Volume 67 — Massachusetts Reports

<p>Where part only of a statute is repugnant to the constitution, that part only will be adjudged void.</p> <p>The legislature may declare the possession of certain articles of property, either absolutely, or in particular places and under particular circumstances, to he unlawful, because they would be injurious, dangerous, or noxious; and may provide for the seizure and confiscation or destruction thereof by due process of law.</p> <p>The fourteenth section of the statute of 1852, c. 322, concerning the manufacture and sale of spirituous and intoxicating liquors, is contrary to the fourteenth article of the declaration of Rights, declaring the right of the subject to be free from unreasonable searches and seizures; because it neither requires the name of any person, keeping or depositing the liquors with intent to sell, to be nair-1d in the complaint or in the search warrant for the liquors; nor limits the officer’s authority and right of seizure to the liquors described in the complaint, nor to those intended for sale, but directs him to seize any liquors found in the place described in the complaint. This section also disregards other precautions and safeguards for the security of persons and property prescribed by the Declaration of Rights; inasmuch as it provides for the destruction of private property, and the punishment of its owner or keeper, without his being duly charged with any offence, or being summoned (unless known to the officer) to appear before the magistrate, and without giving him opportunity to defend and to meet the witnesses against him face to face, and providing for legal proof and trial of the offence of keeping the liquors with intent to sell. This section is therefore unconstitutional; and all proceedings under it are void, even when so framed and conducted as to avoid these objections.</p> <p>The owner of any intoxicating liquors, seized by an officer by virtue of a warrant issued under St. 1852, c. 322, §14, may maintain an action against the officer to recover damages for such taking, notwithstanding § 19 of the same statute, which provides that “no action of any kind shall be had or maintained, in any court in this commonwealth, for the recovery or possession of intoxicating liquors, or the value thereof, except such as are so*d or purchased in accordance with the provisions of this act.”</p> <p>A prisoner, committed by a magistrate whose want of jurisdiction appears on the face of the proceedings, will be discharged on habeas coi'pus.</p>

<p>Habeas corpus. Thomas Adams, sheriff of the county of Norfolk, in a petition presented to this court on the 17th of March 1854, represents “ that he is imprisoned and restrained of his liberty by Robert Vose, a coroner of the county of Norfolk; and the cause and pretence of said detention and imprisonment is a mittimus directed to said Vose, as coroner aforesaid, against said Thomas Adams, issued by Charles M. S. Churchill, Esquire, a justice of the peace for the county of Norfolk, and which mittimus was founded upon a judgment of a court held by said Churchill, a copy of the record of which is hereto annexed.” The record of the justice stated that Adams was brought before him by virtue of a warrant duly issued upon the complaint of Henry A. Walker, charging Adams with having sold to Thomas Burke, at Roxbury in the county of Norfolk, on the 8th of March 1854, a quantity of spirituous and intoxicating liquors, in violation of St. 1852, c. 322, § 7; and after setting forth the complaint, proceeded as follows: “ which complaint being read and heard by the said Adams, he, the said Adams, is asked by me, the said justice, whether he is guilty or not guilty of the offence charged upon him, in the manner and form aforesaid; who stands mute, and offers his execution with his return thereon as a plea of justification in defence thereof, a copy of which is hereto annexed. Whereupon I entered a general plea of not guilty, and after hearing divers credible witnesses, duly sworn to testify the whole truth in relation to the premises, and it thereupon appearing to me that the said Adams is guilty of the. offence charged upon him in the aforesaid complaint, it is therefore. considered by me, the said justice, that the said Adams pay a fine of ten dollars to the use of the city of Roxbury, and costs of prosecution taxed at ten dollars and fifty cents; and give a bond of one thousand dollars not to violate, for one year from conviction, any law of this commonwealth concerning the sale of spirituous and intoxicating liquors; with which order having failed to comply, he is committed.” Annexed to the record were copies of an execution issued on the 2d of March 1854, upon a judgment rendered in the court of common pleas for the county of Suffolk, in favor of William Smith of Boston, against Michael Concannon of Roxbury, for the sum of one hundred and fifty three dollars and tnirty cents damage, and twenty two dollars and forty eight cents costs; and of the return made thereon by Adams as sheriff, stating that he had levied the same upon certain personal property of Concannon, attached by one of his deputies upon the original writ in that action, and after due notice sold the property by public auction, to certain persons named, for certain sums, amounting in the whole to seventy six dollars and thirty two cents, one item of which was, “ two barrels of brandy to Thomas Burke for eighteen dollars and fifty cents ”; and after deducting his fees and charges, had applied the balance of the amount so obtained in part satisfaction of the execution.</p> <p>The petition set forth these facts, and that the justice “ issued a mittimus in due form of law, directing said Vose, the coroner of said county, to commit the said Adams, sheriff as aforesaid, to the county jail in Dedham.” “ Wherefore the said Thomas Adams respectfully prays, being restrained of his liberty for no cause but the performance of his official duty, and that too by a person who could have no legal right so to do, that this court will issue its writ of habeas corpus by which said Vose may be required to bring the body of said Adams before this court, and then and there show cause, if any he has, for such illegal imprisonment and detention.”</p> <p>The court ordered that the writ should issue, and that notice thereof should be given to the attorney general, pursuant to Rev. Sts. c. 111, § 20.</p> <p>On the 22d of March, Vose brought the body of Adams into court, and returned on the writ that he held him in his custody, with intent to commit him to Dedham jail, by virtue of the mittimus, a copy of which he annexed. This mittimus, which was addressed “ to the coroner of our county of Norfolk, and to the constables of the several towns in said county, and to the keeper of the Commonwealth’s jail in said county,” commanded them, the said coroner and constables, and each of them, forthwith to convey and deliver into the custody of the keeper of the said jail the body of Thomas Adams, sheriff of the county of Norfolk. The mittimus then set forth the complaint and the Droceedings thereon before the justice; and concluded as foi lows: “ It is therefore ordered by me, that the said Adams be committed to the common jail in Dedham, in said county of Norfolk, there to remain until he comply with the foregoing order, or be discharged by due course of law. And you, the said keeper, in the name of the commonwealth aforesaid, are hereby commanded to receive the said Adams into your custody in said jail, and him safely keep until he shall comply with said order, or be otherwise discharged by due course of law.”</p>

<p>On the trial of an indictment for an assault and battery, when the defendant sets up In defence no distinct and independent fact, but contends that upon the facts and circumstances, as proved by the evidence on both sides, constituting the transaction charged as criminal, he is not guilty, the burden of proof is on the government to satisfy the jury that the assault and battery were unjustifiable.</p>

<p>An execution, issued while the judgment debtor is imprisoned under a commitment on a prior execution upon the same judgment, is void; and a sale of property under it, though made after the debtor’s discharge from imprisonment, and to a purchaser without notice, passes no title.</p>

Petition for a mandamus. The petitioner set forth that on the 31st of December 1846 he presented his petition to the mayor and aldermen of the city of Boston, praying them to assess his damages sustained from the taking of certain of his land in Boston, by the Boston and Maine Railroad, for the construction of their railroad, according to Rev. Sts. c. 39, § 60: That said corporation, having been duly notified, appeared and filed their answer, to which the petitioner filed a…

<p>Assumpsit for money had and received, described in the specification of the plaintiffs’ claim, as “ cash received by the defendant from the United States to the use of the plaintiffs, under an award made by the commissioners appointed to adjust claims of American citizens against Mexico, for spoliations made by Mexico upon American property; which award was made to the defendant as the supposed assignee of Joseph H. Lord and B. B. Williams, to the amount of $15,051, part of which was and is the money of the plaintiffs, to wit, the sum of $1,500.” Writ dated May 26th 1851. The plaintiffs, in their specification of claim, gave notice that they would introduce evidence, that on the 25th of July 1833 they insured Lord, for himself and Williams, payable to Lord in case of loss, “ $500 on property on board the ship Henry Thompson at and from Boston to Gibraltar, and at and from thence to port of discharge in the United States; ” that the ship sailed on her intended voyage with said property on board; and that on the 5th of November 1833 the plaintiffs gave permission that the ship might “ proceed from Gibraltar to port or ports of discharge or loading in the Gulf of Mexico, and thence to port of discharge in the United States: ” That the property so insured was seized by the Mexican government on the 8th of February 1834, and was thereupon abandoned to the plaintiffs, who accepted the abandonment on the 27th- of May 1836, and paid to Lord the amount insured, and thereby became the owners of said property, and of all rights resulting from such ownership : That the defendant, assuming to be in some way interested as the assignee of Lord and Williams, presented a claim to said commissioners for the value of the property on board said ship and so seized and that the commissioners, on the 15th of April 1851, awarded to the defendant, as such supposed assignee, the sum of §15,051: And that the plaintiffs, as soon as they learned that the defendant claimed to have an interest in said property, to wit, on the L2th of January 1850, gave him notice of their claim.</p> <p>The defendant pleaded the general issue; and filed a specification of defence, in which he gave notice that he should rely on the assignments hereinafter stated, and alleged that he was a bona fide purchaser for a valuable consideration, without notice of any interest of the plaintiffs in said property, and claimed to hold the money received by him to his own use.</p> <p>The treaties and statutes of the United States, material to the understanding of this case, are the following: On the 11th of April 1839, the United States entered into a convention with the Eepublic of Mexico, providing for the appointment of commissioners to decide upon the claims of American citizens upon Mexico for injuries to their persons and property by the Mexican authorities, which claims, when ascertained, Mexico agreed to pay. 8 U. S. Sts. at Large, 526. And on the 30th of January 1843, the two governments entered into a convention “ further to provide for the payment of awards in favor of claimants under the convention ” of the 11th of, April 1839. 8 U. S. Sts at Large, 578. By the thirteenth article of the treaty made between the United States and Mexico, at Guadalupe Hidalgo, on the 2d of February 1848, the United States engaged to assume and pay to the claimants the amounts of the claims already liquidated and decided against the Mexican Republic under these two conventions. 9 U. S. Sts. at Large, 933. And by the act of congress of 1849, c. 107, the United States made provision for ascertaining and paying these claims. 9 U. S. Sts. at Large, 393.</p> <p>At the trial before Bigelow, J. there was evidence of the facts stated in the plaintiffs’ specification of claim, and also of the following facts: The plaintiffs have received nothing from any source on account of the property abandoned to them by Lord. On the 251 h of February 1842, the commissioners appointed under the act of congress of 1840, c. 34, entitled “ an act to cany into effect a convention between the United States and the Mexican Republic,” made an award in favor of Williams and Lord, for the property so seized, of §8,136, and interest from the 8th of February 1834, being the time of the seizure by the Mexican authorities. On the 11th of June 1845, Williams assigned one half of this award to Effingham H. Warner, who, on the 15th of August 1845, assigned the same to William B. Hart. On the 16th of October 1846, Williams assigned said award to Hart; and on the 23d day of the same month, Lord assigned to Hart all the interest which he then had or thereafter might have in said award. On the 18th of June 1847, Hart, in consideration of §4,000 to him paid by the defendant, assigned all his interest in the award to the defendant. All these assignments were duly filed in the office of the secretary of state of the United States. On the 9th of January 1850, the commissioners on claims against Mexico under the treaty of 1848 allowed to the defendant, as assignee of Williams and Lord, the said sum of §8,136, and interest thereon to the amount of §6,915; and on the 15th of April 1851, made an award in his favor of §15,051, which sum the defendant, on the 16th of May 1851, received from the treasury of the United States, less the sum of §8,887.50, which was detained under an injunction issued by the circuit court of the United States for the District of Columbia, at the suit of William Judson, claiming under an alleged prior assignment from Williams.</p> <p>The defendant contended: 1. That the act of congress of 1849, c. 107, by which the subject matter of this controversy, namely, the fund to be distributed to the claimants, was created and called into being, prescribed the proceedings, and pointed out the tribunal, by which conflicting claims, to the same portion of the fund were to be regulated ; * and that the plaintiffs Were not authorized to resort to, and could not maintain an action in, any other tribunal. 2. That the defendant was a bona fide purchaser, for a valuable consideration, of the claim of Lord and Williams, without notice of the claim now set up by the plaintiffs, who by their laches had misled the defendant into the belief that Lord and Williams were the true owners of the claim, and had an unincumbered right to sell and assign the same; and that the plaintiffs should therefore be estopped to assert this claim.</p> <p>The plaintiffs requested the judge to instruct the jury as follows : 1. That the abandonment by Lord to the plaintiffs of the property insured, and their acceptance thereof, before Lord made any transfer under which the defendant claimed, if proved to the satisfaction of the jury, passed the property and its proceeds to the plaintiffs, to the extent of the sum insured; and that the plaintiffs were entitled to recover that sum, and interest thereon from the time the abandonment took effect, to wit, the 8th of February 1834. 2. That the assignment from Lord to Hart did not purport to convey the property or its proceeds, but only such interest in the property as Lord then had; and that the defendant was not entitled, as against the plaintiffs, to any greater interest than such balance as might remain, after payment to the plaintiffs of said sum and interest. 3. That if the defendant purchased the title of Lord to the entire property and its proceeds, without notice or knowledge of the plaintiffs title, after-such abandonment and acceptance, he was not entitled to "retain the money against the plaintiffs, to the extent of the sum insured and interest. 4. That if the defendant, when he purchased of Hart the supposed title of Lord, had knowledge of facts and circumstances, which in the opinion of the jury were sufficient to put a person of ordinary intelligence and acquaintance with business upon inquiry as to Lord’s title, the ■ plaintiffs were entitled to recover the sum insured and interest thereon as aforesaid.</p> <p>There being no question of fact in dispute between the parties which the presiding judge deemed material, a verdict was taken by consent for the plaintiff, with the agreement that if, in the opinion of the court, the plaintiff could not hold it, it should be set aside, and a new trial granted, or such other judgment rendered as the court, upon the foregoing case, should think proper.</p> <p>The arguments were had at November term 1853.</p>

