Volume 68 — Massachusetts Reports

Bill in equity, filed on the 14th day of June 1852, by the Boston and Lowell Railroad Corporation, against the Salem and Lowell Railroad Company, the Boston and Maine Railroad, and the Lowell and Lawrence Railroad Company.

<p>A certificate of discharge under the insolvent laws of this state is a bar to an action on a contract, made by a citizen of this state with a citizen of another state, who does net prove his claim under those laws, if the contract by its express terms is to be performed in this state. Metcalf, J. dissenting.</p>

<p>A bond, given by a town treasurer and collector of taxes to the selectmen of the town, fot the faithful performance of his official duties, is valid at common law; and the selectmen may maintain an action upon it, for the benefit of the town.</p> <p>If any demand of payment of the sum due upon a bond, given by a town treasurer and collector of taxes to the selectmen, is necessary, before commencing an action on the bond, a demand upon such treasurer, made by two of the three selectmen and the town treasurer for the time being, after said three selectmen and treasurer have been appointed by the town a committee to settle with the former treasurer, is sufficient.</p>

<p>Indictment for a nuisance by obstructing a highway in Tyngaborough, leading from Tyngsborough across the Merrimack Biver to Pelham (N. H.) and called and known as the Ferry Boad.</p> <p>At the trial in the court of common pleas, the following facts were admitted: The defendants, incorporated by St. 1836, c. 249, in the course of the construction of their road in 1837, built a bridge over said highway; but on the 1st of July 1837, before building the bridge, made the following application to the selectmen of Tyngsborough: “ Your memorialists beg leave to represent, that in the convenient location of the Nashua and Lowell Bailroad it is necessary to lower the present travelled road way at the ferry about four feet, for the purpose of allowing the travel to pass more conveniently under the bridge of said railroad. The length of said bridge we also wish you to direct.” The selectmen, in answer to this application, on the 6th of July 1837, granted their consent to the lowering of the ferry road about two feet, and gave directions as to the mode of building the road and bridge, “ with a sufficient draw in said bridge to accommodate the public travel; the said corporation to provide for raising said draw whenever required by the height of the carriage or load in passing.”</p> <p>The bridge was built by the defendants in compliance with the directions of the selectmen, except that no draw was made in the bridge. The railroad and bridge have continued and been used from 1837 to the present time, as they were then constructed. And the construction of the bridge, in the manner hr which it was built, constitutes the nuisance complained of. The relative position of the highway, the railroad and the river are sufficiently stated in the opinion.</p> <p>libar, J. instructed the jury, that a structure erected by the defendants across a highway at such a height as would prevent the passage of carriages with loads of a proper and reasonable height, such as are usually carried upon public highways, would be a nuisance, for the erection and maintenance of which they might be indicted and convicted, unless they could show an authority or justification for so erecting or continuing it; and that the facts above stated would not furnish such authority or justification.</p> <p>The jury found the defendants guilty, and the judge reported the case, pursuant to Rev. Sts. c. 138, § 12, for the purpose of presenting to this court the question whether the defendants had authority to build the bridge in the manner stated; and also the question, whether the court of common pleas had jurisdiction of the case proved under this indictment.</p> <p>This case was -argued at the last October term.</p>

<p>A statute, which authorizes the proprietors of a toll bridge built many years previous"^ under the power conferred by their charter, to build and maintain a turnpike, at their own expense, leading towards their bridge, and separated therefrom only by a public . highway of less than a mile long, and to take tolls on such turnpike, does not create a new and distinct franchise, but only enlarges the franchise conferred by their charter.</p> <p>The Hancock Free Bridge Corporation, having, in execution of the authority, conferred upon them by their charter, to purchase from the Proprietors of the West Boston Bridge “ their bridge and the franchise thereof,” accepted from said proprietors, and acted under, a deed purporting to convey their bridge and franchise, are bound to maintain and repair the turnpike built by said proprietors from Watertown towards their bridge under the authority conferred upon them by St. 1824, c. 15; although the Hancock Free Bridge Corporation, at the time of accepting the deed, protested against a clause therein, expressing that it was the understanding of the parties that in said franchise were included all the right, title and interest of the Proprietors of the West Boston Bridge in said road.</p> <p>Under the Rev. Sts. c. 39, § 42, which provide that “ whenever any person liable to the payment of toll shall sustain any injury, by reason of any turnpike being insufficient or out of repair, the corporation owning said road shall be answerable for such injury, and also liable to indictment for such insufficiency and want of repair of their road,” a corporation owning a turnpike road, and neglecting to keep it in repair, are liable to indictment, although no person liable to the payment of tolls has sustained injury by reason of such want of repair.</p>

<p>An indictment on Rev. Sts. e. 132, § 1, which alleges that the defendant, in a house occu pied by him, “ did unlawfully and knowingly permit the setting up of a lottery, in which certain articles of personal property and of value were disposed of, by the way of a lottery,” is sufficient, without alleging that the lottery, so permitted to be set up, was a lottery, not authorized by law, for money, and without stating the name of the lottery, or describing the articles disposed of, or stating their value, or the names of their owners, or of the persons who received them as prizes.</p>

<p>It is a fatal variance, in an indictment for uttering and publishing as true a forged ban* bill, to omit the name of the State in the upper margin of the bill, if not repeated in the body thereof.</p>

<p>Indictment for indecent exposure. The indictment alleged that the defendant, “ devising and intending the morals of the people of this commonwealth to debauch and corrupt,” on the 30th of January 1854, at Sherborn, “ in a certain public building there situate, in presence of divers citizens of said commonwealth then and there being, and within sight and view of the said citizens in and about said public building then and there passing and repassing, unlawfully, scandalously and wantonly did expose to the view of said persons present and so passing and repassing as aforesaid the body and person of him, the said Horace Haynes, naked and uncovered, for the space of one hour, to the manifest corruption of public morals and manners, and against the peace of said commonwealth, and the form of the statute in such case made and provided.”</p> <p>In the court of common pleas, the defendant pleaded guilty, and moved in arrest of judgment, “ 1. Because it nowhere appears in the only count in the said indictment, and is nowhere alleged, with what intent the acts therein set forth were committed. 2. Because it is nowhere alleged in said indictment that the acts, therein alleged to have been committed by the defendant, were done to the great damage and common nuisance of all the citizens of the Commonwealth, there inhabiting, being and residing, &c. 3. Because said indictment is altogether uncertain and insufficient in law, and charges no offence with sufficient certainty.” Bishop, J. overruled this motion ; and the defendant alleged exceptions.</p>

A complaint, made to a justice of the peace, on the 27th of July 1853, alleged that the defendant, on that day, at Framing-ham, “ was and is a common drunkard, having been on divers days and times within six months now last past, at said Framingham, drunk and intoxicated by the voluntary and excessive use of spirituous and intoxicating liquors, against the peace of the Commonwealth, and the form of the statute in such cases made and provided.” The justice issued a warrant to…

<p>It is no ground for arresting judgment on an indictment for stealing several articles ot personal property, that some of the articles are insufficiently described.</p>

<p>An indictment on St. 1852, c. 322, § 12, for being a common seller of spirituous and intoxicating liquors, need not allege that it was found at the instance or upon the application of any city or town officer, nor that it is prosecuted for the benefit of any town.</p>

<p>On the trial of the defendant in the court of common pleas for being a common seller of spirituous and intoxicating liquors, there was evidence of sales, made by the defendant’s servant or agent, at a public house kept by the defendant in Lowell.</p> <p>The district attorney, in order to prove that the house was owned by the defendant, and that the business carried on there was his, offered a paper purporting to be a registry copy of a deed of the premises to the defendant, certified by the register of deeds for this county. The defendant objected to the admission of the copy of the deed as evidence, for the reason that he had had no notice to produce the original deed. But Perkins, J. overruled the objection, and admitted the copy in evidence. To this ruling the defendant alleged exceptions.</p>

<p>The twelfth section of St. 1852, c. 322, concerning the manufacture and sale of spirituous and intoxicating liquors, having provided that “ whenever a default shall be had of any recognizance arising under this act, scire facias shall be issued, returnable at the next term,” an action of contract cannot be brought on such a recognizance, returnable at a subsequent term.</p>

<p>When the parts of a statute are so mutually connected and dependent, as conditions, considerations or compensations for each other, as to warrant a belief that the legislature intended them as a whole, and that, if all could not be carried into effect, the legislature would not pass the residue independently, if some parts are unconstitutional and void, all the provisions, which are thus dependent, conditional or connected, must fall with them.</p> <p>Tne act for the annexation of Charlestown to Boston, St. 1854, c. 433, is unconstitutional and wholly void; because it undertakes to erect the territory of Charlestown, until the next decennial census, into a representative district which is neither a town nor a city; and contains no adequate provisions to secure to the inhabitants of Charlestown their rights to elect representatives and senators in the general court, and representatives in. congress. And the mayor and aldermen of Charlestown were therefore justified in refusing to certify to the secretary of the Commonwealth the result of the votes of the inhabitants of Charlestown accepting said act.</p>

<p>Petition to the county commissioners for a jury to estimate the damages sustained by the petitioner by the taking of her land to extend Medford Street in Charlestown. A jury was accordingly summoned from the city of Cambridge and the towns of Somerville and Malden; and a trial had before the sheriff, who made the following certificate of his rulings •</p> <p>“ At the hearing, the petitioner’s witnesses, who were experts, having testified, without objection, as to what in their opinion was the value of the premises, in gross, per foot, before'the street was laid out through them; and _that the remaining land was not worth any more per foot after the street was laid out; the respondents offered a witness, who was admitted by the petitioner to be an expert in the value of land in Charlestown, and who testified that in his opinion the laying out of said street was a benefit to the petitioner’s land. The question was then asked of him, ‘ How much, in your opinion, did it benefit the estate ? ’ This question was objected to, and I sustained the objection. The question was then asked of the witness,1 How much more per foot would the remaining land be worth in consequence of the laying out of the street 1 ’ This was objected to, and the objection sustained. The witness having testified, that in his opinion land was worth more on a wide, than on a narrow street, the question was put to him, 6 What would be the difference per foot of the value of the land in question on Medford Street sixty feet wide, as laid out by the city, and the value of the same land on a street forty feet wide, as proposed on a plan offered to the jury by the petitioner ? ’ This question was objected to, and the objection was sustained. And to these rulings the respondents except.”</p> <p>The verdict, which was for the petitioner in the sum of $1,600, was set aside by the court of common pleas; and the petitioner appealed to this court.</p> <p>This case was argued in writing since the last term.</p>

<p>A certificate of discharge under the insolvent laws of this commonwealth, or under the United States Bankrupt Act of 1841, is no bar to an action brought on a covenant against incumbrances in a deed conveying land, to recover damages sustained by the grantee subsequently to such discharge.</p> <p>The “ uncertain and. contingent demands,” which might be proved, under the United States Bankrupt Act of 1841, did not include demands whose existence depended on a contingency, but existing demands the cause of action upon which depended on a contingency.</p>

<p>Trespass on the case against the justice of the police court of Lawrence. The declaration alleged that the plaintiff was convicted before the defendant of being a common drunkard, and claimed an appeal to the court of common pleas ; but the defendant unjustly and corruptly refused to allow the appeal, and ordered the plaintiff to be committed to the house of correction ; and the plaintiff was committed accordingly, and there confined four months.</p> <p>At the trial in the court of common pleas, the plaintiff first gave in evidence^ a record of the proceedings against him before the defendant, made by the defendant himself, which set forth that the plaintiff was adjudged guilty and therefore sentenced to the house of correction, but did not set forth that any appeal was claimed by the plaintiff.</p> <p>The plaintiff then offered to prove by parol that he claimed an appeal, and notified the defendant thereof at the time. To this evidence the defendant objected, because it would contradict the record, and because such a fact could be proved only by the record; and Mellen, J. excluded the evidence. The jury returned a verdict for the defendant, and the plaintiff alleged exceptions to this ruling.</p> <p>This case was argued at a former term.</p>

<p>A judge of an inferior court, acting in a case of which he has no jurisdiction, or exceeding his jurisdiction, is liable in damages to any party injured.</p> <p>Thus, a justice of the peace, who, in the course of the trial of a case of which a police court has exclusive jurisdiction, commits a witness to prison for contempt, is liable to an action by the witness.</p> <p>As the police court of Lowell has exclusive jurisdiction of all offences committed within that city, a record of a conviction, before a justice of the peace for the county of Middlesex, of an offence alleged to Have been committed in the city of Lowell, shows prima facie a want of jurisdiction in the justice.</p> <p>The record of a conviction by an inferior court must show, in order to protect the justice from liability to a person imprisoned pursuant to such conviction, that the case was within the limits of his jurisdiction.</p>

<p>Action of tort against Asahel Huntington and George F. Farley. The declaration alleged that, at October term 1843 of the court of common pleas for this county, a complaint for perjury against Farley was examined before the grand jury, in "support of which the plaintiff was a witness, and Huntington was then and there before the grand jury as district attorney, and the defendants maliciously contrived and came to the determination to draw from the plaintiff, while testifying on said complaint, evidence which could be used to indict him for the crime of perjury, and, in pursuance of previous concert and determination between them, Huntington inquired of the plaintiff, while testifying on said complaint, if he agreed to pay Farley extra interest on certain contracts, to which he gave a negative answer; and afterwards, at February term 1845 of said court, the defendants maliciously contrived to have the plaintiff indicted for the crime of perjury, and, in pursuance of previous concert and determination to that effect, preferred a complaint to the grand jury, charging the crime of perjury upon the plaintiff in falsely testifying, upon said complaint against Farley, concerning an agreement by him to pay extra interest to Farley, and Farley appeared before the grand jury as a witness, and Huntington as district attorney, in support of the complaint which they had preferred against the plaintiff, by means of which an indictment was obtained charging the plaintiff with falsely testifying upon said complaint against Farley, (the particulars of which testimony were set forth in the declaration,) the defendants knowing that the plaintiff did not commit the crime of perjury charged in said indictment; and that it was procured by false representations ; that the plaintiff was arrested by order of Huntington, and put upon trial upon said charge of perjury, and by means of false testimony, sworn by Huntington and Farley on the trial, a verdict of guilty was returned by the jury against him, but was set aside, and afterwards a nolle prosequi was entered, and the plaintiff released; that he suffered greatly in his mind in consequence of said false and malicious charge, and by reason of the verdict of the jury against him, wrongfully obtained as aforesaid, by which he was put in great peril of incarceration in the state prison, and was subjected to great expense in defending himself against said false and malicious charge.</p> <p>The defendants demurred, “ because the said declaration does not state a legal cause of action, substantially in accordance with the rules of practice established by law, in this; that it does not set out any agreement to do any act in itself unlawful, nor any act, lawful in itself, but done by unlawful means.”</p>

Action of tort for malicious prosecution. At the trial in the court of common pleas, the plaintiff, in proof of the prosecution and acquittal, produced a certified copy of a complaint, and warrant, and judgment of acquittal, in a prosecution against him in the name of the Commonwealth for an unlawful sale of intoxicating liquors in Lowell, before a justice of the peace for this county, who was admitted to have had no jurisdiction of the complaint, nor authority to issue a…

Assumpsit for tolls. Plea, the general issue. Trial in the court of common pleas, before Hoar, J. when the plaintiffs introduced evidence that the defendant, who resided in Lowell, and his servants, with horses, carriages and other vehicles, within the time mentioned in the writ, often passed over the plaintiffs’ bridge from Lowell to Dracut, without paying the tolls granted to the plaintiffs by law.

