Volume 69 — Massachusetts Reports

<p>Information, filed by the attorney general, on the 15th of November 1852, at the relation of the Associate Reformed Presbyterian Synod of New York, the First Associate Reformed Presbyterian Church and Society of Boston, the Reverend Alexander Blaikie, pastor of said church and society, their ruling elders and prudential committee, in behalf of themselves and the rest of the members of said church and society, and John W. Emery.</p> <p>The information set forth that, on the 14th of May 1729, Henry Deering, by deed duly executed and recorded, conveyed to John Little, in fee, in consideration of £550, a parcel of land (bounded and described) situated on the corner of Long Lane (now Federal Street) and Bury (now Channing) Street, in Boston ; that Little, being minded and disposed to devote his property to the founding and supporting of a church and place of religious worship,to be held and enjoyed forever for the preaching and maintaining of the doctrine, discipline, worship and form of government of the church known as the Presbyterian Church of Scotland, and to create and found a trust and charity therefor, did, on the 9th of June \ 1735, by indenture duly executed and recorded, in consideration of ¿6140, 5d., convey with warranty said land, particularly describing the same, together with the meeting-house then standing thereon, to George Glen, William Hall, William Shaw and Andrew Knox, “ for themselves, and as a committee chosen and appointed by the rest of the congregation belonging to the Presbyterian Meeting-house in Long Lane in Boston aforesaid, for managing the prudential affairs thereof,” saving and reserving to the said John Little, his heirs and assigns forever, his right, title and interest in and to a certain pew and seat in said meeting-house ; and in the limitations, conditions and establishing of the said trust, by the same deed, the said John Little did further recite and declare that the said land and meeting-house, with the appurtenances thereto belonging, saving and reserving as aforesaid, were to be held and enjoyed by the said George Glen, William Hall, William Shaw, and Andrew Knox, “ in their capacity aforesaid, and by their successors in that trust and office forever; but to and for the only proper use, benefit and behoof of the said congregation (according to the tenure and after the same manner as the Church of Scotland holds and enjoys the lands whereon the meeting-houses are erected) forever, and for no other use, intent or purpose whatsoever,” as more fully appearing by the deed, a copy of which was annexed to the information, and is set forth in the margin,*</p> <p>The information then alleged that the said Little, and the said Glen, Hall, Shaw and Knox, together with certain others, then living in Boston, being Presbyterians, and strongly attached to the doctrine, discipline and worship of the church known as the Presbyterian Church of Scotland, being minded and disposed to devote their property to the founding and supporting of a church and place of religious worship, to be held and enjoyed forever, for the preaching and maintaining of the said doctrine, discipline and worship, and to create and found a trust and charity therefor, did severally contribute, Little the land in said deed mentioned, in whole or in part, and the said Glen and others moneys wherewith the said meeting-house was built and the expenses atteziding the premises were defrayed; and did thereafter by the said indenture create and establish the said trust and charity.</p> <p>It also alleged that this deed, with the said limitations and conditions, and with the trust so created and established, was accepted by the said Glen and others, and the premises held by them, in trust, according to the terms of the same ; and that the deed, so made and accepted, created a trust or charitable estate, of a very high character, to wit, for the support, encouragement, advancement and perpetuity of the Christian Religion, according to a certain and particular form of worship, government and discipline, and belief, known as Scotch Presbyterian; which said trust or charitable estate the said Little, and the said Little, Glen and others, had good right to create and establish, and the said Glen and others had good right to accept, and did accept; and that the said meeting-house and land were conveyed as aforesaid, with the express understanding that they were always to be held and enjoyed by the said Glen and others, and by their successors in office, forever, for the sole use and benefit of the congregation in said deed mentioned, which was a Presbyterian congregation, or for the use of a Scottish Presbyterian society or congregation, the successor or successors of the then society; and that the limitations and conditions of the said deed expressly restrict the use, occupation and enjoyment of the said premises to a Presbyterian Trinitarian society, and none other, and prohibit the same to the use and enjoyment of any other society, and more especially that of a Congregational Unitarian society.</p> <p>The information further alleged that the tenure by which the Church of Scotland held and enjoyed the lands whereon the meeting-houses were erected, in the year 1735, was a strict tenure, by which, whenever a society, parish or congregation of the said church ceased to be Scottish Presbyterian in any respect, either in profession of faith, form of worship, or government and discipline, then the said congregation, parish or society, by the mere fact of the case, ceased to hold and enjoy the lands on which the meeting-house was erected, and the same thereby passed as a matter of course into the jurisdiction and possession, and under the control of the General Assembly of the Church of Scotland, or of the proper authorities acting under it, to be used and enjoyed by another Scottish Presbyterian society, congregatian or parish, that might wish to occupy the premises, and by none other; and that no Unitarian congregation or society could hold lands under the Church of Scotland; nor could any Scottish Presbyterian society, nor any society formerly belonging to the Church of Scotland, subsequently becoming a Unitarian society, hold or enjoy the lands, formerly held and enjoyed by it as a Church of Scotland, or as one of the churches or congregations of the Church of Scotland.</p> <p>The information then set forth that the Church of Scotland, in 1735, was a Presbyterian church, of Presbyterian form, faith, government and discipline, and not a Congregational church ; that it was a Calvinistic Trinitarian church, and in no respect a Unitarian Church, but was in matter of form, faith, government and discipline, in very many and most material matters, directly opposed to the forms, faith, government and discipline of what is known and called a Unitarian church or society, and more especially to the forms, faith, government and discipline of the Unitarian Church or society now occupying the premises mentioned in this information and bill.</p> <p>It then set forth the doctrines and standards of the Church of Scotland; that said Little, Glen and others professed said doctrines, and were not Congregationalists, nor Unitarians, but Scottish Presbyterians ; that there is a great difference therein; that one of the distinguishing features of the worship t>f that church is the use of a particular version of the psalms, known as Rouse’s Version ; that the society in Long Lane, from the time of its foundation, about 1730, until 1786, was a church after the form and pattern of the Church of Scotland, and precisely like that church in all matters of religious faith, worship, government and discipline, so far as the same were adapted to the civil government under which the society was placed, and used said version of the psalms; that the Associate Reformed Presbyterian Church of North America, is, in all material matters, the same as the Ancient Church of Scotland as it existed in the year 1735 ; that said association was made in or about the year 1782, and comprises a large majority of the churches in this country, professing the faith of the Church of Scotland, as it does now, and has always existed, and corresponds identically with the said Church of Scotland, as it existed in the year 1735, in all matters of form, faith, government, worship and discipline, except as altered by the republican nature of our institutions,</p> <p>The information then set forth that the congregation mentioned in the said deed of John Little was established about 1727, under the pastoral care of the Reverend John Morehead, a Presbyterian minister, of the school known as the Scotch Presbyterian, and previously a member of some presbytery in Scotland, and' continued to flourish under his care as a Scotch Presbyterian society, after the manner of the Church of Scotland, until 1773, when he deceased; that thereafter, for about ten years, they were without a pastor, except for occasional services; that in 1783 the Reverend Robert Annan, a Presbyterian minister, of the faith of the Church of Scotland, a member of the Presbytery of New York, and subordinate to the Associate Reformed Synod of New York, was duly installed as then- pastor, and so continued until 1786, when he removed from this commonwealth ; that in 1745 a presbytery was established by the said Morehead and others, consisting of twelve congregations, and called the Presbytery of Boston, to which the said society belonged, and continued to belong, until 1774, when the said society notified a temporary declinature therefrom, for a special and temporary purpose, as by the doctrine, discipline and government of the Scottish Presbyterian church they had a right to do, and which wrought no change in the trust and charity aforesaid, that these congregations subsequently formed themselves into three presbyteries, and about 1776 were all joined in one body, called the Synod of New England, which continued- to exist until 1782, when it was dissolved, and the Church and Society in Long Lane then became connected with the Presbytery and Synod of New York, with which it ever afterwards continued to be associated; that all these changes and memberships with different presbyteries and synods, did in nowise alter, or in any way affect the relations of the Church or Society in Long Lane, in matters of faith, government, worship or discipline, with the Church of Scotland, or the Associate Reformed Presbyterian Church of this country, but were merely changes of convenience or necessity in matters of discipline.</p> <p>The information then alleged that Annan was duly and legally called from the said Presbytery of New York, to the pastoral charge of the society in Long Lane, by their vote and request; and that measures were taken between said society, said presbytery, and Annan, by which the relation of dependence and control was recognized, and Annan was by said presbytery druy installed in 1783 ; and removed by them in 1786, at his own request ; and that said Presbytery and Synod of New York have never relinquished or discharged their claim or right to control, govern and direct the church and society in Long Lane, but continue to this day to claim such right.</p> <p>It then alleged that the society and church, here present as relators, known as the First Associate Reformed Presbyterian Church and Society of Boston, was duly organized by the Pres bytery of New York, as a religious society, after the Presbyterian order, in 1846, as connected with, and under the jurisdiction of the said Presbytery and Synod.of New York, a religious body, duly established, having full supervisory power in ecclesiastical matters over all the churches connected with it, and especially over the church and society here present as relators. That the Reverend Alexander Blaikie, here present as a relator, is minister of the said Presbyterian church and society of Boston, and is, and for many years before 1846, was a member of the Synod of New York, and was duly installed in his said ministry by the said Presbytery of New York; that this church and society have always professed and taught the same faith and conformed to the same discipline as did the said society in Long Lane, mentioned in the deed of John Little, according to the standards and constitution of the Church of Scotland in 1735, excepting as they are necessarily modified, to conform to the civil government under which said church and society is placed.</p> <p>The information then set forth that in 1786 a majority of the congregation belonging to the church in Long Lane, contrary tff the intentions of Little, and of said Little, Glen, and others, as expressed in his deed aforesaid, and contrary to the said deed, and contrary to the trust and charity aforesaid, and contrary to right, resolved themselves into a society different from a Presbyterian society; and have ever since continued, with various changes of form of worship, faith, government and discipline, to be a society other than a Scottish Presbyterian society; that a minority of the congregation objected to the change at the time, and desired to remain under the ancient form of Presbyterian worship, government and belief, but was overborne, and obliged to submit to the wrong and injury done by the majority; whereupon the said trust was wholly perverted, abused and misapplied.</p> <p>The information then alleged that in 1787 the Reverend Jeremy Belknap, an Orthodox Congregational minister, and not a Presbyterian minister after the order of the Church of Scotland, nor a member of any presbytery of North America, was installed over the said church and society as minister and pastor, by the Orthodox or Congregational form, of installation, and not by the Presbyterian form; and that the Presbytery of New York did, with the minority of the said congregation, object to this installation, and to the action of the majority, and did not consent thereto; that said Belknap and said society made great changes in the forms of worship, rules of discipline, and opinions of belief, and introduced a new version of psalms and hymns; and the said meeting-house and lands continued, from 1786 to 1815, to be occupied, contrary to the intention of Little, and of Little, Glen and others, and contrary to the said deed, and to the trust and charity aforesaid, and contrary to right, by a society professing to be an Orthodox and Trinitarian Congregational society as aforesaid.</p> <p>It further alleged that in 1815 the said congregation again changed its form of faith and discipline, and became, and has ever since continued to be a Unitarian society or congregation ; and by this last change, the said trust became and was wholly perverted and abused, and misapplied, in that the Presbyterian discipline and worship of the Church of Scotland was wholly overturned, and another discipline and worship substituted in its stead; and the distinguishing forms of faith of the Presby terian Church were wholly abrogated and denied, and other doctrines, hostile to those, publicly taught in the pulpit of said church, and believed and professed by the said congregation ; that in 1735 Unitarianism was not known, and could not by law exist, in Great Britain, Scotland, or the Colonies of Great Britain: and that the meeting-house and lands, in said deed of John Little mentioned, are not now held and enjoyed bj the same tenure, as that by which the Church of Scotland held and enjoyed the lands whereon its meeting-houses were erected in the year 1735.</p> <p>The information further alleged that John W. Emery, one of the relators, is a pewholder of the said church, now in the possession of these defendants, and is desirous that the said land and church should be given up, and the occupation be decreed to belong to the First Associate Reformed Presbyterian Church and Society of Boston.</p> <p>It then alleged that the premises conveyed are those known as the meeting-house formerly called Dr. Channing’s church, and now occupied by the Unitarian society, worshipping under the pastoral care of the Reverend Ezra S. Gannett, D. D., with the lands now in the occupation and possession of the said society, which society was duly incorporated in 1805; (St. 1805, c. 19;) and that possession was formally demanded in 1849, and refused.</p> <p>The information then alleged that the equity of this bill was in no manner weakened or 'impaired by reason of the lapse of time, or for any delay in the making of the said demand for the said premises; because no plea of time or of the statute of limitations can be made as a defence to the perversion or abuse of a charity or trust, on a bill of this nature ; because these relators have never done any solemn or public act by which they recognized the right of these defendants, or of any one to use or enjoy the premises here sought to be recovered; because, the First Associate Reformed Presbyterian church and society have had no existence in this commonwealth until since the year 1846, and were not advised of their rights in the premises until a few months previous to the making of the said demand above mentioned; because the said minority who were opposed to the change made by the said congregation in the year 1786 were a feeble company, unable to strive with the said majority; and because the said change first made by the said majority in the year 1786 was a change in discipline and form of worship, and not a material change in doctrine, for which reason the said minority were less urgently and immediately moved and incited to take active measures for redress of the breach of trust, and the perversion of the charity herein complained of; but that the change in 1815 by which the society became a Unitarian society, was a very material one, both in discipline, forms of worship, and opinions of belief, and was a change never contemplated by the said minority or by the majority in the year 1786, and would not have been permitted by the said minority, or the said majority, had it been attempted to be made while they had the power to resist it, and was made after the said minority and the said majority, or the most of them, were deceased; and that the jurisdiction of this court in matters of trusts and charities has not been, until within a few years past, sufficient for the full and proper consideration of matters of this nature.</p> <p>And the information alleged that the premises were of great value; and prayed for a discovery, for an establishment and carrying into effect of the trust, for an account of the rents and profits received by the respondents, for a removal of the respondents, an appointment of new trustees, and a delivery to them of all deeds and papers relating to the trust, and for further relief.</p> <p>The respondents, in their answer, upon the oaths of their prudential committee, say that they were made into a corporation by an act of the legislature passed on the 15th of June 1805, and are the true and sole owners of the premises demanded in the bill, and that this act was passed on the application of persons who, prior thereto, as owners of pews, were tenants in common of the land and house; that the charter was accepted, and they have ever since been in open, exclusive and undisputed possession, and have expended large sums of money in improvements, and especially in the erection of a new building for public worship ; and submit that this possession for nearly fifty years should operate by way of confirmation and assurance to their title, even if originally defective, which they deny ; and they rely upon this possession, and upon the statutes limiting actions, by way of bar, as if specially pleaded.</p> <p>They admit the deed from Deering to Little, for the nominal consideration mentioned; but say that the time consideration of the said deed is hereinafter set forth. They admit the deed from Little to Glen and others; but they deny that it was made by Little with the intention of creating, or that it did create a charitable estate for the support, encouragement, advancemeni and perpetuity of the Christian religion, according to the Scotch Presbyterian form, or that any charitable use was created thereby, or sprung therefrom, or that it was so accepted by the said Glen and others, or that it was in any sense a gift, or coupled with any immutable condition, or that it was the intention of Little to restrict the use and occupation of the premises to a congregation worshipping after the form, and governed by the discipline of the Scotch Presbyterian Church, and none other; or that he had any right to make any such restriction or limitation whatever.</p> <p>And. they say that Little was simply one of numerous associates who undertook to build, and did build for their common use and benefit, a meeting-house on the land in question, in the conducting of which matter, and the purchase of said land, Little was the common agent of all the associates ; that in the course of time a controversy arose between the said parties composing the said congregation on the one hand, and Little, as their agent, on the other, and was referred to three arbitrators, who under date of April 9th 1735 made their award, a copy of which was annexed to the answer, and is set forth in the margin; * and that Little made the deed to Glen and others in pursuance of this award; and that, in the said enterprise, Little devoted no part of his property, further than his contributory share, for which he was reimbursed by the reservation in the deed of a pew and seat in the meeting-house.</p> <p>They deny that Little, Glen, Hall, Shaw and Knox and the other associates contributed land and money to found and support a Scotch Presbyterian church, and to create a trust or charity therefor; and aver that they contributed to the purchase of the land and the erection of the meeting-house, without any intent to create any charity, but with the simple purpose of erecting a meeting-house for their common use, to be held by them in proportion to the sums by them respectively contributed, and received equivalent rights, as pewholders, as a full consideration for their contributions. They deny that Little, Glen, Hall, Shaw and Knox had good right to create and establish, or to accept any such trust or charitable estate; and allege that they were bound, by the award, to execute a good conveyance to the congregation, by whose contributions and for whose benefit the land was purchased, and the meeting-house built. And they do not admit that it was the intention of said Little, Glen and others that the land should be forever used and enjoyed by a Scottish Presbyterian Trinitarian society, and none other.</p> <p>They say that by said deed the legal estate vested in the grantees in trust, but the beneficial estate was in the pewholders or cestuis que trust, and the trustees had no other substantial benefit than as pewholders, and thus the land and building were then purchased, acquired, owned and held by the associates as their private property, over which they had absolute dominion, and full power to change the use to which the same might from time to time be appropriated; that under this conveyance the trustees and cestuis que trust continued to use and enjoy the said premises, using the form of worship and church government mentioned in the deed, but that the entire interest, property and-control was vested in the said trustees and cestuis que trust, being pewholders, as tenants in common.; that the title to each pew was a conveyance from the prudential committee, who were chosen from time to time, as vacancies occurred, by the pewholders; and that the proprietor of each pew had the right to sell and dispose of the same, like any other property, subject only to the condition of offering the same to the prudential committee at its appraised value. And they deny that Little or any other person made any charitable gift, or that any public charity was created or provided for; and therefore aver that this court, on this information and bill, has no jurisdiction over the same.</p> <p>They say that they do not know the tenure of the lands held by the Church of Scotland in 1735; but that, if the facts and principles in regard to the tenure of lands held by the Presbyterian congregations in Scotland are truly set forth in the bill, they do not support this claim, because they flow from the fact that Presbyterianism was the established religion of Scotland, and as such recognized by law and clothed with peculiar privileges; but in Massachusetts, while a colony and province, and since it became an independent state, no form of faith or church government has ever been established or had any special privileges conferred upon it by law.</p> <p>They admit the doctrine, government and discipline of the Church of Scotland in 1735 as set forth in the bill, and that, they are opposed to Unitarianism, as professed and taught by the respondents ; do not know whether the society in Long Lane conformed in 1735 to the faith and discipline of the Church of Scotland; nor what version of the psalms was used by said Church of Scotland, or by said society; nor whether Little, Glen and others were Congregationalists, or Unitarians, or Presbyterians; deny that said society continued until 1786 to be Presbyterian in all respects, and affirm that the pewholders had the exclusive interest in and control over the premises, and they or a majority of them had at all times a right to withdraw from the Presbyterian denomination, and about 1773 did so withdraw, with the purpose of changing their form of worship, and remained independent for ten years, choosing for themselves the ministers by whom occasional services were supplied to them. They admit that the society was under the care of Morehead from 1727 to 1773, and of Annan from 1783 to 1786; but profess their ignorance as to the matters stated in the information concerning the Associate Reformed Presbyterian Church of North America, the connection of the society in Long Lane with the Presbytery of Boston, the Synod of New England, and the Presbytery and Synod of New York till 1782; deny that it since continued to be connected with the last; and do not know whether the relations of this society were affected by these changes; and profess their ignorance of the matters alleged concerning the establishment of the Presbyterian society in Boston in 1846, its faith and discipline, its relations to the Presbytery of New York, and the settlement of Blaikie.</p> <p>They say that the proprietors of the meeting-house in Long Lane, in August 1786, did, by a unanimous vote of all persons legally or equitably interested in the said land and meetinghouse, embrace the Congregational mode of government, and resolve themselves into a church and society different from a Scotch Presbyterian church and society, and that the same has ever since continued to be so. They admit the installation of Belknap, a congregational minister, in the congregational form, and that he introduced a new collection of psalms and hymns; but do not know whether a minority of the congregation, or the Presbytery of New York, objected to his installatian, nor whether he made any other changes in the forms, discipline or belief of the society ; admit that the premises have ever since been used and occupied by a congregational society, and that, after the date of said installation, the opinions of the pewholders and society .underwent a gradual change, and they became a Unitarian society, but do not know at 'what particular time the said change took place, or whether it was in 1815. They admit that said society is, and has been for many years, a Unitarian society; but deny that the change in form of government in 1786, or this change of faith, was a perversion and abuse of the trust asserted to have been created by Little, and by Little, George Glen and others, or that it was contrary to the said deed, or that any trust or charity was created thereby.</p> <p>They profess then- ignorance whether in 1735 Unitarianism was known or could legally exist in Great Britain, Scotland or the colonies.</p> <p>They admit that John W. Emery is a pewholder in the church named in the bill, but do not know whether he is desirous that it should be given up.</p> <p>They admit that the premises in dispute are those known as Dr. Channing’s church, &c., and that a demand was made and refused, as stated in the bill.</p> <p>And they deny that said meeting-house and land, so conveyed by Little, were intended by Little, Glen and others for the sole use, occupation and enjoyment of said society in said deed mentioned, and of their successors forever in the manner as is stated in the bill, or that the same should be forever exclusively enjoyed by a Scottish Presbyterian Trinitarian society; but they aver that said conveyance was intended by the grantor and grantees, and the other parties interested in the erection of said meeting-house, for their use and enjoyment and disposition as set forth in the answer.</p> <p>To this answer a general replication was filed.</p> <p>A hearing was had before Bigelow, J. who reported the case for the consideration of the whole court. So much of the evidence as is material to the understanding of the decision is accurately stated in the arguments and opinion.</p>

