining there permanently, but of removing therefrom after a limited period, whether to return to his former home or to remove to another place, he does not thereby lose a domicil once acquired.” The verdict was for the defendants, and to these several rulings the plaintiff excepted.</p>

This was an action' for an assault and battery. At the trial in the court of common pleas, before Hoar, J. the plaintiff offered the deposition of Luther Johnson, of Haverhill, in the county of Essex, taken before a justice of the peace, pursuant to Rev. Sts, c. 94. The defendant objected to the admission of the deposition, because it nowhere appeared in the deposition itself, that Haverhill is more than thirty miles from Concord, the place of trial.

<p>in this commonwealth an action for use and occupation will lie against a tenant at will, after he has left the premises without giving due notice of an intention to terminate his tenancy, although he afterwards derives no benefit therefrom.</p>

<p>These were applications for leave to file informations in the nature of a quo warranta under St. 1852, c. 312, §§ 42, 50, by parties respectively claiming the franchise granted by an act incorporating the Lechmere Bank, at East Cambridge. St. 1853, c. 241.</p> <p>In the first-named case, the following petition was filed during the March term of this court in Suffolk county, in the year 1853.</p> <p>“ To the honorable the justices of the supreme judicial court of the commonwealth of Massachusetts: Humbly show your applicants, the President, Directors, and Company of the Lechmere Bank, that by an act of the legislature of said commonwealth, approved on the 28th of April now last past, Amory Houghton, Edmund Boynton, Frederic Kidder, and their associates and successors, were incorporated by the name of the President, Directors, and Company of the Lechmere Bank, to be located in East Cambridge, in the county of Middlesex, being a part of the city of Cambridge That afterwards, at a meeting of the petitioners for said act, called and notified in the manner provided by law, and held on the fourth day of June current, the corporation created by said act was legally organized, and Amory Houghton, Lewis Hall, Francis Draper, Thomas Dana, Samuel Slocumb, all of Cambridge aforesaid, and K. S. Chaffee, of Somerville, in said county, and Amos C. Sandborn, of Boston, in the county of Suffolk, were duly chosen directors thereof. And thereafter-wards, to wit, on the 10th of June instant, the said board of directors elected Lewis Hall president of said bank.</p> <p>“ And so your petitioners aver, that they are a corporation legally established and organized, and have the right to hold, and exercise and enjoy the franchise, powers and privileges granted by said act of incorporation, undisturbed, and without molestation, interference, or intrusion, and no persons other than the above-named Hall, Houghton, Dana, Draper, Slocumb, Chaffee, and Sandborn, have any right in law to hold or exercise the office of directors of said corporation. And no person, other than the said Hall, has any right in law to hold or exercise the office of president of said corporation.</p> <p>“ And they further represent, that Edmund Boynton and J. M. Doe, both commorant of Lexington, in the said county of Middlesex, and Frederic Kidder, Caleb Hayden, and N. W. C. Jameson, all of Cambridge aforesaid, have illegally, and against the right of your applicants, intruded themselves into the office of directors of said Lechmere Bank, and have assumed to hold and exercise, and still do hold and exercise the rights, powers, and duties of directors of said bank, claiming the right so to do under the act of incorporation aforesaid.</p> <p>“ And the said Boynton has intruded himself into the office of president of said bank, and has assumed to hold and exercise, and still does hold and exercise the rights, powers and duties of president of said bank. And the said Boynton, as president, and the said Doe, Kidder, Jameson, and Hayden, as directors, have and still do, without right, exercise and enjoy the franchise granted by said act of incorporation Whereby the private right and interest of your petitioners and of the directors and members of said corporation are injured and put in hazard.</p> <p>“ Wherefore your petitioners pray for leave to file an infor motion in the nature of a quo warranta, in which the above-named Edmund Boynton, Joseph M. Doe, Frederic Kidder, Caleb Hayden and N. W. C. Jameson, may be called upon io show by what right they have intruded themselves into tile office of directors of said Lechmere Bank, and exercise and claim to exercise the rights, powers, and duties of that office, and that the said Boynton may be called upon to show, by what right he has intruded himself into the office of president of said bank, and • claims to exercise the rights, powers, and duties of the said office, and that the said Boynton, as president, and the said Doe, Kidder, Hayden, and Jameson, as directors, may be called upon to show by what right they exercise and enjoy the franchise granted by said act of incorporation before mentioned.</p> <p>“ And your petitioners further ask that, until a hearing and final decision on said information shall be had, an injunction may issue against the said Boynton, forbidding him from exercising the rights, powers, and duties of president of said bank, and against the said Boynton, Doe, Kidder, Hayden, and Jameson, forbidding them from exercising the rights, powers, and duties of directors of said bank, and from enjoying the franchise granted by the act of incorporation before mentioned and for general relief.</p> <p>“ The President, Directors, and Company of the Lechmere Bank, by Lewis Hall, President, and Amory Houghton, Thomas Dana, Francis Draper, Samuel Slocumb, K. S. Chaffee, and A. C. Sandborn, Directors.”</p> <p>An order of notice issued on this petition, and the respon dents appeared, and filed an answer setting forth the facts on which they relied in defence, and claiming the right to exercise the franchise in question, and the petitioners filed a replicalion.</p> <p>A hearing was had before Metcalf, J. who granted leave to file the information, and an injunction in accordance with the prayer of the petition. The respondents then filed a similar petition also in the name “ The president and directors of the Lechmere Bank, in their own behalf as well as that of said corporation,” praying for leave to file an information against the petitioners in the first case, and for an injunction. It was then agreed between the parties, that the judgment rendered as above stated should be stricken off and the injunction cancelled; that both applications should be referred by a single judge to the whole court at the October term, in Middlesex county; that the facts should be heard by a master and reported to the whole court, his report on the facts to be final, and that the decision of the court on the question of granting leave to file information, should settle the controversy, and decrees for releases be made to effect this result. But that if the full court should refuse to hear the applications and send the parties to a single judge, the record in the first case should be restored, with leave to the petitioners to file an information.</p> <p>The case was accordingly referred to William J. Hubbard, Esq. master in chancery. And his report stated the following facts together with others not material to the final decision of the case :</p> <p>On or about the 15th of January, 1853, the legislature then being in session, Frederic Kidder, Amory Houghton, Edmund Boynton, and Nathan W. C. Jameson, held a meeting at the Triton Insurance Office in Boston, for the purpose of taking preliminary steps towards the establishment of a bank in East Cambridge. At said meeting it was decided that a petition should be drawn up, and signed by the parties then present, and after being circulated for the purpose of obtaining additional signatures, should be presented to the legislature ; it was also further unanimously agreed at the same time, that books should be uniformly headed, and put in circulation by the several persons then present, for the purpose of obtaining subscribers to the undertaking.</p> <p>A petition was prepared, substantially the same as that hereinafter set forth, and was signed at said meeting by said Edmund Boynton, Amory Houghton, and Frederic Kidder; and by general consent said petition was delivered to the said Houghton for the purpose of obtaining additional subscriptions.</p> <p>At the same meeting, six books were prepared, for the purpose of obtaining subscriptions to the stock of the proposed bank,—each of which had the same heading, and in the fol* lowing words:</p> <p>“ We, the subscribers, agree to take the number uf shares annexed to our names, individually, for the purpose of forming a banking association in East Cambridge, and agree to pay the same at such time, and in such instalments, as the board of directors, when chosen, shall specify.”</p> <p>At said meeting, a subscription was commenced on four of said books, and it was also agreed that each one of the four should take one of the books to procure subscriptions to the same, and that Lewis Hall, Francis Draper, and J. M. Doe, should be invited to take books for the like purpose. Inquiry was made by Jameson at said meeting, whether they could depend upon having all the books kept together, and it was agreed that subscribers to the books should stand alike.</p> <p>One of the six books prepared at the Triton Office, together with two other books, afterwards prepared, were circulated by said Houghton, Lewis Hall, and Francis Draper, principally in East Cambridge.</p> <p>The next day, or the next but one after the aforenamed meeting, Houghton met Boynton, and told him there was a word left out in the petition which they had signed, and he would have a new copy made. A new copy was prepared, and presented by Houghton to Boynton without any signature. Boynton requested Houghton to sign it first, which he did, and Boynton signed it next. Said petition, of which the following is a copy, was presented to the legislature.</p> <p>“ To the Honorable the Senate and House of Representatives of Massachusetts in General Court assembled.</p> <p>“ The undersigned, inhabitants of that part of the city of Cambridge, known as East Cambridge, would respectfully represent that the business of that place has, within a few years, greatly increased, more particularly the business of dealing in lumber, wood, and coal, as also the manufacturing of glass, stone, furniture, metals, and various other articles, and that it would be for the interest of the place, and the public generally, that a bank of deposit and discount be located there. \</p> <p>“ And your petitioners would respectfully ask, that they may be incorporated for that purpose of establishing a bank there, with a capital of two hundred thousand dollars, with the same powers and privileges that have been granted to other banks in. this commonwealth, and as in duty bound, will ever pray. Cambridge, January 15, 1853.”</p> <p>Five of the persons who signed said petition, did not subscribe for stock in the proposed bank, and a large majority reside in East Cambridge, although some were residents of other places. The said petition was referred by the legislature to the joint committee on banks and banking. Some individuals, finding that a much larger amount of stock had been subscribed for in Boston than in East Cambridge, being desirous that the control of the proposed bank should be in the hands of persons residing or doing business in East Cambridge, caused' a memorial to be prepared, addressed to the beforenamed committee; which was signed by several of the original petitioners, and also by other persons not petitioners, which memorial was presented to the committee, and was as follows:</p> <p>“ To the Joint Standing Committee on Banks and Banking in the Legislature of Massachusetts.</p> <p>“ Gentlemen,—The undersigned, citizens of Cambridge, and whose places of business is at East Cambridge, and whose names are borne on a petition now before the legislature for a bank with a capital of two hundred thousand dollars, to be located in East Cambridge, are of the opinion, upon more mature consideration, that a bank with one hundred thousand dollars will for the present accommodate the business of that village, and that it is desirable to have the proposed bank owned and managed by citizens of the place; and for the accommodation of the business of the place, they ask that the capital may be fixed at that sum.”</p> <p>The following counter memorial was also signed by others of the original parties, and by other parties, and was likewise presented to the committee.</p> <p>“ To the Honorable the Joint Standing Committee on Banks and Banking of the Legislature of Massachusetts.</p> <p>“ The undersigned, residents of East Cambridge, in the city of Cambridge, respectfully represent that a bank with a capital of two hundred thousand dollars, as prayed for by the original petition of A. Houghton and others, will best subserve the interests of the public, as well as those more directly concerned in the establishment of the bank. Cambridge, Feb. 9, 1853.”</p> <p>Both sets of subscribers were notified by the committee to attend before them, and were respectively heard by counsel in their behalf.</p> <p>The eight subscription books hereinbefore mentioned, were produced before the committee, and were examined, it being a rule of the committee that a list of the subscribers, and the subscription books should in all cases be produced.</p> <p>A great number of petitions was before the legislature, asking for the creation and increase of bank capital to a large amount. The committee of the legislature endeavored to reduce the amount as much as possible, and in the case of the Lechmere Bank, as the parties who appeared before the committee differed in their views as to the amount which they desired should be allowed them, the committee reported a bill “ to incorporate the Lechmere Bank in Cambridge,” with a capital of one hundred thousand dollars.</p> <p>The only part of the act which is entitled “An act to incorporate the Lechmere Bank,” material to this case, is a portion of the first section, which is as follows:</p> <p>“Amory Houghton, Edmund Boynton, Frederic Kidder, their associates and successors, are hereby made a corporation, by the name of the president, directors, and company of the Lechmere Bank, to be established in that part, of Cambridge called East Cambridge.”</p> <p>A notice signed by Amory Houghton, the person first named in said act, was duly published, that “ a meeting of the petitioners for' said act, and all other persons legally interested therein, would be held on the fourth day of June (then) next, at three o’clock in the afternoon, at the Lechmere House in Cambridge, in the county of Middlesex, for the purpose of accepting the said act, organizing the corporation, adopting a code of by-laws, and transacting such other business as might come before them.”</p> <p>At said first meeting, a large number of those who had signed the said books of subscription, and who were not petitioners, were present, and claimed the right to take part in the organization of the bank, as associates with the persons named in the charter, and this they were invited to do by Messrs. Boynton and Kidder, two persons named in the act, the third (Mr. Houghton) not being present. On the other hand, it was contended by a portion of the petitioners present, that those only who had signed the original petition to the legislature, had a right to vote in the organization of the corporation. Whereupon, both parties proceeded simultaneously to effect an organization of the meeting, by making choice of different chairmen and clerks, and each voted to accept the act of incorporation. At this stage of the proceedings, those who claimed that the petitioners only had a right to take part in the organization, being nineteen in number, and a majority of petitioners present, voted to adjourn to an adjoining room, where they admitted new associates, and opened a new stock book, to which, including the petitioners, the whole subscription amounted to $52,300; and thereupon proceeded to organize the corporation, by choice of directors and officers ; and it was admitted that they duly effected a legal organization, if by law under the above facts, and the other facts found by the master, it was competent for them so to do.</p> <p>The said Boynton and Kidder, and a minority of those who had signed the petition, together with those who were not petitioners, but had signed certain books of subscription, referred to in the master’s report, all of whose subscriptions, amounted in the aggregate to $102,300, remained and duly effected an organization of said corporation, if by law under the facts herein stated, and those found by the master, they were competent so to do.</p> <p>Nineteen of the original petitioners for a charter, when they signed the petition, were ignorant of the meeting at the Triton office when they signed the same—one of them never subscribed for stock—one did not subscribe for stock till after the meeting called to accept the act—fifteen of the said nineteen who also subscribed for stock, were ignorant of subscription books for stock being circulated in Boston when they themselves subscribed for stock—and the same number signed the first memorial.</p> <p>It was admitted that all the signatures in all the subscription books were genuine and bond fide.</p> <p>The cases were argued before the full court on the master’s report.</p>