<p>Affidavits of jurors cannot be received to prove misconduct of the jury in the jury room.</p> <p>Assumpsit for money had and received. The writ was dated October 10th 1849; and contained a specification of the plaintiffs’ claim, embracing .eight items, the first five of which, amounting to $98.70, consisted of cash received by the defendant for freight, and for tickets and sleepers sold. The. other three items are copied in the margin* Trial before Bigelow, J. who made the following report thereof:</p> <p>“ This was an action of assumpsit, in which the plaintiffs sought to recover of the defendant certain moneys alleged to have been received by him while in their employ as depot-master or agent, and for which he had not accounted.</p> <p>“As to the five first items no question was made on the part of the defence that, if the defendant had received the amounts therein charged, he was bound in the regular course of business to account for them; and no claim was made or evidence offered on the part of the plaintiffs, that the defendant’s receipt of these amounts was beyond the authority intrusted to him in connection with his office, or by the special permission of the plaintiffs’ general superintendent.</p> <p>“As to the next two items, amounting together to the sum of $4,276.15, the evidence in the case showed the following state of facts: The defendant, occupying the position of depot-master, and during a portion of the time covered by the plaintiffs’ claim being second only to the superintendent in the general management of the plaintiffs’ railroad, had been authorized by the superintendent to sell the kind of tickets principally referred to in these two items, namely, Albany second class tickets; and proof was submitted on the part of the plaintiffs, tending to show that the defendant had sold large quantities of these tickets, and not paid for them, nor accounted for the proceeds. The publicity of the sale, and the defendant’s authority from the superintendent to sell, were not drawn in question on either side. The amount sold was not agreed upon; the defendant averring that he had kept no accounts, because he paid for them to the ticket seEer, as he procured them, out of his own funds, and repaid himself by the proceeds of sales to emigrants, in order to avoid the necessity of having tickets charged, and being obEged to keep accounts and make settlements; and the plaintiffs alleging that he had not paid for said tickets, and had made no returns except in a single instance, and to the amount of about $60, which was for tickets he procured from the ticket clerk, and which were charged to him; but evidence was offered on the part of the plaintiffs tending to show that the number of tickets embraced in this item, as • also tickets of the same description embraced in the last item, had been sold by him, and the same never paid for by him, nor the proceeds thereof accounted for. On the part of the defendant, it was contended, and evidence was offered tending to show, that the proceeds of these tickets had been accounted for by the payment of money to the ticket-selling clerk, at the time of their procurement, as before stated. But as to this, and as to the probable mode of the procurement of the tickets themselves, conflicting testimony was offered on the one side and the other. The general current of testimony on the part of the plaintiffs, however, estabEshed that the defendant stood in the most confidential relations to the affairs of the corporation, and that in various ways he had access to and possession of this and other kinds of tickets of the plaintiffs; and that when inquired of at an early day (of the period drawn in question) by the assistant superintendent, as to his authority to sell, and his mode of conducting the sale of these second class Albany tickets, he referred to the superintendent, and that the superintendent had thereupon expressed his satisfaction with his proceedings.</p> <p>“As to the last item in the bill of particulars, the plaintiffs contended, and offered evidence to prove, that an amount of money, equivalent to the tickets therein named, had been abstracted from the plaintiffs’ ticket-selling office at the depot in Boston, by the defendant, to which office as depot-master he had free access; that the charge and custody of the tickets was especially intrustéd to the ticket seller, who kept the keys to the locks on the money drawers and ticket cases; that, after the ticket seller had come to suspect that all was not right in regard to the tickets, he caused the old locks to be changed on said drawers and cases; and the plaintiffs offered evidence to show that said cases and drawers, in the absence of the ticket seller, were clandestinely visited by the defendant from time to time; and that the defendant, in such clandestine visits, had abstracted the money, and had supplied the deficiency of money, thus caused, by substituting tickets which he had procured, without authority, from the general ticket office of the plaintiffs, to which also, as depot-master, he had at all times free access. The general ticket office and the ticket-selling office are both in the depot in Boston; the former being on the second story, to which all tickets are sent, and thence distributed to the various ticket-selling offices on the entire road; and the latter being ón the first floor, and containing tickets received from the upper office, intended for retail sale to Boston passengers. The evidence tended to show that the defendant, as depot-master, had the general charge and superintendence of the depots, and of all persons employed therein, and had free access to all parts of the building, including the ticket offices ; that in the two ticket offices, the tickets were in the special charge and custody of the two clerks employed therein, respectively, who kept them in cases and drawers, and under lock and key when they were absent; that these two clerks were specially charged with the care of said tickets, and were held responsible for them. The plaintiffs alleged, and offered evidence tending to show, that the defendant, in the absence of the clerks, by duplicate keys opened said cases and drawers, and substituted tickets and abstracted money as above stated.</p> <p>“ This evidence was not objected to on the part of the defendant at the time of its admission. But after the whole testimony in the case had been introduced, and after the defendant had introduced evidence to contradict and control the evidence offered in regard to this item by the plaintiffs, the defendant’s counsel moved the court to instruct the jury, that the plaintiffs could- not recover; first, because their cause of action, as set forth in their specification, was for the proceeds of tickets sold, and not for money taken or abstracted from the office and replaced by the substitution of tickets; and secondly, because upon the evidence in this case their cause of action, if they had any, was suspended until indictment found, or a complaint or prosecution had been made against the defendant for larceny. But the judge, at this stage of the trial, and for the purpose of taking a verdict on the merits, declined so to rule; and instructed the jury that if the defendant had fraudulently appropriated the plaintiffs’ money in the manner sought to be shown by them, he would be liable in the present action, though no criminal prosecution had first been instituted therefor. As to the sale of the tickets specified in the sixth and seventh items, (those sold to Lawrence and Ray,) the judge instructed the jury, that if they were -satisfied that the defendant sold the plaintiffs’ tickets, as therein alleged, and received the money therefor, he was bound to account for the same, on the common principle of the law of agency, where the agent receives the money of his principal, and neglects to pay it over.</p> <p>“ The plaintiffs proposed to offer evidence of the defendant’s possession of large means and property at or about the time of the alleged abstraction of the plaintiffs’ money. This was objected to on the part of the defendant; but the court permitted evidence to be given of the defendant’s possession of property subsequent to the time of the alleged peculations, within the period covered by the writ; and also ruled that it was competent to show the defendant’s poverty or want of means immediately prior to that period. The plaintiffs thereupon offered testimony, which was not objected to on the part of the defendant, except as above stated, showing that he was insolvent at the time of entering the plaintiffs’ service; and that he had since received only a limited salary, and some small extra compensation; and that, subsequent to the period laid as the commencement of his misdoings, he had become the ostensible owner of a large property, much exceeding the aggregate of all his salary and receipts. The jury were instructed that this testimony was not competent to .prove that any money had been taken or abstracted from the plaintiffs, but that if they were first satisfied by other evidence that money had been taken or abstracted from them, this evidence might be considered, among other things, as having some bearing on the question whether the defendant had taken or abstracted the money in question. This instruction was not excepted to; but the defendant contended that the evidence was inadmissible for any purpose.</p> <p>“ The defendant, in order to meet and explain the evidence last referred to, proposed to prove certain declarations of his own to third persons, prior to the commencement of the present action, and while in the plaintiffs’ employment, respecting his pecuniary transactions, and his style of living and mode of acquiring property; said declarations being made in the hearing of his brother-in-law, and not in the presence of any officer or agent of the plaintiffs ; but the same were rejected by the court.</p> <p>“ The plaintiffs offered to prove by Joseph H. Moore, that abstractions of money and a substitution of tickets had been practised in the plaintiffs’ ticket-selling office, when the defendant was connected therewith in 1844 and 1845, and prior to the time embraced in the plaintiffs’ specification; to which the defendant’s counsel objected. ‘The court ruled that the evidence would be incompetent as tending to show the defendant’s abstractions of money at the period laid in the writ, but was competent solely as affecting the degree of credit to be attached by the jury to the testimony of William B. Fowle, one of the plaintiffs’ witnesses, unless the defendant’s counsel would disclaim the imputation on said witness of having taken the money dishonestly now claimed of the defendant. Fowle had been the plaintiffs’ ticket-selling clerk since 1847; and had testified to facts tending to show that the defendant had abstracted money and substituted tickets in his office since that period. The defendant contended, and urged as one ground of defence, that if money had been taken from the ticket office, and tickets substituted therefor, as contended by the plaintiffs, it was done by Fowle, and not by the defendant, and that this was a reason why Fowle’s testimony was not entitled to credit. The defendant’s counsel declining to disclaim any inference or imputation as to Fowle, the court admitted the evidence as tending to show that, similar abstractions of money and substitution of tickets having taken place before Fowle was employed by the plaintiffs, his testimony was not subject to the discredit urged by the defendant.</p> <p>“ The plaintiffs, in proof of their losses, put into the case two schedules or summaries made by Fowle, exhibiting the' discrepancies between the number of tickets sold by them from December 1st 1845 to December 31st 1849, and again from January 1st 1850 to October 1st 1850, as compared with the tickets taken up and returned to them by the Western Railroad Corporation during the same period; the Western Railroad being a.connecting railroad with that of the plaintiffs, and ov.er which a portion of their passengers passed. These schedules, as Fowle testified, were made up from original documents previously proved and in the case; and their admission being objected to, the court admitted them as summaries of matter already in proof, signifying to the defendant’s counsel that an opportunity would be afforded them to test their accuracy, before the case should be committed to the jury. Subsequently the same privilege of introducing similar summaries, showing discrepancies in the schedules of the plaintiffs, and that there have been no such losses sustained by the plaintiffs as were alleged by them, was conceded to the defendant’s counsel, after the defendant’s counsel had closed their case, and the plaintiffs’ counsel had commenced their final argument to the jury.</p> <p>“ The plaintiffs offered to prove, that at a meeting of the directors of the plaintiffs’ corporation before the commencement of the present action, a person named Ellis made certain declarations in the defendant’s presence and hearing, in regard to the number of tickets which he had bought of the defendant. The defendant objected to the evidence. But it appearing that the meeting of said directors was a meeting of friendly inquiry called at the defendant’s request for the purpose of explaining his alleged delinquencies, and at which he asked questions and made comments on the declarations of the persons appearing before the board, and took notes of their testimony, and that he asked questions and made comments upon the declarations proposed to be proved, at the time said declarations were made, the evidence was admitted.</p> <p>“ The defendant subsequently offered to prove by the testimony of one of his counsel, that the above named Ellis, who deceased previous to the trial, had, while living, afterwards made a statement differing from the one above referred to. The plaintiffs objected to the admission of this testimony, and it was rejected by the court.</p> <p>“ The defendant’s counsel, near the close of their case, offered to prove an inaccuracy of the plaintiffs’ cashier, in regard to a particular entry, nowise bearing upon the case further than as affecting the cashier’s general carefulness and accuracy. This was after the defendant’s counsel had at an earlier stage of the case expressly admitted said cashier’s general qualifications in the particulars named, in the amplest terms, with the view of superseding the necessity of making inquiries of the witness upon the point. Under these circumstances the court refused to admit the evidence offered.</p> <p>“ If either of the foregoing rulings or instructions were erroneous, then the verdict, which was for the plaintiffs in the sum of $6,841, is to be set aside, or so much of it as would be affected by said rulings, if the same is capable of being severed.”</p> <p>The defendant moved for a new trial because of the rulings and instructions of the presiding judge, set forth in the report; and also “ because of the misconduct of the jury in finding said verdict; ” and in support of this last ground, produced an affidavit of one of the jurors, in which he stated that the jury, after they retired to the jury room, agreed that each should set down the sum which he thought the plaintiff ought to recover, and that the aggregate of the twelve sums, divided by twelve, should, without alteration, be returned as the amount of damages.</p> <p>The arguments were had at November term 1852.</p>

<p>This case, which was argued on exceptions to the ruling of Hoar, J. in the court of common pleas, appears in the opinion.</p>

Assumpsit by Charles S. Smith and Joseph G. Smith, partners under the firm of C. S. & J. G. Smith, on four promissory notes,' two signed by Mark H. Bryan, and the other two by James Fannon, and all payable to the plaintiffs or order, and indorsed by the defendant thus: “ Waiving demand and notice, Stephen Castles.” The defendant pleaded the general issue, and admitting the genuineness of the signatures on the notes, denied that he indorsed them at the time when they were…

Covenant by the administrator of John Floyd, against Samuel F. Holbrook and James Dillon, on the following instrument, signed and sealed by the defendants: “ To all persons to whom these presents shall come: Know ye that we, Samuel F. Holbrook and James Dillon, of the city of Boston, Massachusetts, separately and jointly do bind ourselves, our heirs and assigns, to do and perform as hereinafter mentioned.

<p>The age of consent in this commonwealth, as by the common law, is twelve in females, and fourteen in males; and a marriage between two infants above those ages is valid, without the consent of their parents or guardians, notwithstanding the Rev. Sts. c. 75 §§ 15,19, which prohibit magistrates or ministers, under a penalty, from solemnizing the marriage of a female under the age of eighteen, or a male under the age of twenty one without the consent of the parent or guardian.</p>

<p>Assumpsit for two gold-washing machines. Trial in the court of common pleas, before Perkins, J. whose rulings were excepted to by the defendants, and are stated in the opinion.</p>

<p>The owner of a vessel let her, “ with the exception of the necessary room for the accommo dation of the crew, and stowage of the sails, cables and provisions,” to the master and another person, for a particular voyage, by a charter party, in which the owner covenanted to keep the vessel tight, staunch and strong, and sufficiently tackled and apparelled for the voyage, and the charterers covenanted to victual and man the vessel, and to pay all port charges and pilotages. SeM, that the general owner was not liable for water casks furnished to the vessel on the order of the master, though part of the necessary apparel of the vessel for the voyage.</p>

<p>An oral agreement to employ an infant for five years, and to pay his father certain sums semiannually for his services, is an agreement not to be performed within a year, within the statute of frauds, (Rev. Sts. e. 74, § 1, cl 5,) and no action lies thereon to recover one of the semiannual instalments.</p>

<p>!L agreed in writing “ to slate the other building, about to be built at South Boston, fox the new iron works, by G. and others, on the same terms he did the first building The written contract, specifying the work to be done on the first building, and the prices to be paid therefor, was between H. and the B. I. Co., of which G. was treasurer: Before H. thus agreed to slate “ the other building,” G., who owned the new iron works at South Boston, had sold them to the M. I. Co., in which be was a stockholder, pursuant to an agreement to that effect made with the other stockholders before that corporation was organized. Held, in an action brought by H. against the B. I. Co. to recover for slating the second building, that extrinsic evidence was admissible to show who were designated by the words “ G. and others ” in the written agreement, and for whom and on whose account such slating was to be done.</p>

<p>Trover by William Brigham and John C. Dodge, assignees of George Lambert, an insolvent debtor, for a promissory note for $578, dated January 11th 1850, signed by W. & F. H. Whittemore & Company, and payable in six months after its date to the order of Lambert, and purporting to be indorsed by him. Writ dated September 13th 1850.</p> <p>At the trial in the court of common pleas, before Perkins, J. the ground upon which the plaintiffs sought to recover was, that the note had never legally passed out of the hands of Lambert, nor out of their hands, by indorsement or otherwise. The grounds of defence were that Lambert’s name was indorsed by him, or by his clerk B. F. Wellington, by his authority; that the note, before its maturity, was delivered by Wellington, in payment of a debt of Lambert’s, and by his authority, to Samuel A, Way; and that the defendants received it from Way, before maturity, in the usual course of business, in good faith, for a valuable consideration, and without notice.</p> <p>There was evidence tending to show that Wellington, from March 1849 to the end of May 1850, had" charge of the business of Lambert, who was partially disabled by lameness from at« tending to his business personally, and that, among other things, Wellington had general power to raise money on the business notes and other notes and property belonging to Lambert, and to pay Lambert’s debts. There was also evidence tending to show that at various times, between the middle of February 1849 and April 1850, Wellington, with the knowledge of Lambert, wrote Lambert’s name, imitating his signature, upon many notes, both as promisor and indorser, which notes were applied to Lambert’s use in transacting his business; and in like manner signed numerous checks, upon which money was drawn from the Grocers’ Bank, and applied to Lambert’s use.</p> <p>John Wetherbee, Jr. a witness for the defendants, testified that in 1849, at the request of Wellington, he discounted a draft payable to Lambert, and Wellington thereupon publicly, on the counter of Wetherbee’s office in State Street, indorsed the name of Lambert on the draft, imitating his signature, and thereupon received the amount of the draft from Wetherbee, and reached to a small piece of square paper, and made a minute of a bank deposit of the money, with George Lambert’s name on it, and put the money with the minute in a deposit bank book,' and went across State Street, as the witness supposed, to make a deposit.</p> <p>There was also evidence tending to show that Lambert borrowed of Way large sums prior to the year 1849, some of which were borrowed for him by Wellington, and that on the 19th of June 1849, through the agency of Wellington, Lambert borrowed of Way five hundred dollars, and Wellington gave Way a borrowed and received note for that amount, payable on demand, signed “ George Lambert by B. F. Wellington,” and gave Way, as collateral security therefor, business notes belonging to Lambert ; that Wellington had authority to borrow money upon borrowed and received notes so signed; and that the sum of five hundred dollars so borrowed was applied to Lambert’a use • That Way retained said $500 note until the 31st of January 1850; that prior to the 29th of said January, Way exchanged the business notes, so held as collateral security, for another business note belonging to Lambert, signed or purporting to be signed by one Noyes; that prior to the 26th of the same month, Lambert had negotiated certain notes signed by him, payable to his own order, and indorsed by him, among which was one for $275, which he passed to one Gardneiyfor a valuable consideration; that this note.for $275 was offered for sale in State street, which was made known to Lambert by Way through Wellington; that Lambert thereupon directed Wellington to take up the $275 note, and that Wellington thereupon induced Way to buy it, and agreed with him, in case he could do so, to give him good business paper therefor; that on said 26th of January, Way purchased the $275 note of a broker; and on the 29th of January, Wellington took up the note of Noyes and gave Way in lieu thereof the note for $578 for which this suit was brought, agreeing in a day or two to bring in other business paper and take up the $500 note and the $275 note; and that accordingly, on the 31st of said January, Wellington gave Way said $578 note and a note of William M. Jackson for $'208.79, payable to the order of said Lambert and purporting to be indorsed by him, and received the $500 note and the $275 note; and said $275 note was produced by the plaintiffs at the trial upon notice given by the defendants, and was used by the defendants in evidence.</p> <p>There was also evidence tending to show that Lambert, be fore his insolvency, was informed that said $578 note and the note for $208.79 were so given by Wellington to take up the $500 note and the $275 note, and that he said it was all right.</p> <p>The defendants proposed to prove by Wetherbee that Wellington, at the time of indorsing Lambert’s name on said draft, stated, in .explanation of said act, that he had authority from Lambert so to sign his name. But the court refused to admit the testimony.</p> <p>Joseph B. Norris testified, that in the fall of 1849, as he was standing at the door of No. Ill State street, he saw Lambert sitting in a buggy in the street in front of said door; that Wellington handed some papers to Lambert, and held an inkstand and gave him a pen, as if to have him write something on the paper; that Lambert took a check book, as he sat in the buggy, and placed it on his hat, and rested said papers on it, and as witness supposed, wrote on them. What Lambert wrote, if any thing, the witness was not near enough to see, and could not say; but after Lambert went away, the witness went up with Wellington into the counting room, and Wellington had there some signed and indorsed notes, “ the same,” the witness said, “ that were handed back to Wellington.”</p> <p>The defendants proposed to ask this witness whether the name of Lambert, indorsed on the note in controversy, was the genuine signature of Lambert; on the ground that the witness had seen Lambert write, or had seen signatures which he knew to be Lambert’s, and was therefore qualified to give his opinion upon that point. But the court, not deeming the witness, from this testimony, so qualified on either ground, did not allow the question to be put to the witness.</p> <p>Charles H. Smith testified, that he was paying and receiving teller of the Grocers’ Bank, and had been so from the 21st of May 1849, and that he had paid there a large number of checks drawn in the name of George Lambert, who had a deposit of money at the bank. This witness had never seen Lambert write; and the only evidence to show that any of these checks were in Lambert’s hand writing, was the testimony of Lambert himself, who stated that a part of said checks were genuine, and a part of them, much the larger part, forged. Smith had paid those said by Lambert to be forged, when presented, and also those said by Lambert to be genuine, believing them all to be genuine.</p> <p>The defendants then proposed to ask this witness whether the signature of Lambert on the note in controversy was genuine ; but the court not being satisfied of his competency to give his opinion on that point, rejected the evidence.</p> <p>Wetherbee, upon showing himself competent to give an opinion, was allowed to state, and did state, that in his belief the signature on the note in controversy was the genuine signature of Lambert; but he also testified that he had had Lambert’s notes and checks; that he became familiar with his signature; that in 1848 or 1849 he saw Lambert write his name; and that he had frequently seen in Wellington’s possession notes signed and indorsed in blank by Lambert, and that he had frequent transactions with Wellington on Lambert’s account. And Matthew Bolles, another witness for the defendants, testified that a year or more before 1850, Lambert came into his office and desired him to transact business with Wellington and make loans to him on Lambert’s account, as he would with Lambert himself; that he frequently took, in the course of his business with Wellington, acting on Lambert’s account, notes bearing the name of Lambert.</p> <p>The defendants offered to prove by Wetherbee and Bolles that the signature on the back of the note sued for was the signature upon which Lambert’s business had been transacted in 1849 and part of 1850; but as the defendants did not propose by this evidence to show that Lambert wrote the name himself; and as there was strong evidence that a large number of notes and checks bearing the name of George Lambert, not signed by himself, were at the time in circulation, without his authority, on a part of which some of the business of Lambert had been done during those periods, without his knowledge, the court rejected the evidence.</p> <p>The defendants contended that, if the $275 mote and the $500 note were debts of Lambert, and the $578 note and the $208.79 note were passed by Wellington to take up the same, the same having been appropriated to the use of Lambert, the plaintiffs could not recover, and the defendants would be entitled to retain the $578 note, whether the indorsement thereon was or was not rightly made, and especially as neither Lambert nor the plaintiffs had returned or offered to return the notes for $275 and $500; and if the jury should find that Lambert directed the $275 note to be taken up, and the note sued for was applied to that purpose, that the plaintiffs could not recover, but the defendants would be entitled to retain the same until the $275 note was returned or offered to be returned, even if the $500 note was not a debt of Lambert.</p> <p>The court instructed the jury that, if they should find that the $275 note and the $500 note were the debts of Lambert, and that the note sued for was passed to Way towards taking up and paying the same, these facts, in themselves, would not be a conclusive defence in law to this action, although the whole transaction afterwards became known to Lambert, and he had done nothing to repudiate it; but the existence of these facts, and the failure of Lambert to repudiate the transaction, would be strong evidence in favor of the defendants to show either original authority in Wellington, or a subsequent ratification of his act in signing the name of Lambert.</p> <p>The defendants requested the court to rule that, if the $578 note was appropriated as aforesaid in payment of Lambert’s debt, the plaintiffs could not recover without returning or offering to return the $275 note and $500 note. But the court declined so to rule, and ruled that if the $578 note was so appropriated, and neither the plaintiffs nor Lambert returned or offered to return the $500 note and the $275 note; yet these facts would not in law be a defence to this action; but that the not returning or offering to return the same was strong evidence tó show that Lambert had authorized or ratified the indorsement.</p> <p>The defendants also asked the court to instruct the jury that, if Wellington in any one case, before passing the $578 note, wrote the name of Lambert as indorser on any negotiable paper, imitating his signature, and put the same in circulation; and Lambert had either expressly authorized the same, or after-wards, knowing of the same, had acquiesced in it, he would be bound by any like indorsement, thereafter made by Wellington on negotiable paper, in the hands of a bona fide holder, although such signature might_have been misused by Wellington, and he would be bound by the indorsement of the $578 note in the hands of a bona fide holder, if the same was made by Wellington.' But the court refused so to instruct the jury, and ruled that if Lambert had authorized Wellington to sign his name in one instance, or acquiesced in his signing it in one instance, this would not necessarily bind him on like signatures thereafterwards made by Wellington; but would be strong evidence to show authority in Wellington so to indorse and circulate notes, and from which the jury would be justified in finding an authority so to indorse and circulate.</p> <p>The jury returned a verdict for the plaintiffs; and the defendants alleged exceptions to the foregoing rulings and instructions.</p>