<p>A witness, on cross-examination by the plaintiff, answered in the negative the following question: “ Did you not say to W. [another witness] after he had left the stand, that if you had been upon the stand in his place, when cross-examined by the defendant’s counsel, you would have said something, even if it had been untrue.” Held, that the plaintiff could not be allowed to contradict this answer by other evidence.</p>

Writ of entry, brought by the assignee in insolvency of the tenant, to recover a lot of land in Somerville. The tenant pleaded nul disseizin; and filed a specification of defence, disclaiming all right and interest in the premises, except as tenant at will of one Chamberlain.

<p>Action of tort, brought by the owners of a saw-mill, situated in the northerly part of Chelmsford on a stream called Stony Brook, being the lowest mill privilege on that stream, and about five hundred feet from its outlet into the Merrimack River, to recover damages occasioned by the erection of a stone bridge across Stony Brook by the defendants for the accommodation of their railroad, lying along and near the bank of the Memmack River.</p> <p>The case was referred, by rule of court, to three referees, to report the facts in the case to the court for their determination, and also to ascertain and report the damages to be awarded, if any, to the plaintiffs, provided the court should be of opinion, upon such statement of facts, that the plaintiffs were entitled to recover. At the hearing before the referees, the parties further agreed “ that the report of said referees shall include all damages for the erection, maintenance and future repairs of said bridge as the same now is; provided no further obstruction of the stream is made, other than such as may be caused by the present bridge; ” “ and the judgment of the court upon the award of the referees shall be final as to the right to maintain said bridge as the same now is.”</p> <p>The referees reported that for forty years or more the .occupants of the saw-mill had been accustomed to take a great proportion of their logs for sawing from the Merrimack River, through the mouth of Stony Brook and up the same, into a kind of pond or reservoir below their dam, and immediately above the place where the railroad crosses the brook; and that the defendants’ bridge was first built in 1838, on piles; and the present bridge in 1849, on stone arches.</p> <p>And the referees awarded, subject to the opinion of the court as to the plaintifis’ right to recover, and as to the- effect of certain outstanding mortgages of the plaintiffs’ estate on the sums awarded, that the plaintiffs recover of the defendants, 1st. for the damages caused by leaving some piles of the old bridge in the stream, after the removal of that bridge and the erection of the new one, and thus obstructing the passing of logs, fifty dollars; 2d, for the damages caused by obstructing the stream, whereby the water was prevented, at certain stages thereof, from passing off from the plaintiffs’ mill as freely as it had under the pile bridge, two hundred dollars; 3d, for the damage caused by it being rendered more laborious and expensive to get logs, for the use of the plaintiffs’ mill, from Merrimack River, up Stony Brook, under the stone bridge, than it had been under the pile bridge, six hundred and fifty dollars; making in the aggregate nine hundred dollars; “ said sum or sums or either of them to be in full for all past damages caused by the erection and 'maintenance of said stone bridge or any other obstruction placed by said defendants in said Stony Brook between the plaintiffs’ mill and the mouth thereof, and also in full for the right on the part of the defendants to repair, keep up and maintain perpetually said bridge, as the same now is; or to keep up, construct, repair and maintain perpetually any bridge in the place where said stone bridge now is; provided such bridge, so constructed, repaired, maintained or continued, shall cause no more obstruction to the stream or to the passage of logs than the present bridge.”</p> <p>The defendants waived all objection to the form of action; and admitted their liability, if the plaintiffs could recover in any form of proceeding, for the causes above set forth.</p>

Petition, filed at October term 1852, by four out of five children and heirs at law of Charles Wyman, late of Woburn, deceased, for partition of a lot of land in Woburn, known as “ the Hardy lot,” of which he died seized in 1836.

<p>Under counts in assumpsit for money lent, money had and received, money paid, and interest, the plaintiff filed, as a bill of particulars, an account stated between himself and the defendant, charging the defendant with the amount of certain promissory notes signed by the defendant, and overdue more than six years, with the interest accrued thereon, at the foot of which account was an acknowledgment that the balance of the account was due, signed by the defendant within six years of the commencement of the action; and the defendant pleaded the statute of limitations, and also an adjustment and settlement of “ the said notes.” JJddj that the action was brought on the notes, and not upon an account stated. And the notes having been made prior to the 1st of August 1838, although the charges of interest and the defendant’s acknowledgment of the correctness of the account were of a later date, it was further held, that a certificate of discharge under the insolvent law of 1838 was no bar to the action.</p>

<p>Action of contract upon a probate bond, in the penal sum of $10,000, executed on the 19th of September 1848, by Jefferson Taylor, administrator with the will annexed of Jonas Taylor, as principal, and the other defendants as his sureties, and conditioned, as required by Rev. Sts. c. 63, §§ 2, 8, among other things, to “ administer according to law, and to the will of the said testator, all his goods, chattels, rights and credits, and the proceeds of all the real estate that may be sold for the payment of his debts or legacies, which shall at any time come to the possession of the said administrator, or to the possession of any other person for him.” This action was brought on the 29th of September 1852, by authority of the judge of probate, for the benefit of the three minor daughters and sole issue of the testator’s son Frederick, who died before his father. The breach assigned in the declaration was the failure to pay to said daughters, upon demand, a legacy of $600, bequeathed by the testator to said Frederick, although, as the declaration alleged, the defendant Taylor had received, in his said capacity of administrator, sufficient property to pay all debts and expenses of administration and legacies, according to the terms of the will, and had rendered his account of administration, and therein charged himself with the payment of the same.</p> <p>Answer, “ that said administrator has fully administered according to law and the will of the testator, all his goods and chattels, rights and credits, and the proceeds of all his real estate, which has been sold by him as administrator for the payment of debts and legacies, which have come to his possession, and that said administrator has paid each and every legacy mentioned in said will and directed to be paid.” The defendant Taylor was afterwards defaulted.</p> <p>Thomas, J. before whom the trial was had, reserved the case for the decision of the whole court, upon the following facts:</p> <p>Jonas Taylor, by his will, dated February 7th 1837, and duly proved on the 19th of September 1848, made his two sons and his two daughters his residuary devisees, and bequeathed $600 to each of his two sons, Frederick, and Jefferson, the defendant.</p> <p>Said administrator, in his first account, allowed by the probate corut on the 3d of December 1850, charged himself with property and money received, and credited himself with various payments and charges, and also with the following: “ Retained twelve hundred dollars to pay legacies, $1,200,” meaning said two legacies of $600, and so defined in a schedule annexed to the account.</p> <p>On the 2d of March 1852, said administrator petitioned the judge of probate for leave to sell the real estate, (which was sufficient for the purpose,) for the payment of a balance which he claimed as due him from the estate. At the hearing upon this petition, all the other residuary devisees, (who, together with said administrator, had previously sold and conveyed said real estate as their own property,) appeared and objected, and offered to pay him their respective proportions of the balance claimed by him, which was $780, in order to relieve said real estate from the lien thereon for the payment of debts, &c. and to prevent its sale. This proposition was accepted by the administrator, and thereupon the judge of probate passed an order, by which, after a recital that all parties interested had had notice, and had appeared, and had agreed to contribute their proportions of the amount of the debts or claims to pay which it was proposed to sell the real estate, and their offer being accepted, the petition was dismissed. And the sum of $195 was thereupon paid to said administrator by the husband of each of the daughters of the testator, and by the guardian of the children of Frederick. The administrator on the same day rendered his second and final account, praying to be allowed “ for sundry payments made, as stated in last account,” an amount equal to all the payments, charges and legacies included in the first account, and also praying to be allowed for charges since incurred, and payments since made, and for interest on such payments; and charging himself “ with sums received, as stated in last account,” and also with each of the three amounts of $195 so received from the other residuary devisees, “ to pay balance due on the estate, so as to relieve real estate of lien, being one fourth,” and “ with amount of Jefferson Taylor, his share, $195 ; ” and thus the account was balanced; and, with the assent in writing of all parties interested, was allowed by the judge of probate on the 1st of June 1852.</p> <p>It was admitted that payment of this legacy had been duly demanded of said administrator, in behalf of said minors, on the 11th of June 1852, and that he had never paid the same to any person.</p>

<p>A married woman, who executes a warranty deed of her real estate, bearing date previously to her marriage, by the name which she then bore, with the fraudulent purpose of imposing upon some person to be affected by it, and without disclosing the fact of her marriage, does not thereby estop herself and her heirs to set up her title in the land as against her grantee, or against a purchaser from him without notice.</p>

<p>Action of contract, brought by authority of the judge of probate, for the benefit of Asa S. Lewis, administrator de bonis non with the will annexed of Moses Shattuek, against the administrator of Ann Shattuek, on the probate bond executed by her on the 6th of June 1843, on being appointed executrix of the will of said Moses, her first husband. The parties submitted the case to the decision of the court upon the following facts:</p> <p>The will of Moses Shattuek, dated November 28th 1838, and proved on the 6th of June 1843, contained the following provision : “ As to all the residue and remainder of my estate, both real and personal, of every description, wherever found, I give the use and improvement of, to my beloved wife, Ann Shattuek, so long as she shall remain my widow ; and at her decease, one half I give to my adopted daughter, Alice Ann, and the other half shall be equally divided between my own relations, my heirs at law. And if my wife Ann Shattuek do marry again, then I do take from her one half given for her use and improvement, and give the same to my adopted child Alice Ann heretofore named, to be hers forever; and the other half shall be to the use and improvement of my wife Ann Shattuek during her natural life, and then at her decease shall be equally divided between my own relations, heirs at law.”</p> <p>Alice Ann Shattuek was married to Wilbur F. Dale on the 1st of March 1846, and died on the 29th of January 1849. The said Alice and her husband, by their deed dated January 20th 1848, and duly executed and recorded, for the consideration of $4,000, granted, conveyed, released and quitclaimed to Ann Shattuek, to hold to her and her heirs, all the right, title, interest and expectation of them and each of them in all the estate, real and personal, which was of Moses Shattuck at the time of his decease.</p> <p>The hens at law of Moses Shattuck, living at the time of his death, were two brothers and five sisters, and eight children of a deceased sister. The two brothers and three of the sisters, and five of the children of the deceased sister, before September 1847, by deeds duly executed and recorded, and for a valuable consideration, conveyed to Ann Shattuck all the right, title and interest which they severally held in the estate, real and personal, which was of Moses Shattuck.</p> <p>Ann Shattuck paid all the debts of Moses Shattuck, and the charges of administration; and on the 6th of June 1846, rendered to the probate court an account of her administration, showing a balance in her hands of $13,582.51; and this account was allowed by the probate court. She has never been cited to settle any other account. On the 12th of July 1849, she was married to the defendant, and, on the 5th of July 1851, died intestate, without issue, leaving her father, Jonathan Bate-man, her only heir at law. Said balance of $13,582.51 remained in her hands at the time of her intermarriage with the defendant ; and she did not at any time pay over or account for said balance or any part thereof, otherwise than by purchasing and talcing conveyances from Dale and wife and the testator’s heirs, as above stated. The defendant in 1851 transferred and paid property and money to the amount of $2,522.94, as administrator of her estate, to Asa S. Lewis, administrator de bonis non of Moses Shattuck, and the husband of one of the two sisters of Moses who had not executed conveyances to Ann Shattuck as aforesaid. The defendant has not, as administrator of his wife or otherwise, accounted for or paid over any part of the remainder of said balance of $13,582.51; but refused to pay it over when demanded of him by said administrator de bonis non.</p>

Action of contract, on an administrator’s bond, brought for the benefit of the intestate’s widow. The answer averred that the widow was not a creditor or next of kin of the intestate, and denied that the judge of probate had ever authorized her to bring or prosecute this action.

<p>Action op tort against a field driver of Pepperell, for taking and converting two mares and one colt, the property of the plaintiff.</p> <p>At the trial, it appeared that the beasts in question, being at large' contrary to law, and having trespassed on the private inclosure of George Kendall, were taken up and impounded by the defendant, who at the same time left with the pound keeper the following memorandum: “ This certifies that I have this day impounded two mares and one colt in the town pound, under the care of Charles Crosby, pound keeper, upon complaint of Mr. George Kendall, for being at large, and claim as my fees the sum of fifty cents each, $1.50. I suppose them to belong to Mr. Joseph Sanderson. Mr. Kendall claims as damage sustained by said beasts fifty cents. Pepperell, August 5, 1852.</p> <p>William Lawrence, Field driver in Pepperell.”</p> <p>It also appeared that the defendant, within twenty four hours from the time of impounding, left at the plaintiff’s dwelling-house in Groton the following notice: “ Pepperell, August 5, 1852. Mr. Joseph Sanderson. Dear Sir: I have this day been requested to take care of two mares and one colt, which were running at large, and were trespassing upon the premises of other individuals. One is a mare of a light chestnut color with a short tail; one a mare of a dark chestnut color with a Long tail, and is a pacer when travelling ; the other is a yearling colt' of a roan color; and are supposed to be your animals. I have impounded them in the town pound, under the care of Charles Crosby, pound keeper, and left with him a bill of charges and damages. William Lawrence, Field driver</p> <p>for the town of Pepperell.”</p> <p>The plaintiff contended that this notice was insufficient under the statute, and that by reason of such insufficiency the defendant became a trespasser ab initio. But Thomas, J. ruled otherwise, for the purposes of the trial, and reserved the case, after a verdict for the defendant, for the consideration of the full court.</p>

<p>A master is not liable, under the Rev. Sts. c. 51, § 3, for the damages sustained by any party, by reason of the omission of his servant seasonably to drive the master’s vehicle to the right of the middle of the travelled part of a road, when meeting another vehicle.</p>

Action of contract, brought on the 22d of June 1852. “ And the plaintiff says, the defendant owes him ninety five dollars for barn and shed sold by the plaintiff to the defendant.” The defendant, in his answer, “ says, that he did buy of the plaintiff the barn and shed, declared for in the plaintiff’s writ, for the sum of ninety five dollars; but that it was agreed by and between the plaintiff and defendant at the time of the purchase of said barn and shed, that the…

