Volume 70 — Massachusetts Reports

<p>Indictment on St. 1852, c. 322, § 12, in the following words : “ Commonwealth of Massachusetts. Hampshire, ss. At the court of common pleas, begun and holden at Northampton, within and for the county of Hampshire, on the second Monday of June in the year of our Lord one thousand eight hundred and fifty five.'</p> <p>“ The jurors for said commonwealth on their oath present, that Lewis B. Edwards of Northampton in said county, at said Northampton, on the first day of November in the year one thousand eight hundred and fifty four, and at said Northampton, from said last mentioned day to the eighteenth day of May in the year eighteen hundred and fifty five, without then and there having any license, appointment or authority therefor, first duly had and obtained according to law, was then and there a common seller of intoxicating liquors, the same not being cider then and there manufactured and sold for other purposes than that of a beverage, and the same not being the fruit of the vine, then and there sold and used for the commemoration of the Lord’s Supper; against the peace of said commonwealth, and contrary to the form of the statute in such case made and provided. A true bill.</p> <p>“ John Pomeroy, Foreman of the Grand Jury.</p> <p>“ L F. Conkey, District Attorney."</p> <p>At June term 1855 of the court of common pleas, held by Byington, J., upon the empanelling of the jury, the defendant informed the court that he had applied to the clerk to be permitted to inspect the records of the court, and more particularly, the record of the list of all the witnesses sworn before the grand jury during the term at which this indictment was found, if any such list were filed of record, and had been refused inspection of the record of the list; and moved the court to be permitted to inspect the record of said list. But the court refused. The district attorney, before the court refused the inspection, offered to furnish the defendant with a list of the witnesses sworn in his case, but the defendant insisted upon inspecting the record.</p> <p>The defendant then asked the court to inspect the records of the court, to ascertain if any such list, as required by law, of the witnesses sworn before the grand jury, had been returned and filed of record ; and it was found that a list of the witnesses so sworn was filed of record, not under the hand of the foreman, but of the clerk of the grand jury.</p> <p>The defendant then moved that the indictment be quashed and dismissed, for the following reasons :</p> <p>“ 1st. Because the foreman of the grand jury has not returned to court, under his hand, a list of the witnesses who have been sworn before the grand jury during the term, and no such list has been filed of record by the clerk.</p> <p>“ 2d. Because it does not appear that the persons who found said indictment were grand jurors, or jurors at all, for the county of Hampshire.</p> <p>“ 3d. Because it does not sufficiently appear, in said indictment, where the offence was committed.</p> <p>“ 4th. Because no offence is set out in said indictment.</p> <p>“ 5th. Because the law, on which said indictment is based, has been repealed.”</p> <p>The corut overruled the motion, and the defendant, being found guilty, alleged exceptions. He also moved in arrest of judgment for the reasons set forth in his motion to quash ; and, this motion being overruled,t excepted to this ruling also.</p>

<p>Rape. The indictment alleged that the defendant, at Wiltiamsburgh in the county of Hampshire, “ with force and arms, in and upon one Julia A. Alvord of said Williamsburgh, then and there in the peace of said commonwealth being, did violently and feloniously make an assault, and- her, the said Julia A. Alvord, did then and there, by force, and against her will, feloniously ravish and carnally know, against the peace of said commonwealth, and the form of the statute in such case made and provided.”</p> <p>The defendant, being tried in the court of common pleas, and found guilty, moved in arrest of judgment, because it was not alleged in the indictment whether the said Julia was or was not of the age of ten years; and because the indictment was wholly insufficient. But Sanger, J. overruled the motion, and the defendant alleged exceptions.</p>

<p>An indictment, which avers generally that the defendant, at a place and during a time specified, was a common seller of. intoxicating liquors, is sufficient, without setting forth specific acts of sale.</p> <p>The requiring of a bill of particulars, on the trial of an indictment for being a common seller of intoxicating liquors, is within the discretion of the presiding judge; and his refusal to require one is not subject to exception.</p> <p>An indictment which avers that the defendant, from a day named u to the day of finding this indictment,” was a common seller of intoxicating liquors, states the time with sufficient certainty.</p> <p>An indictment for being a common seller of intoxicating liquors during a period defined is supported by proof of commission of the offence during any part of the period.</p>

Indictment against the defendant for being a common seller of spirituous and intoxicating liquors. Trial in the court of common pleas, before Sa/nger, J., to whose rulings the defendant alleged exceptions, which are sufficiently stated in the opinion.

<p>Indictments for being common sellers of “ spirituous and intoxicating liquors.” Trials before Sanger, J., who ruled that proof of three sales of liquor which" was either spirituous or intoxicating would support an indictment in this form.</p> <p>Eagan, before his case was opened to the jury, by leave of the court, inquired if any member of the panel belonged to the Carson League ; and one answered “ that .he was a member of said league; that, as he understood it, the object of the society was to prosecute individuals for violation of the liquor law, so called; that assessments were made upon the members for the purpose of carrying out the objects of the society; that his membership consisted in subscribing for stock ; that he had paid one assessment thereon, and expected to pay more assessments ; that, so far as he knew, the amount of his assessments would not be changed or affected in any way by the result of this indictment; and that there was nothing, in the existence of his membership,, to prevent his giving a fair and impartial verdict, according to the evidence.” The defendant objected to the juryman, as disqualified to sit on the case. But the judge overruled the objection, and allowed him to remain on the panel.</p> <p>Before the jury were empanelled in Hayden’s case, one of the jurors requested to be excused from serving in this case, because he lived in the same town with the defendant. The judge asked the juror whether he had formed or expressed any opinion in regard to the case, or had any interest or bias in relation thereto; and the juror answered he had not. The judge said that the reason assigned by the juror was not of itself a sufficient excuse; but, in the exercise of his discretion, directed the juror to leave the panel, and a supernumerary to take his place. The defendant objected, and contended that, as that juror was unprejudiced and not disqualified, the defendant was entitled to be tried by the panel as alphabetically arranged; and his counsel cited, in this court, Commonwealth v. Reed, 1 Gray, 472; Rev. Sts. c. 95, §§ 20-23 ; Commonwealth v. Stowell, 9 Met. 574, 577.</p> <p>The defendants, being each found guilty, respectively alleged exceptions to the rulings above stated.</p>

Indictment for selling intoxicating liquors in violation of St. 1852, c. 322. At the trial in the court of common pleas, the jury returned a verdict of guilty on one count, but disagreed as to other three counts, and the district attorney entered a nolle prosequi on those counts.

<p>A railroad corporation, constructing their railroad9 across a highway without lawful authority, are liable to indictment for a nuisance.</p> <p>A railroad corporation were authorized by the county commissioners to raise a highway at a certain grade so as to cross their road on a level, and raised the highway accordingly, but at a steeper grade. The commissioners subsequently, on the application of the towns between which the highway lay, modified their former order by postponing the time within which it should be complied with, and assessed damages to the towns. Held, that that part of the second order assessing damages was unauthorized, and that the whole order was therefore void, and would not justify the corporation in not complying with the first order.</p>

<p>A scire facias, in the name and behalf of the Commonwealth, on a recognizance for the appearance of the defendant in a criminal case, is a civil proceeding, and the defendant, if he prevails, is entitled to costs, under Eev. Sts. c. 121, § 22.</p>

<p>An indictment, which charges the defendant with being a common seller of spirituous and intoxicating liquors from a day named “to the day of the finding, presentment and filing of this indictment,” is fatally indefinite.</p>

The defendant, having been convicted before a justice of the peace, of an unlawful sale of intoxicating liquors to Barnard King, appealed to the court of common pleas ; and there moved that the case be dismissed, because the copy of record, transmitted by said justice to the court of common pleas, did not bear the seal of the justice, nor any mark indicating a place of seal; and also because it was not duly attested by Stebbins as justice of the peace, nor by any justice of…

<p>The defendant was convicted before the police court of Springfield on a complaint made and sworn to by Elizur Bates, on the 16th of August 1854, charging him with unlawfully selling one gill of intoxicating liquors on the 12th of said August to a person to the complainant unknown; and appealed to the court of common pleas. It appeared, by the copy of the proceedings before the police court, that Francis Gray was the only witness whom the officer who served the warrant was directed to summon, and was the only witness who certified to attending Defore that court, and who recognized to appear before the court of common pleas.</p> <p>At the trial in the court of common pleas, at December term 1854, before Sanger, J., said Gray was called as a witness for the Commonwealth, and objected to by the defendant on the ground that he was insane. The judge, after hearing evidence on this point, ruled that the witness might be admitted. But the district attorney decided not to call him, and called William B. Turpin, who testified that he saw the defendant sell liquors to two persons at some time in the year 1853; and that he had no notice until within two hours that he was to be called as a witness in this case.</p> <p>The defendant asked the court to instruct the jury that if they were satisfied upon the evidence in the case that Bates, the complainant, did not, at the time when he made the complaint, know of the sale testified to by Turpin, and did not intend to complain of that particular sale, and did not have it in his mind at that time, they could not convict the defendant. But the court declined so to instruct the jury, and did instruct them, upon this point, that it was immaterial whether the complainant knew of the sale referred to, or intended to complain of it when he made the complaint, if they were satisfied beyond a reasonable doubt that the sale testified to by the witness was in fact made by the defendant prior to the date of the complaint and since the statute took effect. The jury found the defendant guilty, and he alleged exceptions.</p>

<p>Indictment for an assault and battery upon Edward C. Hogan. At the trial in the court of common pleas, before Sanger, J., it appeared that the assault was committed while Hogan was attempting to arrest a minor son of the defendant, under a warrant addressed to Hogan as police officer of Chicopee. The only authority, under which Hogan claimed the right to make the arrest, was that derived from the St. of 1851, c. 162, (which is copied in the margin,*) and from the following vote of the selectmen of Chicopee, passed on the 5th of September 1853: “ Voted, That Edward C. Hogan be appointed a police officer of this town, to continue in said office till the next annual town meeting, with all the powers of constable, except the power of serving and executing civil process,”</p> <p>The defendant contended that, as the selectmen were not authorized by the statute to appoint police officers for a specified time, but only during their pleasure, Hogan, although since duly sworn, was not duly constituted a police officer by this vote, and had no authority to make the arrest, and was a trespasser, and the defendant had a right to use reasonable and proper force and violence to resist him in his attempt to make the arrest. But the judge ruled that the appointment was valid, and that the defendant had no right to hinder or oppose Hogan in his attempt to make the arrest. A verdict of guilty was returned, and the defendant alleged exceptions.</p>

<p>Complaint against a schoolmaster, for an assault and battery on Lucy Ann Keach, a pupil in the public school kept by him. The complaint averred that the defendant on the 17th of December 1853 at Palmer, “with force and arms, in and upon Lucy Ann Keach, in the peace of the' said commonwealth then and there being, an assault did make, and her the said Lucy Ann Keach, with a ferule which the said Randall then and there in his right hand had and held, did strike divers grievous and dangerous blows upon the head, back, shoulders and other parts of the body [of her the said Lucy Ann Leach, whereby the said Lucy Ann Leach was cruelly beaten and wounded, and other wrongs to the said Lucy Ann Leach then and there did and committed] to her great damage, and against the peace of said commonwealth and the form of the statutes in such cases made and provided.”</p> <p>In the court of common pleas, the defendant, before trial, moved that the complaint be dismissed, because it was uncertain, repugnant and insufficient in law. But Sanger, J. ruled that the words above included in brackets might be rejected as surplusage, and the complaint still be sufficient to hold the defendant to answer; and overruled the motion.</p> <p>There was evidence that the pupil disobeyed a proper rule of the school, which had been published by the defendant to the school in her presence. The defendant introduced evidence to show that the pupil was obstinate, told falsehoods, and was insolent before and during the time of the punishment; and alleged that it was for all these faults that he inflicted the punishment. There was also evidence tending to show that the punishment was not very severe, till after the pupil had replied to him with insolent words and manner; and it was proved that the defendant ceased punishing when the pupil acknowledged her fault, asked forgiveness, and promised to behave better.</p> <p>The defendant asked the judge to instruct the jury “ that a school teacher is amenable to the laws in a criminal prosecution, for punishing a scholar, only when he acts malo anima, from vindictive feelings, or under the violent impulses of passion or malevolence; he is not liable for errors of opinion or mistakes of judgment merely, provided he is governed by an honest purpose of heart to promote, by the discipline employed, the highest welfare of the school and the best interest of the scholar; that he is liable in a criminal prosecution, for punishing a scholar, only when the amount of punishment inflicted is more than adequate to subdue the scholar, and secure obedience to the rules of the school.”</p> <p>The judge did not instruct the jury as requested, but instructed them “ that a teacher had a right to inflict corporal punishment upon a scholar; that the case proved was one in Which such punishment might properly be inflicted; that the instrument used (a ferule) was a proper one; that in inflicting corporal punishment a teacher must exercise reasonable judgment and discretion, and must be governed, as to the mode and severity of the punishment, by the nature of the offence, by the age, size and apparent powers of endurance of the pupil; that the only question in this case was whether the punishment in this case was excessive and improper; that if they should find the punishment to have been reasonable and proper, the defendant could not be deemed guilty of an assault and battery; but if, upon all the evidence in the case, they should find the punishment to have been improper and excessive, the defendant might properly be found guilty upon this complaint.”</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>An officer, called as a witness for the Commonwealth in a criminal case, was asked wnat he did in consequence of what was told him as to the commission of the offence, and answered that he started to look for the defendant; and the presiding judge admitted the answer in evidence. BeU, that the defendant had no ground of exception.</p> <p>Allowing the Commonwealth, in a criminal case, after the defendant has given evidence tending to prove an alibi, to put in rebutting evidence, though of the same character as had been introduced at the opening of the ca'se, is not subject to exception.</p>

Indictment for keeping a house of ill fame in Springfield. At the trial in the court of common pleas, a witness for the Commonwealth testified that he watched the house one night, and saw some men come out of it, and the men held conversation together outside the house, immediately upon coming out, neither the defendant nor any of the inmates of the house being present. The district attorney asked the witness to relate the conversation. The defendant objected.

<p>Assessors are liable, notwithstanding Rev. Sts. c. 7, § 44, for assessing, and issuing a war rant for the collection of a school district tax, if the school district was not legally established, although it was certified to them, by one as acting clerk of the district, that the tax had been voted by the district.</p> <p>In an action against assessors by one from whom they have caused to be collected a school district tax assessed by them, the burden of proving the legal establishment of the district is on the assessors.</p>

<p>A husband, who before his marriage had mortgaged land to a guardian for the benefit of his wards, afterwards became insolvent, and his assignee sold the land, the purchaser made a mortgage to the wards to secure a like amount, and the guardian discharged his mortgage upon the record, pursuant to a verbal agreement that the mortgage to the wards should be substituted for that to the guardian; the purchaser of the right of the husband afterwards sold the land, and his grantee redeemed the mortgage, before the husband’s death. Held, that under Rev. Sts. c. 00, $ 2, the widow was entitled to dower in the equity of redemption only.</p> <p>When a person claiming under the husband redeems a mortgage which was valid and effectual against the wife, she may, under Rev. Sts. c. 60, § 2, by action at law, have her dower assigned to her, first deducting from the value of the land the amount paid for the redemption of the mortgage. And a general demand of dower is sufficient to support such an action.</p>

<p>Action of tort for false representations made by Smith upon the sale to Burnett of five shares of stock in a manufachiring corporation. Answer, a denial of the false representations, and of the plaintiff’s having been thereby induced to purchase the shares.</p> <p>At the trial in the court of common pleas, it was admitted that, for these shares, and for other property sold at the same time, Burnett gave Smith his promissory note for $1,000; that Smith brought a suit on the note, to which Burnett pleaded want of consideration, and Smith obtained a verdict and judgment for $418. Smith contended that the proceedings in that suit were a bar to this action. But Briggs, J. ruled otherwise ; the jury returned a verdict for the plaintiff for $1,125, and the defendant alleged exceptions.</p>

<p>Writ of entry. Plea, as to a portion of the land described in the writ, nul disseizin ; and as to the residue, a disclaimer. Trial before Merrick, J., who made the following report thereof: “ This was a real action for recovery of a tract of land in Pelham, and the question was one of boundary. As to a portion of the land described in the writ, the tenant disclaimed; and as to the other portion, he pleaded nul disseizin.</p> <p>“ The demandant, as part of his case, read in evidence the deed under which the tenant claimed title, (filed for record on the first day of trial,) and referred to that part of the description in the deed which included a portion of the land disclaimed.</p> <p>“ The demandant also introduced evidence tending to show that the tenant had taken the rents and profits by cutting and occupation, within six years past, on said disclaimed portion.</p> <p>“ The tenant, in the course of his opening, stated that if he established his title either by deed or by adverse possession, the demandant could not recover.</p> <p>“ After this opening, and to avoid all misapprehension as to the extent of the demandant’s claim, the demandant’s counsel stated that he should claim the right to traverse the disclaimer, and to recover damages for rents and profits taken from the disclaimed parcel, as well as the lands not disclaimed ; and contended that no formal issue was necessary to do this, under St. 1836, c. 373.</p> <p>“ The court instructed the jury, if they found for the tenant on the question of seizin as to the land in dispute, to assess damages for the cutting and occupation on the disclaimed portion, if any were sustained. The jury found that the tenant did not disseize the demandant, and assessed damages for rents and profits of a portion of the land disclaimed.</p> <p>“ The tenant claimed title- by virtue of the description in the title deeds produced on trial, and also by adverse possession. The jury, upon being inquired of by the corn!, stated that they found for the defendant on the title deeds.</p> <p>“ Upon the foregoing facts, if the demandant is entitled to recover for the rents and profits, such judgment is to be entered as the whole court shall direct; if not, judgment for the tenant on the verdict.”</p>

<p>In order to give a citizen of the United States, twenty one years of age, a settlement under St, 1793, c. 34, § 2, cl. 4, by having a freehold “of the clear yearly income of three pounds,” (ten dollars) “ and taking the rents and profits thereof three years successively,” it is not necessary that he should have actually taken and received that sum yearly free of all charges.</p>

Action of contract. The declaration alleged that after the plaintiffs’ directors, pursuant, to then- act of incorporation, (St. 1851, c. 277,) had determined the amount of their capital stock, and had appropriated and set apart one moiety thereof for the construction of the section cof their road between Palmer and the village of Amherst, they then opened books of subscription for said capital stock, in shares of one hundred dollars each; “ that the defendant became a…

) where he had been sent by his former guardian. One reason of appeal was, that the appellant had no notice of the respondents’ application.