<p>Petition under Rev. Sts. c. 24, for a jury to assess the damages sustained by the discontinuance of certain town ways mentioned in the petition, in the town of Sherborn. The petition was in these words: “ To the Honorable the county commissioners of Middlesex county. William H. Perry, of Sherborn, in said county, complaining, respectfully represents that on the 26th day of June last, he was, and ever since has been, the owner of certain land, with the buildings thereon in said Sherborn; that on said day, said town of Sherborn discontinued the following town roads in said Sherborn, to wit: the road called Hunting Lane, from near the house of Sarah Wyeth, to the junction of the road near the house of William H. Perry; also the road from the junction a little west of the house of Thomas Fleming, over Brush Hill to the corner near the residence of Otis H. Adams; that the selectmen of said town though requested, have not awarded your petitioner satisfactory damages therefor, whereby your petitioner was and is aggrieved; wherefore he petitions your honorable board that a jury may be summoned to determine the matter of his complaint and the damages to which he is entitled. March 29th, 1853. William H. Perry.”</p> <p>At the hearing before the jury empanelled to assess the damages upon said petition, the petitioner moved to amend his petition by inserting after the words “ Otis H. Adams,” in said petition, the words “ upon which roads the lands aforesaid of your petitioner abutted,” and after the word " aggrieved ” the words “ and the lands aforesaid diminished in value, and the property of your petitioner therein aforesaid damnified.” These amendments were not allowed by the sheriff. The respondents filed the following objections to any hearing upon the question of damages; “ 1. Because there has been no sufficient evidence to prove the existence of any town- ways which have been discontinued by the town of Sherborn. 2. Because the petitioner has failed to prove that the selectmen have refused to award damages, and it is not alleged that the selectmen have refused or unnecessarily delayed to pass upon the petitioner’s claim for damages. 3. Because the petitioner sets forth no legal claim for damages, or no legal cause why a jury should be ordered. 4. Because no sufficient description is given of the petitioner’s property, for the injury to which damages are claimed, and no description is given of the causes of the damage claimed, or of the manner in which the discontinuance of the ways described in the petition have damaged the petitioner. 5. Because it is not alleged that the town ways discontinued at any point, touch or are adjacent to any of the lands of the petitioner. 6. Because it is not alleged by the petitioner that the discontinuance of the town ways had ever injured the property of the petitioner.” All of which objections were overruled by the presiding officer.</p> <p>At the hearing aforesaid, the petitioner having put in to the case a vote of the respondent town discontinuing the ways in question as town ways, offered no other evidence to prove the ways in question to be town ways. The respondents then offered to prove that there was no record of the laying out of any such ways by said inhabitants. The sheriff rejected the evidence and ruled that the question whether it was a town way or not was not open on this hearing, the county commissioners having passed upon it. The petitioner offered no evidence to show that the selectmen of the said town of Sherborn had been requested to assess his damages. The respondents offered to prove that the application of said petitioner to said selectmen had not been passed upon by them when the petition was presented to the county commissioners. The sheriff rejected the evidence as not open to the respondents in this stage of the cause. To all which rulings the respondents excepted, and in the court of common pleas, where the verdict for the petitioner was returned, they moved to set aside the same. The presiding judge sustained the motion, and the petitioner appealed to this court.</p>

<p>The city of Lowell cannot recover'of a land-owner an assessment for building a sidewalk on a street in that city, unless the city council have prescribed the materials of which the sidewalk should be constructed, as required by the revised ordinances of the city, c. 17, § 4; which order should appear from the journal kept by the city clerk, and cannot be presumed.</p> <p>If the order of the city council requires the sidewalk to be built on the side of a certain street, the city cannot recover an assessment for building a sidewalk four feet from the side of such street</p>

Petition for a mandamus, to require the respondents to issue their warrant for a jury to assess the damages to the petitioner, caused by locating anew a highway in Lowell, called Chelmsford street. It appeared that the city of Lowell presented an application to the respondents under Rev. Sts. c. 24, Í 9, alleging that the boundary lines of said street were in so much doubt and uncertainty, that common convenience and necessity required that they should be located anew.

This was an action on the case against a physician and surgeon for malpractice, commenced February 18th, 1850.

<p>This was a complaint under St. 1852, c. 322, § 8, concerning the manufacture and sale of spirituous and intoxicating liquors. The complaint was made to Timothy Pearson, Esq. a justice of the peace for the county of Middlesex, and his warrant issued thereon, was dated at Lowell, in said county. A trial was had, and judgment rendered against the defendant by said magistrate, and an appeal was taken to the court of common pleas. In the copy of the judgment, said Pearson was described as of Dracut, in said county, but the trial and conviction are set forth as being had in Lowell; and the warrant on the original complaint ordered the defendant to be brought before the justice at a place in Lowell, to answer to an offence alleged to have been committed in Lowell. It was admitted that at the date of the complaint the judge of the Lowell police court was a citizen and tax-payer of Lowell.</p> <p>At the trial in the court of common pleas, at the June term, 1853, before Wells, C. J. the defendant moved to dismiss for want of jurisdiction in the magistrate before whom the proceedings were had; but the motion was overruled, and the defendant was found guilty by the jury. The defendant then moved in arrest of judgment for the same cause, and the presiding judge, deeming the questions presented so important and doubtful as to require the decision of the supreme judicial court, reported the same with the consent of the defendant, for their consideration.</p>

An indictment, under St. 1852, c. 322, § 12, alleged that the defendant, “ without having any license, appointment, or authority therefor, first duly had and obtained according to law, was a common seller of spirituous and intoxicating liquors, the same not being cider then and there manufactured, and sold for other purposes than that of a beverage, and the same not being the fruit of the vine, &c.” After a verdict of guilty, the defendant moved in arrest of judgment,…

<p>The defendant was indicted upon the Rev. Sts. c. 126, § 42, which enacts that every person who shall “ maliciously or wantonly break the glass or any part of it, in any building not his own, or shall maliciously break down, injure, mar, or deface any fence belonging to or inclosing lands not his own, or shall maliciously throw down or open any gate, bars, or fence, and leave the same down or open, or shall maliciously and injuriously sever from the freehold of another any produce thereof, or any thing attached thereto, shall be punished by imprisonment in the county jail, not more than one year, or by fine not exceeding one hundred dollars.” The indictment averred that the defendant, “ with force and arms, wilfully, maliciously, wantonly, and without cause, did break and destroy the glass, to wit, two panes of glass of the value of ten cents each, in a certain building there situate, not his own, but which building then and there belonged to and was the property of one Dorcas B. Prentice, &c.”</p> <p>After a verdict of guilty, the defendant moved in arrest of judgment, because the indictment did not allege that the glass broken was a part of the building, but only that it was in a building not his own.</p>

This was an indictment under St. 1852, c. 322, § 12, alleging that the defendant was a common seller of spirituous and intoxicating liquors without authority therefor.

