Volume 71 — Massachusetts Reports

<p>Action of tort for slander, by charging the female plaintiff of the crime of being drunk by the voluntary use of intoxicating liquor, by words spoken of her substantially as follows: “ She drinks rum and gets drunk, and she got drunk and laid drunk a week. She is mad with the neighbors because they will not let her have liquor. She will get drunk whenever she can get liquor.” The defendant demurred to the declaration, because it set forth no cause of action.</p>

<p>A repetition of a slander already in circulation, without expressing any cfcisbelief of it, or any purpose of inquiring as to its truth, though made without any design to extend it» circulation or credit, or to cause the person to whom it is addressed to believe or suspect it to be true, is actionable.</p> <p>in an action for slander, the only evidence was that the defendant repeated a slander, already in circulation, to one person, who testified that she did not believe it, or think any worse of the plaintiff for having heard it: The jury were instructed that if the defendant repeated the slander, conveying to any extent the idea that it was true, or that the defendant believed it to be true, this action would lie; but that it would be otherwise, if the defendant repeated the slander without any design to extend its circulation or credit, or to cause the person to whom it was addressed to believe or suspect it to be true: The jury returned a verdict of a trifling amount for the plaintiff. Held* that the plaintiff was entitled to a new trial.</p>

<p>Action of tort. Trial in the court of common pleas for Dukes County before Bishop, J., to whose rulings the plaintiff alleged exceptions.</p> <p>Before the jury were impanelled, the court, at the request of the plaintiff’s counsel, asked one of the jurors the statute question, whether he had any interest or bias. The juror answered in the negative. While the jury were out, the plaintiff filed a motion to take the case from the jury, because this juror had manifested an interest, bias, and prejudice, such as would render him incompetent; and in support of his motion introduced certain evidence, which was stated at length in the bill of exceptions. But the court refused to take the case from the jury. After a verdict for the defendant, the plaintiff moved for a new trial on the same ground, and supported this motion by similar evidence. This motion was also overruled. And to these rulings the plaintiff alleged exceptions.</p>

<p>Action of contract upon a judgment rendered by the supreme court for the county of Schenectady and State of New York, in an action brought on a debt due from the defendant to the plaintiff. Answer, that the defendant, at the time when said judgment purports to have been rendered, and for many years previously, was, and still is, an inhabitant of Massachusetts, residing at Taunton; that he never appeared, either in person or by attorney, before said court; and that no legal notice of that action was ever served upon him; and so said court has no jurisdiction of the defendant. Trial in this court before Dewey, J., who reserved the question, whether this action could be maintained, for the consideration of the full court, upon the following report:</p> <p>The plaintiff gave in evidence a copy of the judgment declared on, dmy certified, which, among other things, contained an answer signed “ James Fuller, defendant’s attorney,” a summons issued to the defendant, and a return thereon of Lorenzo Vibbard, as deputy sheriff, that he had madé personal service thereof on the defendant at Saratoga Springs in said county, by delivering to him a copy.</p> <p>The defendant contended that the record in this case had been materially altered in a substantial particular, and offered an attested copy of the judgment roll, also duly certified, which differed from the plaintiff’s copy, in containing no summons to the defendant, and no return of service upon him. The defendant also called a witness, who testified that he was at Schenectady at the date of the copy produced by the defendant, and saw the original papers in the case, and that the copy produced by the defendant was a copy of all the papers then in the case. The defendant also put into the case the deposition of James Fuller, (taken by the plaintiff,) in which he testified that he was an attorney and counsellor at Schenectady, and was retained in said action by Henry Fuller to appear on behalf of the defendant, and did so appear, but had never seen, nor had any written communication with King.</p> <p>Henry Fuller, being called by the plaintiff, testified that he received from King a summons, and was verbally employed by him to attend to the case, and retained James Fuller; and that it was not the practice in New York to return the summons and officer’s return in any case where there was an appearance. Lorenzo Vibbard testified that he was a deputy sheriff at Saratoga Springs, and there served a summons in that action upon the defendant; and identified a paper shown him, as the original summons and return. The defendant objected to the testimony of both these witnesses as incompetent.</p>

<p>A legatee of chattels, before letters of administration were granted, gave the chattels to another person for life, and was afterwards appointed administrator with the will an nexed, and after the death of that person, and twelve years after the death of the testator, and eight years after his own appointment, brought an action in his own right to recover the chattels. It not appearing that the chattels had ever been claimed or wanted for the payment of debts, held, that he could maintain his action.</p> <p>A general description by witnesses, of chattels for the conversion of which a suit is brought, is sufficient, if it enables the jury to estimate their value, to authorize them to return actual damages.</p>

<p>A testator devised real estate in trust, to apply the income to the maintenance of a pas tot or elder in a church in the town where the testator resided, of a certain faith and practice, so long as the members of that church or their successors should maintain the visibility of a church in such faith and order. Afterwards the only two members of the church, at a meeting called by public notice, voted and resolved that they would no longer endeavor to maintain the appearance of a visible church, and declared the church dissolved and extinct. Held, that the church was thereby dissolved, and ceased to be a visible church, and that the trustee held the estate as a resulting trust for the testator’s heirs at law.</p>

<p>Action of tort for slander. Writ dated March 6th 1854. The declaration was thus : “ And the plaintiff says, the defendant publicly, falsely and maliciously charged the plaintiff of the crime of perjury, by words spoken of the plaintiff substantially as follows, viz: ‘ Walter has been to New Bedford, and sworn to a damned pack of lies ; ’ ‘ Walter has been to New Bedford, and sworn to a pack of damned lies.’ And the plaintiff says, that during a term of the supreme judicial court for the county of Bristol, holden at New Bedford in said county in the month of November last past, and by adjournment in the month of February last, he, the plaintiff, was summoned as a witness in the case of a libel for divorce, pending in said court between Phebe L. Gardner and Johnson Gardner, and that in obedience to said summons he did attend said court at said November term, and did in said case of libel, before the Hon. P. Merrick, one of the judges of said court, testify as a witness, having been first sworn to testify in said matter to the truth, and being so under oath as a witness as aforesaid he did swear, and it is to this subject the defendant’s malicious declarations refer.”</p> <p>The defendant demurred, because the facts stated did not in point of law support the action.</p>

Appeal by the executors and residuary legatees under the will of Ebenezer Williams, from a decree of the probate court, granting an allowance to his widow, who had accepted, by writing filed in the probate office, the provision made for her in the will in lieu of dower, before the appellants gave bond to pay debts and legacies.

■ The parties submitted the case to the decision of this court upon the following facts : These items consisted of the damages and costs recovered against the appellant in a suit commenced and prosecuted against him as such administrator, and for which execution had been issued against him in his individual capacity, and of the fees of witnesses summoned- and used by him in the defence of that suit; but none of these items had been paid when the account was rendered.

<p>Action of contract on a bond “ in the full and just sum of double the value of the property hereinafter mentioned to be replevied, to be ascertained by three disinterested and discreet persons, appointed and sworn by the officer according to the provisions of the revised statutes, c. 113,” and which was conditioned that the plaintiff in replevin (one of these defendants) should prosecute the replevin to final judgment, and pay such damages and costs as the defendant in replevin should recover against the plaintiff, and also return the property in case such should be the final judgment.</p> <p>At the trial in the court of common pleas of this action on the bond, Bishop, J. ruled that the bond was valid and binding on these defendants, although the return of the officer who served the writ of replevin stated only that the parties to the replevin having agreed on the value of the property replevied, (■which also appeared by an agreement signed by them, and annexed to the return,) he took a bond “ in a penalty double the value of the said property, so ascertained, with condition to prosecute,” &c., which bond he therewith returned; and that he thereupon replevied the property, and left a summons with the defendant in replevin.</p> <p>The verdict was for the plaintiff, and the defendants excepted.</p>

<p>A town may maintain an action against an individual for supplies furnished to his wtte and children, if they stood in need of support, as paupers, but not otherwise.</p>

Petition to the county commissioners for a jury to assess the damages caused by the laying out of a town way, called Clark’s Point Road, over land of the petitioners in New Bedford. The way was laid out on the 13th of June 1853; on the 6th of November 1854, the mayor and aldermen of New Bedford, on application being made to them, awarded to the petitioners the sum of fifty dollars as damages; and this petition for a jury was presented on the 24th of November 1854.

<p>On the trial of a petition for the assessment of damages caused by taking land for a railroad, even after the petitioner has given evidence that the land was peculiarly valuable as a place of entertainment, and leased as such, evidence that intoxicating liquor was sold on the land by the tenant, is inadmissible to reduce the value of the estate.</p> <p>On the assessment of damages occasioned by the taking of land for a railroad, evidence that the remaining land of the petitioner would be benefited by the location of a station at that place is inadmissible in reduction of damages, if no act has been done by the proprietors of the railroad toward establishing such a station.</p> <p>The damage, occasioned to buildings by blasting rooks within the line of a railroad, and sought to be recovered of the proprietors of the railroad, may be proved by evidence of its pecuniary amount.</p> <p>A printed transcript of a copy of the assessor’s valuation is inadmissible in evidence of the value of land, in assessing damages for the taking of it for a railroad.</p> <p>The award of the county commissioners, assessing damages for land taken for a railroad, is inadmissible on the hearing before a sheriff’s jury, to prove the amount of land taken.</p>

Action of contract on a quantum meruit, for work and labor done by the plaintiff for the defendant. Trial in the court of common pleas. The defence relied on was that the work and labor were done under an entire contract for one year, and that the plaintiff wrongfully left the defendant’s service before the year expired.

Action of contract. The declaration alleged that the plaintiffs furnished certain labor and materials for the building of the ship John A. Parker, which were used in its construction; that on the 13th of October 1852, when the ship was at New Bed-ford, and the plaintiffs were about to libel her in the admiralty to enforce a lien which they had upon her for the value of said labor and materials, under the St. of 1848, c. 290, the defendant, who was the agent and one of the…

The Old Colony Iron Company, summoned as trustees, in answer to interrogatories put by the plaintiff, stated that the defendant had worked for them ten years, and now worked for them, but they were not, and never had been, under any agreement to employ him for any stipulated length of time; that his wages were seven shillings a day, payable .monthly when he worked; that the defendant on the 11th of September 1854 addressed to them the following order in writing : “ Please…

<p>Where a certificate of discharge in insolvency is pleaded, and a particular act of prefetence replied by way of avoidance, evidence of previous conveyances to other persons, not specified in the replication, is admissible to show the state of the defendant’s property at the time of the alleged preference.</p>

<p>A policy of insurance, which provides that “ when the assured shall increase the risk of the insurance, the policy shall become void,” is avoided by the increase of risk by the assured, and does not render invalid a subsequent policy of insurance upon the same property, which provides that the existence of other insurance shall avoid the policy.</p> <p>Evidence of the former existence of a policy of insurance, subject to a lien of the insu ranee company, and that neither that policy nor the deposit note therefor had ever been surrendered or cancelled, and that a small assessment was laid on that and other policies, but was never collected, because the policy was declared void and the assessment remitted by the directors by reason of an increase of risk, does not as matter of law show such an incumbrance on the property insured, as will avoid a policy obtained from another company after the increase of risk but before the policy was so declared void; although the second policy provide that the failure to disclose incumbrances shall avoid it, and neither the former policy, nor the lien thereby created, be disclosed.</p> <p>On a policy of insurance for $1200, “in case of loss, payable to J. S., mortgagee, to amount of $400,” the assured, if the mortgagee assent, may sue in his own name, even for a loss of less than $400; and if such assent was given before the commencement of the action, may recover costs.</p>

<p>A railroad corporation, who lease to an individual a house owned by them, he paying them a certain sum annually and “ half the net proceeds arising from keeping said house as a hotel,’* and keeping an account open to their inspection, and giving his own time and attention, and having free passage over their railroad for himself and all persons employed and all articles used by him in carrying on the house, do not thereby become partners, even as to third persons, in the business of keeping the house.</p>

Action of tort. The declaration averred that the defendants suffered a place in a certain highway in Bast Bridgewater, just before the junction thereof with the road leading to West Bridgewater, “ to be defective and out of repair, in that there was a ditch or uncovered drain, running across the same, near the foot of the hill, with a steep ascent from said drain on the southeasterly side thereof; ” and also suffered another part of the highway, where it joins that leading…

<p>T,'n6er the authority given to a jury by the Rev. Sts. c. 24, §§ 13, 76, to make any altera dins that may be prayed for between the termini of a town way laid out by selectmen, the jury may, on the petition of a party over whose land the way is located, move the location of a portion of the way, beginning at one terminus thereof, a rod to one side of the location by the selectmen.</p>

<p>Action of contract against the executor and residuary legatee of Rachel Alger, who had given bond to pay debts and legacies, to recover “ one feather bed and bedstead, best bed quilt, best coverlet, best puff, two best bed blankets, and fifty dollars in money,” bequeathed by said Rachel to' her granddaughter, the female plaintiff. The will of Rachel Alger, after many other legacies to children and grandchildren, contained the following clause: “ And my will is that each and all my heirs, the legatees above named, should bear a proportion of the expenses of my maintenance, in proportion to the legacies bequeathed to them.”</p> <p>At the trial in the court of common pleas, before Bishop, J., the defendant contended that this clause was or constituted a condition precedent; and that the plaintiffs could not recover, without showing that they had borne, or offered to bear, a proportion of such expenses. But the judge ruled that this clause, if it would otherwise have constituted a condition precedent to the recovery of the legacy, was void for uncertainty; that the plaintiffs took the legacy discharged of the condition; that if the condition was not void for uncertainty, the defendant, by giving bond to pay debts and legacies, was estopped to deny that the testatrix left assets, and bound to pay the legacies.</p> <p>The defendant offered to show the relative value of' all the legacies in the will, and that the male plaintiff, when demanding the legacies to his wife, offered to pay her share of the maintenance of the testatrix. He also offered to show that the testatrix, after making said will, disposed of nearly all her property, and he maintained her at his own expense from the time of the making of the will until her decease. But the judge excluded all this evidence, and directed a verdict for the plaintiffs for the pecuniary legacy, and for the agreed value of the specific legacies, with interest from the time of demand. A verdict was returned accordingly, and the defendant alleged exceptions.</p>

<p>Action of contract on a bond, dated January 1st 1847, and conditioned to convey certain land in Middleborough to the plaintiff, he building and maintaining a good and substantial fence around the land, and paying to the defendant the sum of $963.52 “ in the following payments, one hundred dollars in one year from the date of this instrument; one hundred dollars in two years tom date; ” (and so on, in annual payments of one hundred dollars for six years more ;) “ and one hundred and sixty three dollars and fifty two cents in nine years; the said deed to be given to the said Clark, or his heirs or administrators, at any time previous to the term of the last payment, provided the whole amount, together with the interest thereon, shall have been paid.”</p> <p>At the trial in this court, the plaintiff proved a breach of the bond by the defendant, by a conveyance of the land to another person on the 10th of April 1849; the defendant admitted that the first annual payment was duly made; and Dewey, J. re served for the consideration of the whole court the questions, whether the plaintiff could maintain his action, without proof of having made the. second payment on the 1st of January 1819; and if not, whether a jury would be warranted in finding such payment upon the following evidence :</p> <p>The plaintiff offered his account book of original entry, with-his suppletory oath, to prove that on the 1st of January 1849 ne held an account of $100 against the defendant. He also offered an account rendered by him to the defendant on that day, showing a balance then due the plaintiff of more than $100, and which was produced on his call by the defendant; but offered no evidence to connect the account with the bond or with this payment.</p> <p>The defendant offered in evidence eight promissory notes, signed by the plaintiff, bearing even date with the bond, and corresponding, in amounts and times of payment, to the instalments mentioned in the bond, and payable to the defendant with interest.</p>

