Volume 66 — Massachusetts Reports

<p>This action was tried before the chief justice of this court, November term, 1851, who signed the following report:</p> <p>“ Replevin for about seventy-two tons of American pig iron, parcel of the one hundred tons hereinafter mentioned. Plea, the general issue, and also a claim of title in the defendants, under a mortgage from the West Boston Iron Company, dated November 14,1848. There was evidence tending to show, that on the 25th' of September, 1848, upon application made by one Leonard Fuller, pm-porting to act in behalf of the West Boston Iron Company, the plaintiffs, through a broker employed by said Fuller, loaned a sum of $2,000, and took from him therefor a note, of which a copy follows: $2,000. Boston, 25th September, 1848. Value received, the West Boston Ron Company, by their treasurer, promise to pay to the order of Mr. Leonard Fuller, two thousand dollars, in twenty days, without grace. J. M. Dodd, Treasurer West Boston Iron Company. Approved. Leonard Fuller, Director; Indorsed, ‘Leonard Fuller;’ as security for said one hundred tons of iron, which iron had been recently purchased by said Fuller, as agent of the West Boston Ron Company, of Messrs. Holdeme & Feddeman, and was then on ship board, on its way from Newark to Boston.</p> <p>“ The plaintiffs took a bill of sale of said iron, in the form following, to wit: Boston, 25th September, 1848. Messrs. Fay & Farwell, bought of West Boston Iron Company, one hundred tons pig iron, a $28—$2,800, on board schooner Rio Grande, from Newark, N. J., for Boston. Received payment, Leonard Fuller, Agent.</p> <p>“ The plaintiffs also took an assignment of the bill of lading, as follows: Boston, 25th September, 1848. Please to deliver the within to Messrs. Fay & Farwell. J. M. Dodd, Treasurer. Also, an assignment of a policy of insurance, of the following tenor: In case of loss on the insurance of twenty-eight hundred dollars by this policy, indorsed 23d September, on property on board the Rio Grande, I request that the same be made payable to Fay & Farwell. Boston, September 25, 1848. For value received. J. M. Dodd, Treasurer. Agreed to: Joseph Balch, President. Also, the note, before described, at twenty days, and afterwards a renewal of said note on the 18th of October, 1848, for thirty days, and at the same time received from said Fuller two storage receipts, one of which is here set out: Boston, October 18, 1848. Received on storage, on the West Boston Iron Company’s wharf, one hundred tons No. 1 pig iron, for account of Fay & Farwell, and subject to their order. Leonard Fuller, Agent for the West Boston Iron Company.</p> <p>“ The plaintiffs then proposed to inquire of said Fuller as to the capacity in which he acted for said West Boston Iron Company, and the nature and extent of his powers ; to which the defendants objected, on the ground that as the West Boston Iron Company was a corporation, it was to be presumed, until the contrary was shown, that they kept records of their proceedings, and such records formed the best evidence of the appointment of the officers of the corporation and the nature of their powers and duties.</p> <p>“ The plaintiffs thereupon placed a book, purporting to be the records of the West Boston Lon Company, and to contain the votes and by-laws of the corporation, into the hands of said Fuller, who testified, that they were the only records kept by the corporation, to his knowledge, until the reorganization in November, 1848. That the book was in his handwriting up to the 24th of April, 1848. He copied the same from memoranda. He did not know the handwriting, and he thought the residue was in the handwriting of Mr. Dodd.</p> <p>“ Mr. J. M. Dodd testified that said book was made for the records of the West Boston Iron Company; that there was no other book of records of their corporate proceedings; that part of said records was in Mr. Fuller’s handwriting, and the residue in his own, except the proceedings of October 27th, which were written by Mr. Gavett, but signed by him, Dodd. He copied said residue from papers Fuller gave him, which were produced and marked A. B. Fuller and Dodd further testified that said corporation had no sworn clerk. It appeared that records were made by copying the minutes A. B. kept by A. Moore, Esq., who was employed to aid in the organization of the corporation, who produced and verified said minutes at the trial.</p> <p>“ I thereupon ruled that there was no sufficient evidence of a record kept by this corporation, and therefore that parol evidence was admissible to prove the agency of the persons who made the contract under which the plaintiffs claim. After this decision, much evidence was introduced in regard to the mode in which the business of the West Boston Iron Company was conducted, and relative to the acts and doings of Leonard Fuller and other persons purporting to act as officers and agents of the company. This evidence I have not thought it necessary to report at large, in consequence of the agreement of the parties to admit the written memoranda before objected to, without objection, which in some manner changed the aspect of the cause. This evidence, if thought necessary, may be subsequently transcribed or read from my minutes. But before this agreement was made, and upon the evidence as it stood, I proposed to rule and instruct the jury to the following effect:</p> <p>“ That if it had been proved that there was an act of incorporation passed, that the persons named in it met and accepted it and proceeded to act under it, in the absence of any records, it was competent to third persons to prove their doings by parol or other evidence; if, upon objection to the book produced as a record, it is obnoxious to that objection, and no other record had been kept, the doings of the corporation might be proved by other evidence : If the proof showed that Leonard Fuller was appointed general agent, J. M. Dodd, treasurer, and Gavett and others, directors, then as to the rights of third persons, the doings of such agents and officers are to be considered as the doings of the corporation; that if a note was given by the treasurer of the company, approved by one of the directors, payable to the order of Fuller, and indorsed by him, it is primâ facie the note of the corporation; that it appearing by the bill of lading by which the iron was consigned to the West Boston Iron Company, that they were primâ facie owners, the indorsement of that bill of lading by the treasurer, given simultaneously with a bill of sale by Fuller as agent, both given to secure payment of a note of the company given by their agent, vested the property primâ facie in the plaintiffs, and the storage receipt given by Fuller as such agent was within the scope of his authority, and is evidence of the right of possession ; and these together constituted a good title by way if lien and special property, unless something is shown to lefeat it.</p> <p>“ It was then agreed by the parties that the book purporting to contain the doings of the company, as heretofore testified by Fuller, Moore, and Dodd, does state all the doings of the company in its corporate capacity as far in time as it purports to go, and may be read as evidence on both sides, whether strictly a record or not. From this book, as well as the act of incorporation, it appeared that the act incorporating the West Boston Iron Company was passed the 22d day of March, 1848; that the first meeting of the corporation was duly called by two of the persons named therein, Fuller and Allen, by advertisement pursuant to the act; that a meeting was held at the time and place appointed, and the act was accepted. This book purported to contain a set of by-laws adopted by the company, elections of officers, and otner j iro-ceedings. The material portions were as follows: ‘ April 25, 1848. Chose Jonathan M. Dodd, treasurer, and Elbridge G. Reeve, secretary. May 8. Voted to accept the by-laws. Chose Leonard Fuller, agent. May 10. Voted to choose four directors. Chose Leonard Fuller, Elbridge G. Reeve, James Kendall, and Jonathan Gavett. The officers of the company shall consist of a treasurer, and an acting and general agent. [There is no mention of directors in the by-laws.] The treasurer shall preside at meetings, See.; shall keep suitable books, to record shares, Sec.; shall keep records of meetings. The general agent shall have power to purchase stock, to contract for work and materials for the use and benefit of said corporation, and generally to superintend the business thereof. All notes for the purchase of stock, or contracts for labor, shall be signed by the treasurer, and approved by at least one of the directors of said corporation.’ Whereupon the counsel for the defendants, having read the by-laws, contended that the powers of the officers as thereby conferred were limited and restricted to the special duties therein enumerated, and did not warrant the acts relied on by the plaintiffs in the present case. But it appeared by the by-laws that there was no authority conferred on anybody, in tern s, to make sales, to borrow money, or upon the treasurer to pay or receive money.</p> <p>“ They also contended that the corporation had not by its by-laws, or in any other way, authorized Fuller, as their general agent, to hire money or pledge its property, nor had they conferred any such authority on their treasurer. Whereupon I proposed to rule and instruct the jury to the following effect: That persons trading and dealing with such a corporation are not bound by the special limitation of the authority of its officers; that as against third persons, such officer* shall be taken to have the authority which their designations imply: the treasurer to do acts relating to the finances, the secretary to keep records, the agent to superintend and manage the business for which they were chartered; and that such acts are binding on the company, without express authority, and that they are not limited to special and enumerated powers contained in the by-laws. Also, that the power of the agent and treasurer to pledge the goods of the company, as security for a debt of the company, does not depend upon the law governing the power of a factor to pledge goods consigned to him; but upon the law of principal and agent, and that of a corporation and its officers; and that the agent, as such, had a right to pledge the property of the corporation for their debt; that such acts are binding on the corporation, and are not limited to the special and enumerated powers contained in their by-laws.</p> <p>“ On this announcement, both parties consented that a verdict should be taken for the plaintiffs, subject to the opinion of the full court as to the correctness of these rulings.</p> <p>“ If the court shall be of opinion that the rulings are correct, judgment is to be entered for the plaintiffs, and the damages, if any, to be assessed by the court. If these rulings of the presiding judge are incorrect, the case is to be sent back for trial.”</p>

<p>This was an action of trover for a large number of barrels of flour, commenced 13th March, 1848. At the trial before Fletcher, J., it appeared that the plaintiff, residing in Detroit, had been in the custom of purchasing flour, sometimes on his own account, and sometimes on joint account with Charles Dana Gibson, of Boston; and that in October, 1847, he purchased 1,800 barrels of flour, on his own account, and while the same was in his store at Detroit, drew certain drafts of similar character on said Gibson, in favor of the Michigan State Bank and the Michigan Insurance Company, and at the same time delivered to them certain warehouse receipts and certificates annexed to the drafts. [The substance of one set of which is stated in the opinion.] Said drafts, receipts, and certificates annexed were sent to said Gibson by the holders, said bank and insurance company, and said Gibson accepted the same; but not being paid, they were returned to, and are still held by said bank and insurance company. The flour was forwarded by the plaintiff to said Gibson, and while it was m transitu, said Gibson pledged the same, for certain advances, to the defendants, who received the same and paid the charges thereon. The defendants contended that the drafts, receipts, and certificates drawn against the property, constituted a transfer of the title and possession of the flour from the plaintiff, so that he could not maintain this action; but the presiding judge ruled otherwise, and the verdict being for the plaintiff, the defendants excepted to said ruling.</p> <p>The other facts material to the case appear in the opinion of the court.</p>

In this action, which was tried in the court of common pleas, before Wells, C. J., a verdict was returned for the plaintiff, and the defendant excepted to the rulings. The material facts are stated in the opinion of the court, and additional particulars may be found in the next case.

<p>This action was decided for the plaintiff by the court of common pleas upon an agreed statement of facts, the material portion of which appears in the opinion of this court, to which the defendant appealed.</p>

<p>The maker of a note who has paid a third person to guarantee it, is a competent witness for the payee against such guarantor, as his interest is equally balanced.</p> <p>If the maker of a note releases to a third person a claim against him, to an amount equal to the note, upon the promise of such third person to pay and take up the note, the payee of the note may enforce such promise, although not made to himself.</p> <p>It seems, that in such case the guarantor would be liable to the payee as foi money had and received to his use; the discharge of his own debt to the maker being equivalent to a receipt of so much cash for the payee of the note.</p>

<p>H. devised property to H. and B., their heirs and assigns, and the survivor of them, upon certain trusts. B. died before the trusts were fully executed. Held, it was the dutv of the probate court, under Bev. Sts. c. 69, § 8, the will being silent on the subject, to appoint a eotrustee to act with the survivor.</p>

<p>U., a native of Boston, removed to New York in 1828, where he resided until 1840, at which time he returned to Boston, and continued an inmate of his father’s family until 1848, when his father died. He then took rooms at a hotel, and remained in Boston, employed as executor of his father’s will until April 6, 1849. During this whole period he frequently expressed an intention of learbig Boston, and removing to Europe, or New York. On the 6th April, 1849, is went to New York, intending to sail for Europe, and either to fix his residence in Paris, or return to New York. He did not sail from New York, but returned to Boston on the 7th of May, and sailed from that city, June 6, 1849. In June, 1850, he returned and established his residence at Newport Held, he was an inhabitant of Boston, on the 1st May, 1849, for the purpose of taxation.</p>

<p>C. owned a dwelling-house in Brookline, in Boston, and in Beverly. He usually resided in Brookline about seven months of each year, from sometime in April to November, (except a few weeks in midsummer, spent at his house in Beverly,) when he closed that house and removed to Boston until the following April. In April, 1850, the usual preparations were made to close the bouse in Boston and remove to Brookline, but from illness he was not able to go personally until some time in May. On the 28th of April, he informed the assessors of Brookline of the cause of his detention in Boston, and that he desired to continue a citizen of Brookline, and taxable there, where for many years he had been taxed, and had exercised all municipal rights and privileges. Held, that although actually in Boston on the 1st of May, 1850, he was not rightfully taxed there upon his poll and personal estate.</p>

<p>Taxes upon the property held in trust by the “ Trustees of the Greene Foundation,” a corporation chartered February 12, 1824, are properly assessed in Boston, to the corporation in its corporate name, and should not be assessed to the assistant minister for the time being of Trinity Church, Boston, although he is entitled to the whole net annual income of said property.</p>

<p>This action came before this court upon exceptions to the rulings of Mellen, J., in the court of common pleas, January term, 1851, where a verdict was found for the plaintiffs. The facts, so far as necessary to understand the points actually decided, appear in the opinion.</p>

<p>An assessment on a premium note, given to a mutual fire insurance company, duly laid at a regular monthly meeting of the president and directors, held pursuant to the by-laws of the company and the statutes of the commonwealth, is valid, without affirmative proof that notice was given to the directors that an assessment would be laid at such meeting; although one by-law of the company provides that “ in case an assessment he needed for any purpose, the directors shall have power to order such assessment at any meeting called for that purpose.”</p>

This action of assumpsit, brought July 3, 1849, to recover $975, with interest from April 15,1849, was submitted to the court of common pleas on the following facts : The defendants were incorporated March 15,1844, with a capital of 25,000 shares, of one hundred dollars each.

On a subsequent motion of the defendant in error, for double costs and interest on the former judgment at twelve per cent., according to the provisions of Rev. Sts. c. 112, § 14, on consideration, it was ordered that the defendant in error be allowed costs of this writ and interest on his former judgment, at the rate of nine per cent, per annum.