<p>Under the provisions of the seventh and eighth chapters of the revised statutes, a tax on real estate, assessed to the mortgagor in possession, constituted a lien on the whole estate, and a sale of the estate, for non-payment of the tax, passed to the purchaser not only the equity of redemption, but also the rights of the mortgagee.</p>

<p>Bill in equity, in which the plaintiff alleged that on the 2d of August 1852 Asher Parlin, being seized of a lot of land in Natick, contracted with Decatur Mowry for the sale thereof to him for the sum of $2,700, of which Mowry paid $500; and Parlin, at Mowry’s request and under his duection, on the same day conveyed the land to the plaintiff, to hold in trust for Mowry, and to convey to Mowry or his legal representatives, when requested; that the plaintiff had no part in the negotiation for the purchase, and paid no part of the consideration ; that on the same day the plaintiff executed a mortgage of the land to Parlin, to secure the payment of the remainder of the purchase money; that on the 18th of October 1852 Parlin sold the mortgage to Harding Partridge, one of the defendants, and received from him the consideration therefor, but, at Ms request and under his direction, assigned the mortgage to the other defendant, William B. Partridge; that on the 18th of February 1853 William B. Partridge, by his attorney Harding Partridge, entered upon and took possession of the land for breach of condition of the mortgage and to foreclose the same, and had since continued in possession; that Mowry occupied the land from the time of Parlin’s conveyance to the plaintiff until such taking possession; and that Harding Partridge, knowing all these facts and circumstances, and being particularly informed of the relation subsisting between the plaintiff and Mowry with regard to the land, on the 24th of March 1853 obtained from the plaintiff a quitclaim deed of the land, by false and fraudulent representations that Mowry wished and authorized it; and that nothing was paid as a consideration for said deed. And the bill charged the two defendants with combining and confederating together fraudulently to prevent the plaintiff from redeeming the land from the mortgage.</p> <p>The bill then prayed for an account of the sums due on the mortgage, and of the receipts and expenses on account thereof, and that the plaintiff might be permitted to redeem the same upon paying the amount found to be due; and also that the deed obtained from him by Harding Partridge might be set aside and declared null and void ; and that the defendants might be restrained from «alienating the land.</p> <p>William B. Partridge demurred generally to the bill.</p>

<p>Action of tort against the assignee in insolvency of John Gooch for the conversion of two hundred tons of red ash coal and two hundred tons of white ash coal. Trial before Metcalf, J. who reserved the case for the decision of the court upon the following facts:</p> <p>On the 14th of September 1852, Gooch, in order to secure the plaintiff for his indorsement of a promissory note of §1,900 for Gooch’s accommodation, gave him a note of like amount, secured by a mortgage of “the goods, chattels and personal property hereinafter specified, to wit,- two hundred tons of red ash coal and two hundred tons of white ash coal, the same now being on the wharf in said Cambridge, occupied by me, commonly known as Daniel’s wharf.”</p> <p>At the time of the making of this mortgage, there were on the wharf about five hundred tons of red ash coal and five hundred of white ash coal, the property of Gooch, all lying in one pile, but the two varieties substantially separated by a partition of boards. Some additional coal afterwards arrived on the wharf, and part of that was sold by Gooch before the 28th of April 1853, but none of the coal, which was on the wharf when the mortgage was given, was sold before that date.</p> <p>On the 28th of April 1853, the plaintiff took possession of said coal, by going on or near the pile, and declaring to Gooch that he took possession; and gave the notice required by the statute for foreclosure, which was duly recorded on the same day; and requested Gooch to sell the coal for him, which Gooch agreed to do, but had only sold of this pile some five or six tons, when, on the 9th of May 1853, he filed his petition for the benefit of the insolvent laws. On the 21st of May 1853 the defendant was appointed assignee of Gooch, and took possession of all the coal on the wharf, and ordered Gooch to sell it on his account, which Gooch did.</p>

<p>Action of contract on a bond, given pursuant to Rev. Sts. c. 49, § 1, and conditioned that Hale should appear at the next court of common pleas, and answer to the complaint of Hannah J. Abbott, then sole, now the wife of George W. Towns,' accusing Hale of being the father of a bastard child of which she was pregnant, and should abide the order of said court thereon.</p> <p>The parties submitted the case to the decision of the court upon a statement of facts, in which it was agreed that Hale appeared at said court, and answered to the complaint, and upon a trial before a jury was found guilty, and adjudged by the court to be the father of the child; and it was ordered by the court that he should stand charged with the maintenance of the child, with the assistance of the complainant, and should pay certain sums at certain times, specified in the order, towards such maintenance, and should give bond, with sufficient sureties, to perform this order, and also to indemnify and save harmless, against all charges of maintenance, any town which might be chargeable with the maintenance of the child, and that he should stand committed until he should give such bond. It was also agreed that Hale, being then in court, was committed to prison under this order, and there remained until he was released by the jailer upon receiving a written release and discharge, signed by the female plaintiff, by her maiden name, since her marriage, and while she was still under age.</p>

Action of tort for the conversion of a bull. Answer, denial of property of the plaintiff, and of the conversion.

<p>Action of contract, commenced on the 17th of February' 1853, against the executor of Sylvester Bemis, to recover a legacy claimed by the plaintiffs under the following clause in the "will of said Sylvester: “ I give and bequeath to my beloved daughter, Polly Howe, the amount of a certain note which I hold against Elias Howe, husband of the said Polly; said note is dated April 10th 1830; to be paid by my said executor as soon as convenient after my decease.”</p> <p>At the trial in the court of common pleas, there was evidence that the plaintiffs had demanded payment of the amount of said legacy, in money, which the defendant refused; and that the defendant, within a year after the death of the testator, tendered the note to the plaintiffs, as payment of the legacy. Hoar, J. ruled that the legacy must be construed to be of the note, or a discharge of the debt, and not of a sum of money for which an action could be maintained. The jury returned a verdict for the defendant, and the plaintiffs alleged exceptions.</p>

<p>Action of tort, against a constable of the town of Boxborough, for neglecting to serve and return a writ sued out by the plaintiff, and committed to him for service. Answer, that the defendant, when said writ was committed to him, was not a constable of-Boxborough, qualified to serve civil process therein, inasmuch as he had not given the bond required by St. 1851, c. 94, § 2.</p> <p>At the trial, in the court of common pleas, the plaintiff proved that the defendant brought to the office of the plaintiff’s attorney the note described in said writ, and said that he was a constable of the town of Boxborough, and induced the plaintiff to have said writ made, and engaged to serve and return it, and took it for service ; but never served or returned it. The defendant proved that he was chosen constable of Boxborough before the passage of the St. of 1851, c. 94, but had never given the bond prescribed by that statute.</p> <p>The plaintiff contended that the statute of 1851 did not apply to a constable chosen before it was passed; and also that the defendant was estopped by the above facts to deny that he was a constable duly authorized to serve writs. But Wells, C. J. ruled that, if the defendant had not given bond, he was not liable in this action, and so instructed the jury, who returned a verdict for the defendant. The plaintiff alleged exceptions to this ruling.</p>

<p>An officer, who, at the request of the judgment creditor, commits a debtor on execution tfc the jail farthest from his residence, although requested by the debtor to commit him to a nearer jail in the same county, is not liable to an action by the debtor.</p>

Action of tort, brought in this court, against the sheriff of Middlesex, for the escape of a debtor committed to the jail in Lowell, on an execution in favor of the plaintiff for $377.51. Answer, that the debtor was destitute of property and unable to pay the plaintiff’s judgment or any part thereof, and that the plaintiff had not suffered any damage by the escape.

<p>Action of contract on a policy of insurance, numbered 4882, and dated June 10th 1851, whereby the defendants, a corporation established by the laws of New Hampshire, in consideration of the payment of a premium of $2.30, and the giving of a deposit note for $66.50, insured Noah A. Worcester $1,330 on his dwelling-house in Stoneham in this county, for six years, “ under the conditions and limitations contained in the accompanying articles.” The articles annexed were the act of incorporation and by-laws of the company.</p> <p>' The ■'burth section of the act of incorporation provides that “ the property insured shall be holden as security for the payment of any deposit note, and the cost which may accrue in collecting the same; and such lien shall continue during the existence of said policy and the liability of the assured thereon, notwithstanding any transfer or alienation thereof.”</p> <p>The seventh section of the act of incorporation is thus: “ When property shall be alienated, the policy thereon shall be void, and shall be surrendered to the directors to be cancelled; and upon such surrender, the assured is entitled to his deposit note, upon the payment of his proportion of the losses and expenses up to the time of such surrender: Provided, however, that the purchaser, having the policy assigned to him, may have the same confirmed for his benefit by the directors, within thirty days next after such alienation, in which case the assignee shall be liable to the conditions of the original insured, and will be required to guaranty the payment of the deposit note.”</p> <p>By the eighth article of the by-laws, “ no insurance shall subsist in this company and in or by any other company, person or persons, without the consent of the directors indorsed thereon • nor shall any policy, issued on property already insured, be valid, unless that fact be expressed in the application.”</p> <p>The parties submitted the case to the court upon the following statement of facts: On the 8th of August 1851 Worcester mortgaged the insured property to the plaintiffs to secure the payment of $525.50, with a condition to keep it insured for the benefit of the plaintiffs; and on the same day assigned this policy to the plaintiffs by a written indorsement thereon in the following words: “ The within written policy of insurance is, on pledge, hereby transferred and assigned as collateral security to F. E. Foster & Co. of Medford, Mass., with all the advantages and benefits secured to me thereby.” The defendants approved and recorded this assignment, first requiring of the plaintiffs a note in the following form: “Policy No. 4882, issued by the Equitable Mutual Fire Insurance Company to Noah A. Worcester, dated the 10th day of June 1851, having been assigned to us, in consideration thereof we hereby promise to nay said company all assessments hereafter made against said policy, agreeing hereby that the property insured shall be subject to the same lien for the payment of assessments as heretofore.” And this note was given by the plaintiffs, and is still held by the defendants, in addition to the note given by Worcester when the policy issued.</p> <p>On the 25th of February 1853, Worcester by his warranty deed alienated and conveyed the property to Orin Hersom, subject to the plaintiffs’ mortgage. On the 2d of March 1853, Hersom obtained from the Lowell Traders’ and Mechanics’ Mutual Fire Insurance Company a policy of insurance on the same property for the sum of $1,300, payable in case of loss to the plaintiffs to the extent of their claim as mortgagees. About two weeks later, Hersom informed the plaintiffs of his purchase of the property and obtaining insurance thereon. To which the plaintiffs replied that it made no difference to them, as they were insured by the defendants, and should look to the defendants until they got their money. The plaintiffs never gave the defendants any notice of the sale of the property by Worcester to Hersom.</p> <p>On the 20th of April 1853, the property insured was damaged by fire to the amount of $574, of which the plaintiffs gave due notice to the defendants. After the fire, but before the commencement of this action, Hersom, without the consent or objection of the plaintiffs, repaired the property, and made it as good as it was before.</p>

<p>Action of contract on a policy, whereby the plaintiffs were insured, under the conditions and limitations expressed in the rules and regulations thereto annexed, $2,500 against loss or damage by fire, for one year from the 18th of January 1853, on lumber, lime, nails and lead in their two stores on then- wharf at Weymouth. One of the rules and regulations annexed to the policy was this: “Art. 10. Whenever the circumstances disclosed in any application shall become so changed as to increase the risk, the policy thereon shall be void, unless the insured make a new and full representation to the directors, and pay such further premium and deposit as they shall determine.”</p> <p>The plaintiffs, in their application for insurance, which was expressly made a part of the policy, represented that the stores . were used for storing lumber, &e. and that one room in one of them was used as a counting room. The ' application also contained the following question and answer: “ How are the buildings warmed, and how are the stove pipes seemed ? Number of stoves, if any ? ” Answer. “ Counting room warmed with coal stove. One stove. Funnel and stove well seemed. No lights used in the budding, evenings.”</p> <p>The question of the liability of the defendants was submitted to the court upon the following facts: On the 17th of September 1853, the schooner Statira, having on board a cargo of lumber of the plaintiffs, when near their wharf, got aground and filled. The beds and bedding on board, having been brought on deck, and being wet with the rain, were, by the plaintiffs’ permission, removed into the store in which the counting room was. The vessel was then lightened, hauled into the wharf, and made fast. About midnight, one of the plaintiffs, at the request of the captain and crew, gave them permission to sleep in the counting room, but told them that they should not make or use any fire or. light, or even smoke. There was a stove in the counting room, the funnel of which passed through the loft overhead, used for storing lumber, but was not then in a safe condition. The captain and crew, being wet and cold, disregarded the prohibition of the plaintiffs, and made a fire in the stove, which, in consequence of the defect in the funnel, quickly communicated to the building and lumber above, and so destroyed the property insmed.</p>

<p>A notice to quit and deliver up premises, held under an oral lease, which does not state or describe the cause for which it is given, nor the time when the tenant is required to quit, is insufficient to determine the lease.</p> <p>The notice, equal to the interval between the days of payment of rent, required by Rev. Sts. c. 60, § 26, to determine an estate at will, must 'be to quit at the expiration of such an interval; but this rule does not apply to the case of a fourteen days* notice to quit for non-payment of rent, whether given to determine a lease at will, pursuant to Rev. Sts. c. 60, § 26, or a written lease, pursuant to St. 1847, c. 267, § 1.</p>

<p>Ibe regularity and sufficiency of the appointment of an administrator, by a probate court having jurisdiction to appoint one on the estate, cannot be drawn in question in an action, brought by the administrator against a stranger, to recover a debt due to the intestate.</p>

<p>The provision in § 8 of the act incorporating the Essex Company, and authorizing them to construct a dam across the Merrimack River, (Si. 1845, c. 163,) that “ any person who shall be damaged in his property by said corporation, in cutting or making canals through his lands, or by flowing the same, or in any other way in carrying into effect the powers hereby granted, shall have the same remedies as are provided by law, for persons damaged by railroad corporations, in the thirty-ninth chapter of the revised statutes,” has reference not only to the form of remedy, but also to the limitation of “ three years from the time of taking the land,” imposed by Rev. Sts. c. 39, § 68. And an application cannot be made to the county commissioners, after the expiration of three years from the completion of the dam, to estimate the damages occasioned by such flowing, even though such damages did not occur, and could not be foreseen, before the expiration of said three years.</p>

<p>D. and the Proprietors of the Middlesex Canal entered into “ articles of agreement, grant of land, and covenants,” by which, after reciting that said proprietors, pursuant to their charter, had taken certain land of D., described by metes and bounds, part of the T. II. Farm, for the purposes of their canal, D., in consideration of the payment of the sum assessed for the damages occasioned to him by such taking, and of an additional sum “ in lieu of erecting and maintaining bridges," released and conveyed to said proprietors “ the aforedeseribed piece of land, lying on both sides the trunk of the said canal, for the purposes of being used and improved as appurtenant to said canal, so long as sai 1 canal shall be continued, and no longer; to have and to hold the same described and bounded land to them the said proprietors, and to their heirs and successors, so long as the same maybe used and improved as appurtenant to said canal as aforesaid; ” and released them from “ all claim for damages and expenses for building and maintaining bridges over the said canal, within the limits hereinbefore described." Held, that these articles conveyed to the proprietors of the canal an easement only in the land described, for the purposes of their canal, and during its continuance; and that a subsequent conveyance by D. of the T. H. Farm, “ excepting such parts thereof as have been conveyed to the Middlesex Canal Corporation,” passed a fee in the whole farm, subject only to such easement.</p>

Elbridge Marshall, summoned as trustee of the principal defendant, in his first answer, filed at September term 1853 of the court of common pleas, said that, at the time of the service of the writ upon him, he was the executor, duly appointed and qualified, of the last will of Joel Marshall, who died on the 11th of April 1853, and by said will bequeathed a legacy of $1,000 to the defendant, to be paid in one year after the testator’s decease; and that he had in his hands no…

Trespass on the case, for enticing away Charles H. Butter field, the plaintiff’s son, of the age of sixteen years, from his employment and service, (which were known to the defendants,) and receiving him into their employment, and sending him to sea in the ship Saratoga on a whaling voyage. Plea, not guilty.