<p>Bill in equity, filed at October term 1854, for the specific performance of a bond to convey real estate. The defendant, though served with a subpoena in the usual form, filed no answer ; and the plaintiffs, at May term 1855, moved that the bill be taken for confessed.</p> <p>The defendant resisted this motion, and moved the court to dismiss the bill, for want of jurisdiction, because the plaintiffs’ remedy, if any, was by action of contract, praying relief in equity, under the St. of 1853, c. 371.</p> <p>The plaintiffs thereupon prayed for leave to amend, if the court should be of opinion that the bill could not be maintained in its present form. And Dewey, J. reserved the case for the consideration of the whole court.</p>

<p>Evidence of general, uninterrupted, public use of a road as a highway for twenty years is sufficient to charge a town with liability to keep it in repair, notwithstanding the St. of 1846, c. 203, providing that no way by dedication shall be made chargeable upon a town, unless accepted.</p>

<p>Complaint on St. 1852, c. 322, § 8, in the following words: “ To George W. Bryant, Esquire, a justice of the peace in and for the county of Plymouth, William P. Corthell of Abington in the county of Plymouth, on behalf of the Commonwealth of Massachusetts, on oath complains that Samuel E. Newell of Abington in the county of Plymouth, on the seventeenth day of August in the year eighteen hundred and fifty three, at Abington in the county of Plymouth, without any authority, appointment, or license therefor, duly made, had and obtained according to law, did unlawfully sell intoxicating liquors to Turner R. Holbrook—the same not being cider sold for other purposes than that of a beverage, and not being the fruit of the vine 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.”</p> <p>The defendant, being convicted by the justice, and again in the court of common pleas, moved in arrest of judgment, 1st, Because this was a criminal process, instead of a civil process. 2d. Because it was not made in behalf of the town of Abington. Sanger,.J. overruled the motion, and the defendant alleged exceptions.</p> <p>This case was argued and decided at October term 1854.</p>

Indictment for perjury by falsely, maliciously and wilfully testifying, at the trial of William P. Hood on a complaint for maliciously burning a ship on the stocks, that, soon after the ship was on fire, Brady saw a person come out of the ship and run away, who, to the best of his opinion, was said Hood.

<p>Indictment of Dennis Desmond and Thomas Sullivan tor burning in the night time the barn of John McCarty in Fall River. Trial in the court of common pleas, before Sanger, J., who signed the following bill of exceptions :</p> <p>“ The government offered David Healy, Jr. as a witness, who testified, in substance, that on the evening of the night the bam was burned, he was with the defendants for two or three hours in the streets, and around a hall where the firemen of the city were having a ball; that while they were standing near the hall, Desmond said he would set McCarty’s barn on fire and get the companies out; that then Sullivan and the witness replied, telling him 1 Not to do so ; there was no use in it; ’ that the three soon afterwards went towards McCarty’s bam, and while near it Desmond requested Sullivan and the witness to wait while he went for some matches; that Desmond went away, and they waited for his return ; that they then went nearer the barn, and that Desmond, when the three were at or near the barn, again said ‘ He was going to do it,’ and that Sullivan and the witness told him ‘ not to ; ’ that Desmond went to the door of the barn and opened it and went in; that Sullivan went into the barn and told Desmond not to do it, the witness staying outside at the door; that Desmond then lighted a match and set the hay in the bam on fire; that all three then ran down the street, and after going a short distance, turned back and raised an alarm of fire; went back to the building, which was then burning, and were there together at the fire, and for some dme afterwards. The witness also testified that all three were somewhat intoxicated ; that the defendants were both drunk, else they would not have done what they did. There was other evidence tending to corroborate the testimony of Healy.</p> <p>“ Desmond and Sullivan were defended by different counsel. The counsel for Desmond argued to the jury that Healy was an accomplice, and that his testimony not being corroborated in any material point, the jury could not find a verdict against Desmond, and requested the court so to instruct the jury. The district attorney assumed and claimed that Healy was an accomplice, and that his testimony was so corroborated as to make it the duty of the jury to convict the defendants.</p> <p>“ The court instructed the jury upon this point, that whether Healy was an accomplice or not was a question of law, depending not upon the statements or arguments of counsel, but upon the facts proved by the legal evidence in the case; and proceeded to state what acts would make him an accomplice ; and then advised and instructed the jury that if Healy was an accomplice, they should not find the defendant guilty on his testimony, unless it was corroborated in material points; but that if he was not an accomplice, his testimony was to be considered and weighed like that of any other witness.</p> <p>“ The jury found Desmond guilty, and acquitted Sullivan. And now Desmond, by his counsel, excepts.”</p>

<p>Indictment containing three counts, one for burglary and one for larceny, (on each of which the defendant was acquitted in the court of common pleas,) and the third framed on the Rev. Sts. c. 126, § 20, and averring that the defendant at New Bed-ford, on the 27th of March 1855, certain pieces of cloth, and articles of wearing apparel, (described,) “ of the goods and chattels of one Benjamin P. Howland and of one Preserved Bullock, copartners under the firm of Howland and Bullock, by some person or persons to the said jurors unknown, then lately before stolen of the said Howland and Bullock, unlawfully, unjustly, and for the sake of unlawful and wicked gain, did receive and have, the said Edward Lakeman then and there well knowing the same to have been feloniously stolen, against the peace,” &c</p> <p>The defendant, being convicted on this count, moved in arrest of judgment for the following reasons“ 1st. Because of the insufficiency of the indictment, it containing no averment, in the count for receiving stolen goods, upon which conviction was had, properly setting out a larceny from Howland and Bullock. 2d. Because there is no sufficient averment in said count, in law setting out a knowledge by him of the larceny.” Banger, J. overruled the motion, and the defendant appealed.</p>

<p>Indictment for larceny of a pair of pantaloons, the property of Brown & Crossman, from their shop in Taunton.</p> <p>At the trial in the court of common pleas, Crossman testified that on the 16th of May last the defendant came into the shop and looked at a pair of pantaloons, and asked Crossman to let him have a pair and trust him, but Crossman refused; that he then asked if he would let him have a pan, and charge them to his father, but Crossman told him that he would not unless he brought his father’s order; that Chai-les N. Mitchell was their salesman, and authorized to sell and deliver goods from their store. Mitchell testified that the defendant came into the shop on the 16th of May, and asked if he could get a pair of pantaloons there, and the witness told him to ask Crossman, who was in the back shop; that the defendant went into the back shop, and talked with Crossman, out of hearing of the witness ; and then went out, and in about a quarter of an hour came back, and asked to see the pantaloons which he had been looking at, and the witness showed them to him, and threw them on the counter, and, while attending to another customer, saw the defendant take them and fold them up, and the defendant said he had made it all right with Crossman, put them under his coat and went out; that the witness supposed it was all right, and ■ that he had made it all right with Crossman, and therefore made no objection to his taking the pantaloons.</p> <p>The defendant contended that the facts above stated were not sufficient to constitute the crime of larceny. But Sanger, J. instructed the jury that this testimony, if believed, was sufficient "to warrant a verdict of guilty; and the defendant being convicted, the judge reported the case to this court.</p>

<p>A complaint does not sufficiently charge the offence of being a common drunxard by averring that the defendant “ on divers days and times, not less than three times, within six months last past, was drunk by the voluntary use of intoxicating liquor, and so, on the day of making this complaint, was a common drunkard.”</p> <p>It seems, that in order-to be a “ common drunkard,” within the meaning of Rev. Sts. c. 143, § 6, a man must be habitually drunk to the disturbance of the public peace and good order.</p>

<p>A complaint, charging the commission of an offence “ on the third day of June instant/ without mentioning the year, is insufficient, although it purports to have been sworn to “ on the fourth day of June A. D. 1855.”</p>

<p>An indictment or complaint which states the year of the commission of the offence in figures only, without prefixing the letters “ A. D.,” is insufficient.</p>

<p>An indictment pending, on which no conviction has been had, is no bar "to another indictment.</p> <p>An indictment against three for a riot, is supported, on the separate trial of one, by proof of a riot in which he and any two other persons joined.</p>

<p>Indictment for adultery with Josephine Frost. At the trial in the court of common pleas, the district attorney called Julia A. Belgard as a witness, who testified that the defendant was her stepfather, and had cohabited with Sarah Belgard, her mother, as man and wife, for ten years last past at Boston and Philadelphia, and had introduced her to his friends as his wife, and had children by her who had borne his name.</p> <p>On cross-examination, the witness testified that she was seventeen years of age, and that eleven years ago her mother was living with Oliver Portri, as his wife, and bearing his name, at Bytown in Canada, and was there separated from him, receiving a house for her separate use, and the witness supposed her mother and father were divorced; that she did not know that her mother had had news from or of him since, or whether he was still alive; that afterwards, when she and her mother weie residing together at Montreal, the defendant, who had been a clerk of Portri, visited the mother, and afterwards accompanied them to Boston, where the defendant cohabited with the mother as aforesaid, and gave the witness the name of Julia Belgard, which she had since borne; but that she did not know of the marriage of the defendant with her mother.</p> <p>She also testified, upon cross-examination, that after going to Montreal she first saw the defendant while she was walking with her mother in the street, and he then and there spoke to her mother. The counsel for the defendant then asked “ What did he then say to vour mother ? ” To this question the district attorney objected, on the ground, among others, that the evidence for the Commonwealth had been confined to the cohabitation and acts of the defendant and Sarah Belgard, subsequent ■to their arrival at Boston. And Sanger, J. sustained the objection, and would not permit the question to be put. The jury found the defendant guilty, and he alleged exceptions.</p>

<p>An indictment on St. 1855, c. 215, which charges the defendant with selling intoxicating liquors, or with being a common seller thereof, “ without being duly authorized and appointed thereto according to law,” sufficiently negatives the .defendant’s right, to sell in any mode permitted or not prohibited by the statute.</p> <p>An indictment on Si. 1855, c. 215, for unlawful sales of intoxicating liquors,need not aver whether the sale was made from a dAvelling-house, or from a tavern or other place of common resort, notwithstanding the provisions of § 34, prescribing different rules as to the evidence required in the tAvo cases.</p> <p>The fifteenth and seventeenth sections of the Si. of 1855, c. 215, providing for the punishment of unlawful sales of intoxicating liquors by fine and imprisonment, do not conflict with the Constitution and laAVs of the United States, nor with the first and tenth articles of the Declaration of Eights.</p>

Indictment on St. 1852, c. 322, containing four counts, the first on § 12 for being a common seller of intoxicating liquors at New Bedford on the 1st of August 1852, and from that day to the 1st of January 1853 ; and the other three on § 7, for single unlawful sales of intoxicating liquors at the same place on subsequent days.

<p>Debt on a judgment recovered by the plaintiff against the defendant in the court of common pleas for the county of Bristol, at March term 1833, for two thousand dollars, more than ■ half of which remained unpaid. Answer, an assignment of said judgment to Cyrus Lothrop, and a release thereof by him. The parties submitted to the judgment of the court the question whether this action was barred by that release, of which the following is a copy:</p> <p>“ Know all men by these presents, That I, Cyrus Lothrop, of Easton, in the county of Bristol, esquire, in consideration of a promissory note for two hundred dollars, signed by Thomas J. Dunbar, of even date herewith, the receipt of which note I hereby acknowledge, do hereby remise, release and discharge the said Thomas J. Dunbar of and from all claims, demands, actions and causes of actions, which I now have against him, whether in my own name, or in the name of other persons, held by me, or owned by me; and particularly from the debt and costs in two actions now in the court of common pleas of Bristol county, Cohannet Bank vs. Dunbar and others, and N. Houghton & Co. vs. Dunbar; and all the defendants named in said Cohannet Bank vs. Dunbar and others are also hereby discharged from the cause or causes of action therein set forth, and 1 neither party ’ shall be entered in both of said cases. Witness my hand and seal this 20th day of March A. D. 1844. Witness, H. G. O. Colby. Cyrus Lothrop. [Seal.]”</p>

<p>Action of contract against Ezra Ingraham and Joseph Hunt, described in the writ as “ late partners under the firm of Ingraham & Hunt, stablers,” for hay sold and delivered. Hunt was not served with process, and did not appear, and the trial proceeded in the court of common pleas against Ingraham alone.</p> <p>It was proved or admitted that the defendants had been co-partners in business in Providence, and on the 1st of February, 1852 dissolved partnership, and published notice that they had dissolved partnership, and that the business of the firm would be settled by Hunt. The only evidence offered of the origin of the debt was the testimony of one witness that the plaintiff in 1850 and 1851 delivered six or seven loads of hay at the defendants’ stable, but the witness could not state the precise times and amounts. The defendant gave in evidence seven receipts of payment for as many loads of hay, dated in 1850 and 1851, and signed by the plaintiff.</p> <p>The plaintiff then offered in evidence the following memorandum, written and signed by Hunt: “ January 6th 1853. Due Timothy P. Ide fifty two dollars and twenty eight cents for balance of account. Ingraham & Hunt.” There was no evidence that Ingraham had any knowledge of the signing and delivery of this memorandum; and the defendant objected to its admission in evidence. But Hoar, J. admitted it; and instructed the jury that “ if from the whole evidence they were satisfied that there had been dealings between the plaintiff and the defendants, from which a balance of accounts might have resulted, equal to that stated in the paper of January 6th 1853, then an acknowledgment by one partner of the amount due upon such dealings would be evidence against both partners, although made after the dissolution ; and that the receipts introduced by the defendant, although proof that the bills had been paid, were not conclusive, but might be rebutted or controlled by other proof, if the jury thought it sufficient.” The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>A check addressed to the cashier of a bank, and thus expressed, “ Pay to J. S. or bearer fifty dollars, value received,” must be presented to the bank fof payment in order to charge the drawer,* and proof that it was intended by the parties as evidence of money lent, and was not intended to be presented to the bank for payment, is inadmissible to support an action against the drawer on the check.</p> <p>A drawer’s promise to pay an overdue check, without knowing the fact that it has not been duly presented to the bank for payment, is not binding upon him.</p>