<p>On aa agreement made by one of the owners of a ship with the others, for one joint con eideration, to perform certain services for them jointly, and also to procure insurance on their interests, either of them may sue him separately, for a failure to procure such insurance.</p> <p>An allegation of an agreement to obtain insurance on certain property for not less than a certain sum, is supported by proof of an agreement to obtain insurance to the full value of the property, and that that value was the sum alleged.</p> <p>A declaration, setting forth an agreement to obtain insurance on property u in consideration of a reasonable commission,” is not supported by evidence of an agreement to obtain the insurance in consideration of a definite sum.</p> <p>On the trial of an action on a contract, the consideration of which was alleged in the declaration to be a reasonable commission, but was proved to be a definite sum, the defendant objected that the evidence did not support the declaration; but as it did not appear that he had been prejudiced bj* the variance, the plaintiif was allowed to amend, after verdict, by substituting “compensation” for “commission,” taking no costs accrued since the trial.</p>

<p>Assumpsit for money had and received. Writ dated March 23d 1847. The case was submitted to the decision of the court upon the following facts, reserving the objections specifically taken : The'defendant, prior to the 11th of February 1847, had fitted up the old Lamb Tavern, on Washington Street in Boston, as a hotel, under the name of the Adams House. Beneath it he had built five stores, which together occupied the whole of the ground story, except the entry to said house, which was numbered 371, and each of which stores was fitted for occupancy as such, and was occupied by a different tenant for the sale of goods, except the store numbered 3, which was vacant.</p> <p>On said 11th of February, mutual bonds were entered into between the parties, by one of which the defendant doth covenant and agree with the plaintiff and Otis M. Moulton “ to lease and let to the said Sargent and Moulton, for the term of ten years, the ‘ Adams House,’ so called, situate on Washington Street in said Boston, and numbered 371 on said Washington Street, for the annual rent of ten thousand and five hundred dollars, payable monthly,together with the taxes ; ” and “to sell and deliver to the said Sargent and Moulton a good and perfect bill of sale of all the furniture belonging to the said Adams in the said Adams House, for the sum of twenty seven thousand dollars; fifteen thousand dollars to be paid upon the execution of the said bill of sale, and the balance of twelve thousand to be secured by a mortgage upon said furnitureand to execute and deliver the-necessary papers and deliver possession of the premises on the 22d of said February. By the other bond, Sargent and Moulton covenant and agree with Adams to pay the stipulated rent and taxes for such a lease, and to purchase the furniture upon the terms above stated, and to deliver all necessary papers by the said 22d of February. In these bonds, all the parties are styled innholders. On the 23d of February, the plaintiff paid, in part performance of this agreement, $1,100, (being the money sought to be recovered back in this action,) and the time of performance was extended by agreement to the 1st of March.</p> <p>It is agreed, if it be competent for the defendant to show the same by any oral evidence outside of the bond, which the plaintiff denies, that the parties originally agreed by paroi to let and hire the house proper, exclusive of the said stores, for the annual rent of $10,000 and taxes; that afterwards, before the execution of the bonds, it was agreed by paroi that store No. 3 should be included, at an additional annual rent of $500, the intention being that this store might be altered by the lessees into a ladies’ entrance.</p> <p>On the 1st of March the defendant executed and tendered to the plaintiff a lease from himself to the plaintiff and Moulton of “ that building situated on Washington Street in said Boston, now kept as a hotel, and known as the Adams House, together with the store under the said hotel, numbered three,” for ten years, at an annual rent of $10,500 and taxes, with covenants on the part of the lessees to cleanse the drains and vaults at their own expense, and not to assign nor underlet, nor make any alterations without the written consent of the lessor. On the evening of the same day the parties met by appointment at the Adams House to perform their agreement; and the plaintiff laying down the lease previously furnished him for examination, said to the defendant, “ I am here to fulfil my part of the agreement, and I want you to fulfil yours.” The defendant answered, What is the objection to the lease?” The plaintiff replied, “ You know as well as I do "it is not according to the bond.” The defendant said, “ It is. I have taken advice upon it, and I will not give you any other.” The plaintiff answered, “ It is not. When it is, I am here ready to fulfil my part of the agreement. I am here for that purpose,” (at the same time laying down a sum of money upon the table,) “ and I want you to fulfil yours.” Whereupon the defendant left the room, and after a short absence, returned with his counsel, and tendered to the plaintiff this lease, and the bill of sale mentioned in the bond, and said he was ready to deliver the property mentioned in the bond. The plaintiff read the papers; and the defendant then asked him whether they were right, repeating the question frequently, and requested him to say wherein they were wrong, saying, if they were not right, he would make them so. To all which the plaintiff sometimes made no reply, and sometimes said, “ ask me no questions,” or “ I am not here as a witness,” or “ I cannot say.” The defendant frequently requested him to produce his money, but he did not offer any, nor did he say the papers were wrong, nor specify any objection to them, but declined to make any answers, except as above, and thereupon the interview terminated mutually.</p> <p>If the court are of opinion that it is competent for the plaintiff now to object to any of the covenants or conditions, as showing that the lease is not according to the bond, the defendant offers to prove, that the covenants respecting underletting and alterations are usual and proper covenants in such leases ; that the covenant respecting cleansing vaults and drains was expressly agreed to between the parties; that the lease was prepared under the direction of Moulton, one of the obligees ; and that it was agreed and recognized by the parties, both before and after the execution of the bond, that the plaintiff was to have the right to alter No. 3, so as to make a ladies’ entrance into the hotel as aforesaid; and if this evidence is competent, which the plaintiff denies, it is to be submitted to a jury.</p>

<p>It is no objection to a bill in equity, praying for'the specific performance of an agreement to convey land, that it also alleges that the defendant purchased the land as the plain tiff’s agent and with his money, and therefore holds it in trust for the plaintiff.</p> <p>An agreement in writing to convey “ the wharf and flats occupied by T. and owned by H.” may be applied to the subject matter by paroi evidence; and on paroi proof that two lots of land, only one of which bounded on the sea, and was separated from the other by a street, were both at the time of the agreement, owned by H. and occupied by T. for the purpose of landing and storing wood and lumber, and known as T.’s wharf, an'd had, before the laying out of the street, formed parts of one entire lot, and been used together, and been occasionally covered with tide water, binds the party to convey both lots.</p> <p>The filing of a general replication, in equity, gives no weight as evidence to an answer under oath, which had been expressly waived in the bill.</p>

<p>Where goods are wrongfully taken from a vessel by the shipper before she has broken ground on the voyage, the shipowner is not entitled to the stipulated freight, as such, but to an indemnity for the breach of the contract. And if the vessel is a general ship, and the goods removed form only part of her cargo, and the shipowner is bound by contracts with other shippers to perform the proposed voyage, and does perform it, the measure of damages is the stipulated freight, less the substituted freight actually made, or which might have been made by reasonable diligence.</p>