<p>Debt on a jail-bond for the prison limits, given by Edwards, one of the defendants, as principal, and the others as his sureties. Defence, a discharge under Rev. Sts. c. 98, for the relief of poor debtors. At the trial in the court of common pleas, it appeared that a written application was made by said Edwards, who had been committed on execution, to a magistrate, to appoint a time and place for his examination, and that at such examination the discharge, relied upon as a defence, was granted. The only question raised was upon the validity of this discharge. The plaintiff contended, among other objections not necessary to report, that the discharge was invalid because the application to the magistrate ought to have been made by the jailer, instead of by the debtor; but Wells, C. J., ruled otherwise, and the verdict was for the defendants. The plaintiff excepted to such ruling.</p>

<p>Upon a trial for a misdemeanor, if the defendants’ counsel consent that one juror may be withdrawn, and the case proceed with the remaining eleven, which consent is duly entered of record, a verdict of guilty will not be set aside because rendered by only eleven jurors.</p>

<p>Whether a conspiracy to commit a felony is merged in the felony, if completed, so that it cannot be punished as a distinct offence, as was held in Commonwealth v. Kingsbury, 5 Mass. 106, quaere.</p> <p>An indictment alleged that A., B., and C., intending maliciously to deprive D of his good name, and subject him to punishment for adultery, and to extort from him money, did maliciously conspire to insnare and falsely charge and accuse him of said crime, and thereby to extort money from him, and in pursuance of said conspiracy, that C. did entice him to her house on a certain day, and that A. and B., on a subsequent day, and on divers days and times, did maliciously threaten to accuse him of the crime of adultery with the said C. with intent then and there fraudulently to extort money from him, and in further pursuance of said conspiracy, said A. and B. did maliciously threaten to injure the name of said D. and begin a prosecution against him for said crime, with intent by such threats to extort money from him, &c.”</p> <p>Held, that the indictment was not bad for the alleged reason that it set forth an executed conspiracy to commit a felony, and so the misdemeanor merged in the felony; nor because it was double, vague, uncertain, and contradictory; nor because it did not set forth the offence with sufficient certainty or precision.</p>

<p>Successive trespasses of the same kind to personal property may be sued for, and damages recovered therefor, under a declaration containing one count with a continuando.</p> <p>In an action for taking and carrying away certain sheep, a portion of which had been impounded by the defendants as field-drivers, the plaintiff is not restricted, to damages for the sheep impounded, by reason of an agreement made betwen the parties that, “ to avoid another suit, the plaintiff may offer evidence of the manner of driving the sheep, and the improper and injurious treatment of them after impounding.”</p> <p>In such an action, an agreement that if, upon a case stated, it should be determined that the plaintiff could recover, the defendants should be defaulted, and an assessor appointed to award such damages as he should consider proved, followed by a default under such an agreement, does not admit that the defendants took and carried away the whole number of sheep alleged in the writ, but the plaintiff is still bound to offer evidence before the assessor of the extent of his loss.</p> <p>In trespass de bonis asportatis against several defendants, damages can be assessed only for acts committed by all the defendants jointly, and the rule is the same, although all the defendants have been defaulted by agreement.</p>

<p>Trespass for taking and carrying away certain sheep belonging to the plaintiff. At the trial in the court of common pleas, before Bishop, J., the defendants admitted the talcing, and justified on the ground that they were field-drivers duly elected and qualified, and that the sheep were running at large contrary to law, and for that cause were taken up and im pounded in the town-pound. To prove this they coiled Thomas B. Field, one of the field-drivers of Nantucket, not connected with this taking, who saw the defendants drive a large flock of sheep to the town-po.und about the first week in January, 1849, and the next forenoon he saw a notice posted upon the comer of the Commercial Exchange, the usual place of posting notices. It was admitted, that the notice had been lost or,destroyed. There was evidence tending to show, that upon impounding the sheep, the defendants immediately proceeded to take an account of their number and marks, jiad whether the notice so posted up contained a description of the sheep, and the time, place, and cause of imrf ending them, was a question submitted to the jury.</p> <p>.ti.dd Field testified that he had been and was one of the feld-drivers; that he and other field-drivers often met together in 1848, and before the impounding, to consult about their duties, that they consulted counsel and were furnished with a form of notice by counsel; that his attention was called to see if the notice in this case conformed to the form furnished, and found it did; that the notice contained a statement of the lime, place, and cause of impounding, and that he paid particular attention to these things. The form, or a copy thereof, was produced by the witness. To this the plaintiff’s counsel objected, but the court allowed the witness to examine it, for the purpose of refreshing his memory, and it was used for that purpose only. There was other evidence in relation to the posting up of a notice within twenty-four hours after the impounding.</p> <p>To the foregoing evidence of the contents of the notice the plaintiff objected, but it was admitted by the court. Said Field further testified, that he could not state whether the cause for impounding, as stated in the notice posted up", was for going at large in the highway, or on common and unimproved lands, or both, nor could the witness state that the notice was signed by the defendants. The presiding judge instructed the jury, that, if they were satisfied that the notice of the impounding was posted up within twenty-four hours in some public place, by the defendants as field-drivers, containing a description of the sheep, and a statement of the time, place, and cause of impounding .them, they might find a verdict for the defendants.</p> <p>Evidence was also offered, that about eleven days after the taking of the sheep, the pound-gate was found open, and said sheep were not in the pound, and this without the knowledge or consent of the pound-keeper. It was contended on the part of the plaintiff, that if the notice posted up was so far proved as to establish a primâ fade justification of the--.taking of said sheep, the burden of proof was still upon the defendants to prove, that said sheep had been disposed of according to law, by sale or restoration to the plaintiff, upon the payment, of the lawful charges of impounding. But the judge ruled, that if through any default of the pound-keeper, or any other person than the defendants, or through the insufficiency of the pound, the sheep escaped or were rescued, the defendants were not responsible therefor. The jury returned a verdict for the defendants. And to the several rulings and instructions the plaintiff alleged exceptions.</p>

<p>This case was tried before Byington, J., in the court of common pleas, October term, 1852, who signed the following bill of exceptions:</p> <p>“ This is an action against the defendants to recover a sum of money expended by the plaintiff in defending a suit brought against the said Vincent by Hiram Folger, and for services rendered by him in so defending. The action was replevin of Folger’s cattle taken and impounded by Vincent, as field-driver of Nantucket, brought originally before a justice of the peace, and appealed to this court, and judgment rendered in favor of said Vincent, October term, 1850, for damages and costs. The record of the case, Folger Vincent, (see 7 Cush. 355,) is made a part of the case, and a copy is annexed, as also the writ, pleadings, and plaintiff’s bill of particulars in this case. It was admitted that the plaintiff was a field-driver of Nantucket, for the years 1848 and 1849 and he claimed to recover in this action, on the ground that being such field-driver, in the month of October, 1849, he took up and impounded in the town-pound of Nantucket, certain cattle of H. Folger, for going at large contrary to law; that Folger sued him in an action of replevin for so taking and impounding them, and the town voted to indemnify said Vincent for his liabilities and expenses incurred in defending said suit. To support his cause, the plaintiff, besides the admission by the defendants that he was field-driver as aforesaid in 1848 and 1849,' and the production in evidence of the said record of Folger v. Vincent, proved the following facts, viz : That he took up said Folger’s cattle in the month of October, 1849, for which he was sued, and he defended that action on the ground that he took them as field-driver. Also, the following votes of the inhabitants of the town of Nantucket, viz: one passed in February 14th, 1849, as follows: ‘Voted, on motion of Charles Bunker, that the town will indemnify the pound-keepers and field-drivers for expenses and liabilities incurred by them thus far in the discharge of their duty.’ And on February 13th, 1850, the following vote: ‘ Voted to indemnify the field-drivers and pound-keepers.’ The plaintiff then offered evidence tending to show the expenses incurred, and services rendered, as claimed by him, and contended that upon the foregoing facts he had a legal right to recover for such payments and expenses. The presiding judge was of opinion that upon the foregoing facts, the plaintiff had shown no legal right to recover, and directed the jury to return a verdict for the defendants; to which rulings the plaintiff excepts.”</p> <p>The case was very elaborately argued in writing.</p>

<p>Issues to a jury, arising in a suit in equity, should be framed and filed at a jury term, and not a law term of this court.</p>

<p>This was an action of tort for a horse and buggy wagon, attached by the defendant, a deputy-sheriff, as the property of one Charles E. McCarty, September 11, 1849. The plaintiff, an inhabitant of Hillsdale, in the state of New York, claimed title under a prior mortgage from said McCarty, made and dated at said Hillsdale, September 1st, 1849, at which time the property was at Hillsdale, and in the possession of said McCarty. The mortgage was duly filed in the town-clerk’s office of Hillsdale, according to the laws of New York, which were produced and read at the trial in the court of common pleas. Rev. Sts. of New York, vol. 2, p. 71. The plaintiff also proved a due demand on the defendant for the payment of the amount due him on said mortgage, pursuant to Rev. Sts. c. 90, § 79, and that payment was refused. The defendant offered to prove that said McCarty, the mortgagor, at the time of making the mortgage, resided in the town of Mount Washington, in this county, and after the mortgage was made, immediately returned with it to this state, and the same remained here in his possession, until it was attached by the defendant, on a writ in favor of citizens of Connecticut, who had no knowledge of the mortgage; nor was the same recorded in the town of Mount Washington. Mellen, J., ruled that these facts constituted no defence to the action, and the verdict being for the plaintiff, the defendant excepted to such ruling. The other facts of the case are stated in the opinion.</p>

<p>This was an action of contract on a bond, executed by Thomas J. Hazzard, as principal, and Henry Whitman, one of the defendants, as surety. Said Hazzard was treasurer and collector of the town of Hancock for the year 1850-1851; and the condition of the bond was, that said Hazzard, “ as treasurer and collector aforesaid, shall faithfully collect, account for, and pay over all taxes which he should be legally required to collect, and also with diligence and fidelity discharge all the other legal duties of the aforesaid office.” The breach alleged was,that said Hazzard did not pay to the county treasurer, in pursuance of the warrant committed to him, the tax apportioned to said town of Hancock, and required to be paid by said town to the county treasurer; and that a part of said tax, namely, the sum of $326, still remains unpaid by the said Hazzard. The defendants, admitting that said Hazzard failed to pay over to said treasurer said sum, as alleged by the plaintiffs, offered to prove that after said sum had been collected by said Hazzard, and while it was in his possession as treasurer aforesaid, without any default on his part, and while in the exercise of due care, diligence, prudence, and fidelity, said sum was stolen from the dwelling-house of said Hazzard, in said town of Hancock.</p> <p>It was agreed by the parties, that if the court should be of the opinion that the above facts, if proved, constitute a defence to this action, then the cause is to be set down for trial. If, on the other hand, the court are of opinion that said facts do not constitute a defence, judgment is to be rendered for the plaintiffs, for such sums and interest as said Hazzard had collected and failed to pay over. The court of common pleas having rendered judgment for the plaintiffs, upon the fore going statement of facts, the defendants appealed.</p>

<p>A. took and carried away iron ore from the land of B. under a claim of right, and B. took a bond from A. to pay the value of the ore if it should be finally determined to be B.’s property. Held, that the bond was a bar to an action of trover by B. for said ore against one who had purchased it of A.; and that the only remedy was on the bond.</p>

<p>Writ of entry. Plea, nul disseisin. The parties submitted the following case:</p> <p>John Perry was seised in fee-simple of the premises in his lifetime, and made his last will and testament, one clause of which was as follows : “ I also give and bequeathe unto my three sons, Benjamin, Lambert, and Stephen, all the real and personal estate (except household goods above mentioned) that I shall die seised or in any way possessed of, to be equally divided between them, to them and the heirs of their bodies lawfully begotten, except as hereafter excepted, viz: that, in case either of my said before-mentioned sons, Benjamin, Lambert, or Stephen, should die without any legal issue, it is my will that said deceased son’s estate, that he shall receive by virtue of this will, shall be equally divided between the two surviving sons or their legal heirs.” A subsequent clause in the will is as follows: “ As to the rest and residue of my real and personal estate that I shall die possessed of, I give unto my said three sons, Benjamin, Lambert, and Stephen.”</p> <p>Said John Perry died in 1802, and his will was approved, and probate granted thereon, January 3, 1803. Lambert, in 1805, conveyed his interest in the premises to Benjamin and Stephen, and died 20th January, 1843.</p> <p>After the deed from Lambert, said Stephen and Benjamin, March 22,1821, conveyed a part of the .premises, to wit: ten acres and a half, to Ephraim Baldwin, by a deed witnessed by only one subscribing witness, and by mesne conveyances the same came to the tenant in this action; and in 1822, Benjamin deceased, without having made any other convey anee; and on 23d February, 1826, said Stephen, by deed, executed in presence of two subscribing witnesses, conveyed <"he residue of the demanded premises to the tenant.</p> <p>The ages of the demandants are as follows: Said John was bom June 24, 1803; Clarissa, November 22, 1805; Vienna, September 18, 1808 ; Isaac, July 21, 1813; Daniel, April 25,1818. Clarissa was married March 21, 1826, and Vienna, March 26, 1834. The said Stephen died insolvent October 18, 1848, his heirs receiving no property from him, and the demandants are children and heirs of said Stephen. [The other facts necessary to understanding the case appear in the opinion of the court.]</p> <p>The case presenting a question of construction of the will, was, by consent, taken from the jury, and it was agreed that such judgment should be rendered in the case as the whole court, upon considering the will and the facts aforesaid, should direct.</p>

<p>A submission under a rule of court, may, by agreement, comprehend other matters in controversy between the parties, not embraced in the action.</p> <p>Several actions for a nuisance, occasioned by the defendant’s dam, were referred under a rule of court, accompanied with an agreement that the referees might assess the damages, since the date of the last writ, and prior to the first action; and decide how much, if any, the dam should be cut down, and that the same should be done “ under their direction.” The award assessed the whole damages and fixed the height of the dam. Held, that the award should be accepted, and that judgment should be entered for the abatement of so much of the dam as the award found to be a nuisance; and that the abatement need not be made under the supervision of the referees, but by the sheriff in the usual way.</p>

<p>This case was submitted to the court of common pleas, and by appeal to this court, upon an agreed statement of facts, which are sufficiently disclosed in the opinion of the court.</p>

<p>The only question argued in this case was the admissibility of a deposition, admitted by Byington, J., at the trial in the court of common pleas, June term, 1853, to which decision, the verdict being for the plaintiff, the defendant excepted. The facts appear in the opinion.</p>

<p>A justice of the peace is not liable to an action for not sending up the recognizance of an appellant from his decision in a civil case, if the same is not demanded of him and his fees tendered therefor.</p>

<p>On the trial of an action upon an award, where the only issue is upon the impartiality and disinterestedness of one of the referees, an instruction to the jury, that if they believe, upon all the evidence, that such referee was not disinterested, or that he conducted himself with partiality to the plaintiff, the award is void, is pertinent, and sufficient. The defendant has no right to single out portions of the evidence, and ask the court to rule that if these be found true, the award is bad.</p>

<p>Gold and silver coin collected by an attorney at law, on a claim due his client, cannot be attached in the ordinary way, in his hands, as the property of the client, since the obligation of the attorney to pay it over is but a chose in action, and the specific coin has not vested in the principal.</p>

This case was tried in the court of common pleas, before Mellen, J., who signed the following bill of exceptions : “ This was an action of contract upon an insurance policy against loss by fire, effected by the defendants, a corporation established by the laws of New York, and having its usual place of business in Hudson, N. Y. “ The defendants alleged the policy to be void, and, to prove it, introduced the application, by which it appeared that the insured had, in said…

This action was tried in this court before Fletcher, J., at September term, 1852, under whose rulings a verdict was given for the tenant, and the demandants excepted to the rulings. At the argument in Boston, January 11, 1854, the demand-ants also moved for a new trial, on the ground of newly discovered evidence. The whole case sufficiently appears in the opinion.