<p>Action of tort, commenced on the 31st of October 1851, for flowing the plaintiff’s land bordering upon a stream in which the tide ebbs and flows, called Herring River. The declaration alleged that the defendants built a highway or dam across said river below the plaintiff’s land, with sluice ways, tide gates and other passage ways to enable the tide waters to ebb and flow, and the waters of the river to pass down as they had been accustomed to do; and afterwards suffered these ways to be closed, and thereby pent up the waters of the river, and flowed the plaintiff’s land. The answer averred that the dam was the property of private persons, and that the defendants had no control over it, except to keep in repair a highway which for more than forty years had existed upon said dam ; and denied that they had authorized or were responsible for any closing of said ways. The plaintiff filed a replication, denying substantially the averments of the answer.</p> <p>At the trial at November term 1853, before Merrick, J., the plaintiff offered evidence that the defendants, about 1800, built a wooden bridge as part of a public highway laid out by them across Herring River below his land; and afterwards repaired it, and finally rebuilt the bridge of stone, with two sluice ways or outlets to permit the free passage of the water; and these sluice ways continued open until 1846, when, without any action of the defendants, James Wing closed them, and made an ice pond above the bridge; and they thus remained until November 1850, when the town chose a committee to cause them to be opened; that Wing obtained a temporary injunction against this, which, upon a hearing before the full court, was dissolved, and the sluice ways opened, and kept open until April 7th 1851, when the town chose a committee to settle by a written agreement all matters in controversy with Wing; and said committee made an agreement accordingly, by which the town allowed Wing to close the sluice ways, and agreed not to interfere with his head of water, or in any way disturb the operation of his pond for the future, and he released all his claims against them for damages, and agreed not to overflow the streets, so as to cause a public nuisance, and also agreed to indemnify them against all suits wh’ch might be brought against them by the riparian proprietors Wing then closed the sluice ways, and they so remained until the date of the writ, and by means thereof the water above the bridge had been raised and the plaintiff’s land flowed. There was also evidence tending to show that the stream was navigable for useful purposes.</p> <p>Upon this evidence the plaintiff asked the judge to rule “ that the erection of any structure by the town, without authority, over a navigable stream, would be an unlawful act, and the structure a nuisance, and that if injury was caused to the plaintiff by such act, taken in connection with the act of a third party, the acts of the town and of this third party acting in their effect together, then, although no injury would have happened by the acts of either alone, the defendants would be liable ; that the town had no right so to build their road or bridge, or permit their road or bridge to be so continued, as to flood the lands of the plaintiff, but were bound to keep open sufficient outlet for said waters ; that if the town, after making their road with the necessary outlet for the waters, suffered other parties with their knowledge and with their consent to close the said outlet, and damage was thereby occasioned to the plaintiff, which he would not have suffered but for the existence of the roa.d and bridge as in fact made by the defendants, then they would be liable.”</p> <p>But the judge declined so to rule, and ruled, “ that if the bridge, as the town made and left it, was not a cause of injury to the plaintiff, then they were not liable for damage arising from closing of the sluice ways by another party; that they would not be liable although the act of this third party would not and could not have injured the plaintiff except for the action of the town in building the bridge; that the town were not liable by reason of acquiescence in the acts of Wing, unless they cooperated with him in his doings ; that the town were not liable for the closing of the sluice ways by Wing in consequence of the agreement between them; that the town, having made their bridge with sufficient apertures, were not bound to keep the same free and open, and were not answerable if the same were closed by other persons, though with their knowledge and consent.”</p> <p>The jury returned a verdict for the plaintiff, giving him no damages for this injury, but assessing nominal damages for another injury alleged in the declaration, a statement of which is not material to the understanding of this point. The judge reported the case to the whole court; and the case was argued and decided upon this report at Boston in January 1855.</p>

<p>The determination of the mayor of a city, that a riot or mob is threatened, is conclusive that the exigency existed, required by St. 1840, c. 92, § 27, to authorize him to call out the volunteer militia to aid the civil authority in enforcing the laws.</p> <p>The volunteer militia, when called out by the mayor of a city under St. 1840, c. 92, $ 27, on the ground that a riot or mob is threatened, may, before such riot or mob has actually taken place, be ordered by the mayor to repair to a particular place, and there perform any specific duty, such as clearing the streets, which in his judgment is necessary to prevent the threatened mob or riot.</p> <p>Officers of militia, called out by a civil magistrate under St. 1840, c. 92, § 27, to aid the civil authority in enforcing the laws, cannot be entrusted with discretionary power as to the measures to be adopted; but can only direct the details of the mode of executing specific orders received from the civil magistrate.</p> <p>The power to call out the militia to prevent a threatened riot is not affected by the antici pated cause of the riot being the enforcement of an unconstitutional law.</p> <p>Civil magistrates and military officers, giving unlawful orders to militia called out to aid the civil authority in enforcing the laws, are liable for acts done by the militia within the fair scope of the orders, but not for acts unauthorized by them.</p> <p>A marshal of the United States does not, by requesting the mayor of a city to call out the state militia to prevent a riot anticipated in opposition to the service of a civil process of the United States, intended by the marshal to be executed and afterwards executed by him without aid from the military force, and giving assurances that the expenses of calling out the militia will be paid by the United States, render himself responsible for acts done by the militia, when duly chlled out, under unlawful orders from (he mayor or their own officers, during the service of such process.</p>

<p>■ Petition to this court under the equity jurisdiction conferred by St. 1838, c. 163, § 18. The petition alleged that on the 2d of July 1855 Thomas Glover of London, England, by his attorney Richard Glover, presented to Francis Hilliard, Esquire, a commissioner of insolvency for this county, the following petition: “ To Francis Hilliard, Esquire, commissioner of insolvency in and for the county of Norfolk, humbly shows, Thomas Glover, of London, in the Kingdom of Great Britain, gas meter manufacturer, that he is a creditor of John O’Neil, of Roxbury, in the said county of Norfolk, doing business or lately doing business as a commission merchant in Boston, in the county of Suffolk; that your petitioner’s demand is provable against the estate of the said O’Neil, according to the provisions of the act for the relief of insolvent debtors and for the more equal distribution of their effects, and the ,acts in addition thereto; that said demand amounts to one hundred dollars, and that the nature of said claim is exhibited in the account hereto annexed.” [Then followed an account, consisting of many items, charging O’Neil with gas meters and proceeds of sales of meters received and not accounted for, and with overcharges for services, commissions and expenses, amounting in all to $>4259.76.J “ And your petitioner further represents, that the said O’Neil, with intent to defraud your petitioner, has concealed his property, or some part thereof, to prevent its being attached or taken on legal process ; and this he has done within the sixty days next preceding the day of the date of this petition. Wherefore your petitioner prays that a warrant may be issued to take possession of the estate of the said O’Neil, that the same may be seized and distributed according to law, and that such further proceedings may be had in the premises as the law in such case prescribes.</p> <p>“ Thomas Glover, by Richard Glover, his attorney.”</p> <p>“ Commonwealth of Massachusetts. Norfolk, ss. July 2d 1855. Personally appeared the above named Richard Glover, and made oath that the facts set forth in the foregoing petition are true, according to his best knowledge and belief. Before me,</p> <p>“ Francis Hilliard, commissioner of insolvency.”</p> <p>That an order of notice was issued and duly served upon O’Neil, who appeared and moved to dismiss that petition, because it was not signed and sworn to by the petitioning creditor; because the oath was insufficient in form ; because there was no allegation of the insolvency of O’Neil; because no facts were stated which, if proved, would amount to a concealment ; and because the section of the statute, authorizing the proceedings, was unconstitutional and void; but the commissioner overruled the motion, and the hearing proceeded.</p> <p>That on the third day of the hearing, Glover, on motion of O’Neil, and by order of the commissioner, filed “ as and for a statement of the facts of concealment of his property by the said O’Neil, as alleged in. the petition,” a specification, “ that the said O’Neil, well knowing the claim of the petitioner was about to be put in suit, and having contrived by continuance of negotiations to delay service of the writ to the. last day of service for the then next term of the court, did withdraw from the Rockland Bank the balance of his account at said bank; did sell and transfer or did transfer certain stock standing in his name in the Roxbury Gas Company ; did mortgage his household furniture; did pledge certain stock standing in the Bast Boston Gas Company for as large a proportion of its full value as he was able; did close his office in the city of Boston, and remove his effects therefrom ; and otherwise in divers other ways and manners did evince his intention to conceal his property so that it might not be attached; and did by other acts unknown to the petitioner actually conceal his property so that none could be found by the officer in whose hands the petitioner placed a writ against the said O’Neil.”</p> <p>That against the objection of O’Neil that these facts would not, if proved, amount to a concealment, and that evidence of any other facts ought not to be received, the commissioner received evidence of the facts specified, and of others not set forth in the statement.</p> <p>That James C. Hall, called as a witness by Glover for the purpose of proving that a transfer of stock by O’Neil to Albert Bowker was fraudulent, was allowed to testify to a conversation between Bowker and Richard Glover, which was not held at the time of the transfer, nor in the presence, hearing or knowledge of O’Neil.</p> <p>That O’Neil filed a claim in set-off, containing many items of charges for extra commissions and loss of expected commissions and for services and expenses, amounting to $21,535; and Glover afterwards filed an amended statement of his claim, increasing the total to $6,296.42, and utterly denying the validity of O’Neil’s claims in set-off.</p> <p>That on the 24th of September 1855 the commissioner, after hearing the parties, issued a warrant against O’Neil; the first publication of notice was on the 4th of October follow-big; and the first meeting was called for the 17th of the same month.</p> <p>That O’Neil verily believed that he was not indebted to Glover, but on the contrary Glover was indebted to him; and that on the 28th of May 1855 he had brought a suit claiming a balance due and attached Glover’s property; and on the 19th of June Glover sued out a writ against him, and arrested him thereon, and held him to bail; and these suits were still pending, and embraced all matters in dispute between the parties; and that, excepting this disputed claim of Glover, he had no creditor who had a provable claim, and was indebted to no person, except to Sandford M. Hunt for $1000 borrowed money, for which Hunt was amply secured; that Hunt presented to the commissioner, during the hearing, a statement in writing that he had no desire to have insolvency proceedings instituted against O’Neil; that, before either of these suits was brought, Glover offered to settle on payment to him by O’Neil of $1000, and had since repeatedly mged such a settlement; and that O’Neil believed that the purpose of the proceedings in insolvency was to compel him to assent to Glover’s terms of settlement.</p> <p>That Glover offered in evidence before the commissioner two conveyances, one a transfer of stock in the Roxbury Gas Company to William B. Kingsbury, the other a mortgage of furni- ' ture to Hunt, under circumstances tending to show the intent, on the part of O’Neil, to prevent the property so conveyed from being attached; and contended that these conveyances amounted to a concealment of the property, although by the absence of a fraudulent intent on the part of the purchasers the conveyances were not fraudulent as to them; and the commissioner held that these conveyances did amount to a concealment.</p> <p>That the withdrawal of a balance of account by O’Neil from the Rockland Bank, although it did not appear that the money withdrawn was not the property of O’Neil’s wife, who was also a depositor in that bank ; and a transfer to Bowl er, by O’Neil, of certain stock of the East Boston Gas Company, as collateral security for a debt; and a transfer of certain shares of the Roxbury Gas Company to John W. May; having been made under circumstances which, as Glover claimed, tended to show that they were made with intent to prevent the property from being attached, were held by the commissioner to amount to a concealment of the same.</p> <p>The petition then denied that any balance was due from O’Neil to Glover, and represented that O’Neil was aggrieved by the proceedings before the commissioner, and prayed that the same might be stayed, for the reasons set forth in the motion to dismiss ; and also for the following reasons :</p> <p>1st. Because the object of said proceedings was in fraud of the insolvent laws, and not to effect a distribution of O’Neil’s property among his creditors, but to compel a settlement of the claims in dispute between O’Neil and Glover upon terms satisfactory to Glover.</p> <p>2d. Because there was but one creditor having a provable claim, and no distribution of property could therefore be made among creditors.</p> <p>3d. Because the evidence of Hall was improperly admitted.</p> <p>4th. Because Glover’s claim did not constitute a debt upon which a petition in invitum might be founded.</p> <p>5th. Because the commissioner held the evidence of solvency offered by O’Neil to be immaterial.</p> <p>6th. Because the facts set forth in Glover’s specification would not, if proved, amount to a concealment; and because the facts proved did not amount to a concealment.</p> <p>7th. Because in the trial of the issues raised in the insolvency proceedings O’Neil had not been allowed the benefit of a trial by jury.</p> <p>8th. Because at the time of filing the petition before the commissioner Glover had already commenced a suit for the same cause of action against O’Neil, and caused him to be arrested and held to bail, which suit was still pending.</p> <p>The petition further prayed the court, if they should be of opinion that the statute was not unconstitutional by reason of its failure to provide for a trial by jury, and that proceedings ought not to be stayed for any of the reasons set forth, to direct issues to be framed and submitted to a jury, and to order a temporary stay of proceedings before the commissioner.</p> <p>Upon this petition a temporary injunction was granted, and an order of notice issued to Glover and to the commissioner to show cause why it should not be made perpetual.</p> <p>Glover appeared, and filed an answer under oath, setting forth that all the points of law and fact raised or stated in the proceedings in insolvency were fully argued before the commissioner, and were maturely considered and a decision in writing made thereon by him, a copy of which was annexed to the answer; and further averred,</p> <p>1st. That Glover never offered to settle the matters in controversy for $1000, and that all offers made by him were offers of compromise; and that the proceedings in insolvency were commenced by Glover in good faith, to obtain a fair distribution of the property of O’Neil among all his creditors.</p> <p>2d. That Glover had a claim provable against the estate of O’Neil, which the commissioner on full hearing declared to be valid; and that the law does not limit proceedings in insolvency to cases where there are two or more creditors, and that until a meeting of creditors is called their number cannot be ascertained.</p> <p>3d. That no illegal evidence was admitted before the commissioner, to which objection was made.</p> <p>4th. That O’Neil had concealed his property to prevent it from being attached or taken on legal process, and thereby rendered himself liable to be proceeded against in insolvency.</p> <p>5th. That upon the question whether or not a warrant shall issue, a debtor is not entitled to trial by jury.</p> <p>6th. That O’Neil was at the time of the commencement of proceedings and now is indebted to sundry persons, and that he refused, after due notice, to produce his books of account, and thereby deprived Glover of the means of ascertaining the names of such creditors.</p> <p>7th. That it was proved before the commissioner that both Bowker and Hunt held notes of O’Neil, and that O’Neil was under sundry liabilities to other-parties, and largely indebted to learned counsel, to whom he had transferred property standing in his name but actually belonging to Glover.</p> <p>The opinion of the commissioner, annexed to this answer, contains an examination of all the questions raised upon the petition. The commissioner disallows the set-off of O’Neil, and finds that two items of Glover’s account, exceeding $100, were admitted to be valid.</p> <p>Upon the question whether O’Neil had concealed his property or any part thereof to prevent its being attached or taken on any legal process, the commissioner states that, immediately before the 19th of June, O’Neil had attachable property in his hands or ownership, but at the close of that day, when the writ of Glover was served upon him, such property had all passed to other persons, so far as to prevent its being attached, and with that intent. And upon a review of the evidence, the commissioner finds that O’Neil did the following acts on the 19th of June: He withdrew from the Rockland Bank twenty dollars deposited in his wife’s name, being the balance of an account which had remained open since April. At his own request, he sold to Kingsbury eight shares in the Roxbury Gas Company, for a price less than he had ever offered them at before, although they had been for some time in the hands of his broker for sale. He handed to May a certificate, dated June 15th, of two shares in the Roxbury Gas Company, saying that he thought May would be better satisfied if he had security for the payment of May’s note for $200, which note O’Neil had borrowed three or four days before, offering to give security, which May had then declined; and some days after the 19th of June, O’Neil can-celled the note and gave him the certificate absolutely, telling him that he had not used the note, and wished to retain him as his counsel. He borrowed $1,000 of Hunt; and although Hunt demanded no security, and would have made the loan without any, he mortgaged his household furniture to Hunt, and gave his note payable in eighteen months, but with a verbal understanding that the money should be repaid on demand; Hunt then suspecting no fraudulent purpose.</p> <p>The commissioner also finds that on the 14th of May 1855 O’Neil borrowed of Bowker $500, and gave his note therefor, which has never been paid, and pledged as collateral security forty shares in the East Boston Gas Company, which had never before been sold at so low a price; and this arrangement was afterwards changed by O’Neil’s executing an instrument of sale, taking a bond, dated May 14th, to reconvey within a certain' time. The time when these instruments were really executed was left in some doubt; but the commissioner, considering all the evidence, “ and especially the testimony of Hall, who fixes the time in the middle of June, and in presence of O’Neil admitted to Bowker that he had represented the transaction to Richard Glover as a mere loan, because he really so considered it, and this after being present at repeated interviews between Bowker and O’Neil,” was satisfied that the formal transfer was made on or about the 19th of June.</p> <p>The commissioner thereupon concludes that the conveyances to Kingsbury and Hunt were acts of concealment, upon the principle “ that property may be concealed, within the meaning of the statute, by being changed into an unattachable form, the property still remaining the debtor’s, although in a new shape; ” and that the withdrawal of the deposit from the bank, and the transfers of stock to May and Bowker, “ in the language of the court in Livermore v. Bag ley, 3 Mass. 512, are cases of concealment by the bankrupt, while they continue, in his intentions, his own goods.”</p> <p>The commissioner further finds no reason to doubt the good faith of Glover, and that the evidence is not conclusive that he is the only unsecured creditor; and that that fact, if it were admitted, would constitute no sufficient reason for refusing to issue a warrant; seeing “ no more reason why a debtor should be brought into insolvency by his creditors generally for preferring one, than by one for preferring all the rest.”</p> <p>The commissioner filed an informal answer to O’Neil’s petition, not under oath, in which he stated more briefly the facts found and rulings made by himself, and referred to his opinion as explaining the grounds of his action in the premises.</p> <p>O’Neil filed a replication to Glover’s answer, denying that he owed any thing to any other person except Hunt, and averring that no person attended at the long preliminary hearing, nor at the first meeting, as a creditor.</p>