<p>Assumpsit to recover a balance due for freight of an invoice of lumber from Boston to San Francisco. Writ dated August 16th 1851. Trial in the court of common pleas, at October term 1851, before Hoar, J.</p> <p>The plaintiffs gave in evidence a bill of lading, dated at Boston, January 18th 1850, and signed by their agent, of which the material part was as follows : “ Shipped in good order and condition by Hiram Stevens on board the good barque Galileo, Sutton, master, now lying in the port of Boston, and bound for San Francisco, to say, 1,900 feet boards, planed one side; 11,089 feet boards, planed two sides, more or less; eleven packages window frames and sashes; seven boxes shingles; two boxes hardware; one package doors; twelve doors; four kegs nails; one package sash (skylight); four packages stair stuff; four packages nine pieces door frames; two thousand clapboards; four packages blinds; two hundred and forty eight pieces house frame; to be received by consignee within reach of the ship’s tackle within ten days after arrival; if not received, the captain to have the right to sell them: ” 11 And are to be delivered in like good order and condition at the aforesaid port of San Francisco (the danger of the seas only excepted) unto H. Stevens or to assigns, he or they paying freight for said goods $926.39, and five per cent, primage and average accustomed: ” “ Seven boxes of shingles on deck.”</p> <p>There was also evidence of the following facts : All the articles named in the bill of lading were received by the plaintiffs on board the barque Galileo at Boston ; and the shingles, as well as some of the packages of door casings, window frames and sashes, and stair stuff, and a portion of the boards, were stowed on deck. All the articles so stowed were thrown overboard and lost by stress of weather. The remainder of the invoice, being stowed in the hold, arrived in safety at the port of discharge. Notice was immediately published in the newspapers to consignees, to receive their goods. After waiting thirty days, no one appearing to claim these goods, they were advertised for sale at public auction, by the description in the bill of lading, the plaintiffs’ agent at San Francisco not knowing that the whole had not arrived in safety; and they were sold accordingly by said description, except the boards, which were sold by the foot The proceeds of the sale, deducting expenses, were $662.13, which were credited to the defendant on account of the freight. Upon delivery of the goods, the loss of about one thou-Band feet of boards and of the other articles stowed on deck was ascertained; and the plaintiffs’ agent settled with the purchaser for this deficiency by repaying him the sum of $75. Goods of the same kind and quality as those lost could be readily purchased at San Francisco at that time.</p> <p>The plaintiffs offered to prove that all the articles stowed on deck were so stowed with the defendant’s knowledge and assistance. But the judge rejected the evidence, and ruled that the bill of lading expressed the contract between the parties; that, in the absence of any fixed usage of trade to carry such freight in a particular manner, the obligation of the carrier, so far as the place of stowing was concerned, was to carry safely, excepting perils of the seas; and that this obligation could not be varied by parol evidence of knowledge of the owner of the goods of the manner in which they were stowed.</p> <p>The defendant offered parol evidence that the several articles named in the bill of lading were originally obtained and prepared and fitted for one house, and intended to be put together as such in San Francisco. To this evidence the plaintiffs objected ; but the judge admitted it, and instructed the jury that if they believed that the articles enumerated in the bill of lading constituted the parts of one house, and the portions lost were lost by reason of their being improperly stowed on deck, and were a substantial part of the house, without which the house would be wholly incomplete, and of no practical utility as a house, in short no longer the article which was shipped, then, the freight being payable on the whole in one entire sum, the plaintiffs could not recover freight for the lumber actually carried and which arrived at San Francisco, although the lost articles could be easily supplied in the market by the purchase of others of like character.</p> <p>The jury returned a verdict for the defendant, and the plaintiffs alleged exceptions.</p>

<p>Action of contract for not delivering the goods mentioned in the bill of lading set forth in the next preceding case, ante, 98. Writ dated April 15th 1852.</p> <p>At the trial in the court of common pleas, at July term 1852, oefore Merrick, J. the same facts were in evidence as in that case. There >vas also evidence tending to show that the vessel was unseaworthj, by reason of having too heavy a deck load, and incomplete outfit, spars and rigging, and that her voyage was thereby lengthened three months; but it did not appear that the value of the articles which arrived would have been greater had they arrived three months earlier. There was no evidence of any demand by the plaintiff upon the defendants, their officers or agent, either for the articles named in the bill of lading, or for the proceeds thereof, after the sale of the articles actually carried, and before the commencement of this action.</p> <p>The judge instructed the jury that the plaintiff’s remedy was upon the contract contained in the bill of lading, under which the defendants had no right to stow any part of the articles named in it on deck, except the shingles; that by so doing ihey took the risk of such stowage, and became answerable to the plaintiff for any loss which happened by reason of such stowage to the goods so stowed, or to the whole shipment; that the defendants were bound to put the plaintiff in all respects in as good a situation as he would have beén in if the goods had all arrived safely and in proper time at San Francisco: but they were not bound to do more; and the plaintiff could only recovei the actual loss sustained by him ; and therefore the rule of damages was the value of the entire shipment at San Francisco at the time when the vessel should have arrived there, if seaworthy and suitably loaded in all particulars, deducting therefrom the amount of freight to which, in that event, the defendants would by the terms of the bill of lading have been entitled.</p> <p>The plaintiff, at the trial, by leave of court, filed an additional count for money had and received, and under this claimed to recover the sum of $662.13, being the net proceeds of the sale at San Francisco of the articles which arrived there; and offered to show that the defendants had brought an action against him for the balance of freight, which was still pending. But the judge ruled that, upon the facts above stated, the plaintiff could not recover such proceeds under this count, without proof of a demand therefor before bringing this suit.</p> <p>The jury returned a verdict for the defendants, and the plaintiff alleged exceptions.</p>

<p>A tenant in common of two parcels of land in different proportions, of one as co-tenant with one person, and of the other as co-tenant with the same person and others, cannot have judgment for partition of both on one petition.</p>

<p>It is within the discretior* of a commissioner of insolvency to refuse to allow a creditor, examined before him viva voce upon oath as to a claim offered for proof against the estate of an insolvent debtor, to consult with counsel as to his answers; and the decision of the commissioner cannot be revised by this court upon a summary petition, unless, perhaps, in a matter essentially affecting the rights of one of the parties.</p> <p>It teems, that a commissioner of insolvency has no power to imprison for contempt a creditor who refuses to answer questions concerning his claim against the estate of an insolvent debtor.</p>

<p>It seems, that a religious society is not a private corporation, within the meaning of SU 1852, c. 312, § 42, authorizing any person whose private right or interest is injured or put in hazard, by the exercise, by any private corporation, or any persons claiming to be such, of a franchise or privilege not conferred by law, to apply to this court for leave to file an information in the nature of a quo warranta.</p> <p>It seems, that the irregular and illegal exercise by a private corporation, or persons claiming to be their officers, of a franchise conferred by law, does not render them liable to an information, on the application of an individual, under St. 1852, c. 312, § 42.</p> <p>The illegal sale of property of a private corporation, or the illegal laying of a tax upon the members, by persons claiming to be officers of the corporation, does not entitle a member to apply to this court under St. 1852, c. 312, § 42, for leave to file an information. Independently of St. 1852, c. 312, § 42, an individual has no power to apply to this court, without the intervention of the attorney general, for leave to file an information in the nature of a quo warranta.</p>

<p>The legislature have the power to shorten the term of office of any officer, the tenure of whose office is not fixed by the constitution.</p> <p>The provision of St. 1854, c. 77, § 3, that in November annually “ there shall be one county commissioner chosen in the manner prescribed in Eev. Sts. c. 14, except so far as such manner is changed' by this act,” refers not only to the mode of casting the votes, but to the means of ascertaining the result, and requires the examiners to count the votes on the eighth day after the election.</p>

<p>An action on St. 1835, c. 139, prohibiting the erection of wooden buildings in Boston, except under certain restrictions, aud making any person who shall violate its provisions liable, on conviction, to a certain penalty, and to a like penalty for every year after such con viction until the removal or alteration of the building, is barred by Rev. Sts. c. 120, § 21, in one year after the erection of the building, unless the defendant has been previously convicted under the statute for the erection of the same building.</p>

Petition for a review of a decree of this court, rendered at a former term, dismissing a libel for divorce a vinculo, brought by the petitioner against the respondent on the ground of adultery. Bigelow, J. before whom a hearing was had, was of opinion that the petitioner was entitled to a writ of review, if the court had authority to grant it under Key.

<p>Bill in equity by the Proprietors of the Church in Brattle Square, praying for leave to sell the parsonage house in Court Street, held by them under the following devise in the will of Lydia Hancock: “ I give and bequeath unto Messrs. Timothy Newell, Isaac Smith and Ebenezer Storer, present deacons of the Church of Christ in Brattle Street in Boston, whereof the Rev. Mr. Samuel Cooper is minister, and to their successors in that office, all that brick dwelling-house and land situated in Queen Street, lately improved by my honored father, Daniel Henchman, Esquire, as his mansion house, to hold the same, at and immediately upon the decease of my mother, unto the said Timothy Newell, Isaac Smith and Ebenezer Storer, and to the deacons of the said church for the time being, forever, upon this express condition and limitation, that is to say, that the minister or eldest minister of said church shall constantly reside and dwell in said house, during such time as he is minister of said church; and in case the same is not improved for this use only, I then declare this bequest to be void and of no force, and order that said house and land then revert to my estate, and I give the same to my nephew, John Hancock, Esquire, and to his heirs forever.” The said John Hancock was also made residuary devisee.. The will was dated October 30th 1765, and proved in the probate court on the 21st of November 1777.</p> <p>The bill alleged that from the decease of Mrs. Hancock the minister or eldsst minister of said church had constantly dwelt and resided in said house, during such time as he was minister of said church, and the house and land had been improved for that use only ; that the sum assessed for taxes upon said estate had been and was continually increasing, and the estate required, and would from time to time require, the expenditure of large sums of money to keep it in repair; that a sale of the estate was necessary to the beneficial accomplishment of the intent of the devise; that the present deacons of the church, who now hold the legal estate in the premises, were unwilling to join in making sale thereof without the sanction and decree of this court, because John Hancock and others, heirs at law of the John Hancock named in the will, pretended that the estate was devised upon the limitation and condition that the minister or eldest minister of said church should constantly dwell and reside in said house during such time as he should be minister of said church, and that in case the same should not be improved for that use only, the testatrix ordered that the said house and land should revert to her estate, and gave and devised the same to the said John Hancock and to his heirs forever, and so, if the said house and land should be sold, the same would be forfeited and would revert to the heirs of the said John Hancock; but the plaintiffs charged the contrary thereof to be the truth, and that the devise was not upon any such condition or limitation, and that the supposed devise over to said Hancock was altogether void and of no effect; and that, if any forfeiture of said estate could or should at any time be worked, the legal title would not vest in the heirs of said John Hancock, but in certain other persons, heirs at law of the testatrix; and that if the estate should, in the opinion of this court, be deemed to have been devised and to be still holden by said deacons upon any such limitation or condition, a sale of the estate had become necessary and expedient to effect the objects of the trust, as contemplated by the testatrix.</p> <p>The deacons and minister of the church, John Hancock and others, heirs of John Hancock named in the will, and the heirs at law of the testatrix, were made parties to the bill. The bill prayed for a discovery, for a decree for a sale of the estate and an investment and application of the proceeds in such manner as should best effect the objects of the trust, and for further relief.</p> <p>John Hancock and William H. Spear, two of the heirs at law of John Hancock named in the will, filed answers, in which they alleged that the condition and limitation of the devise under which the plaintiffs held was valid; two other heirs of said John Hancock demurred on the ground that they were improperly made parties; and all the other defendants suffered the bill to be taken for confessed.</p> <p>The case was argued at March term 1853, by G. B. Goodrich Sf 1.1. Austin, for the plaintiffs, and G. L. Hancock, for the defendant Hancock.</p>

<p>A statute, incorporating the tenants in common of a wharf, their heirs and assigns, upon theii own petition, for the purpose of enabling them the better to manage and improve the same, does not transfer the title in the wharf to the corporation.</p> <p>Lands purchased by such a corporation, for the improvement of their wharf, vest in fee in the corporation, to the use of all the proprietors, in proportion to their shares of the undivided estate; and such interest of each proprietor in land so purchased is annexed to his estate in fee in the wharf, and will pass by a devise of all his right in the wharf, though executed before such purchase, and before the Rev. Sts. took effect.</p> <p>Where real estate, specifically devised by a will which authorizes the executor or administrator to sell any of the testator’s real estate and reinvest the proceeds in personal estate, but does not manifest any intent thereby to alter the disposition of the property, is otherwise legally converted into personalty, the proceeds are to go to the same persons and in the same proportions as if it had remained real estate.</p> <p>The St. of 1791, c. 60, § 2, making estates tail “subject to the payment of the debts of the tenant in tail, in the same manner as other real estates,” did not make a remainder in tail liable to the debts of the remainderman.</p> <p>A decree, in a suit in equity of a widow against the administrator and children of her husband, ordering money received on the sale of real estate devised to her for life, with remainders in tail to the children, to be invested and the income paid to her for life, and at her decease the principal “ to be distributed by the said judge of probate among the children of said [testator] or their legal representatives, agreeably to the tenor of the will aforesaid,” is no bar to an action by the eldest son of one of the children, 'on the death of the widow, claiming his share of the proceeds as tenant in tail.</p>

<p>Where real estate, devised to the widow of the testator for life, with remainder to his children and the heirs of their bodies, is converted into money, either under a power of sale conferred by the will, or under a resolve of the legislature passed on a petition of the tenant for life and the remaindermen, reciting the devise, and praying for a sale and for an investment of the proceeds, the income to be paid to the tenant for life, and at her decease to the remainderman according to the will, the money, on the death of the tenant for life, in equity, as well as at law, goes absolutely to the then tenant in tail.</p>

Bill in equity, filed at March term 1844 against Henry-Hall and James Dana, alleging a purchase by subscription of many persons, in 1831, of the Ten Hills Farm in Somerville, and the conveyance thereof, and the payment, by the subscribers, of additional sums of money to five trustees, in trust to pay the expenses of stocking and furnishing the farm, and erecting and repairing buildings thereon, and upon the further trust to convey the farm to the plaintiff, (if not sooner…

Bill in equity by the executor of Seth Wells and administrator with the will annexed of Caroline Doane (of which Seth Wells was named executor, but died without having been qualified to act as such) to obtain the instructions of the court as to the distribution or disposition of the property mentioned in the following clauses in the will of said Caroline : “ All the rest, residue and remainder of my estate, real, personal and mixed, I do hereby give, devise and bequeath to…

<p>Under a will directing the payment of all the testator’s debts out of his estate, bequeathing the residue of his personal estate to his wife absolutely, and devising his real estate to his wife during widowhood, with remainder to his children, a note given by the testator in payment for real estate, and secured by a mortgage thereon, is to be paid out of his personal estate, unless the creditor elects to resort to the real estate.</p>

Action of contract to recover the amount of an assessment upon a deposit note signed by a member of said company, holding a policy of insurance issued by them. At the trial in the court of common pleas, it appeared that the assessment was computed thus: At the time of each fire, the directors deducted the cash funds of the company from the amount of the loss, and computed the proportion of the remainder, to be assessed on each note liable to be assessed for that loss.