<p>Action of tort. The declaration was thus : “ And the plaintiff says there is in the town of Northampton a public highway leading from Welch End Bridge (so called) by the house of one George Kellogg towards Westhampton, which said de- , fendants are bound to keep in repair; that the same was negligently suffered by said defendants to be out of repair (after reasonable notice that the same was out of repair) at a place in said highway near the house of said George Kellogg, whereby the plaintiff, walking in and upon said highway at the place aforesaid, and using due care, was hurt.”</p> <p>The defendants filed the following answer: “ 1st. They deny that said highway was suffered by the defendants to be out of repair at the place alleged. 2d. They deny that they had reasonable notice that the same was out of repair, if defective at said place. 3d. They deny that the plaintiff was using due care at the time of the alleged injury. 4th. They deny that the injury complained of was caused by the alleged defect.”</p> <p>At the trial in the court of common pleas, before Sanger, J,, there was evidence tending to show that said highway was about sixty feet wide, partly covered with grass, and that the plaintiff, about noon, was passing from a dwelling house ad joining her father’s on said highway to go southerly along the highway, and within six or seven feet of the gate broke through with her foot a culvert over a ditch, covered with plank and then with gravel to the depth of from two to six inches; that this ditch had existed more than thirty years, and served principally as a watercourse for the water coming from the high ground west of the road, and also to carry off the water from the surface of the road; that the culvert was built since the erection of the houses on the easterly side of the road, and six years before the accident, under the direction of the surveyor of the district and the selectmen of the town, the owners of lands opposite contributing thereto, and had since been sometimes repaired by the selectmen and by. order of the surveyor; that at certain seasons of the year the culvert was not large enough to carry off all the water, and the water then overflowed and ran down the road by the side of the culvert, and at such seasons, to avoid the water and mud in the middle of the road, the travel passed along and upon the culvert.</p> <p>The defendants contended, and requested the court to instruct the jury, “ that if, previously to the erection of any buildings on the easterly side of the highway, and for more than thirty years, there had existed a ditch on that side, for the course of the water; and six years before the accident, the culvert was built for the convenience of the adjacent owners, and not for the purposes of general travel, and was not necessary for that purpose ; then the town would not be obliged to keep the same in repair, and would not be liable for damages caused to the plaintiff, by a defect in the same, even if it was built, in the whole or in part, by order of the selectmen or surveyor, provided the highway necessary for the public travel was safe and convenient, and in repair, both for persons travelling on foot and in carriages; or if the culvert was built by their order as a gratuity, the town being under no legal obligation to build it, that it would not create a liability, under the terms and restrictions above stated.”</p> <p>The judge declined so to instruct the jury, but instructed them “ that, upon the pleadings in this case, it was not open to the defendants to show that the place where the accident happened was not within the limits of the highway, or that they were not bound to keep the way at that place in repair; that whether the defendants had kept the highway at that place so in repair, that it was at that time safe and convenient for travellers, was a question of fact for the jury; that when the jury were passing upon the question of the safety and convenience of the highway, they should take into consideration the locality of the way itself, and the amount and nature of the travel over it; that it was the duty of the defendants to provide for the flow of the water, whether surface or other water; that they could do so by a gutter (either with or without a railing, as the mode of the construction of the gutter made a railing necessary or not, for the safety and convenience of the travel) or by a culvert or otherwise; but that in whatever way it was done, they must do it in such a way, as to leave the way safe and convenient for the travel over said way; that if the way at that place was not safe and convenient, considering the locality itself, and the nature and amount of the travel over it, then the defendants would be liable, if the plaintiff was at the time in the exercise of due care.”</p> <p>The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.</p>

Complaint, under the bastardy act, Rev. Sts. c. 49. The original complaint before a justice of the peace, and the complaint filed in the court of common pleas, both described particularly the time when and the place where the child was begotten.

Action of contract on a judgment recovered against the defendant, by the name of Edward Smith, on a note executed by him in that name. Answer, a certificate of discharge under the insolvent laws, obtained upon proceedings commenced since the recovery of the judgment, and conducted under the name of Edward P. Smith.

<p>Action of contract on three promissory notes, made by the defendants, two payable to J. F. Baker or order, and by him indorsed, and the other payable to said Baker or bearer. The corporation were defaulted.</p> <p>Levi Barrus, and three others, having each had a summons left with him, as a stockholder in the corporation, pursuant to St. 1851, c. 315, and had his property attached, filed an answer, in which they allege that the notes declared on came into the plaintiff’s hands when overdue, and without consideration, and are held for the sole use and benefit of Baker, the payee thereof, and that if said respondents are liable thereon as stockholders and members of the corporation, Baker is, equally with them and other stockholders, holden for a proportionate contribution to the payment of said notes ; and that there are numerous other notes and obligations of the corporation, which Baker and these respondents and other stockholders of the corporation are holden to pay, and that their shares of contribution can only be determined upon a bill in equity ; and the respondents, if liable at all to Baker, are liable only upon a bill in equity, and not till after a full ascertainment and adjustment of all contracts and obligations whereon the respondents and Baker and the other stockholders are jointly holden.</p> <p>The plaintiff demurred to the answer, 1st. Because the facts alleged therein, that Baker was a member of the corporation, and, as such, liable for their debts, and was the real plaintiff in this action, if true, constitute no defence to the maintenance of this action against said respondents for the benefit of Baker. 2d. Because it is not alleged therein that said respondents aie not officers of the corporation, and, as such, liable in this action for the benefit of Baker. 3d. Because the answer does not state a legal defence to the plaintiff’s action against said respondents, substantially in accordance with the rules of law.</p> <p>The court of common pleas sustained the demurrer, and the respondents appealed.</p>

Action on a bond made to the Commonwealth, “ for the use of the town of Northampton,” reciting the conviction of the defendant for selling intoxicating liquor, in violation of St. 1852, c. 322, § 7, and his sentence to pay a fine and costs, and to give bond not to violate within one year any law of the Commonwealth concerning the sale of spirituous or intoxicating liquors, and conditioned not to violate any such law within one year.

<p>A citizen of another state, or of a foreign country, will not be ordered to bring an action to try his title to real estate in this commonwealth, on the petition of a party in possession, under Si. 1852, c. 312, § 52.</p>

<p>Action of tort against a justice of the peace for issuing a mittimus under St. 1852, c. 322, § 14, on which the plaintiff was arrested, and obliged to pay the amount of the fine and costs mentioned therein in order to procure his discharge. At the trial in the court of common pleas at October term 1854, the defendant contended that, as that statute purported to give him jurisdiction of the complaint made before him against the plaintiff, no action would lie against him, if his proceedings conformed to that statute, although that section was unconstitutional. But Mellen, C. J. ruled that, as that statute was unconstitutional, his proceedings under it were unlawful, and he was liable to this action. The jury found a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Action of tort for obstructing a foot path leading from the back dooi of the plaintiff’s house to a well upon the adjoining land of the defendant. The parties submitted to the decision of the court the following case :</p> <p>On the 4th of February 1846 the lands, now owned by the plaintiff and defendant, constituted one close, owned by Edmund Jones, who on that day granted to “ Isaac Mixter, his heirs and assigns, a certain tract or parcel of land lying and being in Wilbraham,” by metes and bounds, (being the lot on which the plaintiff’s house stands,) “ together with the buildings thereon standing; granting to the said Mixter the right to pass and re-pass to my well for water. To have and to hold the aforegranted premises to the said Isaac Mixter, his heirs and assigns, to his and their use and behoof forever.” The words in italics were printed in the deed; the other words above quoted were written. On the 2d of April 1850 Mixter conveyed to the plaintiff by precisely similar words, even saying “ my well.” There is not, and never has been any other well or pump connected with the plaintiff’s house.</p> <p>At the time of the conveyance from Jones to Mixter, the ground between the plaintiff’s back door and the well was used as a garden; after that conveyance Jones set out a row of currant bushes upon each side of the path leading from that door to the well; and the path so remained and was used without obstruction till the 10th of April 1850, when Jones conveyed the land now owned by the defendant to Luther H. Bliss. At different times, before the deed to Bliss, Mixter and those occupying under him contributed towards building and keeping in repair the well curb, house over it, buckets and chains. After the conveyance to Bliss, the currant bushes were taken away, and the path ploughed up ; but no other obstruction was madv to the passage between the plaintiff’s house and the well. On the 2d of September 1852 Bliss conveyed to the defendant. All the deeds above mentioned are deeds of warranty. No mention of the well is made in the deed from Jones to Bliss, or in that from Bliss to the defendant. The defendant, after the conveyance to him, built a high and strong board fence on the line between his land and the plaintiff’s, entirely shutting up the foot path, and compelling the occupants of the plaintiff’s house to go> out of the front door of the plaintiff’s house into the street, and through the defendant’s yard to his well, being a circuit of one hundred and thirty feet from the plaintiff’s front door, or about four times the distance by the path from the back door to the well; and refused to allow them to go by that path.</p> <p>The defendant, in his answer, which was filed on the second day of the second term, pleaded that his name was Amariah D. Sanger, and not Amariah Sanger, and therefore that he ought not to be held to answer to the plaintiff’s writ.</p>

<p>Action of contract upon a promissory note for $1,900, made by the defendant on the 19th of January 1847, and payable in two years after date to George Dwight or order, and by him indorsed in blank.</p> <p>The defendant in his answer denied that the note was ever transferred to the plaintiff, or that the plaintiff was ever the holder thereof for value; and alleged that he made the note in behalf of and for the benefit and use of the Catholic Religious Society in Springfield, of which John J. Doherty then and for a long time afterwards was pastor and business agent; that it was agreed that the note should be paid by said society, and by Doherty from their funds and revenues, and that Doherty did collect such funds and revenues to an amount exceeding the amount of the note, and which ought to have been applied to the payment thereof f and that Doherty did pay and take up the note on the 1st of October 1850, and it ought to have been then cancelled and discharged ; that the note was then held by Doherty, and was obtained from him by the plaintiff since that time; and so the note was paid and void in the hands of Doherty, and the plaintiff’s possession thereof was without consideration, the plaintiff knowing that the note was invalid in Doherty’s hands.</p> <p>At the trial in the court of common pleas, at March term 1854, before Mellen, J., it appeared that the defendant, who was bishop of the Roman Catholic Church, gave the note in suit in part payment for a church and land purchased by him of Dwight, for the use of the Catholic Religious Society in Springfield, and secured this note by a mortgage on the land; and that on the 12th of April 1847 Dwight transferred the note to the Springfield Institution for Savings, by whom it was held until October 1850. The defendant offered in evidence the mortgage, together with an assignment thereof from Dwight to said institution for savings, dated April 12th 1847, and acknowledged October 2d 1850; an assignment from said institution to Doherty of the mortgage and note, dated and acknowledged October 1st 1850; and an assignment, dated and acknowledged October 2d 1850, from Doherty to Ephraim W. Bond, of the note and mortgage, conditioned to be void if Doherty should pay said Bond a promissory note for $1,000 given him by Doherty on the 1st of said October, and payable in one year from date, with interest semiannually. The plaintiff objected to the introduction of the mortgage and the assignments thereof in this suit on the note. But the judge admitted them.</p> <p>The treasurer of the institution for savings testified that on the afternoon of the 1st, or in the course of the 2d of October 1850, he, in behalf of the institution, received the amount due on the note (amounting, after deducting payments previously made, to $1,670) from E. W. Bond, who was an attorney, and did all the business relating to the payment of the note and transfer of the securities.</p> <p>The defendant offered in evidence declarations made to the treasurer of the institution by Doherty, before the transfer of the note by the institution, tending to show that he had received money for the payment of this note from the catholic society, of which he was then pastor. The defendant also offered to prove that in 1848 Doherty proposed to the society to raise the rents of pews, of which there were one hundred, nearly all rented, from five dollars to nine dollars a quarter, which was agreed to by the society, and Doherty himself collected the rents quarterly in advance for about two years, at that rate; and, about a year after this arrangement was made, announced from the desk in the church that he had paid about $800 upon the mortgage debt, and a year later (which was either on the Sunday before, or the Sunday after the 1st of October 1850) announced that all the debt was paid off; and that Doherty left the Commonwealth in November 1851, and his residence was not known to the defendant. The defendant also offered to prove declarations made by Doherty to third persons, after the 2d of October 1850, that he had paid off this note and mortgage. But the judge rejected all this evidence; and also ruled that, if admitted, it would not maintain the defence.</p> <p>The defendant contended that if the plaintiff was entitled to recover at all, he could recover only the amount of $1,000, as security for which E. W. Bond held the note and the mortgage ; and that the evidence in the case, as well as that offered and rejected, was competent for the purpose of showing that Doherty had no legal interest in the excess, upon which the plaintiff could recover such excess for his use, and of thus limiting the plaintiff’s right to said amount of $1,000. But the judge ruled otherwise, and directed a verdict for the plaintiff for the full amount of the note and interest. The jury returned a verdict accordingly, and the defendant excepted to all the judge’s rulings and rejections of testimony.</p> <p>This case was argued at Boston in January 1855.</p>

Action of contract on a joint and several promissory note for $400, payable to the plaintiffs, and signed by Sears as prinei pal, and the other defendants as sureties. Sears was defaulted; and the other defendants contested the case on the ground that the note, when signed by them, was a note for $100 only.

<p>One servant is not liable to an action by another servant in the employment of the same master for damages occasioned by the negligence of the first in such employment.</p>

<p>Action of contract for goods sold and delivered to the defendant by Andrew J. White, an insolvent debtor, of whom the plaintiff was the assignee. Trial in the court of common pleas, before Briggs, J., to whose rulings the defendant alleged exceptions. The facts are sufficiently stated in the opinion</p>

Action of tort, commenced in the court of common pleas. The declaration contained two counts, the first of which averred that the defendant, being lawfully committed to jail upon an execution in favor of the plaintiff, did, on his examination before two justices of the peace and of the quorum upon his application to be admitted to take the poor debtors’ oath, in reply to certain interrogatories put by the plaintiff, pertinent to said examination, knowingly, wilfully and…

<p>Petition, filed at May term 1855, for a writ of certiorari to quash the proceedings of the city council of Springfield, laying out "Willow Street in that city, from Union Street to State Street, over the petitioner’s land, being entirely upon his land from State Street to Stockbridge Street; and from that point southerly, for a distance of several rods, being upon his land to about one half the width of the way. The errors assigned were, 1st. That no sufficient notice of the proceedings was given; and 2d. That the petition on which the proceedings were had prayed for a location of the street for a small portion only of the distance from Union Street to State Street, namely, from the intersection of Stockbridge and Willow Sheets to State Street.</p> <p>The respondents, in their answer, alleged, 1st. That certiorari would not lie to the city council of Springfield., 2d. That the petitioner had due notice of all the proceedings in relation to the matter complained of. 3d. That the petition covered the whole of the street from State Street to Union Street. 4th. That substantial justice had been done, and that the errors and irregularities, if any, were in mere matters of form. 5th. That the respondents had been at great expense in laying out and working the street, and the petitioner, by his neglect and delay, had waived his right to have the petition granted.</p> <p>At the hearing before Bigelow, J. the following proceedings were proved, by the record of the city council: A petition, presented by David Smith and others, praying “ that a public highway should be laid out from the intersection of Stockbridge and Willow Streets to State Street, being a continuation of said Willow Street,” and referred on the 7th of August 1854 to the committee on streets and sidewalks. A petition of Charles Phelps and others, dated September 1st 1854, praying “ that Willow Street, so called, may be continued and opened through to State Street, as prayed for by David Smith and others, and that the whole of Willow Street, after it is continued and opened as aforesaid, may be accepted and established as a public street from Union Street to State Street; ” and referred on the 4th of September to the same committee. An order, dated September 2d 1854, of “ the committee on streets and sidewalks to which was referred the petition of David Smith and others,” directing the city marshal to give written notice, in the manner therein prescribed, “ to the owners of real estate over which such street is proposed to be laid or altered,” of a meeting of the committee to be held on the premises on the 11th of September “ for the purpose of acting upon said petition, and laying or altering said street.” The return of the city marshal that he had “ notified all the abutters and parties concerned in the petition of David Smith and others for the alteration and continuance of Willow Street, by serving 'on them written notice, as directed.” A report, dated October 16th 1854, of “ the committee on streets and sidewalks, to which was referred the petition of David Smith and others, and also the petition of Charles Phelps and others in aid of the same,” stating “ that they caused written notice to be given to all persons and corporations interested in said street, as appears by the officer’s return,” above stated ; that they met accordingly, and after hearing the parties, were of opinion “that the prayer of the petitioners be granted; ” and therefore recommending “ that Willow Street, running from Union Street to Stockbridge Street, be continued northerly to State Street, and the same be accepted as a city way, in accordance with the following survey and specification of the city engineer, to wit, beginning on State Street at the northeasterly corner of land of the Trustees of the Third Congregational Society, and running thence on the line of State Street northeasterly thirty seven feet to a stake, thence south 39j-° east to the northwest corner of a brick house belonging to David H. Bush, thence south 40° east to Union Street, thence on the line of Union Street soutlvwesterly thirty three feet to land of David Smith, thence north 40° west to the place of beginning; ” and that twenty days be allowed to owners of land to take off their trees, fences and other property ; and awarding seventy five dollars to the petitioner for his damages. And an order passed by the city council on the 23d of October, “ that Willow Street be continued from Stockbridge Street to State Street, and that the same be laid, located and established and accepted as a city way, according to the report of the committee on.streets and sidewalks, dated October 16th 1854,” and that the city treasurer pay the petitioner the seventy five dollars awarded him as damages.</p> <p>There was also evidence that the petitioner appeared before the committee on the day when the order of notice was returnable, and objected to the regularity of the proceedings, and especially to the sufficiency of the notice, and on the 9th of November 1854 filed with the city clerk a notice that he deemed the proceedings illegal and void, and intended to take such legal measures as might be necessary to protect his rights. It did not appear that any part of the street was constructed before this notice was filed. The presiding judge reported the case to the full court.</p>

Action of tort for the conversion of certain machinery sold to the plaintiffs by George C. Boyington. The defendant claimed title as assignee of Boyington under proceedings in insolvency commenced within six months after said sale; and alleged that the sale was void because made when Boyington was insolvent, to secure a preexisting debt to the plaintiffs, when one or both of them had reasonable cause to believe him insolvent.