<p>T. being at the point of death, and conscious of her condition, but unable to speak articulately, in consequence of wounds inflicted upon her head, was asked whether it was C. who inflicted the wounds; and, if so, she was requested to squeeze the hand of the person asking the question. Thereupon, she squeezed the hand of the person making the inquiry. Held, that under all the circumstances of the case there was proper evidence against C. for the consideration of the jury; they being the sole judges of its credibility, and of the effect to ba given to it.</p>

<p>On a trial for murder, the court refused to allow the prisoner to retract his plea of not guilty, and to demur to the indictment, but consented to hear the objections on a motion to quash the indictment.</p> <p>In Massachusetts, in an indictment for murder, it is not necessary to aver that the assault was made wilfully, and with malice aforethought.</p> <p>In an indictment for murder, which alleges that the defendant “ did strike and bruise, giving to the said A. B., then and there, with the axe aforesaid, in and upon the said back side of the head of him the said A. B., one mortal wound,” it is not necessary to describe either the length, breadth, or depth of such wound.</p> <p>Evidence that a party is present, aiding and abetting in a murder, will support an indictment charging him with having committed the act with his own hand.</p>

<p>Whether an action of debt will lie by a land-owner against a town to recover a sum awarded as damages caused by laying out a town-way, qucere.</p> <p>If it does, there must have been a definite certain sum so awarded, and an award in this form, “ James H. Knowles, $48.00, $32.09,” is too uncertain and indefinite to sustain an action of debt for either sum.</p> <p>Such an action does not respect an easement, and the court of common pleas have j arisdiction thereof.</p>

<p>Assumpsit to recover compensation for a dwelling-house alleged to have been demolished by order of the firewards, in July, 1846, and also for certain goods and furniture, books, medicines, and medical apparatus, alleged to have been in the dwelling-house. The declaration avers that by means of the destruction of the house and furniture, &c.,. the fire was stopped. At the trial, in this court, before Bigelow, J. the plaintiff offered in proof of title to the dwelling-house, the deposition of Philip H. Folger, by which it appeared that the witness acted as agent of Mrs. Elizabeth Barker, in 1833, when a bargain was made between her and the plaintiff for the sale of said house, for the sum of $2,100, upon the payment of which a deed was to be made by her to the plaintiff; that the plaintiff paid to the witness, Folger, the sum of $400 in April, and $200 in July, 1833, after which time the witness ceased to act as her agent. The witness did not act under any power of attorney, and knew of no writing given by Mrs. Barker to the plaintiff. The plaintiff also offered the deposition of Timothy Hussey, who testified that he received from Mrs. Elizabeth Barker a deed of the premises in 1840, to himself. It was a deed with warranty in the usual form.'</p> <p>The agreement with Mrs. Barker and the witness was, that when the plaintiff paid to the witness the sum of $1,400, or thereabouts, with interest, the witness was to give a deed to the plaintiff. The plaintiff was then and for some time previous occupying the house. The house was insured by the plaintiff in the name of the witness, and after the fire the sum of $1,200 was received from the insurance office by the witness, and placed to the credit of the plaintiff. Afterwards, in 1847, the plaintiff paid to the witness the balance due on account of the property, and, at the plaintiff’s request, a deed of the premises was made by the witness to Henry C. Macy, who was about building a house on the premises for plaintiff and the plaintiff offered in evidence a copy of a deed from Macy to himself, conveying the property to him. This deed is dated August 2d, 1847. There is no written obligation from Hussey to convey the estate to the plaintiff at any time. It was contended on the part of the plaintiff that in July, 1846, the plaintiff, although he had no legal title, yet had such equitable interest in the property as would support this action.</p> <p>For the purpose of proving that the house was demolished by order of three firewards, the plaintiff offered as a witness Jesse Coffin 2d, who testified that he was one of the firewards of Nantucket in 1846, and that on the night of the fire, at about eleven o’clock, just as the fire was breaking through the building first on fire, he and seven or eight other firewards had a conference. There were twenty fire-wards in all. Of the firewards present at this conference, two were engineers. It was concluded to blow up some buildings to stop the fire, but no building was fixed upon or named at the conference. Obed Swain was engineer of the powder depot, and Isaac B. Woodward, (a fireward,) and the witness were under him. When this conclusion was arrived at, the firewards separated, and went to their several posts. The witness procured some gunpowder, and he and Obed Swain and Isaac B. Woodward first blew up the Hussey house, and then went up Federal street and blew up several houses, and used up all their powder. This witness was not in the section of the town where the plaintiff’s house was situated, and knew nothing about its being blown up.</p> <p>John P. Hussey, who was not a fireward, called by the plaintiff, testified that he blew up the plaintiff’s house. He was ordered to do so by Edwin Coffin, whom he considered chief engineer. Edwin Coffin was a fireward, and was present at.the conference testified of by the former witness. The first keg only canted the house over to the westward, and broke away some of the underpinning. Witness procured another keg and blew up the house. No one gave any directions but Mr. Coffin. This was done at about two o’clock in the morning.</p> <p>It was proved by the deposition °of Philip H. Folger, and admitted, that the house of the plaintiff fronted west upon Orange street. The house next north on the street was burned down after plaintiff’s house was blown up, and the houses on the street next south of the plaintiff’s were also destroyed by fire. The house of Mr. Folger was upon the • opposite side of Orange street from the plaintiff’s, and was directly opposite the house next north of the plaintiff’s which was consumed. Folger’s house was a brick house and slated. It had wooden cornice work in front of it. This wood-work was on fire once or twice, but was extinguished, and the house itself did not burn down. And it was proved that no houses were destroyed on the west side of Orange street. The house next to Folger’s was of brick, with a-shingle roof.</p> <p>The plaintiff contended that upon this evidence it would be competent for the jury to find that the demolition of the plaintiff’s house was the means of stopping the fire in that direction. The presiding judge withdrew the case from the jury, and if, in the opinion of the whole court, the plaintiff can, upon the foregoing facts, maintain his action for the value of the house, or of the furniture therein, a new trial is to be had; otherwise the plaintiff is to become nonsuit</p>

<p>This was a complaint under the bastardy act, Rev. Sts. c. 49. At the trial in the court of common pleas, before Perkins, J. the complainant testified to the facts set forth in the com plaint, and also that she never had sexual intercourse with any person other than the respondent. The respondent introduced a witness, whom he asked: “ If he knew of the complainant’s having sexual intercourse during the month, in which the complaint stated the child to have been begotten with other persons than the respondent ? ” To which he replied that “ he did, and on two occasions during that month.” The counsel for the complainant then asked with whom such intercourse was had. This the witness hesitated about answering, and the counsel for the respondent asked the court to advise the witness that he was hot bound to answer, if the answer would tend to criminate himself. But the court -declined so to do, on the respondent’s application, the witness not having stated that the answer would tend to criminate himself, and not having asked the protection of the court. But it became apparent to the court from the statement and appearance of the witness that he did not answer, because the answer might tend to crimi- ■ note himself, and that from the beginning of his evidence he had fully understood his right to refuse to give testimony of that character, and thereupon the court declined to state to the witness that he was not bound to criminate himself, but ruled (the respondent objecting) that the witness having given the evidence above stated in chief, could not now under the circumstances, refuse to answer the interrogatory put by the complainant; having stated a part of the transaction, he could not now stop and leave the complainant to suffer under the weight of the former answer, without giving her the usual means of so fixing and identifying the transaction, as to contradict or disprove it, if in her power. If the respondent would strike out the former answer of the witness, he need not go any further. But if the respondent retained and used it, the complainant had a right to all the'information which could be given by the witness in answer to the question put. The respondent then asked the court to state to the witness the consequences of declining to answer, and the court stated that if the witness did not answer, he would be committed. The witness then replied that the intercourse was with himself. The jury found the respondent guilty, and to the above refusal and instructions he excepted.</p>

<p>A motion to dismiss an action commenced in this court will not be sustained, merely because the affirmation on the writ, under St. 1840, c. 87, § 1, does not appear to have been made before service of the writ. If not in fact so made, the defendant must aver it by a plea to the jurisdiction, upon which the question of fact can be tried.</p> <p>In such case the indorsement on the writ, “ I, the plaintiff, solemnly affirm that the matter sought to be recovered in the writ, actually exceeds in amount $300, S. L.,” followed by this certificate; “ Subscribed and affirmed before me, ÍT. M. justice of the peace,” is sufficient.</p>