<p>The delay of a mutual fire insurance company, for a time not unreasonable, to make an assessment, does not invalidate the assessment, notwithstanding the provision of the Rev. Sts. c. 37, § 31, that “ if any member shall have a just claim on the corporation, founded on a policy issued by them, exceeding the amount of their existing funds, exclusive of the deposit notes given by the members, the directors shall forthwith ” lay an assessment.</p> <p>The question whether the books of a rputual fire insurance company furnish sufficient data for a correct assessment is a question for the jury.</p> <p>An assessment made by a mutual fire insurance company in good faith, upon correct principles, and substantially correct, is binding, notwithstanding small errors, upon a member who is not affected to a perceptible amount by the errors.</p> <p>An assessment laid by a mutual fire insurance company is not rendered invalid, by the fact that the proportion between the cash premiums and the deposit notes taken by $le company varied at different times, as- against a member who suffered no damage thereby.</p> <p>A member of a mutual fire insurance company is not discharged from his liability on his deposit note for losses already accrued, by the cancellation of his policy by a general corresponding agent of the company, accompanied by a promise to surrender the note, without proving the authority of such agent to surrender the note.</p>

<p>Evidence that an indorsement of a note held by a corporation was made by their secretary, with the knowledge and consent of their directors, is evidence from which a jury may infer the secretary’s authority to indorse.</p> <p>In an action on a note given to a foreign corporation by their corporate name, the production of the note, duly indorsed to the plaintiff, is sufficient evidence that the corporation was duly organized and competent to transact business, if these facts are not denied in the answer.</p> <p>In an action on a note given to a foreign insurance company for a premium of insurance, and duly indorsed before maturity, a performance by the company of the acts required by the statutes of this state and of the state where they are incorporated, in order to enable them to insure, is to be presumed, in the absence of evidence to the contrary. Answers of a party to a suit, to interrogatories filed under St. 1852, c. 312, § 61, are competent evidence against him of the facts stated therein, in another suit, although the issues in the two suits be different.</p> <p>The Rev. Sts. c. 37, § 42, and St. 1847, c. 273, § 2, which prohibit foreign insurance companies from insuring in this state, without the actual payment and investment of a certain amount of capital stock, do not apply to mutual insurance companies.</p> <p>The cancelling of a policy of insurance by the insurers and the insured does not affect the rights of a bona jj.de indorsee for value of the premium note.</p> <p>A note given for a \ remium. of insurance to a foreign insurance company which had not complied with the requirements of Rev. Sts. c. 37, and St. 1847, c. 273, was void in their hands, before St. 1854, c. 453, took effect, but was valid in the hands of a bona jick holder for value without actual notice of such noncompliance; and the fact that the holder was the treasurer, a director, and one of the executive committee of the company, is not conclusive evidence that he had such notice.</p> <p>A party, to whom notes, on which the payee could maintain no action, are indorsed, without notice, in trust as collateral security for the payment of ce.i tain debts of the payes, can recover in a suit upon the notes only the amount of the sums actually due from the payee to such creditors, after deducting any debts owing from them to him.</p>

Bill in equity to recover threefold the amount of certain moneys alleged to have been paid in violation of the usury laws.

<p>No lien can be acquired under Rev. Sts. c. 117, for laborer materials furnished for erecting or repairing a building, under a written contract, not purporting to create such a lien, made with one who has, at the time of its execution and delivery, no estate in the land, although he acquires a title before the contract is recorded, or the labor and materials furnished. And the admissions of such a contractor, made after he has sold his interest, cannot give the lien any effect against his grantee.</p>

<p>The remedy of a party whose rights are affected by an assignment under the insolvent laws, when the preliminary proceedings are irregular, is by application in equity to this court to arrest the proceedings and set aside the assignment.</p> <p>A petition by a partnership for the benefit of the insolvent laws must aver the individual insolvency of all the partners.</p> <p>A petition, in behalf of a partnership, for the benefit of the insolvent laws, which states that “they ate indebted” to the amount of $200 “ which they are unable to pay in full,” sufficiently states the insolvency of the partnership and of the partners individually.</p> <p>A warrant, issued on the application of a partnership for the benefit of the insolvent laws, which directs the messenger to take possession of all the property “ of the said insolvent debtors,” is sufficient.</p> <p>The omission of the messenger to take possession of the separate property of the partners, under a warrant in insolvency, duly issued upon the application of the partnership, is no ground for setting aside the proceedings, after an assignment has been made by the com missioner of all the property of the partnership and of the individual partners. Proceedings in insolvency against a partnership are not rendered invalid as to the actual partners, by the including of persons who are not partners.</p> <p>A person not actually a partner, though held out as such, cannot be included in proceedings for the benefit of the insolvent laws, commenced by an actual partner in behalf of the partnership; and this court, on the application of a person thus wrongfully included, will vacate such proceedings, so far as they relate to him.</p>

<p>An officer who delivers property, held by him under attachment, to an assignee in Insolvency of the debtor, upon demand made, while the assignment is in force, is not liable therefor to the attaching creditor, in case the proceedings in insolvency are subsequently annulled for want of notice to the debtor of the petition by which they were instituted.</p>

Petition by an insolvent debtor, praying this court to vacate an order whereby a commissioner of insolvency, after the appointment of an assignee, and before the second meeting of the petitioner’s creditors, on the application of the respondent, a creditor who had proved his claim, ordered the petitioner to submit to an examination on oath by such creditor before the commissioner and the assignee, upon all matters relating to his estate, and the due settlement thereof…

<p>A written assent to the discharge of an insolvent debtor, filed by one of his creditors, pur suant to St 1848, c. 804,$ 9, becomes part of the record of the proceedings in insolvency, and cannot be withdrawn without notice to the debtor and the judicial consent of the commissioner.</p>

<p>Where an assignment by a debtor of all his property to a trustee for the benefit of bis creditors is avoided by one of the creditors, the trustee is liable to an assignee subsequently appointed under proceedings in insolvency, for all the property and the proceeds thereof, in money or notes, in his hands; and has no right to set off any debt due him from the debtor, or to deduct any compensation for his own services in executing the trust, but is entitled to deduct the necessary expenses of collection.</p>

Action of contract. The declaration was thus : “ The plaintiff says the defendant owes him twenty five hundred dollars, for money received by the defendant to the plaintiff’s use, in the sale by the defendant, at some time between the month of June 1851, and the month of June 1852, (and the plaintiff cannot now more particularly state the time of sale,) at London, of a certain Woodbury’s patent planing, tonguing and grooving machine, the property of the plaintiff, and by him…

<p>Action of contract, commenced at April term 1853 of the court of common pleas. The declaration contained two counts, the first for $139.93 “ for the balance found due to the plaintiff by the parties on accounting together,” and the second for “ a jke sum of one hundred and thirty nine dollars and ninety three cents for goods sold by the plaintiff to the defendant.” The ad damnum was $200. The plaintiff filed with his writ a bill of particulars, not confined in terms to either count, in which he charged the defendant, under various dates in 1851, with twenty items, amounting to $171.93, seventeen of which, to the amount of $98.68, were spirituous and intoxicating liquors in quantities less than twenty eight gallons; and credited him with $32 paid “ on account of the above indebtedness,” and appropriated by the plaintiff towards paying the items last named. Answer, “ that said defendant is not liable to said plaintiff, because said goods alleged to have been sold by said plaintiff to said defendant consisted of spirituous and intoxicating liquors, and said plaintiff was not duly licensed to sell the same.” At the same term the parties submitted the case to the decision of the court of common pleas upon these pleadings, and a certificate of the city clerk that the plaintiff had no license, at the time in question, to sell intoxicating liquors. That court gave judgment for the plaintiff for $73.25, the amount of the three items which appeared by the bill of particulars to have been lawfully sold; and both parties appealed.</p>

<p>An act regulating the time and manner of taking fish in the sea, within the territorial limits of the State, is within the authority of the state legislature, and binding on citizens of other states, and on vessels enrolled and licensed as fishing vessels under the laws of the United States.</p>

<p>A party to whom, the lay or share of a seaman in a whaling voyage is assigned, in trust tor the assignor, is not liable as his trustee in foreign attachment, until the lay is set apart and delivered specifically, or paid over in money.</p>

<p>A bill in equity for the transfer of a public charity to new trustees may be filed by the present trustees in their own names, making the attorney general a defendant.</p> <p>This court cannot, in the exercise of its chancery jurisdiction, withdraw funds given by individuals to the Corporation of Harvard College in trust for the promotion of theological education at the college, or for the benefit of a divinity school attached to the college, and intrust them to an independent board of trustees, to be applied to the support of a divinity school not connected with the college, merely on the ground of inconvenience and embarrassment in continuing the connection between the college and the divinity school, and of the benefit which would result to both from a separation, and without proof of incapacity or unfaithfulness on the part of the corporation, or failure of the objects of the charity.</p>

<p>A 3TION of contract on the covenant of good right to sell and convey contained in a deed of land in Roxbury, made to the plaintiff by the defendant, executor of Michael Hughes. The only title which Hughes had was under a mortgage, and the defendant, after the death of Hughes, entered upon the land to foreclose the mortgage, and remained in quiet possession thereof three years, and then, without any license of court, supposing himself authorized to sell as executor, sold the land to the plaintiff for its full value, and gave the deed declared upon, and received the price, and duly accounted for it, as executor, in the probate court, and the balance of his account was duly distributed to the legatees of Hughes. The parties sub mitted the case to the decision of the court upon these facts.</p>

Bill in equity, filed on the 4th of June 1853, against John D. Gardner & Co., Fitz Henry DeWolf and Charles D. Gibson.

<p>Action of tort for negligently causing water to be admitted to a water pipe in the second story of a building, so that it flowed through and from that pipe into the shop of the plaintiff in the lower story.</p> <p>At the trial at January term 1854 of the court of common pleas, before Wells, C. J. there was evidence tending to show that this building was one of a block which belonged to the defendant’s wife, but which he managed, executing leases, receiving rents and making repairs in his own name; that the Cochituate water was supplied to this block by one main pipe, and distributed by branches to the several tenements; that one Frost was tenant at will of the room over the plaintiff’s shop, and had agreed, in part payment for his rent, to pay the water rates for the whole block; but had neglected to do this, and suffered the waste pipe from his sink to get clogged; that the water commissioners of the City of Boston had therefore cut off the supply of water from the block; that the defendant, being informed that one of the tenants wanted the water, went to the water commissioners, paid the rates, became responsible for them for the future, and directed the water to be let on; which was done ; and that the faucet in Frost’s room was left open, so that the water, after filling the sink, overflowed, and soaked through the floor into the plaintiff’s shop and damaged his property.</p> <p>The defendant contended that the action could not be maintained against him, because he was an agent, acting within the scope of his authority. But the court ruled that his being an agent, in a case like the present, would not, in itself, and standing alone, be a defence to this action.</p> <p>The defendant then contended that an agent could not be held liable, when acting within the scope of his authority, for a mere nonfeasance—which he contended this was—nor for any negligence, while acting within the scope of his authority. But the court ruled that the direction to the water commissioners to let on the water, was not a nonfeasance, but a positive act; and if it was done negligently, and without the exercise of ordinary care, he would be liable for any injury occasioned by the want of ordinary care.</p> <p>The defendant further contended that he could not be liable for want of care in Frost’s room, while the tenancy of Frost continued. But the court ruled that Frost’s tenancy would not, of itself, be a defence to the action; but would diminish the amount of care which could be reasonably required of the defendant in relation to the premises which Frost occupied.</p> <p>“ The court instructed the jury that, to enable the plaintiff to recover, he must prove four things: 1st. That the defendant had the general management and charge of the premises ; 2d. That the directing of the letting on of the water was the cause of the injury; 3d. That in ordering the letting on of the water, without first ascertaining that the faucet in Frost’s room was properly turned, the defendant was guilty of a want of ordinary care, that is, such care as a man of ordinary prudence would exercise in his own affairs; 4th. That the plaintiff was in the exercise of ordinary care when he met with the injury.”</p> <p>The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.</p>

Action of contract on a bond dated May 25th 1848, whereby the defendants bound themselves to the plaintiff in the sum of eighteen hundred dollars, with the following condition : “ Whereas the said Pollard has by deed of even date herewith assigned and transferred to said Simmons & Porter a certain mortgage to him given by Moses F. Peasley, dated November 25th 1846, and recorded with Suffolk Deeds, lib. 570, fol. 109, and the note, to secure which said mortgage was given, the…

Action of contract against a surety on a bond for the liberty of the prison limits. The parties submitted the case to the decision of the court upon the following facts : Joel Fernald, the judgment debtor, and principal in the bond, did not surrender himself at the jail at the expiration of ninety days from his commitment on the plaintiff’s execution; nor did he pay the execution.