<p>Assumpsit for thirty barrels of ale sold and delivered to the defendant. The case was referred to an auditor, whose report the plaintiff offered in evidence at the trial in the court of common pleas.</p> <p>From this report it appeared that at the hearing before the auditor, the plaintiff, to prove his account, offered his book of original entries, and called as a witness the clerk who kept the books, who testified, that the book produced was the plaintiff’s book of original entries; that he made the entries; that he took them from the delivery book of the drayman every Saturday night; that the drayman stood by his side, and read off the entries, and he copied them into the plaintiff’s book; and then the drayman read them off from the delivery book, and compared them, and if they were right, the witness checked them in the plaintiff’s book; that this was done in the present case; and that the drayman was now in California. It also appeared by the auditor’s report that most of the barrels were delivered on Monday.</p> <p>The defendant objected to the admission of the auditor’s report for the following reasons: 1. The drayman’s book, and not the book produced by the clerk, was the plaintiff’s book of original entry. 2. The drayman’s book, if not the book of original entry, contained the original memoranda from which the plaintiff’s clerk made the entries sworn to by him. As the drayman is not produced, his unsupported declarations to the clerk are the only evidence to show by whom or when such memoranda were made. 3. If the drayman’s memoranda are proved by his declaration to the clerk, as the drayman read off to the clerk on Saturday night the deliveries of the whole week, and as most of the barrels were delivered on Monday, six days elapsed, in most instances, between the delivery and the charge. Declarations made more than one day after a transaction can not be considered as of the res gesta.</p> <p>But Perkins, J. overruled these objections, and admitted the report in evidence. Whereupon the jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

<p>Trespass against the field-drivers of Nantucket for taking and driving away the plaintiff’s sheep, on the 20th of April 1848.</p> <p>The defendants were defaulted by agreement, and the case referred to an assessor to assess the damages, who reported that there was no evidence before him that Thomas E. Gibbs, one of 1 i defendants, participated in, or was connected with, the tres i complained of in this suit; but that there was evidence tha was' not present, with the other defendants, at the taking or úng; and that the defendants thereupon contended thi ‘ntiff was entitled to no more than nominal damage judgment would go against all the defendants, ai damage had been proved against Gibbs; but that the p mtiff contended that, inasmuch as the defendants had been defaulted, this objection was not open to them. And the assessor submitted this question to the court.</p> <p>The assessor further reported, that it appeared from the testimony as to the value of the sheep, that if the sheep could not lawfully continue to run at large, and be depastured on the common and uninclosed lands in Nantucket, but must be kept on the lands of their owners, or sold, the plaintiffs sheep, on the 20th of April 1848, were worth from a dollar to a dollar and a half each ; but that, if the sheep could lawfully continue to run at large and be depastured upon said common lands, then they were worth, at that time, from three dollars to three dollars and a half each. And the assessor assessed the plaintiffs damages in the alternative, according to each method of valuation.</p>

<p>Actions of contract to recover as tor a total loss upon two policies of insurance, whereby the defendants caused each of the plaintiffs to be insured $3,750 upon the brig Belfast, valued in the policies at $10,000, from San Francisco to Panama, and thence to Valparaiso. Each of these policies contains an agreement “ that the insured shall not have the right to abandon the vessel for the amount of damage merely, unless the amount which the insurers would be liable to pay under an adjustment, as of a partial loss, shall exceed half the amount insured.”</p> <p>The two cases were tried together before Merrick, J. at Nantucket. The evidence was that the brig encountered boisterous, severe and tempestuous weather, on her voyage from Panama to Valparaiso, whereby she was greatly damaged in her hull, spars and sails; that she arrived at the last named port on the 2d of August 1851, in a very leaky, disabled, unseaworthy and apparently unmanageable condition; that on the next day the master of the brig entered his protest before the consul of the United States, and at the same time, on account of the disabled condition of the brig in consequence of the damage she had sustained, caused and procured a survey of her to be had and made. Tht surveyors reported that the probable cost of repairing the brig would be from five to six thousand dollars; the items of their “ approximate estimate ” amounting in the whole to the sum of $5,248; and they recommended that the brig should be sold with the least possible delay, as being best for the interest of all parties concerned. The master therefore gave written notice to the consul of his intention to sell the brig; which sale was after-wards effected at public auction on the 28th of said August. On the 13th of November following, notice was given to the defendants by the plaintiffs of their intention to abandon their interest in the brig, and make claim against them as for a total loss. The plaintiffs introduced the deposition of George H. Brock the master of the brig, who testified, among other things, as to the cause and effect of the damage done to the brig; that she was owned one eighth by himself and seven eighths by each of the plaintiffs, both of whom were at Valparaiso on her arrival there, and remained at that port until after the sale; (at which they were present, as appeared by other testimony ;) that he made every effort, but found it impossible to raise funds to repair the brig sufficiently to enable her to proceed to sea; that he acted on his own responsibility as master in abandoning the brig and making sale of her at Valparaiso; that the owners gave him no advice, and made to him no suggestion on that subject; and that the brig was sold solely because he could not get the funds to repair her.</p> <p>It was agreed by the parties that the master, while he was a* Panama during the voyage insured, borrowed $500 to pay necessary recruits, and gave a bottomry bond on the brig therefor; and the plaintiffs offered no evidence to show that the money so borrowed had been paid, or that said bond did not continue in full force, when the plaintiffs gave notice to the defendants of their intention to abandon; but the plaintiff Folger, whose answers to interrogatories filed by the defendants were read to the jury as evidence, without objection, testified that he did not think that the bond had ever been paid.</p> <p>The defendants admitted the due execution of the policies; that the brig was seaworthy at the inception of the risk, and at the commencement of the voyage from San Francisco; that she sustained damage from the perils insured against; and they produced no evidence to contradict the statement relative thereto contained in the protest and in the deposition of the master. And they further admitted, that neither the master nor the owners possessed any means, whereby they could have raised the necessary funds at Valparaiso to make the repairs requisite to enable the brig to proceed to sea; and that the plaintiffs were entitled to recover as for a partial loss.</p> <p>In addition to the foregoing facts, the plaintiffs proposed to introduce evidence, that the harbor at Valparaiso is an open roadstead, wherein vessels are exposed to northers of great severity, rendering it insecure to lie at anchor there from March to October, with no facilities to heave out a vessel arid repair her bottom; that it was wholly impracticable to repair their brig there at that season of the year, and that she could not have been put upon the beach without a moral certainty of her destruction. This evidence, being objected to, was rejected as immaterial.</p> <p>The cases were reserved, upon the foregoing report, for the consideration of the full court, with the agreement that if the court should be of opinion that the plaintiffs were entitled to recover as for a total loss, judgment should be rendered for the plaintiff in each action for $3,750, with interest, deducting what the defendants might have a right to claim for salvage; but if they were entitled to recover only for a partial loss, an assessor should be appointed by the court to ascertain and assess the damages; unless the court should determine that the evidence offered by the plaintiff, which was rejected, ought to have been admitted, in which case a new trial should be granted.</p>

<p>A sheriff, by order of" the court, took a convict, sentenced to two months imprisonment, into his custody, in order to execute the sentence; the court on the same day, for the purpose of allowing the convict to be called as a witness without sending to his place of confinement, rescinded the order, and directed the sheriff not to detain him; and on the next day ordered the sheriff to execute the original sentence, which was accordingly done. Beld, that the sheriff was not liable for false imprisonment of the convict, unless he detained him in his custody after the court directed him not to detain him, and before the convict was again ordered into his custody.</p>

Action of tort on the St. of 1810, c. 124, (which is copied in the margin,*) to recover eleven penalties of one hundred dollars each, for erecting a livery stable, and using and improving the same for eleven months, from November 1850 to September 1851, both inclusive, within one hundred and seventy feet of the Essex Street Church, a church erected and used for die public worship of God.

<p>A citation to a creditor who had committed his debtor to prison on execution, giving him notice of the time and place appointed for the examination of the debtor, stated accurately the profession of the debtor, the court from which the execution issued, the date of the execution, and its amount, both as to damages and costs, and the prison to which the creditor had caused the debtor to be committed; but omitted the initial letter of the middle name of the debtor. Held, that this omission did not invalidate a discharge granted to the debtor by two justices of the quorum, on his examination at the time and place named in the citation.</p> <p>The officer, to whom was delivered for service a citation to a creditor to appear at the examination of his debtor committed to prison on execution, returned thereon that he had served the same by giving an attested copy thereof to the plaintiff’s attorney. Held, in an action on the debtor’s bond for the liberty of the prison limits, that this return was conclusive evidence that the copy served purported to be signed by the magistrate who signed the original citation, although in the statement of facts on which that action was submitted to the court, it was agreed that the copy served purported to be signed by a different magistrate.</p>

<p>At the examination of Hoogs on the 11th of December 1851, before two justices of the peace and of the quorum, upon his application to be admitted to take the poor debtors’ oath, Chamberlain, the judgment creditor, appeared, and alleged against him in writing and filed the following charges of fraud: 1. “That at the time the debt was contracted, for which the said Hoogs is now committed, he did not intend to pay the same.” 2. “ That the said contract consisted of a check on the Shawmut Bank in Boston for six hundred dollars, which was given by said Hoogs to said Chamberlain, on the day it bears date, for six hundred dollars then lent said Hoogs by said Chamberlain; that said loan was made and check given at about two of the clock in the afternoon of said day; and that at the time said loan was ■made and check given, the said Hoogs represented to said Chamberlain, or gave him to understand, that said cheek was good, and that he then had sufficient funds to his credit in said bank to pay said check; all which was false, and no funds were then to the credit of said Hoogs in said bank, nor had there ever been any funds in said bank to his credit; all of which was well known to said Hoogs at the time he made the same and delivered it to said Chamberlain; and that he made the same and contracted said debt, having no intention to pay the same, and having no expectation that it would be paid.” To these charges Hoogs pleaded not guilty; and the justices decided in his favpr.</p> <p>The creditor appealed to the court of common pleas, where the issue joined on these charges was tried by a jury at January term 1852, and found for the creditor. The debtor moved in arrest of judgment, for the reason that the supposed fraud was not fully, plainly and formally set forth as the law requires; because the first count or charge did not set forth the contract, and was uncertain as to the parties and contract; and because the charges -did not allege that the debtor had the intent not to pay at the time of making said contract, if any. But Wells, C. J. overruled the motion; whereupon the debtor alleged exceptions.</p>

<p>The protest of a promissory note, duly authenticated by the signature and official seal of a notary public, and found among his papers after his death, is competent secondary evidence of the acts of the notary, stated therein, respecting presentment, demand and refusal.</p> <p>A promissory note, dated at Boston, where the maker and each of the indoisers had a domicil when the note was made and when it fell due, was deposited in a bank in Boston for collection: No demand of payment was made of the maker, and no notice given him of the dishonor of the note: In a suit by the holder against the first indorser, it appeared by the protest of a deceased notary, that the notary “ went to various places, making diligent inquiry of divers persons, for the promisor; but could not find him, nor any one knowing him, nor any one with funds for the payment of the note; and thereupon left official notice of the default, addressed to the several indorsers, at their respective places of business.” Held, that the notary had not used that reasonable diligence to ascertain the residence of the maker which would excuse the want of legal notice to him of the dishonor of the note.</p>

Action of contract for money had and received, commenced on the 27th of October 1851, by Moses Call and Benjamin D. Metcalf, to recover $92, being one quarter part, of the net earnings of the brig Galena on her then last voyage.