<p>Action of contract, brought at October term 1851 of the court of common pleas, upon a promissory note payable to Elbridge Hazen or bearer. Answer, “ that the defendant was constrained to give the note by threats and fear of a prosecution for larceny; and that the consideration of the note was the staying and withholding a prosecution for larceny, which the payee of the note had caused to be commenced against the defendant, and which was stayed and withheld from the day of the date of said note to the present time; and that the note came into the hands of the plaintiff under such circumstances as to entitle the defendant to this ground of defence.”</p> <p>A trial was had at the first term, and resulted in a disagreement of the jury. The plaintiff, at March term 1854, without order of court, filed a replication, alleging that on the 17th of May 1850 he sued out a writ to foreclose a mortgage given by the defendant to secure five notes, of which the note now in suit was one, which writ was duly entered, and to which the defendant pleaded the general issue, and specified in defence, “ 1st. That said mortgage was without consideration ; 2d. That it was obtained by fraud; 3d. That it was obtained to compound an alleged felony and crime ; 4th. That it was obtained by duress and threats; ” and upon a trial the jury returned a verdict foi the plaintiff, and such proceedings were had that afterwards at April term 1852 of the supreme judicial court a conditional judgment was rendered in favor of the plaintiff for the amount of the note in suit and of another note described in the mortgage; (as appeared by a copy of the judgment;) and the amount of said judgment not having been paid, on the 7th of July 1852, a writ of possession was issued and duly served, and the plaintiff took possession of the premises for condition broken.</p> <p>Trial in the court of common pleas at May term 1854, before Mellen, J., who signed the following bill of exceptions: “ The plaintiff contended that the judgment in the former action estopped the defendant from setting up the defence set up in the answer filed in this action. The defendant objected to the replication being considered by the court, because not properly in the case. The judge ruled that the defendant was not so estopped, and therefore the plaintiff excepted. If the ruling is sustained, or if the plaintiff was not entitled to file his replication at the time when it was so filed, as matter of right, the ease is to stand for trial, otherwise the defendant is to be defaulted.”</p>

<p>One authorized by a debtor to compromise with his creditors for a certain proportion oí their debts, and who receives the debtor’s property to be sold and converted into money for that purpose, and obtains the written agreement of some of the creditors so to compromise, is not chargeable as trustee of the debtor at the suit of a creditor who did not so agree, for money obtained from such sales, and paid out pursuant to such compromise before the service of the trustee process; nor for such money retained by him as attorney for creditors who had made such agreement; nor for amounts which, upon the execution of a discharge of their debts, he had given such creditors a written promise to pay; but is so chargeable for such money in his hands, although he had promised In writing to pay it to such creditors when they should discharge their debts.</p>

<p>Petition in equity, under St. 1838, c. 163, § 18, by the executors of a private creditor of Fordyce Alexander, who had proved his claim in insolvency against the estate of said Fordyce, praying that the respondent, assignee in insolvency of said Fordyce, and of the firm of F. & L. L. Alexander, of which Fordyce was a member, might be ordered to revise his account, which had been allowed by the commissioner of insolvency, by crediting to the private estate of Fordyce, instead of to the partnership estate of F. & L. L. Alexander, real estate of Fordyce, taken on execution by the respondent on judgments recovered against F. & L. L. Alexander in suits against them on partnership debts, in which suits attachments of said real estate had been made before the assignment to the respondent, and had been ordered by the commissioner to survive in order to prevent such estate from passing to persons to whom Fordyce had transferred it since the attachment and before the commencement of the proceedings in insolvency, and which suits the respondent had prosecuted to final judgment and execution by leave of the court in which they were pending.</p> <p>The respondent demurred to the petition.</p>

Replevin of two horses, a wagon, harnesses and buffalo robes, attached by the defendant, as constable, on a writ against John Underwood.

<p>Action op contract against Daniel Pomroy and Francis T. Swan, describing them as late partners in the butchering business under the firm of Pomroy & Swan, on a negotiable promissory note signed with their individual names. Swan was defaulted. A trial was had in the court of common pleas at August term 1855, before Mellen, C. J., who signed the following bill of exceptions:</p> <p>“ It appeared that the signature of the defendant Pomroy was not affixed to the note by himself, nor in his presence. The plaintiff offered evidence to show that it was affixed by Swan, acting as Pomroy’s agent. The defendant Pomroy objected to paroi proof that the name was affixed by an agent, that fact not appearing on the face of the paper. The evidence was admitted by the court, the court ruling that it was competent to show that the signature of Pomroy was put to the note by an agent thereto duly authorized, though no words of procuration appeared on (he face of the note; and the court left the question of fact to 1 he jury to find, whether Swan, by whom it was proved Pomroy’s name was written on the note, had authority to sign Pomroy’s name to the note without naming his agency.</p> <p>“ There was evidence tending to prove that Swan was employed by Pomroy as his agent to manage the butchering business in the town of Shelburne from May 1853 to September 1853. The plaintiff introduced evidence tending to show that Pomroy succeeded one Martin in the prior firm of Swan & Martin, who carried on the business of buying and selling meat and slaughtering. And the books and acts of the defendant Pomroy; and his dealings; books of account kept in his own name, containing credits of cattle purchased by said Swan for the business, while it was going on, and, in two or three instances, notes entered and charged in payment of the same accounts opened with each, also showing the small amount of moneys advanced by Pomroy to carry on the business, compared with the exigencies of the business carried on; and the fact that, in some other instances, notes were signed in the same way, in similar transactions ; were offered in evidence to show in the first instance an authority in Swan to bind Pomroy by note, as a partner, and in the next place, as agent, under an authority express or implied from Pomroy as principal.</p> <p>“ The counsel for the defendant Pomroy requested the court to instruct the jury that no implication of authority to sign the note arose from the fact that Swan was an agent to carry on the business,'as shown by the evidence ; and that such authority was not to be implied from the nature of the business. The court declined so to give the instructions, as matter of law, but left it to the jury, upon all the evidence in the case, to find whether Swan was authorized by Pomroy to sign his name to the note in suit without naming his agency.</p> <p>“ There was evidence tending to show that another note to one Hall, signed similarly to that in the present action, had been paid by Pomroy under protest, and upon receiving security which he deemed to be sufficient from Swan.</p> <p>“ The defendant’s counsel asked the court to instruct the jury that the payment of a single note under these circumstances could, at the most, prove nothing more than that the defendant misunderstood or was willing to waive his real rights. But the court declined so to rule, as a matter of law, and instructed the jury that this was a question of fact for them to determine, how far this evidence, under the circumstances, tended to prove an agency in Swan to sign the note in suit. And the judge further charged the jury, that if they should find that the giving of notes was necessarily incident to the management of the business Swan was authorized by Pomroy to conduct for him, the agency would imply an authority for that purpose.</p> <p>« To these refusals and rulings the defendant excepts.”</p>

Writ of dower of sixteen acres of land in Gill, known as the Stoughton lot, and thus described: Beginning at a stake and stones at the westerly corner of said lot, thence southeasterly seventy six rods ; thence northeasterly forty rods and twenty two links; thence northwesterly sixty seven and a half rods; thence southwesterly thirty one and two thirds rods to the point of beginning. Plea, that the husband of the demandant was never seized of the land.

<p>Action of tort against a constable of West Brookfield, for neglecting to attach two horses, a sleigh and harness, on a writ in favor of the plaintiff against David R. Hallowell. Trial in the court of common pleas, before Sanger, J., to whose rulings and instructions the plaintiff alleged exceptions, the material part of which is stated in the opinion.</p> <p>This case was argued and decided at Northampton.</p>

Writ of entry to recover a tract of land in Hadley. Plea, nul disseizin. Trial before Thomas, J., who reserved the case for the consideration of the full court. So much of the evidence as is material to the understanding of the questions of law considered by the court, is stated in the opinion, which was delivered at September term 1856.

<p>A counsellor, appointed by the court to perform the duties of prosecuting officer in the absence of the district attorney, cannot act as such in a criminal case depending upon the same state of facts as a civil action in which he had been previously employed; and if he is allowed to conduct such prosecution, against the objection of the defendant, it is ground of exception.</p>

Action of contract. The declaration alleged that the plaintiff on the 28th of August 1848, at Westfield, made a promissory-note for fifty dollars, payable to the defendant or order on demand with interest; and on the 7th of November 1848 paid the defendant fifty dollars; that the defendant agreed to indorse and apply this sum on said note, and signed and delivered to the plaintiff a written receipt in the following words : “ Received of Martin Sacket fifty dollars to be…

<p>A deed of low lands sold for nonpayment of the costs of improvement assessed thereon by commissioners appointed by the court of common pleas, pursuant to Rev. Sts. c. 115, passes no title, unless the return of the commissioners to the court shows the appointment of the collector by whom the deed was made.</p>

<p>Action of tort for breaking and entering the plaintiff’s close m Springfield, described in the writ as “ bounded northerly on Bridge Street, easterly on land now or lately of Silas Cook, southerly on James Barnes’s land, westerly on land now or lately belonging to the heirs of Elias Champion.” The defendant justified as servant and tenant of James Barnes, under a right of way claimed by Barnes, for himself, his servants and tenants. The parties submitted the case to the decision of the court upon the following facts:</p> <p>On the 25th of October 1844, the plaintiff, being the owner of a lot of land in Springfield, bounded on the north on Bridge Street, on the east, in part, on land of the eighth school district, on the south on land of the heirs of Justin Lombard, and on the west on land of the heirs of Elias Champion; and also of another lot, adjoining the first on the east, and bounded on the north by land of said school district, and on the south by land of Lombard’s heirs; made a deed of warranty to Silas Cook of land described as follows: “ Beginning at the northwesterly corner of a lot now occupied for a school ground of the eighth school district, and running westerly on Bridge Street forty one feet six inches to a passage way reserved by me to be used as such, and to be used by the grantee and his assigns as a passage way in common with myself and others under me; then southerly on a line parallel to the line of said school ground about ten rods to land of the heirs of Justin Lombard, Esquire, deceased ; thence easterly by said Lombard’s line forty one and a half feet; thence in a direct line northerly to the place of starting ” ; also the other lot above mentioned, to the east of the first. On the 7th of January 1846 Cook conveyed the same premises by deed of warranty to Calvin Stebbins, describing the same right of way; and on the 23d of March 1846 Stebbins conveyed to James Barnes the part of said premises farthest from Bridge Street, including the eastward lot, and described as “ beginning at a point one hundred feet from the south side of Bridge Street on the easterly side of a passage way sixteen feet wide, and running by said passage way to land of the heirs of Justin Lombard,” &c.; “ together with the free and uninterrupted use of the passage way about sixteen feet wide, above mentioned, to Bridge Street, and all my right and title thereto, reserving however to the owner of the estate which I now occupy the right to use the same.” Barnes purchased of Justin Lombard’s heirs the land lying south of the passage way, and erected several houses thereon, one of which was occupied by the defendant as bis tenant. The defendant, by permission of Barnes, used the passage way in passing to and from his house and Bridge Street, and this is the alleged trespass. The ownership and occupation of the lands above mentioned, at the date of the writ, are shown in the plan in the margin.*</p> <p>On the 18th of December 1851 all the plaintiff’s estate was assigned under proceedings in insolvency, and on the 1st of November 1852 the assignees made a quitclaim deed to the plaintiff of the locus, describing it as a “piece of land situated on the southerly side of Bridge Street,” &c., “ and opened as a passage way by said Stearns, running southerly from Bridge Street to land of James Barnes.”</p>

<p>A person, who procures notes to be discounted by a bank, impliedly warrants the genuineness of the signatures of the makers and indorsers; and such implied contract is not a representation concerning the character, credit or ability of another, within the statute of frauds.</p> <p>A director of a bank who procures notes to be discounted at the bank, if he acts in his individual capacity, impliedly warrants the genuineness of the signatures; and has no ground of exception to a refusal to instruct the jury, in an action on such a warranty, that if the making of the discounts was partly in consequence of his being a director, the implication of warranty would not arise.</p> <p>One who procures notes to be discounted at a bank is not the less responsible for the genuineness of the signatures because he does it as agent of another, unless the bank knew or had reasonable cause to know his agency.</p> <p>Evidence that a person, procuring notes to be discounted by a bank, said, when offering them for discount, that they were good, and in case of nonpayment he would see them paid, is no evidence of a waiver by the bank of the implied warranty of the genuineness of the signatures.</p>

<p>Appeal from a decree of the judge of probate for the county of Hampden, admitting to probate the will of Clark Cooley. The only reason of appeal relied on was, “ that, after the execution of said will, the circumstances of said testator, and the situation and value of his property, so greatly changed as to operate a revocation of said will.” Trial before Thomas, J., who was of opinion that the facts offered to be proved would not show a revocation of the will, and reported the case to the full court. The substance of the will and of the evidence offered at the trial is stated in the opinion.</p> <p>The case was argued in writing in June last by H. Morris, for the appellants, and E. W. Bond, for the appellee.</p>

<p>A bill of exceptions to rulings of the court of common pleas cannot be entered in this court, unless it was presented to that court at the term at which the trial was had, and allowed at the same term, or the case ordered to be continued.</p>

<p>tn an action on a promissory note, purporting to be indorsed by the defendant, a guaranty signed by the defendant, on the same note, is admissible in evidence of the genuineness of the indorsement.</p> <p>A promissory note dated at Hadley, and payable at a bank in an adjoining town, was presented at the bank at maturity by a notary, and dishonored, and the notary, being told by the cashier that the indorser lived at Hadley, addressed by mail a notice to -him at Hadley, not knowing that there was a distinct post office in the same town, at North Hadley, three miles nearer the indorser’s residence, and at which he usually received his letters. Held, that the notice was sufficient to charge the indorser.</p>

Petition by the town of Norwich, Reuben L. Bromley, of Chester, and Chester A. Dewey and Lyman Dimock, of Norwich, for a mandamus to compel the building and completion of a section of highway lying in that part of the town of Norwich, (the name of which has been since changed to Huntington by St. 1855, c. 35,) in the county of Hampshire, which was set off from the town of Chester in the county of Hampden by St. 1853, c. 421, passed on the 25th of May 1853.

Action of tort to recover damages sustained by reason of the insufficiency of the railing of a highway in Warwick, whereby the plaintiff’s horse and wagon were precipitated down a bank into a pond. One ground of defence was that the plaintiff was not using due care at the time of the accident, and that the vicious conduct of the horse occasioned or contributed to the injury; and evidence on this point was offered on both sides at the trial in the court of common pleas.

<p>Writ of entry to recover a tract of land in Northfield. Trial in this court, when the demandant gave in evidence a deed of the land from Charles Mattoon as assignee in insolvency of Simeon Mallory, one of the tenants; and the assignment previously made by the commissioner to Mattoon of all said Mallory’s property, which included this land.</p> <p>The tenants objected to the validity of the demandant’s title, on the ground that the proceedings in insolvency, which were commenced on the petition of a creditor of said Mallory, were irregular and void, because the clerk, by whom all the proceedings, including the hearings preliminary to the issuing of the warrant, were recorded, was appointed and sworn by the commissioner on the same day on which the petition was filed, and more than two months before the issuing of the warrant. The presiding judge overruled the objection, and the tenants excepted.</p> <p>This case was argued in writing, and decided in June last.</p>

<p>The payee of a promissory note, not negotiable, for $120, delivered it to a third person, taking back the following writing: “ Received a note [describing it] for which I am to collect and account to the said payee the sum of $110 when the note is collected, or ro turn said note back to said payee, if I choose.” Held, that paroi evidence of contemporaneous conversations between these parties was inadmissible to explain and qualify the construction of the writing, even in an action brought on the note by such third person in the name of the payee; that the writing did not prove an assignment coupled with an interest, but a mere power to collect, which was revoked by subsequent payment made to the original payee and accepted by him in discharge of the note, though of a stlm less than was then due on the note, and made with notice of the assignment.</p>

<p>At the end of a will, duly executed and attested, containing many gifts and bequests, in-eluding some to the testator’s children of notes which he held against them, but containing no residuary clause, the following clause was added, also duly executed at the same time and attested by the same witnesses: “ N. B. I have not property sufficient to pay all my just debts and all the foregoing legacies in full-, it is my intention and will that the sev eral legatees shall receive in exact proportion to the several sums given to each legatee; and if my estate shall amount to more than is sufficient to pay the several legacies, it is my intention and will that the several legatees shall receive an additional sum, to be duly apportioned according to the foregoing sums, in such manner as to include my whole estate.” Held, that this clause was to be deemed part of the will; and that the whole of the testator’s property, real as well as personal, not otherwise specifically disposed of, was to be apportioned among the legatees, in proportion to the amounts of their legacies, including the notes given to them.</p>

<p>Action of contract, brought in the name of Justus Crafts of Whately. At the first term the plaintiff’s counsel moved tc amend the writ by striking out the word “ Crafts ” wherever ii occurred, as a part of the name of the plaintiff, and inserting “ Stark ” in the place thereof. The defendant afterwards filed an affidavit of defence, and an answer denying the contract declared on.</p> <p>At the hearing at a subsequent term, upon this motion to amend, it appeared that there was a Justus Crafts, and also a Justus Stark, residing in Whately; that said Crafts had no claim against the defendant; but said Stark had, as he alleged, such a claim as was set forth in the writ, and retained the plaintiff’s attorneys to bring the action in his own name ; but by their mistake it was brought in the name of Justus Crafts. Thomas, J. ruled that the court had no power to grant the amendment prayed for; and the plaintiff thereupon became nonsuit, subject to the opinion of the whole court.</p>

<p>Trespass on the case. Writ dated April 10th 1851. The declaration alleged that the plaintiff, on the 1st of July 1847, and from that time to the present, had been seized and possessed of a tract of land in West Springfield, (described,) which was valuable for the purposes of cultivation,mowing and tillage, and from which the water which fell upon the same, and which flowed upon it from adjacent lands, was accustomed before that time, for a long space, to flow through a certain drain or watercourse leading from said land, over and across the adjoining land of the defendant; that the plaintiff was also, during the same time, seized and possessed of a right of way leading to his lot over and across the adjoining land of the defendant, with teams, carts and carnages, with his crops, hay, grain, &c., which right of way the plaintiff had, during the time aforesaid, and long before, used, occupied and enjoyed, to his great profit and advantage ; and that the defendant, on said first day of July and at other times since, had ploughed up and filled up the watercourse and drain, and raised an embankment upon his lot, so as to cause the water to flow back upon the plaintiff’s lot, and upon the land of the defendant over which the plaintiff had said right of way, and to render the plaintiff’s land spongy, rotten and of no value, and the right of way soft, miry, impassable and of no use to the plaintiff, and had kept up and maintained the embankment, and kept the drain and watercourse filled and stopped up, during all the time aforesaid, to the great damage of the plaintiff.</p> <p>All the lands mentioned in the declaration were formerly owned by Solomon Ashley, Senior, the plaintiff’s father, whose widow was duly appointed administratrix of his estate; and to whom the lot now claimed by the plaintiff was set off for her dower in 1822, without any recital as to any easement upon the defendant’s lot. The defendant claimed title under a deed made by said administratrix in 1823, under license of the probate court. The case was tried in this court at September term 1851, and a verdict returned for the plaintiff, which was afterwards set aside as against the weight of evidence. A new trial was had at May term 1854, before Dewey, J., who made a report thereof, after a verdict for the plaintiff, to the full court, the substance of which is stated in the opinion. The arguments upon this report were had at Boston in January 1855.</p> <p>The defendant at the same.'time moved in arrest of judgment, on the ground that the declaration set forth no legal cause of action ; and argued that it was insufficient, in not setting forth any legal title to a watercourse, and containing no averment that the water had been accustomed usually to flow as alleged for twenty years ; and cited Greenleaf v. Francis, 18 Pick. 117; Shields v. Arndt, 3 Green Ch. 246; Angelí on Watercourses, § 4.</p>

<p>The Si. of 1852, c. 94, § 22, which provides that the police court of Springfield “ shall have original jurisdiction of all suits and actions which may now or at any time hereafter be heard, tried and determined before any justice of the peace in the county of Hampden, and exclusive jurisdiction whenever all the parties reside in Springfield, and service of the writ is had on the defendant in said comity; and no writ, in any such action or suit, shall be made returnable before any justice within said city of Springfield, but to said police court only,” takes away the jurisdiction of justices of the peace to try any civil action whatever within the limits of Springfield.</p> <p>A motion to dismiss a case, for want of jurisdiction in the justice of the peace before whom it was commenced and tried, may be first made in the court of common pleas on appeal from the judgment of the justice.</p> <p>On the dismissal by this court, on appeal, of an action which was dismissed by the court of common pleas for want of jurisdiction, the defendant is entitled to costs.</p>

<p>An indictment, which avers that the defendant at a time and place named feloniously assaulted A. B., and, being then and there armed with a dangerous weapon, did actually strike him on his head with said weapon, is sufficient, without repeating the words “ then and there ” before the words “ did actually strike.”</p>

<p>A complaint, made to the police court of Milford, alleged that the defendant on the 4th of December 1854 sold intoxicating liquor to Jonathan Pierce, in violation of St. 1852, c. 322; and that the defendant had been convicted on the 2d of October 1854 of a like unlawful sale. Plea, autrefois convict.</p> <p>At the trial in the court of common pleas, before Briggs, it appeared, by the record of the former conviction, that the sale therein mentioned was to Jonathan Pierce; and the evidence was that the same witness testified on the former trial, who was relied on to support this complaint, and that the only sales ever made by the defendant to Pierce were on two separate days in June 1854. The defendant, requested the judge to instruct the jury “ that in order to obtain a conviction in this case the Commonwealth must show on which of the sales "the first conviction was had.” But the judge declined to give such instructions.</p> <p>The defendant also requested the judge to instruct the jury that the allegation of a previous conviction was not sustained without proof that the offence charged in this complaint was committed since the time of the alleged previous conviction. But this instruction was also refused. The defendant, being convicted, alleged exceptions.</p>

Indictment for a nuisance caused by the carting, depositing and screening of large quantities of coal, since the 1st of May 1854, by means of which large quantities of coal dust were emitted. At the trial in the court of common pleas, the district attorney introduced evidence tending to show that the defendant had been for several years the agent of the owners of a coal yard, in their business of depositing and screening coal, and had managed that business for them.