<p>A division of an estate held in common, by mutual deeds of release from the tenants to each otherj giving the precise admeasurements of each lot, describing them as bounding on a passage way, designating them by letters and figures, and referring to a plan on which the lots are similarly designated and the passage way is without mark, leaves the estate in the passage way in common.</p> <p>The owner in fee of land may maintain a writ of entry to establish his title against the owner of a perpetual right to use it for a passage way.</p> <p>A deed to A in trust for certain purposes during the life of B, and, on B’s decease, to the use of B’s children, their heirs and assigns, vests the legal estate in B’s children on B’s death.</p>

<p>Under a lease stipulating for an abatement of rent “in case the premises or any f trt thereof shall be destroyed or damaged by fire or other unavoidable casualty, so that the same shall thereby be rendered unfit for use or habitation,” the lessee is not entitled to an abatement of rent, in case of injury to the premises resulting from the neglect of the landlord to repair adjoining tenements; nor without proving that the premises were so rendered unfit for use or habitation.</p>

<p>On the refusal of one part-owner of a vessel to give bond to dissolve an attachment on hts share, the other part-owners gave such bond, and took possession of the vessel, and agreed with the master to sail her on shares. Eeld, that the first part-owner could not maintain an action against the master for any portion of the subsequent earnings of the vessel, especially while the suit in which the attachment was made was still pending.</p>

<p>Trespass de bonis asportatis. At the trial in the court of common pleas at October term 1853, before Hoar, J. the plaintiff introduced evidence tending to show that the defendant, as owner of the Brig Globe, agreed to take him from Boston to San Francisco; but, within an hour before the brig sailed, wrongfully ordered the plaintiff to leave the brig, which he did; and put part of his luggage on shore; but carried the residue of it to California, which was the taking and carrying away sued for. There was no evidence that the plaintiff demanded his goods, or gave any notice that he had not received all of them, or made any effort to prevent their being carried in the brig, in case she should sail without him. But it was in evidence that when the defendant refused to carry him, he said that he would go in the brig, and went to get a writ and an officer to attach her, but returned after she had sailed.</p> <p>“ The defendant contended that, on this evidence, the action of trespass could not be maintained; and that whatever loss or damage the plaintiff had sustained, if any, was only incidental to the alleged breach of contract to carry the' plaintiff to San Francisco; for which breach of contract the plaintiff had sued, and had recovered his damages by a verdict of the same jury before whom the present case was on trial; but in that suit no claim was made for the loss of the luggage, and the jury had been instructed not to consider it.</p> <p>“ But the court instructed the jury in the following terms: 1. To constitute a trespass, there must be a disturbance of the plaintiff’s possession. 2. This disturbance may be by an actual taking, a physical seizing or taking hold of the goods, removing them from their owner, or by exercising a control or authority over them inconsistent with their owner’s possession. 3. If, in this case, the goods were put on board the defendant’s vessel by the plaintiff, with an intent that they should go with him to California in the vessel, under a contract by which the defendant was bound to convey him and his goods in the vessel, and the defendant, in violation of his contract, refused to allow the plaintiff to go, the defendant would not be responsible in trespass for ordering his vessel to sail with the goods on board; unless he did so without giving the plaintiff notice and reasonable opportunity to remove his goods; or unless, knowing the goods to be on board, he required the vessel to sail, with a view to carry the goods out of the plaintiff’s reach. If either of these alternatives exist, the plaintiff may sustain his action.”</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>The delivery, required to take a verbal agreement for the sale of goods out of the statute of frauds, may be subsequent to the agreement.</p>

<p>A bill of exchange, stamped in the margin “ Pompton Iron Works,” and concluding thus: “ Which place to account of Pompton Iron Works, W. Burtt, agent,” purports to be the bill of the Pompton Iron Works, and is binding on the person carrying on the manufacture of iron in that name, if Burtt was his authorized agent.</p> <p>Notice of the non-acceptance and non-payment of a bill of exchange drawn by a partner upon his partnership need not be given to the drawer, after all the partners have gone' into insolvency.</p> <p>Allowance of proof in insolvency against the estate of a partnership, of a bill of exchange drawn upon them by one of the partners, will not prevent its subsequent proof, before any part of it has been paid, against the separate estate of that partner.</p>

<p>In an action of contract for neglecting to carry and deliver goods of the plaintiff accord ing to the terms of a bill of lading made part of the declaration, if the answer does not deny the plaintiff’s ownership of the goods, but expressly admits the shipment of the goods by the plaintiff, and the defendant’s promise to him to carry and deliver them, the defendant cannot dispute the right of the plaintiff to maintain the action, on the ground that the bill of lading stipulates for their delivery to another person, nor on the ground that the defendant had received uo notice of the right of the plaintiff to contra. the bill of lading.</p> <p>No demand is necessary before commencing an action for property lost or destroyed by person having it in custody.</p> <p>The owner of goods shipped, part of which are lost or destroyed by neglect of the earner, may maintain an action against him for the value of the goods lost, without previous payment or tender of freight, if he has received the remainder of the goods with the carrier’s consent.</p> <p>The receipt by the owner, of the whole number of casks of goods shipped, does not prevent him from maintaining an action against the carrier for the loss of part of the contents, unless the jury find that he received the property as and for a compliance with the contract of the carrier.</p> <p>In an action on a bill of lading, by which the shipowner promises to deliver the goods “ in like good order and condition as received, dangers of navigation and fire excepted,” after proof of loss and failure to deliver, the burden of proof is on him to bring such loss and failure within the exception. »</p> <p>Proof of delivery of goods to a common carrier, and of a demand and refusal of the goods, or of such loss of goods as rendered a demand useless, throws the burden cf proof on the earner to show that the loss of the goods happened by dangers for which he was not liable.</p>

<p>Action of tort to recover damages for an injury sustained by the plaintiff while driving upon a highway in the City of Cambridge. Trial before Merrick, J., who reported the case, after a verdict for the plaintiff, for the consideration of the full court.</p> <p>The evidence tended to prove the following facts: Between the hours of five and six in the afternoon of December 5th 1851 the plaintiff was driving in a wagon in and through said highway, when the horse suddenly took fright at a pile of boards lying by the side of the way, but within its limits, bolted from his course, and carried the wheel of the wagon violently against a post near the edge of the sidewalk, whereby the plaintiff was thrown violently from the wagon, and seriously injured. The boards were placed there the same afternoon, and not long before the occurrence of the accident, by a teamster, acting under the direction of Lewis Shaw, with the intention of allowing them to remain till the morning of the next day, and then removing them to the land adjoining the highway. This land, and the buildings upon it, belonged to the defendant, and were in his possession, except so far as they were occupied by Shaw in the execution of a written contract with the defendant, and under license from him. By that contract, Shaw agreed, for a specific price, and before a day named, to alter a certain paper factory into two dwelling-houses, according to a plan and specifications annexed to the contract, and to make certain repairs thereon, and to furnish all the requisite materials. The defendant also gave Shaw license to use, while he should be engaged in the execution of the contract, one of the buildings upon the land to shape and finish work for buildings of his own, in which the defendant had no interest. Shaw procured the boards and brought them to the place, chiefly for the purpose of using them in the alteration of the defendant’s buildings, under the written contract, and was, at the time of the accident, actually engaged in the execution of that contract.</p> <p>The presiding judge instructed the jury, among other things, that “ the act of laying and leaving the boards in the highway by Shaw must, for the purposes of this action, be deemed the act of the defendant; ” and that, “ as the boards at which it was alleged that the horse took fright, were procured by Shaw, to be used, in whole or in part, in performance and execution of the written contract between him and the defendant, and were materials necessary therefor, the defendant was responsible for the acts of Shaw, in placing the boards in the highway, and suffering them to remain there; and that his liability in relation thereto was in all respects the same as the liability of Shaw.”</p>

<p>The provision of the Rev. Sts. c. 62, § 21, under which any child for whom its father “shall omit to provide in his will” is entitled to a share in his estate, unless “such omission was intentional,” applies to children born after the making of the will, and before the death of their father.</p> <p>A testator gave a small legacy to each of his children living at the date of his will, (all of whom died before him, without issue,) and the residue of his property to his wife; and afterwards had other children born to him. JB.eld, that evidence of his having said to his wife, since the birth of his younger children, “ You will have all there is,” was not sufficient to show an intent to omit to provide for them in his will; and that they were entitled, under Rev. Sts. c. 62, § 21, to the same share of his estate as if he had died intestate.</p>

<p>Action of contract on an exchange of horses. The declaration alleged that, to induce the plaintiff to make such exchange, the defendant promised that the horse given by the defendant to the plaintiff was not lame, &c.; and the plaintiff, confiding in said representations, was thereby induced to make the exchange, and did thereupon make it, and said horse was lame, &c., whereby and by means of the defendant’s representations the plaintiff was greatly injured and wronged. Answer, a judgment recovered by the defendant in an action of tort, brought against him by the plaintiff, in which the declaration alleged a like exchange of horses, and that to induce the plaintiff to make such exchange, the defendant falsely represented that the horse given by the defendant to the plaintiff was not lame, &e., and the plaintiff, believing said representation was true, was thereby induced to make the exchange and did therefore make it, and the horse was lame, See.</p> <p>At the trial in the court of common pleas, it was admitted that the horse and the exchange were the same in both actions. Hoar, J. ruled that the former judgment was a bar to this action. The plaintiff alleged exceptions.</p>

<p>Action of contract for board, clothing and other necessaries supplied the defendant’s wife, the plaintiff’s daughter.</p> <p>At the trial in the court of common pleas, the plaintiff introduced evidence tending to prove that the defendant ill treated his wife, while they lived together, and did not supply her with necessaries, and authorized her to go home to her father’s house, and that the supplies in question were furnished by his authority and with his consent. The plaintiff also offered evidence of the reasons assigned by the wife to her father’s family, on the day after she returned to her father’s house, for leaving her husband. Mellen, J. admitted all such declarations made by the wife on the day of her return home, but rejected such as were made on the day following. A verdict was returned for the defendant, and the plaintiff alleged exceptions.</p>

Action of tort for breaking and entering a house occupied by the plaintiffs, and compelling them to leave it, thereby depriving them of the benefit of their lease of the house, and in* juring their furniture, and greatly distressing the female plaintiff she being then very sick. Answer, 1. Soil and freehold in Sawyer, and a lease from him to the other defendant, and a previous termination of the plaintiffs’ lease by agreement with them; 2. A receipt in full of all demands.

<p>B seems, that under Si. 1852, c. 312, § 82, an action, removed on affidavit from the court of common pleas to this court, may be entered at once in this court, if in session.</p> <p>The clerk of this court is not obliged, by St. 1852, c. 312, § 82, to enter an action removed oc affidavit from the court of common pleas, without payment of his entry fee.</p> <p>An action removed on affidavit from the court of common pleas to this court, under Sts. 1840, c. 37, § 3, and 1852, c. 312, § 82, if not entered, by either party at or before the next term of this court, cannot be allowed to be entered at a subsequent term.</p>

Motion by the defendant to set aside an award of three referees, made after hearing both parties, and duly returned into the court of common pleas, upon a submission entered into before a justice of the peace, pursuant to Rev. Sts. c. 114, and stipulating that the award of the majority of the referees should be good. One ground of objection was that the submission -was acknowledged before one of the referees named therein.

Action of tort for the conversion of a wagon. Trial in the court of common pleas, before Hoar, J. The plaintiff claimed title as assignee in insolvency of Lemuel T. Starkey, and offered in evidence an assignment to him of all Starkey’s property, purporting to be executed by “ Joshua C. Stone, commissioner in insolvency” for the county of Bristol.

<p>A decree of this court, dismissing for want of proof a libel, filed by a wife against her husband, after having left his house, for a divorce from bed and board for extreme cruelty, is not conclusive evidence of her having unjustifiably left his house, in an action by a third person against him for necessaries furnished the wife.</p>

Writ or review. The original action was assumpsit, commenced on the 18th of September 1849, on a witnessed promissory note for §1,430, dated November 30th 184.1, signed by Stephen Robbins, the defendant’s intestate, payable to Hannah Robbins or order, on demand, and indorsed by said Hannah and her husband, Eli Robbins.

Bill in equity to obtain the instructions of this,court concerning the disposition of certain property held by the plaintiff as trustee under the will of Samuel P. Gardner, his father. The defendants were Horace Gray, Sarah R. Gray his wife, and the assignees in insolvency of the estate of Horace Gray.

<p>Bill op interpleader, and to obtain the instructions of the court as to the disposition of an annuity given to Mrs. Eliza G. Doane by the will of her first husband, James Perkins, of which the plaintiffs were the surviving executors, and charged with the execution of the trusts therein declared. The defendants were Mrs. Doane and her husband, Bishop Doane, Michael Hays, and Edward N. Perkins and other children of James Perkins. The case was submitted to the decision of the court upon the following statement of facts:</p> <p>The will of James Perkins contained the following provisions: “ Item Second: I give to my wife, Eliza Greene Perkins, the yearly sum of six thousand dollars, to be paid to her quarter-yearly, commencing from my decease, and to continue during her natural life ; and I do hereby authorize and direct my executors to retain in their hands, for the purpose of paying said annuity, so much of my estate, either in money or stocks, as, being invested and managed in the manner hereinafter directed, will produce the yearly income of six thousand dollars, after paying all charges; I do further authorize and direct my executors, as soon as practicable after my decease, to pay and transfer the said principal sum to the Massachusetts Hospital Life Insurance Company, to be by them holden in trust and managed upon the principles of annuities in trust, upon the trusts, for the uses and upon the limitations following, and no other, that is to say,” (among others,) “ that the said company shall, at their own risk and loss, if any, and without any diminution or deduction from the said principal sum, yearly and every year during the natural life of my said wife, pay or cause to be paid to her, or upon her separate order, in equal quarterly payments, the net sum of six thousand dollars clear of all charges and deductions whatsoever; ” “ and in case of the incapacity of said annuitant, through sickness or any other cause, to receive herself or upon her separate order, at any time during her life, the quarterly payments aforesaid, the said company shall pay or cause to be paid the same quarterly payments to any person or persons lawfully appointed to represent my said wife for the purpose of receiving the same; and in de* fault of any person or persons lawfully appointed thereto, the said company shall pay or cause to be paid the same quarterly payments to my executors hereinafter named, the survivors and survivor of them, to be by them applied to the support and maintenance of my said wife, and to the support, maintenance and education of my children under the age of twenty one years; and in case of the death of my said wife during the minority of any of my said children, the said company shall still hold the said capital sum, with all the accumulations thereon, upon the further trusts and for the uses and under the limitations following, and no other, that is to say, the said company shall hold, manage and dispose of the said capital sum in the manner hereinbefore provided, until such time as my children then living shall all have attained the age of twenty one years; and the said company shall pay or cause to be paid so much of the annual interest and income of the said principal sum as shall be called for by the legal guardian or guardians of my child or children under that age, provided the amount so called for shall not exceed the proportion due to such child or children, to such legal guardian or guardians, in equal quarterly payments, to be applied to the support and maintenance and education of such minor child or children, until he, she or they shall attain the age of twenty one years.”</p> <p>“ Item Last: If my personal estate, together with my real estate not herein specifically devised, from any cause whatever should prove insufficient to pay my just debts and all the pecuniary legacies herein bequeathed, I do hereby declare it to be my meaning and intention, and do hereby order, that so much of my estate as shall be sufficient to produce the income of six thousand dollars annually shall be retained and invested by my executors in the manner aforesaid, and the whole of said amount, without any deduction whatsoever, shall be paid over to my said wife, the said Eliza Greene Perkins, in such manner as is hereinbefore directed, and that all other pecuniary legatees shall abate ratably in proportion to their respective legacies.”</p> <p>In the codicil to the will is this provision : “ I do hereby re yoke so much of my foregoing will as positively enjoins upon my executors to deposit any fund or sum of money therein mentioned with the Massachusetts Hospital Life Insurance Company, and give them a discretionary power in all cases to execute the several trusts committed to them, either by depositing the said trust fund with the said company, so that the said company shall undertake to execute the said trusts, or else to invest it in such securities as my said executors shall think most for the interest of those concerned, and take such other measures as they may think proper to secure the application of the said funds and the income thereof to the several persons and purposes for which the same are designed, according to the true intent and meaning of my said will.”</p> <p>On the 7th of August 1849, Mrs. Doane entered into articles of agreement with the defendant Hays, to which her husband assented in writing, by which, in consideration that Hays should effect a settlement of certain actions which had been commenced against Hays on his indorsements of notes made by Bishop Doane, she agreed to transfer to Hays, on the 10th of January 1850, and upon that day in each year thereafter, all her right, title and interest in one thousand dollars, part of the yearly income to which she was entitled under said will, until such sum should have been paid as would amount to one half of such sum and costs as Hays should be required to pay upon such settlement, and interest upon the other half remaining each year after the payment of the one thousand dollars; and to carry out the stipulations of this agreement, further agreed to give Hays, immediately upon the settlement of the suits, a power of attorney, authorizing him to receive from the executors the one thousand dollars yearly, together with the interest. Under this agreement, Hays proceeded to settle these suits, and in effecting such settlement paid the sum of $20,818. And Mrs. Doane, on the 30th of October 1849, executed a power of attorney to Hays, pursuant to the agreement.</p> <p>The annuity of $6,000 was paid by the plaintiffs to Mrs. Doane personally or upon her separate order, by regular quarterly payments, until the 1st of October 1851.</p> <p>About the 10th of January 1850, Hays received from Bishop Doane the sum of $1,000 as and for the payment stipulated for by said agreement; but he has not received any thing on account of the payment which became due on the 1st of January 1851. In August 1851, Hays notified the plaintiffs of the existence of the agreement and power of attorney, and on the 1st of October 1851, demanded payment of $250 out of the quarterly payment on that day falling due to Mrs. Doane by the terms of the will and codicil.</p> <p>On the same day Edward N. Perkins presented to the plaintiffs an order of that date, signed by Mrs. Doane, requesting them to pay to the order of Bishop Doane, “ fifteen hundred dollars, being a quarterly payment of my annuity under the said will, due this day,” and indorsed by Bishop Doane to said Perkins. The consideration for the delivery of this order to said Perkins was the sum of $1,500 paid and advanced by him to the personal use of Mrs. Doane, upon the faith of this order.</p> <p>The plaintiffs declined paying, either to Hays or Perkins, the sums claimed by them respectively, and on the fifth of January 1852 filed this bill. Hays and E. N. Perkins appeared and filed answers. The other defendants suffered the bill to be taken for confessed. It is agreed that the court may cause such decree to be entered as it shall deem agreeable to equity and good conscience.</p>