<p>Action of torv for an assault and battery, brought by a boy of the age of seventeen years, by his father and next friend.</p> <p>The defendant, in his answer, admitting the assault, alleged first, that it was done in self-defence, to repel an assault made upon him by the plaintiff; and secondly, that it was lawfully done by him, as sexton of the Church of the Advent, in Green Street, authorized by vote of the church to take care of its buildings and property, in attempting to expel the plaintiff from a passage way by the side of the church, after a request to him to leave it, and his refusal to do so.</p> <p>At the trial in the court of common pleas, before Bishop, J. it appeared in evidence that thé fee of said passage way was in the church, subject however to a right of way appurtenant to the other estates bounding thereon. And the plaintiff called two lads as witnesses, who testified that on the day of the assault they, in company with the plaintiff, entered the passage way with the view of visiting an old vacant house at the end of the passage, belonging to the father of one of the witnesses; that as they were about to enter the window of the house, (the door having been previously fastened up by said witness by his father’s order,) the defendant came into the passage way, and ordered them all out, and pushed the witnesses down the passage way; that they turned at the foot of the passage way, and saw the defendant strike the plaintiff a blow upon the head with his cane. There was conflicting evidence as to the weight of the blow and the amount of injury thereby occasioned to the plaintiff. The defendant introduced evidence that he was weak and enfeebled by disease, and that the plaintiff was a strong and vigorous lad, and resisted the defendant’s attempts to remove him from the passage way, and after the assault complained of, but during the struggle, wrested the defendant’s cane from his hand, and gave him a severe blow with it which confined him some days to his house.</p> <p>• The plaintiff contended that, being in company with the son of the owner of the old house, to which was appurtenant a right of way through the passage, he was lawfully there, and that a license or permission to be there from the owner of the easement might be ,inferred. To rebut this, the defendant offered evidence to show that the old house had, for a considerable length of time previous to said assault, been frequented by boys, some of a bad character, and some of whom had been sent to the state prison; that the plaintiff was one who had thus frequented said house that meetings for worship in said church had frequently beer disturbed by them, and the windows of the church broken; that, to exclude all entry into the old house, the owner had fastened the doors and windows strongly, and that it had been broken into. This evidence was objected to by the plaintiff, but admitted by the judge.</p> <p>The judge left it to the jury to determine whether the plaintiff was in said passage under' or by the permission or license of those entitled to the easement aforesaid; and instructed them that the defendant was required to make out his justification to their reasonable satisfaction; and that, if they believed the plaintiff to have been wrongfully in the passage way, and that he refused to leave, after being requested to by ,the defendant, the defendant had a right to remove him, using no more force than necessary for that purpose: That in relation to the justification upon the ground of a first assault by the plaintiff, the jury had a right to take into consideration all the acts, conduct and declarations of the parties, admitted in evidence and connected with the transactions, as well those which immediately followed, as those which immediately preceded the assault; and if, from the whole evidence, they were satisfied that the plaintiff committed the first assault, and that the assault set out in plaintiff’s declaration was defensive only, the justification was made out, and they should return a verdict for the defendant.</p> <p>The jury returned a verdict for defendant, and the plaintiff alleged exceptions to the rulings and instructions of the judge.</p>

<p>Action of tort. The declaration alleged that “the defendants forcibly entered the plaintiff’s close, abutting on Oliver Street in Boston, and situated in the rear of certain warehouses, situated on Milk Street in said Boston, and numbered 39, 41 and 47 on said Mffk Street, and broke and subverted the soil of said close, and used the same as a place of deposit for merchandise and other articles, and constructed a railway over the same. To the damage of the plaintiff, as he says, the sum of five hundred dollars.”</p> <p>The defendants, in their answer, “ deny that they wrongfully broke and subverted the soil of said close, and used the same as a place of deposit for merchandise and other articles, and constructed a railway over the same; but they allege that said close is a passage way, to be used in connection with the stores and warehouses abutting thereon, and in, upon and over which the owners and their tenants have all the rights of passage to said stores and warehouses, and that they are tenants of, and have hired of the owners thereof, said stores or warehouses, with the privileges and appurtenances thereunto belonging, and that they used said passage way as a passage way to said stores and warehouses so hired by them, and that all the uses which they made of said passage way they had good right to make.”</p> <p>The plaintiff in his replication “ admits that the owners and tenants of the warehouses abutting on said close, and no others, have a right to use said close in connection therewith as a passage way; ” “ but he denies that all the uses, which the defendants made of said passage way, they had good right to make.” Trial in the court of common pleas, before Merrick, J. who signed the following bill of exceptions: In 1828, three corporations, then owning as tenants in common a tract of land lying on and near Milk Street and Oliver Street, made partition thereof by indenture, assigning separate parcels, bounding on passage ways, to each company in severalty, “ with all the privileges, easements and appurtenances to the said parcels of land and tenements or either of them belonging.” “And this indenture further witnesseth, that it is mutually agreed by and between the said parties, that the said passage ways shall be and continue open and common for the free use and passage of the abutters upon the said passage ways respectively, to be used and enjoyed by them in as full and ample a manner as they now are and heretofore have been used and enjoyed.” In 1846, the three corporations conveyed the fee in these passage ways, including the place in question, to the plaintiff, subject to the rights reserved to the abutters by the indenture of partition. Two of the lots, thus set off to be held in severalty, upon each of which a warehouse had been built, were situated on opposite sides of one of the passage ways, near the end thereof farthest from the street; and at the time of the commencement of this action, and for some time previous, were held by the defendants, under leases for years from the owners of the lots, who derived their title from the parties to the deed of partition.</p> <p>The defendants, who were iron merchants, laid a flooring of planks across the passage way from the back door of one warehouse to that of the other, and on these planks laid iron tracks or rails, to serve for facilitating the transfer of the heavy articles in which they dealt, from one warehouse to the other. These planks and rails were at first laid wholly above the level of the soil; but the passage way was afterwards repaved and raised by the plaintiff, so that they are now a little, and but a little, above the level of the soil. There was no proof that the soil had been subverted, but only that the plank and rails had been laid on the surface of the ground, and remained there permanently.</p> <p>It was also proved or admitted, that the defendants had used the passage way in the rear of their warehouses as a place of deposit for goods, until this was objected to by the plaintiff, when they removed their goods, and have not so used the passage way since. There was no evidence that the passage way had ever been so used, either for the transit or deposit of goods, until it was so used by the defendants. No special damage or actual damage was proved to have been sustained by the plaintiff. This action was brought to recover damages for the violation of the plaintiff’s right as owner of the soil, in laying down the planks and rails, and using the passage way as a place of deposit for goods.</p> <p>The plaintiff requested the court to instruct the jury, that the defendants must be restricted in their use of the passage way, to the terms of the reservation in the deed of partition. But the court, instead thereof, instructed the jury, that each of the abutters upon the passage way had an equal right to use it in the manner and for the purposes mentioned and reserved in said deed of partition; and that they were not restricted in such use of it to the state and condition in which the land was when the easement was created by said deed; but that they severally might lawfully make such alterations. and improve* ments therein, not thereby disturbing, hindering or interfering with other parties in the enjoyment of their respective rights, as would enable them most beneficially to avail themselves of their own; and that any one of them might legally do to the surface of the land any thing, adapted to promote the use of it for the purposes for which the easement was created, and which would facilitate his own use of it, as by covering it with plank, or laying down iron railways or other fixed and permanent structures upon it, provided that what was so done did not and would not interfere with the enjoyment of any right of any of the other abutters, or other persons having an interest therein, or with the use to which the owner in fee of the land could in some way lawfully appropriate it.</p> <p>And the court further instructed the jury, that the plaintiff was not entitled to a verdict in this action, even for nominal damages, unless they were satisfied upon the evidence that some act or acts, done by the defendants in or to the land of the passage way, either did disturb or interrupt him in his enjoyment of the use of it, or had in fact, or was calculated to, or could in some way interfere with or interrupt him in the use or enjoyment of the land, for any purpose to which he could lawfully appropriate or devote it, subject as it was to the existing easement of such right of way; and unless also he had already suffered, or was liable to or in danger of suffering some loss or damage; which loss or damage must be not merely speculative, conjectural or imaginary; but real, actual, and capable, if it had occurred or should occur, of being estimated, weighed or appreciated.</p> <p>The jury returned a verdict for the defendants, and the plaintiff alleged exceptions to the above instructions.</p>

<p>Action op contract on the covenant against incumbrances, contained in a deed from the defendants to the plaintiff, dated the 9th of November 1838, purporting to be made in consideration of the sum of $5,520, and to convey “ one undivided quarter part of the east half of township numbered three in. the eighth range of townships in the county of Penobscot and State of Maine,” with the usual covenants of warranty. The declaration set forth the execution and delivery of the deed; and then alleged that, at the date of the execution thereof, the land therein described was not free from incumbrances, but was under an attachment, made on the 18th of February 1836, in an action brought by Wiggins Hill against James T. Hobart, then owner of the premises, and from whom the defendants derived their title; that in said action Hill, on the 6th of November 1838, recovered judgment for the sum of $52,755.39; and on said judgment execution issued, and was duly levied upon said land on the 25th of December 1838; and seizin and possession of said land was delivered to Hill, the judgment creditor, and received by him. Writ dated October 18th 1851.</p> <p>At the trial before Bigelow, J. there was evidence tending to prove the facts stated in the declaration, and also the following facts : The amount of the execution was much greater than the value of the land levied upon, which was the whole of the east half of the township, of which the land conveyed to the plaintiff constituted an undivided quarter part; and by virtue of the levy the title to the east half of said township became absolutely vested in Hill in one year from the date of the levy; and he continued in possession of the land levied upon until the 4th of December 1848, when he made a deed to the defendants of the portion included in their deed to the plaintiff, expressed to be in consideration of $1,100, and with the usual covenants of warranty. In February 1841, the defendants gave notice to the plaintiff of this failure of title, and offered to transfer to him certain stock by way of indemnity for his loss. During the ■ time that Hill remained in possession of said half township, he received the sum of four hundred dollars net for stumpage. The plaintiff offered no evidence, beyond what has already been stated, to show that the premises were more or less valuable than at the date of the deed from the defendants to him; or that any thing had been realized or received therefrom, except said stumpage.</p> <p>The case was taken from the jury by consent of parties, and reserved for the consideration of the full court, with the agreement that if the court should be of opinion, upon the foregoing facts, that the plaintiff was entitled to recover nominal damages only, judgment should be rendered in his favor for one dollar; to which should be added the sum of one hundred dollars, if the court should be of opinion that the plaintiff was entitled to any part of the stumpage received by Hill; and that if the court should be of opinion that the plaintiff was entitled to recover any other or further damages, the case should be sent to a jury for trial and for the assessment of such damages, on principles to be determined by the court.</p>

<p>The record of the laying out of the streets in South Boston, made by the selectmen of Boston, pursuant to the directions of St. 1803, c. 111, is thus: “ The selectmen have determined and agreed to lay out the streets through the whole of said tract, now called South Boston, according to a plan drawn by M. W., surveyor;” “ the streets agreed upon and laid out are described as follows:” among the streets so described were three “to the northward of Broadway, and parallel thereto, all of them fifty feet wide,” “ the street on the northern shore in Boston Harbor to be called First Street,” and to be two hundred and fifty feet distant from the second. First Street was laid out according to this description from the easterly part of South Boston as far westwardly as the width of the land between Broadway and the northern shore would allow. Held, that a section of a street, drawn on the plan of M. W. along the northern shore, though only forty feet wide, and only one hundred and eighty feet distant from the second street, and though neither it. nor the corresponding part of the second street, was parallel to Broadway, conformed to the description in the record sufficiently to authorize the mayor and aldermen of Boston to complete it.</p> <p>The possession and fencing, for more than twenty years, by one holding no conveyance thereof, of land in South Boston, over which a street was laid out by the selectmen under St. 1808, c. Ill, but which has not been ordered to be completed, is not such an adverse possession as to affect the right of the mayor and aldermen of Boston to complete the street.</p> <p>A highway may be located, without special authority of the legislature, over flats, lying Detween high and low water mark, which have been lawfully filled up by the proprietor of the adjoining upland.</p>

<p>This court has power, under its general equity jurisdiction to enforce and regulate the execution of trusts, to allow a trustee to resign upon his own application, notwithstanding the Rev. Sts. c. 69, and St. 1843, c. 19, conferring similar powers in certain cases upon the judge of probate.</p> <p>An unmarried woman conveyed her real and personal estate to E. in trust to pay over the income thereof to her during her life, and on her decease to convey the property as she should appoint; and reserved the power, except while she should be a married woman, to revoke all the trusts created by this settlement, and dispose of the property at her pleasure; and the settlement provided that the said trustee might resign at pleasure, and that the settler might nominate a new trustee, and that “ said E.” should transfer all the trust property to such new trustee, who should “ thenceforth have and exercise all the rights and powers, and be subject to all the duties, hereby vested in or imposed upon said E.” Held, that the power of appointment, reserved to the settler, was not exhausted by one appointment of a trustee on E.’s resignation; but that on the resignation of such new trustee, she might make another appointment, and that, if such appointee was a fit person, the court would order the trust property to be conveyed to him.</p>

<p>An assignment made by partners of all their joint property, to a trustee, to be distributed among the creditors of the firm, who shall become parties thereto, in the same manner as it would have been appropriated in proceedings under the insolvent laws, and which provides for the discharge of the debts of such creditors, and authorizes the assignee to pay off all liens on the property assigned, is repugnant to the spirit and provisions of the insolvent laws, and therefore void, as against any creditor who does not become a party thereto. ’</p>

<p>The assignment law of 1836, c. 238, is repealed by the insolvent law of 1838, c. 163, only so far as the provisions of the two statutes are inconsistent with each other.</p> <p>An assignment by a debtor, of all his property, to a trustee, for the benefit of his creditors is inconsistent with the spirit and provisions of the Sts. of 1836, c. 238, and 1888, c. 163; and is voidable by any creditor who does not assent to it.</p> <p>An assignment of property made by a debtor to a trustee for the benefit of creditors, not assented to by any creditor, was void at common law, before Sts. 1836, c. 288, and 1838 c. 163, were passed.</p>

<p>Tile eleventh section of St. 1836, c. 238, which provides that “no assignment or convey anee, made by any insolvent debtor to assignees or trustees, for the use of any of his creditors, shall be valid and effectual against an attachment or execution in behalf of any creditor who is not a party to it, unless it is so made as to allow all the creditors of the debtor to become parties to it, if they see fit,” is not repealed by St. 1838, c. 163.</p> <p>An assignment of property in this commonwealth, made in New York, by an insolvent citizen of that state, to a trustee for the benefit of creditors, giving a preference to cer tain creditors, also citizens of New York, is ineffectual as against an attachment made in this commonwealth by a citizen thereof.</p>

<p>An assignment of property by a debtor to a trustee, for the benefit of creditors, is valid, as between the parties executing the assignment, notwithstanding Sts. 1836, c. 238, and 1838, c. 163.</p> <p>By an indenture of assignment of three parts, between a debtor, trustees, and his creditors, the debtor conveyed real estate, described in deeds made at the same time, and also his stock in trade and other personal property, to the trustee, for the benefit of the creditors ; and it was agreed that the trustee should hold the property two years, but that the debtor should remain in possession thereof, but not sell any part of it without the consent of the trustees; and the debtor agreed to pay a certain proportion of his debts within two years; and it was agreed that, if he should not so pay such proportion, the trustees should dispose of the property, and apply the proceeds to the payment of such proportion of the debts; and in either case any surplus should be returned to the debtor; and the creditors agreed to accept said proportion within two years from the debtor, or if such proportion should not be paid, that they would “ receive these conveyances, and the securities hereby given, in full satisfaction and discharge of their said claims; ” and that upon the receipt of such proportion, or at the expiration of two years, if the debtor should fail to pay it, they would execute and deliver releases to the debtor, provided the trustee should perform every thing necessary to effect a sale of said property; and the creditors accepted said property and covenants in full satisfaction and discharge of their debts. Held, that this indenture effected an accord and satisfaction of the debts of the creditors who became parties thereto, and was a bar to actions on such debts; although the real estate conveyed was subject to incumbrances at the time of the conveyances, am the covenants contained in the deeds thereof were thus broken.</p>

<p>H. assigned to D., in trust for creditors, certain goods in the store of H. previously mortgaged, and then in the custody of an officer under an attachment, and also goods and proceeds of goods in the hands of K., and some debts due H.: D. accepted the trust went to the store, gave notice to the officer of the assignment, said that he took posses sion of the goods, and did take the account books: After the service of a trustee process on D. as trustee of H., the officer sold the goods in the store, and paid over a surplus to D., and D. received from K. some money, and some goods, which he sold. Held, that the interest of H. in the goods in the store, and in the goods in the possession of K., passed to D., and that he was chargeable therefor, or for the proceeds thereof, in this process; but that he was not chargeable for the money received from K.</p>

Action of tort against a deputy sheriff, for taking and converting goods claimed by the plaintiff under a mortgage from Rufus K. Cummings. The defendant justified under three writs against Cummings.

<p>A pilot of the harbor of Boston, who offers his services to the master of an inward bound vessel subject to the pilotage laws, outside of the line prescribed by Rev. Sts. c. 32, § 24, is entitled to pilotage fees, although the vessel in tacking has already been inside the line.</p> <p>The master of a vessel subject to the pilotage laws, and bound to a wharf above Charles-town Bridge, is liable to pay fees of pilotage to a pilot of the harbor of Boston, who seasonably offers to pilot the vessel as far as the draw of the bridge, but refuses to take her beyond, on proof of a uniform usage of the pilots, ever since the erection of the bridges, to pilot a vessel, bound to places above a bridge, only as far as the bridge.</p>

Action of contract, brought on the 16th of February 1852, on a promissory note, dated October 21st 1844, payable to the plaintiff or order in sixty days after date, purporting to be signed by the defendants and attested by “ Kimball Hill, witness.” The parties submitted the case to the court upon the following statement of facts : “ The execution- of the note is admitted.

<p>Proprietors of a railroad, who transport goods over their road for hire, and deposit them in their warehouse without additional charge, until the owner or consignee has a reasonable time to take them away, are not liable, as common carriers, for the loss of the goods by fire, without negligence or default on their part, after the goods are unladen from the cars and placed in the warehouse; but are liable as warehousemen, only for want of ordinary care; although the owner or consignee has no opportunity to take the goods away before the fire.</p> <p>it seems, that the proprietors of a railroad are not obliged to give notice to the consignee of the arrival of goods, transported by them, in order to exonerate themselves from their liability as common carriers.</p>

This action was bronght to recover the value of twelve bales of flannel, delivered by the plaintiffs to the defendants at Andover, to be carried over their railroad to Boston. Writ dated October 27th 1851.