<p>Assumpsit on a promissory note for $3000, dated July 1st, 1848. The only defence was a discharge in insolvency to which the plaintiff filed specifications of avoidance.' At the trial in this court, before Bigelow, J. after the note was read, the defendant produced and read the certificate of his discharge. The plaintiff contended that said discharge was invalid, because it contained no statement that the .fiduciary debts of the debtor were exempted from its operation under St. 1844, c. 178, § 3. The court, for the purposes of the trial, overruled the objection, reserving the question for the consideration of the whole court.</p> <p>The plaintiff then offered the records of the proceedings in insolvency, by which it appeared that the schedule of creditors, containing seventy-five names, was not produced until the adjournment of the first meeting, and after the assignee was chosen. The messenger in the case testified that said schedule was never delivered to him, but that the debtor did, within three days after the date of the warrant, give him a list of creditors, containing the names of about twenty creditors, but on cross-examination he said he could not swear there were not forty names, but it was on a small piece of paper, and it did not state the residence of said creditors, nor the nature or amount of their debts, nor the consideration or security for the same; but he testified that on applying to the debtor, he gave him verbally the residence of said creditors. The court submitted to the jury the question whether such omission to furnish a suitable schedule was wilful or fraudulent on the part of the debtor, (who returned a verdict on this point for the defendant,) and reserved the question whether the fact of such omission would of itself avoid the discharge for the whole court.</p> <p>To support his specifications of avoidance to the. discharge, the plaintiff offered evidence tending to prove that the debtor within three months before filing the petition by him, and when insolvent, and having reasonable and sufficient cause to believe himself so, did borrow $1000, and at the same time, and as part of the same transaction did secure said borrowed money by a mortgage of personal property. The court ruled for the purposes of the trial that this, if proved, would not avoid ihe discharge under St. 184/1, c. 178, § 8, and reserved the question for the whole court.</p> <p>The assignment of said Coggeshall’s estate was made and dated May 25th, 1850; the third meeting was held, and the discharge made and granted November 23d, 1850, and the third meeting was then adjourned to April 5th, 1851. The plaintiff contended that the discharge was granted too «non, and therefore void, but the court, for the purposes of the trial, ruled otherwise.</p> <p>The verdict was for the defendant, which is to be affirmed or set aside, according to the opinion of the whole court upon the questions here reserved.</p>

This was an action of contract to recover $1,000 upon a policy of insurance, issued to the plaintiff upon the life of Caleb Hathaway, and which contained this clause: “ Provided always, and this policy is granted and accepted upon the express condition, that if the said Caleb Hathaway, shall without consent of this company, previously obtained and indorsed upon this policy, visit those parts of the United States which lie south of the southern boundaries of the states of…

<p>An assignment by fence viewers under Eev. Sts. c. 19, § 5, of only a part of a continuous line of partition fence is not for that reason invalid, neither party at the time requesting that the whole line be divided.</p> <p>After such assignment duly made, the obligations of the parties are fixed to maintain the fence accordingly, and cannot be changed, without consent, by a subsequent view and division by the fence viewers of the whole continuous line of partition fence.</p>

This was an action on a promissory note given by Susannah Snell and Caleb Badger, to Cyrus Lothrop, and by him indorsed to the plaintiff.

<p>A declaration alleged that the defendants published or caused to be published in a certain pamphlet, a libel concerning the plaintiff. From the evidence, it appeared that the defendants were instrumental in procuring the vote of a medical society expelling the plaintiff therefrom for gross immorality. The vote was published among the transactions of the society, by the regular committee of publication, of which the defendants were not members. Seld, that the allegation in the declaration was not supported.</p>

This action was commenced in this court, April term, 1848. Brayton Slade, the alleged trustee appeared and answered at the first term, the principal was defaulted, and the case was continued for the purpose of examining the trustee. The principal defendant died at Sacramento city, California, December 19th, 1849, which fact was suggested upon the record at the April term 1850.

Each of the above-named actions was brought tc recover one sixth part of certain money received by the defendant, the amount of a pension allowed by the United States government to Mary Slade, widow of Peleg Slade, under the act of July 4th, 1836. Said Peleg died December 8th, 1813, being in the receipl of an annual pension of $200, for military service, and leaving the defendant his executor and residuary legatee.

<p>The non-joinder of a co-tenant as plaintiff in an action of tort cannot be taken advantage of except in abatement.</p>

<p>In this case the principal defendant was defaulted. The alleged trustee admitted, in his answer, that he had a certain sum of money in his hands belonging to William A. Haskell, and that he had received notice of an assignment of this sum by said William to Jesse Haskell, the principal defendant, but it did not appear that the trustee had ever promised the principal defendant to pay this sum to him. On these facts the court of common pleas charged the trustee, who appealed to this court.</p>

At a special session of this court, held in Taunton on the 13th day of December, 1853, before the chief justice, and Justices Metcalf and Bigelow, the defendant was tried and found guilty, by the jury, of the murder of his wife, Ellen Murphy, at Fall River, on the 9th of 'April, 1853. After verdict, the defendant’s counsel moved in arrest of iudgment for two causes.

<p>In this commonwealth, the omission of the words “ a true bill,” does not vitiate an indictment.</p>

<p>Evidence of habitual intoxication from the use of chloroform, will not sustain a complaint under the Eev. Sts. c. 143, § 5, charging a person with being a “ common drunkard.”</p>

<p>A person may be convicted of forging a check on a bank, although the counterfeit does not so much resemble the genuine check of the drawer as -to be likely to deceive the officers of the bank on which it is drawn.</p>

<p>A. took the horse, wagon, and harness of B. from his stable by a trespass, ana drove to a neighboring town. While on the way, he changed the horse for another, which was in a pasture by the roadside. He then drove to another county, and there sold the whole property. Held, that although when he took the property, he intended to return it, he might nevertheless be convicted of larceny in the county where he committed the trespass.</p>

<p>This was a petition, dated May 30th, 1850, for a jury to assess damages sustained by Henry Wood, ul Quincy, from the alteration of a town way in said town, called School street. The warrant issued thereon, September 27th, 1851, by the county commissioners of Norfolk, was directed: “ To any coroner of the county of Norfolk, the sheriff of said county being the owner of real estate in Quincy, in said county, and interested.” This warrant was served, and the proceedings conducted by J. N. E. Mann, Esq. a coroner of said county, and also a deputy under Thomas Adams, the sheriff of the county, and for this cause the respondents objected to the competency of said Mann, to preside over the jury, but the objection was overruled.</p> <p>It appeared that Edward Brackett and others, on the 8th June, 1848, presented a petition to the selectmen of Quincy, praying for an alteration in said School street, which being refused, they applied to the county commissioners for the same object at their meeting on the fourth Tuesday of June, 1848. Upon this petition the road was staked out, October 13,1848, and the location was finally established and recorded by the county commissioners at their June term, 1849, at which time they first made the estimate of damages to the landowners ; and the respondents objected that such location was illegal, being more than one year from the refusal of the selectmen to lay out the same. The meeting of the commissioners, at which the above location was made, was on the 26th June, 1849, and the present petition for a jury to assess the damages to the petitioner therefor, was presented June 25th, 1850, and the respondents contended that the petition was not presented within a year from the location, as required by Rev. Sts. c. 24, $ 76.</p> <p>The petitioner claimed title to a part of the land taken foi widening said School street, by virtue of certain proceedings of the town of Quincy in the year 1812, and not by any deeds or documentary title, and on this point it appeared that on the 13th day of February, 1812, the selectmen of Quincy called a town meeting to be held on the second day of March ensuing, among other things, “ to choose any committee, or hear and act on the report of any committee the town may think proper when assembled.” At the town meeting it was voted, “ that the selectmen be authorized and requested to examine some land of Henry Wood, which he proposed making an exchange with the town, by straightening a line of fence on the road leading from Deacon Veazie’s mill towards his house, &c. and report to the town at the adjournment of this meeting respecting the same.” At the adjournment of said meeting, April 6th, 1812, the town adopted the report of the selectmen giving said Wood a portion of a road then of unnecessary width, in exchange for other land of said Wood required to widen the road from Deacon Veazie’s mill. This land so given to said Wood was a portion of that for which he now claimed damages, by the widening of School street, as before stated. The respondents objected that this exchange of land was not valid, as the warrant calling the town meeting of March 2d, 1812, contained no article upon the subject. The petitioner relied solely upon that article in the warrant before stated.</p> <p>The petitioner claimed title in part of the land taken, by right of possession, and the erection for more than twenty years of a fence upon the land fronting upon and against the highway, where said way was widened.</p> <p>The respondents admitted that said fence had been erected more than twenty, but less than forty years, and contended that the original boundary of said highway on said School street was an ancient stone wall and fence existing at the time said fence was erected by the petitioner, and remaining in part afterwards ; and they offered evidence to show that the petitioner’s fence on said highway had not been erected forty years when said town way was widened or laid out by the commissioners, but less than thirty years; and that the original boundary of said town way, where the petitioner’s said fence was erected, was known, and could now be made certain. There was no record of the origi nal laying out of said town way. The respondents requested the presiding officer to instruct the jury that “ if the former boundaries or lines of the road or highway before the alleged exchange or erection of the fence, are made certain, and if the jury find that the old stone wall, before' the alleged exchange or erection of said fence by the petitioner, was the original boundary and line of the road or highway, so as to be made certain, then they are to give no damages to the plaintiff for that part of the land which was included in the highway under the old boundary. And the jury to be directed to find specially whether such boundaries on the road before the alleged exchange or fence erection are established.”</p> <p>To sustain this request, the respondents relied upon the evidence offered as before stated, and contended that upon the evidence in the case, it appeared that the petitioner had no other title to that part of the land on the south side of said School street, claimed by vote of the town and by possession, than what he could claim by such vote and possession, and by the erection of the said fence on the highway, and that the former boundaries of the old road and highway before 1812, (and before the petitioner erected his said fence on said highway taking in the said part of said old road and highway for which he now claimed" damages,) were made certain by the evidence so as to include the land now taken as part of the said old town way.</p> <p>The presiding officer ruled against all the objections and positions taken by the respondents, and a verdict for the petitioner was returned into the court of common pleas, which the presiding judge of that court ordered to be set aside, and the petitioner appealed to this court. The case was argued at the November term, 1852.</p>