<p>A judgment recovered against a married woman alone, though founded on a contract made by her in carrying on business on her own account, and while living separate from her husband, was void, before St. 1855, c. 304, § 7.</p>

Action of contract on a promissory note for $100, made by the defendant, payable to his own order, and thus indorsed: “ I. W. Richardson,” “ Without recourse, J. Wetherbee, Jr.” Answer, that the defendant executed the note declared upon, without any consideration, and for the accommodation of Nathaniel Richardson; that the note was delivered by Nathan,iel Richardson to Wetherbee, and, at the time it fell due, was in the hands of Wetherbee, and held by him, and was paid by…

<p>This court have power, under Rev. Sts. c. 99, § 19, to grant a review of their judgment, affirming a judgment of the court of common pleas to which exceptions were taken and accidentally omitted to be entered in this court, on being satisfied that the exceptions affect the substantial merits of the case.</p> <p>An application to a mutual fire insurance company for insurance on a building stated that it was a just, full and true exposition of the condition, situation, value and risk of the property to be insured, so far as material to the risk; and that the applicant, in case of insurance, held himself bound by the by-laws of the company: The policy also was made subject to the provisions and conditions of the by-laws: The by-laws provided that any policy should be void, unless the true title of the insured should be expressed in the application ; and that the applicant should be liable for the representations of any agent through whom the application should be made. Held, that the failure to disclose a mortgage for $800, in the application, avoided the policy, and was good cause for granting a review of a judgment thereon against the company; although a jury had found that the misrepresentation was not material to the risk, and there was evidence tending to show that the mortgage was disclosed to the agent of the company by whom the application was filled up.</p> <p>It seems, that an assignment of a policy issued by a mutual fire insurance company, made, with the assent of the company, to a mortgagee of the property insured, does not make the assignee, until he has given a new deposit note, “the insured,” within the meaning of a by-law of the company, suspending the risk on the policy in case of the neglect of the insured to pay an assessment when duly demanded of him.</p> <p>The expenses of printing or copying the points and authorities required by the rule ol this court at the argument of cases upon the law docket cannot be taxed in the bill of costs.</p>

<p>The bringing into this commonwealth, by the thief, of goods stolen in one of the British Provinces, is not larceny in this commonwealth.</p>

<p>Forgery. The indictment alleged that the defendant, on the 13th of July 1854, at Boston, “ did falsely make, forge and counterfeit a certain wilting in the form and similitude of a railroad ticket or pass, of the tenor following:</p> <p>New York Central Railroad.</p> <p>Albany to Buffalo.</p> <p>Good this day only, unless indorsed by the conductor.</p> <p>D. L. Fremyre.</p> <p>fcaid counterfeit writing purporting to be a ticket or pass issued by the New York Central Railroad Company, whereby said corporation promise and assure to the owner and holder thereof a passage in their cars over their railroad, extending from Albany to Buffalo in the State of New York; said ticket being signed by D. L. Fremyre, on their behalf, he being their ticket clerk, or ticket agent; and said ticket signifying to the holder that it must be used by him continuously, after once entering the cars, and without stopping at any of the intermediate places on the line of the railroad between said Albany and said Buffalo, unless indorsed by the conductor, another officer of said corporation, having charge of their trains of cars and authorized to make such, indorsement of said ticket for the purpose aforesaid.” The indictment then alleged “that on said thirteenth day of July there was a railroad extending from Albany to Buffalo aforesaid; and that the same was then and there in the possession and use of a corporation, styled the New York Central Railroad Company; and that good and genuine tickets in the similitude aforesaid, issued by said corporation, bearing the written and printed words aforesaid on their face, to wit,” [setting them out] “ then and there entitled the purchasers and owners thereof to a passage in the cars of said corporation over said railroad from said Albany to said Buffalo ; and that said tickets were then and there sold by said corporation for the price of six dollars each, and were of that value, to wit, at said Boston. And so ” [the indictment averred] “ that said genuine tickets, so issued and sold as aforesaid, were on said thirteenth day of July, at said Boston, the subjects of value, and in the nature of a contract between said corporation and the holders thereof, in manner aforesaid; and that the said Miner L. Ray did then and there falsely make, forge and counterfeit one of said tickets, with intent to defraud, against the peace of the Commonwealth.”</p> <p>At the trial in the municipal court, the attorney of the Commonwealth offered no evidence in support of the indictment, except the alleged forged ticket, and a genuine ticket, and the following written admission of the defendant: “ The defendant admits, for the purposes of this trial only, that there is a corporation called the New York Central Railroad Company, and a railroad, called the New York Central Railroad, owned by said corporation, from Albany to Buffalo ; and that said corporation were in the habit of selling and issuing tickets in the similitude set forth, which were sold for six dollars eachand the holders of such tickets were permitted and authorized by the corporatian and by the conductor, on their presentation, to pass in their cars over their road from Albany to Buffalo. Said tickets consisted wholly of printed and engraved characters, and were in no part written or signed in manuscript:</p> <p>“ That the defendant, without any authority from said corporation, at some time in the year 1854, at said Boston, procured, through the agency of Taylor & Adams, engravers, and Hobart & Robbins, stereotype founders, a stereotype plate, from which the ticket in question, afterwards and before the filing of this indictment, at said Boston, was printed; but he was never personally present at the making or engraving or printing said plate or tickets, but was wholly absent therefrom, and did not in any way aid or assist therein:</p> <p>“ That the defendant, without any authority from said corporation, or any of its officers, and with intent to procure said ticket for his own purpose of unauthorized sale, sometime in the year 1854, at said Boston, carried the plate to one Thomas, a printer, who at his request and direction, and without complicity, but at a subsequent time, and before the finding of this indictment, and when the defendant was wholly absent, at said Boston, printed said ticket, which, at another subsequent time, and before the finding of this indictment, was delivered to the defendant, and afterwards was, at said Boston, sold by the defendant as one which would pass a person over that road.”</p> <p>Bishop, J. instructed the jury “ that the words on the ticket, taken in connection with the facts agreed, constituted a contract good and binding as if fully written out; there were two parties to it, namely, the corporation and the holder or bearer; and the corporation might be sued on it, if the bearer was refused a passage, or- was expelled from the cars by the conductor : Also that the name of said Fremyre was written on the ticket; that to be written, it need not have been signed by his sign manual or be in manuscript; it was immaterial whether the signature was made by a style, by a brush, by a type, or by a stamp or by a pen, if used by him or by his authority and direction: Also that the defendant was guilty of forgery, if he procured the ticket to be engraved and printed, although he was personally absent, and did nothing of it with his own hand; obtaining another person to do it was the same as doing it himself, whether he was present or absent when it was done: Also that there was no variance between the allegation and the proof as to the purport of the ticket, and that the purport of it was truly stated in the indictment: Also that there was no variance between the allegation that the genuine ticket was signed 'by said Fremyre, and the proof that the supposed signature was engraved or printed, if done by the authority and direction of Fremyre; and that if the jury believed the evidence, it supported the indictment in all its parts.”</p> <p>The jury returned a verdict of guilty, and the defendant alleged exceptions to these instructions.</p>

Indictment on St. 1851, c. 156, § 4, for larceny in a building of Timothy Hartnett. At the trial in the municipal court, it appeared that the said Timothy was the husband of the defendant; and the defendant contended that she could therefore be convicted of simple larceny only. But Hoa/r, J. ruled that the evidence was sufficient to sustain the charge of larceny in a building. And to this ruling the defendant, being found guilty, alleged exceptions.

<p>An indictment, which purports in its caption to have been found on the first day of the term, but charges an offence of a later date, may be shown, by reference to the elem s certificate indorsed thereon, to have been actually returned into court after this date.</p>

Indictment on St. 1852, c. 322, § 12, for being a common seller of intoxicating liquors. At the trial in the municipal court, there was evidence of more than three sales of intoxicating liquors at retail, by the defendant; but there was no evidence tending to show that the defendant was a manufacturer of spirituous or intoxicating liquors for sale, or a common seller of such liquors so manufactured by him.

<p>The provision of St. lb£2, c. 323, § 18, allowing the amendment of an allegation of a forme? conviction, on the tría? of an indictment for a second offence against that statute, is not a violation of the twelfth-article of the Declaration of Rights.</p>

<p>Indictment for receiving stolen goods, knowing them to have been stolen. Trial in the municipal court before Mellen, C. J., to whose ruling the defendant excepted. The only point raised by the exceptions is stated in the opinion.</p>

<p>Indictment on Rev. Sts. c. 126, § 29, for embezzling bank pills, the property of James Caesar, and received by the defend' ant as his agent.</p> <p>At the trial in the municipal court, at December term 1854, the evidence was that Csesar went into a boarding-house kept by the defendant, (with whom he had previously boarded, but did not then board,) and handed him the bills, saying, “ Keep this till to-morrow morning for me; ” and that on the following morning ihe defendant denied ever having received the money, and refused to give it up, and fraudulently converted it to his own use.</p> <p>Mellen, C. J. ruled that this indictment could not be maintained upon Kev. Sts. c. 126, § 29, but might be maintained upon § 30, which is thus: “ If any carrier or other person, to whom any money, goods or other property, which may be the subject of larceny, shall have been delivered to be carried for hire, or if any other person, who shall be intrusted with such property, shall embezzle, or fraudulently convert to his own use, or shall secrete, with intent to embezzle or fraudulently convert to his own use, any such money, goods or property, either in the mass, as the same were delivered, or otherwise, and before delivery of such money, goods or property, at the place at which, or to the person to whom, they were to be delivered, he shall be deemed, by so doing, to have committed the crime of larceny.” The jury returned a verdict of guilty, and the defendant excepted to this ruling.</p>

<p>Indictment against James Hawkins and James Hicks, for the murder of Alexander T. Leet. The first count duly charged the murder to have been committed by a stab in the heart with a dirk knife held by Hawkins. The second count charged the murder to have been committed by blows of the fists of Hawkins, and a wound with a metallic pitcher held by Hicks, and a stab in the heart with a knife held by Hawkins, of which blows and wounds Leet died. The attorney general entered a nolle prosequi as to Hicks; and Hawkins was tried on the 30th of May 1855, before the chief justice and Justices Metcalf and Bigelow.</p> <p>Before the jury were empanelled, I A. Bolles 8f T. S. Harlow, for the defendant, moved the court to quash the indictment, because the second count did not allege the blows and wounds to be mortal, nor state with sufficient certainty when and where the stabbing was perpetrated.</p>

<p>If the date and return day of a writ, in an action of contract, are altered after making the affidavit required by the Rev. Sts. c. 90, § 111, to hold the defendant to hail, Vat before service of the writ, the defendant cannot be arrested on that writ and affidavit.</p>

<p>Habeas corpus, issued by the chief justice, on the 18th of May 1855, on the petition of Joseph Hiss, representing that he was a member of the house of representatives of this commonwealth, and as such exempt from arrest on mesne process, while going unto, returning from or attending the general court; and that, while attending the general court as such member on the 17th of May, he was arrested and committed to the jail for this county, and there detained by William S. Bartlett, the keeper thereof, by virtue of a writ of copias and attachment sued out of the court of common pleas, supported by the affidavit required by law.</p> <p>The creditors, at whose suit the arrest was made, having had notice to appear, under Rev. Sts. c. Ill, § 19, filed an answer, admitting the arrest, and denying that the petitioner was a member of the house of representatives.</p> <p>At the hearing before the chief justice, it was proved by copies ipf the journals and files of the house of representatives, certified by their clerk, pursuant to St. 1844, c. 153, that the petitioner was duly elected, and qualified and acted, as a member of the house for 1855, and that a committee, appointed by the house to investigate his conduct on a visit to Lowell as one of a committee of the house, recommended his expulsion from the house, on the ground that “ his conduct upon the committee at Lowell was highly improper and disgraceful, both to himself and to this body, of which he is a member; ” and that the house, without giving him an opportunity to be fully heard by counsel, on the 10th of May resolved, “ for the reasons set forth in the report of the committee,” that he be expelled from the house.</p> <p>The case was argued before the chief justice.</p>