<p>Action of contract. Writ dated October 20th 1851. Trial in the court of common pleas, before Bishop, J. to whose instructions the defendants alleged exceptions. The opinion exhibits the whole case.</p>

<p>A devise to A. and the heirs of his body, and to their heirs and assigns forever, gives A. an estate tail.</p> <p>An estate tail in this commonwealth, as at common law, descends to the oldest son, and to the oldest son ol' the oldest son.</p>

<p>A. made with B. the following agreement in writing: “ Sold B. on joint account with A. two thousand boxes of candles, at twenty six cents, six months from delivery; B. to be allowed two and a half per cent, on sales; on all sales not approved by A. B. is to guaranty the same, receiving a commission of two and a half per cent.; for one half of the sales made by B. he is to pass over the paper to A.; there are to be no charges for storage; property in store to be covered by insurance by B. for joint account and expense:” A. delivered the candles to B. under this agreement, and received from time to time, as the candles were delivered, eight notes of B. for half the value of the candles, payable in six months, two of which were paid by B. at maturity, and the others indorsed and negotiated by A. and afterwards paid by bin), B. having become insolvent, jWeld, that these facts showed a sale of an undivided half of the candles by A. to B., and not a partnership between A. and B. with regard to the candles; and that A. therefore had no lien on B.’s half of the candles, as against B.'s assignees in insolvency.</p>

<p>A jury, who return "a verdict that does not pass upon the whole matter submitted to them, may be sent out again by the court, even if they separated, after agreeing upon and sealing up their first verdict, before they came into court.</p>

<p>Petition to enforce a lien, under St. 1851, c. 343, for painting two houses in Suffolk Street in Boston, in July and August 1851. The case was submitted to the court upon the following facts: The contract, under which the work was done by the petitioners, was made by them on the 10th of April 1851, with Henry Hilt, who had previously contracted with the respondent Hunnewell to build the houses. Hunnewell had not then a deed of the land, but acted under an agreement, made by the city of Boston, to convey the land to him, on the erection thereon of buildings of a certain description. The city accordingly conveyed the land to Hunnewell on the 23d of September 1851; and he conveyed one of the houses in question to the other respondent on the 6th of October 1851.</p>

<p>The assignees of an insolvent debtor brought a bill in equity, to set aside conveyances of property made by the debtor to the defendants, as made and taken either without con sideration and in fraud of creditors, or by way of unlawful preference, contrary to the insolvent laws, charging the defendants, in the common form, with combining and confederating with divers other persons to the plaintiffs unknown, and praying for relief against the defendants jointly and severally; and the court, after a hearing upon the merits, decreed that the demands, set up by the defendants in their several answers, were justly due them from the insolvent, and that the conveyances of property in pay ment thereof were not made in violation of the insolvent laws, and dismissed the bill. Held, that this decree was a bar to an action of trover by the assignees ibr the same property against one of the defendants in the suit in equity.</p>

<p>A petition to the district court of the United States for the District of Massachusetts, for the benefit of the Bankrupt Act of 1841, in which there was no other averment of the petitioner’s residence, than his description of himself as “ of Boston, in the county of Suffolk, and State of Massachusetts; ” and which did not expressly allege that he owed debts not created while acting in a fiduciary capacity; but which referred to an annexed schedule of his debts, containing debts not fiduciary in their character; and was in the form prescribed by the district court, under the power conferred upon it by the sixth section of the Bankrupt Act; was suflloient to give that court jurisdiction of the case.</p> <p>For the failure of an administrator to account within one year, no action lies on his probate bond, after the allowance by the judge of probate, at the request of all parties in interest, of an account subsequently rendered by him.</p> <p>A probate bond is not provable in bankruptcy against one of the sureties before a breach of of condition of the bond; nor, it seemly before judgment in an action brought for such breach.</p>

<p>Action of contract, brought by the administratrix of Michael Mellen, on the 20th of December 1851. The declaration avers that “ the defendant is indebted to the plaintiff for the following cause of action: On the first day of June 1844, one John M.</p> <p>Rollins, for a good and sufficient consideration, made and delivered to Charles Ellis and John M. Mayo (then partners unde? the firm of Ellis & Mayo) his note for the sum of five hundred dollars, payable to said Ellis & Mayo or order in three years from date, with interest thereon at the rate of six per cent, per annum, payable semi-annually; ánd -also made to said payees, to hold to themselves, their heirs and assigns, as security for the payment of said note, a mortgage deed of the same date, of a certain lot of land situated at the corner of Curve Street ana Harrison Avenue in Boston, and more particularly described in said deeds. Said John M. Rollins afterwards, to wit, on the eighth day of April 1845, by his deed of that date, conveyed the equity of redemption of said estate to Shilometh S. Whipple, the defendant; and said deed contained the following clause: ‘ The said granted premises are subject to a mortgage for $500 with interest; said interest payable semi-annually; which mortgage, with the note for which it was given, the said Whipple is to assume and cancel.’ Said Whipple accepted said deed, entered upon the said estate, and paid the interest on said note to the said mortgagees and their assigns to the first day of June .1848; and said Michael Mellen, the plaintiff’s intestate, in his lifetime became, by regular assignment, transfer, indorsement and delivery, for valuable consideration, possessed of said mortgage and the note for five hundred dollars secured thereby; and said Whipple became by law indebted to said intestate in the amount of said note; and said Michael Mellen has since deceased, and the plaintiff was duly appointed administratrix of his estate ; and the said Whipple is now justly indebted to the plaintiff for the amount of said note of $500 and interest thereon from the said first day of June 1848 ; and promised the plaintiff to pay the same; yet, though often requested, has not paid the same.” To this declaration the defendant demurs, “ and alleges and assigns for cause of this demurrer, that the declaration does not sufficiently set forth any legal cause of action.”</p>

<p>Action op contract to recover the rent of certain rooms in a store on Long Wharf in Boston, from August 15th 1850 to February 15th 1852. Writ dated March 10th 1852. The opinion exhibits the whole case.'</p>

<p>The assignee of a lease, who enters upon and occupies the premises, is estopped, in an action for rent brought against him by the original lessor, to deny the validity of the assignment from the original lessee to him; and is liable to the lessor for the rent during the whole term, although he leaves the premises before the expiration thereof.</p> <p>On the trial of an action brought by a lessor against his lessee for a quarter’s rent, there was evidence that the lessee, before the expiration of the quarter, left the premises, and authorized the plaintiff to enter, and fit them for a new tenant; the judge instructed t'.ie jury that, in case they found a contract to apportion the rent, they might apportion it accordingly; and the jury returned a verdict for the plaintiff for a portion of the quarter’s rent. Beld, that the defendant had no ground of exception to this instruction.</p>

Action of contract, brought by a mutual fire insurance company to recover the amount of the premiums, deposit notes and assessments, upon two policies of insurance. The case was submitted to the court, without argument, upon the following statement of facts: The defendant made written applications for insurance.

<p>The defendant was indicted for the murder of William Adams on the 19th of July 1853. Trial before the chief justice and Justices Metcalf and Bigelow, on the 24th of May 1854.</p> <p>The evidence was full and uncontradicted that the defendant, at the time alleged in the indictment, was a prisoner in the state prison at Charlestown, and then and there killed Adams, one of the other prisoners, by stabbing him in the neck with a knife. The sole ground on which the defendant’s counsel placed his defence was, that he committed the homicide under an insane delusion that Adams and others of the prisoners were engaged in a conspiracy against him.</p>

<p>By Rev. Sts. c. 39, § 73, a railroad corporation, who file the location of their road with the county commissioners within one year, as required by § 75, may, after the expiration of that year, within the time prescribed by law for completing their road, vary the location of any portion of their road to any extent, provided they do not locate any part thereof without the limite prescribed by their act of incorporation; although their act of incor poration, which provides that they shall have the powers and duties set forth in Rev. Sts. c. 39, also provides that it shall J>e void, if their location be not filed within one year. And their power so to vary their location is not controlled or limited by the original location, as filed with the county commissioners.</p> <p>A plan exhibited to the legislature by those applying for an act of incorporation as a railroad company, but not referred to in the act, is not admissible in evidence to control the construction of the provisions of the act of incorporation, as to the limits within whicl the road is to be located.</p> <p>By St. 1850, c. 268, the Midland Railroad Company were authorized to locate and construct a railroad, “ commencing at some convenient point on the Norfolk County Railroad; thence through the southerly part of Dedham; thence through or near the westerly part of the towns of Canton and Milton." Seld, that a location, commencing at a point on the Norfolk County Railroad in South Dedham, and not departing from that road at once, but running northerly upon it for more than two miles, and then approaching within two hundred rods of the northwesterly corner of Canton, and running near th,e westerly boundary of Milton, was authorized by the statute.</p> <p>A corporation, who have been authorized to construct a railroad, and are afterwards authorized by statute to make it in sections of five miles each, provided that they shall not commence the construction of any portion of their road within a certain distance of one of its terminations, until all the stock is subscribed for by responsible persons, and a certain portion thereof actually paid in, are not obliged to have their stock subscribed for, and the specified amount paid in, as a condition precedent to constructing their whole road not in sections.</p> <p>Whether a private right or interest, injured or put in hazard, by the exercise, by any private corporation, of a franchise or privilege not conferred by law, must be a right or interest, for an injury to which some remedy previously existed in law or equity, in order to authorize an application to this court under St. 1862, c. 312, § 42, for leave to file an information in the nature of a quo warranto — qumre.</p>

<p>Assumpsit on a policy of insurance, by which the defendants caused the plaintiff to be insured $18,000 on teas consigned to him on board the ship Paul Jones at and from Canton to port of discharge in the United States northeast of Cape Florida. The teas were valued in the policy at twenty per cent, advance on the invoice price.</p> <p>The parties submitted the case upon the following statement of facts: The ship Paul Jones, on her voyage from Canton to New York, struck on a reef, and it became necessary, in order to get her off, to throw overboard a large quantity of goods, including about sixty two per cent, of the teas insured by this policy, but amounting in all to less than fifty per cent, of the whole cargo. Being relieved by the jettison, she floated from the reef, and reached New York, her port of destination. The plaintiff, after the arrival of the ship in New York, offered an abandonment of said teas, which was declined by the defendants on the ground that the claim was purely of a general average nature, and must be adjusted on the value,of the property in New York. On the landing of the cargo in New York, an appraisal was made of the market value of the property jettisoned, and the claim for the jettison made up, according to the custom existing in the port of New York, and the defendants paid the plaintiff in full according to said adjustment, which, they contend, is all that they are bound to pay. The plaintiff, however, denies that said adjustment gives him all that he is entitled to; inasmuch as the teas were valued in the policy at a price higher than the market value in New York. The plaintiff also claims the right to recover as for a total loss, with salvage, under said abandonment; but this right is denied by the defendants. Judgment is to be entered for the defendant, or for the plaintiff and the case sent to an assessor, as the court may adjudge.</p> <p>The arguments were had at November term 1852.</p>

<p>When the legal interest in a covenant and in the cause of action thereon is joint, the ceve nant is joint, although the covenant, in its terms, be several, or joint and several.</p> <p>Thus, all the other partners must join in an action against their copartner on the covenants, not in terms either joint or several, contained in their indenture of copartnership, that the partners should devote their whole time and attention to the business, and that all the purchases, sales, transactions and accounts of the partnership should be kept in regular books.</p> <p>One partner cannot maintain an action at law on the covenants in the articles of copartnership, to recover damages of his copartner for neglect of the partnership business, while there is a considerable amount due from him to his copartner, and the debts due by and to the firm, the burden of which is to be borne, and the benefit enjoyed, by the partners, in certain proportions, are not all settled.</p>

<p>Petition, filed on the 22d of August 1854, by the stockholders of the Cochituate Bank, representing that the respondents, appointed receivers of said bank under St. 1851, c. 127, § 5, (upon the representation of the bank commissioners that the condition of the bank was such as to render its further progress hazardous to the public and to those having funds in its custody,) had made their report, and had admitted that there were various classes of creditors of the bank, billholders, depositors, and others; and had shown that the assets in their hands, out of which a dividend might be made, were insufficient to pay all said creditors in full; and praying the court to order and decree that the legally proved claims of the billholders should have priority over the claims, of all other classes of creditors, and be paid in full, before making or paying any dividends to any other creditors whatsoever.</p> <p>The chief justice disallowed the petition, but, at the request of the stockholders, reserved the question thereby presented, for the consideration of the full court, the parties agreeing that it might be argued in writing, and be considered in any county, or at chambers, and the result certified.</p>

<p>Sales of three glasses of spirituous or intoxicating liquor in the course of the same evening, each of the first two of which is drunk and paid for before the next is delivered, if found by the jury to be three distinct and independent transactions, are sufficient evidence to convict the vendor of being a common seller, under St. 1852, c. 322, § 12.</p>

<p>A promise to a debtor to pay his debt to a third person is not a promise to answer for tne debt of another, within the statute of frauds, Rev. Sts c. 74, § 1, cl. 2.</p> <p>A promise, the leading object of which is a benefit to the promisor, which he did not before enjoy, is not within the statute of frauds, although its effect be to discharge another from an obligation.</p> <p>By a verbal contract, A. agreed to transfer to S. his stock (being the greater part of the whole stock) in a manufacturing corporation, and a note of the corporation held by him; and S. agreed to convey to A. a certain farm, and to take A.’s interest in the corporation, and to indemnify him against his indorsements on the outstanding notes of the corporation; and A. accordingly transferred his stock and note to S., and received from S. a conveyance of the farm. Eeld, that the promise of S. to indemnify A. against his liability on the notes of the corporation was not without consideration, and was not a promise to answer for the debt or default of another, within the statute of frauds.</p>

Bill in equity, filed on the 5th of December 1849. Hearing before Dewey, J. who made a report of the case for the consideration of the full court, the substance of which is stated in their opinion, drawn up by

<p>A conveyance of land was made in 1771 to J. S. and his heirs, in trust for the support and maintenance of ministers who should be ordained and settled over the Anabaptist Society in 0., and upon condition that if the land or the rents and profits thereof should be misapplied, the land should revert to the grantor. J. S. having did, and hi» heirs, if living, being scattered and their places of residence unknown, the court, on the petition of four members of an Anabaptist Society, which had existed de facto in C. for more than fifty years, appointed a trustee under the deed, without examini ng whether the land had been forfeited by misappropriation.</p>

<p>The parties to an oral agreement for the sale of land went together to an attorney, and liad a deed thereof drawn, and the grantor signed it, and the grantee paid part of the consideration, and, after both parties had looked at the deed and expressed themselves satisfied with the form of it, the grantor took it for the purpose of procuring from his wife a release of her dower. B&ld, that there had been no delivery of the deed; that it could not therefore take effect, either as a deed, or as a memorandum in writing of the agreement, within the statute of frauds; and that specific performance of the agreement vonld not be enforced in equity.</p>

Bill in equity. Plea, that the plaintiffs, at a former term, exhibited a bill against the defendants for the same matter and to the same effect, and for the like relief and purpose, as set forth and demanded in the present bill; to which first bill the defendants answered, and the plaintiffs replied; and that bill was by a decree of this court dismissed with costs; all which proceedings took place before the filing of this bill.

<p>The owner of land, who agrees in writing to convey it on certain terms, and at the sama time, by another written agreement, promises to forfeit a sum of money, if he fail so to convey, may be compelled in equity to convey the land, on performance of the terms of the agreement by the other party.</p> <p>Specific performance of a contract to convey land in this commonwealth may be decreed against an inhabitant of another state, who has been personally served with notice here.</p>

<p>Petition under St. 1852, c. 312, §§ 52, 53, by the assignees of Liberty Bartlett, an insolvent debtor, representing that they were credibly informed and believed that the respondents made some claim adverse to the right of the petitioners in certain land in North Adams held by them under the assignment of the goods and estate of Bartlett made to them by the commissioner of insolvency, and that because of said claim the petitioners were unable to dispose of said land, and that said claim was altogether unfounded, and praying that the respondents might be summoned to show cause why they should not bring an action to try their title.</p> <p>The answer set forth a mortgage of the premises, made by Bartlett, before the commencement of said proceedings in insolvency, to a partnership doing business under the name of C. R. Taft & Company, consisting of three persons, Bartlett and the respondents, to secure a debt of $8,000 from Bartlett to said firm, and duly acknowledged and recorded; which debt the answer alleged to be still due and unpaid.</p>

<p>An award of referees, under a rule of court, that each party pay his own coste, and that the defendant pay to the plaintiff the sum of ten dollars, as the defendant’s share of the referees’ fees, is a sufficient determination of the matter submitted.</p>

<p>It is not error to render judgment for an amount of damages exceeding the ad damnum i| the writ, after the action, together with other claims of the plaintiff against the defend ant, has been referred to arbitrators under a rule of court.</p> <p>Error does not lie to correct a mistake in the taxation of costs by the clerk.</p> <p>Where several actions for the obstruction, at successive periods of time, of the wheels of one mill by the backwater of another, are referred by rule of court to arbitration, the travel and attendance of witnesses, who are summoned, attend, and are paid, in all the actions, may be taxed in each.</p> <p>Where two actions to recover damages for an injury to a married woman by the cars of a railroad corporation, one brought by her husband alone, and the other by her husband and herself jointly, are tried together, by order of the court, the travel and attendance of witnesses who attend in both actions are to be taxed in each action. 422, note.]</p>

Scire facias against the defendants, as trustees of Eli Chappel.