<p>A father may recover compensation for services performed by his minor son, in unlawfully selling intoxicating liquors, if he did not know the character of those services, while his son was performing them.</p>

<p>A negotiable promissoiy note, part of the consideration of which is liquors unlawfully sold, is wholly void, in the hands of the promisee; and the mere giving of such a note, in discharge of a claim on a third person, is not a payment of the claim, which will enable the giver to recover of such third person the amount of the note, in an action for money paid.</p>

<p>Where the defendant admits the plaintiff’s cause of action, and the only issue for the jury is on the defendant’s declaration in set-off, the plaintiff is still entitled to open and close the case.</p>

At the trial in the court of common pleas, before Bishop, J. of an action of tort for the conversion of certain castings and wrought iron, the defendants, in order to prove the execution of two written contracts between the plaintiff and the defendants, the signatures to which the plaintiff refused to admit, were compelled to call the attesting witness, and called him for this purpose only, and asked him no other questions. “ The plaintiff then proceeded to examine the…

<p>Action of tort, brought by an inhabitant of West Cambridge, for the interruption of his right, of taking fish in Mystic River. The defendant justified as the servant of Joseph Teel, the owner of land on the bank of the river.</p> <p>At the trial in the court of common pleas, it was in evidence that the plaintiff was the lessee of a large tract of land bounding upon Mystic River, on the southerly side thereof, in that part of West Cambridge which was set off from Charlestown by Si. 1842, c. 24; that on this land was a dry beach, which had been used and improved by the owner of this land for ten years, for fishing with a seine and weir, and at which the seine was always hauled on shore; and that the plaintiff, on the day mentioned in the writ, had a weir established in and across the river at this place, which consisted of a row of stakes driven into the bottom of the river six feet apart, to which a stanner, or upright net across the river, and seine, or drag-net, were attached, when fishing.</p> <p>It also appeared that Mystic River was a navigable river, in which the tide ebbed and flowed; that Joseph Teel was the owner of a large tract of land on the northerly side of Mystic River; and that the defendant, as Teel’s servant and under his direction, went upon the flats appurtenant to said land, below the plaintiff’s weir, and there drove down stakes for the purpose of preventing the plaintiff’s fishing as aforesaid; and that this was the trespass complained off.</p> <p>Upon this evidence, Hoar, J. instructed the jury that the plaintiff could not recover. A verdict was returned for the defendant, and the plaintiff alleged exceptions.</p>

Petition for a jury to assess the damages sustained by the petitioner by the taking of his land to straighten a highway in Medford.

Petition for the assessment of the damages sustained by the petitioner, by the location of Ferrin Street, in Charlestown, over the passage way mentioned in a deed from Nathan Tufts, the petitioner’s ancestor, to Samuel Ferrin, dated March 18th 1826, of a parcel of land on Bunker Hill Street, “ bounded and measuring as follows: Beginning at the northerly corner thereof at said Bunker Hill Street, on a passage way two rods wide, which is to be laid out between the premises and…

Petitions for a jury, to estimate the damages sustained by the petitioners by the locating anew of Salem Street in the town of Reading, and establishing its boundary lines, and making alterations in the course and width thereof, on the application of said town, under Rev. Sts. c. 24, § 9.

<p>When the number of shares in the stock of a corporation is fixed by its charter, an assessment, made before the whole number of shares is subscribed for, is invalid, although the remainder of the shares be subscribed for on the same day, after the dissolution of the meeting of directors at which the assessment was made.</p> <p>A sale of shares in a railroad corporation, for non-payment of several assessments, one of which is illegal, is void, and the corporation cannot recover the amount of the deficiency in the price obtained to pay the assessments, in an action on Rev. Sts. c. 39, § 53.</p>

<p>Objections to the competency of interrogatories and answers in a deposition may be first made at the trial, where the deposition is taken in an another state, pursuant to an agreement of the parties that it may be taken, in answer to the interrogatories and cross interrogatories annexed to the agreement, before a certain magistrate.</p> <p>A mutual fire insurance company, in an action brought by them against one of their members, to recover assessments on a deposit note, are bound to prove not only the making of the assessments, but that they were made pursuant to their act of incorporation and by-laws.</p>

<p>Interest of a juror, if known to counsel before the trial, although not known to his client until after verdict, is no ground for granting the client a new trial.</p>

Action of tort, brought by an infant, by Dr. Simeon D. York, his father and next friend, for slander, in charging the plaintiff with larceny, by the following words: “ The trouble was instigated by Dr. York. I discharged his boy for being dishonest, for stealing.

<p>Before the passing of the St. of 1855, c. 137, § 6, this court had no power to grant alimony until after a decree of divorce.</p>

Action of contract against the executor of Dexter Hildreth, on a debt of his testator.

Indictment for publishing in the Medical Expositor, a newspaper published in Lowell, a libel “ of and concerning Andrew M. Smith, and of and concerning the supposed treatment of the said Smith’s female patients, containing divers false, scandalous, malicious and defamatory matters and things of and concerning the said Andrew M. Smith, according to the tenor following: ” The libel was then set forth in the indictment.

At the trial of the defendant, before the chief justice and Justices Metcalf and Bigelow, on the 25th of May 1855, for the murder of James L. Warren, there was evidence tending to prove an assault by the deceased upon the defendant, immediately before the striking of the mortal blow.

<p>Action of tort on St. 1851, c. 98, brought by the plaintiff “ as well for the town of Falmouth as for himself.” “ And the plaintiff says, that the said Prentice Lamphere, on the twentieth day of July last past, did set, draw and stretch a seine for taking fish in the Waquoit Bay, in the waters thereof, within the limits of the said town of Falmouth, contrary to the statute in such case made; by which the said Lamphere has forfeited a penalty of not less than twenty dollars, nor more than one hundred dollars, to be recovered one half to the use of said town, and the other half to any person who shall prosecute for the same; whereby this action hath accrued to the plaintiff to recover said penalty, one half to the use of himself as prosecutor, and the other half as aforesaid.”</p> <p>The defendant, in his answer, and at the trial in the court of common pleas, denied the plaintiff’s right to maintain an action for the penalty, in this form. But Sanger, J. ruled that the action was properly brought by the plaintiff in his own name. To this ruling the defendant alleged exceptions.</p>

<p>Where a town, yearly, for four successive years, charges a collector of taxes in account with the amount of taxes intrusted to him for collection, and with the balance of the previous year’s account, and credits him with the money received from him, and with the balance carried to the next year’s account, and no other appropriation of the sums paid by him is made by either party, they will be applied to the extinguishment of the earliest charges; and the balance of each year’s account, except the last, being thus extinguished, the town may recover the final balance of him and his sureties in an action on his bond for the fourth year.</p> <p>It is no defence to an action by a town on the bond of a collector of taxes, to recover money received by him for taxes, and not paid to the town, that the tax list did not state the places of abode of non-residents, as required by Rev. Sts. c. 7, § 31; or that the warrant directed him to commit for non-payment sooner than authorized by Rev. Sts. c. 8, § 11; or that the assessors did not deposit the tax list, nor an attested copy thereof, in their office, before committing the taxes to him for collection, as required by Rev. Sts. e. 7, § 29.</p>

<p>Action of tort for diverting water from the plaintiffs’ millpond in Easton. The case was submitted to the court upon the following statement of facts :</p> <p>Josiah and Horatio Copeland, on the 10th of May 1825, conveyed their interest in a factory and water privilege to the Easton Manufacturing Company, together with the privilege of flowing all the land that either of the grantors then owned, which could be flowed with the height of the dam and saw mill flume, as it then was, which is also its present height. The Easton Manufacturing Company conveyed the factory and privilege to Shepard Leach, from whom, by mesne conveyances, they have since become the property of the plaintiffs.</p> <p>Josiah and Horatio Copeland, at the time of making their deed to the Easton Manufacturing Company, each owned land on the northerly side of the factory pond. Josiah Copeland conveyed away his land on that side of the pond, in 1836; and his grantee, in 1838, conveyed the same to Caleb Swan, who has since continued to own it. Horatio Copeland conveyed away his land on that side of the pond in 1834; and the defendants acquired his title in 1838, and have since held it. All these convey anees were made expressly subject to the right of flowage granted to the Easton Manufacturing Company by said Copelands.</p> <p>Leach, while he owned the factory and privilege, in 1831, gave to Josiah and Horatio Copeland an oral permission or license to erect, on their land, a dam or embankment across the mouth of a cove that was formed by the water raised by the factory dam, for the purpose of excluding the water from certain parts of their land; and said Copelands made such a dam or embankment, at their own expense, which remained, and effected the purpose for which it was built, until September 1853. In the same year (1831) Leach also gave said Copelands an oral permission or license to dig a ditch across his (Leach’s) land, now owned by the plaintiffs, for the purpose of draining the water of the factory pond which might accumulate on their land, after the erection of the dam or embankment by them. This ditch was dug by them, and continued till September 1853.</p> <p>In June 1853, the plaintiffs gave written notice to the defendants and to Caleb Swan, requesting a discontinuance of said ditch and a removal of the dam or embankment, and revoking the license under which the same was made. The defendants did not discontinue the ditch nor remove the embankment; and in September 1853, the plaintiffs stopped the ditch, at a place in their land, and made an incision in the embankment, on the defendants’ land; and the water from the factory pond then flowed over the defendants’ land and Swan’s land, as it did from 1825 to 1831, before the embankment was made. The defendants thereupon dug a ditch on their own land, (Swan contributing to the expense thereof,) through which all the water, which flowed through the incision made by the plaintiffs in the dam or embankment, was drained off from the defendants’ and Swan’s land into the stream below the plaintiffs’ factory and pond.</p> <p>For diverting the water through this last ditch from land that the plaintiffs claim as part of their mill-pond, this action is brought. The parties agree that if the plaintiffs had a right to make the said incision in the dam, and are entitled to recover, they shall have judgment for one dollar damages and full costs, if they are not entitled to recover, they are to become nonsuit.</p> <p>This case was argued at Bo'ston on the 17th of January 1854.</p>

<p>Action of contract to recover “ five hundred dollars, for one year’s services as the minister of said society, to wit, from the first Sunday in January in the year 1851 to the first Sunday in January in the year 1852, agreeably to an agreement made with said society.”</p> <p>The defendants, in their answer, denied that they made any agreement with the plaintiff for his services as minister for .the time mentioned in the declaration, or that they owed him any thing for such services, or that he ever performed such services; and alleged that if any such agreement was made, the plaintiff, for many years previously, by reason of immoral conduct and habits of falsehood, had disqualified himself from performing pastoral and religious duties, and was thus incompetent to enter into an agreement which would be binding on the defendants.</p> <p>At the trial in this court, before Bigelow, J. the plaintiff gave in evidence “ An act to establish the Fourth Congregational Society in the town of Plymouth,” St. 1815, c. 89; and called Ezekiel Morton, who produced a book of records, and testified that they were the records of a body of people who called themselves the Fourth Congregational Society in Plymouth, and that he was their clerk; but whether they were duly incorporated, or whether he was legal clerk, he did not know. The defendants objected to the introduction of the book, unless the plaintiff first showed an acceptance, by vote, of the act of incorporation, and a due organization under it. Upon inspection of the book and proof, it appeared that the defendants had acted as a corporation in fact from the year 1818 ; and the judge ruled that, upon the pleadings in this case, this objection was not open to the defendants.</p> <p>There was also evidence of the following facts: On the 30th of November 1850, the plaintiff, who had been the only minister of the defendants since the act of incorporation, employed from year to year under annual votes, was invited by them, by vote, “ to preach one year, commencing January 1st 1851, to January 1st 1853,” and gave them written notice of his acceptance of the invitation; and in January 1851 entered upon the discharge of his pastoral duties, and preached until the early part of March 1851. On the 8th of March 1851, the defendants passed the following votes: 66 Voted, That it is the opinion of this society, that the doings of the meeting of the 30th of November last past are not binding, and that the clerk erase the record thereof from the parish book. Voted, That Messrs. Calvin Bearse and . Joseph Morton be a committee to wait on Mr. Whit-more, and inform him that the society wish him to vacate the pulpit, until some action of the church; and that a copy of this vote be sent to Mr. Whitmore.” The plaintiff, on the 13th of March 1851, in writing, tendered his services to the defendants for the year 1851, and on the 14th of March received a written reply, refusing to recognize the existence of any agreement between them. On Sunday, the 16th of March, the plaintiff, when proceeding up the aisle of the defendants’ church towards the pulpit, "to perform religious services, was prevented from entering the pulpit by two of the parish, claiming to represent the parish committee; and retired from the church with a large number of the parish, and performed religious services in a neighboring school house, and continued during the year to preach to such of the parish as chose to attend, and to perform such other . pastoral services as were required of him, for which no compensation was paid to him.</p> <p>In support of the last ground of defence set forth in the answer, the defendants offered to show that the plaintiff had been guilty of habitual falsehood and of certain acts of immorality previously to November 1850; and that these acts were not then known to the defendants. The plaintiff did not object to the admission of this evidence, but expressed a readiness to meet the charges. But the judge ruled that these acts, if proved, would not constitute a defence to this action upon a contract subsequently made between the parties, and rejected the evidence.</p> <p>The jury returned a verdict for the plaintiff; and the presiding judge reported the case for the consideration of the full court".</p> <p>This case was argued at Boston on the 19th of January 1854.</p>