Habeas corpus, issued by the chief justice, on the 13th of June 1855, on the petition of Betsey J. Sullivan, representing that she was imprisoned in the jail at Cambridge, of which the respondent was keeper, under a mittimus issued by the police court of Cambridge, upon a conviction and sentence of the petitioner for an unlawful sale of intoxicating liquors, in violation of St. 1855, c. 215, § 15, from which conviction and sentence she had appealed to the next court of…

A complaint, made before a justice of the peace, on the 23d of June 1855, alleged that the defendant, at Washington in this county, on the 16th of said June, “ not being duly appointed by the said town of Washington as agent of said town to sell therein intoxicating liquors, and not having any legal appointtnent or authority to sell intoxicating liquors in said town, did then and there sell to one Nelson Rivault a quantity of intoxicating liquors, to wit, one pint of…

<p>Action of contract to recover the price of spirituous liquors sold by the plaintiff to the defendant, at Cobleskill in the State of New York, in quantities of more than five gallons at a time, but for the purpose, known to both parties, of being sold by the defendant at retail at the bar of a tavern kept by him at Cobleskill. The Rev. Sts. of New York, Pt. 1, c. 20, tit. 9, § 17, impose a penalty of twenty 'five dollars on any person selling spirituous liquors in any quantity less than five gallons at a time, without license from the commissioners of excise. The Sts. of N. Y. of 1845, c. 300, and 1846, c. 14, (in force when these sales were made, but since repealed by Si. 1847, c. 274,) provided for submitting to the electors of every town the question whether licenses should be granted, and enacted that if a majority should vote to grant no licenses, none should be granted in that town, and sales there at retail should be subject to the penalty imposed by the Rev. Sts. The town of Cobleskill voted to grant no licenses for the year 1846. The parties submitted the case to the decision of the court upon these facts.</p>

<p>On a promise, under seal, made by A to B, for the benefit of C, 0 cannot sue.</p> <p>An award, on a general submission in writing, whether under seal or not, of all disputes between A and B, that A shall pay certain debts of B to third persons, although made on the express condition that A shall receive certain property of B, will not support an action against A by one of such creditors to recover a debt specified in the award.</p> <p>An averment, at the end of a special declaration in contract, that the defendant owes the plaintiff the sum before mentioned, is a mere statement of conclusion of law from the facts stated, and not to be deemed admitted by demurrer.</p>

<p>There is no presumption in favor of a meeting of a proprietary, called only nine year* since by a justice of the peace, on the application of five persons representing themselves to be proprietors, that the petitioners were in fact proprietors.</p>

<p>Trespass against a deputy sheriff for taking and carrying away a quantity of1 hay. The case was referred by rule of court to referees, who made an award in favor of the plaintiffs, but reported the facts of the case to the court, submitting the questions of law arising thereon, and asking to have the award recommitted, in case the court should be of opinion that the plaintiffs were not entitled' to recover. From this report it appeared, that Benjamin Coles mortgaged the crop of grass growing on his farm in Great Barrington to the plaintiffs, who, with his consent, cut it and stored the hay in a barn on the farm, where it was attached by the defendant on a writ against Coles, that the plaintiffs sold considerable portions of the hay, both before and after the attachment; and, after the defendant had levied, on what remained, an execution issued against Coles in the action in which the attachment was made, made a demand upon the defendant, accompanied by a written statement of the balance due them on their mortgage, after adding the expenses of cutting and storing the hay, and deducting the amount of sales; notwithstanding which the defendant sold such remainder of the hay on the execution. One question of law submitted, the decision of which in favor of the defendant rendered the others immaterial, was, whether the plaintiffs had forfeited their right to make a demand upon the defendant, by selling a considerable portion of the hay after they knew of the attachment.</p>

<p>An inhabitant of this commonwealth, who removes from the town of his residence, with the intention of never residing there again, and of removing to another state, is still, so long as he remains in this commonwealth, liable to taxation in that town, until he acquires another domicil.</p>

<p>[t is no objection to the lawfulness of a commitment on execution of one of two judgment debtors, or to the validity of a bond for the liberty of the prison limits, given to relieve him from such imprisonment, that, before his arrest, he requested the officer to satisfy the execution out of the personal property of the other defendant, and offered to point out a sufficient amount of such property.</p>

<p>Writ of entry. Plea, mil disseizin. Trial before Thomas, J. who reported the case to the full court.</p> <p>Each party claimed title under a levy of an execution issued upon a judgment in his favor against John C. Van Deusen, the former owner of the premises; but the tenant’s attachment was earlier than the demandant’s, in the suits in which these judgments were recovered. The demandant offered evidence tending to show that the judgment of the tenant was fraudulent and void as against the creditors of John C. Van Deusen.</p> <p>The tenant, by leave of the presiding judge, then filed a specification of defence, in which he alleged that the demandant’s judgment was recovered in an action on notes made by Jacob H. Van Densen as principal and John C. Van Deusen and Isaac Van Deusen as sureties, in which property of all three defendants was attached; that after judgment and before levy, the plaintiff sold all his interest in the notes to Isaac Burghart, and that Burghart bought in collusion with Jacob H. Van Deusen and Isaac Van Deusen, and with money furnished by them, in order to enable Jacob to fulfil obligations, which he and others, including Isaac Van Deusen, had entered into, to convey the premises to Zadoc Rewee; that the real parties in interest in this case, as demandants, are Burghart, Jacob H. Van Deusen and Isaac Van Deusen; and that their objects, in having the levy made upon the premises, were to make a valid title to the same to Rewee, and to make the property of John C. Van Deusen pay the judgment, and to hinder, delay and defraud the defendant and other creditors of John. But the presiding judge ruled that the facts specified in defence, if proved, would not be an answer to the demandant’s case.</p> <p>The jury, under proper instructions as to what would prove the tenant’s judgment' to be fraudulent, returned a verdict for the demandant.</p>

Action of contract by the treasurer of the Union Mutual Fire Insurance Company, a corporation incorporated by the laws of New Hampshire, and doing business at Concord in that state, against the holder of a policy issued by them, to recover an assessment upon a deposit note, whereby the defendant promised “to pay said company or their treasurer for the time being, the sum of seventy one dollars, in such portions and at such time or times as the directors of said company may…

<p>in an action on a note payable to a person named or bearer, the production of the note by the plaintiff, not being the payee named, is sufficient evidence of his title, although he be the general agent of the payee, who is alleged in the answer to be the owner of the note.</p> <p>The bearer of a note payable to one named or bearer takes it subject to no equities or right ol‘ set-off which the maker would have against the original payee. v</p>

Writ of entry to recover a dwelling-house and land in Sheffield, occupied by the tenant. Plea, nul disseizin.

<p>Writ of error to reverse a judgment of the court of common pleas in favor of Goodrich, in an action of contract brought by him against Bodurtha and Davis. The errors assigned were these: 1st. “ That the said Bodurtha was not served with any process, nor had any notice of the original action, nor appeared thereto, nor authorized any person to appear for him.” 2d, “ That said Bodurtha was not at the time of issuing said process, nor has he since been, an inhabitant of this commonwealth, nor was any of his property attached, nor any order of notice issued, nor was he notified in any manner of the issuing of said process, or the pending thereof, nor did he authorize any agent or attorney to appear on his behalf in said action.” Plea, in nullo est erratum.</p> <p>The officer’s return on the writ in the original action, after setting forth service on Davis, concluded thus: “ I did not summon the within named Harvey L. Bodurtha, as he has no last and usual place of abode within my precinct.” The record of the original action described Bodurtha as “ of Hudson in the State of New York,” and, after setting forth the writ, proceeds as follows: “This action was entered at February term last, at which term the plaintiff appeared in court, by his attorneys Rockwell and Colt, Esquires, and the defendants came also, by their attorney H. Hubbard, Esquire, and had leave to file an account in set-off by middle of vacation, and this action was from thence continued by consent to this term. And now in this term, before the court here, comes the plaintiff, by his said attorneys, and the defendants, although solemnly called to come into court, come not, but make default of appearance here. It is therefore considered by the court here that the said Goodrich do recover against the said Bodurtha and Davis,” &c.</p> <p>The parties agreed that Hubbard would testify, if his evidence would be competent, according to the following certificate:</p> <p>“ This certifies that I was employed by said Davis to appear for him, and move a set-off, and have said action continued. I accordingly appeared, &c. for him, and had no communication with, or authority from, any other person to appear in said action. And my impression and belief is that the set-off was of said Davis’s account or demand against said Goodrich. “ H. Hubbard.”</p>

Bill in equity to restrain the defendants from disturbing, by their mill, the flow of water of Mill Brook, in Monterey, to the plaintiff’s mill, as appurtenant to which the plaintiff claimed a prior right to the use of the water.

Action of tort, commenced and tried before a justice of the peace, who gave judgment for the plaintiff. The defendant appealed to the court of common pleas, and there moved to dismiss the action, because the writ, at the time of its service and entry, contained no declaration, though one was filed on the return day. The court of common pleas overruled the motion, and the defendant appealed to this court.

Action of contract on the covenant against incumbrances, contained in a deed from the defendants to the plaintiffs.

<p>Action of tort for breaking and entering the plaintiff’s close in Alford. Answer, soil and freehold in the defendant.</p> <p>At the trial in the court of common pleas, before Byington, J. the plaintiff proved the trespass, and his possession, at the time cf the trespass, in right of his wife, the daughter of Stephen Sperry, who formerly owned the premises. The defendant, in support of his title, gave in evidence a mortgage deed of the premises made to him bv Sperry to secure the payment of several notes therein described; but did not produce any of the notes ; and the plaintiff thereupon contended that the defendant’s claim of title was not maintained. But the judge instructed the jury that proof of the due execution of the mortgage would prove the defendant’s right of entry, without producing in evidence the notes which it was given to secure, or proving that it had been foreclosed.</p> <p>The defendant called Frederick Fitch, who testified that, on the 11th of August 1831, at the request of the defendant, he went to the house of Sperry on the premises; that the defendant, Sperry and Russell Prindle were there; that Sperry said he wanted to give possession to the defendant, and went off the premises, while the defendant, Fitch and Prindle remained on, and Sperry said that he gave the defendant peaceable possession ; that the witness then, in the presence, and at the request, of Sperry and the defendant, signed a certificate; (which was produced ;) that he could not now tell whether it contained a true statement, but at the time knew what was done, and intended to certify the truth. Prindle testified that he was present at the time testified to by Fitch ; that Sperry and his wife went off the premises ; and that he signed the certificate, in the presence of the parties, as evidence of what had been done; but further than this he did not recollect what was said or done. The defendant then offered in evidence the certificate signed by the two witnesses, which was in the following words: “ We certify that we this day saw Captain William Johns enter upon the premises or farm of land situate in Alford in the county of Berkshire, heretofore occupied by Stephen Sperry, and take possession of the same under a mortgage of said premises, for breach of the condition of said mortgage. Alford, August 11 1831.” The plaintiff objected to the admission of the certificate ; but the judge admitted it, as evidence of an act done by the witnesses, at the request of Sperry and the defendant, in connection with the other acts done by the defendant and Sperry</p> <p>The jury returned a verdict for the defendant, and the plain tiff alleged exceptions.</p>

<p>A widow who has lived separate from her husband for many years before his death, with all her separate property, considerable in amount, secured to her separate use, and who has no children, is not entitled to an allowance out of his personal estate, under St. 1838, c. 145. And it is of no importance, in this respect, which party was the culpable cause of the separation; nor that a formal indenture of separation was executed, by which she covenanted not to claim any share in his estate; nor that, soon after executing such indenture, they cohabited for two or three days.</p>

<p>Action of contract, brought by William HadseE and Benjamin T. Whitman, to recover the amount of expenses incurred by them, as selectmen and committee of the town of Hancock, by taking down a meeting-house in that town.</p> <p>At the trial in the court of common pleas, before Hoar, J. the plaintiffs proved, by the records of the town of Hancock, that the warrant caEing the annual meeting of the town, which was held in April 1850, contained the following article: “ To see if the town wEl determine to buüd a town house, or provide a house or place in which the town may meet at aE times for the transaction of town business, and raise and appropriate money for the same ; ” and that the town, at said meeting, “ Voted, to buEd a town house: ” “ Voted, to accept the old meeting-house in said town, according to terms contained in a certain resolution of the proprietors,” (copied in the record,) which terms were, a condition that the town should within six months “ remove the same from its present site, and out of the materials thereof, construct a town house to be located in, or as near the viEage in said town as a suitable site can be procured for the same: ” “ Chose by vote the selectmen, viz. WEliam HadseE, Jason White and Benjamin T. Whitman, a committee to take down and remove the old meeting-house, procure a suitable site for a town house, and superintend the building of the same thereon, so as to comply with the conditions expressed in the foregoing resolution of the proprietors of said old meeting-house.” “ Voted, to indemnify the selectmen, as the building committee of the town house, against any claim for damages or costs which any proprietor of the meeting-house may legaEy substantiate against them or either of them, or any agent acting properly under their authority.” The defendants objected that these votes were not authorized by the article in the warrant. But the judge overruled the objection.</p> <p>The amount sought to be recovered in this action consisted oí a judgment for damages and costs recovered by Joshua Gorton a proprietor of a pew in said meeting-house, in an action of trespass brought against the plaintiffs and a contractor employed by them, for tearing down his pew, and of the fees paid to counsel and witnesses, and of-compensation for the time and.perso rai services of the plaintiffs, in defending that action. It appeared that the judgment and a portion of said fees was paid by Had-sell, and the remainder of said fees by the other plaintiff. The defendants contended that, the payments made and services rendered by the plaintiffs having been several, they could not join in this action. But the judge ruled that the plaintiffs, having been jointly sued, and having jointly incurred the expenses of defending Gorton’s suit, might join in this action.</p> <p>The defendants then contended that the power conferred on the plaintiffs, as well as the vote to indemnify them, concerned them jointly with Jason White, and that they could not maintain this action without joining White as a plaintiff. But the judge ruled otherwise.</p> <p>It appeared that the defendants had no notice of the bringing or pendency of the suit of Gorton against the plaintiffs, (unless it could be inferred from the facts above stated, which the judge ruled it could not be,) and the defendants, for that reason, contended that if they were liable to the plaintiffs for any sum thus recovered by Gorton, (which they denied,) they were not liable for the costs recovered by Gorton, nor for any part of the other costs and expenses incurred by the plaintiffs in defending that suit. But the judge instructed the jury that, notwithstanding the defendants had no notice of the pendency of Gorton’s suit, they would be liable for the costs and expenses and counsel fees incurred and paid in defending that suit, if it was reasonable and proper to defend it, and the expenses incurred were reasonable and necessary, and incurred in good faith.</p> <p>The jury returned a verdict for the plaintiffs; and the defendants alleged exceptions.</p>