<p>A railroad corporation, pursuant to votes of their stockholders and directors, conveyed all their property and franchises to three trustees, their survivors and successors, in fee, by deed conditioned to be void upon payment of certain bonds issued and to be issued by the corporation, and stipulating that the trustees and their successors might, upon any breach of condition, if they should see fit, take possession and apply the net proceeds to the purposes of the trust; or, upon nonpayment of interest or principal of the bonds for six months, and the written request of two thirds in amount of the bondholders, sell the granted premises by auction, and apply the proceeds to the payment of the bonds; and that any vacancy occurring in the board of trustees should be immediately filled by the remaining trustees, by appointment from among the bondholders. Held, that none of the bondholders need be made parties to a bill in equity brought by the trustees against the corporation for a foreclosure of the mortgage, and for an account of the sums due the bondholders, and for general relief.</p> <p>Held, also, that such suit did not abate by the death of one of the trustees, but must be postponed until the vacancy was filled.</p> <p>Held, further, “ the proceedings of said company, whereby they conveyed their railroad in mortgage to ’’ said trustees, having been ratified and confirmed by act of the legislature, that this conveyance was a valid mortgage of their property and franchise; and that the trustees, upon breach of condition, might maintain a bill in equity for a foreclosure of the mortgage, or to obtain possession of the mortgaged property.</p>

Indictment on St. 1855, c. 215, § 17, for biting a common seller of spirituous and intoxicating liquors.

Complaint to a justice of the peace for a sale of intoxicating liquors in violation of St. 1855, c. 215, § 15. The justice convicted the defendant, and sentenced him to pay a fine of ten dollars and costs of prosecution, and, as part of said costs, taxed and allowed ten dollars for the attorney who appeared for the Commonwealth at the trial before him. The defendant appealed to the court of common pleas, and was there acquitted.

Replevin of two chaises. Writ dated November 23d 1854. Answer, property in the defendant.

Action of tort for breaking and entering a dwelling-house in Weymouth, and removing the plaintiff’s furniture. At the trial in the court of common pleas, there was evidence of the following facts: The defendant, being the owner of the house, leased it to Mrs. Thacker at an entire monthly rent, and she, with his consent, let a portion of it to the plaintiff, and he occupied the same, paying rent to her monthly as long as she remained.

<p>Action of contract on a written agreement, by which the plaintiff agreed to make certain organs for the defendant at a shop in Boston at specified times and prices, and to deliver them at any place in Boston which the defendant might de sígnate, and to forward them according to the defendant’s directions.</p> <p>The plaintiff and defendant were both described in the writ as of Newton in the county of Middlesex, and the First Universalist Society in Weymouth in this county were summoned as trustees. The writ was served by giving copies thereof to the defendant and trustees. At the first term, the defendant appeared and filed an affidavit of merits ; and the trustees filed an answer, and were afterwards discharged. After then- discharge, the defendant moved to dismiss the action, because all the persons summoned as trustees had been discharged, and there had been no such service of the writ on the defendant as would be sufficient in an action commenced in the ordinary mode of process, and the defendant had not answered, and was not bound to answer to the suit. But Byington, J. overruled the motion, and ordered the defendant to answer, and the case to stand for trial.</p> <p>The answer averred that the defendant had performed the agreement on his part, and that the plaintiff had failed to perform his part of the agreement. At the trial, the plaintiff introduced evidence that he made a large number of organs for the defendant pursuant to the agreement, and the defendant was often in the plaintiff’s shop, and was told by the plaintiff that the organs were ready for him, and was requested by the plaintiff to take them away, but never took away but three of them, or gave any directions for the delivery of the others.</p> <p>The judge instructed the jury that the plaintiff must prove that he continued to perform the agreement until it was complete, or until the defendant committed a breach of the agreement, by refusing to receive the organs according to it; that, the defendant having designated no place for their delivery, the plaintiff must make and deliver them at his shop, and that was the place for the defendant to receive them. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>It is no ground of exception to the admission, after the defendant’s evidence, of evidence for the plaintiff, which tends to contradict the defendant’s witness in a material point, that it also tends to corroborate the case made by the plaintiff’s evidence in chief.</p> <p>A juror’s testimony is inadmissible, on a motion for a new trial, to show his own miscon duct during the trial, even out of the jury room.</p>

<p>Action of contract. Whittemore pleaded a certificate of discharge in insolvency; to which the plaintiff replied that it was obtained by .fraud. The other defendants were defaulted. '</p> <p>At the trial in the court of common pleas, before Sanger, J., the plaintiff introduced evidence tending to prove the frauds, alleged in the replication. The defendant then introduced a record of that court, of an action between the same parties at April term 1855, brought by the plaintiff against the defendants, upon other debts than those now in suit, to which action also Whittemore pleaded his certificate of discharge, and. the jury found a verdict thereon in his favor, and a verdict on distinct issues against the other defendants, who alleged exceptions in that case, which were still pending.</p> <p>The defendant was then permitted to prove, against the plaintiff’s objection, that the plaintiff, at the former trial, introduced evidence of the same acts of fraud now alleged in the replication, and that they were submitted to that jury, and that the issue tried in that case upon the validity of the certificate of discharge was the same as in this case. The presiding judge thereupon stated that he should rule that if the same issue had once been tried, and a verdict and judgment rendered for Whittemore thereon, then, this being a suit between the same parties, they would be conclusive evidence against the plaintiff. The plaintiff thereupon submitted to a verdict for the defendant, and alleged exceptions.</p>

<p>An entry on part of land mortgaged by one general description, a certificate of which entry is duly made on the mortgage deed and recorded, pursuant to Rev. Sts. c. 107, § 2, as an entry on the whole land, and followed by three years’ possession, forecloses the right of redemption of the whole land, against the mortgagor and all claiming under him by title subsequent to the mortgage, even against such a claimant who during said three years had possession of part of the land, and blasted, cut and carried away stone therefrom.</p>

<p>Action of contract upon a bond for the liberty of the prison limits. The breach assigned was the failure of Putnam, the principal, to surrender himself at the expiration of the ninety days. The defence relied on was his discharge under the acts for the relief of poor debtors. The question of the validity of that discharge was submitted to the judgment of the court upon the following statement of facts :</p> <p>Putnam, who had previously been committed on execution in favor of the plaintiff to the jail of Worcester county, after the execution of the bond, and while at large on the prison limits, made a request in writing “to Rufus Carter, underkeeper of the jail in Worcester,” stating that he was unable to pay the debt for which he was imprisoned, and was desirous to take the benefit of the law for the relief of poor debtors, and requesting Carter to make application to a justice of the peace for a no tiff-cation to the plaintiff, signifying such desire. This request was signed “ L. B. Putnam; ” and Carter thereupon, “ in behalf of L. B. Putnam,” applied to John A. Dana, a justice of the peace for the county of Worcester, who issued a citation in the following form:</p> <p>“ Worcester, ss. To Daniel C. Davis, of Boston in the county' of Suffolk. You are hereby notified that L. B. Putnam, ol Sutton in the county of Worcester, who is a prisoner in jail in Worcester in the county of Worcester, on an execution at your suit, issued from the court of common pleas holden at Boston within and for the. county of Suffolk, bearing date the twenty-fifth day of April in the year of our Lord one thousand eight hundred and fifty three, is desirous to take the oath prescribed in the ninety-eighth chapter of the revised statutes, for the relief of poor debtors who are committed on execution for debt; and that, at the said jail, on the twenty-seventh day of May instant, at ten of the clock in the forenoon, the said L. B. Putnam will be admitted to the oath or affirmation allowed by said act, unless some sufficient objection be made on your part. Given under my hand and seal, this twentieth day of May A. D. 1853.</p> <p>“ John A. Dana, Justice of the Peace.”</p> <p>Upon this citation an officer returned that he had served it, by giving a copy in hand to the plaintiff. And two justices of the peace and of the quorum granted a certificate of discharge of “ L. B. Putnam,” addressed to “ Rufus Carter, underkeeper of the jail in Worcester,” and otherwise conforming to the Rev. Sts. c. 98, § 10.</p> <p>After the granting of the discharge, and after the expiration of the ninety days, and before the commencement of this action, the officer filed with the papers in the case an amended return, to the effect that he could not find the creditor, or any last and usual place of abode of his; but had left the copy of the citation, inclosed in an envelope addressed to him, at a shop at which he was informed that the creditor was in the habit of receiving his letters ; and it was agreed that, if it was competent for the officer to make this amendment at the time he did, or if it be competent for him now to make it, is to be considered as part of the case. It is also agreed, that the defendant can show that the plaintiff subsequently admitted to the officer that he received the copy in season to have attended at the time and place specified therein.</p>

<p>An indenture of partition between tenants in common, which recites their seizin in fee of certain lands, and assigns a portion thereof to each to hold in severalty, and contains mutual covenants for the quiet enjoyment by each of the portion so assigned to him, does not estop one of the parties to set up an after acquired title to land so assigned to one of the others,</p> <p>A conveyance of land bounded on one side “by the sea or beach ” includes the land lying between high and low water mark.</p>

<p>Action of contract, praying relief in equity, under St. 1853, c. 371, to enforce the specific performance of an agreement in writing, dated May 4th 1854, for the conveyance from the plaintiffs to the defendant, by deed of warranty, and free from all incumbrances, of a parcel of land, upon certain terms, which the defendant had refused to comply with, although the plaintiffs had duly tendered a deed according to the agreement.</p> <p>The answer stated the following facts, which were admit tod by the plaintiff to be true : The land formerly belonged to John Parker of Roxbury. Part of it was duly sold by his administrator, Joseph Curtis, under license from the probate court, to Humphrey Brook Gwathney, “ as he is trustee of Julia Ann Morton, wife of John A. Morton,” and conveyed by deed dated August 3d 1830, reciting such sale, to Gwathney “ in trust, as aforesaid, for the sole and separate use and benefit of her, the said Julia Ann, and in no case liable to the control of her husband, and, after the death of said Julia Ann, to descend to her children; ” to have and to hold the same “ to him, the said Humphrey B. Gwathney, in trust as aforesaid.” The fee of this part of the land, if not conveyed by this deed, was vested in the plaintiffs.</p> <p>Said administrator sold the remainder of the land in question in like manner to said Gwathney, and gave him a deed thereof dated December 7th 1830, reciting the sale to him, “ trustee of Julia Ann Morton, and for the use of the said Julia Ann and her heirs,” and granting such land “unto him the said Humphrey Brook Gwathney, trustee as aforesaid, his heirs and assigns,” to have and to hold the same “ to him the said Humphrey Brook Gwathney, trustee, his heirs and assigns, forever, to his and their use and behoof forever.”</p> <p>On the 10th of April 1831 Gwathney, and Morton and wife, each executed to Abigail Parker, singlewoman, a quitclaim of part of the land described in said deed. Abigail Parker died on the 3d of November 1838, and by her will devised her real estate to David Dudley, upon the use and trust, when the plaintiffs, oi the youngest survivor of them, should come of age, to convey it to them or their survivors or survivor, in fee, in equal shares. In 1841, Dudley having died, William Whiting was appointed by the probate court trustee under said will; and afterwards Whiting, as such trustee, and Julia A. Morton and her children, her husband being dead, executed quitclaim deeds of this land to the plaintiffs, who were then of age; and some, but not all, of the heirs of Dudley did the like. Julia A. Morton is still living, but without possibility of future issue.</p> <p>The answer then averred that the trusts mentioned in the deeds to Gwathney could not be extinguished by the conveyances from him and from Mrs. Morton and her husband and children, but the land was still subject to these trusts ; that the interest of said children in the land was not vested, but contingent upon their surviving their mother, and they, during her lifetime, had no alienable interest therein; and that therefore the land was not free from incumbrances, and the plaintiffs were not seized thereof.</p>