<p>Writ of error to reverse a judgment in favor of the defendant in error, against the plaintiffs in error, before a justice of the peace, for eighty-four dollars and ninety-two cents, debt or damage, and three dollars and forty-three cents, costs. The writ on which said judgment was rendered, bore date January 3d, 1853, and was returnable before the justice, on the 12th day of January, 1853, at ten o’clock in the forenoon, upon a promissory note, signed by said Charles Nason and Billings Ellis, bearing date Walpole, November 1st, 1850, by which they promised said Catherine Bullard, to pay her or order, seventy-five dollars, with interest. The defendants in said writ, now plaintiffs in error, were described in the writ, “ Charles Nason and Billings Ellis, of said Walpole.” The return of service is in the words following, viz: “ Norfolk ss. Walpole, January 3d, 1853. By virtue of this writ, I have attached one covered pleasure wagon, the property of the within-named Billings Ellis, and at the same time gave him a summons for his appearance at court, and as the said Charles Nason is out of my precinct, and has no tenant, agent, or attorney therein, to my knowledge, I left a summons for his appearance at court, with the said Billings Ellis, his co-defendant.” Judgment was rendered against said Nason and Ellis at the return day and hour of the writ, by default, without any appearance by either of them. The said Billings Ellis instituted this suit, without any leave of said Nason, except such license as is implied from the legal relation existing between them, appearing on the face of the note and the aforesaid proceedings. The assignment of errors was filed in the clerk’s office on the 15th day of January, 1853, and the error assigned was, “ That said Charles Nason, since the 1st day of October, in the year 1852, changed his last and usual place of abode, by removing from said Walpole to the town of Milford, in the county of Worcester, in which said town of Milford, said Nason resided, and had his last and usual place of abode on the 3d day of January, in the year 1853.” On the 1st day of February, in the year 1853, the said Charles Nason executed an instrument under seal, which is as follows: “ In the action Billings Ellis and Charles Nason plaintiffs in error against Catherine Bullard, defendant in error, my name having been used without my knowledge or consent, I hereby agree to become nonsuit, and I hereby release and waive all errors (if any there be) in the judgment which the above-named action is brought to reverse.” And on the entry of this suit, to reverse said judgment, the counsel of the defendant in error, appeared specially and moved the court, that the said Nason become nonsuit, and that an entry be made on the record to that effect. At the same time, the said Nason filed a statement respecting his domicil, as follows: “ I, Charles Nason, of the town of Walpole, do consider myself a resident of said town. I have been a resident of said town the last twenty years or more. In the month of December 1852, I broke up housekeeping, and stored my furniture in said towh of Walpole, where they now are. My wife and children are visiting then friends. Since the month of November I have been at work in the town of Milford, by the day, but it is uncertain how long I shall remain there.” And this was the only evidence respecting the domicil of said Nason. This process was instituted in the manner following, viz: The plaintiff in error, filed in the clerk’s office a copy of the original writ and judgment certified by the justice who rendered the judgment, and filed the assignment of errors on the 15th day of January, 1853, and a scire facias to hear errors, without inserting therein the error assigned, was issued on the same day, which was duly served on the defendant in error. No writ of error commanding the justice to return the íecord to this court ever issued, and for that reason the defendant in error moved, immediately upon the entry of this suit, to dismiss this proceeding.</p> <p>She also moved to dismiss because there was an opportunity for said Billings Ellis to appeal from said judgment, and because the error assigned was not inserted in the scire facias, and because said Ellis was not injured by the irregularity in the judgment, if any. The case was submitted on a statement of facts, of which the foregoing are the most material, and it was agreed that the court should draw such conclusions as a jury would be warranted in drawing, and render such judgment or make such entry and disposition of the case as is conformable to law, the defendant’s rights upon her motions to dismiss being reserved to her.</p>

<p>The only question raised in this action was, whether Joshua Seaver was cnargeable as trustee of Charles Wentworth, the principal defendant. Said Seaver, in answer to interrogatoties by the plaintiffs, said: “ I was assignee of the estate of Jesse Bills. Charles Wentworth proved a claim against said Bills’s estate, and said claim was allowed. At the time Wentworth proved said claim, there were no funds in my hands belonging to said insolvent’s estate; but there was certain real estate, which I alleged had been fraudulently conveyed to other persons by said Bills, before going into insolvency; and for the possession of which, as assignee, I had commenced suits against such person™. Soon after, the matter was compromised, in the following manner, viz: thai Mark Bills, Osgood Brackett, and Charles Thomas, with consent of the insolvent, should convey the real estate to Mr, Joseph D. Gould, in trust for the following purposes: that Gould should hold possession until the 1st August, 1850; and if during that time Bills should pay me, as assignee, fifty per cent, on the whole amount of such claims as might be proved against his estate before the 1st of January, 1848, with interest on the same to February 1st, 1849, then Gould should convey the said property to Bills, or to whom he might direct; and if said Bills did not pay fifty per cent, within said time, then the said Gould, as trustee, should dispose of said property to whomsoever he might be able to realize the most money for it; and the proceeds, after deducting expenses, should be equally distributed among such of the creditors as proved their claims as aforesaid.</p> <p>In the course of the month of July, 1850, Bills did pay to me, as assignee, fifty per cent, as aforesaid, and I have since that time paid all the persons whose claims were proved as aforesaid, except the claim standing in the name of Charles Wentworth, which claim said Bills declared at the time above ■alluded to, in July 1850, was not due him, Wentworth; that at the time Wentworth proved his claim, he owed him nothing. In the course of the present year, Mrs. Wentworth has called on me, and requested me to pay to her the whole of the claim, or a part of it, as she was in needy circumstances ; and after her request I saw Bills and informed him of it; he urged me not to pay it to her, for the reason that the claim was not due her husband, but belonged to him ; and told me he had no doubt if Wentworth was here, he would be perfectly willing I should pay it to him, (Bills.) I therefore declined paying any part to her. Subsequently, Mrs. Went-worth’s brother, who lives in Pepperell, called on me, offering me a bond of indemnity if I would pay a part, or the whole, to Mrs. Wentworth, who was then at his house sick, and very much in need of the money, to procure the necessities consequent upon her situation. I informed Bills of that interview He again told me that at the time Wentworth proved his claim against his estate, he did not owe him a single cent; the balance was the other way; that Wentworth owed him, and he, Bills, repeated to me that in equity Mrs. Went-worth had no more right to any part of that money than any other person. Notwithstanding Mrs. Wentworth’s situation, f again objected to paying any portion to her. Wentworth went to California some time in the spring of 1849. I have not seen or heard any thing from him since that time. Bills has represented and showed to me that he let Wentworth have his teams, which were to be an off-set, on payment of Wentworth’s claim against him. Mr. Bills is now very sick, and has been sick some nine or ten months, and failing fast. Jesse Bills, in answer to questions put to him by me, relative to Wentworth’s claim, said his object in allowing Wentworth’s claim to be proved against his estate, was to multiply claims against his estate, and swell the amount as large as possible, and the said Wentworth was to pay him back the dividend.”</p> <p>The trustee further stated that he wished “ to make the affidavit of Jesse Bills, which is hereinafter given, a part of his answer; that he believes the statements therein made and sworn to by the said Jesse Bills to be true. The reason why he believes said statements true is this; that from representations made to him by said Bills, that he (Bills) did owe said Wentworth before his going into insolvency; but that he sold his teams to said Wentworth, which amounted to more than Wentworth’s claim, and that he (Seaver) knew of Bills having teams sometime before his taking the benefit of the insolvent laws ; that he sold them to Wentworth before his going into insolvency; and from other statements made to me by said Bills.”</p> <p>The affidavit above referred to, was as follows : "I, Jesse Bills, of Roxbury, in the county of Norfolk, on oath depose and say, that at the time Charles Wentworth proved the claim against my estate in insolvency, I was not indebted to him, neither was my estate, and he, the said Wentworth, then knew that he had no claim against me on my estate in insolvency, after diducting my claim against him; and the reason why he proved said claim was the understanding and agreement between him and me that the same should be proved and allowed for the purpose of swelling the amount of claims against my estate, and, that the dividend when ordered, should be refunded to me by said Wentworth ; which has not been done, on account of the absence of said Wentworlh, since my paying to Joshua Seaver, Esq. assignee of my estate in insolvency, the fifty cents on a dollar in all claims proved against my said estate, according to the agreement entered into between my said assignee and myself; and that I further depose and say on oath, that I believe said Wentworth, if he were here, would be willing that Mr. Seaver should pay the amount or dividend standing against his name to me, according to the agreement and understanding entered into at the time the claim was proved and allowed as aforesaid; and said Wentworth has been absent in California for upwards of two years, and I have not been able to obtain an order from him on Mr. Seaver, authorizing him to pay the money over to me. I stated the substance of the foregoing statement, to Mr. Seaver, about the time I paid him the money to be paid to my creditors, and requested him not to pay said dividend to any one on account of said Wentworth, except myself. I make this affidavit that the said Seaver may append it to his answer in any and all cases where he may be, or has been summoned as trustee of said Wentworth, on account of moneys held by him as aforesaid.”</p> <p>The plaintiffs alleged, which was admitted to be true, that said Bills returned upon his schedule of creditors the name of Charles Wentworth, as a creditor by note for $500 and interest, and that said Bills made oath that said schedule was just and true, and also that said alleged trustee had never made any return to the judge of probate of the money paid to him, under the agreement with said Joseph D. Gould, and that no dividend had ever been declared in said case, nor had the proceedings in insolvency been stayed by any order or decree of the insolvent court; and that said Seaver had never paid over to Wentworth the portion belonging to him.</p>

<p>Payment of an execution by one of several defendants, so far extinguishes the same that it cannot be subsequently assigned to the debtor paying it, and be levied by him on land of the other debtors.</p>

<p>To prove the value of land, evidence of what a witness had offered for other land on the opposite side of the street is not competent.</p> <p>7t is a question of law for the court and not of fact for the jury, whether an offer of a certain sum for land was by way of compromise, and, therefore, not competent testimony.</p> <p>The trustee, and not the cestui que trust, is the proper person to petition for a jury to assess damages caused by taking the trust estate for a railway, and if the suit be brought by the cestui que trust, the respondents may deny the petitioner’s title at the hearing before the jury.</p> <p>The rule of damages laid down in Meacham v. The Fitchburg Railroad Company, 4 Cush. 291, affirmed.</p>