<p>The Adams Mutual Fire Insurance Company, being sum"moned as trustees of the principal defendant, made answer, by William P. Bray ton, their secretary, to the following effect:</p> <p>On the 4th of October 1853, they issued a policy to the defend ant, whereby they insured him against loss or damage by fire, under the conditions and limitations expressed in the rules of the company, annexed to the policy, (of which those relied on by the trustees are copied in the margin,*) and subject to the lien given by statute on the personal property insured, which the company expressed their intention to rely upon to secure the payment of assessments, from the 1st of October 1853 to the 1st of October 1854, “ the sum of fifteen hundred dollars, divided as follows: $1000 on dry goods and other shelf goods in the front room of the store occupied by the assured, $500 on groceries and provisions in the back room of the same store and in the cellar, being not more than two thirds of the value of the property described in the application of said Tower, dated the 4th of October 1853, and lodged with the secretary of this company, and which said application shall form part of the contract to be taken in connection with this policy.” The defendant, in his said application, among other things, represents that the building, in which these goods are, is occupied by himself as a store, and “ covenants and agrees with said company that the foregoing is a just, full and true exposition of all the facts and circumstances in regard to the condition, situation and value of the property to be insured, so far as the same are known to the applicant, and are material to the risk; and the applicant further agrees that if any alterations in or about the premises described are made which materially affect the risk, he will notify said company of such alterations.”</p> <p>On the night of the 23d of December 1853, a fire occurred, from a cause unknown to the company, in the store where said goods were, and a portion of them was consumed thereby, but of what value is not known; but the company deny that they are liable to pay any portion of said loss for the following reasons:</p> <p>1st. On the 26th of October 1853, the assured, without the knowledge or consent of the company, made a mortgage of these goods to Peter G. Tower, conditioned to indemnify him against the liability which he had assumed as receiptor for the goods to John Holden, a deputy sheriff, who had attached the goods on writs against the assured. But the goods remained in the possession of the assured.</p> <p>“ 2d. On the 4th of December 1853, after the making of said mortgage and before said fire, and while the goods were still in possession of the insured, said John Holden levied upon them, by virtue of executions issued on judgments rendered in the suits on which they were originally attached, and for which said receipt was given, and had sold a portion of the same at a sheriff’s auction sale in said store, where they had been from the time the insurance was first effected, and was in process of selling the remainder when said fire occurred. A portion of them had been thus sold, and a portion at the time of the fire were remaining in said store unsold, but what portion of the whole remained there at the time of the fire unsold, said company does not now know. The auction sales of said deputy sheriff were held in said store during the daytime and the evening of each day, for several days previous to the fire. During said sales, every part of the store was open to those who attended them, and at times great numbers were in attendance. Of all which change the company had no notice and gave no consent.”</p>

<p>Action of contbact. “ And the plaintiff says, he paid the defendant a greater rate of interest than is allowed by law on the sum of two hundred dollars, namely fourteen dollars upon two hundred dollars for each of the years ending at and on the first day of April 1848,1849, 1850, and 1851; and the defendant owes the plaintiff threefold the amount of the unlawful interest so paid by the plaintiff to the defendant, amounting to the sum of twenty four dollars.” \</p> <p>“ The defendant, answering, denies that the plaintiff paid him, and that the defendant received a greater rate of interest than is allowed by law; inasmuch as said payment was made upon a loan in the State of New York, a contract to be performed in said state, where seven per centum is the lawful rate of interest. And the defendant further answering says that said loan was made for the benefit and at the request of the plaintiff in the State of New York, at the rate of seven per cent.”</p> <p>At the trial in the court of common pleas, before Wells, C. J. it appeared that the plaintiff resided in Egremont in this commonwealth, and the defendant in Hillsdale, in the State of New York. There was no evidence where the first payment of interest was made, but there was evidence that the second payment was made in Massachusetts, and the last two in Hillsdale, N. Y. And it was admitted that the payments were for the annual interest on the following note: “ $200. For value received, I promise to pay Nehemiah Shutts or order two hundred dollars, to be paid in four annual payments of fifty dollars each, with the annual interest. Alford, April 1,1847.</p> <p>“Attest: E. K. Williams. John W. Hollenbeck.”</p> <p>E. K. Williams, being called as a witness for the plaintiff testified that on the 1st of April 1847 the plaintiff and the defendant came to his house in Alford in this commonwealth, and he, at their request, drew a deed from the defendant to the plaintiff of land in Alford and Egremont, and also said note and a mortgage of said land to secure the payment thereof, and that the note was given as the consideration for the deed; that the defendant at that time inquired of Williams if he could not write the note so that he could have seven per cent., saying he had borrowed money in the State of New York for the accommodation .or benefit of the plaintiff, for which he had to pay seven per cent, interest; and the witness further testified that the plaintiff then agreed to pay seven per cent, interest on the note.</p> <p>The judge allowed the defendant, the plaintiff objecting, to introduce evidence tending to show that the deed, note and mortgage, and the promise to pay seven per cent, interest, so made in this commonwealth, were in pursuance of a previous oral agreement made by the parties in the State of New York, and for the purpose of carrying otit that agreement, and instructed the jury that, if they found they were so made, the taking of the seven per cent, interest was not unlawful. The jury returned a verdict for the defendant, and the plaintiff" alleged exceptions.</p>

Motion by the defendant for the acceptance of an award of arbitrators, under a submission entered into on the 15th of July 1853, before a justice of the peace, pursuant to Rev. Sts. c. 114. The court of common pleas accepted the award, and the plaintiff appealed to this court.

<p>Action of contract, commenced on the 13th of December 1852, to recover back the sum of $14.64 paid by the plaintiff, under protest, to the defendants, for a tax assessed by them in 1851 upon the plaintiff’s poll and personal estate.</p> <p>At th„e trial in the court of common pleas, before Bishop, J. the main question submitted to the jury was, whether the plaintiff’s residence was in Cheshire on the 1st of May 1851. There was evidence that on the 27th of April 1851 the plaintiff went with his trunks and horse from Cheshire, where his father lived, to the house of Harvey Chase in Lanesborough, and that Chase then made a bargain with the plaintiff to board him and keep his horse. The plaintiff offered to prove by Chase that in February 1851 the plaintiff said to him that he would like to come and live with him one year, and make his home with him, and that he did not intend to stay with his father any longer, after his time was out in April; and that Chase agreed to receive him as a boarder. The defendants objected to the competency of this evidence, on the ground that the plaintiff could not be allowed to prove his own declarations, made so long before the time of his going.,to Chase’s house to board. But the judge overruled the objection, and admitted the evidence; and Chase testified to the facts above stated; and also testified, the defendants still objecting, that at that time he told the plaintiff that if he thought he could live with him, he might come and live with him if he liked; and that in April of the same year he again saw the plaintiff in Cheshire, and the plaintiff said to him that he should depend upon coming down there to live with him, and to make it his home, and that Chase replied that he could come.</p> <p>The plaintiff also, against the objection of the defendants, proved that he was chosen and served as a surveyor of highways in Lanesborough in 1853, and gave in evidence the tax bills made out and delivered to him by the assessors of that town.</p> <p>The plaintiff called Luther H. Brown, one of the assessors of Cheshire in 1851, and proposed to prove by him that in April 1851 the plaintiff gave him notice that he was going to remove from Cheshire before the first of May; but the evidence was objected to by the defendants, and rejected by the judge. Brown, upon cross examination by the defendants, testified that, at a particular interview with the plaintiff, he did not acknowledge to the plaintiff that the plaintiff had given him such notice. The plaintiff then, for the purpose of showing that Brown was mistaken, called two witnesses, who testified, the defendants objecting, that they were present at the interview testified to by Brown, and that Brown did then acknowledge that the plaintiff Lad given him notice that he was going to move or change his residence from Cheshire to Lanesborough.</p> <p>The jury, under the instructions of the judge, returned a special verdict that the plaintiff, on the 1st of May 1851, was an inhabitant of Lanesborough, and also a general verdict for the plaintiff. The defendants alleged exceptions to the rulings above stated, as well as to others not material to be reported.</p>

<p>A defendant, who has answered to the merits, cannot afterwards object that since the last continuance it has come to his knowledge that no declaration was inserted in the writ, or filed in the clerk’s office on or before the day to which the writ was returnable, as required by St. 1852, c. 312, §§ 8, 9$ but must be deemed to have waived his right to treat the action as thereby discontinued.</p>

<p>Action of contract, commenced on the 6th of June 1953. The declaration was thus: “ The plaintiff says that the defend* an! made a promissory note, a copy of which, with the indorsements thereon, is hereto annexed, payable to one Darins Chapman or order; and the said Chapman indorsed the same to the plaintiff. And the defendant owes the plaintiff the balance of said note and interest thereon.” The copy annexed was as follows : “ $100. Lee, October 12, 1846. Three months after date 1 promise to pay Darius Chapman or order one hundred dollars, for value received, at the Lee Bank. James Wakefield.” (Indorsed) “ Darius Chapman.” “ Received, June 5, 1848, on the within note, twenty five dollars, $25.” “Received, Lee, May 18,1848, on the within note, ten dollars, $10.”</p> <p>The only ground of defence set forth in the answer was, “ that the action, at the time it was commenced, was barred by the statute of limitations.”</p> <p>Trial in the court of common pleas, before Bishop, J. who signed the following bill of exceptions: “ The plaintiff introduced the note described in his declaration, and rested his case. No evidence was introduced on the part of the defendant. The plaintiff contended that the declaration contained the allegation, substantially, that the defendant had made payments upon said note, corresponding in time and amount to the indorsements upon the note; that the action being brought to recover the balance due upon the note, this allegation was a material part of the declaration, or a substantive fact; that, as none of the facts stated in the declaration were denied in the defendant’s answer, he was by the express terms of the statute, (St. 1852, c. 312, §§ 14, 26,) to be deemed to have admitted them; that he had thus admitted the facts of the payments indorsed upon said note; and as these payments appeared to have been made within six yeai-s next before the date of the writ, the statute of limitations was not a bar to the action. And the plaintiff requested the court to instruct the jury that upon these facts they should return a verdict for the plaintiff.</p> <p>“ But the court declined so to instruct the jury, but did instruct them, that, as the note in suit appeared to have been made more than six years before the date of the writ, and the plaintiff had proved no payment upon said note within six years, nor any other fact sufficient in law to take the case out of the operation of the statute, that statute was a bar to the recovery by the plaintiff; and directed them to return a verdict for the defendant, which was accordingly done. To this ruling and direction of the court the plaintiff excepts.”</p>

<p>Action of contract to recover the sum of $765.99, the proceeds of the sale of forty two ounces of gold dust sent from California to the defendants by the plaintiff.</p> <p>At the trial in the court of common pleas, before Bishop, J. the defendants admitted the minority of the plaintiff, and that they received the gold dust in pursuance of a contract between them and the plaintiff, by which the defendants furnished the plaintiff with an outfit to enable him to go to California, and the plaintiff, in consideration thereof, gave the defendants the following promise in writing: “ South Lee, March, 1851. I hereby agree to give Judd Brothers a correct and honest one third of all the avails of my labor while in California or absent from this place. John Wells Breed.”</p> <p>The defendants introduced evidence tending to show that said contract was deliberately entered into ; that it was beneficial and reasonable, and sanctioned by the plaintiff’s father; and that the sum received by the defendants was not more than one third of the avails of the plaintiff’s labor in California during an absence of nine months. The defendants, the plaintiff objecting, also gave evidence of contracts made by them and by others with other young men going to California, for the purpose of proving that their contract with the plaintiff was fair and reasonable. The objection to this evidence was not pressed at the argument.</p> <p>The plaintiff contended that although the defendants did receive the money by virtue of the alleged contract, yet he might avoid the contract, and recover -back in this action the money received, less the amount of the outfits and any m jney laid out and expended for the plaintiff in pursuance of such contract.</p> <p>But the judge ruled that if the contract was beneficial to the plaintiff, and obtained by no fraud or unfairness, and was for a good and reasonable consideration, and sanctioned by his father, and the money was received in virtue of the contract and in execution thereof, the plaintiff could not rescind the contract so executed, and recover the balance over the amount of the outfit and any other money expended by the defendants in pursuance of the contract. The verdict was for the defendants, and the plaintiff alleged exceptions to these instructions.</p> <p>The arguments were had at September term 1853.</p>

Indictment for breaking and entering in the night the shop of Anson Chapman in Westhampton, and there stealing bank bills and silver coin.

<p>Indictment on St. 1852, c. 322, § 12, found at June term 1854 of the court of common pleas for the county of Hampshire, and alleging that the defendant at Northampton, “ on the first day of January now last past, did presume to be and was a common seller of wine, brandy, rum, the same being intoxicating liquors, and other intoxicating liquors.”</p> <p>At the trial in that court, the defendant objected to the admission of evidence tending to show acts of sale on any other</p> <p>day except the day named in the indictment. But Mellen, J, admitted evidence of sales before and after that day, and instructed the jury that if they were satisfied by the evidence that the defendant had committed three acts of sale since the statute of 1852 took effect, it was their duty to convict him.- The defendant, being convicted, alleged exceptions.</p>

<p>This indictment, returned by the grand jury at December term 1853 of the court of common pleas for the county of Hampshire, alleged that the defendant at Northampton, on the first day of August 1852, and on divers other days and times between that day and the first day of December 1853, without any authority or license therefor, &c. “ did presume to be and was a common seller of wine, brandy, rum, gin, whiskey, and other spirituous and intoxicating liquors, in and about a building then and there used by him as a shop, sales room, and place of business, and did then and there, and on said other days and times there, without any license, appointment or authority to sell such liquors for any purpose, commonly sell spirituous and intoxicating liquors to divers persons, more than three in number, to wit, to John R. Gilman one glass of intoxicating liquor, to wit, one glass of porter; to John R. Whittlesey one glass of intoxicating liquor, to wit, one glass of cider; and to Sylvester Bridgman one glass of cider, the same being intoxicating liquor; and to divers other persons whose names and persons to said jurors are as yet unknown; said sales constituting and being three several sales of spirituous and intoxicáting liquors.”</p> <p>At the trial in said court, before Bishop, J. no evidence was offered of any sale by the defendant of spirituous liquor. The defendant objected, that evidence of sales of fermented liquor would not support the indictment, charging the defendant with being a common seller of spirituous and intoxicating liquors. But the judge overruled the objection.</p> <p>Before the trial, the defendant, upon his motion, had been furnished, by order of the court, with a list specifying the names of the persons to whom sales would be proved. At the trial, the district attorney offered evidence of other sales, to persons not named in this specification. To the admission of this evidence the defendant objected; but the judge admitted it, for the purpose of showing the place of delivery, and that the defendant was engaged in the business or occupation of a common seller of intoxicating liquors.</p> <p>The defendant, being convicted, alleged exceptions to these rulings.</p>

<p>A count charging the defendant with being a common seller of intoxicating liquors may be included in the same indictment with counts charging distinct sales to particular nersons.</p>

<p>Indictment on St. 1852, c. 322, § 12, against the defendant as a common seller, with additional counts on § 7 for single and specific sales.</p> <p>On empanelling the jury in the court of common pleas, held by Bishop, J. “ it appeared that two of the jurymen were inhabitants of Greenfield, the town where the defendant lived, and where the offence was committed, and that said jurymen were tax-payers, and interested in the fine and forfeitures and bond which might follow a conviction. The defendant objected to said jurymen as being disqualified. The objection was overruled by the presiding judge.” The defendant, being found guilty by the jury, alleged exceptions.</p>

<p>The St. of 1849, c. 59, entitled “An act to prevent disturbances of schools and public meetings,” and providing for the punishment of “ every person who shall wilfully interrupt or disturb any school or other assembly of people, met for a lawful purpose,” includes meetings assembled for the discussion of the subject of temperance; and also, it seeww, political gatherings, meetings for amusement, and all public meetings held for lawful purposes.</p>

<p>A complaint, which alleges that the defendant “on the 23d and 29fch days of July 1862,” “ did sell a quantity of spirituous liquor, to wit, one gill of brandy,” charges only one sale, and is insufficient in law, because it does not state the time with sufficient certainty.</p>

Indictment on St. 1852, c. 322, § 7, found at May term 1853 of the court of common pleas for the county of Hampden, and containing six counts; the first of which charged the defendant with an unlawful sale of intoxicating liquor to Thomas Bellows, at Chicopee, on the 1st of December 1852; the second count, a sale to Cornelius E. Maloney, at Chicopee, on the 2d of December 1852; and the other four counts respectively, sajes to other persons, at the same place, on the 1st of…

Indictment charging the defendant with being a common seller of intoxicating liquors. At the trial in the court of common pleas, before Byington, J. the district attorney offered ^ evidence, to show that, during a part of the time covered by the indictment, the defendant kept a public house, and had upon it an innkeeper’s sign. The defendant objected to the admission of the evidence as irrelevant and incompetent; but the objection -was overruled, and the evidence admitted.