<p>Bill in equity by.John W. Treadwell and John J. Clarke, executors of the will of Thomas Cordis, formerly of Boston, but since of Longmeadow in the county of Hampden, (alleging that Thomas F. Cordis, the third executor appointed by the will, had declined to accept the trust, or to qualify himself for the execution thereof,) to obtain the advice and directions of the court concerning the disposition of a large amount of . real and personal property, and of rents and profits, dividends and income, held by them under the will, which contained the following provisions :</p> <p>“ Imprimis. It is my will that all my just debts, and the charges of my funeral, be paid and discharged by my executors hereinafter named and appointed, out of my personal estate, as soon as conveniently may be after my decease, and I leave the charges of my funeral to the direction of my executors.</p> <p>“Secondly. I give and dispose of all my estate, real, personal and mixed, (save what shall be necessary for the payment of my just debts and funeral charges,) in the manner following :</p> <p>“ I give and bequeath to my son Thomas Frederick the sum of twenty thousand dollars, heretofore advanced to him, as charged in my books under date of January 1st 1835, by discharging him from all indebtedness to my estate for that sum so charged.</p> <p>“ I give and bequeath to my son Francis Temple the sum of twenty thousand dollars, heretofore advanced to him, as charged to him in my books under date of January 1st 1839, by discharging him from all indebtedness to my estate for that sum so charged.</p> <p>“ I give and devise to my son Edward the parcels of real estate, situated in said Longmeadow, purchased of Roderick Burt, and also of Jacob Colton, by me, and the same parcels of real estate occupied and improved by said Edward Cordis.</p> <p>“ I also give and bequeath to my said son Edward the sum of eight thousand and five hundred dollars-; as a part of which sum, however, are to be taken the sums advanced, and that shall hereafter be advanced by me to my said son Edward, and that are and shall be charged in my books against him; and the balance of said sum, if any there be, it is my will shall be paid to my said son Edward, as soon as conveniently and safely it may be done after my decease, to have and to hold the said real estate and moneys to my said son Edward, his heirs, executors, administrators and assigns, to his and their sole use and behoof forever.</p> <p>“ I give and bequeath to my son Clarence Russell the sum of twenty thousand dollars; the sums advanced, and that shall hereafter be advanced to him by me, as shall appear charged to him in my books, to form a part of said sum; and the balance, if any, I desire and direct shall be paid to my said son Clarence Russell, by my executors hereinafter named, in such sums, and at such times, as my said executors shall judge judicious, and for his interest.”</p> <p>[Then followed specific legacies and annuities to other persons, some of which legacies were payable when the legatees should arrive at the age of twenty one years.]</p> <p>“ And the rest, residue and remainder of my estate, real, personal and mixed, not hereinbefore otherwise disposed of, after payment of my just debts, funeral charges, and charges of settling my estate, as well as the charges of my executors hereinafter named and appointed, I hereby give, devise and bequeath to my executors hereinafter named, and to the survivors and survivor of them, and the heirs and assigns of such survivor, to, upon and for the uses, intents and purposes, and with and subject to the powers, provisos, conditions and limitations hereinafter mentioned and expressed, of or concerning the same, that is to say: To the use of my said executors and the survivors and survivor of them, and the heirs, executors and administrators of such survivor, for and during the lives of my said four sons, Thomas Frederick, Francis Temple, Edward and Clarence Russell, and the life of the longest liver of my said four sons, upon the especial trusts, however, that my said executors, and the survivors and survivor of them, and the executors and administrators of such survivor shall and do, during the lives of my said four sons, and the life of the longest liver of them, take and receive the rents and profits accruing, and that shall from time to time accrue, from the real estate, and therewith make all necessafy repairs and improvements, and pay all taxes, insurance, and other necessary charges and expenses in and about the same, and, after all such payments deducted, shall, as soon as received, and as often, pay over the residue of such rents and profits to my said four sons, during their joint and several lives, in equal proportions, to and for their respective sole and separate use and benefit forever; and, after the decease of one or more of my said sons, so long as either of them shall live, then shall pay over the proportion that such deceased son or sons would have been entitled to receive, of such rents and profits, had he or they been living, to the legal heirs of such deceased son or sons.”</p> <p>[And upon the further trust, to invest all said rest and residue of the personal property in certain specified stocks.]</p> <p>“ And upon the further trust to pay over all the dividend and income of said stocks, over and above the costs and charges of my said executors and trustees in, or about, or relating to the said trusts, or any of them, as fast as they shall be received, in equal proportions to each of my said four sons, during their lives, and the life of the survivors and survivor of them, and, after the decease of one or more of my said four sons, to pay over the proportion thereof to which said deceased son or sons would have been entitled, if living, to the then legal heirs of such deceased son or sons, to and for their respective sole and separate use and behoof forever; and, upon the decease of all my said sons, upon the further trust, and to the use of the legal heirs of my said four sons respectively, in equal proportions, by right of representation, and their respective heirs, executors, administrators and assigns forever, to their sole use and behoof forever.</p> <p>“ And I hereby direct, and the devises and bequests to my executors as above are upon the especial trusts, that they, and the survivors and the survivor of them, and the heirs, executors and administrators of such survivor, after the death of all my said four sons, do and shall convey, assign, transfer and set over said real estate and stocks to said heirs of my said four sons respectively, in the proportions above named, by right of representation, to have and to hold the same to them respectively, and to their respective heirs, executors, administrators and assigns, to their sole use and behoof forever.</p> <p>“ Thirdly. And it is my will, and I do hereby direct, that all sums charged against either of my children in my books shall be first deducted from what they respectively would be entitled to receive by virtue of this my will, and the balance only shall such child be entitled to receive of the devises and bequests hereinbefore made. But this is not intended to embrace the sums hereinbefore given to my sons, as advanced to them and charged in my books as hereinbefore mentioned, except as is hereinbefore mentioned.</p> <p>“ Fowrtlily. And it is further my will, and I hereby direct that the advances made by me to either of my said four sons shall not draw interest, and no interest shall be charged thereon against them or either of them, except on what shall exceed or be over the sum of twenty thousand dollars.”</p> <p>“ Lastly. I hereby nominate, constitute and appoint John W. Treadwell of Salem; my son Thomas Frederick, if he be living at the time of my decease; if not, my son Francis Temple, in his place; and John J. Clarke of Roxbury in the county of Norfolk and Commonwealth of Massachusetts, counsellor at law, if he shall be living at the time of my decease; if not, Manlius S. Clarke of Boston in the county of Suffolk, counsellor at law, in his place, executors of this my last will and testament, and so that in case of the death of one of them, the survivors- and survivor of them shall then be sole executors or executor, of this my said will. And I give the survivors and survivor of them, my said executors, all the power and discretion I have given my said executors. I also give to them and each of them all the power, and repose in each of them all and every trust I have given to them jointly, provided and so far as he, who shall act, have the consent of the other executors or executor.”</p> <p>Appended to the will was a codicil containing the following: “ As some ambiguity exists in the language of the clause in the foregoing will, of my bequest to my son Edward, I add this codicil to make my meaning clearly understood. My intention is to give him the value of twenty thousand dollars. I have charged him in my account book, for the real estate occupied by him, with the sum of eleven thousand seven hundred and fifty three dollars and eighty two cents, which constitutes a part of said sum of twenty thousand dollars, and I have bequeathed to him in said clause the sum of eight thousand five hundred dollars, to make up said sum of twenty thousand dollars, from which sum of eight thousand five hundred dollars there is to be no deduction whatever.”</p> <p>The bill averred that the only heirs at law of the testator were his four sons; and that Thomas, Francis and Edward were charged in the books of the testator with large sums of money, as advanced to them, beyond the sums specifically given to them in the will; that they contended that said sums so charged were not to be paid out of the income, but were to be deducted from their respective portions of the principal; and also claimed, after said deduction from the principal, all the rent and income of their respective shares, received by the plaintiffs since the death of the testator, or hereafter to be received; that among the papers of the testator were various promissory notes, drafts or evidences of debt, signed by each of the four sons, all or many of which were alleged by them to have been given for or on account of sums also charged to them in the testator’s books ; and that the mode in which said charges were entered in said books was confused, and a subject of controversy with each of the sons ; and that Thomas and Edward had no issue, and Francis had one minor son, and Clarence two minor daughters.</p> <p>All said sons and grandchildren were made parties to the bill, and answers were duly filed in behalf of all of them, substantially admitting the facts stated in the bill. And the sons averred that they, from their youth to the time of the testator’s decease, as well as their wives and families, had been supported by him, and were principally dependent upon him; and he knew that they, by reason of their education and habits of dependence upon him, would have little other resource for the annual support of themselves and their families; and that repayment of the advances out of the income would leave them for several years without such means of support, and might destroy the equality of distribution among them contemplated by the will, The case was set down for hearing ón bill and answers.</p>

<p>Action of contract, praying relief in equity, under St. 1853, c. 371. The declaration averred that Robert C. Manners was duly appointed by the probate court of Suffolk county administrator of the estate of William Gallagher, and gave bond as such with the plaintiff as his surety; and failed to account for and pay over to the heirs at law the balance of the estate, after paying all debts, and was ordered so to do by a decree of this court in an action on his probate bond; that Manners having previously removed to Upper Canada, where he still resided, and having become utterly insolvent, the plaintiff became liable to pay, and did pay the amount to said heirs, and they, in consideration of such payment, assigned to him all their rights in the estate, and all claims therefor against all persons; that the defendant was employed by said administrator as agent to collect, and had collected and now held large sums of money from debtors of the estate, then and since known by the defendant to be the property of the estate, and not of Manners individually, yet withheld the same from the estate, and undertook to apply them in set-off of private debts due him from Manners ; that, by reason of these facts, a trust had arisen in favor of the plaintiff, which entitled him to receive these moneys; and that the plaintiff had no adequate remedy at law.</p> <p>The defendant demurred, because Manners and said heirs should have been made parties; because no case for relief in equity was shown in the declaration; and because the court had no jurisdiction in equity.</p>

<p>This case, which was argued before the chief justice by E. Ames, for the petitioner, and E. Wilkinson, for the respondents, is stated in his opinion, in which the other judges concurred.</p>

<p>Bill in equity filed by the selectmen of Dorchester to restrain the defendants from running cars to the danger of the public, and in such a manner as to be a nuisance, upon part of their road in Dorchester, alleged to have been constructed contrary to the provisions of their charter. Upon the filing of the bill, a temporary injunction was granted.</p>

<p>Petition for a writ of certiorari to quash the proceedings of the county commissioners, ordering a warrant to issue for a jury to assess against the petitioners the damages occasioned to the land of Edward Cole by the raising of the grade of a highway in Stoughton by the agents of the town, pursuant to an order of the commissioners for the alteration of the highway, by widening and straightening it at certain places specified.</p>

<p>Action of tort to recover damages for the defendants’ refusal to transfer to the plaintiffs forty shares of the capital stock of the defendants, (who were incorporated and established at Haverhill in this county, by St. 1851, c. 269,) alleged to have been purchased by the plaintiffs of Luther G. Bingham.</p> <p>At the trial before Metcalf, J. the plaintiffs introduced evidence of the following facts : On the 26th of February 1852, in New York, Bingham, in whose name as holder the shares then stood on the books of the bank, sold the shares for a valuable consideration to the plaintiffs, and delivered to them the certificate thereof, signed by the president and cashier of the bank, and certifying that Bingham “was entitled to forty shares in the capital stock of the Essex Bank, transferable only in the books of said corporation, at said bank, by the said L. G. Bingham or his attorney.” At the sanie time, Bingham signed, sealed and delivered to the plaintiffs the following instrument: “ Know all men by these presents, that I, L. G. Bingham, for value received, have bargained, sold, assigned and transferred, and by these presents do bargain, sell, assign and transfer unto A. Fisher and Thomas Denny forty shares of the stock of the Essex Bank, standing in my name on the books of the said bank, and do hereby constitute and appoint my true and lawful attorney irrevocable, for me and in my name and stead, but to use, to sell, assign, transfer and set over all or any part of the said stock, and for that purpose to make and execute all necessary acts of assignment and transfer, and one or more persons to substitute, with like full power, hereby ratifying and confirming all that my said attorney or substitute or substitutes shall lawfully do by virtue hereof. In witness whereof I have hereunto set my hand and seal the twenty-sixth day of February one thousand eight hundred and fifty two.”</p> <p>On the 13th of April 1852, the plaintiffs addressed a letter to the president of the bank at Haverhill, informing him that they had forty shares of Essex Bank stock, with power of attorney annexed, which shares had been issued to Bingham, and which they were authorized to sell; desiring the president’s assistance in getting a purchaser; and saying that Bingham was absent for a few days on account of sickness in his family, but would probably be home by the time they could receive a reply, on receiving which'they would forward the stock, if the price should answer. The president testified that he received such a letter, but did not at the time consider it a proper notice or demand to transfer the stock.</p> <p>On the 10th of May 1852, an attorney of the plaintiffs demanded of the defendants, at the bank, a transfer to them of said shares, and exhibited to the cashier the certificate and power of attorney; and the cashier informed said attorney that said shares had been attached at the suit of Nathaniel C. McLean of Cincinnati, as the property of Bingham. Said attorney afterwards, at the time of the sale of said shares on the execution of McLean, gave the defendants notice of the sale to the plaintiffs.</p> <p>The plaintiffs here rested their case, and the defendants moved for a nonsuit; but the judge ordered them to proceed with their defence.</p> <p>The defendants then put in their act of incorporation, the third section of which is in these words: “ The stock of said bank shall be transferable only at its banking house, and on its books.” St. 1851, c. 269, § 3.</p> <p>They also put in an attested copy of the writ and proceedings in the suit of McLean against Bingham, showing an attachment of said shares on the 7th of May 1852, on a writ returnable to the June term of the court of common pleas in this county, and a sale thereof on execution on the 14th of July 1852.</p> <p>They also introduced evidence tending to show that the shares stood in the name of Bingham on said 7th of May; and that they received no notice of the sale or transfer thereof to any party till the 10th of May; and that the letter introduced by the plaintiffs was never seen by the cashier, nor noted on the books or papers of the bank, and was not on the files of the bank.</p> <p>Evidence was introduced by both parties upon the point whether McLean had any notice of the sale to the plaintiffs when his attachment was made; which is not material to be stated.</p> <p>It was then agreed “that the plaintiffs should take a proforma verdict, and the case be reported to the whole court; the r orapetency of all evidence on either side may be objected to, and the court may draw any inferences from legal evidence, which a jury would be authorized to draw; judgment to be entered on the verdict, or the plaintiffs to be nonsuited.”</p>

<p>Action of contract on a policy of insurance on a dwelling-house and barn in Manchester, made by a mutual fire insurance company on the 27th of September 1848, subject to the conditions and limitations expressed in the rules of the company, and to the lien created by statute on the buildings and land.</p> <p>The plaintiff’s application for this insurance was dated the same day, and contained the following questions and answers : “ Do you own the land upon which the buildings stand ? ” Answer. “ Yes.” “ Relative situation as to other buildings ? ” Answer. “ A dwelling-house and cabinetmaker’s shop with fifty feet.”</p> <p>The policy provided, on its face, that 66 said application shall form part of the contract to, be taken in connection with this policy; ” and among the rules of the company, printed on the back of the policy, was the following: “ Policies shall be void and of no effect, for any of the following reasons, to wit: If the application shall not contain a full, fair and substantially a true representation of all the facts and circumstances respecting the property, so far as they are within the knowledge of the assured and material to the risk; or if the assured shall withhold or conceal any such material facts or circumstances within his knowledge ; or if the assured shall be guilty of any fraud towards the company.”</p> <p>At the trial, at May term 1855, before Metcalf J., it was admitted that the house was occupied by the plaintiff, and was destroyed by fire during the term of the policy; and the defendants relied upon an alleged misrepresentation in each of the answers above quoted from the application.</p> <p>The plaintiff’s only title to the premises was under the will of her husband, which was admitted to probate on the 1st of September 1842, and consisted solely of provisions for the payment of debts, funeral charges and expenses; a gift of all the residue of his estate, real, personal and mixed to the plaintiff, “ to her sole use, benefit and disposal, during her natural life, to have and to hold and dispose thereof as she shall think proper; ” and her appointment to be executrix.</p> <p>The defendants offered to show that, from the time this will was made until the fire, two children of the testator were living, who, not being named in the will, would, under Rev. Sts. c. 62, § 21, take the fee in the real estate, leaving to the plaintiff merely her dower. But the judge ruled “ that the question, whether or not the omission to name said children in the will was intentional, was one which the defendants could not require the plaintiff to try in this suit.” ’</p> <p>The defendants then contended that, by the will itself, the plaintiff took only a life estate in the premises; and that her statement, that she was the owner thereof, was materially false, and avoided the policy. But the judge ruled “that the question, whether the plaintiff took a fee or a life estate under the will, was not material; upon the ground, that the statement would not be materially false if she took merely a life estate.”</p> <p>It was in evidence that there was a cabinetmaker’s shop within two feet of the insured property. And the defendants contended that the plaintiff’s answer, as to the relative situation of buildings, “ implied that said shop was at the distance of about fifty feet, and that the misrepresentation was material, and constituted a breach of warranty.” But the judge ruled that “ said answer would be construed to declare that said buildings were within fifty feet, and that it would be no misrepresentation if said shop were in any place within that distance.”</p> <p>The defendants thereupon consented to a verdict for the plaintiff, and alleged exceptions to the judge’s rulings.</p>