<p>Assumpsit against the makers of a promissory note for $500, dated October 14, 1850, payable to Harrison Rowley or order, one year from date, with interest, and by said Rowley indorsed to the plaintiff. The defence was usury. The plaintiff replied that the indorsement was before the maturity of the note, and for the full value thereof, and that he took the note in good faith, and without notice of any usury, or other defence; and also denied the usury. At the trial in the court of common pleas, before Wells, C. J., October term, 1852, it was admitted that Rowley, the payee, was still living, and the testimony of Robert E. Robertson, one of the defendants, was offered to prove the usury, but the court refused to admit the testimony, because the suit was not between the original parties to the transaction. No other evidence of the usury was offered, nor was it contended that the plaintiff was not, as alleged in his replication, a bond fide indorsee of the note before its maturity, for the full value, and without notice of any ground of defence, and the jury, thereupon, rendered a verdict for $560.08, and the defendants excepted to the ruling.</p>

<p>An officer who sells an equity of redemption upon execution, and holds the surplus, after satisfaction thereof, upon a second attachment, which has since failed, is not liable to the judgment-debtor for such surplus, until he has received notice of the dissolution of the second attachment; and therefore the statute of limitations does not begin to run until that time.</p> <p>If such money is held by a deputy-sheriff, who has since ceased to hold the office, and has left the commonwealth, a demand upon the sheriff, under an oral . authority from the plaintiflj is sufficient to render him liable for the money so collected.</p>

<p>This was an action on a promissory note, as follows: $500. Northampton, February 1, 1850. On demand, I, for value received, promise to pay C. K. Hawkes or order five hundred dollars, with interest annually. Charles Collins. Ir dorsed: C. K. Hawkes, Daniel Collins.</p> <p>In his answer, the defendant alleged “ that he was not the maker of said note, but was the second indorser; that he has never been notified of a demand on the maker, and non-payment of the note in suit. And the defendant further says, upon information and belief, that the note in suit has been paid out of the estate and effects of the maker, and that it was so paid before it came into the hands of the plaintiff.”</p> <p>At the trial in the court of common pleas, before Hoar, J., March term, 1853, the following facts appeared, which, it was agreed, should be taken for the purposes of this case, subject to all legal objections to the species of proof, and to their legal effect.</p> <p>In February, 1850, C. K. Hawkes, being in trade, took Charles Collins into partnership with him, upon an agreement that Charles Collins should contribute $1,000 to the capital stock. The note in suit, signed by Charles Collins, and payable on demand to C. K. Hawkes or order, with the name of Daniel Collins upon the back, was given to Hawkes by Charles Collins, as a part of the $1,000. Hawkes, in a few months afterwards, put his own name upon the back of the note, above that of Daniel Collins, and transferred it to his sister, Mary A. Hanna, who paid him the money for it, and continued to hold it till the spring of 1851. These facts, as to the names on the note, were proved only by the parol testimony of Hawkes, and with the objection, on the part of the defendant, that Daniel Collins appeared on the note as a second indorser only, and that it was not competent to change his apparent liability upon the note by parol.</p> <p>It further appeared that the $1,000 was made up, beside the note in suit, in part by a note which one Miles G. Moies gave to Charles Collins, in exchange for Charles Collins’s note for the same sum of $300; and that Hawkes credited Charles Collins on his books for the $1,000. Charles Collins died September 14, 1850, the partnership continuing till that time ; and left, as his heirs, two brothers, and one married sister, the wife of Calvin Torrey, Esq. At the time of the funeral, it was arranged between Hawkes and the brothers, sister, and her husband, that Hawkes, instead of taking an account of partnership effects, should take back Charles’s interest in the stock, account to Charles’s estate for the $1,000 capital which he had put in, and allow him a salary during the period of the copartnership. In consequence of this arrangement, Hawkes, on the 30th of December, 1850, charged back the $1,000 to Charles Collins, thus balancing the previous credit on his book.</p> <p>It further appeared that, when Daniel Collins put his name on this note, it was agreed that Charles should effect an insurance on his life for $500, payable to Daniel, as a security for his liability. This was done, and after the death of Charles, Daniel received the insurance money. The policy may be referred to. In February, 1851, Calvin Torrey was appointed administrator of Charles Collins’s estate, and in April, 1851, veturned an inventory and an account of administration, which may be referred to. Hawkes had several interviews with Torrey relative to the settlement of his debt to Charles Collins’s estate, in none of which was any suggestion made of any arrangement different from the one agreed on at the funeral. Hawkes took up the note which Charles Collins had given to Moies, by giving Moies back bis note; and told Moies that it was agreed to cancel the notes. This was two or three months after the death of Charles. In the spring of 1851, Hawkes took back from his sister the note in suit, paying her the amount due her upon it. In September, 1851, Hawkes and Torrey had a settlement, in which Torrey declined to receive the note in suit, on the ground that Daniel Collins, having collected the insurance money, ought to pay it, but offered to take the note of the plaintiff for a like amount instead ; and Hawkes thereupon passed this note to the plaintiff, receiving for it the plaintiff’s note for a like amount, which he paid Torrey in settlement of the $1,000, and other accounts between him and Charles Collins’s estate. It appeared that Chapman, the plaintiff, was informed by Torrey of all the facts in the case, and took the note as above stated. And Torrey testified that, although there was no agreement between them to that effect, yet that he should not et the plaintiff suffer if he failed in this suit; and that he still held the plaintiff’s note, which he received from Hawkes, unpaid.</p> <p>The parties thereupon agreed that the case should be taken from the jury, and judgment rendered upon the foregoing facts as the court should order. The court gave judgment for the defendant, and the plaintiff appealed.</p>

This case was tried in the court of common pleas, March term, 1853, before Hoar, J., who signed the following bill of exceptions: “ The plaintiff claims to recover, under a policy of insurance issued by said company, for the accidental loss of a dwelling-house insured for $1,000. The policy was issued May 1,1850, for the term of five years. The loss occurred 23d of May, 1852.

<p>Buildings owned in common, but standing on land to which the petitioners claim no title, are not the subject of partition under Rev. Sts. c. 103.</p> <p>Where land and also buildings are owned in common, the buildings standing on land not owned in common, and the respondent, in a petition for partition of both land and buildings, files a claim for improvements under St. 1850, c. 27& he should be allowed for improvements only upon the land, and not for any additions to the buildings; and he is liable merely for the rents and profits of the petitioner’s interest in the land, and not in the buildings.</p>

This was a process under Rev. Sts. c. 104, to recover possession of the premises described in the writ. At the trial in the court, of common pleas, the plaintiff gave evidence tending tc show that the defendant occupied under a parol lease from January 1, 1850, with an agreement to pay rent in advance quarterly.

<p>This was an action of tort to recover damages occasioned by the breaking away of the defendants’ reservoir dam, situated in the town of Shrewsbury, whereby three bridges of the plaintiffs were carried away. Trial in the court of common pleas. The plaintiffs contended that the original dam, and the addition thereto, were insufficiently, carelessly, and negligently built; and that the defendants were guilty of carelessness and negligence in the care and management of said dam, and of the water accumulated thereby. It was proved that the defendants, after they became the owners of the dam, raised the same several feet by adding to, and building upon, the original dam. The plaintiffs introduced evidence tending to show that the original dam was insufficient and unsuitable for such purposes; and the defendants introduced evidence tending to show that it was entirely sufficient and suitable. And thereupon, as tending to rebut the charge of carelessness and negligence in raising and building upon the original dam, the defendants offered to show, that before they commenced making any addition to said dam, they employed fit, proper, and competent persons to make an examination thereof, and ascertain whether it was sufficient and suitable to be raised up and built upon ; that said persons so employed did make an examination of said dam, and did report to the defendants that in their judgment the said dam was sufficient and suitable for said purpose; and that the defendants thereupon proceeded to raise and build upon said original dam. This evidence was objected to by the plaintiffs, but Merrick, J., admitted the same, leaving to the jury to judge whether the persons so employed were fit, proper, and competent to be employed for such purpose.</p> <p>The plaintiffs contended, among other things, that the defendants were guilty of negligence in the care and management of said dam and reservoir, because they lived remote from it, and had no agent near who had the oversight thereof, and did not themselves exercise a proper degree of vigilance in watching the dam and the rise of water in the reservoir. For the purpose of rebutting the charge of negligence in this particular, the defendants offered evidence, tend-' ing to show that on various occasions, one or the other of said defendants did go to the dam for the purpose of taking care thereof, and of the water in the reservoir; and that on various other occasions, one or the other of said defendants did leave home in the direction towards said dam, for the purpose, as they declared at the time when they left, of going to it. To the admission of these declarations, the plaintiffs objected; but the objection was overruled, and they were admitted as part of the res gesta.</p> <p>The plaintiffs’ counsel requested the court to instruct the jury that the defendants were bound to use due care and skill in the construction and maintenance of their dam; to take such precautions as skilful and careful persons would use in like circumstances, and that they were bound to use care and skill in proportion to the injury or loss likely to be sustained by any improvidence or negligence on their part; that the defendants must do all that any skilful person could be reasonably required to do in such a case, and to use such precautions as would in all ordinary circumstances prevent the dam from going off.</p> <p>But the court instructed the jury, that in the construction, addition to, and repair of the dam, the defendants were bound to use due care and skill; and to take such precautions against accidents, both in respect to care and skill, as persons of ordinary prudence, possessed of competent knowledge and ability in reference to such matters, would use; that in determining the degree of skill and care which the defendants were bound to use, reference must be had to the injury or loss likely to be sustained by any improvidence or negligence on their part; that skill and diligence are always relative terms; and therefore skill and care must increase as the value and extent of interest involved increases, and as the hazard and danger increase, and must be in proportion to the injury likely to be caused by any improvidence or negligence ; that the defendants were bound, in reference to this dam and reservoir, to do, both in the care they bestowed and the skill they applied, everything which persons of ordinary prudence would be reasonably required to do in reference to such objects, and to use all such precautions as would, in the judgment of persons of ordinary prudence, possessing competent skill and knowledge to manage and control such property and such a concern, be sufficient in all ordinary circumstances to prevent the dam from going off. The verdict was for the defendants, and to these, rulings and instructions the plaintiffs excepted.</p>

<p>A. contracted with M. to erect a building in a certain time and according to certain specifications. P. advanced money to M. for the purpose of completing the building, which lean was secured by a mortgage thereon, and also took a penal bond from M. to complete said building by a certain time and according to the contract. The work was not done exactly according to the time or terms of the contract, and P., the mortgagee, was compelled to pay extra insurance on the building in consequence ; but the extra work and labor of M on the building, increased its value as a security to P., to an amount more than all the deficiencies and delay, in not exactly complying with the contract, including also the item of extra insurance. Held, that P. could recover only nominal damages of M. for breach of the bond.</p>

<p>A petition will not lie under St. 1851, c. 233, § 66, on behalf of the assignee of an insolvent debtor to compel a prior mortgagee from the same debtor to bring an action to test the validity of the mortgage.</p>

<p>This was a complaint to the police court of the city of Worcester, alleging that the complainants had reason to believe, and did believe that intoxicating liquors were “ by Rodolphus C. Edwards and Freeman G. Bancroft, of said , kept and deposited in a store, [particularly described,] said liquors being intended for sale by said Edwards and Bancroft, contrary to the provisions of the act concerning the manufacture and sale of spirituous or intoxicating liquors; they, the said Edwards and Bancroft, having no authority or appointment to sell the same according to law; whereby said liquors have become forfeited to be destroyed, and said Edwards and Bancroft have become liable to pay a fine of twenty dollars.” The defendants were convicted in the police court, and also on appeal in the court of common pleas, September term, 1852, and Mellen, J., overruled a motion in arrest of judgment, made for the following reasons, because “ 1st. The justice who received the complaint and tried the cause, was interested in the judgment thereon. 2d. The complaint does not aver that the defendants intended to sell said liquors in the city or county of Worcester, or state of Massachusetts; nor that said liquors were not imported liquors in original packages, &c. 3d. Nor does it allege that the liquors were not such as the defendants had a right to sell under St. 1852, c. 322, § 12.” The defendants excepted to the ruling.</p>

<p>This case was tried in the court of common pleas, December term, 1852, before Wells, C. J., under whose rulings a verdict was found for the plaintiffs, and the defendant brought the case to this court by a bill of exceptions. The whole facts appear in the opinion.</p>

This action was tried in this court, April term, 1853, before Merrick, J., who reported the same for the whole court, and if his rulings were correct, judgment was to be entered on the verdict for the plaintiff; otherwise the verdict was to be set aside, and a new trial granted. The case sufficiently appears in the opinion.

<p>An agent who borrows money on the note of his principal, who, however, liar ns legal capacity to give a note, is liable to the lender, for money had and re ceived, if the same be demanded before he has paid it over to his principal, oi otherwise accounted for it.</p>

This was a complaint for flowing, under Rev. Sts. c. 116, filed December 6, 1851, which alleged “that Peter Fletcher of Stow, miller, has from the first day of August, in the year one thousand eight hundred and fifty, to the day of the date hereof, maintained a certain water-mili, and a dam to raise water for working it, upon and across a certain stream or brook, not navigable, in said Stow, and that by means of the maintenance of , said water-mill and the building,…

<p>The question whether due diligence was used to make a demand on the maker of a promissory note, in order to charge the indorser, if there be conflicting evidence, is for the jury, under proper directions from the court as to what amounts to due diligence.</p> <p>Infancy of the maker of a note does not excuse the want of a demand on him by the holder, in order to charge the indorser.</p>

This was an action of contract for the services of the plaintiff’s minor son, John H. Weeks, on board the whaling schooner Shyloek.

<p>Arbitrators appointed by the probate court, under Eev. Sts. c. 68, § 11, to determine the validity of a claim against a deceased insolvent’s estate, which has been disallowed by the commissioners, have no power to award that the claimants are in fact indebted to the estate.</p> <p>An award, in such case, that nothing is due the claimants from the estate, and that the administrator recover costs, followed by the statement that the estate has a good claim against the claimants, is so far distinguishable, that one part may be accepted and the other rejected.</p>

The writ in this case, dated May 22, 1852, was returnable June 15, 1852, the regular return day, under St. 1851, c. 233, § 9. The writ was duly served, and returned by the officer to the clerk’s office in Cambridge, on or before the return day.