<p>Action of tort for breaking and entering the plaintiff’s close in Northbridge, described in the declaration as bounded “ westerly by the road,” and cutting down the plaintiff’s fence thereon standing. Answer, that the fence stood in said road, (being a public highway,) and was removed by the defendant as surveyor of highways of the town.</p> <p>At the trial in the court of common pleas at December term 1853, before Mellen, J., the plaintiff introduced evidence showing the existence of a close owned and occupied by him, bounded in other respects as described in the writ, and bounded on the west by the track of a beaten, travelled road ; that his title was under a deed which embraced land on both sides of the road, and the road itself; and that the defendant had entered and cut down a fence which stood some feet eastwardly of the line of the travelled track. He also introduced one or more witnesses to show hostility on the part of the defendant towards him, and that the cutting down of the fence was done with malice.</p> <p>The defendant, in justification of the acts complained of, gave evidence that he was a surveyor of highways of the town j that said road was within his district; that a highway, running nearly along the line of said travelled track, was located by a committee of the court of sessions in 1821, and soon after such location a fence, of the kind commonly called a Virginia fence, "was erected a short distance eastwardly of the fence cut down by him; that the original fence had been removed from time to time, and other common kinds of fences erected on the line where it stood, for more than twenty years, and until within less than two years of the trespass complained of, when the existing fence was removed, and a new one erected by the plaintiff nearer the travelled track.</p> <p>The defendant further introduced-evidence which tended to show that the location of the highway could not be ascertained, either by monuments or records; and contended that the line of the fence first erected must therefore be deemed and taken to be the true boundary of the highway, by virtue of Rev. Sts. c. 24, § 61. He also introduced evidence tending to show a dedication to public use, as a highway, of the space between the ancient fence and the limit of the travelled track, and that the fence removed by him obstructed the travel.</p> <p>The plaintiff, by cross-examination of the defendant’s witnesses and otherwise, introduced evidence in reply, tending to show that the location of the highway could be ascertained, and that the locus in quo was without the limits thereof; and that the fence erected by him was a temporary structure merely, and did not obstruct the public travel.</p> <p>The plaintiff then offered to show that the defendant did not remove said fence in the discharge of his duty as surveyor, but from malice and hostility to the plaintiff, and with design to do him injury. But this evidence was rejected by the court.</p> <p>The plaintiff contended, that if a straight line, drawn through the westernmost angles (being those nearest the road) of the Virginia fence, was to be deemed the true line of the fence, or if the zigzag line formed by the rails of the fence was to be deemed the true line, for the purposes of the Rev. Sts. c. 24, § 61, portions of the fence cut down would have stood in the plaintiff’s close, and not in the highway; and that the portion of the plaintiff’s close within the westernmost angles of the fence, and separated from the highway by the rails of the fence, could not be deemed to have been dedicated by the owner to the use of the public.</p> <p>On this point the judge instructed the jury “ that an owner of land might set one half of his division fence on the land of an adjoining proprietor; that, where land bounded on a highway, the owner would have the same right as against the public, if .the fence were a reasonable and proper one ; that whether this species of fence was reasonable and proper would depend upon the nature, value and situation of the land; that, if the jury found this fence to be a proper one in the place where it stood, the jury could not infer, from its so enclosing the land so contained within said angles, that said land so contained was not intended to be dedicated as aforesaid, or was not within the true line of the highway; but the jury should consider the centre line of the rails to be the true line of the fence for the above purpose.”</p> <p>A question being made as to the burden of proof, the plaintiff requested the court to instruct- the jury, “1st. That if he proved to the satisfaction of the jury a close owned and occupied by him, extending westerly up to the track of a travelled road, and conforming in other respects to his declaration, and a trespass thereupon by the defendant, a prima facie case would be made out. 2d. That if, to meet or rebut this prima facie case, the defendant would rely, either on the fact that there is a highway in existence, or that the location of said highway cannot be ascertained, the burden of proof of both these facts is upon him.”</p> <p>“ The presiding judge gave in substance the above directions to the jury, as prayed for, and further instructed them that the burden of proof throughout the whole case was upon the plaintiff; that the term 1 road ’ in his declaration, under the circumstances of this case, was equivalent to ‘ highway ’; and that, if upon the evidence the jury were not reasonably satisfied that the trespass was committed within the close described in the writ, or doubted whether it was within the limits of the highway, they should find a verdict for the defendant.”</p> <p>The jury found a verdict for the defendant, and the plaintiff alleged exceptions.</p>

<p>A lease, from the owner of a scythe shop and water power, of a building adjoining his shop, “ for the purpose of carrying on the foundry business,” H with the right to take water power from the wheel and shaft that now carries a fan bellows in said scythe shop at all times when there is water sufficient to carry a fan bellows to blow for the stack in said foundry,” gives the lessee no right to use the water power for any other purpose than a fan bellows, even though properly incidental to the foundry business, so as to impede the lessor’s fan bellows.</p> <p>In an action for removing a belt by which water power was communicated to the plaintiff’s machinery, and placing it so as to run the defendant’s machinery, accompanied with a claim of right so to do, and with such forcible acts and threats as to lead the plaintiff to believe that such interruption would be continued, the plaintiff cannot recover, as damages, for the expense and delay of fitting up another wheel to drive his machinery.</p>

<p>It seems, that the Massachusetts General Hospital may maintain a bill in equity for an account of the net profits arising from the insurance of lives, one third of which the insurers are bound by law to pay to said hospital.</p> <p>A defendant in equity cannot, after filing a general answer, object that the plaintiff has an adequate remedy at law.</p> <p>A mutual life insurance company, which is required by its charter to pay annually to the Massachusetts General Hospital “ one third of the net profits, if any, which shall have arisen from insurance on lives made during the preceding year,” is liable, by virtue of St. 1846, c. 82, (if its charter was granted since the 11th of March 1831, and therefore svb ject, under St. 1830, c. 81, and Rev. Sts. c. 44, § 23, to amendment, alteration or repeal,) to pay to said hospital one third of the excess of the dividend over six per :,ent. annn* ally payable to the holdeis of the guaranty capital actually paid in.</p>

Action of contract against the acceptors of a draft for $280.37.

<p>Action op tort for breaking and entering a close in Douglas held by the plaintiff under a lease from Abner Whiting. Answer, soil and freehold in the defendant. The parties submitted the case to the decision of the court upon the following facts :</p> <p>In 1819 Caleb Whiting died seized of the premises. His last will, which was duly proved, after providing for the payment of debts and legacies, and for the support of his wife, contained the following clause : “ All the residue and remainder of my estate, both real and personal, excepting what is requisite to enable my executor, hereafter named, to pay the above mentioned debts and legacies, and to give my beloved wife, Hannah Whiting, a comfortable maintenance and a decent burial, I give, bequeath and devise to the children of my son David Whiting, to be equally divided amongst them or their heirs, at the decease of their father, David Whiting. It is my will that the use and improvement of the above mentioned legacy to the children of my son David Whiting be appropriated during his life to the maintenance and support of his family.”</p> <p>David Whiting, at the time of the making of said will and of the decease of the testator, was living, and had a wife and six children, of whom Frederick Whiting was one. Joshua Fairbanks, the executor named in the will, died as early as 1822. On the 22d of May 1830, David Whiting made a deed of the land included in this residuary devise, with the usual covenants of warranty, to Frederick Whiting, and received back a bond conditioned to support him and his wife during his life. On the same day, four of the other chidren, and in 1831 and 1832 the remaining child of David Whiting, made quitclaim deeds to Frederick Whiting, covering their interest in all said land. And Frederick entered and continued in the occupation of said land/ supporting David and his wife, who lived in Frederick’s family in the dwelling house upon the premises, the produce of which during that time was consumed in the support of Frederick’s family, including said David and wife, until the 18th of June 1838, when Frederick made a warranty deed of land, including the locus in quo, to the defendant and another person; and the locus was afterwards, and before the trespasses sued for, set off to the defendant by partition between him and his cotenant, and he was in undisturbed possession thereof from the time of said deed until the 1st of April 1853. Before May 1852, Frederick became insolvent, and ceased to support David and his wife, who in May 1852 fell into distress, and applied to the town of Douglas, in which they had their legal settlement, for support as paupers; and in August 1852 the probate court, on the petition of one of the overseers of the poor of Douglas, appointed Abner Whiting trustee under said will, who on the 1st of April 1853 entered and made the lease to the plaintiff. David and his wife are both alive, and have no property or means of support, unless under said will.</p>

<p>Action of tort for breaking and entering a close in Webster, part of the land devised by the following residuary clause in the will of Daniel Rawson, which was made in 1841, and proved in 1843:</p> <p>“ I give and bequeath all the rest and residue of my property and estate, real, personal and mixed, including my homestead in said Webster, with the stock thereon, to Charles Yeomans, of said Webster, his heirs, executors and administrators, in trust for the sole, separate and exclusive use of my said daughter, Lucy Morris, wife of 'Godfrey Morris, her heirs and assigns forever, the same to be at her only, sole and separate disposition; the said trust fund not to be interfered with by her husband, or liable for his debts; and upon the further trust that he hold and manage said property under the direction of said Lucy during her coverture ; and that he sell, exchange, invest and reinvest said property or any part thereof as she may order and direct, paying over to her the income, and, if required, the principal thereof, upon her sole separate order and receipt, her marriage or coverture with said Godfrey notwithstanding; and upon further trust that, in ease she may survive the said Godfrey, he assign and convey the same to her, to hold the real estate in fee simple, and the personal property forever, to her own use; and that if said Lucy should make any disposition by will or other writing of said property, which she is at liberty to do, he pay, convey and deliver over said trust property to such person or persons as she may name; and if she does not make any such disposition, that he pay, convey and deliver over said trust fund, or what may remain in his hands, to her children, to be equally divided between them, meaning hereby that he shall pay and distribute what may remain of said fund at her decease, in case she make no will, in the same way and manner the same would have been distributed had she died intestate, sole and unmarried, to her children, if she leave any, and if not, to such as would inherit when the intestate leaves no children.”</p> <p>Charles Yeoman, named in the will as trustee, declined the trust, and Erastus Spaulding was duly appointed his successor. During the lifetime of Lucy Moms, said real estate was in her occupation and control. On the 23d of January 1850, she died intestate, leaving her husband and two children, Lydia Morris and Augustus Morris, both then minors. Lydia Morris after-wards became of age, and married John Davis, and, on their petition, partition was made in the probate court between her and Augustus, and the estate described in the writ was set off to Augustus. Augustus died on the 1st of August 1850, under age and unmarried. On the 29th of May 1854, Erastus Spaulding, the trustee aforesaid, not having previously made any conveyance of the real estate so devised, conveyed the same to Lydia Morris; and she and her husband gave a quitclaim deed thereof to the plaintiff, who entered on the premises and brought • this action for a subsequent trespass by the defendant. The defendant justified his entry and alleged trespass under a license from Godfrey Morris, the husband of Lucy Morris, who claimed the estate by descent from his deceased son Augustus.</p> <p>The parties submitted the case to the decision of the court upon the facts above stated, with an agreement that if the plaintiff was entitled to recover, judgment should be rendered for him for nominal damages; otherwise, judgment for the defendant.-</p>

<p>Action of tort for trespassing upon land in Hubbardston, formerly owned by John Browning. The parties submitted the case to the judgment of the court upon the following facts:</p> <p>The will of John Browning, who died in 1809, contained the following clauses : “ I give and bequeath unto my beloved wife, Clara Browning, one full third of my estate, both real and per-, sonal, for her use and improvement agreeably to the law in that case made and provided.” “ The remainder of my estate I give and bequeath unto my children, to be divided among them all,” [in certain specified proportions,] “ and further it is my will that my children shall receive their respective portions when they arrive at the age of twenty one years.” The premises were set off in 1814, by commissioners duly appointed by the judge of probate, to the widow, who, claiming to hold the same in fee, in 1838 conveyed them by warranty deed to Moses Phelps, under whom the plaintiff" claims. The widow died in 1852. The defendant is the husband of one of the daughters of John Browning, and made the entry upon the premises, which is the trespass complained of, for the purpose of asserting his wife’s right to a share therein.</p>

<p>An action on the bond of a collector of taxes, brought by authority of the town treasurer, in the name of the town to whom it was made, may be maintained without proof of a formal vote of the town authorizing the action.</p> <p>The want of assent of a school district to a vote of the town uniting it with another school district is no objection to the validity of a school district tax assessed by the united district.</p> <p>It is no objection to the validity of a school district tax assessed at a meeting called by the prudential committee, appointed by concurrent votes of the town and school district, that the town did not vote, at the annual meeting in that year, if it had the year previous, that teachers should be selected and contracted with by the prudential committee, pur suant to St 1839, c. 137.</p> <p>An appointment by selectmen, of a collector of taxes, “ in place of J. S., deceased,” is a valid appointment, under St 1838, c. 43, to hold until another is chosen, although that limitation be not expressed in the appointment.</p> <p>A school district valuation, which is expressly “based on the town valuation ” for the same year, need not contain any description of real estate and machinery taxed, if it appears by the correspondence between the figures opposite the names of each person in the two valuations, and by the description in the town valuation, that the property was situated within the school district.</p> <p>An assessment of a school district tax on a lot of land, part of which does not lie within the district, is void as to the whole of that lot; but this does not affect the validity of the assessment, in the same valuation, of other lots within the district, to the same owner, by separate descriptions.</p> <p>A school district tax on real estate and machinery situated within the district, and belonging to an inhabitant of the town, though not of the district, may be assessed either to him, or to the tenant.</p>