The defendant was indicted for being a common seller of spirituous liquors, and tried in the court of common pleas for the county of Hampden at May term 1854, before Byington, J. John Shea, called as witness for the Commonwealth, testified that on St. Patrick’s day, about four months before the trial, one Braman, a constable, hailed him, and asked him to help him move six barrels into the defendant’s cellar; the defendant said one of them was a barrel of beer ; the witness…

<p>After a general verdict of guilty on an indictment containing a count charging the defendant with being a common seller of intoxicating liquors during a certain period, and count* for single sales within the time covered by the first count, a nolle pi'osequi may be entered on all the counts except the first, and judgment rendered upon that for the Commonwealth.</p>

The defendant was tried and convicted at December term 1853 of the court of common pleas for the county of Hampden, on an indictment which alleged “ that Philip Lamb, of Palmer in said county, laborer, on the tenth day of October now iast past, at Palmer aforesaid, in the county aforesaid, in the night time,, between the horn: of'sunsetting on the said tenth day of October and the hour of sunrising on the day succeeding, did wilfully and maliciously set fire to and bum a…

Assumpsit on a promissory note, by which, the declaration alleged, the defendant, at South Hadley, on the 30th of December 1847, for value received, promised the plaintiff to pay him of order three hundred dollars on demand; and that the plaintiff then and there demanded the same. Writ dated August 19th 185!. The defendant pleaded the general issue, and ' specified in defence; 1. Want of consideration: 2. Failure of consideiafcion; 3.

<p>A railroad corporation, receiving goods for transportation to a place, situated beyond the line of their road, on another railroad, which connects with theirs, but with the proprietors of which they have no connection in business, and taking pay for the transportation over their own road only, are not liable, in the absence of any special contract, for the loss of the goods, after their delivery to the proprietors of the other railroad.</p>

<p>Action of tort for the conversion of “ one cow, the property of the plaintiff, of the value of twenty eight dollars.”</p> <p>At the trial in the court of common pleas, before Byington, J. there was evidence tending to show that on or about the 2d of February 1852 the defendant went to the plaintiff’s house, and proposed to buy a cow, and inquired the plaintiff’s price, and the plaintiff asked $28, and the defendant offered $26; that the defendant remained with the plaintiff four or five hours, and plied the plaintiff with cider, drawn by him from the plaintiff’s barrels, until he made the plaintiff drunk, and then took advantage of his incompetent condition, to trade for the cow; that the plaintiff said to a witness, who came into the room while the parties were together, that he had sold the cow for $26, and taken the defendant’s note; that the defendant did in fact give the plaintiff his note for that amount, payable in sixty days, and drove away the cow; and that when the witness afterwards came into the room, “ the plaintiff was on the floor, unable to get up, and without much sense of any thing, and had the note in his hand.”</p> <p>It was also in evidence, and not controverted, that the plaintiff was eighty five years of age; that .at the time of the trade he knew the defendant to be under twenty one years of age; but that the defendant at the same time represented that he was authorized to trade for himself, and that his father had given him his time; that the plaintiff, on two former occasions, had sold cows to the defendant, and trusted him, having the same knowledge; and that the defendant, at the time of the trial, was still under age.</p> <p>There was also evidence of the following facts: After the note fell due, the plaintiff demanded payment thereof, which the defendant refused, assigning, as one reason, that he was a minor, and also saying that he had paid for the cow; that he never gave the note, and that, if the plaintiff had such a note, it was a forgery. The plaintiff brought an action upon the note, in which the defendant prevailed on a plea of infancy. The plaintiff, immediately thereafter, demanded a return of the cow; and, the defendant not returning her, brought the present action. There was evidence tending to show that the defendant had sold the cow, and received the money for her, before the note fell due, and that he had not since had the possession Dr control of her.</p> <p>Upon the facts conceded, and which the evidence tended to show, the defendant contended, and requested the judge to rule, “ 1st. That the plaintiff’s treating the note as a valid contract, when in a condition of mind competent to judge of the circumstances under which it was given, and afterwards bringing suit upon it, were a conclusive ratification of the sale on his part. 2d. That bringing the action on the note was a waiver of the tort complained of. 3d. That as the original cause of action was grounded in contract, the plaintiff could not maintain tort, if the jury should find that, when the note fell due, and the demand was made for a return of the cow, the defendant had sold her and parted with the possession and control of her.”</p> <p>But the judge ruled against the defendant on all these points, and instructed the jury, “ that if, upon the whole evidence in reference to the fraud, they should find the sale void for that cause, the plaintiff’s treating the contract afterwards as a valid contract, and the acts done by the plaintiff and defendant after such sale, as stated in the evidence, would not prevent the plaintiff from recovering, the defendant himself having prevented the plaintiff from enforcing payment of the note, by his successful defence to the action by his plea of infancy.” The jury found for the plaintiff; and the defendant alleged exceptions.</p>

Action of tort for an injury caused to the plaintiff oy want, of repair in a highway in the town of Pelham, on which the plaintiff was driving.

Writ of entry to obtain possession of the land described in a mortgage from the tenant to the demandant, the condition of which was in these words: “ Whereas the above named Hannah Wales has this day by deed conveyed to the said Nathaniel K. the above mentioned premises, for her future maintenance and support, and whereas the said Nathaniel K. has, at the same time, reconveyed the same premises to said Hannah,, as security for such maintenance and support, now if the said…

<p>Action of contract to recover the expenses incurred by the plaintiffs for the support, board, lodging and medical attendance of Abigail Gatlin, a pauper, fallen into distress in Deerfield, and standing in need of immediate comfort and relief, and alleged to have her lawful settlement in Greenfield. Trial in the court of common pleas, before Perkins, J. to whose rulings the plaintiffs alleged exceptions. The whole case appears in the opinion.</p>

<p>Ralph A, Hale died intestate on the 12th of December 1851, saving no children; and an administrator of his estate was appointed in the same month. On the 9th of March 1852, an allowance of $300 was made by the probate court to Caroline Hale, his widow, and received by her of the administrator on the 4th of January 1853. On the 20th of July 1852, she petitioned the probate court for an additional allowance, on the grounds that the former allowance was too small, under all the circumstances, and that the heirs at law intended to contest the right of her husband to more than one half of his real estate, thereby depriving her of dower to a large amount. This petition was opposed by some of the heirs at law. But the judge of probate, on the 8th of February 1853, decreed the widow an additional allowance of $300, from which decree the heirs at law appealed.</p> <p>The amount of personal property, as appears by the inventory and the administrator’s account, was $1,925.66, and the inventory of the real estate amounted to $9,050. All the personal estate, except the amount of the first allowance to the widow, was exhausted in the payment of debts and charges of administration, before the filing of her petition for a second allowance. The debts remaining' unpaid amount to $1200 or more, for the payment of which real estate must be sold. The widow has no children, nor any one dependent upon her for support.</p> <p>On the 5th of March 1853, the widow petitioned this court for leave to enter an appeal from the first allowance, representing that said allowance was made through the agency of the administrator, without her authority or knowledge ; “ and that" though she was informed thereof before the time expired in which she could claim an appeal therefrom, yet she was not informed as to her rights in the premises, and did not know that an appeal could be taken, and that it is without any default on her part that said appeal has not been claimed.”</p> <p>The appeal of the heirs at law from the second allowance, and the petition of the widow for leave to appeal from the first allowance, were submitted to this court upon a statement of facts and evidence, the material part of which is given above.</p>

The case was submitted to the decision of the court upon the following statement of facts : Almon Brainard and Charles Hitchcock, the alleged trustees, are executors of the last will of Dr. Joseph Goodhue, late of Deerfield, who by his will, dated June 12th 1840, after providing for the payment of his debts and funeral expenses, and making certain specific legacies, amounting to about $1,100, ordered all the residue of his real and personal property to be divided into five…

Action of contract on a policy of insurance on the plaintiff’s dwelling house, barn, &c. against loss- or damage by fire.

Action of contract to recover the price of brandy, gin, rum, wine and spirits, sold and delivered by the plaintiff to the defendant.

<p>In an action brought by a railroad corporation on Rev. Sts. c. 39, § 53, to recover of a stockholder, whose shares had been duly sold, for non-payment of assessments, for less than sufficient to pay the same, the amount of the deficiency, the plaintiffs were ordered by the court “ to file a copy of the contract, of subscription for stock on which said action was brought,” and accordingly filed a copy of a written contract of subscription, and the court ordered the copy so filed to be made part of the record. Held, that this action was not brought on the contract of subscription; that said contract was inadver tently made part of the record; and that the omission in the declaration to allege performance of the conditions precedent of said contract could not be taken advantage of by demurrer.</p>

Trespass^ for taking and driving away a yoke of oxen. Plea, the general issue, with a specification of property in the defendant. At the trial in the court of common pleas, at March term 1852, it was proved that the defendant took the oxen from the possession of the plaintiff at the time stated in the declaration. The plaintiff claimed title to the oxen under a purchase from Jesse Hall, on the 20th of June 1850, at Colebrook, Connecticut.

<p>Park was indicted for a single sale of intoxicating liquor to Benjamin Richardson, without having any license or appointment that legally authorized him so to do. At the trial in the court of common pleas, before Bishop, J. the evidence was that Richardson called for gin, at the bar of the defendant, an innkeeper, and received it of some one whom he did not know; and that, as he was leaving the inn, he paid the defendant for the gin. The defendant requested the judge to instruct the jury that, as the allegation in the indictment was for a sale by Horace Park himself, and not by Horace Park through the agency of any other person, there was no evidence of a sale prima facie, by the defendant, unless they should be satisfied that he delivered the gin himself. But the judge refused to give this instruction, and instructed the jury that proof of delivery by authority of Park was sufficient. The jury found Park guilty, and he alleged exceptions to this instruction.</p> <p>Reed, being tried in the court of common pleas, before Mellen, J. on a complaint for a similar offence, objected that the complaint, alleging a sale by the defendant, was not supported by evidence of a sale made not by him, but by an agent of his; and this objection being overruled by the judge, and the defendant convicted by the jury, he alleged exceptions.</p>

<p>The wife of one of several defendants, jointly indicted and tried together, is an incompetent witness for .the others.</p> <p>No exception lies to the refusal of a judge to allow separate trials to defendants jointly indicted, although, by trying them together, some of them are prevented from introducing evidence, which would be admissible in their behalf, if tried separately.</p> <p>Allowing one of several defendants, jointly indicted and tried together, to draw out, by cross examination of one of the witnesses for the Commonwealth, facts pertinent to his defence, though injurious to the other defendants, is no ground of exception by them.</p> <p>An officer, indicted as an accessory to a burglary, may, for the purpose of explaining his frequent intercourse with those indicted as principals, and to prove his own diligence and fidelity in pursuing them, give in evidence the conversations between himself and another officer as to the best means of gaining their confidence and thereby bringing them to justice; and also the information received by him in answer to inquiries made of persons whom he met while in pursuit of the burglars.</p> <p>A party, who refuses, at one stage of the trial, to introduce evidence previously offered by him, and ruled out as incompetent, on the objection, afterwards waived, of the other party, may still except to the rejection of the same evidence at a subsequent stage of the trial.</p> <p>A copy of a newspaper, containing an advertisement of the usual time of arrival of a certain stage coach, is admissible in evidence of the advertised time of such arrival, and of the knowledge of such time by one who usually read the paper.</p> <p>An indictment, remitted to the court of common pleas by this court, after disposing of exceptions taken in that court, may be remitted to a term now in session; but if no express direction be given, will go to the next term of that court for the same county.</p>

Indictment on Rev. Sts. c. 127, § 16, alleging that the defendant, at Worcester, on the 5th of September 1853, “ had in his custody and possession a certain piece of false money and coin, forged and counterfeit to the similitude and likeness of certain good gold money and coin current in said commonwealth by the usages thereof as money, called a California five dollar gold piece ; and the aforesaid piece of forged and counterfeit money and coin the said Bond did then and…

<p>A father conveyed land to his son L. his heirs and assigns, upon condition that the land be charged with one half of the debts which the grantor might owe at his decease, and upon trust to apply the rents and profits to the use and benefit of the grantor’s other son B. for life, and upon B.’s decease, to convey the land to B.’s surviving children, or if he should leave no children, to his heirs at law. Held, that a conveyance, made by L., after a sale by auction without license or order of court, but purporting to be made for the purpose of paying said debts, passed a good title, although the price obtained was affected by the doubts entertained of L.’s right to sell; and that the purchaser was not bound to see to the application of the purchase money.</p>

<p>A lessee under an oral agreement to pay rent quarterly in advance, and upon condition that, when he fails to do so, he shall leave the premises, is liable, on his failure so to pay rent, to the landlord and tenant process given by Rev. Sts. c. 104, without previous notice to quit.</p>

<p>A workman performing labor on a building, under a contract with one, who is employed by the owner of the building, but who is not the owner of the land, and has not contracted with such owner for erecting, altering or repairing the building or for the purchase of the land, has no lien, either on the land or on the building, to secure the payment of his wages, by virtue of St. 1851, c. 343. ,</p>

<p>Action of contract, commenced on the 10th of October 1851, on a promissory note, dated August 12th 1845, and payable on demand. A previous action of indebitatus assumpsit for money had and received, <fce. had been brought for the purpose of recovering the same note, within six years from the date of the note, returnable to the court of common pleas for this county at September term 1851, against the defendant and a trustee, both residing in the county of Essex; which action was dismissed or abated, on motion of the defendant, for want of jurisdiction. The parties agreed that if, in the opinion of the court, said first action was sufficient to prevent the cause of action from becoming barred by the statute of limitations, the defendant should be defaulted; otherwise, the plaintiffs should become nonsuit.</p>

<p>This court has power, under its general superintendence and jurisdiction, as a court of chancery, of all cases arising under the insolvent law, to expunge the proof of a fraudulent claim against the estate of an insolvent debtor, on the petition of his assignee, who iid not know of the fraud until the expiration of the time allowed by law for an appeal from the allowance of the claim by the commissioner of insolvency.</p>

<p>Appeal Rom a decree of the judge of probate, ordering a distribution among the heirs at law of Luther Stone, of Oxford, deceased, intestate.</p> <p>At the hearing before Thomas, J. it appeared that Luther Stone died on the 19th of November 1852, leaving both real and personal estate, and the following heirs at law : Three sons, Loomis, Luther and Lewis, and the children of three daughters, namely, Isaac N. Hartwell, only child of the intestate’s daughter Sarah, lately the wife of Isaac B. Hartwell; six children of the intestate’s daughter Permelia, lately the wife of John Stone; and William W. Rice and three other children of the intestate’s daughter Julia, formerly the wife of Leonard Rice, and since of one Smith. The appellants were the children of Sarah Hart-well and Permelia Stone.</p> <p>The first reason of appeal was, that the judge of probate allowed, as an advancement towards the share of the children of Permelia Stone, the following receipt, signed by John Stone and Permelia Stone: “Auburn, February 2,1850. Received of Luther Stone five hundred dollars, it being a part of my wife’s portion.” This receipt was found by the administrator in the desk of the •ntestate, upon his file of notes. In this court, the presiding judge found, as a matter of fact, that this money was paid to Mrs. Stone.</p> <p>The second reason of appeal was, that the judge of probate allowed, as an advancement towards the share of Isaac N. Hart-well, a receipt, found by the administrator, upon a further examination of the papers in the desk and chest of the deceased, in a letter filed with a bundle of papers and letters from the State Lunatic Hospital at Worcester. This receipt was in these words : “ Oxford, January 21, 1845. Received of Luther Stone eight hundred and three dollars and nineteen cents, for the support of Mrs. Sarah Hartwell at the State Lunatic Hospital, Worcester, Mass., as a part of her portion out of her father’s estate. Isaac B. Hartwell.” Mrs. Hartwell was insane when her husband gave this receipt, and her father, the intestate, contributed towards her support in the hospital, and the money, for which the receipt was given, was paid for her support. She continued insane till her death, which happened before her father’s, and her husband still survives her.</p> <p>The appellants contended that these receipts were insufficient to prove advancements made to then respective mothers. But if otherwise, for the purpose of showing a revocation of these receipts, and of all charges for advancements, and the intention of the intestate to place his children upon a footing of equality, the appellants offered to prove that in January 1852 he duly made and executed his will, wherein, after devising certain real estate to the two oldest children of his daughter Julia, he left all the rest of his estate as intestate property; and that in June 1852 he cancelled this will, and gave deeds of certain real estate to the same grandchildren. But the presiding judge ruled that this evidence was inadmissible for the purposes for which it was offered.</p> <p>The third reason of appeal was, that divers charges for advancements to the heirs at law were not allowed by the judge of probate. The appellants, for the purpose of establishing valid charges for advancements to all the children of the intestate, which charges had been lost or destroyed, offered to prove the intestate’s declarations, made from time to time up to 1852, that he actually so made and charged the following advancements : To Loomis Stone, $2,750; to Luther Stone, $2,000; to Lewis Stone, $1,500; to Julia Smith, $1,400; to Sarah Hartwell, $1,100; to Permelia Stone, $500. The appellants produced the book of accounts kept by the intestate, from the latter part of which three leaves appeared to have been cut out; but no such charges as alleged were to be found on the book. The presiding judge was of opinion that there was no evidence of the existence or loss of the supposed charges, and no foundation laid for introducing secondary evidence, and rejected the testimony.</p> <p>And the presiding judge, upon the whole matter, ordered the decree of the judge of probate be affirmed, and the case remitted to the probate court. - The appellants alleged exceptions to the above rulings and order.</p>