Action of contract on a recognizance, entered into by Alden as principal, and the other defendant as surety, before the police court of New Bedford, reciting the recovery of judgment by Davis against Alden, in said court, on the 12th of January 1852, for the possession of a certain building or store in Fairhaven, and for costs of court, and an appeal by Alden from said judgment to the next court of common pleas; and conditioned that Alden should prosecute said appeal to…

<p>Action of contract, brought by the assignee of Benjamin Harlow, an insolvent debtor, upon the following account, annexed to the writ:</p> <p>“1852. Town of Wareham to Benj. Harlow, Dr.</p> <p>(1) March 8th. One day’s service, to meet the Plymouth herring committee,.......$1.25</p> <p>(2) “ 27th. One half day’s service with committee at the Green,......, . 62g</p> <p>(3) “ “ One half day to sell the privilege, . . . . 62J</p> <p>(4) June 1st. Twenty two days’ watching and inspecting the Agawam and Halfway Pond Herring Bivers, . 27.50</p> <p>(5) “ Cash paid for horse and carriage to Plymouth, on the business of the town, .... 3.00</p> <p>$33.00 ”</p> <p>At the trial in the court of common pleas, before Sanger, J. the plaintiff gave in evidence “ An act to regulate the fishery in the Agawam and Halfway Pond Rivers,” (St. 1838, c. 19,) the first section of which requires that “the towns of Plymouth and Wareham shall annually, at their meetings in the month of November, respectively choose by ballot a committee of not more than three persons each, who shall be sworn to the faithful discharge of their duties, in the manner of other town officers; which committee shall, in the month of March, annually, aftgr a public notice of at least ten days, sell by public vendue the privilege of taking the fish called alewives and shad, in the Agawam and Halfway Pond Rivers.” That act also authorizes the committees to regulate the time and manner of fishing, and to remove obstructions to the passage of the fish ; and provides that the proceeds of the fishery shall be equally divided between said towns ; and that the committees “ shall receive, out of the proceeds of said fishery, one dollar and twenty five cents each, for every day’s service they may be actually engaged in performing the duties herein required of them.”</p> <p>-It was admitted that Harlow had been duly chosen by the town of Wareham, and sworn, as one of said committee; and that the towns of Plymouth and Wareham had each received, from the proceeds of the fishery for 1852, more than enough to pay for the services and charges of the whole committee. The defendants contended, in then’ answer, and at the trial, that this action could not be sustained, by reason of the non-joinder of the inhabitants of Plymouth as defendants. But the judge ruled otherwise.</p> <p>The plaintiff offered evidence tending to show that the services, charged in the fourth item of the account, for watching and inspecting the rivers, were actually performed. The defendants objected, on the ground that these services were not within the duties required by the statute. But the judge admitted the evidence, and instructed the jury that if they believed the services were rendered, and were necessary or proper to prevent violation of the statute, they might find this item for the plaintiff.</p> <p>In support of the fifth item, the plaintiff, against the objection of the defendant, was allowed to introduce evidence tending to show that “ Harlow, while in the discharge of his duty as an inspector, was assaulted, and that an attempt was made to throw him into the river; that he consulted the other members of the committee, and that they considered it necessary that criminal proceedings should be instituted against the offenders; that the magistrate, before whom the complaint was to be made, was then in Plymouth, attending court, and that this item was for cash paid for carriage hire, in going to Plymouth to make the complaint.” And the judge instructed the jury, “ that if they were satisfied that the course pursued by Harlow was necessary or proper to enable him to discharge properly the duties required of him by the statute, and that it was necessary that he should go to Plymouth and make the complaint, and that the charge was a proper charge, then they could find that item for the plaintiff, as in that case it would be an expenditure properly incurred in the discharge of his duties under the statute, and properly charge able to the town.”</p> <p>The jury returned a verdict for the plaintiff for the whole amount claimed, and the defendants alleged exceptions.</p>

<p>A testator, by his will, gave his estate to his executors, in trust, after the payment of debts and legacies, to pay over the same to his children in equal shares; and directed that the share of one of his daughters should not be paid to her during the lifetime of her husband, but should be held for her sole and separate use, and so much thereof be paid to her from time to time as the trustees should judge necessary or proper; and that, after the death of her husband, the balance of her share should be paid to her, if living; otherwise, to her surviving children, in equal shares; or, if she should leave no children, to the testator’s heirs at law. Seld, on the death of the daughter before her husband, that her share was to be held in trust until his death, and then be paid to those of her children who should survive him.</p>

Action of contract, brought by the only surviving son of Ann Griswold, a daughter of the late John Heard, against the trustee and executors… Held: and the income thereof from time to time to be paid over to my daughter Frances Maria Winthrop, during life, for her own use, upon her separate receipt; and upon her death, I give this third of the residue of my estate to her children.” “ The remaining third part of said residue I give to the children of my daughter Ann, to be…

<p>The remedy by writ of scire facias to obtain a new execution, given to the judgment creditor by the Rev. Sts. c. 73, § 21, when an execution, levied on real estate, has been returned or recorded, and it appears that the estate levied on was not the property of the judgment debtor, or not liable to be seized on execution, and cannot he held thereby, applies not only to cases of executions levied by metes, bounds and appraisement, as provided in the previous sections, but also to executions upon which the right of redeeming mortgaged lands has been sold, pursuant to §§ 37, 38; and in either case no action lies on the judgment.</p>

Action of contract, commenced on the 5th of October 1853, on a witnessed promissory note, made by the defendant’s intestate on the 9th of May 1845, and payable on demand. Answer, the statute of limitations of 1852, c. 294, passed on the 20th of May 1852, and which took effect on the thirtieth day thereafter, by virtue of the general provision of the Rev. Sts. c. 2, § 5.

<p>A policy, on property represented in the application to be unincumbered, issued by a mutual fire insurance company, under the conditions and limitations expressed in their by-laws, one of which is that “ unless the applicant for insurance shall make a true representation of the property on which he requests insurance, and of his title and interest therein, and also all incumbrances, and the amount and nature thereof, the policy shall be void," is void, if the premises were subject to a mortgage with covenants of warranty, though the mortgage was made before the mortgagor acquired his title, and was not recorded until after the lien of the insurance company would have attached.</p>

<p>Action on the Rev. Sts. c. 104, commenced on the 19th of December 1853. At the trial in the court of common pleas, it was in evidence that the defendant held the premises under an oral lease, paying rent quarterly; and that the plaintiff, on the 16th of August 1853, signed, and caused to be served on the defendant, the following notice: “ Plymouth, August 16th 1853. To Caleb Harding. You are hereby notified to quit the premises by you now occupied, and belonging to me, situated on Summer Street, Plymouth. This notice is given for the purpose of terminating your tenancy of the said premises.” Sanger, J. ruled that the notice to quit was insufficient, and ordered a nonsuit. The plaintiff alleged exceptions.</p>

<p>in answer to an action of tort, commenced in the court of common pleas, for pulling down, taking and carrying away “a wooden building, parcel of an estate consisting of land and buildings thereon standing, then in the occupation of the defendant as tenant for term of years, the reversion whereof belonged to the plaintiffs,” the defendant admits that he pulled down and removed the building, “but whether the same belonged to the plaintiff he has no knowledge, and can neither admit nor deny, but leaves the plaintiff to prove,” and justifies the removal. 3eld, that the action, if not an action of trespass on real estate,(which it seems it was,) was an action in which the title to real estate was concerned, and that the plaintiff was therefore entitled to full costs, if he prevailed, although he recovered not exceeding twenty dollars damages.</p>

<p>Indictment for a nuisance, occasioned by the erection and maintenance of a bridge in and across the Acushnet, a navigable river, flowing between the city of New Bedford and the town of Fairhaven, and thereby filling up and obstructing the navigation of the river. The indictment was found at June term 1852 of the court of common pleas.</p> <p>At the trial in that court, before Byinglon, J. the defendants admitted that they had erected and maintained a bridge across the Acushnet River; that the bridge was so far an obstruction to the navigation of the river, that its erection and maintenance could only be justified under an act of the legislature; and that, without such justification, they would be subject to a prosecution of some kind. But they contended that they were not liable to indictment.</p> <p>The defendants gave in evidence their act of incorporation, (Si. 1796, c. 19,) under which they acted in maintaining their bridge, and by the first section of which, after a preamble reciting that “ William Rotch and others have petitioned to be incorporated, for the purpose of building a bridge over Acushnet River, in the town of New Bedford; and it appears that a bridge over the said river will be of public utility,” William Rotch and others named are “ constituted a corporation and body politic, for the purpose of building and supporting a bridge over said river, so long as they shall continue to be proprietors in the fund to be raised for that purpose, together with all those who are, or shall hereafter become proprietors of the said fund, under the name of The Proprietors of New Bedford Bridge.” By § 3, “ for the purpose of reimbursing the said proprietors the moneys by them expended, or that may hereafter be expended, in building and supporting said bridge, a toll is granted and established, for the sole benefit of said proprietors,” according to certain rates specified. Said act also contains the following provisions:</p> <p>“ Section 5. Said bridge shall be well built, at least twenty four feet wide, of good and suitable materials, and be covered with plank or timber suitable for such a bridge, with sufficient rails on each side for the safety of passengers; and the same shall be kept at all times in good, safe and passable repair.”</p> <p>“ Section 6. The said bridge shall be erected and placed as follows, to wit: Beginning at the west side of said Acushnet River, at a place called Smith’s Point, at the east end of Middle Street in the village of Bedford, in said town of New Bedford; and from thence running to Fish Island, crossing the said island ; and from thence to Edward Pope’s Island; and crossing that island, directly on to the east side of said Acushnet River, landing between the village of Fairhaven and Oxford, in said town of New Bedford; with two suitable draws, which shall be at least thirty feet wide; one the west side of said river, in the channel-way, and the other on the east side, in the most suitable place on that side of said river; which draws shall, at all times, when the said bridge is finished, be opened, when requested, for vessels which may have occasion to pass them.”</p> <p>The attorney for the Commonwealth, in reply, offered in evi dence the act of 1851, c. 318, passed on the 24th of May 1851, by the first section of which the defendants, within six months from the passage of the act, are required to “ make, and maintain in good repair, in lieu of the present draw in that part of their bridge which crosses the channel of the river nearest to the New Bedford shore, a new draw of not less than sixty feet in width ; the westerly abutment thereof to be eight feet further to the eastward than the westerly abutment of the existing draw ; the same to be constructed in such manner as shall be approved by a commissioner, to be appointed by the Governor, for the purposes of this act; the expense of such commissioner to be paid by the said corporation.” The defendants objected to the admission of this act in evidence; but the judge admitted it; and the defendants conceded that they had not made such a draw of sixty feet in width. But they proved that the width of the present draw, both before and since the act of 1851, was thirty two feet and some inches.</p> <p>The presiding judge, “being of opinion that the several questions of law are so important or doubtful as to require the opinion of the supreme judicial court,” directed a verdict of guilty, and reported the case, with the consent of the defendants, for the consideration of this court.</p> <p>. The arguments were had at October term 1852.</p>

<p>Upon the trial of an indictment for adultery in one county with a woman named, evidence is not admissible that the defendant, after the time alleged in the indictment, cohabited with the same woman, then big with child, in another county, and called her his wife, and said that he had lived at the place named in the indictment.</p>

<p>An indictment on Rev. Sts. c. ISO, § 8, which avers that the defendant unlawfully kept and maintained a house of ill fame, resorted to for the purposes of prostitution and lewdness, is sufficient, without alleging that the house was resorted to by divers persons, men as well as women, or that the defendant kept it for lucre.</p>

Indictment on St. 1852, c. 322, § 7, for an unlawful sale of spirituous and intoxicating liquors “ to a certain person whose name is Mary Garland.” At the trial in the court of common pleas, a witness was called for the Commonwealth, by the name of Mary Garland, and appeared and testified to a sale of spirituous and intoxicating liquor made to her by the defendant; and testified, upon cross-examination, that she was then the wife of Jeffrey Morrison, having been married to…

<p>Passage money, paid in advance, may be recovered back, on the breaking up of the voyage by a peril of the sea, and the failure of the owner of the ship to send the passenger to his destination.</p>

<p>Libel for a divorce from the bond of matrimony, for fiv years’ desertion of the libellant by the respondent. The libel also set forth that the respondent, at the last November term of this court, by false testimony, fraudulently procured a divorce from the libellant for the alleged cause of adultery. “ Wherefore, in addition to the prayer, which she now submits to this honorable court, to be divorced from said Andrew as the law provides, she prays that this honorable court will hear evidence of the fraud and collusion, by means of which said libel of divorce of said Andrew was by him prosecuted, and the decree of divorce by him obtained against her, and that the same may be reversed, annulled and set aside, and all such further proceedings may be had and ordered by this honorable court as to justice and truth shall appertain.”</p>

Libel for a divorce a vinculo for desertion. Merrick, J., upon the evidence produced by both parties at the hearing, was of opinion that the libellant was entitled to a decree of divorce, as prayed for, unless the full court should be of opinion that the following facts constituted a defence : The parties were lawfully married on the 27th of December 1840, at Pawtucket in this state, where they both then resided; and continued to live together as husband and wife until…