<p>Action of contract upon the covenants for the payment of rent, for the payment of taxes, and against waste, contained in the following indenture of lease :</p> <p>“ This indenture, made this tenth day of September it. the year eighteen hundred and forty four, by and between James H. Wall and Edward H. Hemenway, both of Worcester in the county of Worcester, traders, of the one part, and Warner Hinds, of the same Worcester, innholder, of the other part, witnesseth, that the said Wall and Hemenway, of the one part, do hereby lease, demise and let unto the said Hinds, his executors, administrators and assigns, all that tavern estate and boarding-house, situated on the west side of Main Street, and between Elm and Maple Streets, in said Worcester, and bounded on the east by the new range of stores recently erected by said Wall and Hemenway, so far as the same extend, and otherwise by said Main Street; on the south by said Elm Street; on the west by land of Calvin Foster; and on the north by Maple Street; together with all the rights, privileges and appurtenances to the same belonging.</p> <p>“ To have and to hold the same to him the said Hinds, his executors, administrators and assigns, for the term of nine- and an half years from the first day of October next; provided, however, that the said lessors or their legal representatives may terminate this lease at the expiration of five years from the said first day of October, by giving to the said lessee three months’ notice in writing of their intention so to do, and taking, at the appraisal of three judicious, disinterested men, one to be chosen by each of said parties, and the other by the two that may be so selected, all the furniture of the lessee belonging to the establishment, and tendering him payment therefor, accordingly. If, however, upon receiving such notice, the said Hinds, his legal representatives or assigns, shall, within thirty days therefrom, give notice in writing to the said lessors or their legal representatives, that he or they will continue to hold the demised premises for the residue of said term, at the rate of fifteen hundred dollars per annum, he or they shall have the right so to hold them, notwithstanding such notice given them by the lessors or their legal representatives as aforesaid.</p> <p>“ And the said lessee does, for himself and his legal representatives, covenant with the said lessors that he will well and truly pay the rent of thirteen hundred dollars a year, in quarterly payments of three hundred and twenty five dollars ; and should said rent be enhanced to fifteen hundred dollars a year upon the contingency before expressed, he shall then pay that sum in like quarterly payments of three hundred and seventy five dollars for and during the residue of said term ; provided always, that if the premises should be destroyed by fire or other casualty, then the payment of rent and the relation of landlord and tenant shall wholly cease, at the election of either party. And at the end of the term the lessee; or his legal representatives, shall quit and deliver up the premises to the lessors or whomsoever shall be entitled to the possession of the same, in as good order and condition as the same now are or may be put into by the lessors, reasonable use and wearing thereof, and accidents by fire and other injuries not happening through the fault of the lessee, excepted. And the said lessee does further covenant that he will pay all taxes levied or to be levied on the premises during said term, and for such further time as the said lessee shall hold the same; and not make or suffer any waste thereof, underlet, or make alterations to the injury of the freehold, without the consent of the lessors; and that they may enter to view and make improvements, and expel the lessee if he shall fail to pay the rent as aforesaid, or make or suffer any strip or waste of the premises; and that the same shall be occupied and upheld as a tavern and boarding-house during said term. In witness whereof the said parties have hereunto set their hands and seals the day and year first above written. James H. Wall, [Seal.]</p> <p>Signed, sealed and delivered ) E. H. Hemenway, [Seal.]</p> <p>in presence of Ira M. Barton. ) Warner Hinds, [Seal,]</p> <p>(! Memorandum. It is further agreed that the rent shall be paid on the demised premises, the one half to said Wall and the other half to said Hemenway, and this memorandum is hereby made a part of the foregoing indenture James H. Wall, Witness, Ira M. Barton. E. H. Hemenway</p> <p>Warner Hinds.</p> <p>“ Worcester, ss. Sept. 10, 1844. Then personally appeared J. H. W. above named, and acknowledged the foregoing instruments to be his free act and deed.</p> <p>“ Before me, Ira M. Barton, Jus. Peace.”</p> <p>After the commencement of the trial, and the introduction of evidence on both sides, the case was taken from the jury by consent of parties, and submitted to the decision of the court, upon the following case stated :</p> <p>Under the covenant for the payment of rent, the plaintiffs claimed rent for the quarter ending October 1st 1853, at the rate of $1,500 a year. It appeared that the defendant assigned the lease on the 17th of May 1845 to Wood & Fisher, from whom, through sundry mesne assignments, the interest of the lessee vested in William A. Richardson on the 24th of March 1852; and that the plaintiffs had received rents of such assignees. The defendant contended that the effect of such assignments and receipt of rent from the assignees was to release the defendant.</p> <p>In support of their claim for rent at the rate of $1,500 yearly, the plaintiffs gave no evidence of any notice from them to terminate the lease, and take the furniture, as therein provided, other than a written notice delivered to" the plaintiffs on the 18th of July 1849, signed by Weld & Harrington, who were then the assignees of the lease, stating that they had received such a notice from the plaintiffs, and informing the plaintiffs that, availing themselves of the provisions of the lease, they should continue to hold the premises for the residue of the term at the rate of $1,500 a year. And the plaintiffs contended, and the defendant denied, that this paper furnished evidence of a giving of such a notice by the plaintiffs, or of a waiver thereof, which would entitle them to recover the increased rent.</p> <p>The defendant contended that the lease was determined in consequence of the destruction of the buildings by fire on the 4th of September 1853, and the election of the tenant to terminate the lease on the 1st of October 1853, as indicated by the following facts: The building was occupied as a tavern and boarding-house, pursuant to the lease, and contained more than one hundred lodging rooms, twenty of which were occupied by permanent boarders. The fire originated in the attic, the whole inside of which was charred, and a hole about six feet square burned in the roof; a cistern in the attic, from which the house was supplied with water, was so injured as to render it temporarily useless; and a portion of the ceiling of two of the rooms in the next story burned. A large quantity of water was thrown upon the building at the time of the fire, which rendered seven of the rooms temporarily uninhabitable, and saturated the ceiling and walls of nearly all the main part of the house, so that there was a general dampness in that part of it for some weeks; and the plastering on the lower and main entry fell off in five or six places ; and about ten days after the fire, a large piece of the plastering, weighing about six hundred pounds, suddenly fell, which a guest, then passing, narrowly escaped. In the course of a week after the fire, the plaintiffs caused the holes in the roof to be stopped up, but did not do it effectually, so that one rainy night the tenant was obliged to change the beds in some of the rooms after the guests had retired, and a stream of water ran down stairs, and left more than a hogshead on the lower floor in the entry. The plaintiffs received $1,428 of the insurance company by whom they were insured, for the damage done to the building at the time of the fire. All guests who offered themselves were entertained until the 23d of September, when Richardson, the tenant, gave written notice to the plaintiffs that in consequence of the injury done to the house by the fire, and of the plaintiffs’ neglect to put it in condition for occupation, he considered the lease as. at an end, and should vacate the premises on the 1st of October, and not pay any rent since the fire. On the 24th of September, the tenant entertained a military company there, as he had agreed a week before to do. All but one of the permanent boarders, most of whom occupied rooms in that part of the house which was injured by the fire and water, left the house immediately after the fire; but a few of them did not leave in consequence of the fire, and several returned. Richardson testified that he considered the lease as tel minated by the fire; and another witness testified that he heard Wall say, the day after the fire, that he had seen the house, and supposed the lease was terminated by the fire, and that he (the witness) soon after communicated this statement to Richardson. Richardson also testified that he continued to occupy the premises after the fire, in the expectation of obtaining a new lease; and that, if he could have got a new lease at the expiration of the old one, he could have got along, without discontinuing business, by making repairs a little at a time ; but that it would have taken a month to put the premises in complete repair. There was also evidence that, eight or ten days after the fire, negotiations for a new lease were commenced with the plaintiffs in behalf and at the request of the tenant, and were broken off on the 17th of September; but it did not appear that the plaintiffs were informed that the tenant expected such new lease to take effect before the 1st of April 1854, when the old lease would expire by its own limitation.</p> <p>The defendant further contended that this action could not be maintained in the name of the plaintiffs jointly; because the lease provided that the portion of rent due to each should be paid to him.</p> <p>Under the covenant for the payment of taxes, the plaintiffs claimed $197.50, for taxes on the demised premises for 1853. It appeared that at the time of the execution of the lease, and ever since, the assessors of the city of Worcester had taxed the plaintiffs by one valuation for the “ Worcester House estate,” which included the demised premises, and also a block of stores mentioned in the lease, and occupied by other tenants of the plaintiffs. Until the year 1853, the taxes on the whole estate were paid by the plaintiffs, and two thirds thereof repaid to them, as the proportion belonging to the demised premises, by the then tenants, but without the knowledge of the defendant. In 1853, said Worcester House estate was taxed the sum of $315, which the plaintiffs paid, and no part of which was repaid to them before the commencement of this action, although the plaintiffs, after paying such tax, made a demand in writing upon the defendant, informing of the whole amount taxed to the Worcester House estate, and demanding “ the sum of $197.50, or whatever might be his proportion thereof.” It was agreed to be true, if competent to be proved, that the demised premises were two thirds in taxable value of the whole estate.</p> <p>The alleged breaches of the covenant against waste consisted in the removal of a cistern, sinks and water pipes, gas pipes and marble tiles, on the 25th of September 1853, with the knowledge of the defendant.</p> <p>The cistern, water pipes and sinks were put into the house at an expense of about $500, by Wood, an assignee of the defendant, during the term. The cistern was of wood, lined with lead, and rested upon the floor of the attic, and was filled with water by a supply pipe, which passed from the city aqueduct into the cellar of the building, and up through the floors of the other stories, to the cistern. The pipes, which conducted the water to sinks in various parts of the building, terminated with faucets affixed by metal tacks to boards nailed to the walls, and were fastened by hooks driven into the plastering and walls, and passed through holes, which were cut for the purpose in the flooring and partitions, when the pipes were put in, and were not filled up when they were taken away. One of the sinks was of marble, and four of wood, three of which were fastened to the floors by nails, and one set into the floor by cutting away the boards. Pipes carrying away the waste water from the sinks passed down through the floors. The plastering was somewhat rent by removing the fastenings of the pipes.</p> <p>The gas pipes also were placed in the house by an assignee of the defendant during the term. They passed from the street into the cellar, and thence up through the floor, and branched into the various rooms, passing along inside of the partitions, and through holes cut in the partitions for the purpose, and were kept in place by bands or hoops of metal fastened to the walls. In a few of the rooms the pipes passed through ornamental centre pieces of wood, attached to the ceiling, which were cut through for their removal.</p> <p>The tiles were of marble, about fourteen inches square each, and between an inch and an inch and three quarters in thickness, with polished surface, and covered the floor of the entries, office and wash room in the lower story of the house, being an area of more than a thousand square feet, and were laid in cement over the floor previously used. They were laid by the defendant, pursuant to a sealed agreement executed by him and the plaintiffs on the 29th of November 1844, by which the defendant, in consideration that the plaintiffs would permit him to put down tile or flagging as therein mentioned, agreed “ to furnish and put down in lime, mortar or cement, in a good and workmanlike manner, and at his own expense, good handsome marble tile or flagging on the space or entry ways in the front part of the Worcester House,” as particularly defined, “ either upon the floor as now laid, or upon the under floor, as he shall think best; ” and to “ prop up and support the flooring timbers so as to prevent their settling by the weight of said tile or flagging,” and “that, at the expiration of the said lease, he will take up and remove said tile or flagging at his own expense, and clean the mortar or cement from the flooring, and leave it in good order for laying a floor of boards,” unless the plaintiffs should, on or before the expiration of said lease, elect to have said tile and flagging remain, as laid by the defendant, in whicli case they should pay him the sum of $200, and he should convey said tile or flagging to them or their assigns. Two days before the removal of the tiles, the tenant offered them to the plaintiffs for the price of $200, if he would accept them before the next night, but received no decided answer. The tiles were recovered by means of a crowbar and shovel, leaving the hardened cement adhering to the floor; and many of them were broken by the removal.</p>

<p>rile S¿. of 1851, c. 815, § 3, fdrbids the property of stockholders in a manufacturing corporation, though incorporated since the revised statutes, and before this act took effect, ts be taken on execution against the corporation, if there are officers liable, upon whos-s property the execution may be levied, although the execution was issued on a judgment recovered on a debt payable before this act took effect.</p> <p>A supersedeas, annexed to an execution issued on a judgment against a manufacturing corporation, as to certain stockholders who had been summoned in the action in which the judgment was recovered, pursuant to Si, 1851, c. 315, § 2, does not exonerate such stockholders from any liability as officers of that corporation. And such execution and supersedeas afford no protection to an officer against another stockholder upon whose property he levies the execution, when there are such persons, liable as officers, and having property upon which the execution might be levied.</p>

Action of tort for the disturbance of a right claimed by the plaintiff to take water to irrigate his farm by means of a ditch leading from a stream in Holden, below the defendant’s reservoir dam and above the defendant’s mill.

<p>Proof that a citizen, in the town in which he dwelt and had his home, "was assessed five successive years for estate, personal and real, of which he was “ possessed on the first day of May,” the value of which was set by the assessors at not less than twelve dollars, and that he had an estate in fee in said real estate during the last two of said years, does not raise a presumption that he had so much as an.estate for years in the real estate during any of the other years, and is not therefore such evidence of his having acquired a settlement in that town, under St. 1793, c. 34, § 2, or Rev. Sts. c. 45, § 1, cl. 5, as will exempt another town, in which his father had a settlement, from liability fat hia support.</p>

Action of contract to recover for work and materials, com-, menced by Charles Fuller on the 6th of October 1854, served by attachment of real estate on the same day, (recorded three days after,) and on the defendant personally on the 3d of November; and prosecuted, by leave of court, by the plaintiff, as assignee in insolvency of Fuller, chosen under proceedings commenced on the 31st of said October.

<p>Action of contract brought in this court on a bond executed to the plaintiff, as commissioner of insolvency for this county, by Avery as principal, and the other defendant as surety, conditioned that Avery should perform, all the duties of the office of assignee of Charles Randall, an insolvent debtor, -and all orders and decrees legally made by the commissioner in the premises. The breaches assigned were neglect to pay, out of funds in his hands, and pursuant to the orders of the plaintiff, acting as such commissioner, certain fees due to said commis sioner and to his clerk, and dividends ordered by the commissioner to be paid to certain creditors of Randall on debts proved against his estate in insolvency, although the defendant received due notice of the several orders made by the commissioner, and although demands of payment of said sums were made upon him in behalf of the plaintiff, his clerk, and said creditors, being the persons for whose benefit this action was brought. The writ was indorsed by the attorney of those persons.</p> <p>The surety admitted the facts stated in the declaration, but filed an answer denying the plaintiff’s right to maintain this action, 1st. For want of an affidavit annexed to the writ that the matter sought to be recovered exceeded in amount or value the sum of three hundred dollars; 2d. For want of any order or decree of the commissioner, passed upon the representation of any person interested in the insolvent estate, and upon its appearing to the commissioner that the assignee had failed to perform his duty, authorizing any creditor or other person, aggrieved by his neglect of duty, to bring an action on this bond.</p>

<p>A contract, under which labor is performed in erecting a building, must he an express contract entered into before the commencement of the work, in order to give the workman a lien on the building for the payment of his wages, under St. 1851, c. 343.</p>

<p>Money due on a special contract which has been fully performed in other respects ma; be recovered under a count on an account annexed, under St. 1852, c. 312, § 2, cl. 7.</p> <p>Ou the trial of an action to recover for work and labor, a time book, kept in tabular form by the defendant, of the days on which the plaintiff worked, is not admissible in evidence, with the defendant’s suppletory oath, to show that the plaintiff did not work os certain days.</p> <p>The admission of testimony in reply, which ought, in strictness of practice, to have been disclosed on the examination in chief, is within the discretion of the presiding judge, and not matter of exception.</p>

<p>Action of contract on a promissory note, commenced at March term 1854 of the court of common pleas. The writ contained two counts; one against Warren Adams, as maker, who pleaded a certificate of discharge in insolvency; the other against Joshua W. Morse, as indorser, who pleaded want of demand on the maker, and of notice to himself. Byington, J. ordered separate trials, and the case being tried first against Morse, refused to admit Adams to testify for Morse, on the ground that he was a party to the record, and therefore an incompetent witness. The jury returned a verdict for the plaintiff, and Morse excepted to this refusal.</p>

Action of tort, commenced on the 21st of August 1854 against the former sheriff of Worcester for the misconduct of his deputy sheriff Jasper Brown, and of his deputy jailer Rufus Carter, in 1851, in unlawfully arresting and imprisoning the plaintiff upon an execution, the return day of which had passed. Answer, that the plaintiff’s cause of action did not accrue within two years before the suing out of the writ, and. was therefore barred.

<p>Action of tort for trespassing on a close to which the plaintiff claimed title under a deed of warranty from William Sherman. The defendant justified under a way of necessity attached to adjoining land, belonging, at the time of said deed, to Sherman, from whom the defendant also derived title. At the trial in the court of common pleas, it appeared that Sherman, at the time of the first deed, retained no other way to his remaining lot except over the land granted. But Perkins, J. ruled that the defendant could not justify under a way of necessity over land which he had conveyed by deed of warranty. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

Action of tort by lessees of mortgagee against mortgagor and his servant for trespassing on the land mortgaged.

Scire facias against the defendants, as bail of Gardner Sheldon. The parties agreed that the bail bond was taken to a deputy of the sheriff of Worcester in an action returnable to the court of common pleas for this county; and submitted to the decision of the court the question whether the defendants were legally liable thereon.

<p>A railroad corporation, building and maintaining, as part of their road, a bridge across a river, in such manner as to obstruct the passage of the water, are liable to an action of tort by the owner of land thereby flowed, unless they show that they have taken reasonable precautions to prevent unnecessary damage to his land.</p>

Action of contract, with a prayer for relief in equity. The declaration set forth a contract in writing, made by the defendant on the first part, and three persons named, “ selectmen of Hard-wick,” and three others, “ selectmen of New Braintree,” on the other part, by which the defendant agreed to build a bridge across Ware River, between the towns of Hardwick and New Braintree, of good materials and in a workmanlike manner, on or before a day named; and “ the said…

Action of tort for the conversion of a bread cart. Answer, a denial that it was the property of the plaintiff.

Replevin of a horse. At the trial in the court of common pleas, there was evidence tending to show that the defendant, a field driver of Grafton, found the plaintiff’s horse going at large in the highway, without a keeper, and took him up and drove him to the pound keeper’s house, which was sixty or eighty rods from the town pound, and, not finding the pound keeper at home, put the horse into his barn, and requested his wife to tell her husband, when he returned, to put the…

<p>Action of tort commenced before a justice of the peace by a field driver and inhabitant of Grafton. The declaration alleged “ that on the fourteenth day of May 1854, the same being the Lord’s day, in the public roads and highways in said Grafton, one horse, of the goods and chattels of the defendant, and then and there belonging to the defendant, did go at large, said horse not being then and there under the care of a keeper; whereby the defendant became liable to pay the plaintiff the same amount of fees which he, as field driver, would have been entitled to receive for said horse if he had then and there dis-trained and impounded him.” The action was continued by the justice from the 27th of May, when it was entered, to the 16tli of June, when the defendant, failing to appear, was defaulted.</p> <p>The defendant appealed to the court of common pleas, and, after being defaulted there, moved in arrest of judgment for the following reasons:</p> <p>“ 1st. Because no cause of action against the defendant is set forth by the plaintiff in his declaration. It does not follow that the defendant'is liable to pay the plaintiff a penalty, because he owned a horse going at large on the Lord’s day without a keeper, unless he was guilty of some act of omission or commission, which caused the horse to go at large, neither of which is alleged in the declaration.</p> <p>“ 2d. Because no certain penalty is alleged in said declaration to have been incurred by the defendant. Said declaration does not contain a description of any penalty mentioned in any statute of this commonwealth.</p> <p>“ 3d. Because it appeared by the record of the justice before whom said action was entered, that the defendant never appeared therein until after the action was defaulted, when he claimed an appeal to this court. And yet the same was not defaulted, but continued from time to time, and witnesses summoned in without cause, whereby a large bill of costs was illegally made.”</p> <p>The court of common pleas overruled the motion, and the defendant appealed.</p>

<p>Action op contract, commenced on the 24th of October 1854 on the following note : “ Worcester, September 13th 1854. For value received I promise to pay Mrs. Mary C. Jillson or order four hundred dollars on demand with interest within six months from this date. . Witness my hand. Erastus Hill.”</p> <p>At the trial in the court of common pleas, the plaintiff gave in evidence the note declared on, but did not allege or prove a demand of payment. The defendant contended that the note was not payable until six months from its date, and offered paroi evidence that such was the agreement of the parties. Briggs, J. rejected the evidence, ruled that the note was payable on demand, and directed a verdict for the plaintiff, which was returned; and the defendant alleged exceptions.</p>

<p>ha oval promise to discharge an incumbrance not created by himself, made by grantor to grantee, at the same time and for the same consideration as a deed containing covenants of special warranty only, will nob support an action.</p>

<p>The declarations and acts of an owner of land, while acting as commissioner to divide an adjoining estate, as to the greater value of the share set off to one tenant in common, by reason of a right to take water from a stream flowing through the land of such commissioner, are admissible in evidence against his heir,6 in favor of the party to whom such share is so set off.</p>

Action of tort for breaking and entering the plaintiff’s close in Southborough, containing one quarter of an acre, more or less, and bounded on all sides by a town road. Answer, soil and freehold in the defendant.