This was an action of tort, for a nuisance in obstructing a natural watercourse flowing through the plaintiff’s meadow, and was submitted to this court upon an agreed statement of facts, of which the following are the most material: The plaintiff was the owner of a parcel of meadow land, containing about four acres, situate in Shirley, on the westerly side of the Squannacook River, which was its eastern boundary; the defendants, incorporated by St. 1845, c. 181, duly filed,…

<p>A stipulation in a deed, accepted by the grantee, that he shall “ assume ” an outstanding mortgage on the premises conveyed, is broken by a failure to pay the mortgage debt, within a reasonable time after its maturity, and the grantor has a right of action against the grantee, for at least nominal damages, upon the entry of the mortgagee to foreclose, for non-payment of the mortgage debt.</p>

This was a writ of entry on a mortgage made by one Miller, to one G. W. Jereauld, and by Jereauld assigned to the demandant. The mortgage was dated November 1, 1849, and acknowledged November 7, 1849.

This was an action of assumpsit for work and labor, against Samuel B. Whitney and Michael Rogers. The defendant Rogers was defaulted, and, upon trial, a verdict was rendered in favor of the plaintiff for ninety dollars.

The defendant, being convicted of arson at the June term, of the court of common pleas, 1852, before Mellen, J., alleged exceptions to his ruling, the nature of which sufficiently appear in the opinion of the court. The case was argued at the October term, 1852.

<p>A- provision in the charter of a toll-bridge corporation that the bridge should “ at all times be kept in good, safe, and passable repair,” requires the company to light the bridge, if the jury find such lighting necessary to make the bridge safe and convenient for passage at night.</p> <p>An indictment charging that a corporation is bound by law to “ keep and maintain a bridge in such a condition as to render the same safe and convenient for travellers,” &c, and that the proprietors of said bridge, “ regardless of theix duty in this behalf, negligently and wilfully suffered and permitted said bridge to be, and remain, in such a condition as to render it unsafe and inconvenient for travellers, by neglecting to keep the same properly and suitably lighted in the night time, to the great damage and common nuisance,” &c., sufficiently charges a breach of a public duty, without specially alleging that they were bound to light the bridge, the jury having found that such lighting was necessary to the safety of travellers.</p>

This was an indictment for murder, tried at Cambridge, June 2, 1851, before the chief justice, and Fletcher and Bigelow, JJ., charging the prisoner with the murder of George Heywood, at Lincoln, in the county of Middlesex, the 27th day of December, 1850. The evidence for the government established substantially the following facts: Mr. Heywood, the deceased, was a constable of the town of Lincoln, and keeper of the station-house of the Fitchburg Railroad, in said Lincoln.

In this case, which was argued in Boston, January 31,1853, by E. Buttvick, for the commonwealth, and by F. C. Loving, for the defendants, the points involved sufficiently appear from the opinion of the court, which was delivered by

<p>The St. of 1836, c. 273, abolishing special pleading in civil actions, applies to complaints for flowing under JRev. Sts. c. 116; and the respondent in such a complaint may, under a specification thereof filed with the general issue, give in evidence an agreement to maintain his dam, in whole or in part, for a fixed price.</p> <p>A defence to such a complaint that the responlent has a right to maintain his dam, in part, for an agreed price, is to be tried at the har of the court of common pleas, and not merely in reduction of damages before the sheriff’s jury.</p> <p>Upon such a state of the pleadings, and the admitted fact that the respondent has maintained his dam higher tiran the agreement allowed, the court mav direct a, special verdict finding such facts.</p>

To an action for the price of a quantity of lumber sold by the plaintiffs, of Lowell, to the defendant, of Melrose, according to an account annexed to the writ, the defence was that the lumber was bought under the following agreement: “ Lowell, July 21. Otis Allen & Co. agree to furnish all the lumber for frame of Rodman’s house, Roxbury, for sixteen dollars, delivered in Boston, first floor to be delivered on the cars by the first day of August next.

This was an indictment under Rev. Sts. c. 125, § 16, for an assault with force and violence upon one Eleazer B. Buzzell, with intent to steal from his person. At the trial in the court of common pleas before Mellen, J., it appeared that said Buzzell had in his hands two bank-bills for the purpose of putting up, on a bet made by the defendants with him, which bills the defendants suddenly snatched, and ran away.

<p>Since St. 1839, c. 161, no appeal lies to this court from the judgment of the court of common pleas upon a motion in arrest of judgment in a criminal case; but the remedy is by a bill of exceptions.</p>

This was an action to recover the expense of constructing a sidewalk of brick and edge-stone, in front of the defendant’s brick building, on Gorham street, in Lowell. It was agreed that if the plaintiff had a right, under the facts stated, to tax the defendant for said sidewalk, everything had been done on the part of the plaintiff, as to petition, notice, demand, and all other proceedings which the law requires, to entitle the plaintiff to recover.

<p>The description of the grantor in a deed as residing out of the commonwealth, and proof of that fact, is not of itself sufficient evidence that the deed was in fact executed abroad, so as to admit secondary evidence of its execution, without accounting for the absence of the subscribing witnesses.</p>

In an action on Rev. Sts. c. 58, § 13, giving double damages against the keeper of a dog, in favor of a party sustaining damage by such dog, after verdict for the plaintiff, the defendants moved in arrest of judgment, because the injurious acts were not alleged to have been done, contra formam statuti. The motion was overruled in the court of common pleas, and the defendants excepted.

<p>f payments made by, a debtor on account be applied by the creditor, under a previous agreement, to certain items of the account which are illegal, such payments are valid, and cannot afterwards be revoked by the debtor.</p>

Assumpsit for the price of a horse sold to the defendant. The defence was that the horse was sold under a conditional contract, with a right to return him within a specified time, if not satisfactory to the defendant, and that the defendant did so return him.

Thomas Green, of Stoneham, in this county, died intestate, leaving a son, Martin Green, whose distributive share in his father’s estate, as decreed in the probate court, September 1, 1846, amounted to $93.02. In December, 1843, said Martin Green had been declared an insolvent debtor on his own petition, and Ira Gerry was chosen assignee of his estate.

<p>If a person summoned as trustee out of his own county, contrary to Rev. Sts. c. 109, § 7, does not appear, but is defaulted, he is liable to a scire facias in that county, especially if he do not move to dismiss the latter suit until after several terms of the court.</p>

Assumpsit for money had and received by the defendant to the use of the plaintiff’s intestate. At the trial in the court of common pleas before Wells, C. J., evidence was offered tending to show that the money sued for was received by the defendant, as alleged, from the city of Boston, in payment for land conveyed to the city by the plaintiff’s intestate, as appeared by a deed thereof which was offered in evidence.

This was an action for injury to the plaintiff’s property, by reason of an alleged defect in a highway, which the defendants were bound to keep in repair.

In an action of trespass quare clausum, the defendant justified under a license from Hannah Draper, who claimed to be rightfully in possession of the premises, as tenant in dower. At the trial in the court of common pleas, June term 1851, before Mellen, J. it was admitted that the acts complained of, were done by the defendant, and the defence was, that he acted as the servant, and by the order of Hannah Draper, who claimed to be tenant in dower of the locus in quo.

<p>Writs of entry. The cases were submitted to this court at October term, 1851, upon the following statement of facts: “ The same piece of land, consisting of flats, is demanded in both actions, and described as ‘ a certain parcel of land, with the appurtenances, situated in said Cambridge, in the county of Middlesex, and bounded and described as follows ; Beginning sixteen hundred and sixty-five feet west from the western abutment of Cambridge Bridge, on the south side of the causeway, at the centre of the creek, which runs under the little bridge, thence running upon said causeway westerly, a little to the north, nine hundred and eighty feet; then turning at right angles, and running south, a little to the west, in a straight "ine to the thread and centre of the river, sixteen hundred feet, more or less; then turning and running easterly, along the said thread and centre of the river, nine hundred and eighty feet; then turning at right angles, and running in a straight line north, a little to the east, sixteen hundred feet, more or less, to the point of beginning.’ [See R K on the annexed plan.1]</p> <p>“ The demandant claims under a grant of the Proprietors of West Boston Bridge, a corporation duly established by the laws of the commonwealth, and produced three deeds from said corporation, one dated September 14, 1846, the second dated May 13, 1847, and the third dated June 22,1849. The description in the second and third deeds is as follows : 1 A certain parcel of land situate, lying, and being in Cambridge aforesaid, and bounded and described as follows, to wit: Beginning at a point on the northerly side of the causeway called the West Boston Bridge, but now called the Hancock Free Bridge, distant forty-four feet in a straight line from the easterly line of the westerly abutment of the bridge upon said causeway called the little bridge; thence running northerly, perpendicularly to said causeway, one hundred feet; thence turning and running easterly, and parallel to said causeway, eighty-two feet; thence turning and running perpendicularly to said causeway, one hundred feet, to said causeway; thence turning and running westerly on said causeway, eighty-two feet, to the point of beginning, together with all the right, title, and interest of said proprietors to all the flats adjoining the above, not previously sold and conveyed; the premises herein released being the same intended to be released by the deed of said proprietors to said Harlow, dated on the fourteenth day of September last; this deed being executed to remedy a defect in the description of said premises contained in the aforesaid deed.’ [See P on plan.] The description in the first deed differed from the above, in not giving the directions of the northern and southern lines of the land.</p> <p>“ The third deed, of June 22, 1849, was delivered to the demandant by the agent of the said corporation duly authorized to convey the said land, upon the premises demanded in these suits, as being part and parcel of the premises in the deed described, the said demandant and the said agent having entered and standing thereon. The three deeds to the demandant were executed, acknowledged, and delivered in the manner therein recited, but the validity of their execution is a question for the court. [This point subsequently became immaterial.]</p> <p>“By the records of said proprietors, it appears that, at a meeting of said corporation, July 24, 1846, the proprietors voted, 1 that the treasurer, Joseph Mackay, Esq., be, and he hereby is duly authorized tc sign, seal, deliver, and acknowledge in the name and in the behalf of the proprietors, such deed or deeds as may be necessary or proper to convey the remaining real estate of the corporation;’ and, in pursuance of this vote, said Mackay made and delivered said deeds to the demandant.</p> <p>“ Said corporation was duly organized, and in pursuance of their corporate powers, and of the votes passed for that purpose, took possession of a strip of land beginning at the westerly end of their main bridge in Cambridge, [see B on plan,] and running westerly in the same general direction as the bridge, one hundred and thirty feet wide through its whok length, and extending to a road leading to Old Cambridge village ; which point is farther west than any part of the demand ed premises. The validity of said proceedings is not denied.</p> <p>“ In the centre, or about the centre of said strip of land, the corporation constructed a road or causeway reaching from then1 main bridge to said road leading to Old Cambridge, and in the construction thereof they built a wall on each side of the causeway and filled in between said walls with mud taken from the sides adjacent thereto, and on the southerly side of said causeway they took the same from a canal fifteen feet wide upon the extreme southerly side of said strip of land taken by the corporation as aforesaid. Said causeway is forty feet wide, and in constructing said road, it became necessary to build a bridge called “ The Little Bridge,” across a creek or cove, which extended northward from Charles River, and into which the tide flows some distance above said “ Little Bridge.” In the construction of said “ Little Bridge,” the corporation built the same upon rows of piles extending across said creek, said rows being about twenty feet apart. This creek and bridge are the same referred to in the declaration and in said three deeds.</p> <p>“To show that said corporation became seised in fee of the lands claimed by the demandant, he offered the following deeds: 1st. John Chenery (or Jeenery) to said proprietors, dated June 28, 1794. 2d. Ebenezer Swan to said proprietors, dated February 23, 1795. 3d. Thomas Beal to said proprietors, dated February 23, 1795. 4th. Leonard Bond and others to said proprietors, dated December 7,1797. 5th. Daniel Mason to said proprietors, dated August 16, 1797. All the grantors in said five deeds were the owners of the whole estate in the premises described in their respective deeds, and the due execution and recording thereof is not denied, and all the said five deeds are, in form, conveyances in fee, with covenants of general warranty.</p> <p>“ The demandant also put into the case the plan of Osgood Carleton, referred to in said five deeds, showing the lands conveyed by Chenery, Swan, Beal, and Bond, and also showing the causeway and the land taken by said corporation as aforesaid, and the ditches or canals on each side of the causeway from which the said material was taken. The land demanded is, as the demandant insists, adjoining to the parcel described by metes and bounds, and conveyed to him by said three deeds of said corporation, by the flats extending under the Little Bridge, which flats were also owned by the said corporation at the time of their said deeds to the demandant, and as the demandant alleges, were conveyed to him by said deeds. Said corporation has never conveyed any part of the demanded premises, unless by the said three deeds to the demandant.</p> <p>“ The tenants are the owners of all the estate which was of Jonas Bond, and which was not conveyed by the said deed of Leonard Bond and others; the division lines between the tenants to the first of the above-named actions, and the tenants to the second, are not supposed to be material to these cases ; the demandant having claimed the same land in both actions. The persons designated as owners in Carleton’s plan, were owners of all the flats adjoining their respective parcels, but their division lines had not, and have not been marked out. Upon these facts, and all inferences which a jury would be justified in drawing therefrom, the court aie authorized to render such judgment as law and justice may require.”</p> <p>The arguments were at Boston, in January, 1853.</p>

<p>This case came before the whole court upon a report of Bigelow, J., with an agreement of parties that the whole court-should draw such inferences from the evidence as a jury would be authorized to draw, and render such judgment as law and justice might require. The facts appear in the opinion. The arguments were at Boston, in January, 1853.</p>

This was an action of contract, to recover of the owners of a vessel employed in the mackerel fishery, the amount of the plaintiff’s wages while so employed during the fishing season of 1851.

<p>If a defendant die pending a motion on his behalf for a new trial, and the plaintiff neglect, upon such motion being subsequently overruled, to have judgment entered as of the term when the verdict was rendered, in pursuance of St. 1842, c. 89, § 2, he cannot have the action brought forward and judgment rendered against the administrator, after four years have elapsed from his appointment.</p>

<p>A justice of the peace has no authority to issue a warrant for the arrest of a witness who failed to attend before him, when duly summoned on behalf of the commonwealth, if the case in which he was to testify has been finally determined and ended ; and such witness will be discharged on a habeas corpus.</p>

This was a complaint under Rev. Sts. c. 104, in the form prescribed by section 4, returnable before the police court of New Bedford, where the respondent pleaded orally, and on appeal to the court of common pleas, pleaded the following defence : “ And the said Alden says that he is not in possession of the premises in said complaint described and demanded.” The complainant demurred to the plea, because it was bad and insufficient in law.