<p>Action of contract, commenced on the 17th of March 1855, to recover money paid by the plaintiffs to the treasurer of the State Lunatic Hospital at Worcester, for the support and clothing of Alinder O. Clapp from the 1st of December 1848 to the 1st of December 1854.</p> <p>The parties submitted the case to the decision of the court upon the following facts: Clapp’s legal settlement was and is in Easthampton. In 1845, while temporarily residing in Andover, he became insane, and was committed by the judge of probate to said hospital, and has since remained there. From the time of his commitment until the 1st of December 3852, he was sup posed to be a state pauper, and his expenses were charged to and paid by the State. But on the adjustment with the State by the hospital, in 1854, of the accounts for 1853, the amount thus paid was reallowed to the State, and said expenses charged to the plaintiffs, and payment thereof demanded of them by the treasurer of the hospital on the 2d of June 1854, and paid on the 2d of December 1854. On the 4th of December 1854 the plaintiffs gave due notice thereof to the defendants, and demanded reimbursement.</p>

<p>Petition for a certiorari, to quash the proceedings of the county commissioners, in the location and establishment of a highway from Andover to Lawrence. The petition averred that, on the application of certain inhabitants of Andover to have such a highway laid out, Asa W. Wildes and John I. Baker, county commissioners, and William Pool, special commissioner, who acted in the place of Benjamin Mudge, who was unable to attend, in 1854 adjudged the highway prayed for to be of common convenience and necessity, and reported to the court of county commissioners that they had laid it out, and this report was filed, accepted, and ordered to be recorded, and the town of Andover ordered to complete the highway within a certain time ; that the pretended highway, laid out in said report and record, is not a highway between the termini prayed for, and is an impossible way, and cannot be located or made upon the ground by any surveyor or other person; that, in 1855, Asa W. Wildes, Benjamin Mudge and Stephens Baker, county commissioners, upon the petition of the city of Lawrence, and without notice to the town of Andover, ordered said report and record to be amended, by inserting an additional line among the courses and distances, and that the same be taken and deemed as description in part of said way.</p> <p>The county commissioners filed an answer, substantially admitting the facts as stated in the petition, except that they averred that the commissioners caused the highway to be staked out, surveyed and mapped out, with its courses and distances, by James K. Barker, surveyor; and they annexed to their answer a copy of the report made, filed, accepted, and ordered to be recorded, (so much of which as describes the highway is copied in the margin,* the words in brackets being those inserted by amendment;) and averred that Barker’s survey, referred to in said report, was on file in the office of the clerk of the commissioners when the report was ordered to be recorded, and had since remained there. And they produced the survey, to which, on inspection, the report, so amended, was shown to conform.</p>

<p>Writ of error by bail in a civil action to reverse a judgment on scire facias against him. The error assigned was, that the scire facias was not served upon the bail within one year after the final judgment against his principal. Plea, that the bail was out of the Commonwealth, to wit, in California, when that judgment was rendered against his principal, and after-wards, and that the scire facias w as served upon him within a year after his return. To this plea the plaintiff in error demurred.</p>

<p>A judgment against an infant, for whom no guardian ad litem, har been appointed, on a scire facias upon a judgment charging him as trustee in foreign attachment, is erroneous ; and may be reversed by writ of error, without first obtaining a reversal of the original judgment.</p>

<p>Id an action by the indorsee against the maker of a promissory note, proof of the making of the note, and of its transfer to the plaintiff as collateral security for a debt from the payee to him, makes a prima facie, case; and the defendant, if he contends that the debt so secured has been paid, must establish it by a preponderance of evidence.</p>

<p>An executor is not liable, either personally or in his representative capacity, for services beneficial to the estate, performed without his assent, after the testator’s death, and before his own appointment, under contract with another executor named in the will, or with a special administrator.</p>

Action op tort for breaking and entering the plaintiff’s close in Marblehead. The answer denied the entry of any close of the plaintiff; denied the plaintiff’s title and possession of the close described at the time of the alleged trespass ; and averred that at and for more than twenty years before that time, and when this writ was sued out, the defendant was in peaceable possession thereof; and that the close was her soil and freehold.

<p>Evidence of an executed oral agreement between the owners of the dominant and servient tenements to discontinue an old way, and substitute a different one, is competent evidence of a surrender of the old right of way.</p> <p>The admissions of one of several cestuis que trust of real estate are inadmissible to defeat the title of their trustee.</p> <p>Where a right of way, claimed by prescription, is sought to be supported by evidence of a beaten, visible path, used by those from whom the present owner derived title; this evidence may be explained by proof that other people were in the habit of crossing the close, not uniformly, but generally, in the same path.</p> <p>In an action for obstructing an alleged right of way by ploughing it up, evidence that for many years the whole close over which the right of way is claimed has been ploughed and cultivated almost every year, without objection of the claimant of the right of wayr, is competent. ,</p>

<p>A school district tax cannot be assessed on an inhabitant who is set off by vote of the town to another district before the assessment is complete, though after the tax is voted and expenses incurred in behalf of the school district in the execution of its object.</p>

<p>Replevin of one hundred and seventy one tons of coal, shipped at Philadelphia on board the schooner Maria Theresa, (of which the defendant was agent,) to be delivered, by the terms of the bill of lading, to the plaintiff at Salem, “at the Essex Railroad Wharf.”</p> <p>At the trial in the court of common pleas, it appeared that the defendant had offered to deliver the coal at a wharf in Salem, called Phillips’s Wharf, on payment of the freight. The plaintiff contended that the “ Essex Railroad Wharf” mentioned in the bill of lading was not Phillips’s Wharf; but was a wharf built by the side of a branch of the railroad of that company on the North River, above two drawbridges; and introduced much evidence to show that this wharf was the only wharf known as and called the “ Essex Railroad Wharf; ” and that the railroad company landed wood and merchandise at this wharf. It did not appear that the company owned any other wharf than this, except the remains of an old wharf never used by them as such, which was within the limits of their location, near Phillips’s Wharf.</p> <p>Bishop, J. submitted to the jury the question, which wharf was the one mentioned in the bill of lading; and admitted, on that question, against the plaintiff’s objection, the following evidence introduced by the defendant: The Essex Railroad Company, at the time of the arrival of the schooner, had the right, by contract, to run their cars to Phillips’s Wharf; and had received there large quantities of coal landed for them. Several masters of vessels and pilots testified that that wharf was generally called and known as “ the Essex Railroad Wharf; ” and that the other wharf could not be safely approached by a vessel drawing as much water as this, and was much more difficult and dangerous of approach than the lower wharf. A higher rate of freight was asked and paid in Philadelphia, if the vesse. was required to pass drawbridges, than if not so required. The captain of the schooner testified that he had previously brought coal for the plaintiff, and landed it at Phillips’s Wharf; but the bills of lading of that coal were not produced, nor was there any evidence of their contents. The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

<p>An auctioneer, sued for the proceeds of goods entrusted to and sold by him as such, cannot set up title in himself, either as a defence to the action or in reduction of damages.</p>

<p>A town, aggrieved by the assessment by the county commissioners of damages sustained by the taking of land by said commissioners for a town way, may have the amount of the damages determined by a jury, under Eev. Sts. c. 24, § 76.</p> <p>On the hearing before a jury of a petition for the assessment of damages sustained by the caking of land for a way, a farmer, who has bought and sold other land, may be asked his opinion of the value of the land before and after the location of the way.</p>

<p>The wealth of the maker of a promissory note, and his dealings with third persons, are incompetent evidence to prove payment of the note.</p>

<p>Bill in equity, filed on the 19th of August 1854, to redeem an estate from a mortgage made by the plaintiff to the defendant on the 5th of October 1848, to secure the payment of a note of $7,000 in one year with interest. On this mortgage the defendant, at June term 1851 of the court of common pleas, had brought a writ of entry to foreclose, and obtained a condi tional judgment for the payment of $7,716 in sixty days, and, in default thereof, for possession; which possession, such payment not having been made,' the defendant took on the 6th of October 1851, and had since kept.</p> <p>The case, having been referred to a master to state the account between the parties, now came before the court upon the plaintiffs’ exceptions to his report in the following particulars:</p> <p>1st. Because the master, upon the suggestion of the defendant that there was a mistake in the computation of interest in the conditional judgment, computed interest upon the mortgage note, instead of computing it upon the judgment.</p> <p>2d. Because the master did not charge the defendant with any rent of the premises, although there was evidence before him that the premises were worth ten thousand dollars, and “ that the rent of estates in the country (on account of expenses of repairs, &c.) ought to be equal to ten per cent, on their value, in order to yield a net revenue equal to six per cent, thereon.”</p> <p>3d. Because the master allowed the defendant the sum of twenty dollars a month, paid by him for the compensation of a person employed as farmer and gardener to take care of the estate, under an agreement that he should receive that compensation and occupy the house rent free; and other sums paid by the defendant, amounting in all to three thousand dollars, for the care and management of the estate, and the purchase of a horse, cow, cart, harness, sleigh, haycutter, plough, cultivator and farming tools, charging him with their present cash value, and with produce sold by him from time to time.</p> <p>The master, upon the testimony of the person in charge of the premises, and other evidence, reported as follows: “ The mortgaged premises, known as the ‘ Woodland Farm,’ are situated in the city of Newburyport, about one mile from the centre of business. They comprise ten acres of land, the most of which is covered with fruit and ornamental trees, the fruit trees being some seven hundred or eight hundred in number. A great many of these fruit trees are young, and at present produce nothing; some of them yield but little, and it will take considerable time to bring them to their full productiveness. As a fruit farm, it is some nine or ten years old, and the property is improving in value. The ornamental trees are of no profit, and probably never will be. Besides the fruit, the farm produces a small quantity of vegetables • a quarter of an acre was planted with potatoes; a quarter of an acre with beets and carrots ; and it yielded five or six tons of hay. The place is laid out in walks and carriage ways, which are gravelled, and ornamented with borders, shrubbery and ornamental trees, which are of no profit, but all require care and attention. It was necessary for the witness to procure the additional help for which the defendant has charged, and the price paid therefor was reasonable. When the witness was put in charge by the defendant, there was nothing on the place to carry it on with, and the witness purchased the articles charged in the defendant’s bills, at fair and reasonable prices, as charged, and they were all necessary for the proper management of the premises. It was cheaper to buy said articles than to hire. They are now in as good order and condition as when purchased, reasonable use and wear excepted. No additions have been made, and the place has only been kept in as good order and condition as when the witness was put in charge of it. The repairs made have been slight, and were necessary. The place cannot now pay for itself, and there is no other mode of managing it, as a farm, than the one which the witness pursued, which would make it more productive.” And the master concluded “ that the defendant was justified in taking possession of and managing said premises as he did, and that his management was prudent and reasonable,” and allowed his account as amended, showing a balance due him of $11,112.53.</p>

<p>Under St. 1852, c. 312, a misrepresentation of the assured, not specified in the defendants’ answer, cannot be relied on to show a policy of insurance to be void, and so defeat an action thereon, although first disclosed by the plaintiff’s evidence.</p> <p>The question whether repairs made by insurers, under a right reserved in the policy, are made within a reasonable time, depending on the dates of various notices given by the parties to each other, the delay occasioned by the sickness and death of workmen employed, and the peculiar nature of the property, must be submitted to the jury, although the particular circumstances are not disputed.</p> <p>A by-law of a mutual fire insurance company, which provides that “ the directors may, within a reasonable time, rebuild, repair or replace the property lost or damaged,” but shall not be authorized to proceed until the assured shall have given security to contribute one third of the expense, “ nor shall the company be liable to any action for the loss, until such security shall have been furnished, nor unless the company shall neglect for thirty days thereafter to proceed to rebuild, repair or replace,” does not prevent the assured, upon the failure of the company to complete within a reasonable time such repairs, commenced within the thirty days after the giving of such security, from maintaining an action on the policy for the loss.</p> <p>One who has purchased and sold machinery of a peculiar kind, and owned and run it for a year, and had repairs made upon it, and made estimates of the cost of building such machinery, and procured such estimates of other machinists for the purpose of having such machines manufactured, is a competent witness to state his opinion of its value.</p>

<p>Evidence that a bond, duly executed and now produced by the obligee, was handed by one of the obligors to the attesting witness, who was his clerk, and afterwards remained in the custody of the latter for some time, and, according to his recollection, remained with the obligor’s papers when he left his employment; and that the bond was in the obligor’s possession at the time of his decease; without any evidence of instructions given by the obligor to the clerk at the time of handing the bond to him; is insufficient in law to warrant a jury to find a delivery of the bond to the obligee or to any one in his behalf.</p> <p>Leaving it to the jury to find a delivery of a bond, on evidence insufficient in law to warrant such a verdict, is ground for setting it aside, on a bill of exceptions in which all the evidence is reported.</p> <p>Under the St. of 1856, e. 188, which enacts that “ parties in all civil actions may be admitted to testify in their own favor, and may be called as witnesses by the opposite party,” the deposition of a party is admissible in evidence for him.</p>

<p>County commissioners have no jurisdiction to locate a highway upon a beach which forms one side of a harbor, and which, though not within the ebb and flow of ordinary tides, unaided by storm or wind, is almost invariably covered by spring tides, and part of which is often useful to vessels drifting from their anchorage in the harbor. And a writ of certiorari will be granted to quash such a location, if it would probably, though not necessarily, injure the harbor for the purpose of navigation, or interfere with public measures for its protection and improvement.</p>

<p>Action of tort for the conversion of a horse. The defendant justified the taking as a deputy sheriff, under a writ of attachment in favor of Charles Boynton against George B. Foster ; and alleged that said Foster was then the owner of the horse ; and, if any sale was ever made by him, it was made to Christopher Rugg, for the purpose of hindering and delaying his creditors, and the plaintiff bought the horse, if at all, from Rugg, with full knowledge of these facts, and participated in the fraud.</p> <p>Trial in the court of common pleas before Sanger, J., who, after verdict for the plaintiff, allowed the defendant’s bill of exceptions, one point in which was thus stated : “ The defendant offered Charles Boynton as a witness, to prove that, at n time previous to said alleged conversion, said David B. Foster had threatened and declared publicly ‘ that said Charles Boynton should never recover any property of George B. Foster if he (said David) could help it by any means in his power.’ The plaintiff objected to this testimony, and the judge ruled that it was not admissible. Subsequently, at the close of defendant’s testimony, the plaintiff withdrew this objection, and consented that the testimony should go in, but the witness was not then in court, although he subsequently and during the argument of defendant’s counsel returned, but nothing further was said in relation to his testimony.”</p>