<p>It is nc defence to a writ of entry that the demandant holds the land subject to a resulting trust in favor of the tenant.</p>

<p>This court have jurisdiction in equity of a bill to restrain the letting off of water from a res ervoir established for the benefit of the plaintiffs’ mill.</p> <p>Several owners of mills may maintain one bill in equity to restrain a stranger from letting off water from a reservoir which they have jointly erected for the purpose of supplying their mills in the dry season, without first establishing their title at law.</p>

<p>One of two lessees occupied the demised premises during the lease, and continued to occupy them after its expiration, and the other lessee boarded with him throughout his occupation, and after the lessor’s estate had been terminated by a conveyance to a stranger. JTeld, in an action brought by the grantee against both lessees for use and occupation since such conveyance, that the boarder was not liable.</p>

<p>Action of tort for the taking and conversion of personal property. The defendant admitted the taking, but claimed the right of possession of the property, as agent and husband of Betsey Barnes, who, as he averred, held at the time a mortgage thereof from Daniel Mansfield, the plaintiff’s intestate.</p> <p>At the trial in the court of common pleas, before Byington, J. the defendant gave in evidence a note for $337.66, dated September 7th 1849, made by Mansfield to Betsey Barnes, and payable in one year; also a mortgage of a portion of this property to secure the payment of the note. On the back of the mortgage was written a discharge thereof, dated April 3d 1851; and a receipt for $175 was indorsed on the note. It appeared that on the 7th of April 1851 Mansfield made to Betsey Barnes a second mortgage of the property described in the writ, including a part of the property described in the first mortgage, and conditioned that, upon the payment of $337.66 in two years from date, this mortgage and a note of even date therewith given by Mansfield to Betsey Barnes, should be void. No new note was given with this mortgage, but the note above mentioned was kept by the mortgagee.</p> <p>The defendant offered evidence tending to show that Mansfield intended to secure the balance due upon the note; and was desirous of selling a part of the property included in the first mortgage, and that with this purpose that mortgage was discharged, and the second mortgage given, and some other property substituted by agreement for that part of the property, and to secure the balance due on the note. The plaintiff objected to the admission of any evidence of the intent of the mortgagor, upon the ground that the second mortgage, by reason of no such note having been given as was therein described, was an imperfect and invalid instrument, and could not be perfected by such evidence; and further objected to the evidence, because it tended to show a different sum due upon the mortgage from that named in the condition thereof. But the presiding judge overruled the objection, and admitted the evidence.</p> <p>It further appeared in evidence that, at the time of taking possession of the property, no notice was given to any person, or filed with the town clerk, of an intent to foreclose the mortgage, but that the defendant, within a few days after, sold a part thereof, to the amount of fifty dollars. The plaintiff requested the judge to instruct the jury “that such sale constituted a tort, for which the defendant was liable in this action.” But the judge refused so to instruct the jury, and instructed them “ that the mortgagee had a right to make sale of her interest in said property at any time; and selling her interest in the property she had would not be a conversion, she being ready and willing to account for the proceeds in good faith.” The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

Action of tort for converting goods and household furniture of the plaintiff. The defendant denied the conversion.

<p>Action of tkrt. The plaintiff’s occupation was not stated in the writ. The only averments in the declaration were that the defendants owned a railroad between Worcester and Springfield; that the plaintiff was travelling on a highway in Spencer, which crosses said railroad, and was using due care; that the defendants ran their locomotive engine and cars against the wagon in which the plaintiff was riding across said railroad and along said highway, and threw the plaintiff out on the rails of said road and frozen ground, and did her great hurt and damage; and the defendants did not use due care in running their said engine and cars.</p> <p>After a verdict for the plaintiff in the court of common pleas, held by Byington, J., the case came before this court upen the following bill of exceptions : “ This was an action of tort for injuries suffered by the plaintiff in consequence of a collision with a locomotive engine and tender owned by the defendants, at a highway crossing in the town of Charlton, whereby the plaintiff was thrown from the carriage in which she was riding. Before, and at the time of the accident, Warren Baldwin, a brother of the plaintiff, was driving the horse attached to the carriage from which the plaintiff was thrown. The defendants offered evidence for the purpose of showing that, by common reputation, Warren Baldwin was a careless driver. The plaintiff objected to this evidence, and the presiding judge ruled that i+ was inadmissible.</p> <p>“ The plaintiff’s counsel offered evidence tending to show the education and learning of the plaintiff; and there was evidence to show she was a school teacher. The defendants objected; but the court ruled that this evidence was admissible. To these rulings of the presiding, judge the defendants except.”</p>

<p>A statement in a policy of insurance, that a certain sum is insured on the same property by another company named, even if a warranty, is satisfied by "the existence of such insurance by that company at the time of issuing this policy; although one of the conditions of that insurance be that it shall be annulled by any subsequent insurance ob tained without the consent of that company, and such consent be not obtained to this insurance. And if such consent be not obtained, these insurers are liable for the whole amount of any loss, notwithstanding a provision in their policy that in case of any other insurance, whether prior or subsequent, they will not be liable beyond the proportion which the amount insured by them bears to the whole amount insured.</p>

<p>Where.the testimony is substantially complete, a deposition, duly signed and certified, is not to be rejected because the cross examination was unfinished, in consequence of the sickness or death of the witness.</p> <p>A debtor, retaining in his hands funds for which he has been charged as trustee of his creditor, is liable therefor to the creditor after the time, within wiiich scire jadas could be commenced against him on the judgment in the trustee process, has expired. And if that time expire pending exceptions taken by him to a judgment in favor of the creditor in an action to recover such funds, judgment will be entered on the verdict.</p>

<p>Cattle in a highway, not actually under the efficient control of a keeper, are “ going at large in the highways, and not under the care of a keeper,” within.the meaning of the Rev. Sts. c. 19, § 22, and may be taken up and impounded by a field driver; although they have been entrusted by their owner to a servant, with other cattle, to be driven to pasture, and have only left the drove a mile before reaching the pasture, and turned into a different road, also leading to the pasture, over which they have sometimes been driven, and there remain feeding, and the servant returns in less than an hour to the place where he lost them.</p> <p>A person who finds cattle at large in the highway, not under the care of a keeper, and drives them along the highway until he finds a field driver, is not a keeper, within the meaning of the Rev. Sts. c. 19, § 22, and the field- driver may lawfully receive and impound them.</p>

<p>Action of contract upon a sealed agreement for the purchase by the defendant and sale by the plaintiff of a parcel of land, to which the plaintiff claimed title under the following clause of his father’s will made in 1849, and proved in 1850.</p> <p>“ Item. To my beloved son Zebina Gleason, I give and bequeath the improvement, use and benefit of all my real estate, wherever it may be situated, with all the privileges thereto belonging, during his natural life, to the end that he may have the same for an inheritance so long as he may live, with no right to dispose of any part of the same except such parts and lots as I shall here designate, viz: my two meadow lots, one the middle meadow, so called, the other called the farm swamp, both lying in Westborough, and my Brigham Lot, so called, lying in North-borough, with my house and lands lying in Worcester, all which he is authorized to sell; and I hereby authorize and empower him to give good and lawful titles for the same, to enable him to pay my just debts and the legacies which I have hereby bequeathed, all of which said' lands he may dispose of at his option for the above purpose, if they should not be disposed of in my lifetime; the reversion of all which shall be at his disposal; and all the rest, remainder and residue of my personal estate, not otherwise disposed of, I give to him to be at his disposal.” The first disposing clause in the will was in these words : “ In the first place, my just debts and funeral charges are to be punctually, and as speedily as may be, paid by my executor hereafter named, as also certain legacies hereafter bequeathed, and which he is to pay as herein directed, and in manner following.” The remainder of the will consisted of a provision for the testator’s wife, small legacies to his children and grandchildren, the appointment of the plaintiff to be sole executor, and directions that the expenses of any sickness and of the burial of his widow, as well as of suitable monuments for her and for himself, should be paid out of his estate.</p> <p>The parties submitted the case to the court upon the will and the following statement of facts: The testator’s property did not change materially between the execution of his will and his death. His debts, without including his legacies or the provision for the widow, exceeded by about $700 the value of the personal property and of the real estate expressly authorized to be sold. The land in question is not one of the excepted lots which the plaintiff is expressly authorized by the will to sell. The plaintiff executed and tendered a warranty deed of it, which the defendant refused to accept, on the ground that the plaintiff could not convey a perfect title. It is agreed, that if the plaintiff could convey the land in question in fee simple, judgment is to be rendered in his favor; otherwise he is to become non-suit.</p>

<p>A testator bequeathed one moiety of the residue of his property to children of a deceased sister “ and their heirs, to be equally divided amongst them, share and share alike, to them and their heirs forever ”; and ordered the other moiety of the residue to remain in trust, the interest to be paid to another sister of the testator for life, and “ the principal, upon her decease, to said children, share and share alike, to them and their respective heirs accordingly.” Held, that said children took vested remainders in the second moiety, and that the share of one, who died before her to whom the interest was to be paid for life, was to be paid, on her decease, to such child’s executor, and not to his child.</p>

<p>An attorney, lawfully possessed of an execution in favor of his client, may enforce the lien thereon, given him by Rev. Sts. c. 88, § 28, for his fees and disbursements in the cause, by action on the judgment in the name of the client.</p>

<p>An act conferring on a city council the powers of selectmen and inhabitants of towns in relation to the laying out, acceptance, altering or discontinuing of streets and ways, and the assessment of damages, and giving the same right of appeal by complaint to the county commissioners, as in cases of decisions of selectmen and inhabitants of towns, refers to the provisions of the Rev. Sts. c. 24, §§ 68, 76. as to the laying out of townways, and requires an application for a jury, to assess damages sustained by the alteration of a way, to be made within one year from the time of the alteration.</p>

<p>Action of tort for the conversion of a quantity of leather, claimed by the plaintiffs as assignees of "Washington Hill, an insolvent debtor. The answer denied the plaintiffs’ property and the conversion. The case was submitted to the court of common pleas upon the following facts :</p> <p>In December 1853, Washington Hill resided and was a dealer in leather in Spencer in this county; on the 16th of that month, being in New York for the purpose of buying leather, was recommended, by those of whom he had usually purchased, to Loup & Co., leather dealers, to whom he was a stranger, as a person in good credit; and found in their warehouse such leather as he warned, but, as Loup & Co. could not conveniently put it up then, he did not select and identify the leather, but it was agreed between him and Loup & Co. that they should send to him at Spencer the quantity which he wished, of the kind and quality which he had looked at, and that he might examine it upon its arrival, and, if it did not prove satisfactory, return it; but if it should be satisfactory, he should keep it, and send them h’5 note for the price, payable in six months after the sale. Loup & Co. immediately forwarded the leather, which is the subject of this action, by railroad, to Spencer, where it arrived on the 20th of December, and Hill, at or before that day, having returned from New York, received by mail at Spencer a bill of sale of the leather from Loup & Co. to him.</p> <p>Washington Hill, the day after his return, requested his son Luther, one of the defendants, to assist him by indorsing his notes, which Luther declined to do without first making an investigation of Washington’s affairs. They made such an investigation, and the result was that Luther was of opinion that Washington was insolvent, and advised him to go into insolvency. Washington believed himself solvent when he returned from New York; but was satisfied, by the investigation, of his insolvency, and was in fact insolvent when it took place, which was within three days after his return. Washington informed Luther that he had made a contract for the purchase of leather from Loup & Co., and had obtained the leather by means of the representations of others as to his credit; and Luther thereupon advised him “ to bill the leather back ” ; and Washington executed a bill of sale of the leather to Loup & Co. on the back of the bill which he had received from them, and delivered it to Luther for them, and requested him to inform them by letter of the circumstances of his insolvency, arid that he had executed the bill of sale which Luther had for them, and that the leather was subject to their order; and Luther, pursuant to these instructions, wrote a letter to Loup & Co. at New York, which was received by them in due course of mail; but did not send the bill, but kept it for them. Neither Washington nor Luther knew of the arrival of the leather at Spencer until after this letter was sent, and Washington never saw the leather after its arrival, nor gave any note for it. The freight bills of Washington Hill for the month of December, including the one for this leather, were paid by Luther early in January, without any express orders. Washington’s freight bills were usually paid monthly, sometimes by himself, and sometimes by Luther on his behalf, and his freight was always delivered by the railroad company at this station. When Luther paid the freight on this leather, he did not take the leather away, but gave directions that it should be delivered to any one who should call for it.</p> <p>Washington Hill filed his petition for the benefit of the insolvent laws on the 28th of December 1853 ; the first publication of notice was on the next day; and the first meeting of his creditors was held on the 12th of January, when the plaintiffs were duly chosen his assignees.</p> <p>Loup & Co. made no reply by letter to Luther Hill’s letter to them, and did no act indicating their assent to or acceptance of what had been done by the Hills as above stated; but between the 1st and 12th of January, Loup came to Spencer and received from Luther Hill the bill of sale executed and delivered to Luther by Washington with that object; and the defendants purchased the leather from Loup & Co., and gave their note therefor at six months; and Loup & Co. gave a bill of sale thereof to the defendants, dated back to correspond with the one given by them to Washington Hill. Luther Hill, when he advised his father “to bill back the leather” to Loup & Co., supposed that his father had made an absolute and unconditional purchase of it, and given his note for it at six months, (that being the usual term of credit,) and that the bill of sale by his father to Loup & Co. was in payment of his debt to them, and with a view of giving them a preference over his other creditors.</p> <p>The leather was duly demanded before this action was brought; and the defendants had converted it to their own use. The other defendant is a copartner of Luther Hill, and a party and privy to his acts, so as to be liable as far as he is, and no further. On the above facts, the court of common pleas, By'mg-ton, J. presiding, gave judgment for the defendants, and the plaintiffs appealed to this court.</p>

<p>A grantee of land including the site of a dam, although his deed contain an express grant of the privilege of flowing, during the winter only, the meadow of the grantor higher up on the same stream, “ for the benefit of carrying on the blacksmith’s business,” has the right, as against his grantor, or those claiming under him privileges above or below on the same stream, to use, at all seasons, for any reasonable purpose, the.water of the stream, including any additional power subsequently created Ly improvements of his grantor:</p> <p>A grant, by the owner of two dams on the same stream, of the lower one, and of “ a privilege to draw water sufBoient to carry a water wheel well constructed, with twelve feet head and fall, for two common blacksmith bellows, and, should the head and fall be less-than twelve feet, sufficient to carry one bellows twelve hours in twenty four hours, in either case, in the daytime, as near as may be,” limits only the extent of the privilege - granted, and not the use to which it is to be applied.</p>

<p>A grant by indenture, in consideration of a fixed sum, of the right to build a dam upon the land of the grantor, the parties agreeing that the amount of damages thereby done by flowing the grantor’s land shall be determined by an arbitrator, and the sum so determined shall be in full satisfaction of such damages, does not authorize the grantee, after building one complete dam, to increase its height so as to flow more land of the grantor. And the grantee, for the purpose of showing that the original dam was only the beginning of a higher dam, cannot give in evidence his own declarations of intents and purposes, not connected with and tending to explain or qualify orders and directions to his workmen, although forming part of the same conversation; nor the conversations between himself and the grantor at or after the time of executing the indenture, for the purpose of showing that it was expressly agreed that the dam should be raised to the height to which it was ultimately raised. And if the dam, as originally erected, be four feet high, a question to an expert, whether, in his opinion, to raise water on that mill pond two or three feet would make a reservoir beneficial for practical mill purposes, is immaterial.</p>

<p>beveral judgment creditors of the same debtor, after taking out executions, and seizing thereon a right, which they had attached, of redeeming mortgaged real estate, made an agreement in writing with their attorney, by which they authorized him to purchase the equity of redemption, “ at a sum sufficient to satisfy all said executions, including costs of levy and interest on said judgments,” to sell it and apply the net proceeds, after paying all expenses of defending and perfecting the title, “ to the payment of the several judgments, in the order of the attachments,” and if the net proceeds should exceed the amount of such judgments and expenses, to divide the balance ratably among said creditors. Held¡ that the holder of the first judgment named was not entitled to interest thereon as against the others.</p> <p>A conveyance in fee of real estate by lessor to lessee does not merge or extinguish the lease, as against an attachment made while it was in force between the parties.</p> <p>Where real estate leased is attached by a creditor of the lessor, and sold on execution, the lessee has no right to set off, against the purchaser’s claim for rent, a debt contracted by the lessor to the lessee since the attachment.</p> <p>An action for rent reserved by deed is not barred in less than twenty years, notwithstanding the limitation of six years, prescribed by the Rev. Sts. c. 120, \ 1, for “ all actions for arrears of rent.”</p> <p>Where mills and the machinery therein are leased for an entire rent, and so much thereof as is real estate is afterwards sold on execution against the lessor, the lessee is liable to the purchaser for only a proportional part of the rent, if the machinery be personal estate.</p>

<p>If a horse, drawing a vehicle, though driven with due care, becomes frightened and exciton by reason of the striking of the vehicle against a defect in the highway, frees himself from the control of his driver, turns, and at the distance of fifty rods from the defect . knocks down a person on foot in the highway, who is using reasonable care, the city or town bound to keep the highway in repair are not responsible for the injury so occasioned, though no other cause intervene between the defect and'the injury. Thomas, dissenting.</p>

<p>County commissioners, who, after adjudging that a town way which the town have refused to lay out is required by the wants of the town, and giving notice that they will lay it out, lay out only a part of it, being of opinion that the remainder has been rendered unnecessary, since the adjudication, by the construction by the town of another nearly parallel town way, will not be compelled by mandamus to complete it.</p>

Writ of error to reverse a judgment by which the plaintiff was sentenced to three years’ imprisonment in the state prison, on an indictment charging him with stealing “ one bank bill of the denomination of one hundred dollars, and of the value of one hundred dollars, one gold half eagle of the value of five dollars, and one wallet of the value of fifty cents, of the goods and chattels of one Daniel Carter.” The errors assigned were that the punishment was greater than was…

<p>The right of the owner of stolen property to a summary restitution thereof, under Rev. Sts. c. 126, § 26, is limited to the articles stolen, and does not extend to money into which they have been changed by the thief.</p>

<p>Indictment for rape. At the trial in the court of common pleas, the district attorney introduced evidence tending to show a fresh pursuit of the offender by a constable and others, from the description given them by the prosecutrix; and that the constable traced the prisoner to a village, and there made inquizies for the prisoner by describing his dress, and found him, and arrested him.</p> <p>The defendant produced a witness of whom these inquiries were made, and proposed to ask him the description which the constable gave of the clothes by him said to have been worn by the ravisher, as tending to show that a different description was given then from the clothes actually worn by the prisoner on that day; and as also tending to show that the prosecutrix gave a different description then from that given by her on the trial; and also as a part of the inquiries made at the time of the pursuit. The district attorney objected, and Bishop, J. rejected the evidence. The defendant, being found guilty, alleged exceptions.</p>

<p>Where testimony to a fact is founded mainly upon a written memorandum which the witness testifies was made by himself at the time, and which was produced by him at a former trial, and since lost, the other party may show, for the purpose of discrediting the witness, that the memorandum then produced was not in his handwriting.</p>

Indictment for being a common seller of intoxicating liquors, contrary to Si., 1852, c. 322, § 12. Trial in the court of common pleas, before Bishop, J., who signed the following bill of exceptions : “ Before the jury were empanelled, the court, upon motion of the defendant, put the question to the jury, provided for by the Rev. Sts. c. 95, § 27, to which the defendant does not except.