<p>Bill in equity to vacate, for irregularity and illegality, proceedings in insolvency in the matter of the Cheshire Iron Works; and for an account of the personal property received by Gay as their assignee in insolvency; and to set aside conveyances of their real estate, fraudulently made" by Gay,-as such assignee, to the other defendants, with notice. The bill alleged, among other things, that the commissioner of insolvency, since the appointment of Gay, ordered a stay of the proceedings ; and that the Cheshire Iron Works subsequently made a quitclaim deed of all then- real estate to Seneca Pettee, the other plaintiff, a large creditor of the corporation.</p> <p>The defendants demurred to the bill for want of jurisdiction, for niultifariousness, and for misjoinder of plaintiffs.</p>

<p>Petition to the probate court, for partition of land in Adams, of which the petitioner owned one undivided twelfth part. In that court, the petitioner, by leave of the judge, filed an amendment of his petition, in which he represented that he had been informed that the court, at a former term, had decreed that partition of the estate should be made, and had appointed commissioners, and had accepted and confirmed their return, as a partition; and that said proceedings were void, and not binding on this petitioner; and he therefore prayed that they might be set aside, so far as he was concerned, and a new partition decreed. The probate court dismissed the petition ; and the petitioner appealed to this court, and assigned, among other reasons of appeal, that although the commissioners, in the former proceedings, set off, to those of the tenants in common from whom the petitioner derived his title, a share of less value than their aliquot parts of the land; and awarded that they should be paid by the other parties specified sums of money to make the pai> titian just and equal; yet the probate court ordered the partition to be established, before the sums so awarded were paid, or any security given therefor; and that said sums were still unpaid and unsecured. The decree of the court, accepting and confirming this partition, contained no recital that the money awarded by the commissioners had been paid or secured. At the hearing of this case before Thomas, J. it appeared that this money wa's not paid before the decree accepting the report, but was subsequently offered to the parties and refused. The judge reported the case to the full court.</p>

<p>Action of contract upon a judgment of a justice of the peace. At the trial in the court of common pleas, the justice of the peace, being called as a witness for the plaintiff, produced his book of records, containing a record of this case, which did not set forth any service upon the defendant. The writ in that case was not produced. The defendant contended that the evidence was insufficient to warrant a verdict for the plaintiff. But jBishop, J. instructed the jury that if they were satisfied that the record offered by the plaintiff was a true record, and that the judgment therein mentioned was unsatisfied, they should find a verdict for the plaintiff. A verdict was returned accordingly, and the defendant alleged exceptions.</p>

<p>Writ of entry by the assignee of Levi Gibbs and Frederick D. Ingersoll, copartners, insolvent debtors, to recover land which had been the separate estate of Gibbs. Both .tenants pleaded the general issue.</p> <p>At the trial before Dewey, J. the demandant gave in evidence an assignment to him from a commissioner of insolvency, “in the matter of Levi Gibbs and Frederick D. Ingersoll, partners under the firm of Gibbs & Ingersoll, and Gibbs, Ingersoll & Co., of Monterey, in said county, insolvent debtors,” of “ all the estate, real and personal, of the said insolvent debtors including ail the estate of which they were possessed, or which they were interested in or entitled to, on the [day of the first publication of notice], excepting such parts thereof as have been or shall be left in their hands, as being by law exempted from attachment.” The tenants contended that this assignment did not purpor t to convey any private property of Gibbs, and that the demandant therefore could not maintain this action.</p> <p>John Branning, one of the tenants, claimed title to the. land under a conveyance made to him by Gibbs, the other tenant, within six months before the commencement of the proceedings in insolvency, for its full value, the greater part of which was paid by giving up notes of Gibbs held by Branning and his wife. At the time of the conveyance, the private estate of Gibbs was more than sufficient to pay all his private debts ; but the debts of the partnership exceeded in amount the whole assets, both of the partnership and of Gibbs. The presiding judge instructed the jury “ that if, at the time of taking this deed, the firm of Gibbs & Ingersoll were insolvent, and Gibbs had good reason to believe such to be the case, and Branning also had reasonable cause to believe said firm to be insolvent, said deed would be invalid, and in violation of the statutes prohibiting preferences by insolvent debtors, although Gibbs had private assets more than sufficient to pay all his private debts.”</p> <p>The demandant, on the trial, offered in evidence the examination of Gibbs before the commissioner of insolvency, and his answers to various interrogatories then proposed to him. The tenants objected thereto ; but the judge ruled that, under the pleadings, it was competent evidence as against Gibbs, but instructed the jury to give it no effect as against Branning.</p> <p>At a subsequent stage of the trial, the tenants offered in evidence the formal oath of Gibbs, administered in accordance wi'.h the statute, previously to his discharge. This was objected to by the demandant, and, as it appeared to have taken place at a previous and distinct time from the examination put into the case by the demandant, it was rejected.</p> <p>The jury returned a verdict for the demandant; and the judge reserved the case for the consideration of the full court.</p>

<p>Replevin of fifteen bags of wool. At the trial in the court oí common pleas, the plaintiffs proved that they, through a bioltei in New York, on the 6th of March 1851, sold the wool to Earle & Thayer, woollen manufacturers at South Hadley in Hampshire county; that the terms of sale were the note of Earle & Thayer payable in six months; that, on the 13th of March, the wool was delivered to the Western Railroad Corporation, directed to Earle & Thayer at Springfield, and duly arrived at Springfield on the 14th; that Earle & Thayer failed and stopped business, without having given any note for the wool; and the plaintiffs, on the 27th of March, demanded the wool of the defendants, and paid them all claims for freight thereon.</p> <p>To meet this evidence, the defendants offered to prove that, on the 20th of March, Earle & Thayer sold this wool to Kellogg & Co. of Hartford, who advanced money thereon to Earle & Thayer, and had no knowledge or notice of the terms of the sale to Earle & Thayer, or of whom Earle and Thayer purchased, or how long it had been in their possession; and that the defendants received the wool of Earle & Thayer to be carried to Kellogg & Co. pursuant to the sale to them.</p> <p>But Hoar, J. instructed the jury that “if they should find that the sale from the plaintiffs to Earle & Thayer was a conditional one, and that nothing had been done by the plaintiffs or their agent to indicate a waiver of the condition, or a consent that the wool should be delivered and the property pass without the immediate return of the note; and if there had been no loches or want of diligence in reclaiming the property when it was found that the note did not come back; the property did not pass; and the facts which the defendants offered to prove would not constitute a defence.”</p> <p>The defendants submitted to a verdict for the plaintiffs, and alleged exceptions to these instructions.</p> <p>This case was argued and decided at October term 1853.</p>

<p>Action of contract to recover for services performed under the contract hereinafter mentioned. It was agreed that judgment should be entered against all the defendants, except Putnam ; and against him also, unless the court, upon the following statement of facts, should decide that he was discharged from this debt.</p> <p>“ The plaintiff Marsh and the defendant Putnam resided in Springfield, Massachusetts, prior to November 8th 1850. On the 8th of November 1850, Marsh went into the State of Georgia. Some time after arriving in Georgia, he was hired and employed by the defendants to superintend and construct certain masonry which the defendants had contracted to do in Georgia, and was to be paid by the defendants for his services monthly. The contract was made in the State of Georgia, and the payments were to be made there.</p> <p>“ Marsh remained in Georgia until March 11th 1852; liis wife, during his absence, remained and kept house in Springfield ; Marsh voted in his ward for city officers at the municipal election in Springfield in May 1852, and had not voted anywhere previously, after leaving Springfield in November 1850. Marsh went to Georgia by arrangement with one Barton, for the purpose of engaging in certain works there for which Barton had contracted, and not with any intention of removing his family there.</p> <p>“ Putnam was a resident of Massachusetts when he commenced the proceedings in insolvency under which he was discharged. The first publication of notice was on the 18th of November 1851; and his discharge is dated June 7th 1852 ”</p>

Debt against Samuel Knous and Edward Badger. The declaration averred a demise from the plaintiff to the defendants of certain rooms in Springfield; the defendants’ covenant to pay hiin a yearly rent of fifty dollars, in equal quarterly payments; and the amount of rent unpaid; and made profert of the lease. Plea, nil debet.

Action of tort against the city marshal of Springfield and his assistant, for taking and destroying intoxicating liquors under an order of the police court of Springfield, issued under St. 1852, c. 322, § 14, which was held unconstitutional and void by this court in Fisher v. Me Girr, 1 Gray, 1.

<p>Action of tort for filling up and obstructing the channel oí a brook, by which water was accustomed to be drained from the plaintiff’s land across the land of Allen Wolcott, one of the defendants. Trial before Thomas, J. who signed the following bill of exceptions:</p> <p>“ To prove the agency of Allen Wolcott, the plaintiff called one Keef, who testified that said Allen sent him as his hired man to fill up said channel, and that in consequence of such directions, he did aid in the work. On cross-examination the defendants’ counsel asked the witness, if Allen Wolcott, at the time be told him to fill up the channel, did not say Ashley had dug it out ? Upon objection, this was held to be inadmissible, The defendants’ counsel then asked the witness, 1 What did he say . Did he say Ashley dug the ditch?’ This was held incompetent. The defendants’ counsel then proposed the general question, ‘ What was said by the defendant Allen Wolcott, when he told the witness to fill up the channel ? ’ This was held to be competent, so far as it related to any directions given to the witness at the time; but incompetent, so far as it sought to obtain from the witness what Allen had stated as to the previous acts of the plaintiff. At a subsequent stage of the cause, it was proved by various witnesses, and was not disputed, that the plaintiff had dug out the channel, though to what depth did not clearly appear.</p> <p>“ The defendants produced the deposition of Francis W olcott, which was read in evidence. In cross-examination of said witness, the plaintiff put the following interrogatory: ‘ Have you received any letters or communications of any kind from any one in relation to the matter inquired of by this commission 1 If so, state when, from whom, and to what purport; if in writing attach all such communications or copies to your deposition.’ To which interrogatory the witness answered as follows: ‘I have received letters which are here exhibitedand three letters of Allen Wolcott, one of the defendants, so referred to, were annexed to said deposition. The defendants’ counsel proposed to read said letters in evidence, as part of the answer of the witness. The judge, upon objection being made, ruled that the annexation of the letters did not of itself make them competent evidence; that whether competent or not could be determined only by inspection of the court. No request was made to the presiding judge to examine the letters for this purpose. The leposition, with the letters annexed, may be referred to.</p> <p>“ To which rulings the defendants except.”</p>

<p>1 be testimony of a justice of the peace, to the former existence of a complaint and warrant, with his minutes indorsed thereon of the subsequent proceedings in a case before him, though not extended into a complete record, is sufficient, upon proof of a thorough and unsuccessful search among his papers for the originals, to warrant the admission of paroi evidence of their contents.</p> <p>A paper, certified by a justice of the peace to be a copy of a record of a case before him, is admissible in evidence of such proceedings, although made by him after the loss of the original, and pending a trial in which he had testified to its contents.</p> <p>In an action for a malicious prosecution of the plaintiff for maliciously removing a fence between his land and land of the defendant, the dividing line between which had been settled by arbitration, evidence of prior wrongful removals of the fence by the plaintiff, before the submission to arbitration, is inadmissible to prove probable cause for the prosecution.</p>

Action of contract for money paid. The defendant was an infant, between eighteen and twenty years of age, and had no father living, and did not reside with his mother, and she did not support him, nor receive his earnings. There was due him from the Dwight Manufacturing Company, summoned as trustees, at the time of the service of this process upon them, $19 for work.

Action of contract upon a policy of insurance issued to the plaintiffs upon the life of Alanson C. Currier, in which it is expressly “ understood and agreed to be the true intent and meaning hereof, that if the proposal, answer and declaration made by” the plaintiffs, “and upon the faith of which this agreement is made, shall be found in any respect untrue, then and in such case this policy shall be null and void.” In that proposal, the plaintiffs declare (among other…

<p>A policy of insurance against: fire, issued by a stock company, stipulated that a use of the buildings insured, “ at any time after the making, and during the continuance of this insurance,” for any trade or business, u denominated hazardous or extrahazardous, or specified on the memorandum of special rates, in the terms and conditions annexed to this policy, unless herein otherwise specially provided for, or hereafter agreed by this company in writing, and added to or indorsed upon this policy,” should avoid the policy; and that the conditions annexed should “ be used and resorted to in order to explain the rights and obligations of the parties hereto, in all cases not herein otherwise specially provided for.” One of the conditions was that if, after effecting insurance, the risk should be increased by any means in the control of the assured, or the premises be so occupied, with the assent of the assured, as to render the risk more hazardous, the policy should be void. Held, that the use of part of the premises for a trade or business, specified in the memorandum of special rates, and not mentioned in the policy, nor in dorsed thereon, avoided the policy, although the trades disclosed in the policy were also special hazards; and that paroi evidence was inadmissible to show that the use not disclosed did not increase the risk, and was in fact known to the agent of the company, who visited and examined the premises, agreed with the assured upon what facts were material to be stated, filled up the application and issued the policy.</p> <p>Under a policy of insurance against fire, issued by a stock company, on a factory and blacksmith’s shop, in consideration of an entire premium, and stipulating that if and so long as the premises should be used, without the written assent of the company, for certain trades, “ these presents shall cease, and be of no force and effect,” no recovery can be had for a loss of the shop by a fire originating in the factory, while a room in the factory is occupied, without the assent of the insurers, for one of the trades enumerated.</p>

Action of tort for the conversion of lumber, brought by the assignee of Davis & Kilburn, insolvent debtors. Answer, property in the defendant. At the trial in the court of common pleas, before Byington, J., the defendant introduced evidence tending to show a sale of the lumber to him from Davis & Kilburn on the 12th of June 1852, by the following instrument: “ 1852, June 12th.