<p>Mandamus, issued on the 25th of October 1854, on the petition of James P. Ellis. The writ recited that, at the annual meetings of the several towns in the county of Bristol for 1854, the said Ellis was duly chosen county treasurer for the year ensuing, and the votes were duly sorted, recorded and returned to the county commissioners, and opened and compared by them at their meeting at Taunton on the fourth Tuesday of September, and it was then found by said returns that said Ellis had the majority of said votes, and was then ready to accept the said office, and to give bonds, as the law directs ; that the whole number of votes so returned was 8,876, of which 4,450 were for said Ellis, 4,242 for Samuel R. Townsend, and 184 for all other persons, “ all of which by the returns made to the said county commissioners, and by the record of said commissioners, appears;” and required the respondents to declare said Ellis to have been duly elected, or show cause to the contrary thereof.</p> <p>On the 27th of October, the respondents made a return, in which they certified as follows: 1st. That said Townsend is in possession of the office of county treasurer, and is in fact county treasurer of said county; that, upon opening and com* paring the votes, it appeared that Townsend had received the highest number of votes according to the returns which were, in the judgment of the respondents, genuine and legal; and that Townsend, being a suitable person, and having accepted the office, and taken the oath and given the bonds required by law, was declared by them to be county treasurer:</p> <p>2d. That, before declaring Townsend to be county treasurer, they gave Ellis a hearing by counsel, and, after such hearing and full deliberation upon the matters of fact and questions of law involved, they did adjudicate and decide that the highest number of votes had been received by Townsend, and did de clare him to be county treasurer:</p> <p>3d. That they received returns in due form from every town and city, except Fall River, of the votes given for county treasurer at their annual meetings, which were all held in February, March or April 1854; that according to said returns the whole number of votes was 7,724, of which Townsend received 3,819, Ellis 3,723, and 182 were given for other persons, and according to these returns Townsend received the highest number of votes: That on the 12th of April 1854, the legislature passed an act, (Si. 1854, c. 257,) to go into operation from and after its passage, erecting the town of Fall River into a city, by § 28 of which it was provided that the act should be void unless accepted by the inhabitants at a general town meeting held within twenty days after its passage; that it was accepted in the manner therein provided at such a meeting held on the 22d of April, and thereupon took full effect, and the town became a city:</p> <p>That no annual meeting was held in Fall River in February, March or April, either in general town meeting or in wards; and that nothing purporting to be a return of votes at any such meeting had been received:</p> <p>That after the acceptance of the act, the selectmen of Fall River divided the city into six wards, in the manner provided by § 3 of the act; and after such division, issued separate warrants for each of the six wards, warning the voters to meet, to act on five articles specified, four of which were for the choice of ward and city officers, and the fifth “ to bring in their votes for county treasurer on a separate ballot; ” and these warrants were duly served and returned; and in pursuance thereof, meetings of the inhabitants were held in wards on the 6th of May:</p> <p>That no general meeting of the inhabitants of Fall River was held on the 6th of May, or at any other time hitherto, except the meeting for voting on the acceptance of the act; that no return, or copy of record, of votes for county treasurer, had been received by them from Fall River, except the document copied in the margin,* the signature to which they did not doubt to be the genuine signature of J. R. Hodges, who was clerk of the town of Fall River before it became a city ; that if the votes set forth in said return had been counted, the votes in the county would have been, for Ellis 4,450, for Townsend 4,242, for others 184, and Ellis would have received the highest number of votes.</p> <p>The respondents did not deny that Ellis was a suitable person, and ready to accept the office, and to take the oaths, and give the bonds, required by law; and concluded their return thus: “ But after hearing the said Ellis as aforesaid, and after due examination and deliberation, we rejected the return from Fall River, and declared the said Townsend to be county treasurer, as aforesaid. And therefore we cannot and ought not to declare the said James P. Ellis to be the said county treasurer.”</p> <p>At the hearing upon this return, before the full court, on the 27th of October,-the petitioner’s counsel proposed to read a paper, pmporting to bé the record of the proceedings of the court of county commissioners held at Taunton on the fourth Tuesday of September 1854, attested by their clerk, and filed among the papers in this case. This record was as follows: “ Upon opening and examining the returns of votes given in said county of Bristol for county treasurer for the year ensuing, the said commissioners find the said returns of votes to be as follows: ” [The number of votes returned from each of the towns and cities, except Fall River, was then stated, amounting in all to 3,819 for Townsend, 3,723 for Ellis, and 182 for other persons.] “ The return of votes given in Fall River in said county L duly made and opened, and is in the words and figures following:” [The return from Fall River was then copied as in the margin of p. 372.] “ And it appearing to said commissioners, from the return aforesaid, that the said vote of Fall River was not given within the time prescribed by law, it is therefore rejected ; and it appearing that of the votes legally given, excluding the votes of Fall River, Samuel R. Townsend has a plurality, the said commissioners declare the said Samuel R. Townsend legally elected treasurer of said county of Bristol for the year ensuing, and he is accordingly sworn faithfully to perform the duties of said office. James Sproat, Clerk.”</p> <p>“ After making up the foregoing record, and on the eighteenth day of October A. D. 1854, the following form of record was received from the chairman of said county commissioners, viz: ‘ The return received from Fall River was rejected, because the votes for county treasurer were not given in within the time required by law, and likewise because it was incorrect, inasmuch as no such town meeting as is described in the return was held that day in Fall River, the balloting having been in wards, and the votes were not sorted, counted, declared and sealed up in open town meeting by the moderator and town clerk, as alleged in said return.’ Jas. Sproat, Clerk.”</p>

Bill in equity to restrain the use of the plaintiffs’ trade marks. The case was set down for a hearing on the bill and answer, which was under oath.

<p>A conveyance of a homestead, part of which is exempt, by St. 1851, c. 340, from levy on execution, passes no title to any part of the land, if the wife of the grantor does not join in the deed.</p>

<p>Action of contract. The declaration alleged that the defendants, on or about the 1st of June 1853, contracted to sell and deliver to the plaintiff, on board vessel at Philadelphia, on demand, five hundred tons red ash egg and stove coal at the price of $3.70 per ton; and three hundred tons white ash coal at the following prices, namely, one hundred tons white ash egg coal at $3.45 per ton, one hundred tons white ash stove coal, at $3.45 per ton, and one hundred tons white ash lump coal at $3.60 per ton; and that the plaintiff, on the 16th of August 1853, demanded said coal of the defendants at Philadelphia, but they then and ever since neglected and refused to deliver the same or any part thereof. The defendants, in their answer, denied any purchase of coal by the plaintiff of the defendants, or any agreement of the defendants to deliver coal; and also relied on the statute of frauds.</p> <p>At the trial in the court of common pleas, Hale Remington, an agent residing at Fall River, of the defendants, who lived in Philadelphia, being called as a witness foi the plaintiff, testified as follows : On the 3d of June 1853, he made a verbal contract with the plaintiff, at Taunton; and on the same day, at Fall River, his clerk, by his order, entered in his book of sales, on a page headed “ Sales on account of F. Bacon & Company,” the following memorandum (which was not signed): “ Sold to B. F. Williams, of Taunton, 500 tons egg and stove red ash; 200 tons egg $3.70, 300 tons stove $3.70. Sold 200 tons egg and stove white ash; 100 lump $3.60, 100 egg $3.45, 100 stove $3.45.” On the same day he wrote a letter to the defendants, (which was produced upon the call of the plaintiff,) in which he said: “ I sold this morning to B. F. Williams, of Taunton, to be shipped to Dighton, Mass., as follows: $3.70 for R. A. and $3.45 for W. A., 300 tons R. A. stove, 200 tons R. A. egg, 100 tons W. A. egg, 100 tons W. A. stove, 700 tons, all to be delivered before August 1st. You may ship it early in July, or before, if it suits better to do so.” On the 11th of July he received J a letter from the plaintiff, asking for “ a statement of our coal engagement; ” to which he replied by the following letter: “ Fall River, 11 July, 1853. Benjamin F. Williams, Esq. Taunton, Dear Sir: Your favor of this date is before us. In reply would say, that I have agreed to sell you 200 tons red ash stove coal at $3.70, 300 tons red ash egg at $3.70,100 tons white ash egg at $3.45, 10Ó tons white ash stove $3.45, 100 tons white ash lump $3.60. The above prices to be charged deliverable on board vessel at Philadelphia. The coal is now ready for delivery, and you will please forward vessels as soon as you please, and we will put the coal on board. Our people will use all exertion to procure vessels at going rates of freight, and I presume they will succeed. If not, you must send vessels for it. Freights are now $1.50 and $1.45 to Fall River. Coal is now worth, at Philadelphia, $3.85, and I think the sooner you get your coal, the safer for you. Yours truly. Hale Remington.” On the 8th of August he signed and gave the plaintiff an order addressed to the defendants, and thus expressed: “ Please deliver the bearer, for B. F. Williams, of Taunton, Mass., coal as he may order it from time to time—red ash, egg or stove, as he may choose, 500 tons ; white ash, 200 tons, one half lump, balance egg or stove.” And there was evidence that the plaintiff, on the 16th of August, presented, this order to ¿he defendants, who refused to accept it.</p> <p>Upon this evidence, Hoar, J. ruled that the action could not be maintained, and directed a verdict for the defendants; and the plaintiff alleged exceptions.</p>

Action of tort by the owner and occupant of a mill situated on Rocky River in Rehoboth, against the owner and occupant of another mill half a mile higher up on the same stream, to recover damages occasioned by the use of the water of the stream by the defendant for his own mill, in such a manner as to interrupt and hinder the natural flow thereof, and divert it from the plaintiff’s mill.

<p>A policy, made by a mutual fire insurance company, under the conditions and limitations expressed in the by-laws, one of which provides that any previous insurance shall make their policy void, unless expressed therein, and that subsequent insurance elsewhere obtained, without their consent, shall annul the policy, is annulled by procuring such subsequent insurance without their consent, although for a less sum than a previous insurance by another company, expressed in this policy when it issued, and since expired.</p>

Action of contract on a special promise, whereby the defendant, in part payment for a conveyance to him from the plaintiff of the stock of a livery stable, promised to pay certain debts of the plaintiff. Answer, a judgment recovered by the defendant, in an action previously brought against him by the plaintiff on the same cause of action.

Action of tort for the conversion of eight promissory notes, signed by the defendant, and payable to John Eddy, the plaintiff’s intestate. Trial before Merrick, J. who made the following report thereof: Before the trial, the plaintiff moved for leave to amend, by adding a count in contract for money had and received, and alleging that both counts were for one and the same cause of action. The defendant objected, but the judge allowed the amendment.

The motion was accompanied by an offer to file a report of the evidence given at the trial.

<p>A bond to pay all the debts and legacies of the testator, given to the judge of probate by an executor and residuary legatee, who has thus been excused from returning an inven* tory within three months, cannot, after the expiration of a year and a half, be qancelled or surrendered by the judge of probate, nor by this court.</p>

<p>Petition for a writ of habeas corpus, representing that the petitioner, having been charged by complaint before a justice of the peace with the crime of adultery, was now imprisoned in the Commonwealth’s jail for the county of Bristol, by the deputy jailer, under a mittimus issued by said justice on the petitioner’s failing to comply with the order of the justice “to recognize in the sum of dollars, with a sufficient surety or sureties,” for his personal appearance at the next term of the court of common pleas, the order not mentioning the sum in which he should recognize; and that in this the mittimus was irregular, and gave no authority to imprison the petitioner.</p>

<p>A claim under Rev. Sts. c. 116, against the owner of a milldam, for damages occasioned by the flowing of lands, cannot be submitted to arbitration by an agreement made before a justice of the peace, under Rev. Sts. c. 114; and a judgment of the court of common pleas against the owner of a milldam, rendered on an award of referees under such a submission, assessing damages actually incurred by one whose lands were flowed by said dam, and annual damages for the future, is not binding on a subsequent owner of the dam.</p>

<p>A justice of the peace, who exceeds his jurisdiction, knowing the facts which constitute the defect of jurisdiction, is liable in damages to any party injured.</p> <p>Thus a justice of the peace, who, after finally disposing of a cause tried before him, com mits a witness to prison for contempt at the trial, is liable to an action by the witness. But an officer does not, by executing process, issued by a justice of the peace without jurisdiction, subject himself to an action, unless the want of jurisdiction appears on the face of the process.</p> <p>Thus a constable, who, pursuant to the unauthorized orders of a justice of the peace, arrests a witness, and takes him before the justice to answer for a contempt, and commits him to prison, is not liable to an action, unless the justice’s want of authority appears on the face of the capias or mittimus.</p>

<p>Selectmen, who, on the failure of a school district to agree where to place their schoolhouse, have determined the location thereof, pursuant to Rev. Sts. c. 23, § 30, and St. 1848, c. 237, § 1, cannot proceed to lay out the land and assess damages to the owner, without seven days’ notice to him in writing;"nor, it seems, until he has refused to sell the land or demanded an unreasonable price.</p> <p>It seemst that the owner of land taken for a schoolhouse lot under St. 1848, c. 237, “ in the same way and manner as is provided for laying out town ways,” has no such right to remove trees or fences as the owner of land taken for a town way has by St. 1848, c. 98.</p> <p>Ii seems, that the receipt, by the owner of land taken for a schoolhouse lot, of the damages awarded him by the selectmen pursuant to St. 1848, c. 237, § 1, estops him to object to the irregularity of their proceedings in taking the lot.</p>

Action of contract, commenced on the 24th of February 1854, by Obed Mirick and four others, to recover one hundred dollars, the amount of the defendant’s subscription to establish an academy at Mirickville, in the town of Taunton.

<p>in this state, a tenant in common, who has’received in money more than his share of the profits of the estate, is liable to his cotenant in an action at law for the surplus. But in order to support such an action, it must appear that the defendant has received more than his share not merely of a single article of produce, but of the entire profits of the estate, after deducting all reasonable charges; and that the balance is due to the plaintiff, and not to other cotenants.</p> <p>A mortgagee of an undivided part of land, on entering into possession, is entitled to his share of the rents and profits, although his entry be made for the purpose of foreclosure and be insufficient for that purpose.</p>

<p>Penalties incurred under St. 1852, c. 322, §§ 7,12, for unlawful sales of spirituous and In toxicating liquors, if recovered by indictment, accrue to the Commonwealth, by virtue of the Rev. Sts. c. 133, § 14, and not to the use of any city or town, as they would if recovered by action of debt.</p> <p>Clerics of courts are bound by Rev. Sts. e. 141, § 9, to pay to the county treasurer all fines received by them in criminal cases; and are not liable to actions by cities or towns to whose use the fines are appropriated by statute.</p>

<p>No action lies to recover back money paid under an erroneous judgment, which is still unreversed.</p>

Bill in equity, filed on the 27th of February 1854, setting forth an antenuptial contract between the defendant Holmes and Minerva C. Durfee, by which her personal property was secured to her separate use, pursuant to St. 1845, c. 208; averring that, after their marriage, she made a will bequeathing the greater part of said property to her husband, and appointing him executor thereof; that he subsequently did not treat her well, and that she therefore left him and returned…