<p>Action of contract, commenced on the 11th of May 1854. The declaration alleged that the plaintiffs and the defendant and the others, whose names were thereunto affixed, made the agreement, under their hands and seals, a copy of which was annexed to the declaration.</p> <p>This agreement, which is dated February 15th 1854, and executed by Thomas J Harrington and Eliza his wife, Sylvanus Holbrook and Martha his wife, Harvey Waters, Franklin Waters, Peter Pierce and Lydia W. his wife, among other things “ witnesseth that whereas the parties aforesaid* are interested in the estate of Elijah Waters, late of Millbury, deceased; and whereas contr rversies have arisen and now exist between said parties, or some of them, growing out of their several interests in said estate; now therefore, for the full and final settlement and determination thereof, and of all matters in dispute between said parties or any of them, the parties mutually, jointly and severally, covenant and agree as follows: That Charles W. Harts-horn, Esquire, of the city and county of Worcester, together with two other eompétent and impartial persons to be by him selected, be and hereby are appointed referees between the parties, with full power and authority, upon the judgment of said Hartshorn as to the amount and quantity of interest which the said Peter and Lydia W. Pierce, in the right of said Lydia, have, in law or equity, in and to the homestead estate of said Elijah, situated in said Millbury, to ascertain and fix by appraisal, the value of said homestead estate ; and the same being ascertained and jnade known, that, at such time and place as the said Harts-horn shall appoint, the said parties, viz. the said Pierce and wife on the one side, and the said Harrington and wife, Holbrook and wife, and Franklin and Harvey Waters, on the other side, shall bid against each other for the right to take said estate and have a conveyance of the interest of the other party therein ; and thereupon said party obtaining the'right to take the same shall receive a conveyance of the interest of the other party therein, and shall pay therefor to the other party making said conveyance the appraised value of the interest so conveyed, together with the sums bid for the right of taking said estate, in cash, upon the delivery of the deed.”</p> <p>The declaration then averred, “ that Charles W. Hartshorn, Esquire, therein named, accepted the office of referee between the parties under said agreement, and selected two other competent and impartial persons to act together with him in said capacity, viz. John E. Bacon and Thomas H. Witherby, and that said referees, upon the judgment of said Hartshorn as to amount and quantity of interest to which the female plaintiff was entitled in and to the homestead of Elijah Waters, deceased, did ascertain and affix by appraisal the value of said estate, and did, upon the judgment of said Hartshorn, as aforesaid, ascertain and determine the amount and quantity of interest of said female plaintiff therein to be one fifth thereof, and did ascertain and affix by appraisal the value thereof to be $555; and the same being ascertained and made known, the said Harts-horn did appoint the twenty-second day of March last, as the time, and the premises, viz. said homestead estate and said Mill-bury, as the place, where the parties to said agreement should bid against each other for the right to take said estate and have a conveyance of the interest of the other party therein; and that at said time and place, in the presence of said Hartshorn, the said parties to said agreement did bid against each other as aforesaid, and the said defendant did bid for said right the sum of $2,425, being the highest sum bid therefor, and thereupon became entitled to take the interest of the plaintiffs therein, and became bound to take the same, and to pay therefor the amount of said appraisal and of said bid as the consideration thereof, viz. in all, $2,980, and promised and agreed so to do; and after-wards, on the same day, the plaintiffs executed a deed of the interest of said female plaintiff therein, which was prepared by said Hartshorn according to the directions of said Harrington, and tendered the same to the other parties to said agreement, yet the defendant wholly refused to accept the same or to pay the consideration therefor or any part thereof; and the plaintiffs further offered to execute to the other party to said agreement any other deed thereof, and requested them, at the expense of the plaintiffs, to prepare one; and they have ever been and still are ready to convey their interest in said estate by any and all sufficient and proper deed or deeds, according to said agreement yet the defendant has wholly refused to accept of any convey anee thereof, and to fulfil said agreement.”</p> <p>The defendant demurred to the 'declaration, and specialty assigned the following causes of demurrer: 1. “Because the said Eliza Harrington, Sylvanus Holbrook and Martha Holbrook his wife, Franklin Waters and Harvey Waters, named in said agreement, are not made parties defendants in said suit.” 2. “ Because it is not stated in said declaration whether said Thomas J. Harrington bid for the interest of the plaintiffs, or either of them, in said real estate mentioned in said writ, in and for his own proper person, or for and in behalf of himself and his said wife and said Holbrook and wife and said Franklin Waters and Harvey Waters, the parties in said agreement named.” 3. “ Because it is not stated in said declaration who was the grantee named in the deed, which is alleged in said declaration to have been tendered by the plaintiff to the other parties named in said agreement.” 4. “Because the estate alleged to have been bid off by the defendant, and which it is alleged he had been entitled to take, was the interest of the plaintiffs in said real estate; and the deed alleged to have been tendered to the other parties to said contract is stated to have been a ‘deed of the interest of said female plaintiff’ in said real estate.” 5. “ Because it is not alleged in said declaration that any deed was ever tendered to the defendant.”</p>

Action of contbact, commenced before a justice of the peace. The writ was made on the 26th of April 1853, returnable on “ the seventh day of May next,” but it bore date of the 26th of May 1853. It was served on the 30th of April 1853, and entered on the 7th of May following. The defendant appeared and moved that the action be dismissed; and the plaintiff moved to amend his writ by changing its date from May 26th to April 26th.

<p>A check for a part of the drawer’s funds in a bank constitutes no assignment of that part of such funds, until presented for payment, and accepted by the bank, although verbally assented to by the cashier, when absent from the bank.</p> <p>A debtor, being sued and a bank summoned as his trustees, gave his creditor a check for a part of his general deposit in the bank, which the creditor delivered to the cashier, when absent from the bank, together with an order for the discharge of this trustee process, when the amount of the check should be transferred from the debtor’s account to his own on the books of the bank. Held, that this did not constitute such an assignment of part of the funds of the debtor in the bank, as would hold against a trustee process served on the bank by another creditor before the amount of the check was so trans ferred on the hooks of the bank.</p>

<p>The Millbury Bank, on whom, as trustees of Randall, this writ was served on the 4th of October 1852, filed an answer, charging themselves with a considerable amount of money deposited with them by Randall, in the course of business, in his own name. Randall was defaulted. Adams Smith appeared, and was admitted to prosecute his claim to the money so deposited. On a trial of his claim in the court of common pleas, before Mellen, J. there was evidence tending to prove the following facts: ■</p> <p>Early in the morning of the 28th of September 1852, Randall, who had little or no money or biHs in his possession previously, received of Smith a large amount of bills, and gave a receipt in some form therefor; and about nine o’clock the same morning, deposited in the Millbury Bank, to his own credit and in his own name, $3,120 in bills of various denominations, and issued by various other banks. During the same forenoon, Randall drew out of the Millbury Bank by a check, signed by himself, and payable to himself or bearer, $3,000 in bills of said bank; and in the afternoon of the same day deposited in said bank $1,190 in bills of said bank, of corresponding denominations to those drawn by him on his check in the forenoon, but which were not identified with those. The claimant introduced evidence tending to show that Randall was insane for some time previous to said 28th of September, and for a long time thereafter ; but the plaintiff contended that his insanity, if any, was not of a character and extent to render his acts void, and offered evidence of acts and business transactions on his part, tending to show that he was of sound mind, or so much so as to rendei his act valid. Notice was given to the claimant, to produce the receipt, if any, given him for the money delivered by him to Randal]; but he declined to produce it.</p> <p>The plaintiff requested the judge to give the jury the following instructions: 1st. That if Randall did receive said money from Smith, for the purpose of investing the same or otherwise for Smith, Randall acting merely as agent, yet the bills deposited by Randall in the afternoon, not being the same money or bills delivered to him by Smith, Smith could not prevail in this action. 2d. That if Smith delivered said money to Randall, Randall, having deposited said money in his own name and to his own credit in the bank, without notice to the bank or its officers that Smith was or claimed to be the owner of the money, had converted the same to his own use, and Smith could not prevail-in this action. 3d. That if Randall knew the • nature of the act which he was performing, and was fully aware of the consequences, his acts were such as would bind him and those for whom he acted. 4th. That the presumption of law was, that if Randall gave Smith a receipt for said money, the receipt was in common form; and the burden of proof was upon the claimant to show that there was any restriction, limitation or agreement, contained in or forming a part of the receipt, so that the same would not be an accountable receipt, and a bar to this action.</p> <p>The judge declined to give these instructions: and instructed the jury, that the burden of proof was on the claimants to show that the bills so deposited by Randall were the property of Smith; that if the bills were delivered by Smith to Randall as his agent, under a contract by the terms of which the bills were to remain the property of Smith, they would continue to be Smith’s property, though deposited by Randall in his own name, as there was no evidence that the plaintiff gave credit to Randall on the faith that the bills so deposited were the property of Randall; and on the same hypothesis, the bills deposited by Randall in the afternoon would remain the property of Smith, provided they were the same bills drawn out by Randall in the forenoon of the same day, or were the proceeds of those bills, obtained in exchange for those bills; and that this would be the law, whether Randall, at the time of receiving and depositing the bills, was sane, or so far insane as to be incapable of making a contract; and that the presumption of law, in the absence of any evidence of the terms of the receipt, was that it was in common form.</p> <p>The jury returned a verdict for the claimant; and, upon inquiry, answered that they found that Randall, at the time of receiving the bills from Smith and of depositing them in the bank, was insane, and incapable of making a contract. The plaintiff alleged exceptions to the rulings of the judge.</p>

<p>Sureties on a bond for the liberty of the prison limits are not liable for a failure to surrendei their principal, occasioned by his confinement in the State Lunatic Hospital, as a lunatic furiously mad, under a commitment by the judge of probate, pursuant to Bev. Sts. c. 48 j 6, after the execution of the bond.</p>

<p>No action lies on St. 1841, c. 125, to recover double the damages sustained by reason oí the neglect of a railroad corporation to comply with an order of the county commissioners, requiring them to construct and maintain embankments, &e. for the benefit of the owner of land through which their road is laid out, unless the time within which such structures are to be made is prescribed in the order.</p>

Action of tort for breaking and entering the plaintiff’s close in Lunenburg. The defendants admitted the entry, and justified under a sealed agreement between Goodrich and Longley and others, dated March 9th 1846.

<p>Action of contract to recover expenses incurred by tie plaintiffs in furnishing relief to Stillman Howe, a pauper, alleged to have his legal settlement in the town of Clinton.</p> <p>At the trial in the court of common pleas, at September term 1854, it was admitted that Howe, in April 1844, purchased of Luther Sargeant, by deed duly executed, with full covenants of warranty, about half an acre of land, with a small dwelling-house thereon, in the southerly part of the town of Lancaster, which on the division of the town in 1850, and the incorporation of the town of Clinton, became a part of Clinton; and that Howe immediately took possession of the land, and had ever since occupied it undisturbed. The plaintiffs admitted that the defendants were not liable, unless the purchase and occupation of this land by Howe gave him a settlement in Clinton by force of the Rev. Sts. c. 45, § 1, cl. 4, and the act incorporating the town of Clinton, St. 1850, c. 72, § 3, which provides that the “ towns of Lancaster and Clinton shall be respectively hable for the support of all persons who now do, or shall hereafter, stand in need of relief as paupers, whose settlement was gained by, or derived from, a settlement gained or derived within their respective limits.”</p> <p>The defendants, for the purpose of disproving Howe’s settlement in the town of Clinton, offered to prove that a. sale for non-payment of taxes in 1842, which was the only source of Sargeant’s title, was defective and illegal, and passed no title, and that Howe therefore had no legal title in the land. But Byington, J. was of opinion that these facts would not constitute a defence, and rejected the evidence. A verdict was returned for the plaintiffs, and the defendants alleged exceptions.</p>

<p>Where the owner of a chattel, who has transferred the possession thereof to another person, with the agreement that it should become his property on the payment of a certain sum in monthly instalments, brings an action against a third person for a conversion of the chattel after payment of some of the instalments and a failure to pay the remainder, the measure of damages is the whole value of the property, with interest from the time of the conversion.</p>

Writ of review. T.he original action was assumpsit, commenced in the court of common pleas on the 3d of November 1851, by the defendants in review, as executors of the will of Abiel Williams of Dudley, against William Sigourney and Charles Wood, partners under the firm of Sigourney & Woodf on a note of hand made by them to Abiel Williams. Sigourney was defaulted, and the plaintiffs, at August term 1852, discontinued against Wood, and took judgment against Sigourney alone.

<p>On the hearing of an appeal from a judgment of the court of common pleas upon a ques tion of costs, the certificate of the judge who presided in that court, filed in the case by his order, and stating his instructions to the jury, is admissible to show the grounds of the verdict, when material to the decision of the question of costs.</p> <p>In an action, brought originally in the court of common pleas, for the use and occupation of two tenements, as to one of which the defendant pleaded that he owed nothing, and as to the other a tender .of $30, the judge instructed the jury that they were not to include, in a verdict for the plaintiff for the use and occupation of the second tenement, the amount tendered, and they returned a general verdict for the plaintiff for $15, on which judgment was rendered. Held, that the plaintiff “finally recovered” more than $20, within the meaning of Rev. Sts. c. 121, § 3, and was entitled to full costs.</p>

<p>Action of contract. Trial in the court of common pleas, before Mellen, J. who signed the following bill of exceptions: ■</p> <p>“ This was an action of contract, commenced February 11th 1853, to recover the amount of three promissory notes, payable to the plaintiffs or order on demand; one dated April 5th 1851, for $1,359.91 and interest; one dated April 3d 1849, for $612 and interest; and the third dated May 12th 1845, for $800 and interest, on which was the following indorsement, in the handwriting of one of the plaintiffs: ' May 17th 1852. Received twelve dollars.’ The first two of said notes were signed by the defendant, and were admitted by him to be due as set forth. The third note was a joint and several note, signed by C. L. & W. A. Williams and by the defendant, and was the only note to which any defence was made. The defences to this. note were 1st, payment, and 2d, the statute of limitations. To take the case out of the statute of limitations, the plaintiffs relied on a payment of $12, made at the defendant’s request and in his behalf, on the 17th day of May 1852, and indorsed aa above stated on said note, at the time of said payment. It appeared that, at the time of the alleged payment aforesaid, there were other debts due from the defendant to the plaintiffs. The plaintiffs offered evidence tending to show such payment by the defendant to the plaintiffs, without any direction or request that it should be applied on any particular or specified liability; and that the same was, in the absence of such direction, applied by the plaintiffs on the note now in suit. The plaintiffs’ counsel requested the court to instruct the jury, that where a payment was made by a debtor to a creditor holding several valid claims against such debtor, accompanied by no direction or request that the payment should be applied to any designated claim, the creditor might make his application to any of such claims that he might elect. The court instructed the jury as requested by the plaintiffs’ counsel; but said nothing as to the right to make such application to a debt already barred by the statute of limitations; nor was the attention of the court called by the defendant’s counsel to the fact that the note in controversy was already so barred, nor did the defendant’s counsel call the court’s attention to any supposed exception to the general rule, as stated, by reason of the statute of limitations.</p> <p>“ The plaintiffs offered evidence showing that C. L. & W. A. Williams, above mentioned, after making the note in question and before the commencement of this action, being insolvent, entered into an agreement with their creditors in writing, not under seal, wherein the said creditors, among other things, agreed ‘ to give up to a trustee to be chosen by a majority in value of said creditors, to be delivered up to said debtors, all the claims we hold against them, either legal or equitable, in consideration of a delivery to said trustee of all assets, either legal or equitable, that the above named debtors would be required to give up to the above named creditors by the insolvent act of this state ; ’ that the property of said debtors was duly assigned and conveyed by them, under and by virtue of said agreement,to John L. Gallond, as trustee, for the use and benefit of said creditors; that said property was duly divided among the creditors of said debtors, in proportion to their several and respective debts, whereupon said trustee was by said creditors fully discharged; and that the plaintiffs, as creditors of C. L. & W. A. Williams, joined in and became parties to said agreement and the various proceedings under the same aforesaid, and then held the note in issue. The defendant contended that said agreement and proceedings operated as a discharge of the note in issue, as to said C. L. & W. A. Williams, and also as to the defendant, he being a joint maker with said C. L. & W. A. Williams of said note. The judge instructed the jury that a technical discharge of said C. L. & W. A. Williams from said note by the plaintiffs would also discharge the defendant; but that said agreement and proceedings were for another purpose, and did not affect the liability of the defendant upon said note.</p> <p>“ The jury returned a verdict for the plaintiffs for the full amount of the three notes above mentioned, and to the opinions and instructions aforesaid the defendant excepts.”</p>