<p>Complaint to the police court of Cambridge, charging the defendant, in eighteen counts, with making as many sales of intoxicating liquors on the 8th of February 1854, in violation of St. 1852, c. 322, § 7. At the trial in the court of common pleas, the defendant objected that, as the complaint charged him with making a greater number of sales than was necessary to make him liable as a common seller, he should have been charged, in form, as such, and should not be held to answer to this complaint. But Bishop, J. overruled the objection; and the defendant, being convicted on all the counts, alleged exceptions.</p>

<p>A recognizance, entered into before a justice of the peace residing in the town to wLtiA any forfeiture incurred under the recognizance is given by statute, is void, if there be no statute expressly removing his disqualification by reason of such interest, and there be any other magistrate in the county before whom the recognizance could be taken.</p>

<p>A mortgagee of real estate previously attached has no right to object to an order, passed under subsequent proceedings in insolvency, that the attachment should survive for the benefit of creditors.</p> <p>Jt seems, that an order for the continuance of an attachment for the benefit of creditors may be passed without notice to any one but the assignee in insolvency.</p>

Action on the Rev. Sts. c. 104. The parties submitted the case to the decision of the court upon the following facts : The plaintiff claimed title under a mortgage from a married woman, who held the land under a warranty deed, in common form, whose husband did not join in the mortgage or make any separate conveyance of his interest.

Action of tort against the three selectmen of Boxborough. Writ dated November 9th 1852.

<p>The court have no power, under Rev. Sts. c. 100, §§ 21, 22, and St. 1836, c. 273, to allow a bill in equity to be substituted for a count in contract, in an action at law commenced before the passage of St. 1853, c; 371, giving equitable remedies in suits at law.</p> <p>A joint maker of a note payable on demand, on paying the amount thereof, may commence an action against the heirs of his co-debtor, on Rev. Sts. c. 70, §§ 13 $ seq., at any time within one year after such payment, although the payment was made after the final set tlement of the deceased’s estate by his executor or administrator, and after the expira tian of the time limited for the commencement of actions against the latter.</p>

<p>A creditor at whose suit an attachment is made of goods not the property of his debtor is not liable in replevin for the goods attached, either alone, or jointly with the attaching officer.</p>

<p>Action of contract on a recognizance conditioned to prosecute with effect an appeal from a judgment of the police court of Lowell to the court of common pleas, and pay all intervening damages and costs. The declaration set forth the recognizance, and alleged a breach thereof, by failure to pay the intervening damages and costs; but contained no other averment, except the general conclusion that the defendants owed the plaintiffs the amount of the recognizance. The answer admitted the making of the recognizance, and alleged a performance of the condition thereof.</p> <p>At the trial in the court of common pleas, the plaintiffs gave the recognizance in evidence, and Perkins, J. ruled that, upon this evidence alone, they were entitled to a verdict, which was returned accordingly, and the defendants alleged exceptions.</p>

Action of contract against Atis Osgood and William F. Osgood, to recover the price of “ goods sold by the plaintiff’s to the said Atis Osgood, and for which the defendants, in consideration of such sale, by their memorandum in writing, signed by said defendants, (a copy whereof is hereto annexed,) promised to pay the plaintiffs.” Annexed to the declaration was a copy of the following memorandum: “ March 15, 1852.

<p>Action of contract for wood sold and delivered to the defendant’s intestate. At the trial in the court of commrn pleas, Briggs, J. allowed the defendant to be sworn as a' witness and testify to facts known by her before she assumed the trust of administratrix; although the plaintiff objected to her competency as a witness, and she had not released her right to recover costs, nor received, nor had tendered to her, any security for her liability for costs. The verdict was for the defendant ; and the plaintiff alleged exceptions.</p>

Action of contract to recover the value of lumber alleged to have been sold to the defendant, according to the account annexed, but delivered to Daniel Russell at the defendant’s request.

<p>A promissory note, dated at Boston, but expressing no place of payment, falling due at the end of August, was presented for payment at nine o’clock in the evening of the last day of grace, at the house of the maker, ten miles from Boston, after he and his family had retired for the night. Held, that the demand was sufficient to charge an indorser.</p>

<p>A written promise to pay a certain sum of money to “ A or B ” is not a promissoiy note; but may be declared‘Upon as a written instrument under St. 1852, c. 812, § 2, cl. 9, or given in evidence under a count for money had and received, in an action by A and B jointly.</p>

<p>A written promise to pay money to “ A or B,” given in settlement of a debt from tne promisor to A, is a payment of the debt, and the promisor cannot, after being sued thereon by A and B jointly, be charged as trustee of A alone on the original debt.</p>

<p>If one of the terms of a contract made through an ageut is that a witness shall be called to the terms of the bargain, the terms, as repeated by the agent in the presence of the other party, or by the other party in his presence, to a witness called for the purpose, are admissible in evidence against his principal.</p> <p>The purchaser of a cow said to the seller, after the sale, “ You said the cow was all right? ” to which the seller replied, “ Well, she is all right.” JEfeld, that this was competent evidence of a warranty at the time of the sale.</p> <p>Whether a statement, made by the seller of a cow, that u she is all right,” is a warranty of her soundness, is a question for the jury.</p> <p>In an action for the price of a chattel sold with warranty, the defendant is entitled to deduct any difference in the value of the chattel, resulting from a failure to conform with the warranty, although that will reduce the price below the actual value.</p>

<p>The owner of a lot of land offered to sell all the wood standing thereon at a certain price by the acre, and either have the land measured, or call it seven acres, and gave the pur chaser a week to consider of it; at the end of which time the purchaser took it at seven acres, and paid the price, and received a bill of sale of all the wood on the lot. Held, that evidence that the purchaser, while the bill of sale was being drawn up, in reply to questions of the seller, said that he had not fully measured the lot, and thought there were little more than eight acres in it, when in fact, since the offer, he had ascertained by actual survey that it contained sixteen acres, was sufficient evidence to be submitted to a jury of such fraudulent misrepresentations as would authorize the seller to rescind the sale.</p>

<p>Action of tort against the Fitchburg Railroad Corporation and James F. Munroe, for an assault and false imprisonment.</p> <p>At the trial in the court of common pleas, the plaintiff introduced evidence tending to show that he purchased a ticket for a passage from Boston to Clinton, and after the cars left Boston gave up his ticket to some person in the employment of the corporation on the cars; that Munroe, being the conductor, after-wards called on him for his ticket; and upon being informed that he had given it up, doubted the fact, and informed him that if he did not pay his fare or give up his ticket, he must leave the cars; that the plaintiff refused to do either, on the ground that he had already given up his ticket; whereupon Munroe, with the-assistance of other servants of the corporation, forcibly put him out of the cars.</p> <p>The defendants introduced evidence tending to show that no person authorized to receive tickets from passengers received any ticket from the plaintiff on his way to Clinton ; that when Munroe demanded of the plaintiff his ticket or payment of his fare, he refused, saying that he had already given up his ticket, and that there was not force enough to put him out; that Mun-roe, in putting the plaintiff out, used no more force than was necessary; that the plaintiff was intoxicated at the time, and used profane and loud talk; that it was the custom on this road for conductors to put passengers out of the cars, who refused to pay their fare or give up their tickets; and that this custom was known and approved by the officers of the company.</p> <p>The defendants contended that the railroad company were not liable in this action for the conduct of Munroe, the conductor.</p> <p>But Briggs, J. instructed the jury that if the conductor, in putting the plaintiff out of the cars, acted by the direction and authority of the company, it was the act of the compariy as well as of the conductor, and they would be liable with him; that if the company directed and authorized the conductor to put out of the cars passengers who had not paid their fare, and he put out passengers who had paid their fare, the company would not be responsible or liable for his acts; that if the company gave the conductor the power to act according to his discretion in all such cases as should arise, and in the exercise of that discretion he wrongfully exercised the power or removed a passenger, it would be the act of the company, and they would be liable for it; and that, if it was a regulation or rule of the company for the conductors to remove passengers who refused to pay their fare or give up their tickets, the conductors would have a right to remove a passenger for such a cause.</p> <p>The jury returned a verdict against the corporation for $308, and a verdict in favor of the conductor. The corporation alleged exceptions.</p>

Action of contract. The declaration alleged that the defendant made to the plaintiff the deed, which is copied in the margin;* that Lovell Shattuck, in said deed mentioned, by reason of sundry mortgages and releases described in the declaration, had, on the 20th of September 1852, one right in equity to redeem fifty eight rods of the westerly portion of the estate described in the deed, and a separate and distinct right in equity to redeem the residue of said estate, from…

Bill in equity, filed on the 25th of July 1855. The bill, alleged that the plaintiffs were duly established and organized as a corporation, and built and ever since maintained a bridge over Merrimack River, at Bradley’s Ferry, between the towns of Dracut and Chelmsford, under and by virtue of St. 1824, c. 110, and received thereon the tolls granted them by law; that, for the purpose of remunerating said corporation for the expense of building and supporting this bridge,…

<p>By a deed of land bounding on a canal supplying mills, “ with the privilege of crossing t<$ and from and around the same, and of erecting and using tenter bars in some convenient place near the same, with the privilege also of drawing water from said canal at all times when it may be done without injury to said mills, sufficient for the purposes of a fulling mill and shearing machine, but for no other purpose whatever,” the right to use the water for a fulling mill and shearing machine is not made appurtenant to the land granted. Mor is such right extinguished or surrendered by the dam being subsequently taken down by all the owners of water power at that spot, and rebuilt in such a manner as to flow all the land granted by this deed.</p> <p>So of a deed granting another lot of land bounding on the same canal, u with the privilege to pass to and from the premises, and to lay wood and timber for the use of the same; also a water privilege for a carding machine, with liberty of converting the water to any other use.”</p> <p>A grant of “ the privilege of drawing water from said canal at all times when it may be done without injury to the forge or to the grist mill, sufficient for the purposes of a fulling mill and shearing machine, but for no other purpose whatever,” gives no right to use the privilege for any other purpose.</p> <p>A grantee of the privilege of drawing water from a canal for a particular purpose, and for that only, at all times when it may be done without injury to certain other mills, may have his right set off to him, in equity, under St. 1854, c. 74, to be used for that purpose only.</p> <p>A deed of an equity of redemption of real estate, given by an officer to a purchaser thereof at a sale on execution since the Rev. Sts. took effect, passes no title as against a subsequent attaching creditor without notice, if not recorded within three months, pursuant to Rev. Sts. c. 73, § 38, although the land was seized on the execution before those statutes took effect.</p> <p>A and B, being tenants in common with 0 of certain land and water power, A and B jointly owning six eighths thereof, and A owning an additional eighth, made four deeds on the same day, by one of which A conveyed to B three eighths of a part of the land, on which B had built a mill, and three eighths of the water power; by the second, B conveyed to A three eighths of another part of the land, on which A had built a mill, and three eighths of the water power; by the third, A conveyed to D oue eighth of a piece of land described, with one undivided eighth of the whole water power, reserving the water power conveyed by each of the first two deeds and by the fourth, A and B conveyed to D another parcel of the land “for the purpose of erecting a paper mill thereon, together with the privilege of drawing and using one eighth of the water.” Held, that the deeds were valid as against all persons except C, the cotenant who did not join in them; that they were to be treated as parts of the same transaction, and therefore to be construed together; and that D took by his two deeds only one eighth of the water power.</p> <p>Upon a petition at law for partition of real estate described as “ bounding on the N. River,” and as used for mills, the court set off to the petitioners, “as their full share or purparty of the whole,” a parcel of land, by metes and bounds, “ together with the privilege of forever keeping open for the free passage of the canal whijli passes through this parcel from the parcel to N. River.” Held, that this partition did not so divide the water power which was parcel of the estate described in the petition, as to be a bar tu a bill in equity under Si, lbó4, c. 74, to divide all said water power.</p>

Petition for a writ of certiorari to quash the proceedings of the county commissioners, abating part of a tax upon real estate, assessed to the city of Boston by the assessors of Way-land.

Petition, under St. 1847, c. 37, by ten inhabitants of Hopkinton, representing that at a meeting of the inhabitants of the town, holden on the 26th of June last, called in pursuance of a warrant which contained the following article: “ To see if the town will appropriate any money for the benefit of Hopkinton Artillery Company, and act on all matters relating to said com-pony, as may be thought best,” it was voted to “ appropriate $500 for the benefit of the Hopkinton…

<p>It is no defence to an action on a promissory note payable absolutely, that the consider* • tian of the note was the sale of a horse upon condition that the purchaser, if dissatisfied with the horse, might return him within three months, and that the purchaser, with three months, being so dissatisfied, offered to return the horse.</p>

Action of contract on a judgment recovered in the court of common pleas on the 3d of June 1848.

<p>Under the Rev. Sts. c. 66, as well as under the previous "statutes, an administrator, who, within a year after giving notice of his appointment, pays a debt-of his intestate, or at whose request it is paid within that time by a debtor of the estate, may, if the estate afterwards prove to be insolvent, recover of the creditor the excess of the sum so paid over the amount awarded to the creditor by commissioners of insolvency.</p>

<p>Action of contract to recover §370.42, received by the defendants to the plaintiffs’ use.</p> <p>At the trial before Bigelow, J., the plaintiffs, to prove their case, called a witness, who testified that he had been an express-man between Boston and Lowell for eleven years, and that was his whole business; that sometime previous to April 7th 1854 he received for collection from the defendants, a partnership doing business in Boston, two notes of J C. Hildreth 5c Co., a partnership doing business in Lowell, for $370.42 each, the one due on the 7th and the other on the 13th of April, and both payable to the defendants, and indorsed in blank by them; and was directed to collect them in the ordinary way, without any directions as to protesting them, and gave his receipt therefor; that it was sometimes his custom to collect notes by depositing them in a bank, and sometimes by calling on the parties personally, though he did not communicate to the defendants how he was going to collect their notes, and did not know that they knew he ever collected notes delivered him through the banks; that before the 7th of April he deposited the notes with the plaintiffs, a bank in Lowell, for collection ; that on the 8th of April he called on the plaintiffs, and asked if the note due the day before had been paid, and was informed by a clerk of the plaintiffs that it had been, and received the amount of it from the plaintiffs; that the plaintiffs received no compensation for collecting these notes, and he did not communicate to the plaintiffs, when he left the notes, to whom they belonged ; that he took the money so paid, and the same day paid it to the defendants, but did not remember telling the defendants, when he paid them the money, that he collected it through the plaintiffs or any bank; and the defendants paid him for his services.</p> <p>The plaintiffs also proved that, by reason of the notes not hay ing been placed on their regular file, they had not notified Hildreth & Co., the promisors, of the maturity of the first note, and their clerk was led into the mistake of supposing that it had been paid, when in fact it had not, and has never been paid to any one; that on the 10th of April, as soon as the mistake was discovered, the plaintiffs demanded payment of the promisors, who refused, and on the 11th of April these facts were communicated to the defendants, and the note tendered them, and the money they had received from the carrier demanded by the plaintiffs, and refused by them.</p> <p>R was also proved that the promisors had not funds to pay the note when due on the 7th of April, and had determined not to pay it, and would not have paid it, if presented; that after the 7th they paid no business debts, (this being one,) and no change took place in their circumstances; but they continued in possession of a stock of dry goods until the 17th of April, when they were sued by the defendants on the note which fell due on the 13th of April, and an attachment of their stock made, which was afterwards dissolved by an assignment of their estate under the insolvent laws ; and the second note was never paid, but was proved in insolvency against their estate.</p> <p>Upon these facts, the defendants contended that there was no such privity or agency proved to have existed between the parties, as to enable the plaintiffs to maintain this action; and that, as the mistake arose from the negligence of the plaintiffs, they had no remedy against the defendants. A verdict was taken by consent for the plaintiffs, subject to the opinion of the full court.</p>

Action on the Rev. Sts. c. 104 to recover possession of a cellar in Lowell. At the trial in the court of common pleas, before Perkins, J., the plaintiff proved his title in the premises, and offered in evidence a lease, not under seal, executed by an attorney in behalf of those under whom the plaintiff claimed title, to the defendant; and called the attorney to prove his own signature.

<p>A mortgage of real estate attached since the making of the mortgage does not, by .being assigned to a purchaser of the equity of redemption, merge in the equity.</p> <p>A conveyance, by a mortgagee to a third person, of a specific part of the land mortgaged, does not discharge that- part from the mortgage, as against the mortgagor.</p>

Writ of entry to foreclose a mortgage of land in Holliston, dated May 27th 1851, made by the tenant to Thomas Fiske to secure a note of $200, and by him assigned to the demandant.

Action of contract on a bond for the liberty of the prison limits. Answer, a discharge of Fairbanks, the principal, upon taking the poor debtors’ oath. The facts upon which the case was submitted to the decision of the court, so far as they relate to the points considered, were as follows : The application of the debtor to the j'ailer, the communication thereof to a justice of the peace, and the citation to the creditor were in due form.