<p>Libel for a divorce from bed and board for extreme cruelty. The libel, which was filed on the 18th of April 1853, alleged that the respondent, “ wholly regardless of his vows and covenants, has treated the libellant with extreme cruelty. He has, without cause, heaped upon the libellant the most vile and opprobrious abuse. He has in the grossest language accused her of the most heinous crimes, of which he knew her to be innocent. He has during their intermarriage, and without provocation, frequently inflicted on the libellant in said Seekonk [where the parties resided] extreme personal violence, and threatened to take her life.” The libel then charged specific acts of cruelty by the respondent on the libellant, at Seekonk, some of them accompanied by abusive and threatening language, at the following times: “ On the 1st of July 1848, and on divers other days between that day and the 1st of January 1849; ” “ On the 1st of March 1849, and on divers days and times between that time and the 1st of December 1849“ on the 1st of August 1850, and on divers days and times between the 1st of January 1850 and that day; ” “ on the 1st of September 1850, and divers other days and times between that day and the 1st of March 1851; ” “ on the 1st of June 1851, and on divers days and times between that day and the 1st of December 1851; ” “ on the 1st of January 1852, and on divers days and times between that day and the 1st of August 1852; ” “ on the 1st of September 1852, and on divers days and times between that day and the 1st of January 1853; ” “ on the 10th of January 1853, and on divers other days and times between that day and the 10th of February 1853“ on the 27th of February 1853, and on divers other days and times between that day and the 10th of March 1853 ; ” “ on the 17th of March 1853, and on divers other days and times between that day and the 1st of April 1853; ” “ and on the 1st of April 1853, and on divers days and times between that day and the 14th of April 1853.”</p> <p>On the 14th of October 1853, the respondent gave notice that he should require the libellant to file, at the hearing, minute and particular specifications of the days and places when and where the acts of cruelty were committed, and the abusive and threatening words used, and would object to the admission of any evidence in proof of any offence not so specified. And at November term 1853, when the case came on for trial before Merrick, J. the respondent moved that the libellant might be required to file such specifications before proceeding to trial. The judge declined so to order, and directed the trial to proceed without any further specifications; but at the same time ruled that the libellant would be held strictly to prove specific acts of cruelty; and that if it should appear at any stage of the trial that the respondent was surprised by the production of unexpected evidence, or of evidence in support of facts of which he had not been so informed as to enable him to make full preparation to answer or to meet and repel it, he would thereupon be entitled to a reasonable postponement for that purpose.</p> <p>The trial commenced in November 1853, and after the examination of all the libellant’s witnesses, and of one of the. respondent’s witnesses in part, was postponed until February 1854, when it was resumed and concluded.</p> <p>It appeared in evidence that the parties continued to live and cohabit together, as husband and'wife, until the 14th of April 1854, and occupie'd the same sleeping room and bed on the night of that day, but not afterwards. The respondent asked the judge to determine that such cohabitation was in law a condo-nation, and that therefore this libel could not be maintained. But the judge, taking the fact of such cohabitation into consideration in connection with all the other evidence in the case, declined so to determine; and, in reference to the question of condonation, did find and declare, upon the whole evidence produced by the parties, that the respondent was guilty of having treated the libellant with extreme cruelty, without provocation on her part, and as alleged in the libel; and that at the time of filing the libel “ she had just and reasonable and legal ground of apprehension that she might thereafter receive and suffer further personal injury from his assaults and violence; and that the libellant was not barred from maintaining this libel, by any con-donation, or by act or acts which constitute what is termed in law a condonation; but, on the contrary, it appeared that she continued to bear and suffer the wrongs and extreme cruelty inflicted upon her, in the hope, either that she might find herself able to endure them without public exposure of her domestic calamities; or that she might not feel herself compelled, by their repetition, to resort to legal proceedings for relief; or that, in the reformation of the conduct of her husband, he would cease to inflict those wrongs upon her; and that she did so continue to bear and forbear, down to the time of filing this libel; and that after the last time next before the filing of this libel, when the respondent, by the violence of his conduct, caused a reasonable apprehension in the mind of the libellant that she could no longer live and cohabit with him without imminent danger of suffering further extreme cruelty from his assaults, she did not cohabit with him as her husband, and that she has never done i ) since.”</p> <p>The respondent excepted to these rulings and determination : and at April term 1854, also filed a motion for a new trial for newly discovered evidence, which was opposed on the ground that the evidence was cumulative, and was known to the respondent at the time of the trial.</p> <p>The clerk prepared copies of the bill of exceptions and motion for a new trial, as well as of the affidavits filed in support of the motion, and of the depositions used at the former trial, and delivered these copies to each of the judges on the first day of this term. The case was continued nisi, and came on for argument at Boston, before all the judges but Thomas, J. on the 15th of January 1855, when the clerk moved the court that his fees for said copies might be paid or secured before the case proceeded.</p>

<p>Action of tort for breaking and entering the plaintiff’s close, and cutting.and carrying away ten cords of wood. Answer, title in Azel H. Warren, one of the defendants.</p> <p>At the trial in the court of common pleas, before Hoar, J. the plaintiff gave in evidence a deed from Simeon Warren, dated May 21st 1851, and recorded the. next day, purporting to be made in consideration of $500 paid to the grantor, and to convey the premises to Ruth F. Quindley, (then and still a married woman,) “to have and to hold the same to her, her heirs and assigns, forever, and to her and their own use and behoof forever, and to be held by her, without the intervention of a trustee, to her sole and separate use, free from the interference or control of her husband, agreeably to the statute in such cases provided.” It was admitted that the defendants could prove, if competent, that no consideration was actually paid for this deed.</p> <p>The plaintiff also proved that Mrs. Quindley occupied the premises from the time of receiving this deed until the 11th of November 1851, when she made a deed thereof, (in which her husband did not join,) to the plaintiff, in consideration of $500 actually paid to her, and this deed was duly recorded, and the plaintiff took immediate possession of the premises. The defendants offered to prove that the plaintiff knew, at the time of purchasing the premises and taking this deed, that the conveyance to Mrs. Quindley was without consideration; but the judge ruled that such evidence would be immaterial.</p> <p>The defendants gave in evidence a deed of the premises from Simeon Warren to Azel H. Warren, his son and co-defendant, dated February 4th 1852, and recorded the next day; and proved that the consideration thereof was $800, actually paid. The wood was cut by the defendants in the ensuing March.</p> <p>The judge “instructed the jury that the deed from Simeon Warren to Mrs. Quindley, the grantor not being shown to be indebted at the time, gave a good title to the grantee, against subsequent purchasers for a valuable consideration, unless intended to defraud creditors, and impeached on that ground; and that, although the deed to the plaintiff would not convey to him the estate of Mrs. Quindley in the premises, yet that she, being in occupation of them, and having the management of them, so far as the evidence showed, with the assent of her husband, orzat least without objection or interference on his part, in connection with the possession taken by the plaintiff under it, there was sufficient evidence of such a tenancy by the plaintiff as would enable him to maintain this action against mere wrongdoers without any title, such as the defendants were.” To these instructions the defendants excepted.</p> <p>“ The presiding judge, upon the authority of Beach v. Manchester, 2 Cush. 72, ruled that the plaintiff’s deed from Mrs. Quindley, and his possession under it, did not convey to the plaintiff a title sufficient to entitle him to recover the value of the wood cut and carried away by the defendants, but only damages for the injury to his possession.” The jury returned a verdict for nominal damages. And the plaintiff excepted to this last ruling.</p> <p>The arguments were had at November term 1853.</p>

<p>An order of county commissioners, passed on the petition of mayor and aldermen or selectmen, under St. 1842, c. 22, which determines that the raising of a highway at a place named, where it is crossed by a railroad on a level, so as to pas's over the railroad, is necessary for the security of the public, without defining the height above the railroad to which the highway shall be raised, the grade of the ascent, the mode and material of the structure, or the time within which it shall be made, is too indefinite to be specif! cally enforced by this court in equity under St. 1849, e. 222, § 5.</p>

<p>A hill in equity is multifarious, which seeks to redeem a mortgage of an entire estate, and a subsequent mortgage by one tenant in common of his share in a part of the estate.</p> <p>The omission to join, as a defendant to a bill in equity, the administrator of one whose death is alleged in the hill cannot be taken advantage of by demurrer, when it does not appear by the bill that there is any such administrator.</p> <p>It is no ground of demurrer that the inhabitants of the county are not made parties to a bill in equity to redeem a mortgage, which states that after the making of the mortgage a large portion of the land mortgaged was taken by the county commissioners for a high way, but does not state that any damages were sustained or claimed by the owner of the land, whose time for claiming such damages has expired.</p> <p>A prayer, in a bill in equity to redeem a mortgage, for an assignment which the court has no power to grant, is no ground of demurrer.</p>

<p>mesne assignee of a mortgage, who has parted with all his interest, is not a proper party to a hill in equity to redeem, if he has never received any rents and profits; nor, ii seem, if he has.</p>

<p>ii seems, that the following writing, signed by the highest bidder at a sale by auction, and addressed by him to the vendor, who adds thereto the words “ agreed to the within ” and his signature, is sufficient to take the sale out of the statute of frauds: “I hereby relinquish all my right and title in the estate on Ruggles Street, purchased at auction on Saturday afternoon, to T. L. provided he pays you the sum of $375 [the amount of the highest bid] and provided he agrees to take said estate on or before Thursday of the present week; and you will make your deed to said L., if be elects to take the estate, instead of making the same to me.”</p> <p>The grantee named in a deed of land, on receiving it from the grantor, gave him a written receipt, in which he acknowledged that he had received the deed, and promised to return it to him on demand, or to pay him in money the consideration named therein. Held, that the effect of the receipt was a question of law, and, no demand for a return of the deed having been made, that the title to the estate had vested in the grantee.</p>

<p>When a policy, issued by a mutual fire insurance company, is expressly made subject to the provisions and conditions of the by-laws of the company, one of which provides that, in case of loss, the insurance shall not be payable until the insured shall have delivered to the company a particular account in writing under oath, stating the nature and value of his interest therein; such an account, which does not state the nature and value of the insured’s interest at the time of the loss, is insufficient; although it states that the entire property is destroyed; and although the value of the property was stated in the “ application, which was expressly u made a part of this policy, reference thereto being had for description.”</p>

<p>A citizen cannot acquire a settlement, under St. 1793, c. 34, § 2, and Rev. Sts. c. 45, § 1, cl. 5, in the town in which he dwells and has his home, by having an estate therein, of the value required by those statutes, as tenant at sufferance or tenant at will, and being assessed therefor five successive years.</p> <p>Proof that a citizen, in the town in which he dwelt and had his home, occupied and was assessed five successive years for real estate of sufficient value, not owned by him, but of which he had a lease by indenture for one of these years, is not sufficient evidence of his having acquired a settlement in that town, under St. 1793, c. 34, § 2, and Rev. Sts. c. 45, § 1, cl. 5, to exempt another town, in which he had previously had his settlement, from liability for his support.</p>

<p>Action of contract to recover back the amount of a tax assessed by the defendants upon the personal property and poll of the plaintiff for the year 1853, and paid by him under protest The parties submitted the case to the decision of the court upon the following statement of facts, with an agreement that the court might draw such inferences fi'om these facts as might be drawn by a jury.</p> <p>“ For twenty years or more before this tax was assessed upon the plaintiff, he was the owner of a house in Boston, and of an estate and house at Brookline in the county of Norfolk; and during that period spent about seven months of each year, namely, from about the middle of April until about the middle of November, at Brookline, and the remainder of the year at Boston; he had been always taxed in Brookline for his personal property and poll, and had voted and exercised the rights of citizenship in that town. His house in Boston was always closed during that part of the year which he spent at Brookline, and his house in Brookline during that part of the year which he spent in Boston; but his gardener’s house and his greenhouse at Brookline were open during the whole year, and he visited the estate once or twice in each week, whilst he was staying in Boston. The plaintiff moved into Boston, as usual, about the middle of November 1852, with the intention of returning to Brookline, as usual, in the following spring. He was living in Boston on the first day of January 1853 with his family, and continued so to live till about the twentieth day of April in said year, when he removed to Brookline with his family. The plaintiff was taxed for his personal property and poll for the year 1853 in Brookline, as well as in Boston; and has continued to exercise municipal rights as a citizen and voter in Brookline ; and has paid the tax assessed upon him in that town.”</p>

<p>Action of contract to recover money paid by the plaintiff to the defendants, under protest, for certain taxes assessed by them upon him for the year 1851, according to three' tax bills, one made out to him individually, on his poll and personal estate; the second to him as trustee for his wife; and the third to him “ as trustee and guardian of Misses Thorndike,” in which last the only two items were, “ Real estate, $366.10,” and “ Personal estate, or income, $1,820.” Trial at February term 1853 before Thomas, J. who made the following report thereof:</p> <p>“ There was evidence that the plaintiff was the guardian of one of the Misses Thorndike, mentioned in the third tax bill, who was a minor; and that he was trustee for the two other Misses Thorndike, who were of age, and inhabitants of this commonwealth. It was in contest between the parties whether the plaintiff was an inhabitant of Boston. The plaintiff contended that, if he was an inhabitant of Boston, said tax was illegally assessed upon him, in the manner and form in which it was assessed upon him as trustee and guardian of the Misses Thorndike; and that he was entitled to recover back the whole amount so assessed, or so much thereof as was assessed upon him as trustee of the two Misses Thorndike who were of age. But the judge ruled that, if the plaintiff was an inhabitant of Boston at the time, he could not recover back the said tax, or any part thereof.</p> <p>“ In order to prove that the plaintiff was an inhabitant of Boston at said time, the defendants offered in evidence certified copies, from the registry of deeds of Suffolk County, of certain deeds, purporting to have been made to said Bourne as grantee, in which copies he was described "as of Boston. The plaintiff, admitting that these were true copies from the registry aforesaid, objected to the admission of this evidence. But the judge permitted the same to be given in evidence for said purpose.</p> <p>“ The jury returned a verdict for the defendants. If the foregoing instructions, or either of them, are incorrect, the verdict is to be set aside, and a new trial granted; otherwise, judgment is to be rendered upon the verdict.”</p>

The complainant and five other persons, whose meadows in Medway and Medfield were overflowed and injured by the water raised by a dam and flash-boards erected by the respondents across Charles River in Natick, entered complaints in the court of common pleas at December term 1843, under Rev. Sts. c. 116.