<p>'Part payment of a debt, made by the administrator of the debtor, takes the debt out of the general statute of limitations, (Eev. Sts. c. 120,) although it appears that no promise was then made to pay the balance.</p>

This action was submitted upon an agreed statement of facts as follows: The defendants’ testator, William Davis, late of Plymouth, died leaving a will, one clause of which was, “ I give to my grandfather, Nahum Mitchell, (the plaintiff,) if he survives me, the property and rights of property devised to me by the will of my mother, Harriet Davis.” The will of Harriet Davis was as follows: “ I give, devise, and bequeath unto my son, William Davis, all the estate, both real and…

This case was tried before the chief justice, at May term, 1852, who reserved the case for the consideration of the whole court, upon the following report: This is an appeal from the decree of the judge of probate, allowing and admitting to probate the will of Joshua Buck, deceased, taken by a daughter and heir at law of the deceased.

This was a real action, in which both parties claimed title under Dr. Nathan Perry, father of the demandant. At the trial before Shaw, C. J., it appeared that in May, 1847, said Nathan Perry, then owning the premises, conveyed them to Dr, Ebenezer Alden, who simultaneously executed a bond to reconvey the same, upon performance of certain conditions therein named.

<p>This was a petition for a certiorari to quash the proceedings of the commissioners of Plymouth, county, in laying out a highway. It alleged that “ Nathaniel Church and others presented their petition to said county commissioners, representing that the highway leading from the guide-board, near Ichabod Hatch’s mill, in Marshfield, to the Boston and Plymouth road, in said Pembroke, is in many places narrow and inconvenient, and also that there are two very prominent and steep hills, both of which can be avoided by locating a new road or roads a short distance, and by which the distance of travel would be much shortened. And also that the highway leading from Ephraim Randall’s, in said Pembroke, easterly to the house of John Ford, Esq., in Marshfield aforesaid, is in many places very narrow and crooked, and that there is one very bad hill in said road, near the house of the late Elisha Magoun, in Pembroke, which would be in part avoided by locating a new road across a corner a very short distance, and praying that said commissioners would view said premises and make such widening, alterations, and locations as the public convenience and necessity should require, and also to discontinue such parts of the old road as said commissioners should deem expedient.</p> <p>“ And your petitioners further show that after and pursuant to an order of notice, the said county commissioners, after a view and hearing of the parties interested who were present, did adjudge and determine, that the public convenience and necessity did require that the prayer of said petitioners be granted, as appears of record in the office of the clerk of said commissioners, and on the eighth day of October, 1849, did proceed to widen, alter, and new locate the said roads as prayed for in said petition.</p> <p>“ And your petitioners further show that among other widenings, alterations, and new locations by said commissioners there made, said commissioners did locate a new road, as mentioned and described in their return made and recorded in the office of the clerk of said commissioners, in the words and figures following, viz: They commence laying out and establishing a new road at a stake in the easterly side of the Brick-Kiln lane, so called, in Pembroke, on land of William Collamore, near his house, thence south seventy-one and three fourths degrees, east, five rods and eighteen links to land of Luther Briggs: Same thirty-seven rods and four links to a stake, south seventy-eight and a half degrees, east thirty-five rods to the creek: Same course one rod, ten links to land of the heirs of Anthony Collamore, in which widow Caroline Collamore has a life-estate: Same course seventeen rods to a stake, south eighty-three degrees, east one hundred and thirty-six rods to the road near the house of Nathaniel Magoun, the road to extend in width one and a quarter rods on each side of said line.’</p> <p>“ And your petitioners further show that said county commissioners in and by said locations, did order and require your petitioners to cause said widenings, alterations, and new locations, so far as the same are within the limits of the town of Pembroke, to be built and made safe and convenient for public travel, on or before the first day of January, 1851. And your petitioners further show that believing that said county commissioners, in the location of the new road above described, have exceeded their authority by law, they have refused and neglected to build said new road agreeably to the location of said county commissioners. Whereupon the said county commissioners did proceed to take measures to build said new road above described, and have given public notice by advertisements in the newspapers printed in Plymouth, that they wifi put out at auction on Saturday, the fifteenth day of May current, at two o’clock in the afternoon, the building of the same, a copy of which advertisement is exhibited herewith.</p> <p>“ And your petitioners further show, that said county commissioners, as they are advised and believe, have exceeded their authority in locating the piece of new road hereinbefore mentioned and described, extending from Brick-Kiln lane, so called, to the old road near the house of Nathaniel Magoun, in the following particulars, to wit:</p> <p>‘1st. Because the petition upon which the said new road was located, was defective, because one of the termini was not stated and described with sufficient definiteness therein, and the persons and corporations interested in the notice therein, could tell within four miles where the point of ter mination was intended to be.</p> <p>12d. Because the location of said piece of new road above mentioned and described, does not follow the route prayed for in said petition, nor does it have its terminus in the Boston and Plymouth road, as set forth in said petition.</p> <p>‘ 3d. Because said county commissioners exceeded the prayer and intentions expressed in said petition by laying out a new road two hundred and thirty-two rods in length from the old road, near Nathaniel Magoun’s, to Brick-Kiln lane, so called, while said petition only contemplated and prayed for such widenings as should be necessary, and for such alterations and new locations as should be necessary to avoid the hills therein mentioned, and cut off the crooks and curves between the guide-boards at Ichabod Hatch’s mill, to the present termination of the old road at the Boston and Plymouth road.</p> <p>‘ 4th. Because the said commissioners did locate an entire new mad from Nathaniel Magoun’s to Brick-Kiln lane, without discontinuing any portion of the old road from said Magoun’s to the Boston and Plymouth road, and the same was not an alteration or widening of the old road from the guide-board near Ichabod Hatch’s, to the Boston and Plymouth road, neither was it such a new location as was necessary to avoid the two hills mentioned in said petition.</p> <p>15th. Because said new location having one of its termini at the old road, and the other terminus being at Brick-Kiln lane, is not either at the Boston and Plymouth road, or in said old road, and so is entirely illegal and void.’</p> <p>“ Wherefore, your petitioners pray that a writ of certiorari may issue, directed to said county commissioners, commanding them to certify to this court the whole of their proceedings in the premises, and that said record and proceedings may be quashed. And your petitioners further pray, that the said county commissioners may be restrained by an injunction, from any further proceedings in relation to the construction of this road, or in the making of any contracts for the construction thereof, until the further order of this court.”</p> <p>At the October term, 1852, the respondents answered “ that the prayer of said petition ought not to be granted, because thev say there are no errors to be corrected in said proceeding, the same having been conducted in every respect according to law, as by the records of said court of county commissioners here in court, now produced, will appear.</p> <p>“ And for further answer to the petition, specifications, and assignments of alleged errors in said proceeding, they say in answer and denial of the first ground specified: That the termini were described in the petition with sufficient definiteness, as much so as the statute requires, and that the town of Pembroke, the complainant, had due notice thereof, and were present by their agents, at the hearing and view of said petition with said commissioners, and they had further and sufficient notice of the exact termini of the proposed location.</p> <p>“ To the second ground: They answer that the location of the said new road mentioned in the alleged error does follow the route prayed for in said petition, and has its terminus in effect and practically in the Boston and Plymouth road; that is to say, its terminus being in Brick-Kiln lane, and but a few rods from the Boston and Plymouth road, and said Brick-Kiln lane leading to and connecting with said Boston and Plymouth road. Said new road is also between the termini mentioned in said petition.</p> <p>“ To the third: They answer and deny that they have exceeded the prayer and intentions expressed in said petition. The records show no such objection and error. They submit the said location was within the termini named in the said petition, and avoided the hills therein mentioned, and was such a location as the petition prayed for, and as in your respondents’ judgment, public convenience and necessity required.</p> <p>“ To the fourth: They answer that the said petition prayed for the location of a new road or roads a short distance, and by which the distance of travel would be much shortened, and the public convenience and necessity did not require, in your respondents’ judgment, the discontinuance of the old road; and they submit that said location and doings which appear upon the record, was an alteration of the old road from the guide-board near Ichabod Hatch’s to the Boston and Plymouth ro'ad, and such a location as was necessary to avoid the two hills mentioned in said petition. “ To the fifth: They answer, one of the termini in the location is substantially and practically at the Boston and Plymouth road, as was before stated, and the other terminus as at the old road, that is to say, at a point in the road near the house of Nathaniel Magoun’s, in Pembroke, which point is in the old road and between the termini described in said petition as the guide-board near Ichabod Hatch’s mill, in said Marsh-field, and the Boston and Plymouth road in Pembroke.”</p>

This was an appeal from the decision of David Perkins, Esq., commissioner of insolvency, allowing a claim against the estate of Thacher, Thomas & Co., insolvent debtors, of which Lemuel Mosher was the assignee. The case was submitted upon an agreed statement of facts, which sufficiently appear in the opinion. The arguments were made at the last October term.

<p>An insurance against barratry of the master of a vessel does not apply if the master was himself part owner, since such master is legally incapable of committing an act of barratry against the other owners.</p>

<p>The master of a whaling vessel is liable to the owners for essentially violating any of the material orders and instructions under which he sailed.</p> <p>If the master of a whaling vessel abandons the voyage, and wrongfully sells the property of the owners on board, the subsequent collection from him of a part of the proceeds of such sale, is no bar to an action against him for breaking up the voyage and disposing of the property, but reduces the damages.</p> <p>In such an action, the expense of bringing home the vessel from a port to which the master has wrongfully navigated her, is a legal element of damages.</p> <p>So are reasonable damages for breaking up the voyage; but conjectural or possible profits of a whaling voyage cannot he taken into consideration in estimating the damages.</p>

This was an appeal by the assignee of the estate of John Hull & Co., insolvent debtors, from the allowance by a commissioner of insolvency of the following note, held by the Fall River Union Bank: “ Fall River, June 20, 1850. Ten months after date, we promise to pay to the order of John Hull & Co., one thousand dollars. Value received. Payable at Massasoit Bank. Dean & Hull.

Assumpsit to recover the amount of the plaintiff’s lay, as a mariner on board the whaling bark Envoy, of New Bed-ford. At the trial in this court, before Metcalf, J., at the April term, 1852, the following facts appeared: The bark Envoy sailed in July, 1848. On the 8th of July, 1848, the plaintiff gave to Franklin P. Seabury an order, of which the following is a copy: “ New Bedford, 7 mo. 8th, 1848.

This case was reserved by the chief justice, for the consideration of the whole court, upon the following report: “ This is an appeal from the judge of probate, disallowing part of the account of Albee, the appellant, rendered to the probate court, as administrator, with the will annexed, of the estate of Betsey Carpenter, deceased. The testatrix made her will the 27th of December, 1826, and died soon after.

This was a petition to enforce- a mechanic’s lien, under Rev. Sts. c. 117, alleging that “ Nathaniel Morton, of Taunton, on the 13th day of May current, was duly appointed assignee of the estate of one Henry W. Coggeshall, of Taunton, merchant, insolvent debtor, by order of David Perkins, Esq., commissioner of insolvency within and for said county; and that on the 31st day of August, 1849, the said Henry W„ Coggeshall, by an agreement signed and sealed, and ready to be…

<p>A deed of two hundred and eleven undivided acres of a tract of eighteen hundred and seventy-eight acres owned by the grantor, “ in quality and privileges equally in every respect with the remainder,” makes the grantee a tenant in common with the grantor, in the proportion of two hundred and eleven to eighteen hundred and seventy-eight.</p> <p>A deed so defectively acknowledged as not to be entitled to registry, may yet convey the legal title as against the grantor and his heirs.</p> <p>A. sold H. two hundred and eleven undivided acres of land out of a tract of eighteen hundred and seventy-eight acres, by a deed so defectively acknowledged as never to have been recorded. A. then sold portions of said tract to other pérsons, as sole owner, making no allusion to H.’s deed. It did not appear but that two hundred and eleven acres remained unsold, and those portions sold had not all been paid for. Held, that H. could not maintain an action against A. for any part of the proceeds as money had and received to his use.</p>

This was a petition for a writ of mandamus, to order the Massachusetts Medical Society to restore to membership the petitioner, who had been expelled by that association.

<p>Form of the decree in such case.</p>

<p>Indictment for an illegal sale of spirituous and intoxicating liquors, contrary to St. 1852, c. 322, § 12, alleging that the defendant, “ on the first day of September, in the year eighteen hundred and fifty-two, and from that day to the day of finding this indictment, was, without being duly authorized and appointed thereto according to law, a common seller of spirituous and intoxicating liquors and mixed liquors, part of which were spirituous and intoxicating, against the peace of said commonwealth, and contrary to the form of the statute in such case made and provided.” After conviction in the court of common pleas, at the September term, 1853, the defendant moved in arrest of judgment for the following causes: “ 1. Because the indictment does not sufficiently allege and set out any offence against said statute. 2. Because it does not aver any violation of any constitutional law of this commonwealth.” Byington, J., overruled the motion, and the defendant excepted to his ruling.</p>

<p>A statement in an application for insurance is to he considered a representation rather than a warranty, unless it is clearly made a warranty by the terms of the policy, or by some direct reference therein.</p> <p>Misrepresentation in the law of insurance is the statement of something as fact, which is untrue, and which the assured states, knowing it to he untrue, and with intent to deceive, or which he states positively as true, not knowing it to be true, and which has a tendency to mislead; such fact being in either case material to the risk.</p> <p>Concealment is the designed and intentional withholding of any fact material to the risk, which the assured in honesty and good faith ought to communicate; and any fact is material, the knowledge or ignorance of which would naturally influence the insurer in making the contract at all, or in estimating the degree and character of the risk, or in fixing the rate of insurance.</p> <p>If a statement, in an application for insurance, is not responsive to any inquiry made, the burden of proof is on the insurance company to show that such statement was material to the risk, and that it had been violated by the assured; which are questions of fact for the jury.</p> <p>Neglect by the servants of one assured, to obey his orders that the water-casks in the building should be kept full, and which the assured had represented, but not warranted, to be “ kept full constantly,” does not avoid the policy.</p> <p>To an inquiry in an application for insurance upon a manufactory, “ Are there casks in each loft constantly supplied with water 1 ” the answer was, “ There are in each room casks kept full constantly.” Held, that evidence was admissible for the assured, that in the general use of language among manufacturers, the whole of a loft or story, appropriated to a particular department, was called “ one room,” although the same was divided by partitions with doors ; and that the meaning of the word “ room,” and whether there was any such general use of language were questions for the jury, and not for the court.</p> <p>Held also, that if such use of the word “room” was general among manufacturers, it need not be known and general among insurers, in order to affect a contract of insurance upon manufacturing property; for the insurers must be presumed to have so understood it, when they insured such property.</p> <p>The defence to an action on a policy of insurance being that water-casks were not kept in each room of the building insured, according to a representation by the assured, but only in each story of the building, an expert may be asked by the plaintiff whether the existence of a partition in a story increased the risk, or created a necessity for another cask, if there were openings in it sufficient to roll a cask of water through easily.</p>

<p>This case came to this court from the court of common pleas, upon the rulings of Perkins, J., who signed this bill of exceptions:</p> <p>“ This was an action of assumpsit for board. The plaintiff called one witness, who testified, in substance, that he and the plaintiff kept an eating and lodging-house, as partners, at San Francisco; that the defendant came to their house to obtain board; that the witness was unwilling to take him as a boarder, and at first refused to do so ; but that the plaintiff stated, that witness should not suffer any loss, but he himself would be responsible ; and upon this, the defendant was taken into their establishment to board, was fed and lodged as other boarders were, out of their joint provisions, and in their joint establishment, the witness and the plaintiff being partners; that the witness and his partner, the plaintiff, had settled their joint accounts, but whether, in their settlement, any account had been made or kept respecting the matter in controversy, or anything had been paid to him by the plaintiff therefor, the witness did not know. The witness did not understand himself to have any claim against the defendant. The plaintiff here rested his case.</p> <p>“ Upon these facts, the defendant claimed that the matter sued for, being board, was a partnership transaction, and that the other partner, to wit, the witness, should have been joined. And the court ruled that, upon these facts being taken as true, the claim being for the board of the defendant, the suit should have been in the joint names of the witness and the plaintiff; and thereupon the plaintiff consented to a verdict for the defendant upon his exceptions to the above ruling, which exceptions he now takes, and asks that it may be allowed.”</p>

This action was tried in this court, February term, 1853, before Thomas, J., who reported the same for the whole court. The nature of the case, and the points involved, sufficiently appear in the opinion.