<p>This was an action for a breach of a contract, dated December 28th, 1848, relating to the furnishing of a quantity of granite, executed by the defendant of one part, and by “ Daniel Russell, for Frederic Robinson, warden of the Massachusetts state prison,” of the other part. The plaintiff, the warden of said prison at the commencement of this action, at the trial before Thomas, J. offered to prove that at the time of the execution of said contract, Frederic Robinson was the warden of the state prison, and that Daniel Russell was authorized to make said contract on his behalf, but a report of the evidence on this point became immaterial to the final decision of the case. The plaintiff also offered evidence tending to show, as he claimed, a sufficient approbation of the contract by the inspectors of the state prison as required by Rev. Sts. c. 144, § 19, to render the contract valid and binding, and offered to prove a breach of the contract by the defendant as alleged in the declaration. The evidence as to the ratification, sufficiently appears in the opinion.</p> <p>Upon the offer of the plaintiff to prove the above facts, the presiding justice inclined to the opinion that the action could not be maintained, and the case was taken from the jury for the consideration of the whole court. If, upon the facts and the inferences a jury might draw from them, the action can be sustained, the plaintiff was to have a new trial, otherwise he was to become nonsuit.</p>

<p>The defendants pleaded nol. contendere to the following indictment found At the December term, 1852, upon St. 1840, c. 80: “ The jurors for the commonwealth aforesaid, on their oath present, That the Boston and Worcester Railroad Corpotation, a body politic and corporation, duly and legally established in this commonwealth, were, on the sixth day of November, in the year of our Lord one thousand eight hundred and forty seven, the proprietors of a certain railroad leading and extending from Boston, in the county of Suffolk, to Worcester, in the county of Worcester, through the town of Brookline, in the county of Norfolk, called and known by the name of the Boston and Worcester Railroad, and were common carriers of passengers over, upon, and along said railroad, and being such proprietors and common carriers of passengers, did by their agents and servants, on said sixth da> of November, at said Brookline, in the county of Norfolk aforesaid, run, conduct, and drive a certain engine and train of cars, in one of which said cars, one Richard W. Mordelia, was then and there' a passenger, over, upon, and along said railroad, and by their agents and servants, then and there had fhe custody, care, and management of said railroad, engine, and cars, and by the gross negligence and carelessness of their said agents and servants, said railroad was suffered to be and then and there was out of repair and defective, and the rails thereof uneven and in a condition unsuitable and dangerous for the passage of engines and cars upon, over, and along the same, and the aforesaid engine and train of cars run, conducted and driven as aforesaid, were then and there, by the gross negligence and carelessness of the said agents and servants, run, conducted, and driven with great unreasonable and improper speed, and in an unsafe and unskilful manner, by means of all which, the aforesaid car in which said Richard W. Mordelia was then and there a passenger as aforesaid, was then and there thrown with great violence from the track of said railroad and broken in pieces, whereby divers injuries, bruises, and wounds were then and there inflicted on the head, body, and limbs of said Richard W. Mordelia, of which said injuries, bruises, and wounds, the said Richard W. Mordelia then and there instantly died. And so the jurors aforesaid, on their oath aforesaid, do say that the life of said Richard W. Mordelia, being a passenger as aforesaid, was then and there lost by reason of the gross negligence and carelessness of the aforesaid agents and servants of said Boston and Worcester Railroad Corporation, in manner and form aforesaid; the names of which said agents and servants are to the jurors aforesaid unknown; whereby said Boston and Worcester Railroad Corporation have become liable to a fine not exceeding five thousand dollars nor less than five hundred dollars, to be recovered by indictment to the use of the executor or administrator of said deceased person, for the benefit of his widow and heirs; and that Edmond Hamilton, of Boston, in the county of Suffolk, joiner, has been duly appointed, and now is administrator of said Richard W. Mordelia, deceased, and of his goods and estate, and that there is no widow nor any children of said Richard W. Mordelia; and that there are heirs of said Richard W. Mordelia, according to the law regulating the distribution of intestate personal estate among heirs now living, whose names are to the jurors aforesaid unknown ; against the peace of said commonwealth, and contrary to the form of the statute in such case made and provided.”</p> <p>The defendants then moved in arrest of judgment: “ 1st. Because more than one year has elapsed since the commission of the offence (if any) charged in said indictment and prior to the finding thereof, as appears upon the face of said indictment. 2d. Because the defendants are not liable as a corporation, to the penalty of St. 1840, c. 80, on which said indictment is founded. 3d. Because said indictment is too uncertain and vague, in not setting forth more particularly the manner of the negligence or carelessness of said defendants’ agents and servants, nor the names or official occupations or employment of said agents and servants, nor the number of those so guilty of carelessness and negligence, nor whether jointly or separately so guilty. 4th. Because said inlictment contains no averment, what heirs, the party killed left at his decease, nor their names.” Which motion the presiding judge of the court of common pleas, Perkins, J. overruled, and the defendants excepted.</p>

Trespass, under Rev Sts. c. 105, §§ 7, 8, to recover damages for cutting and carrying away wood and timber from certain real estate in the town of Saugus, of which the plaintiff claimed to be coparcener with the defendant, who, however, denied the plaintiff’s title, claiming sole seisin in' himself, under the will of his grandmother, Anna Jenness, and a deed from his brother. Timothy Parker, to himself.

<p>A will, in the handwriting of the testator, and signed by him in the presence of three competent witnesses, who attest the same at his request, and in his presence, is well executed, although the testator does not declare to the witnesses, and they do not know, that it is his will.</p>

<p>In this action of contract, commenced April 16th, 1852, the defendant, at the return term, filed a motion to dismiss, because the only service of the writ was by an arrest of the person, and there was no affidavit indorsed on the writ authorizing an arrest under Rev. Sts. c. 90, § 111. The action was continued from term to term, until the September term, 1853, when the motion to dismiss having been overruled, exceptions thereto were allowed by the presiding judge. The plaintiff then moved that the defendant be defaulted, because no affidavit of merits, nor answer had been filed as required by St. 1852, c. 312, to which the defendant objected, contending that the plaintiff had waived his right to a default by the continuance, and by arguing the motion to dismiss : and that it was in the discretion of the court to extend the time within which the affidavit and answer might be filed, but Mellen, J. in the court of common pleas, ordered a default, to which the defendant excepted.</p>

<p>In computing the ninety days on which a poor debtor is to surrender himself according to his bail-bond, fractions of a day are not to be included.</p> <p>The discharge in insolvency of the principal in a bail-bond, after a breach Ehereoi, U. no discharge to the sureties.</p>

This was an action of tort for a nuisance caused by the erection of a fence on land over which the plaintiff claimed a right of way by prescription. At the trial before Fletcher, J. the way was alleged to exist between a line four feet eastwardly of, and parallel to, the' easterly side of a house standing on the plaintiff’s land, (and which stood there anterior to the year 1767,) and the westerly side of a brick building standing on the land of the defendant.

The defendant was tried before Bishop, J. in the court oí common pleas, on a complaint alleging an illegal sale of spirituous liquor to one George E. Allen. The only witness for the government, not said Allen, testified that he called for the liquor, and that George Allen paid for it, and he did not know whether said Allen had any middle name or not. This was all the evidence in the case.

The defendant was convicted in the court of common pleas, on an indictment charging that he, “ in and upon one Mary Moran, of Methuen, in the county of Essex, in the peace of the commonwealth, then and there being, an assault did make, the said Mary Moran being then and there a female of the age of ten years and more, and her the said Mary Moran then and there did ravish, and carnally know, by force and against her will, &c.” He therefore moved in arrest of judgment, for…