Writ of entry to foreclose a mortgage of land in Lawrence The defendants, after pleading the general issue, moved the court, as a court of equity, to order the plaintiff, upon being paid the amount of that mortgage and of the costs of suit, to assign that mortgage to the defendants or to Joseph P. Jenkins ; and in support of this motion relied upon the following facts, which were admitted by the plaintiff: The Essex Company, owning the land in fee, conveyed it to the…

<p>Action of contract by an indorsee to recover an unpaid balance due on a note signed by the defendant and Samuel C. White. Answer, that the defendant signed the note as surety for White, and that the payee “ did extend the time of payment on said balance, against the consent of the defendant.”</p> <p>At the trial in the court of common pleas, before Briggs, J., the defendant offered evidence tending to show that the defendant was only a surety on the note, and was known to the payee to be only a surety ; and that the payee, pursuant to an agreement made for a valuable consideration with White, and without the consent of the defendant, extended the time of payment of the note. The plaintiff’s counsel, in his closing argument to the jury, for the first time objected to this evidence, on the ground that no contract for the extension of the time of payment was averred in the answer. But the judge overruled the objection. The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

<p>Action "of tort by an administrator with the will annexed, for the conversion of furniture of the plaintiff’s testator, in his lifetime.</p> <p>At the trial in the court of common pleas, before Briggs, J., there was evidence tending to show that the testator, in his last illness, executed a bill of sale of the furniture to the defendant, to which the attending physician was the only attesting witness. The plaintiff contended and offered evidence to show that the transaction was fraudulent, that the testator was not of sound mind when he executed the bill of sale, and that it was not delivered in his lifetime.</p> <p>The physician testified that, in his opinion, the testator was of sane mind when he signed the bill of sale. The plaintiff called a witness, who testified that he went to the town of the testator’s residence a few days before his death, to see him about a debt due from him to the witness; and, meeting the physician, was told by him that the testator was a very sick man, and had not been in his right mind all the time for a number of days ; that he then went to the testator’s house and was admitted to the house, but not to see him; and that the testator’s wife objected to his seeing him. And the witness was allowed to testify, notwithstanding the defendant’s objection, that the reason the testator’s wife gave for not allowing the witness to see him was, that 16 he was very low, his mind was affected by his disease, and any one going into the room affected him very much.”</p> <p>The jury returned a verdict for the plaintiff, upon the ground as they stated, in answer to an inquiry of the presiding judge, that the testator was incompetent to transact business at the time of executing the bill of sale. The defendant excepted to the admission of the evidence of the wife’s statement.</p>

<p>Complaint under the mill act. The complainant having obtained a verdict from a sheriff’s jury moved the court of common pleas to accept it. The respondent filed written objections to the verdict, and moved to set it aside for the reasons stated therein. The objections to the verdict were : “ That it is against law and evidence, in that the jury allowed for more than ten years damage of flowing, which the respondent proposes to show by the evidence, as compared with the verdict i tself; or that there was some mistake in said verdict, because i hat while only ten years past damage could be allowed for, it '¡vas allowed at a much higher rate than the future annual damage was assessed at, or the gross sum, although there was no «vidence to show that the future annual damage would not be as great as the past; and the respondent claims to show by parol what evidence there was before the jury, and the instructions given to them.”</p> <p>Morris, J. ruled that “ the court had no power to set aside the verdict for the objections specified, and on that ground overruled the respondents’ motion, and granted said motion of petitioner.” To this ruling the respondents excepted.</p>

<p>A debtor who, after being arrested on execution, and being refused the poor debtors’ oatp, is “ conveyed to jail by the officer,” under St. 1856, c. 444, f¡ 7, to “be there kept,” in entitled to give bond for the liberty of the prison limits.</p>

<p>Action of contract, commenced at December term 1851 of the court of common pleas, by Elisha Williams, executor of the will of George Harlow, to recover one third of the amount of a joint and several note, executed by said Harlow, by the defendant, and by S. S. Gilman, and paid at maturity by said executor.</p> <p>The answer admitted the execution of the note; but denied that the plaintiff was obliged to pay and did pay it; and averred that, at the date of the note, the three signers were copartners, that the note was made for the purposes of the partnership, and that at the date of the writ there were outstanding claims against the partnership, which had not since been settled.</p> <p>Williams died in the summer of 1852, and in the following autumn White was appointed administrator de bonis non with the will annexed of George Harlow, and at the next December term appeared and assumed the prosecution of this suit.</p> <p>The case was afterwards referred to an auditor, who made a report, from which the following is an extract: “ It was admitted by the defendant’s counsel that the promissory note described in the writ was made and signed agreeably to its purport; and further, that Reuben Farrar, the payee of said note, and now present as a witness for the plaintiff, will testify that the amount of said note was paid to him, about the time when it became payable, by Mrs. Harlow, widow of said George Harlow, in the presence of said Williams, executor, the plaintiff in this action ; that the plaintiff, at the time, took a pen and appeared to be writing; that Mrs. Harlow did not write ; that the interest was reckoned at the time, and paid by said Williams at Mrs. Harlow’s house. It was agreed by the defendant’s counsel that the foregoing should be evidence in the ease, provided the plaintiff’s counsel shall produce the note testified of, or shall show by satisfactory evidence that such note was in existence.”-</p> <p>A trial was had at September term 1854, before Briggs, J., who signed a bill of exceptions, which, after setting forth the previous proceedings in the case, was as follows:</p> <p>“ After the reading of the writ and answer, B. F. Watson was offered and sworn as a witness for the plaintiff, when it appeared, in answer to interrogatories to the witness, that the note aforesaid, upon payment whereof this action was grounded, was then in his possession ; and the said note was then produced and exhibited by the witness. The witness however claimed to withhold said note from the plaintiff, and to be entitled to refuse that said note should be used as testimony in this suit, till a lien upon it for ten term fees of four dollars each, and for the legal costs that would be taxable for the plaintiff, in case he had prevailed at the time when the witness ceased to be the attorney of the plaintiff, namely, after March term 1854, was satisfied, which lien accrued, as the witness alleged, from the fact, that he was one of the firm of Saunders & Watson, by whom this suit was instituted, and to whom the note in question was delivered by the original plaintiff, Williams, to sustain the same.</p> <p>“ The court ruled that the witness was entitled to retain and withhold said note till his reasonable claim for his fees and disbursements were satisfied. To this ruling the plaintiff excepts.</p> <p>“ The plaintiff then offered as testimony the report of the auditor, and especially the extract from the same that has been already set forth.</p> <p>“ The court ruled that this report of the auditor was not competent evidence of the facts set forth and admitted by the counsel of the defendant, until the condition upon which the admission was made had been complied with. To this ruling the plaintiff by his counsel excepts.</p> <p>“ A verdict pro forma was rendered for defendant, to be set aside if said several rulings are not found correct.”</p>

<p>A quitclaim deed to the mill-owner from the owner of land flowed by a milldam will not prevent a previous mortgagee from maintaining a complaint under the Eev. Sts. c. 116, for subsequent flowing.</p> <p>The owner of land flowed by a milldam to a certain height under a grant from him, ana to an additional height without his leave, conveyed the land to a third person, and took back a mortgage thereof, each of which contained a covenant of freedom from incumbrances, excepting so far as the owner of the mill might have acquired a right to flow the premises. Held, that this did not authorize the mill-owner to flow above the limits before granted.</p> <p>[The mortgagor of land taken by a railroad corporation for the purpose of their road may recover the full amount of damages, without regard to the mortgages. 470, note.]</p>

<p>Indictment to recover the fine imposed by St. 1840, c. 80, tor the loss of life of John Henry Cross, of Marblehead, a passenger on their road, by the negligence of the defendants and their servants or agents. The indictment, after particularly setting forth the negligence, and the death of the passenger, concluded by averring “ that by reason of the negligence and carelessness aforesaid the said Eastern Railroad Company have become and are liable to the penalty and fine, according to the statute in such case made and provided, to the use of John Sparhawk, Jr. of said Marblehead, who has been duly appointed administrator of said John Henry Cross, and the heirs at law of said John Henry Cross.” But it contained no averment that the deceased left a widow or heirs. And the defendants, at the trial in the court of common pleas, objected to the indictment on that ground. But Hoar, J. overruled the objection; and the defendants, being found guilty, alleged exceptions to his ruling.</p>

<p>Assault and battery. The indictment averred that the defendant on the 25th of August 1854, at Salem in this county, <l in and upon the body of one Richard Pappoon, late of Marble-head in said county of Essex, deceased, in the peace of said commonwealth then and there being, did make an assault, and him the said Richard Pappoon, with a large and heavy whip which the said John Ford'then and there in his right hand had and held, did then and there strike divers grievous and dangerous blows upon the head of him the said Richard Pappoon, whereby the said Richard Pappoon was then and there cruelly and dangerously beaten and wounded and his life greatly endangered.”</p> <p>At the trial in the court of common pleas, before Perkins, J., the defendant contended that no assault could be committed on a dead body; that the indictment charged an assault and battery upon the body of a person deceased at the time of the assault; and that under it evidence of an assault upon a living person was inadmissible. But the judge ruled that the indictment sufficiently set forth an assault upon the body of a living person, and would be sustained by proof of an assault on Richard Pappoon, being then alive.</p> <p>The evidence showed that the defendant, near the Eastern Railroad station in Salem, intentionally assaulted Pappoon, being then alive, and struck him with the butt end of a teamster’s heavy whip, two severe blows, one of which knocked him down, and the other was given as he was offering no resistance, but simply attempting to rise, and each of which severed his scalp; and that he was then taken to a physician, by whom his wounds were dressed. It was agreed that Pappoon lived about one month after the assault, and then committed suicide.</p> <p>The defendant introduced evidence tending to show that “ before the blows were inflicted on Pappoon by the defendant, the defendant had a horse and wagon, with a load of camp furniture upon it, standing by the sidewalk near the Eastern Railroad station; that the defendant was by the side of his horse, with the whip in his hand; that, in consequence of some previous occurrence between Pappoon and the defendant, Pappoon called upon the defendant one or more times to treat Pappoon, or be treated by him, but the defendant declined both; that Pappoon took hold of the bridle of the defendant’s horse, and pulled his head round towards the sidewalk, but not otherwise moving the horse; that the defendant told Pappoon to let go the horse, and Pappoon immediately did let go, and then struck the horse on his head with his hand, which caused the horse to step back three or four feet, but not otherwise doing any damage; that thereupon the defendant stepped round towards Pappoon, and with the butt end of his whip inflicted the blows proved in the case; that Pappoon was of a strong muscular frame, and that he was at the time of the assault complained of somewhat excited by liquor.”</p> <p>The defendant contended that he was justified or excused in what he did by the acts of Pappoon. But the judge instructed the jury “ that if they were satisfied of all the facts which the government’s evidence tended to prove, then the facts which the defendant’s evidence tended to prove would not excuse or justify the defendant (if they were made out) so as to entitle him to an acquittal; that although it were made out that Pappoon did ask the defendant to treat, did take hold of his horse, and let go, when told to, and did strike the horse on the head and make him step back, as above stated, still the blows, which the government’s evidence tended to show were inflicted, were unreasonable and wholly disproportionate to the exigency, and could furnish no excuse to the defendant.”</p> <p>The jury found the defendant guilty, and, when rendering their verdict, on being inquired of by the judge at the request of the defendant’s counsel, stated that they found that Pappoon’s life was greatly endangered by the acts of the defendant, alleged in the indictment. The defendant excepted to the rulings of the judge.</p>

<p>It is no ground of exception that the court refused to allow a witness, who had testified that he had formerly been known by another name, to be asked on cross-examination why he had then given that as his name.</p> <p>The fact that a witness has been in the house of correction cannot be proved by cross-examination of the witness, but must be proved by the record of his conviction.</p> <p>A complaint, made “ in behalf of the Commonwealth,” and alleging an offence in a particular city and county (corresponding in name to a city and county of the Commonwealth) against a statute, the title and date of which are stated and rightly describe a statute passed by the legislature of the Commonwealth, sufficiently shows that the offence was committed within the Commonwealth, without any caption, or venue in the margin.</p> <p>A certificate, signed as clerk, by one who is actually clerk of a police court, that “ the aforesaid complainant made oath to the truth of the foregoing complaint before said court,” sufficiently shows that the complaint in question, purporting to be made by “ John H. Newton,” and signed u J. H. Newton,” was signed and sworn to by John H. Newton, within the Commonwealth.</p>

<p>A complaint, made on oath to the justice of thé police court of Lynn, averred that the defendant on the 1st of June 1855 at Lynn, “ without any license, authority or appointment therefor, did sell to some person of Lynn, whose name is unknown to your complainant, a certain quantity, to wit, one gill of intoxicating liquor, in evil example to all others in like cases to offend,' against good morals, against the peace of said ■ commonwealth,; and contrary to the' forms of the statutes in such cases made and provided.”</p> <p>The defendant, being tried and convicted in the court of common pleas, moved in arrest of judgment for the following reasons, besides others relied on and overruled in previous cases:</p> <p>Tst. Because the complaint was uncertain and insufficient, inasmuch as it did not set forth the name of the person to whom the liquor was alleged to have been sold, nor designate and describe him with sufficient particularity, nor allege that his name could not be ascertained by inquiry, nor that inquiry therefor had been made.</p> <p>2d. Because the complaint did not allege with sufficient precision what law or statute the defendant was charged with having violated.</p> <p>3d. Because the fifteenth section of St. 1855, c. 215, is in violation of art. 8 of the amendments of the Constitution of the United States, and of art. 26 of the Declaration of Rights of this commonwealth.</p> <p>4th. Because the fifteenth and twenty-fourth sections of that statute are not “ wholesome and reasonable ” laws, within the meaning of the c. 1, § 1, art. 4, of the Constitution of Massachusetts, and therefore the legislature have therein exceeded the limits of their authority prescribed by the Constitution.</p> <p>5th. “ Because the said fifteenth and thirty-fourth sections are illegal, not binding, and altogether void; inasmuch as they infringe on the fundamental, natural and civil rights of the citizen, and are in violation of the law of nature and of reason, for that they declare certain acts to be crimes, which are not criminal, and forbid, under pain of severe punishment, acts which are proper to be done, and beneficial to society.”</p> <p>Briggs, J. overruled the motion, and the defendant alleged exceptions.</p>

<p>Action of contract for goods sold and delivered, part in New Hampshire and part in Massachusetts, under a contract made in Massachusetts, but without any stipulation as to the place of payment; the plaintiff being then and ever since a citizen of and resident in New Hampshire. Answer, a certificate of discharge obtained under the insolvent laws of this commonwealth, upon proceedings in insolvency in which the plaintiff did not prove his claim. The parties submitted the case upon these facts to the decision of the court.</p>

<p>A person who, at the request of a friend upon his death-bed, promises him, in case he dies, to send his body home to be buried with his mother; and, after his death, obtains a coffin from the city, and purchases a box in which to forward it, and puts the coffin with the body into the box and ships them on board a vessel; and pays to the owners of the vessel the price for which they have agreed with a sister of the deceased, since his death, to carry the body, if inclosed in such a box, to the desired place, of Which agreement the sister has informed him; cannot maintain an action against the owners of the vessel for neglecting so to carry, without further proving a special contract with him to do so.</p>