<p>A complaint or indictment, which alleges an unlawful sale of “ spirituous or intoxicating liquor," is bad for uncertainty, even after a plea of nolo contendere.</p>

<p>Complaint for an unlawful sale of intoxicating liquor “ to a certain person whose name is unknown to the complainant.”</p> <p>At the trial in the court of common pleas, at September term 1854, Joseph P. Haynes, a witness for the Commonwealth, testified that he had bought intoxicating liquor of the defendant previously to the date of the complaint; and that at that time, and for a long time previously, and ever since, the complainant nad been familiarly acquainted with him and his name. The complainant testified that he was well acquainted with the name of Haynes at the time of the trial, as well as at the time of malting the complaint, but that he did not know that the sale complained of was to Haynes.</p> <p>The defendant objected that the evidence was not competent in law to prove the allegation in the complaint; but Mellen, C. J. -instructed the jury that it was so competent, if the complainant when he made the complaint, knew that the sale had been made, but did not know the name of the person to whom it was made; and the defendant, being found guilty by the jury, alleged exceptions to this instruction.</p>

<p>A sentence to an increased penalty, imposed by statute upon a second conviction, cannot be rendered, except upon allegation in the indictment, and upon proof, of a prior con viction; and a sentence to such a penalty on the-second of two counts in the same in dictment, upon the conviction of the defendant upon both counts, is erroneous.</p> <p>A defendant, convicted upon three counts in an indictment, each charging him with a sale of intoxicating liquor, in violation of St. 1852, c. 322, § 7, is to be sentenced to a fine of ten dollars upon each count, and to give bond to the Commonwealth, not to violate, within one year, any law concerning the sale of spirituous and intoxicating liquors.</p>

<p>Evidence of an unlawful sale of intoxicating liquor to an agent, with notice that he was purchasing for his principal, will not support an allegation in an indictment of a sale tc the agent.</p> <p>One who is tried on several complaints charging him with unlawful sales of intoxicating liquors to the same person on different days, and convicted upon evidence which is sufficient to prove only one such sale, may be sentenced on either one of the complaints, and have a new trial on the others.</p>

<p>A wife, who, in the absence of her husband, though in the house in which they live and trade together, sells intoxicating liquor, under such circumstances as would, but for her coverture, prove her to be a common seller, may be indicted as such, unless it appears that she acted by his command or under his coercion or influence.</p> <p>An indictment, which alleges that the defendant was a common seller of intoxicating liquors, “ without being duly appointed and authorized therefor,” sufficiently alleges that he had no authority, under St. 1852, c. 322, as a town agent or a manufacturer, to be a common seller.</p> <p>An indictment to recover the penalties imposed by St. 1852, c. 322, § 12, on a common seller of intoxicating liquors, need not aver that an action for the same penalties has not been brought under that statute in the name of the city or town where the offence was committed.</p>

<p>Indictment on St. 1852, c. 322, § 7, containing several counts, each of which charged the defendant with a single unlawful sale of intoxicating liquor. Trial in the court of common pleas, before Perkins, J. to whose rulings the defendant alleged exceptions.</p> <p>At the trial, the defendant asked the court to instruct the jury that the Commonwealth, in order to sustain the indictment, must prove that the liquor sold was intoxicating; and that proof that the defendant sold gin was not sufficient evidence to sustain a charge of a sale of intoxicating liquor, without proof of the qualities of the article sold. But the judge ruled “ that it was necessary for the Commonwealth to prove that the article alleged to have been sold was intoxicating; but that if the article sold was gin, the jury might infer that it was intoxicating, without any evidence other than that of its properties or qualities.”</p> <p>The defendant also asked the court to instruct the jury that the attorney for the Commonwealth, in order to sustain the charges in the indictment, must show that no action of debt or other concurrent remedy, provided in the statute for the recovery of penalties, had been commenced, before the finding of the indictment, for the sales charged therein. But the judge instructed the jury that it was not necessary for the Commonwealth to offer evidence upon that point.</p>

<p>The want of religious belief in a witness cannot be shown by examination of the witness himself.</p>

<p>The objection that a case is not one which may be referred to an auditor, under Rev. Sts. c. 96, § 25, must be raised before the case is so referred; or, at the latest, before proceed ing with the examination of the case before the auditor; and cannot be taken for the first time when the auditor’s report is offered in evidence on the trial.</p>

<p>Assumpsit on a promissory note. Defence, a certificate of discharge in insolvency.</p> <p>At the trial in the court of common pleas, there was evidence of the following facts: The first meeting of the defendant’s creditors, at which assignees were chosen, and an assignment made to them, was held on the 31st of August 1847. On the 20th of October, J. A. Ferris, one of said creditors, filed a written dissent to the defendant’s discharge. On the 18th of January 1848 the assignees presented their accounts, by which it appeared that they had no funds in their hands for creditors; and other creditors, constituting with Ferris a majority in value, filed their dissent in writing to the discharge. On the 28th of February, Ferris withdrew his dissent, leaving the dissenting creditors less than a majority in value; and on the 1st of March the master in chancery granted to the defendant a certificate of discharge. Bishop, J. instructed the jury that the discharge was invalid, and they returned a verdict for the plaintiff. The defendant alleged exceptions.</p> <p>By St. 1844, c. 178, § 4, if the assets of the estate of any insolvent debtor pay less than fifty per cent, of the claims proved against his estate, he shall be discharged from all claims against his estate, (excepting fiduciary debts,) unless a majority in value of his creditors, who shall have proved their claims, shall dissent therefrom within six months after the date of the assignment; and if they do thus dissent, he shall not be discharged. By St. 1848, c. 304, § 16, this section, and so much of the insolvent laws as gives jurisdiction to judges of probate and masters in chancery in cases of insolvency, are repealed; but § 17 of that act provides that it shall not affect proceedings commenced before it shall take effect.</p> <p>The arguments were had at November term 1853.</p>

<p>Action of contract, upon an account annexed, for several lots of lumber sold and delivered to the defendant. Writ dated May 18th 1852. Answer, a denial of the sale and delivery of the articles mentioned in the account annexed. Trial in the court of common pleas, before Mellen, J. who signed the following bill of exceptions:</p> <p>“ There was evidence tending to show that the lumber described in the account annexed was brought into this state by water, and had never been surveyed, numbered and marked according to law; and that it was delivered to be used in this state. The counsel for the defendant proposed to ask a witness for the plaintiff whether any portion of the lumber which was delivered to the defendant had been surveyed, marked and numbered according to law, since its arrival within this state, and before its deivery to the defendant, and whether any part of said lumber was delivered to the defendant to be carried out of the State. The question was objected to, because, under the defendant’s answer, it was not open to the defendant to raise the question of survey. The court excluded the question. The counsel for the defendant then moved the court for leave to amend his answer so as to open to him the question of survey, which the court, under the circumstances, in the' exercise of its discretion, refused to do. Afterwards the counsel for the defendant requested the court to charge the jury that it was incumbent on the plaintiff in order to maintain his action, to prove a survey of the lumber according to law, and that if it should appear upon the evidence, or in any other way, that there had been no such survey of the lumber described in the account annexed, as the law required, then the plaintiff could not recover; which the court refused to do. To all of which the defendant excepted.”</p> <p>This case was argued at November term 1853.</p>

<p>Appeal by the heirs at law of Edward Crowninshield, deceased, from a decree of the judge of probate, allowing the probate of his will. Trial before Bigelow, J. by whose direction the following issue to a jury was framed: The appellee, who was the executor named in said will, pleaded “ that the said Edward Crowninshield, at the time of executing the said paper writing, was a person of sound and disposing mind; and this he is ready to verify.” The appellants replied “ that they deny that, at the time of executing the aforesaid paper writing, the said Edward Crowninshield was a .person of sound and disposing mind, in manner and form as by the said appellee is above alleged; and of this they put themselves on the country.” And the appellee joined the issue.</p> <p>“ The appellants proved that, at the time of making and executing said instrument, the said Edward Crowninshield was under guardianship by a decree of the judge of probate, as an insane person, being a person non compos mentis. The court instructed the jury that the burden of proof, in a case of this kind, when the supposed testator was under guardianship as an insane person at the time of making and executing the alleged will, was upon the party propounding the will, to show that the supposed testator was at that time of sufficient mental capacity to make and execute said will. The verdict of the jury was that, at the time of making the instrument propounded for probate, the said Edward Crowninshield was not of sound and disposing mind and memory. If this instruction on the burden of proof was erroneous, the verdict is to be set aside; otherwise, a decree is to be entered, disallowing the instrument propounded for pro* bate as the last will of said Edward Crowninshield.”</p>

<p>Writ of entry to recover a tract of land in Andover, claimed by the demandants in right of the wife, the illegitimate daughter of Sarah Barker, who in her lifetime owned the demanded premises, and who died seized of the same, leaving a will, which was duly proved, in which she omitted to provide for her said daughter. The demandants claimed the premises under Rev. Sts. c. 62, § 21, which provide that “ when any testator shall omit to provide in his will for any of his children, or for the issue of any deceased child, they shall take the same share of his estate, both real and personal, that they would have been entitled to if he had died intestate; unless they shall have been provided for by the testator in his lifetime; or unless it shall appear that such omission was intentional, and not occasioned by any mistake or accident.” The tenant contended that this statute did not apply to illegitimate children. Bigelow, J. before whom the trial was had, reported the case for the consideration of the full court; the parties agreeing that if the court should be of opinion that the statute did not apply to illegitimate children, heirs of their mother, the demandants should become nonsuit; otherwise, the case to stand for trial.</p>

Writ of entry, sued out on the 30th of January 1851 by Joseph Foster, against Adolphus Durant and Maria his wife and George Cutter, to recover a parcel of land in Lawrence.

<p>An act of the legislature, by which “ the members of” several mutual fire insurance companies are made a new corporation, and which “ shall not affect the legal rights of any person,” and is to take effect “when accepted by the members of said corporations,” does not constitute a member of one of the old companies, who does not expressly assent to it, a member of the new corporation, although the act be duly accepted by a majority of the members of each of the old companies.</p>

<p>No exception lies to a ruling of the presiding judge, that the evidence introduced by the plaintiff will not support the action, if by a special verdict, afterwards taken at the plaintiff’s request, the jury find against him a fact essential to his case.</p> <p>On the trial of an action brought by a mutual fire insurance company to recover assessments on a policy of insurance alleged to have been assigned by the assured to the defendant, the judge refused lo instruct the jury, as requested by the plaintiffs, that if the defendant admitted the lawful assignment of the policy to him, that admission *was sufficient for the jury to find such assignment upon, if they believed it; and instructed them that it was a circumstance which they might consider in connection with the other facts in the case. The judge also refused to instruct the jury to find for the plaintiffs, if the alleged assignor and assignee understood that the policy had been assigned; and instructed them that they must find a bargain between those parties. Held, that the plaintiffs bad no ground of exception.</p>

Bowler sued Palmer in an action of tort before a justice of the peace, laying his damages at one hundred dollars. The record of the justice, after setting forth the writ, service, appearance and answer of the defendant, trial before a jury, and verdict of sixty dollars for the plaintiff, concluded as follows : “ In testimony of which judgment, I the said justice have hereunto set my hand the twenty-ninth day of April A. D. 1853.

Action of contract on a probate bond, executed by the defendant Peabody, as administrator of the estate of James Peabody, as principal, and the other defendants, Durant, Balch, Goodhue and Whipple, as sureties.

<p>The right of either party, in an action at law, to file interrogatories to the adverse party, under St* 1852, c. 312, §§ 61, 69, u for the discovery of facts and documents material to the support or defence of the suit,” is confined to such matters as are material to the case set up in his own pleadings, and does not extend to matters in support of the zase of the other party.</p>

Action of tort for the conversion of three hundred pairs of shoes. At the trial in the court of common pleas, two witnesses were out on the stand by the plaintiff, who were brought by writ of habeas corpus from the state prison, where they were imprisoned under sentences for burglary and larceny.

<p>Action of tort for the conversion of a box containing one hundred and thirty two pairs of shoes.</p> <p>At the trial in the court of common pleas, the plaintiff proved that he was a manufacturer of shoes in Lynn, and was accustomed to send shoes over the Eastern Railroad to be made by workmen in Seabrook, N. H.; whence they were returned in the same manner, and received by the defendant at Lynn, and by him delivered at the plaintiff’s .place of business; that a box containing one hundred and thirty two pairs of shoes was delivered by one of the workmen to the carrier on a Friday, and arrived at the railroad station in Lynn on the next day, and was put by the defendant in charge of the depot-master until Monday morning, when the defendant took them to his house and kept them until after this action was commenced, which was on the next Wednesday; and that it was the practice of the defendant and others, who carry goods and merchandise from the Lynn station to various places of business in Lynn, to carry and deliver such goods as this box of shoes, within two or three hours after their arrival.</p> <p>Upon this evidence, Briggs, J. ruled that the action could not be maintained, without proof of a demand for the goods; and the jury, by his instruction, returned a verdict for the defendant. The plaintiff alleged exceptions.</p>

Scire facias against the defendant as trustee of John McGuire. The defendant, being examined under oath, disclosed as follows: “ There was due from me to McGuire, on the 3d of September 1852, $26.13 for his, wages previously earned. McGuire was in my employ from that time till the 8th of October 1852, the time of the service upon me of the original process in this case. He worked by the piece, and his wages per month varied. There was no fixed price per month.

Action of contract for money had and received, described in the plaintiff’s bill of particulars as “ cash received from five quarters’ house rent, at $35 per quarter, $>175.” Answer, that the defendant never received any such money; and if he did, that he did not receive it to the plaintiff’s use.

<p>A mere entry upon land, under a deed defectively executed, not followed by any acts of ownership or continued possession, will not sustain a writ of entry.</p>

<p>Trespass for false imprisonment of the plaintiff on an execution, issued by Jones, a justice of the peace, on a judgment recovered before him against the plaintiff on a debt less than five dollars; which execution contained a command to the officer, for want of money or goods, to take the body of the plaintiff, and commit him to prison; and on which the plaintiff, by the direction of Jeremiah Russell, the other defendant, the attorney who brought the suit on which the judgment was recovered, was arrested and committed to jail.</p> <p>At the trial in the court of common pleas, the defendants contended that they were not liable, upon proof of the acts complained of, although the execution was in a form not authorized by law, and directed the imprisonment of the plaintiff in a case where such imprisonment was prohibited by the revised statutes; because the decision of Jones, as to the form in which tne execution should issue, was an act performed in his judicial capacity; and Russell acted merely as an attorney under the process issued by Jones. But Perkins, J. referred to the Rev. Sts. c. 97, §§ 44, 45, 47; and instructed the jury that, if Jones issued the execution, directing the imprisonment of the plaintiff, contrary to the provisions of these statutes, in a case where the debt sued for was known to him to be less than five dollars, and one on which these provisions prohibited the imprisonment of the debtor, he would be liable for damages occasioned to the plaintiff by his imprisonment under this execution; and that Russell would also be liable, if he procured the execution to be issued as aforesaid, knowing the debt on which it was issued to be less than five dollars, and one on which the imprisonment of the debtor was prohibited by the revised statutes, and directed the officer to arrest and imprison the debtor upon the execution so procured, and the officer did so in pursuance of his direction. The jury returned a verdict for the plaintiff; and the defendants alleged exceptions to these instructions.</p>

Trespass for breaking and entering the plaintiff’s close in Lawrence, “ bounded westerly by the road late the Essex Turnpike, northerly by the road leading from Sutton’s Mill to Lowell, and easterly and southerly by land of the Essex Company,” and there digging up, subverting and displacing the soil, and in some places digging excavations therein, and in other places raising embankments, and doing other wrongs and injuries to the prem ises. Writ dated May 5th 1848.