<p>The facts in this case are sufficiently stated in the opinion of the court, which was delivered at November term, 1852, by</p> <p>Shaw, C. J. This case arises upon a motion to accept an award made by referees appointed under a rule of court. The action was slander, and it was ^referred to three gentlemen, lawyers, belonging to three different counties other than Suffolk. The plaintiff seeks to set aside their award upon several grounds, specifically euumeiated, in which he alleges the report to be erroneous in matters of law and matters of fact.</p> <p>The great question arising here is of the nature and conulusiveness of awards, made in pursuance of references entered into under rules of court. There are several decisions upon snob awards, as well as upon awards made by referees appointed in pursuance of the statute, by agreements entered into before justices of the peace, to which I shall have occasion to refer. The award before us is contained in a detailed report, which I shall refer to more particularly hereafter.</p> <p>The tendency of modern jurisprudence is, to give force, conclusiveness, and effect to all awards, where there is no corruption or misconduct on the part of the referees, and where no deception has been practised upon them. Parties have a right, if they please, to refer all questions between them to arbitration ; volwiti non fit injuria. It has long since been settled, that awards are conclusive on all matters of fact submitted to arbitrators. A reference has been recognized as a step from a court of justice, and as intended to supersede a resort to the court. Formerly, but within the recollection of several of us, it was the practice, in cases of controverted awards, to call before the court one or more of the referees, and inquire of them as to the grounds of their award, as well in matters of law as of fact. This practice has long been set aside. Still, in matters of law, it is considered that the court has a larger jurisdiction, though where the reference has been made to lawyers, it has been deemed to include a more entire submission to their opinion upon such matters of law as may have been involved. But what does this mean 1 Simply that it is supposed to be intended by the parties that the case shall be decided according to law. And do they not intend this in all cases ? The rule refers contested questions of right to the decision of the arbitrators, and what are any questions of right but questions of fact first, and then of the rules of law applicable to the facts ? To decide such questions of right, it is necessary to ascertain the facts in the first instance, and then to apply to them the rules of law, and in many great cases it has appeared that what at first seemed to be new and difficult questions of law, were merely complicated questions of fact. The rule is very simple and well understood, that the promise in a note of hand made upon good consideration, is valid and binding, and yet it is often as difficult to settle questions arising upon promissory notes as any other, as questions of usury, for example, or of the consideration moving between the parties, or of payment in part or in full.</p> <p>Taking this question upon the authorities, there are many worth looking at. In the case of Kleine v. Catara, 2 Gallison, 61, before Story, J. it was held, that where the parties refer a question of law to arbitrators, their decision thereon is conclusive. Judge Story perhaps goes further than the courts of this state have gone, in holding that referees may decide according to the rules of equity and good conscience, and against the strict law, provided they admit the law and show their intention clearly to decide against it; though if they merely state their reasons for their decision, in such a manner as to refer the questions of law therein to the court, then the court has the same control over their award as over a decision brought before it on error. In the state courts, it has been a very regular course for many years to hold that where no error or mistake appears upon the face of the award, the decision of the referees is conclusive in law. The case of Jones v. The Boston Mill Corporation, 6 Pick. 148, is often cited. The question there was between riparian owners, and related to their respective rights to certain real estate, which had once been covered with water. I think there was a board of arbitrators appointed by a simple agreement of the parties under seal. My recollection in that particular is not distinct, though I was myself on the arbitration. It was held there by the court, that where the parties intended to leave the whole matter in dispute to the arbitrators, and the latter settled the lines, and stated no reasons for the decision at which they had arrived, that decision was conclusive, even if they had mistaken the law. Bigelow v. Newell, 10 Pick. 348, is a very instructive case, and one which is frequently referred to There the plaintiffs had brought an action against the owner of mills situated at a lower point on the same river with mills owned by themselves, to recover damages for injury to their ancient mills, by the raising of the defendant’s dam to such a height that the back water therefrom injuriously affected the operation of the mills of the plaintiffs. A second ground of action in the same case was, that such elevation of the defendant’s dam was ruinous to another mill-site of the plaintiffs, situated at a short distance below their ancient mills, and on which they had begun to erect a new mill, when they were prevented by the above-mentioned proceeding of the defendant. The parties, on the return of the writ, agreed to refer the action and all matters in dispute between them, to the determination of Samuel P. P. Fay, William Baylies, and James F. Baldwin, Esquires, two lawyers and an engineer. After a hearing, the referees reported that the defendant’s dam should be cut down, and this report was subsequently recommitted to them, on motion of the defendant, that they might reconsider the case, and report their decision upon such questions of law as either party should request to, have reported, and so much of the evidence as should present those questions fairly. They made a second report confirming the former, and setting out the grounds of their award. To this, several exceptions were taken, and it was contended that the referees had made several mistakes in matters of law. One of the chief grounds of exception was, that under the statute, the owner of a mill has a right to overflow lands bordering on the river on which it stands, subject to the duty of paying damages therefor, and that such overflow constitutes no nuisance, and consequently, that though the referees could direct the payment of damages by the defendant, they could not direct the cutting down of any part of his dam. And it was urged that the phrase “ always having regard to the legal rights of the parties,” which had been used in the submission, gave peculiar force to this exception, and, indeed, required the referees to decide in absolute conformity to the rules of law, But the court decided that the award was conclusive; partly, doubtless, upon the ground that the parties had themselves chosen the referees, who were very competent persons, and had agreed to abide by their determination, though the court also say that they find no error in point of law in the decision. The ultimate reason for maintaining any award is, indeed, that the parties have selected their own arbitrators and agreed to refer certain things to their determination, as their attorneys. And it is idle to say that they have a right to do that, and that, when they have done it, the decision of the arbitrators fairly made is not final.</p> <p>And what is the distinction between making referees judges of law and judges of fact, in regard to the matters submitted to them ? A decision of a court of competent jurisdiction, is merely a statement that such is the law of the land, and the presumption is, that where the law has once been so declared it will be again. That is the foundation of our system of precedents. But the parties have as good a right to say, that they will choose their own judges in their own case, as to resort to the regular tribunals, and it is presumed they will choose persons of competent capacity and sufficient legal skill. The conclusions of the arbitrators upon questions of law or of fact must stand upon the same grounds. These classes of questions are conveniently separated in another class of cases, wherein the law is decided by the court and the facts by the jury; but the matter submitted to referees is simply what is right between the parties in the particular case. In the matter of authority, Bigelow v. Newell is decidedly in point.</p> <p>In the case of the Boston Water Power Co. v. Gray, 6 Met. 131, there was a great and important controversy submitted by the parties to a very competent board of referees. The questions were of water-power and hydraulics, as well as law, and the referees consisted of one engineer and two lawyers.—One of the latter, I believe, was both an engineer and a lawyer. Their award set forth to some extent the principles and grounds of the conclusion at which they had arrived, and to some of these, exceptions were taken. The action was covenant. The court ruled upon the exceptions, that if the referees had not been misled or deceived, their decision was conclusive. To this ruling of the court, exceptions were also taken, and the whole court, in deciding thereon, held that if there had been unfair conduct on the part of the referees, if any wrong had been done to the party objecting, as, by not giving him a fair hearing, or by illegally hearing the other side ex parte, their action was open to proof before the court. Here no such thing is stated.</p> <p>Another exception is, where the arbitrators are deceived by one of the parties, to the injury of the other; as, for instance, where engineers, in maiding surveys, are led to suppose the area of a piece of ground greater than it is, by having a chain furnished them with a link taken out. The consequence of such a deception would be, that the report of the engineers would not give the result of their skill, and would be a mere mistake throughout. But, at the same time, if engineers, acting as arbitrators, apply instruments or rules which other engineers think wrong, but which they themselves believe to be correct, if their judgment has been honestly used—the judgment resorted to by the parties—their conclusion is final. So if the conclusion is honestly drawn by them from the facts before them, though the facts may not fairly warrant such conclusion.</p> <p>Another exception is, where there is raised on the face of the report itself a question of law, which is submitted by the referees to the judgment of the court. There, there is no award but in the alternative. In that respect the award is precisely like a special verdict, and is so treated by the court. Such was the case of Wilby v. Phinney, 15 Mass. 116, where a suit brought by a surviving partner against the administrator of his deceased partner was submitted to referees, who found the facts, but submitted to the court several questions, whether, upon such facts, the plaintiff was entitled to recover. The court held that he was so entitled, and judgment was entered on the award accordingly. In this case, the award reserved certain questions of law, which being decided, the award would become absolute. If, however, it is manifest that the referees do not intend to submit the question of law to the court, but merely state the question for the satisfaction of the parties, such a statement does not authorize the court to disturb the award. It was so held in the case of Ward v. The American Bank, 7 Met. 486, which was decided not long after the case of the Boston Water Power Co. v. Gray. In that case the parties, under a rule of court, submitted cross-actions arising out of a complicated state of facts to a referee, who made his award thereon. One of the parties' subsequently applied to him for a statement of the grounds of his decision, whereupon he made and returned to the court a certificate of the facts, and of his conclusions in regard to them, but with the statement that he did not intend to submit the matters arbitrated to the decision of the court. The court held that this paper was inadmissible as the ground for a revision of the award.</p> <p>But it is argued, and this is the only possible ground on which the claim for a revision of the award can be maintained, —that if the arbitrators state the grounds of their award simply and without expressing the contrary, it is to be presumed that they do mean to submit those grounds to the court. This is to be taken with some qualification. If they state the grounds of their decision avowedly for the satisfaction of the parties, or one of them, and it distinctly appears that they do not intend to submit their conclusions as matter of law to the court, then the award is conclusive. The question is, as to the intent of the arbitrators. Perhaps where they say nothing in regard to their intent, the presumption is that they intend to say “ these are the grounds of our award, if they are right in point of law, we think the award is right, but we submit the question to the court.” In such a case the court might revise and set aside the award, if it were found not to be well grounded in point of law, because it would not then be the award which the arbitrators intended to make.</p>

<p>This action, for bodily injury sustained by Mrs. Lund, the female plaintiff, alleged to have happened by reason of a defect in a highway, was tried before Cushing, J. who signed the following report: “ The alleged defect consisted of a culvert running across the highway, and a hole at one end of the culvert. The highway was one which the defendants are bound to keep in repair, and no question arose on that point, or as to notice to the defendants. In the course of the trial it was proved, among other things, that, as the plaintiffs were driving together in their wagon, along the travelled part of the said highway, between the hours of eight and nine o’clock on a certain evening, a band of music, a little way in advance, in or near the road, suddenly commenced to play, by which their horse was alarmed; that this happened near to the alleged defect in the highway; and that in the course of the incident Mrs. Lund was taken up from the ground, at or near the culvert, seriously injured; but the precise manner in which she came to the ground, whether by being forcibly thrown from the wagon, or by leaping from it, or by the two actions concurring; and whether the wagon did or did not come in actual contact with the hole or the culvert, were questions of fact, among various others in this cause. It did not appear in evidence that the wagon was actually overturned.</p> <p>“ I gave to the jury the usual instructions, to inquire whether the proved condition of the highway was a defect or not, as alleged; whether or not the misadventure happened by reason of the alleged defect, and whether the plaintiffs had or had not proved ordinary care and prudence; and I applied the general principles of law to the particular facts in the case, so far as justice to both parties seemed at the time to require.</p> <p>“ After the jury had been out some time, they came in and asked for instructions on the following question, presented by their foreman, in writing, namely: ‘ On the hypothesis that the wheel of the wagon did not go into the hole, but that Mrs. Lund jumped, for fear that she should sustain an injury, in case it did go into the hole, are the defendants liable ? ’</p> <p>“ Thereupon I instructed the jury, in substance, as follows, namely: When a party is travelling on the highway, and there is a legal defect in it, and the party, under apprehension of the imminent peril by the near approach of his carriage to the defect in the highway, but without or previous to actual contact with the defect, leaps from his carriage and is injured thereby, then the rule of law is this : It is an element of the question of reasonable care on the part of a plaintiff. If the plaintiff be placed, by reason of the defect in the highway and his approach thereto, in such a situation as obliges him to adopt the alternative of a dangerous leap, or to remain at certain peril, and he leaps and is injured, then all the conditions of liability being fulfilled, he may recover damages of the party responsible for the repair of the highway. On the other hand, if the plaintiff’s act result from a rash apprehension of danger, which did not exist, and the injury he sustains is to be attributed to rashness and imprudence, then he cannot recover.</p> <p>“ The thing to be determined in the present case, upon the fact supposed and the question propounded by the jury is, whether, on that supposition, Mrs. Lund was placed, by the imminence of contact with the alleged defect, in such a situation as to render what she did a prudent precaution; and whether she did, at the time and under the actual circumstances, conduct with ordinary self-possession and constancy of mind, and if so, although it might now appear that she acted in part or in whole with volition, and without injury might have retained her seat; yet, nevertheless, if the other legal conditions of recovery be fulfilled in the case, the action is maintainable ; but if, in the contingency assumed, she acted without reasonable or ordinary prudence and judgment, then it is not maintainable. The verdict being for the plaintiffs, to these instructions the defendants excepted.</p> <p>“ If the instructions were proper and correct, judgment is to be entered on the verdict; if not, a new trial is to be granted.”</p>