This was a petition to enforce a mechanic’s lien, founded upon St. 1851, c. 343. At the trial in the court of common pleas, September term, 1852, before Hoar, J., the petitioner offered evidence to show a contract between one Hilt and John P. Clapp, the respondent, by which Hilt agreed, in writing, to erect upon land, which the petitioner alleged was the land of said Clapp, the building on which the petitioner performed his work. This contract was dated June 3, 1851.

<p>This action came before this court by appeal from a judgment of the court of common pleas, rendered upon an agreed statement of facts as follows:</p> <p>“ This is an action of contract to recover a funeral benefit of thirty dollars, of the defendants as members of the Rising Star Lodge, No. 76, of the Independent Order of Odd Fellows, instituted June 3,1845, at Randolph, Massachusetts.</p> <p>“ The by-laws and constitution of said lodge provide that, in case of the death of a brother who shall have paid his initiation fee, assessments, fines, and weekly dues, and shall be in good and regular standing, there shall be paid to the nearest of kin of such brother a sum of not less than thirty dollars, to defray the expense of his burial, which shall be paid over without delay.</p> <p>“ The plaintiff sues as the nearest of kin of his son, Darius Lawrence Payne, who died, testate, July 27, 1851, leaving a widow, who died one month afterward, but no issue. His estate was solvent, and by his will, which was duly proved, he gave, after making legacies to sundry persons, and a provision for his widow, the residue of his property to his heirs. There were effects remaining in the hands of the executor, after all debts and legacies were paid by him, and the funeral expenses of said deceased. The son, at his decease, was, and for several years had been, a member of said Rising Star Lodge, and had paid all sums of money required of him by said lodge and was a member in good and regular standing therein. Subsequent to his decease, one of the defendants, on behalf of said lodge, and for the purpose of paying said funeral benefit, paid to his said widow twenty dollars, as part thereof, and became personally responsible to her for the balance, to wit, ten dollars; but she dying as aforesaid, said balance was afterwards paid to her mother by one of said defendants. The lodge and the parties acting at the time considered the thirty dollars as paid to said widow, under their interpretation of the clause in the constitution relating thereto, and in accordance with the usage of the order and the custom of the lodge.</p> <p>“ The charters and constitutions of all subordinate lodges of Odd Fellows in Massachusetts, of which said Rising Star Lodge is one, are derived from, and conferred by a body called the ‘ Grand Lodge of the Independent Order of Odd Fellows of the State of Massachusetts,’ instituted June 9, 1823, reinstated December 23, 1841. The charter and constitution of said subordinates, under which they now act, date from a time subsequent to 1840. Said Rising Star Lodge was under the jurisdiction of, and was amenable only to said grand lodge, and the officers thereof, so far as regarded its members, their doings and obligations under its charter and constitution. The interpretation, construction, and enforcement of the constitutions of all subordinate lodges, which are uniform and alike, and of the articles and clauses and terms thereof, so far as said subordinates are concerned, among themselves and their members, are by the acknowledged usages and custom of the order, vested in, and belongs only to said grand lodge and its officers. By the authoritative construction of the said grand lodge and its officers, and by the universal usage and common custom of the order, and of said Rising Star Lodge, the words ‘nearest of kin’ occurring in clause 2, article 2, of the constitution of subordinates, and referred to in the plaintiff’s declaration, are understood to mean and intend the widow of any deceased brother, when the deceased leaves a widow; and the custom and usage has been and is, as authorized and sanctioned by said grand lodge and its officers, to pay the funeral benefit, so called, to said widow.</p> <p>“ The writ and declaration of the plaintiff, the answer of the defendants, the certified copy of the last will of Darius Lawrence Payne, the printed copies of the constitution, by-laws, and rales of Rising Star Lodge, and of the Grand Lodge of Massachusetts, may be referred to and used in the case. At the time of the decease of the plaintiff’s son, said Rising Star Lodge was composed of the several members whose names are mentioned in the answer filed in the case.</p> <p>“ If, under the foregoing statement of facts, the plaintiff can maintain his action against the members of said Rising Star Lodge, then he is to be allowed to summon the parties named in the answer as such members, without prejudice by reason of delay, and to have judgment against them for such sums as the court may determine. If said action cannot be sustained on these facts, then judgment for the defendants.”</p>

<p>A devise of land to the testator’s minor daughter, “ to have and to hold to her sole use and behoof forever, subject, however, to the condition of the trust, herein mentioned, to wit: I hereby authorise the trustee hereinafter named, to receive, hold, and manage said property, until said daughter shall arrive at the age of twenty-one years, or shall marry,” gives the trustee a legal estate . n the land devised, but not an interest in fee; he cannot, therefore, maintain a writ of entry for the premises, but may maintain a writ of ejectment.</p> <p>A demandant in a real action may be allowed to amend by converting the suit into an action of ejectment.</p>

In this case, which was a bill in equity, argued at the October term, 1851, by E. Wilkinson, for the complainants, and J. J. Clarke, for the respondent, the whole facts appear in the opinion of the court, delivered at the October term, 1852, by

<p>In an action on the case for corrupting the water of a well on the plaintiff's land, by constructing a nuisance on the adjoining land, if the plaintiff recover, he is entitled to full costs, although the verdict he for less than twenty dollars damages.</p>

<p>Writ of entry for a tract of land in Sharon, dated August 1,1851. The parties agreed to a statement of facts, of which the following are the most material:</p> <p>Ziba Plimpton, grandfather of the demandants, died seised of the premises in 1821. His will, dated May 22,1821, was proved and allowed January 1,1822, the important clauses of which were as follows :</p> <p>“ 1st. I give and bequeath unto my beloved wife, Tabitha Plimpton, all my household furniture, together with my clock, to be at her disposal; also, the improvement of my dwelling-house during her life. Also, to be provided and paid yearly by my executors hereinafter named, the following articles, viz: one cow, to be kept for her use, ten bushels of Indian corn, four bushels of rye, seventy pounds of beef, seventy pounds of pork, one hundred pounds of cheese, thirty pounds of butter, and eight pounds of wool; also, sauce, cider, and apples, what she naturally -wants for her use,— and wood, cut at the door, sufficient for one fire, — and horse and chaise for her use. when necessary, and ten dollars in money.</p> <p>“ Item. I give and bequeath unto my son, Daniel Plimpton, one cow, and one half of my wearing apparel. I also give him my dwelling-house, after my wife’s decease, together with one acre and a half of land adjoining said house, bounds to be as follows: beginning at the road at the southeast corner of said house, running northwardly three rods from said house parallel with the house, thence westwardly two rods from said house parallel line with north side of said house, thence on the said westwardly line, then south to Foxborough line, then east to the first mentioned road to contain the said acre and an half.</p> <p>“ Also, the improvement of thirty-six acres of land lying in said Sharon, known by the name of the Elijah Morse place, be the same more or less. Also, the improvement of eleven acres of wood-land in said Sharon, known by the name of the Felch lot, be the same more or less; the said Daniel Plimpton to improve the two last described lots of land during his life, then to be equally divided between his two sons, Shepard and Charles Plimpton.</p> <p>“ Item. I give and bequeath unto my daughter, Catharine Smith, the wife of James Smith, the sum of four hundred dollars, in addition to what she has already received, to be paid in three years after my decease, by my executors hereinafter named.</p> <p>“ Item. I give and bequeath unto my daughter, Polly Hewins, the wife of Joel Hewins, the sum of four hundred dollars, in addition to what she has already received, to be paid in two years after my decease, by my executor hereinafter named.</p> <p>“ Lastly. I give and bequeath unto my son, Ziba Plimpton, all the rest and residue of my estate, both real and personal, goods and chattels of whatsoever name or nature, or wheresoever it may be found that I may die possessed of, by his paying my just debts and funeral charges and the legacies hereinbefore named, whom I do appoint sole executor of this, my last will and testament, herein revoking all former wills by me made.”</p> <p>Tabitha Plimpton, the testator’s widow, died March 15, 1846, and Daniel Plimpton, son of the testator, and father of the demandants, died intestate soon after. The tenant claims under an absolute warranty deed from his father, Ziba Plimpton, 2d, the other son and residuary legatee of the testator, made in 1843, said Ziba having at that time acquired all the rights of the widow Tabitha in said premises.</p> <p>In case of judgment for the demandants, the tenant to have compensation for any buildings erected or improvements made on the premises, by himself or his father, Ziba Plimpton.</p> <p>The case was argued at the November term, 1852.</p>

<p>Action upon a policy of insurance containing a clause that “ if the assured shall have already any other insurance against loss by fire on the property hereby insured, not notified to this company, and mentioned in or ir .dor sed upon this policy, then this insurance shall be void and of no effect.” The fifth condition of the policy, also, was that “ notice of all previous insurances, upon any property insured by this company, shall be given to them, and indorsed on this policy, or otherwise acknowledged by this company in writing; otherwise the policy to be of no effect.”</p> <p>At the trial before Shaw, C. J., it was admitted that when the policy in suit was made, there was then a prior insurance on the same property for $1,000 in the Union Mutual Fire Insurance Company, at Concord, New Hampshire. No indorsement of such prior insurance was made in or upon the policy; and in order to show a substantial compliance with the provision requiring such indorsement, or an excuse for non-compliance, the plaintiff called Israel D. Shepard, agent of the defendant company, by whom the policy in suit was countersigned, and offered to prove that notice of such prior insurance was given to him at the time the present policy was executed; and that he then made a memorandum thereof in a memorandum book kept by him, which book related partly to his own private affairs and partly to insurance matters, and which was in these words: “ Elm Street. Samuel D. Pendar, of Danvers, made application for insurance against fire to the American Mutual Insurance Company, Amsterdam; $1,500 on factory, $500 on stock; $1,000 insured already by an office in N. H.; building owned by Pendar.” This memorandum was not signed by the agent, nor by any person. The chief justice, being of opinion that such evidence was not competent to prove a compliance with the requisition of the policy, or an excuse for non-compliance, rejected it, and directed a nonsuit. If such ruling was erroneous, the nonsuit is to be taken off, and the case to stand for trial.</p>

<p>This was an action on a policy of insurance against loss by fire, by the terms of which the application was “ made part of the policy and warranty on the part of the insured.’ The third question to the plaintiff in the application was, “ Of what materials is the building constructed, how high is it, and for what purpose occupied ? ” wnich was answered as follows : “ Of wood; two stories high, 60 by 40 feet; formerly used as a machine-shop, all of which business is now stopped, and shop fastened up, and only used for the purpose of the meeting of the band during two evenings of the week, on second floor.” The policy also contained a clause that, “ if the situation or circumstances affecting the risk shall be altered or changed, by the agency of the insured, so as to increase the risk, the policy shall be null and void, unless confirmed by the company.” At the trial in this court, before Fletcher, J., the defendants offered to show that the building had been used for other purposes during the continuance of the risk, than that specified in the application, but did not attempt to show that, at the time of issuing the policy, the representation was not correct; and they contended that, whether such change of occupation did or did not increase the risk, it was a breach of the warranty, and therefore annulled the policy; but the presiding judge ruled that the warranty applied only to the existing state of things at the time it was made, and submitted this question to the whole court, with leave to enter such judgment as to other points raised in the case, not necessary to be reported, as justice should require.</p>

<p>The Essex Company, chartered by St. 1845, c. 163, is not liable to an action at law for flowing land by their dam, erected in accordance with said statute; the only remedy being that given under section eight of the act of incorporation.</p>

This was an action of contract to recover the price of a lot of doors. At the trial in the court of common pleas before Byington, J., a witness for the plaintiff testified, that he made a bill of sale of the doors from the plaintiff to the defendant, and delivered it to the defendant.

This action came from the court of common pleas, upon exceptions to the ruling of the presiding judge, sustaining a demurrer to the declaration. The whole case appears in the opinion.

The declaration in this case contained two counts, one against the defendant for refusing to accept a bill of exchange or draft drawn on him, payable to the plaintiff, by one J. W„ Andrew, -for $51.28, the defendant having sufficient funds in his hands, belonging to said Andrew, wherewith to meet said draft.

This action of contract was referred, under a rule of court, to three referees, who awarded that the plaintiff recover of the defendant the sum of $757.

Action of contract against the defendants, partners in trade, sued as acceptors of a draft, as follows: “ Salem, Aug. 14th, 1851. Messrs. A. S. & W. G. Lewis. Please pay Na thaniel Wiggin or order twelve hundred dollars, and charge the same to my account. Otis Roberts.” At the trial in the court of common pleas, September term, 1852, the plaintiff relied upon a parol acceptance.