<p>Appeal from a judgment of not guilty rendered by two justices of the peace and of the quorum, upon charges of fraud filed by a creditor against a debtor at his examination upon his application to be admitted to take the poor debtors’ oath. The appeal was entered at a civil term of the court of common pleas; and the debtor, after being found guilty by a jury, moved to dismiss the action for want of jurisdiction, because it should have been entered at a criminal term; and, his motion being overruled, alleged exceptions.</p>

<p>Jefferson Bancroft, summoned as trustee, in his answer disclosed that he had in his hands as a public officer, to wit, as warden of the state prison, a sum of money due to the defendant, for his salary as an officer of the prison. On this answer, the court of common pleas discharged the trustee, and the plaintiff appealed. Pending the appeal, Bancroft was removed, and David S. Jones appointed warden.</p>

<p>Indictment for being a common seller of spirituous and intoxicating liquors. Trial in the court of common pleas, before Bishop, J., who signed the following bill of exceptions :</p> <p>“ John R. Tufts, the first witness called by the government, testified, in his examination in chief, that he did not know the defendant’s business, and that he did not know where his shop was situated. The witness testified with a great deal of reluctance, and showed a strong disposition to conceal the facts which be knew, and evaded the questions put to him by the district attorney. The district attorney put to the witness the following interrogatory: ‘ Did you not swear before the grand jury that you did know the defendant’s business, and that you did know where the defendant’s shop was situated ? ’ To this, the counsel for the defendant objected ; but the court permitted the question to be put. The district attorney assigned no reason for putting the question, and the court gave no reason for allowing it, nol was there any explanation made by court or counsel. The reason why the court permitted the question to be put, was the manifest reluctance of the witness to say any thing implicating the defendant, and his obviously evasive answers to the questions put to him, which induced the court in its discretion to allow the examination; but the reasons for so doing were not stated by the court. The above question was asked, and answered by the witness in the affirmative ; the jury found a verdict of guilty ; and the defendant excepted-to the above ruling of the court.”</p>

<p>Declarations made by one claiming a right of way, concerning such- right, in the presence of the owner of the estate, but not heard by him by reason of deafness, are inadmissible in evidence against him.</p> <p>Upon the assessment of damages sustained by the taking of land for a highway, the testimony of the owner of a right of way over the land, as to the amount for which he would have sold his right if no highway had been laid out, is inadmissible.</p> <p>The owner of land, who has built a house on a part thereof over which there is a right of way, may recover, as part of the damages occasioned by the subsequent taking of the land for a highway, the value of the right to have the house remain on the land until its removal be required by the owner of the right of way.</p>

<p>Action of tort by the prudential committee of the fourteenth school district of Groton for the year 1851 (who had been authorized by the town to select and contract with teachers, pursuant to St. 1838, c. 105, § 2,) against the superintending school committee of the town for that year, for an alleged libel concerning the plaintiff, and concerning him in his said office, and his conduct, doings and proceedings therein, contained in the detailed report of the condition of the schools, made to the town and published by the defendants in their official capacity, pursuant to the provisions of the statutes. Answer, that the publication (a copy of which was annexed) was not libellous, but was true, and was made in the performance of the defendants’ official duty. The material parts of the publication are copied in the margin; the passages in italics being those set forth in the declaration*</p> <p>A trial was commenced before Bigelow, J., who made a report thereof, of which the pleadings, and the records of said town and echool district were made parts, and the residue of which was as follows: “ After the cause was opened to the jury, it being objected that the publication was not libellous, and the court inclining to that opinion, it was withdrawn from the jury, and submitted to the whole court. If, upon a hearing of the cause, the court shall be of opinion that the action can be maintained, it shall be submitted to a jury, for the purpose of ascertaining whether the defendants were actuated by express malice, and also the amount of damages, if any ; otherwise, judgment shall be rendered for the defendants.”</p>

<p>Action of tort for breaking and entering the plaintiff's close in Medford, being part of the land which was taken by the proprietors of the Middlesex Canal, between 1800 and 1805, for the purposes of their canal, and used by them as a towpath on the northerly bank of the canal until the discontinuance of their canal in 1851, when they made a deed of the premises in question to the plaintiff. The case was submitted to the decision of the court upon a statement of facts, beginning thus:</p> <p>“ In Medford, on the southerly side of Mystic River, are two ancient rangeways or roads, laid out about the time of the first settlement of the town, running from points on or near Mystic River southerly, and parallel or nearly so, at the distance of about a quarter of a mile from each other, and opening in Somerville or West Cambridge into one of the old roads leading from West Cambridge to Boston. These rangeways have always been, and still are, more or less used by the public for passage with carts and carriages, and are still kept open to the public. The easterly of said rangeways connects at its northern extremity with South Street, formerly known as Fish Lane, and in 1828 laid out as a public street. Said Fish Lane had been open and travelled by the public more than sixty years before the date of the alleged trespass. The place where the alleged trespass was committed lies between the two rangeways. Both of said rangeways cross the canal by bridges built by the proprietors of said canal at the time of its first construction, and from that time to the commission of the alleged trespass, or to the discontinuance of said canal, maintained and kept in repair by them. Before said canal was constructed, the westerly of said rangeways, at or near its northerly termination, connected with a way or road which led easterly from that point to Fish Lane, or to the easterly rangeway near the point where it terminated in Fish Lane.”</p> <p>The former owners of the Adams farm, from whom the present owners derived their title, in 1806 conveyed to the proprietors of the canal by deed of warranty a strip of land five rod's wide, including the locus in quo. All the other material facts appear in the opinion.</p>

<p>Bill in equity. Hearing before Bigelow, J., who, after con» sulfation with the other judges, drew up the following opinion.</p>

<p>Petition in equity, under St. 1838, c. 163, § 18, by the assignees of Supply C. Wilson, an insolvent debtor, to annul or revise an order of a commissioner of insolvency, passed on the application of the respondent, who held a joint and several note signed by the debtor and two .others, secured by a mortgage of land owned by the three as tenants in common ; which order was passed against the objection of the assignees, and without notice to the other mortgagors ; and was that the assignees should cause an undivided third-part of the land to be sold by public auction, and pay over to said creditor the net proceeds of the sale, and that the creditor, after deducting the amount of such proceeds, and after deducting, as the value of the two third parts remaining unsold, and still held by him, twice the amount so received, be allowed to prove the balance against the estate of the insolvent.</p>

<p>^ bond of defeasance, executed and recorded together with a deed of land made to secure a debt, was delivered by the grantor to another creditor, and the first creditor, on receiving from the second payment of his debt, conveyed the land to him, and the second creditor gave the debtor a new bond of defeasance conditioned for the payment of the amount of both debts. Held, that this transaction, although made to secure the debt of the second creditor in violation of the insolvent laws, gave him the right to hold the land against the debtor’s assignee in insolvency, as security for the amount paid by him to the first creditor.</p>

<p>Petition of an alien, who had made his primary declaration of intention to become a citizen of the United States, and was otherwise qualified as was required by the acts of congress, to be admitted to make his final declaration on oath before this court. The question was whether the court would entertain the application since the passage of the St. of 1855, c. 28, which is copied in the margin.*</p>

Action of tort to recover damages occasioned to the person of the plaintiff by a defect in a highway. Trial at April term 1855, before Bigelow, J., who made the following report thereof: “ The defendants offered evidence of a conversation between their selectmen and the plaintiff, when the former asked the plaintiff how he would settle with the defendants.

<p>An application under St. 1851, c. 261, to establish the truth of exceptions disallowed oy the court of common pleas, cannot be made to this court, without compliance in all respects with the rule prescribed by this court under that statute. Thus giving to the adverse party, by mistake of the officer, only eight instead of ten days’ notice of the application, is fatal So is the failure to file and serve a petition, although a copy of the exceptions sought to be proved, and an affidavit of their truth and of the party’s intention to establish them before this court, be duly filed and served.</p> <p>A party failing for any reason to establish the truth of exceptions disallowed by the court of common pleas may argue the exceptions which were allowed by that court.</p> <p>Ho exception lies to the exclusion of evidence offered for both of two cases tried together, which was inadmissible in one of them.</p> <p>It is competent evidence to prove one the father of a bastard, that about the time of its birth he asked a witness whether he knew of a nurse for the child, if he could make a settlement of the case.</p> <p>In an action by a father fur the seduction of his daughter, damages to the plaintiff’s feelings may be recovered, though not specially alleged in the declaration.</p>

<p>A defendant will be allowed to plead a certificate of discharge in insolvency, obtained since the last continuance, in a case brought from the court of common pleas to this court upon exceptions, which he now waives.</p>

<p>Action of tort by the assignee of Cyras Noyes, an insolvent debtor, to recover the value of the stock, fixtures and machinery of a sash and blind factory, sold by Noyes to the defendant only a few days before the institution of the proceedings in insolvency, the first publication of notice in which was on the 18th of March 1854.</p> <p>At the trial in the court of common pleas, before Briggs, J., the plaintiff, in order to prove the insolvency of Noyes, and the extent of his insolvency, called the commissioner of insolvency as a witness, and he produced the original papers in the insolvency proceedings; and the plaintiff offered the schedule pf debts furnished by the insolvent to the messenger, the proofs of debts made by the several creditors under oath, the lists of debts proved at the several meetings, and the warrant and record of proceedings in insolvency; all of which were objected to by the defendant, but were admitted by the judge for the purpose for which they were offered.</p> <p>The plaintiff produced a writ of attachment against Noyes, made three days before the sale of this property, and called the attaching officer as a witness, who testified that when he served the writ, the defendant was present, and receipted for the property. On cross-examination the defendant offered to prove the declarations of the debtor before the sale, to show that the subject of the suit in which the property was attached was a disputed claim. But this evidence was objected to, and rejected.</p> <p>The defendant then offered to show, by this witness, various other declarations of Noyes made prior to his insolvency, and both before and after the sale to the defendant, tending to show that Noyes was at that time in good credit, and the amount of his property, his title therein, and the value of the property sold to the defendant, (which was in dispute,) his knowledge of the state of his affairs, and the openness and want of concealment, with which said sale was made; but. none of these declarations were alleged to have been made at the time of the alleged sale. The plaintiff objected to this evidence, and it was ruled out. But the defendant was allowed to prove, by another witness, that some time before the sale Noyes told him that he proposed to sell out to Reed.</p> <p>The plaintiff produced the deposition of Franklin Hobart, taken after notice, before a justice of the peace, on written interrogatories, then put by the counsel of both parties, and in the presence of the defendant. To a material question in said deposition, and to the answer thereto, the defendant objected at the trial. But as no objection was noted by the justice as having been made at the time of taking the deposition, the judge '•uled that it was not now open to the defendant.</p> <p>The defendant, in order to show that he had no reasonable cause to know the insolvency of Noyes at the time of the sale, offered to show the business credit and pecuniary standing of Noyes, before and at that time, amongst his neighbors, and creditors, and all others having business dealings with him. But the judge refused to admit such evidence.</p> <p>The defendant asked Hayden, one of his witnesses, if Noyes said any thing to the witness, of his desire to sell out, in the winter before he sold to the defendant. The plaintiff objected, and the objection was sustained.</p> <p>The plaintiff offered evidence tending to show that a certain water wheel and shafting were sold by Noyes and bought by the defendant less than three months before the insolvency, in fraud of the rights of creditors. To meet this, the defendant, after proving that the building, in which said wheel and shafting were, was his property, and that Noyes had put the same into the building under an agreement with him, asked the witness if he heard the parties, Noyes and the defendant, when together, at a time subsequent to this agreement, and about a year before the alleged fraudulent sale, say what the terms of agreement were. The conversation proposed to be proved was in the mill on the floor above the wheel, and had reference to the work, part of which had "been done, and the rest being done. This evidence was objected to, and excluded.</p> <p>Evidence having been produced by the plaintiff, tending to show that the sale from Noyes to the defendant was fraudulent, as it was intended to hinder, delay and defraud his creditors, the defendant offered to prove his own general reputation among his creditors, as a man of honesty, integrity and moral worth. But the judge rejected the evidence.</p> <p>Noyes having been produced by the defendant as a witness, and the plaintiff having produced a witness whose testimony tended to contradict Noyes, and to show that he had conspired with the defendant to cheat and defraud his creditors, the defendant offered to prove the general reputation of Noyes for integrity, honesty and moral worth, as well as for truth and veracity. But the judge refused to admit the evidence.</p> <p>The jury found a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Complaint under the mill act (Eev. Sts. c. 116,) for building a dam across the Nashua Eiver in Shirley in this county, and thereby flowing three lots of land of the complainants, one in Harvard and another in Lancaster, in the county of Worcester, and the third in Shirley. The respondent pleaded in bar, “ not waiving objections to the complainants’ claims for damages as to the two first described lots, on account of said lots or any part thereof not being in said county of Middlesex,” that he had a right to maintain his dam as it was now maintained, because he had so maintained it for more than twenty years; and that he had a right to flow said parcels of land, as they were flowed, by vh'tue of a grant of that right, made more than twenty years since, and because he had continued to flow said lands more than twenty years.</p> <p>At the trial in the court of common pleas, before Perkins, J., it was admitted that the respondent had a right to maintain the dam as it existed up to August 1852, when the old dam was taken down and a new one built. There was conflicting evidence upon the questions whether the top of the old dam was so built and maintained as to curve down lower in the centre than at either end, and whether the new dam was built level across the top, and raised the water higher than the old dam, when in good repair, would have raised it.</p> <p>A witness called by the complainants testified that he worked on the old dam when it was first built, sixty years ago, that it was built curving down lower in the centre than at the ends, and that the master workman who built it was dead. The complainants asked him if the master workman, while making the dam, told any reason why he made it curving in the centre. But the question was objected to, and ruled out.</p> <p>The respondent offered to prove that, when the dam was about to be reconstructed, he gave instructions to his sons, who were making preparations for reconstructing it, to go and find the height of the old dam and fix it, and to build the new dam of the same height, and that they followed these directions, and caused the dam to be so built, and it was. The complainants objected that this was evidence of the mere declarations of the respondent, and therefore not admissible; but the judge admitted it.</p> <p>Roberts, a witness called by the respondent, testified that, before the old dam was taken away, he, at the request and in the presence of the respondent’s sons, made a mark at the exact height of it, and that the new dam was built to that height; and he was permitted also to testify, against the complainants’ objection, that he went to the respondent, after the mark was so fixed, and gave him an account thereof, and told Mm that he had better raise the dam one foot, and the respondent, in a very peremptory manner, replied that he would not have it raised one inch.</p> <p>The respondent proved that the complainants had erected s cotton mill on a brook running into the river above the respondent’s dam, and constructed a reservoir dam across the brook near its source, and so held back a large reservoir of water for use in the dry season, and had leased this dam to the Phoenix Cotton Manufacturing Company. The respondent then offered in evidence a new contract made between the complainants and said company, reciting a covenant in the lease for a certain amount of water power, and stipulating for the building of a dam of a certain height and construction, and stating that “ it is the understanding between the parties, that if Eli Page has not raised the water in the Nashua River, by his new dam erected in 1852, higher than he formerly had a right to do, then bis lease [from the complainants] is null and void.” The complainants objected to the introduction of tMs contract, but the judge permitted it.</p> <p>The judge, besides other instructions the exceptions to which were not argued, instructed the jury “ that the complainants must prove, in order to entitle them to a verdict, and that the burden of proof was on them to do it, that some portion of a parcel of their land, part of which was in the county of Middle-sex, was overflowed or in some way injured by the water raised by the respondent’s dam; that it was not sufficient to show that the dam had been raised, and that the complainants had land in this county, but the land must be so situated that it or some part of it could be affected by the raising of the dam; ” and 11 that, it having been admitted that the respondent has a right, by prescription or presumed grant, to keep up a dam to a certain height, the jury, if they find for the complainants, are to find how high the new dam had been raised more than the respondent had a right before to keep up his dam.” The jury found a general verdict for the respondent, and the complainants alleged exceptions.</p>

<p>Action of contract upon a promissory note for $1700, dated February' 5th 1853, and purporting to be signed by the defendant. Answer, that the defendant did not sign the note. Trial before Merrick, J., who made the following report thereof:</p> <p>“ To show that there was a consideration for the note, and to render the making of the note probable, the plaintiff introduced evidence tending to show, amongst other things, that large portions of property, which at one time belonged to him, had passed into the possession of the defendant in the autumn of the year 1852. To meet this evidence the defendant offered to show, by Reuben S. Lewis, that in September or October 1852, the defendant called on him to raise a considerable sum of money, and at that time produced a mortgage from the plaintiff to himself. This was not objected to. The defendant then offered to show by this witness that, at the time of making the application for this money, and as a part of the same transaction of procuring the loan, he said he applied for it for the use of the plaintiff, and stated that he was procuring this money to pay to the plaintiff, and pledged his own collateral security therefor; but this was not in presence of the plaintiff. This evidence was objected to on behalf of the plaintiff, and excluded by the court. The jury found a verdict for the plaintiff. If the above evidence • ought to have been admitted, then the verdict is to be set aside ; if not, then judgment to be entered on the verdict.”</p>

<p>On the trial of an action brought by the assignee of an insolvent debtor, in which the fact of unlawful interest having been taken or reserved from the debtor by the defendant is put in issue, and the debtor has testified, the defendant is admissible as a witness for himself under Rev. Sts. c. 36, § 4, although the debtor, his incompetency by reason of inierest having been removed by St. 1852, c. 312, § 60, was- a competent witness independently of the Rev. Sts.</p>

<p>The indorser of a negotiable promissory note is a competent witness to piove tnat it was given in renewal of a former note negotiated by the indorser for the maker, adding interest at a usurious rate, and that the indorsee knew these facts when he took the note, and received unlawful interest thereon.</p>

<p>Bill in equity filed at October term 1852, under Rev. Sts. c. 35, § 3, by the assignee of an insolvent debtor, to recover threefold the amount of usurious interest paid by the debtor to the defendant. The bill did not waive the defendant’s oath to the answer. After the filing of an answer under oath, denying the usury, and of a general replication, the case came on for a hearing at April term 1855, before Bigelow, J., who made the following report thereof:</p> <p>“ The plaintiff moved that issues might be ordered to be submitted to the jury for trial. To this the defendant objected, on the ground that the plaintiff had no legal right to have any issues of fact tried in the case. The court, being of opinion that the plaintiff was entitled to have the issues of fact tried by the jury, ordered that they be framed. To this order the defendant excepts.”</p>

<p>Under the St. of 1852, c. 312, an action of contract on an account annexed for “ balance due for bread furnished to the defendant’s agent K,” and for “ bread delivered to the defendant’s agent K,” is supported by proof that the bread was consigned to K for sale and sold by him, and the money used in the defendant’s business.</p>

<p>If an administrator, selling real estate of his intestate, under license of the probate court, represents that the purchaser •will have a complete title, and the widow, upon his statement that “ it shall be as well for her,” signs, but does not seal, a release of dower, at the end of his deed, and he thereupon receives the full price from the purchaser, she cannot maintain an action against the administrator for the value of her dower.</p>

Action of contract upon this account annexed: “ Col. Wm. Gibbs to Theod.

Bill, in equity to redeem real estate in Somerville, sold for nonpayment of taxes.

<p>Action of contract to recover for services performed under a special agreement. The defendant answered payment, and filed an account in set-off. Trial in the court of common pleas, before Perkins, J., who signed the following bill of exceptions :</p> <p>“ To prove his account in set-off, the defendant offered his books of account, supported by his oath. He was asked if the book offered in evidence contained his original entries, or whether the charges had been made in some other place or book, and copied into the book offered. He stated that he made his charges first, sometimes upon a slate, sometimes upon slips of paper, and at other times upon a small book, which he said was, or was like a pass book. He could not tell what portion of .the charges or items specified in this case had been originally set down in that book. He copied from this book, or from the slate, sometimes every day or two, sometimes not oftener than once a week, into the book offered in evidence. How long the items claimed remained on the slate or pass book before they were copied, he could not tell. There was nothing to show that this pass book was destroyed, or could not be found; and the defendant said he had not looked for it; that he had no other day-book than the one offered, kept in the manner above stated, and he had no ledger. The said book offered, the defendant said, he usually kept at his house. The plaintiff objected to that book, as well upon the above facts, as from its appearance, which was submitted to the court. The court ruled that the book could not be admitted for the purpose for which it was offered, to prove the items of payments of cash specified in the defendant’s account in set-off. A verdict was taken for the plaintiff, and the defendant excepted.”</p>