<p>A reissue of an old patent, which has been surrendered on account of defective specifications, does not constitute a new patent; and an existing contract concerning the patent, before its surrender, applies equally to it after the surrender and reissue.</p> <p>G. executed the following contract with B.: “ In consideration of one dollar to me in hand paid, the receipt whereof is hereby acknowledged, I engage to grant to B. license to manufacture, under my patents and improvements, India Rubber Hose in general, except that made of pure gum, and to obtain the assent of the Naugatuck company to said license. It is understood that said B. shall pay a tariff, the same per square yard as that paid by the Goodyear company upon belting. In the event of the right of said hose being disposed of, said B. is to receive one half the bonus obtained therefor, it being optional with him to retain, if he prefers it instead, a half right to manufacture under said tariff.” Held, that B. thereby obtained an immediate right to manufacture hose, and not merely an obligation for a future right, and that he could recover one half of the amount received by G. for a subsequent sale by him of the right to manufacture said hose.</p>

<p>Upon an agreed statement of facts all questions as to the formal pleadings are understood to be waived unless directly reserved.</p> <p>Since the St. 1836, c. 273, abolishing special pleading in this commonwealth, a defendant in replevin may, under the general issue, show title to the property in ■ unself.</p> <p>A. sold B. 250 barrels of pork, part of a larger lot, all of the same quality, having the same marks, and all stored in the same cellar of A., but no separation was made. B. sold and delivered C. 100 barrels of the same pork, and afterwards Sold D. the remaining 150 barrels, and gave him an order on A. therefor, which, being presented to A., he assented to hold the same on storage for D., but nothing was done to distinguish or separate the 150 barrels from the other pork of similar brand still in A.’s cellar. While the pork remained so stored, B. became insolvent, and A. then refused to deliver the 150 barrels to D. on said order. Held, that the 150 barrels were not so specified and separated from the whole mass, that D. could maintain replevin therefor against A.</p>

<p>This was a bill in equity, under St. 1838, c. 163, § 18, to set aside a compromise made by the complainants’ assignee in insolvency with certain of their debtors, and to reduce the allowance made to the assignee for his services as excessive. The facts in the case sufficiently appear in the opinion of the court, which was delivered by</p>

<p>Assumpsit for breach of a warranty that certain flour should keep sweet during a voyage to California. The defendants, a corporation established for the manufacture and sale of flour, among other grounds of defence, not necessary to report, denied that they undertook and warranted as set forth in the declaration. At the trial in this court, before Bigelow, J. it appeared that the plaintiff, being a merchant engaged in the California trade, on the 19th of January, 1850, obtained from the agent of the defendants the following memorandum of agreement in writing, namely: “ I am to furnish Mr. Upton 4000 qrs. bbls. of flour, in good tight packages, on or before the 18th February next. The flour to be of such a character as will ensure its keeping sound on a voyage to San Francisco. For S. C. Mills, W. W. Allcott. January 19th, 1850.”</p> <p>On the 18th of February, 1850, the flour having been made at the defendants’ mills, and delivered to-the plaintiff for shipment, the said Allcott made out and delivered to the plaintiff the following bill of parcels, receipt, and memorandum oí warranty: “ Boston, Feb. 18th, 1850. Mr. George B. Upton, Bo’t of W. W. Allcott, [flour described], Rec’d pay’t, Feb. 18th, 1850, by notes payable in 6 months. William W. Allcott. The above flour is warranted to keep sweet during voyage to California. Witness, Geo. B. Upton, Jr.”</p> <p>The warranty, receipt, and signature, on the above bill of parcels, were in the handwriting of said Allcott. The residue of the bill of parcels was written by a clerk. The plaintiff also offered evidence tending to show the injury to the flour on the voyage to California, but the evidence upon this point became immaterial in the final decision of the cause.</p> <p>For the defendants, said W. W. Allcott, among other things, testified as follows: “ In January, 1850, I held the office of superintendent and general agent for the Suffolk County Mills (the defendants). My duties were confined to manufacturing and selling on commission. I have been a director for some time. I had no special instructions in regard to making sales. No authority was ever given me by the company to enter into such a warranty as in tl e bill of parcels. I never represented to Mr. Upton that I did not have such authority. I never mentioned to the directors that I had given such a warranty until the claim was made by Mr. Upton. I return the proceeds of sales from day to day to the treasurer. My agency in selling is limited to selling and paying over the proceeds. I think no extra price was paid for the warranty. I never stated to Mr. Upton that this was my contract, and not that of the company. I made this sale for a commission, on account of the Suffolk County Mills, and as their property. I entered the sales, as agent of the company, in books belonging to the company, but not the warranty.” Upon this, and much other evidence in the case, which finally became immaterial, the case was taken from the jury under an agreement of the parties, that if the court should find upon the evidence that the contract of warranty was not originally binding upon the defendants, or had not been ratified by them, the plaintiff was to become nonsuit; otherwise the case was to be referred to assessors.</p>

<p>An agreement in writing, not sealed, whereby P., A., and two others, “a building committee,” in consideration that M. would construct a building for a medical college by a time specified, and furnish materials therefor, agreed to pay him certain amounts according to the monthly estimates of an architect named, was signed by all the parties in person, except P., whose name, in his absence, but by his authority, was signed by A., without adding any thing to show that it was not affixed by P.’s own hand. P., on being told what had been done, said all was right, and afterwards did all he could to insure the completion of the building. After M. had commenced an action against the four members of the committee to recover for work done and materials furnished under this agreement, all the ' parties executed a second agreement, under seal, reciting that they had made the first, and that a third person had agreed to advance a sum of money to be secured by mortgage on the building, for the purpose of insuring its completion; and stipulating that M. should do certain additional work on the building, and have it finished by a certain time ; that the sum so advanced should be applied, first, to pay for work thereafter done by M. on the building, and the remainder, if any, to pay for work and materials already furnished ; and that nothing contained in this agreement should release or discharge the defendants from any debt already incurred under the original agreement, or be in any respect a waiver of that agreement. Held, that P.’s conduct subsequent to the affixing of his name by A. to the first agreement, was a ratification or adoption of A.’s act, and also rendered him liable as a party to the agreement, on the ground of an estoppel in pais.</p> <p>Held, also, that the action could be maintained without showing a previous notice to the defendants of the exact sums due according to the monthly estimates of the architect, or a demand that they should pay the same.</p> <p>Held, further, that the second agreement did not postpone or suspend the right of action on the first until the completion of the building, and that it was not necessary, in order to enable M. to recover in this action, to show that the whole of the sum advanced would be required to pay for the work done subsequently to the second agreement.</p> <p>Tt seems, that a recital in a deed is an estoppel only in an action on the deed, or in an action brought to enforce rights arising under it.</p>

<p>In this commonwealth the stealing from a vessel in the night time is a distinct offence from that of stealing from a vessel in the day time.</p> <p>Since the St.. 1843, c. 1, § 3, an averment of a larceny from a vessel “ on the 24th day of July. &c.” is to be deemed an allegation that the offence was committed in the day time, and is not supported by proof of such a larceny in the night time of that day; but the defendant might be found guilty of a simple larceny.</p>

<p>The defendant was convicted in the municipal court, Boston, upon "an indictment in these words: “ The jurors for the commonwealth of Massachusetts on their oath present, that Charles Moore, of Boston, in the county of Suffolk, trader, on the fifteenth day of April, in the year eighteen hundred and fifty-three, and for a long time, to wit, five months before the said fifteenth day of April, being owner and proprietor, and having the custody, control, management, possession, and letting of a certain tenement in a certain part of said Boston, being a tenement at the corner of Poplar street and Spring street, in said Boston, did then and there, to wit, on said fifteenth day of April, and during said five months preceding, consent, permit, agree, prepare, and provide said tenement, to be kept, maintained, used, occupied, and tenanted by lewd, wanton, and dissolute persons, as well men as women, and for a bawdy house, brothel, and house of ill fame, to be resorted to for the purpose of prostitution and lewdness by them and by other wanton, lewd, and lascivious persons, and did then and there let out to hire, for his own wicked lucre and gain, said tenement, with his own knowledge and consent, that it should be used as and for a house of ill fame, resorted to for prostitution and lewdness, and as a brothel and bawdy house, and said tenement was so used then and there for said purposes, with his, said Moore’s, full knowledge and consent, during said time and term of time, and hitherto and to the day of the taking of this inquisition, against the peace and dignity of the commonwealth and the laws thereof.”</p> <p>After verdict the defendant moved in arrest of judgment: “ 1. Because there is no sufficient description of the persons to whom said house is alleged to have been let, no names being set forth, or that they were unknown. 2. That there is no intent alleged in said indictment. 3. That there is no sufficient and legal conclusion to said indictment. 4. That said indictment is generally void and uncertain in law.” But Bishop, J. overruled the motion, and the defendant filed his exceptions.</p>