<p>This is an action of tort for injuries suffered by the plain - tiff, from a defect in the highway, in the town of Ipswich', on the 28th and 31st days of January, 1852. The road alleged to be out of repair was a crossroad, intersecting with two other roads running nearly at right angles thereto, of which about two hundred rods of the northerly part is in Ipswich, and the southerly part is in the town of Hamilton. The whole of that part in Ipswich was alleged to be out of repair. The defect alleged was, that of great quantities of snow upon the way; that it was filled up with snow its whole length and width, so as to render it unsafe and inconvenient. At the trial in the court of common pleas, before Byington, J., the evidence of the plaintiff tended to show that on the 25th and 26th days of January, 1852, there was a great snow-storm, by which the way was greatly obstructed by snow; and that the same was suffered to remain until after the injuries suffered by the plaintiff; and that in passing over the way on the 28th and 31st of January, the plaintiff and his two yoke of oxen and two horses were injured.</p> <p>The evidence of the defendants tended to show that the winter of 1851-2, was unusual for the severity and frequency of snow-storms; that the road was opened several times prior to the 20th of January, and was opened on the 21st and 23d of January. It also appeared from the defendants’ evidence, that nothing was done to open the road within the highway district, to which this road belonged, between the 23d of January and the 2d of February. There was also evidence tending to show that there were other roads between the termini of the road complained of, more used and more easily kept open, but the distance on these roads from one terminus to the other was considerably greater; that much of the travel of the road complained of, left it in the winter season, and went over adjoining fields, when the road was obstructed by snow; that the road was less used in the winter than in other seasons of the year, when it was not, as well as when it was obstructed.</p> <p>The defendants requested the court to instruct the jury, that if the defendants had used ordinary care and diligence in the reparation of the way, the plaintiff could not recover; and that in determining whether ordinary care and diligence had been exercised by the defendants, in this instance, the jury were to consider the situation of the road, the extent to which it was used, and the extent and nature of the obstacle.</p> <p>But the presiding judge declined so to rule, and ruled that it was no defence to the action to show that the- defendants had used ordinary care and diligence in repairing the road, it they had not by such care made it safe and convenient, and the same remained defective; that if such proof was ever a defence, it would not be in this case, as it appeared from the defendants’ evidence that they had done nothing to repair this or any other road within the highway district, in which the road was situate, from the 23d of January to the 2d of February, and the storm which had caused the obstruction having occurred on the 25th and 26th of January, and no evidence that from the severity of the weather or other cause, there was anything to prevent their working on the road, and as it did not appear that the defendants gave any notice or put up any barriers or other thing to indicate that the road was out of repair; that if the state of the weather, the frequency and violence of storms, had been such that the town could not, by any reasonable exertions, have put the road in repair prior to the injury, and the plaintiff knew this, and yet attempted to pass, it was evidence from which the jury might infer negligence on his part; and if he was negligent, so that it contributed to the injury, he could not recover.</p> <p>The evidence also tended to show that the plaintiff lived near the northern terminus of the road ; that he was there on the 27th and 28th of January, in a situation to see the condition of the road there, and on the 27th, in the morning, was informed by one King that he tried to get through with his horse and sleigh and could not, and that the road had not been broken out; that on the evening of the 28th, he arrived at the southern terminus in Hamilton, about a mile from the southern terminus of the Ipswich part of this road; that he was in a situation to see that the road had not been broken out there ; that there were tracks upon the road, indicating that one or two vehicles had passed; that he detached his team from his vehicle, and left his load of hay, and passed over the way to his home with his team of two yoke of oxen and two horses, and, in passing, was injured; that on the 29th he took his hay and went with it to Boston, and when he returned, on the morning of the 31st, about three o’clock, he entered upon the southern terminus with his said team, with two empty sleds, chained together, one behind the other, and passed over the road, and, in passing, was injured; that nothing had been done to repair the road in the mean time, and it was substantially in the same condition as when he passed over it on the 28th, except that on the 29th, three teams of four oxen each, and a sled, passed over the road.</p> <p>The counsel for the defendants requested the court to instruct the jury:</p> <p>1st. That if the plaintiff knew the road was obstructed with snow before he entered upon it, or when he could safely withdraw from it, he could not recover.</p> <p>2d. If the plaintiff found the road impassable, but persisted in going through when he could return, he could not recover.</p> <p>3d. If the plaintiff found the road so obstructed, that in the exercise of ordinary care, he should have avoided it, or retreated from it if he had entered upon it, and persisted in passing or attempting to pass through, he could not recover; and in such case, no neglect of the town to remove the obstruction would change his duty to avoid the road or retreat from the obstructed part.</p> <p>4th. If the plaintiff was guilty of any negligence or indiscretion in attempting to pass over the road, he could not recover.</p> <p>The court declined to instruct the jury in the manner requested, but, in reference to the ease and the evidence upon which instructions were prayed, read to the jury the provisions of the statutes prescribing the duties of towns to keep roads safe and convenient, and giving a remedy for injuries received from defects in highways, and instructed them that the plainüff must prove that the way was defective, out of repair, *nd had been so in this case for the period of twenty-four hours prior to the injury; that he received an injury when passing upon the road; that such injury resulted wholly from the defective condition of the road, without negligence on the part of the plaintiff; that he was bound to use ordinary care in entering and passing on the road; that if he was guilty of any negligence, and by his negligence, contributed to the injury, he could not recover; that he must be without fault himself; that they were to consider the evidence, as to the state of the road, and as to the care of the plaintiff on both the occasions when he received injury; and it was for them to determine, on all the evidence, whether he did exercise proper care on either or both the occasions when he was injured ; that they would ascertain how all the facts were on each occasion, and what the plaintiff was required to do, in his situation, and with the knowledge he had, on each occasion ; that on the second occasion of passing through, he had means of knowledge of the condition of the road, from having passed over its entire length on the 28th; and they might be satisfied there was negligence on the second occasion, if they were not on the first; that in reference to his duty in not entering upon the road, or stopping or turning about when he found what was the condition of the road, he was bound to do all he could in the exercise of ordinary care, placed in the situation he was, to protect himself from injury; that it might be obstructed with snow, and yet not so much so as to indicate to him that he could not pass with safety without a load, or it might so indicate; if it did so indicate, it would be negligence in him to enter upon it; that as it appeared he did pass, it was not in fact impassable, on the first occasion, without a load or sled, nor on the second with one. On this it was a question for the jury to say whether he was negligent in passing as he did. It was for the jury to say, upon all the evidence, whether, on entering upon it, not retreating or turning about, there was any negligence on his part; if there was, he could not recover.</p> <p>The jury having returned a verdict for the plaintiff, the defendants excepted to the instructions aforesaid.</p>

The defendant was indicted for a violation of the Hawker and Pedler Act, St. 1846, c. 344.

Indictment upon Eev. Sts. c. 131, § 1, charging that the defendant “ did knowingly sell unto one Jeremiah Barker, a certain piece of diseased, corrupted, and unwholesome provision, to wit: one hind leg of veal, the said Boynton not then and there making known fully to said Barker that the same was diseased, corrupted, and unwholesome,” &c. After conviction in the court of common pleas, the defendant moved in arrest of judgment for insufficiency of the indictment, which…

This was an indictment upon Rev. Sts. c. 50, § 17, alleging that the defendant “ did for hire, gain, and reward, permit, suffer, and allow divers persons, whose names are to the jurors unknown, to resort to a certain building there situate, of him, the said Pattee, for the purpose of playing at a certain unlawful game called cards; said building being then and there actually used and occupied by the said Pattee, he not being licensed as an innholder, or common victualler, or…

<p>The defendant, being convicted of a violation of St. 1852, £, 322, § 7, in the court of common pleas, May term, 1853, before Perkins, J., excepted to his rulings, the nature of which sufficiently appears in the opinion.</p>

The defendant was convicted of three single sales of spirituous liquor in one indictment of several counts, in the court of common pleas, before Briggs, J., at the October term, 1853; and excepted to his rulings, among other reasons because “ an indictment cannot be sustained, charging several acts of sale, if the acts charged and proved were sufficient to constitute the defendant a common seller, because the separate sales are merged in the higher offence ”

<p>A complaint for selling liquors in violation of St. 1852, c. 322, § 7, need not negative the excepted cases, in which the sale would he lawful, nor need it aver to whom the penalty, if recovered, would go under section 8 of the same statute. Section 7 of the St. of 1852, c. 322, is not unconstitutional.</p> <p>A magistrate residing in the town, entitled to the penalty under section 8 of St. 1852, c. 322, nevertheless has jurisdiction of an offence committed in that town.</p>

<p>Prior to St. 1851, c. 315, if a manufacturing corporation was defaulted in an action, the stockholders therein who had been summoned in, as being individually liable, could not deny the liability of the corporation, but were confined to the question of their individual liability. And if that statute allows a different course, it does not affect a case pending when it was enacted.</p> <p>The proper form of a writ against a corporation, and also against individual stockholders, summoned in under St. 1851, c. 315, given in a note.</p>

This was an action against the executors of Samuel Brimblecom, to recover ninety dollars, being three months’ interest on $6,000, which the plaintiff, widow of said Samuel, claimed under the following clause in her husband’s will: “I devise and bequeath to her (the plaintiff) the use and improvement of one third part of all my household furniture and real estate, of which I die seised and possessed, and the interest of six thousand dollars; to have and to hold the same to…

<p>Whether certain articles furnished a minor were necessaries or not, is generally a question of fact for the jury, depending on all the circumstances of the case; the two principal circumstances being whether the articles were suitable to the minor’s estate and condition, and whether he is without other means of supply.</p>

<p>A. received the minor daughter of B. into his family with a promise to provide for and educate her as his own daughter; subsequently B.'s wife obtained a divorce a mensa et thoro from her husband, and the custody of the daughter was decreed to her. The daughter continued to reside with A. two years longer without any new agreement, when he sent her to her mother, having failed to support and educate her according to his contract. Held, that A. was not liable to an action by the mother in her own name, for the daughter’s services, although the failure of the defendant to fulfil his contract was not before known to the mother.</p>

<p>This court will not give an opinion upon a statement of facts which presents merely a speculative question, the decision of which either way will not terminate the controversy between the parties; but the agreed statement will be discharged.</p> <p>In a time policy on a vessel then at sea, there is no absolute implied warranty that the vessel is, and shall continue seaworthy during the entire risk, although there may be an obligation on the part of the assured to keep the vessel tight, staunch, and strong, a failure of which, when practicable, would prevent a recovery for a loss arising from such cause.</p>

<p>The person intended by the term “ the insured ” or “ the assured,” in a mutaal fire insurance policy, is the person who owns the property, applies for th/i insurance, pays the premium, and signs the deposit note, and not anothe ■ person to whom the money is payable in case of loss, although he may have a lease of the premises.</p> <p>EK, having leased certain premises to S., with permission to erect other buildings, and to under-let, effected an insurance on the property, payable, in case of loss, to said S. The latter under-let a portion of the premises to M., who, contrary to his lease not to “ make or suffer any alteration, or make or suffer any waste therein,” erected furnaces for manufacturing purposes, which increased the risk, but without the knowledge or consent of 15. or of S. Held, that the policy was not void as violating a by-law which prohibited “ the insured ” from altering the building without the consent of the company, nor a by-law which made the policy void whenever the risk was increased by the act of “ the assured ; ” and that S. could recover the whole amount of the loss insured.</p>

<p>If an article insured as free from average be placed in such a condition by the perils of the sea, that in consequence of inevitable deterioration or decay, it cannot reach the port of delivery, but will necessarily be destroyed before its arrival, and the same be sold at an intermediate port, this will constitute a total loss within the true intent of the policy.</p> <p>An exemption in a policy of insurance upon a cargo of ice that the company “ shall not be liable for ice melting, in consequence of putting into port,” does not include a loss occasioned by the melting of ice from other causes, such as the leaking of the vessel, and the necessary unlading of the ice to examine and repair the vessel in a tropical port, where the vessel is by reason of distress-</p>

<p>Bill in equity, brought by Edward Blake, administrator de bonis non, with the will annexed, of the estate of his father, Edward Blake, Jr., who died testate, January 15, 1817. His will, which was duly proved and allowed, contained the fallowing provisions:</p> <p>“ In respect to the worldly property it has pleased God to oless me with, after all my just debts are paid, I hereby request my executor or administrator to appropriate in the following manner, having perfect confidence in the good judgment of my dearly and much beloved wife, and also of her benevolent and Christian feelings, I hereby give and bequeath all my estate, real and personal, for her use, and that of my dear and much beloved children, to be appropriated in such manner as she may deem most for her and their happiness; subject, however, to the following deductions and stipulations, which are particularly to be observed by my executor or administrator.”</p> <p>Then followed specific legacies to his brother Samuel Blake, and his brother-in-law, Jacob Emmons, the nature of which was immaterial.</p> <p>The will then proceeded: “ Should my dearly and much beloved wife deem it for her happiness to change her state and become the wife of another, I cannot reasonably object to it, having unbounded confidence in her good judgment, and especially considering the very great charge she has in the number of my dear children ; but, in the event of this taking place, I hereby particularly request my executor or administrator to allow and pay over to her one thud part only of my real and personal estate, and the remaining two thirds to be divided equally between my dear children, one half only allowed to each to be put under their control as they become of age, and the other half to be an entailed estate during their life, and so descend to the posterity of each, and in case of death without issue, to be regularly divided in proportionable parts between the survivors.</p> <p>“ In the event of my dear wife not changing her state by marriage, I hereby particularly request all my estate to remain under her control, subject to the advice and direction of my executor, for her use and that of my dear children ; and when she departs this transitory life, I particularly request the estate or effects of every kind should be divided in regular proportions to my dear children, and so descend to their heirs in said equal proportions; subject, however, to the stipulations that one half only is to be placed under their control, as they become of age, and the remaining half to be invested in entailed real estate, during their life, and descend in the same manner to the posterity of each, and in case of death without issue, to be regularly divided in proportionable parts between the survivors.”</p> <p>The bill then set forth that: “ The widow of the deceased did not marry again, and died April 10, 1847. Five children survived the testator, — Sarah R. Blake, who afterwards married Charles P. Dexter, and died in November, 1850. Samuel P. Blake, Edward Blake, and James H. Blake, and Susan P. Blake, who married Richard Robins; he died in July, 1850.</p> <p>“ Samuel Parkman was appointed executor of said will, and acted as such until his death in 1824, when Robert G. Shaw was appointed administrator of said estate with the will annexed. He resigned in 1847, and the complainant was appointed in his place. Prior to the resignation of said Shaw, one half of the estate of said testator was divided among his said children, at the request of their mother, it being clearly the intent of the testator, that they should receive one half of their respective shares as they became of age, and she was disposed to waive the provision of the will, which would have enabled her to prevent any such division during her life. At her death, there remained under the administration of said Shaw, one half of the estate of said testator; and the same came to the possession of the complainant. No division of the same has been made, but the interest and income thereof have been regularly paid over to the parties entitled thereto.</p> <p>“ The property consists in part of real estate, of which the testator died seised, viz: A dwelling-house in South street, Boston, valued at $6,000. A dwelling-house in Warren street, Boston, valued at $3,500. A piece of land in Cambridge-port, valued at $700. Store No. 25 Central Wharf, Boston, with one right in said wharf, valued at $16,000. Store No. 15 South Market street, Boston, purchased by Robert G. Shaw, as administrator, and conveyed by him to the complainant, valued at $25,000. Money at interest, secured by mortgages, &e., &c., $27,632.60. Total, $78,832.60.</p> <p>“ Said Sarah E. Dexter left four children, all of whom are of age. Charles E. Dexter, who now resides in Columbus Georgia; Samuel P. Dexter, of said Boston, merchant; Amory Dexter, now residing in Hamilton, Canada; and Sarah B. Wainwright, wife of Henry C. Wainwright, of said Boston, merchant; and by a marriage contract, her share of said property is secured to her sole and separate use.</p> <p>“ The said persons claim of the administrator de bonis non, one fifth part of the property held by him, as above, and that the same shall be paid over to them in cash, and free from all trusts. And said Samuel P. Blake and Susan P. Eobins claim their share of said estate; and also said James H. Blake; but if he is entitled to it, said James wishes to cany into effect an arrangement made in 1847, that the share belonging to him shall be held by the complainant in trust, for the use and benefit of said James during his life, with authority to expend the whole or any part of the income of said James’s share in the maintenance of his family, and in the education of his children.”</p> <p>The bill was brought to obtain the direction of the court, as to the effect of the provision made by said testator, that one half of the property given by him to his children, should “ be invested in entailed real estate during their life, and descend in the same manner to the posterity of each, and in case of death without issue, to be regularly divided in proportion-able parts between the survivors.”</p> <p>The answer of the respondents, after admitting the substantive facts set forth in the bill, proceeded as follows: “ And the said Charles E. Dexter, Samuel P. Dexter, Amory Dexter, Sarah B. Wainwright, and Henry C. Wainwright, five of the respondents, admit that they claim and demand together one fifth part of the personal property in the hands of the complainant as such administrator; and that they claim to be entitled to one undivided fifth part of all the said real estate in fee simple.</p> <p>“ And the said Samuel P. Blake and Susan P. Eobins, two other of the respondents, claim respectively a fifth part of all said property in like manner. And the said James H. Blake, the remaining respondent, claims one other fifth part of all said property in like manner, but to be held subject to the trust set forth in the said bill of complaint.</p> <p>“ And these respondents further answering say, that they are advised, and allege that the testator intended by the provisions in said will, touching his children and descendants, to create a perpetuity, by ordering investments to be made in real estate, with a successive limitation of life estates to persons unborn, from generation to generation; and by the provision that in default of issue of any of the tenants for life, the share of such tenant for life should go over to the surviving tenants for life, so that the same might remain always in the posterity of the testator; which intent, as these resoondents are advised and informed, is contrary to the°well-settled policy and principles of the law of this commonwealth, and illegal and utterly void.</p> <p>“ And these respondents further answering say, that by reason of the illegality and nullity of the provisions of said will in that behalf, the real and personal property of the testator, not otherwise specifically devised and bequeathed, descended io his children as his heirs at law in fee simple.</p> <p>“ And these respondents further answering say, that the complainant in his said bill has suggested, that if the intention of the testator as expressed in said will could not legally be carried into effect, yet this honorable court might construe the devise in said will to be an executory trust; and execute the intention of the testator cy pres, according to a rule sometimes applied in the courts of equity in England; but these respondents have been advised that no such executory trust is created by the said will; and that this honorable court has not adopted the rule of cy pres, so called, in the construction of any will; and that many of the courts in this country have opposed and rejected the adoption thereof. That the rule of cy pres, so far as applied in England, has not been uniformly applied, and is not applied to personal estate, of which much the largest portion of the estate of the testator consisted at his decease; and that so far as the same has been applied in England to real estate, it has been mainly in cases where the testator has manifested a general intent that the lands devised should continue in the descendants of the first taker as long as there were any, without specifying or marking what estates the descendants should have; or where he had manifested a general intent and a particular intent, both of which could not be effectuated by the rules of law, and, therefore, one must yield to the other; and the same has not generally, if ever, been applied to cases where the testator, as in this case, has in express terms, defined the estates which the issue are to take, as estates for life; nor ever in a case, where as in the present, the testator has manifested no general intent as distinguished from a particular intent; but simply a single intent, to create a succession of life estates in his posterity to the latest generation, contrary to the policy and laws of this commonwealth.</p> <p>“ And these respondents further answering respectfully allege, that this honorable court has only limited jurisdiction in equity, and has no power to direct investments under said will in such manner as to give to the devisees, estates different from, and other than those the testator gave, or to turn a legal devise into an executory trust*and thereby in effect make a new will for the testator.</p> <p>“ And these respondents further answering respectfully allege, that if this court doth possess the power of carrying into effect the intent of a testator by the rule of approximation or cy pres, that the present is not a fit case for the application of the rule; inasmuch as the testator has clearly declared his intent, that all the property at the decease of his wife shall be divided in equal proportions to his children, one half absolutely as fhey come of age, and one half to be invested in entailed real estate during their lives, and descend in the same manner to the posterity of each, and in case of death without issue, to be divided among the survivors; evincing a clear purpose to prevent alienation and preserve the estate in his posterity to the latest generation, by giving a life estate to each successive taker. This one half, therefore, must either be divided as intestate estate, or must be invested as this court may order, by carrying into effect the intent of the testator cy pres; and if the rule of cy pres is applied, it will involve the necessity of the purchase of real estate to be held by the testator’s children for life, with remainders in tail to their children; an estate which could be barred by the tenants in tail, and which admits of free alienation; so that the cy pres investment, if directed, would be entirely different from any contemplated by the testator according to the intent as expressed in his will, and would in fact directly contravene his primary and paramount purpose, of preventing alienation and preserving the estate in his posterity.”</p> <p>The case was submitted at the last March term, without argument on the part of the complainant, and on a written argument by W. Dehon for the respondents.</p>

<p>A. street was laid out in-1804, with an agreement by the owners of land taken therefor, not to claim compensation, and that the street need not he completed until it was deemed expedient to do so. In 1831 'the proper authorities voted that the order of 1804, laying out said street, “be carried into execution, so far as the same remains unfinished,” and some work was done under that vote. Held, that the street was thereby “ completed ” within the meaning of the original laying out, and was from that time so far an existing way that damages could be recovered under Rev. Sts. c. 26, § 6, for lowering the grade thereof in 1850, notwithstanding the agreement of 1804 not to claim compensation for the land.</p>

<p>In this commonwealth the executors of a deceased respondent in a bill in equity may be brought in by a bill of revivor, although no service had ever been made on the testator.</p> <p>Two out of three trustees of property held in trust for a private association, have no power to execute a deed of such property, unless the third has had an opportunity to- consult and advise with them as to such conveyance; and this court has power as a court of equity to set aside a deed so made, and to order a reconveyance.</p> <p>A deed of trust provided for five trustees, a majority of whom should govern, and that “if any trustee should be absent from the commonwealth, the others should have all the powers herein named.” A second deed of the same trusts provided for three trustees, who should have all the powers of the first five, and should also have “ the power to act by attorney duly authorized by deed.” The trustees were to conform to the wishes of such of the cestui que trusts, as owned three fourths of the trust property. Two of the three trustees, owning more than three fourths of the property, in the absence of the third from the commonwealth, executed a deed of the trust property. Held, that the conveyance was valid, and that a bill in equity would not lie by such third trustee and the other cestui que trusts to set aside said deed and order a reconveyance.</p>

<p>Assumpsit for money had and received by the defendant to the use of William Tilden, the plaintiff’s intestate. At the trial in this court, before Bigelow, J., March term, 1852, it appeared that on the 16th of December, 1848, said Tilden, by an absolute bill of sale, conveyed to the defendant, the brig Josephine, for the consideration, as named in the conveyance, of §4,500; payment of which, by the defendant, was not controverted. The plaintiff offered evidence tending to show, that prior to the execution of said bill of sale, the defendant made an oral agreement with said Tilden, that upon sale of the vessel at the end of six months, he would pay him all the proceeds above §4,500, and a commission of ten per cent.; or, would reconvey the brig upon payment of §4,500, and such commission. It also appeared that the defendant had sold half of the vessel for §3,000, and had collected, as earnings of the vessel, the sum of §800; that he had effected an insurance upon the other half of said vessel, “ for whom it might concern,” on which he had received, upon loss of the same, the sum of §4,100. The defendant objected to the competency of said parol evidence as tending to vary the terms or nature of the bill of sale, or tending to show such an agreement between the parties, made at or before the execution of said bill of sale.</p> <p>A verdict was taken for the plaintiff for $3,190, subject to the opinion of the whole court as to the admissibility of this evidence.</p>

<p>Assumpsit will lie by a broker for his commissions in procuring a charter-party for a vessel, although such charter-party recites, under seal, that such com. missions are to he paid to the broker.</p> <p>A broker employed by a ship-owner to procure a charter-party for a vessel, may recover of the ship-owner the whole commissions in his own name, although he may be bound to pay over one half to others who have aided in procuring such charter-party.</p>

<p>An agreement by an insolvent debtor to pay some of his creditors a portion of their claims, in consideration that they would not “ trouble or oppose his discharge, and would say a good word to other creditors to induce them not to oppose a discharge,” is void, as contravening the policy of the insolvent lav, s.</p>

<p>This was an appeal by Daniel L. Fernald, an insolvent debtor, from the decision of a commissioner of insolvency, refusing his discharge. At the trial in this court, March term, 1852, before Bigelow, J., the appellant admitted that on the 17th of January, 1850, he knew he was insolvent and unable to pay his debts in full; and the testimony tended to show that at that time he believed he had sufficient property to pay fifty per cent, of his debts and no more; that he then disposed of all his property, at a fair price for ready money, and with the proceeds paid several creditors fifty per cent, and took a discharge in full; he also offered the appellees the same proportion, but they declined to accept it in discharge of their claim. On the 14th of August, 1850, the appellant applied for the benefit of the insolvent law, having paid away to his creditors and in support of himself and his family, all his estate, and paying no dividend to his creditors. Upon these facts, the presiding judge was of opinion that the appellant was not entitled to his discharge, but at the request of the appellant, he reported the same for the consideration of the whole court. F. W. Sawyer, for the appellant.</p>

This was a petition for a writ of habeas corpus. The petitioner represented that on the 27th of September, 1853, he was brought before the police court of Boston, by virtue of a warrant in due form of law, issued by said court upon a complaint under oath, setting forth an assault and battery by him on Ellen McCloud; and that the said assault and battery were not committed with intent to commit any other offence, nor with a weapon dangerous to life, and that the life of said…

<p>In this case, which was a suit in equity, the complainant, after the expiration of four months from the day when the replication was filed, applied for a commission to take the testimony of a witness residing out of the commonwealth. The respondents objected to the issuing of the commission, on the ground that by the 27th rule in chancery of this court, (24 Pick. 416,) the cause must be considered as set down for hearing, and no further testimony could be taken.</p>

This was a bill in equity, filed by Charles Heath, of Brookline, against Jonathan Ellis, Levi B. Merriam, Edmund L. Benzon, William L. King, John J. May, Frederick G May, William H. Badger, Herman P. Chandler, Joseph Dascomb, and David M. Farnum, setting forth, among other things, the following facts, viz: That a corporation called the Ballard Vale Machine Shop, was incorporated in 1847, for the purpose of manufacturing steam engines, machinery, &c., at Andover, in the…

<p>The owners of a wharf upon which rests the end of a railroad bridge, built across navigable water, by authority of the legislature, cannot recover damages of the railroad company under Rev. Sts. c. 39, § 66, for occupying with their bridge, the space over the navigable channel, which would otherwise serve for a vessel’s berth at such wharf.</p> <p>One who has a right of way across a street, not a public way, by grant from the owner of the fee, cannot recover damages under Rev. Sts. c. 39, § 56, of a railroad company duly locating their road over and along said street, and over said right of way.</p> <p>As the statutes of this commonwealth confer upon railroad corporations no right to enclose land taken for their road with high fences, so as to prevent the passage of the adjoining land-owner to and from the different portions of 1ns estate, the land-owner cannot rely upon such anticipated obstruction as a ground of damage against the company for taking his land.</p> <p>The owner of wharves, in front of which a railroad is located according to law, cannot recover of the railroad company, as damages under Rev. Sts. c. 39, § 56, the anticipated depreciation of the wharf property because the access thereto is made dangerous and inconvenient.</p> <p>In an application by one railroad company against another company for damages caused by taking the petitioners’ land under Rev. Sts. c. 39, § 56, it is not a proper consideration for enhancing the damages, that the petitioners own a railroad extending far into the interior, and are doing a large and profitable business, which would be incommoded by the track and conveniences of the respondents. But the fact that the land taken by the respondents is near a railroad communication with tide waters and the harbor of Boston, and the increased value of the property for any and all useful business purposes, are proper considerations in estimating the damages.</p>

The defendant was tried in the municipal court, Boston, upon an indictment containing two counts.

<p>A count for a felonious assault, and a count for the same transaction described as a common assault, may be joined in the same indictment.</p> <p>A peace officer has no right, without a warrant, to arrest a person suspected of committing a crime, unless the offence is a felony.</p> <p>If a person, arrested by a peace officer without a warrant, on suspicion of a crime less than felony, kill the officer, it is not murder, but at most, only manslaughter ; and an assault upon such officer will not support an indictment alleging an assault with intent to murder.</p> <p>A person cannot be convicted of an assault with intent to murder, if the homicide, when completed, would be only manslaughter.</p> <p>If a person shoot at two persons, intending to kill one, but entirely regardless which, he may be convicted upon an indictment charging a joint assault on both.</p>

<p>The defendant was tried for the murder of his wife, Ellen Stafford, February 22,1853, before the chief justice, and justices Metcalf and Bigelow. There were two counts in the indictment, both of which set forth that the defendant caused the death of his wife by a series of beatings, the first upon the 25th of September, 1852, the second, on the 26th of the same month, the third, on the 3d day of October, 1852, and the fourth, on the 4th day of the same month, and concluded as follows : “ And the said Ellen, at said Boston, on said fourth day of October, of the said mortal wounds, strokes, kicks, bruises, and compressions so received from the said John at the said several times and places as above set forth, and from the multiplicity of said injuries, did die; and so the jurors do say, that the said John Stafford, in manner and form as aforesaid, the said Ellen did then and there kill and murder,” &c.</p> <p>The counsel for the prisoner filed a motion that the indictment be quashed, because, first, four distinct and separate offences or assaults are set forth therein, and, second, because it is nowhere alleged in the indictment that death resulted from any one of these assaults.</p>