<p>Action of contbact upon an agreement by which the de fendant, in consideration of the sum of $6,500 to be paid him by the plaintiff, agreed to convey to the plaintiff a certain parcel of flats between high and low water mark in Boston Harbor, and to fill them up with earth in a reasonable time to a suitable height for use, above the level of ordinary high tides The declaration set forth this agreement; and then alleged that the defendant conveyed the land to the plaintiff, and the plaintiff paid or secured said sum to the defendant; but that the defendant had neglected to fill up the land.</p> <p>The case was referred by rule of court. The referees made a report, in which they set forth the pleadings, and stated that it was proved to their satisfaction that there was a verbal agreement between the parties, substantially as set forth in the declaration; that the land was not filled when the agreement; was made; that the defendant had since made and delivered to the plaintiff a deed of the land, and had received of the plaintiff his note for the purchase money, secured by mortgage of the land; but that a portion of the land had not been filled up; and awarded a certain sum in favor of the plaintiff, in case thei court, upon these facts, and notwithstanding the statute of frauds, which was relied on by the defendant at the hearing before the referees, should be of opinion that the action could bo maintained. The plaintiff now moved for the acceptance of the award.</p>

<p>Action of contract on a policy of insurance on the plaintiffs’ bleachery in Gloucester, N. J. for one year from the 9th of October 1851, alleged to have been made on the 8th of December 1851.</p> <p>The written part of the policy, after describing the buildings, added : “ Being more fully described and set forth in survey bio. 3950, upon which this policy is based, and all conditions therein named to be fully complied with.” The policy declared “ that this policy is made and accepted in reference to the conditions hereto annexed, which are to be used and resorted to in order to explain the rights and obligations of the parties hereto, in all cases not herein otherwise specially provided for.”</p> <p>Among these conditions of insurance were the following: £ 1. Applications for insurance should be in writing, and specify he construction and materials of the building to be insured, or containing the property to be insured; by whom occupied; whether as a private dwelling, or how otherwise; its situation with respect to contiguous buildings, and their construction and materials; and whether any manufactory is carried on in or about it.” “ 3. If during the insurance the risk be increased by the erection of buildings, or by the use or occupation of neighboring premises, or otherwise, or if for any cause the company shall so elect, it shall be optional with the company to terminate the insurance, after notice given to the assured or his representative of their intention to do so; in which case the company will refund a ratable portion of the premium.” “ 5. No insurance, whether original or continued, shall be considered as binding, until the actual payment of the premium.” “ 8. This company will not be liable for damage to property by lightning, aside from fire, nor for damage occasioned by the explosion of a steam boiler.” “ 17. When a policy is made and issued upon a survey and description of certain property, such survey and description shall be taken and deemed to be a part and portion of such policy, and warranty on the part of the assured.” The application or survey was dated October 9th 1851, and in answer to interrogatories in behalf of the defendants, described the building insured as “ Bleachery new, and on the most approved plan of building; ” “ brick and wood, with slate roof; ” “ stoves, furnaces, funnels, flues and apparatus for heating or using fire, properly secured ; ” and contained the following question and answer: “ Will you engage that the ashes in and around your buildings shall be kept in a safe place ? ” Answer. “ Yes. Watchman employed and always on duty during the night season and on Sundays. Water tanks to be well supplied with water at all times. No smoking or drinking allowed in or about said building.” The application further contained a covenant “ that the foregoing is a just, full, and true exposition of all the facts and circumstances in regard to the condition, situation, value and risk of the property to be insured, so far as the same are known to the applicants, and are material to the risk ; ” and indorsed upon it was a plan showing a “large tank of water, 20 feet high,” by the side of the building.</p> <p>The policy was signed by the defendants’ president and secretary, and was “ countersigned at Philadelphia this fourteenth day of October A. D. 1851. Gillett & Coggeshall, agents.” In the margin was the following memorandum in writing: “ December 8th 1851. The buildings herein named to be occupied as bleach and dye house. It is hereby understood that this company shall be liable for any losses which may be caused by fire from the bursting of the boilers, notwithstanding the exceptions named in this policy. No exception of any articles used in dyeing and bleaching, or such as result from the kind of business. Privilege of heating said buildings with stoves. Buildings in course of construction. Gillett & Coggeshall, agents.”</p> <p>The trial was before Thomas, J., who made the following report thereof: The plaintifls proved that Gillett & Coggeshall, for some time before the 9th of October 1851, were the agents of the defendants at Philadelphia, advertised as such in the newspapers, and were entrusted with policies, like the one declared upon in all their printed parts, signed by their president and secretary, and to be filled up, indorsed, countersigned and issued by said agents ; that the policy declared on was made out and countersigned by said agents on the 14th of October 1851, with the exception of the memorandum in the margin, and remained in then: possession until the 8th of December, when the plaintiffs’ treasurer called for it, and, on examination, refused to receive it in that form, and thereupon said agents made and signed the memorandum in the margin, and said treasurer took the policy and paid them the premium.</p> <p>The defendants offered to prove that Gillett & Coggeshall were directed to send to the defendants, at the end of each month, copies of the written parts of all policies issued by them, and of any indorsements thereon made by them; but it was not proved that these directions were complied with, or were known to the plaintiffs. It was proved that said agents, about the 1st of November 1851, without the plaintiffs’ knowledge, sent the defendants a copy of the written portion of this policy, and of the survey, and paid them the amount of the premium; and that the defendants’ officers did not know of the memorandum of December 8th, or that the buildings insured were in the course of construction, until after they were burnt. The loss by fire within the time, and due notice thereof, were admitted.</p> <p>The defendants also offered to prove, by parol, that Gillett & Coggeshall were not authorized to dispense, by indorsement or otherwise, with any of the requirements of the conditions upon which the policies were issued, or with a full, true and exact description of the buildings insured and the risk assumed in the survey or application to be signed by the assured. This evidence was objected to by the plaintiff, and rejected by the court.</p> <p>It was also proved that when the application was signed, and until the loss, the buildings insured were not completed, but in the course of construction, and that there were no water tanks upon the premises, but a tank had been begun in the place and of the size designated in the plan annexed to the application, and others elsewhere, and that the plaintiff had proceeded in the construction of these tanks as fast as is usual in the construction of a bleachery, and without unreasonable delay.</p> <p>Upon this evidence, the court, for the purposes of the trial, ruled that if the plaintiffs did not pay the premium on the policy until the 8t.h of December, and the policy was not delivered to them until that time, and their agent refused to take it until the indorsement of December 8th 1851 had been made by Gillett & Coggeshall, then the defendants would be bound by such indorsement; and that, upon the facts proved, the plaintiffs were not bound to have tanks in the building insured, filled with water at all times from the commencement of the risk, or to show that there was a large tank in the place indicated on the plan from the commencement of the risk; but that if these tanks were in a reasonable state of forwardness towards completion, compared with the state of the buildings insured, and if the buildings and tanks were being finished and constructed up to the time of the fire with reasonable dispatch and with no unnecessary delay, then the plaintiffs would be entitled to re cover upon this part of the case. A verdict was taken for the plaintiffs; to be set aside, if the rulings were not correct.</p>

<p>A policy of insurance, by which certain persons are insured “ $12,500, namely, $12,000 on their stock of watches, watch trimmings, &c. contained in their store No. 69 Washington Street, Boston, and $500 on their furniture and fixtures in said store,” covers not only watches, watch trimmings, parts of watches, watch materials and watch tools, but also such silver and plated ware, clocks, jewelry and other goods as usually form part of the stock in shops in Boston, where watches and watch trimmings are sold.</p>

<p>ultaneously with a deed of land, absolute in form, the consideration of which was $14,500, the grantor and grantee executed an indenture in these terms: “ Whereas it is the wish and intention of the grantor to purchase back or redeem the said estate; now therefore I, the said grantor, do hereby bind myself, my heirs,’’ &c. “ in the sum of $3,000, to the aforesaid grantee, his heirs," &e. “ that I will refund to him the sum of $14,600 with interest thereon; ” and “ I, the said grantee, on my part, do hereby bind myself, my heirs," &c.11 in the penalty above expressed, to redeed to the said grantor the premises above named, on his paying, within five years from the date hereof, the above named sum of $14,500 with the interest; it being understood that the said grantee is to have full possession of the estate, to control and lease the same, as he may detm proper, and receive the rents.” ¿Tele?, that this wasnotamerebondforreconveyance; but a defeasance, which, taken together with the deed, constituted a mortgage; and that the grantor’s right to redeem the land at any time within three years after breach of condition was not affected by receipts and accounts given by him to the grantee, mentioning the deed as an absolute conveyance. '</p>

<p>"Writ of entry. Trial before Bigelow, J., who reported the case to the full court. The material parts of a partition in the probate court, under which both parties claimed title, and of the plan which was annexed to the report of the commissioners to make partition, are copied in the margin.* The other facts are sufficiently stated in the opinion.</p>

<p>in an action for breach of covenants of seizin and good right to convey in a deed of land, made by the owner directly to the grantee, at the request of a third person who has purchased the land of the grantor after agreeing to convey it to the grantee in satisfaction of a debt, the measure of damages, if no consideration was actually paid by the grantee to the grantor, is the value of the land, with interest from the date of the deed.</p>

<p>A notice that shares in a railroad corporation will be sold for nonpayment of assessments on a day fixed and by an auctioneer named, who is and has long been an auctioneer in the place at which the notice bears date, is insufficient, if it does not express the place of sale.</p> <p>Three days’ notice of the time and place and sale of shares in a railroad corporation for nonpayment of assessments, is unreasonably short, and therefore insufficient, if the proprietor resides at a distance.</p>

<p>Petition, filed on the 27th of February 1850, for partition of real estate on Market Square in Boston, two thirds of which were claimed by the petitioner. Answer, a denial that the petitioner was tenant in. common with the respondents ; and a notice that the respondents would rely on their title under deeds from the ancestor of the petitioner, and from others entitled to the premises; and upon the statute of limitations of real actions. Trial before Fletcher, J., who reported the case for the decision of the full court, in substance as follows :</p> <p>The petitioner offered, in support of his title, the will of Susannah Jacobs, dated September 5th 1727, and admitted to probate on the 6th of March 1730, and containing the following devise: “ I give and bequeath to my granddaughter Elizabeth Hall, wife to Mr. Hugh Hall of Boston aforesaid, merchant, the house that Mrs. Loyd dwells in, being the next adjoining to my aforesaid brick house, with the land which it stands on and the privileges thereof, and to the heirs of her body lawfully begotten, and to their heirs and assigns forever.” The testatrix then gave another house, in like terms, to another granddaughter, and added: “ I will and appoint that, in case either of the two last mentioned houses which I have given to my two granddaughters should, by a just apportionment, exceed the other, then she that hath the most valuable house shall give unto the other as much as the overplus is.”</p> <p>The following facts were proved or admitted: Elizabeth Hall died about 1770, leaving three children, Benjamin Hall and two daughters. Hugh Hall died in 1773. Benjamin Hall died on the 12th of March 1830, and the petitioner was his only son.</p> <p>The petitioner put in evidence a deed, dated March 7th 1777 whereby Benjamin Hall did “ grant, sell, enfeoff and convey ” all his “right, title, interest and claim in, to and out of” the land in question to James Boies and George Makepeace, with covenants of seizin “ of the premises,” of good right to convey the same, and of general warranty; a warranty deed from Benjamin Hall to Edward Wentworth of one undivided third part of this land, dated September 16th 1795; a quitclaim deed from Boies and Makepeace to Wentworth, dated November 10th 1799, of all their interest in the land; and a quitclaim deed, dated July 18th 1808, of all Wentworth’s interest in the land, to one whose title the tenants had since acquired; all which deeds were duly recorded.</p> <p>The respondents gave in evidence a recorded deed from each daughter of Hugh and Elizabeth Hall, and her' husband, of one undivided third of the land, executed in 1788 and 1792, respectively ; and subsequent conveyances thereof to the respondents.</p> <p>It was admitted by the petitioner that the respondents and those under whom they claim have been in the quiet, peaceable and uninterrupted possession of the premises, claiming title in themselves, making improvements from time to time, and receiving the rents and profits, ever since the deed of Benjamin Hall to Wentworth in 1795.</p> <p>The respondents also offered to show that Susannah Jacobs had only a leasehold estate in the premises, which had expired before she made her will.</p> <p>The respondents also offered, as evidence which would warrant a jury in presuming a grant to those under whom the respondents claimed, to prove the loss of the records of the court of common pleas from 1751 to 1776, covering a time during which the estate tail might have been barred by the tenant in tail by suffering a common recovery ; acts' of Benjamin Hall and his sisters, and of the grantees of their interests, as showing that they regarded the estate as having been actually and legally divided among them, and also as showing their intention to equalize the shares which they took under the will of Mrs. Jacobs; acts of the petitioner, since the death of his father, regarding this and other estates which formerly belonged to.the Hall family; and that this estate had been very often conveyed during the lifetime of Benjamin Hall, in the line of the title of the respondents.</p>

<p>Habeas corpus in behalf of a citizen of Boston arrested by the respondent, a constable of Boston, for nonpayment of taxes, pursuant to Rev. Sts. c. 8, § 11. All the proceedings were admitted to be in due form.</p>

Habeas corpus, issued on the 25th of January 1856, on the petition of Emily Curtis, a minor of sixteen years of age, “ by her guardian and next friend, Joseph Fairbank of Enfield in the State of Connecticut,” representing that she was restrained of her liberty by her widowed mother, Jane Curtis, claiming her services as her mother and natural guardian ; that on the 8th of October 1851 the said Jane Curtis, at Enfield, by an indenture executed by said Jane and said Fairbank,…

<p>A credi tor of a deceased insolvent, while attending a meeting of commissioners appointed by the judge of probate to examine claims against the estate, is privileged from arrest on civil process.</p>

<p>A certificate of discharge under the insolvent laws of this state is a bar to an action by a citizen of another state on a promissory note expressly payable in this state.</p>

<p>Under St. 1852, c. 812, a misrepresentation of the assured, not specified in the defendants' answer, cannot he relied on to show a policy of insurance to be void, and so defeat an action thereon, although first disclosed by the plaintiff’s evidence.</p> <p>The evidence of experts is not competent to show that the risk of fire is greater in unoccupied buildings.</p>

<p>A second mortgagee of land may enter and take possession for the purpose of foreclosure, while the first mortgagee is in for the like purpose; and if the second mortgage is foreclosed before the first, such foreclosure will cut off the equity of redemption, and all subsequent mortgages, though such mortgages are held by the first mortgagee.</p>

<p>Bill in equity to redeem land from a mortgage. The case came before the court upon exceptions to the disallowance, by the master to whom the case was referred to state the account, of certain charges for premiums of insurance on the premises, paid by the defendant, after entering for breach of condition, under the following circumstances:</p> <p>One condition of the mortgage was that the mortgagor should “ keep the buildings standing on the land aforesaid insured against fire, in a sum not less than twenty five hundred dollars, for the benefit of the said mortgagee, his executors, administrators and assigns, at such insurance office in Boston as he shall approve.” The mortgagor did not insure. The mortgagee paid the premiums charged in his account, for two policies of insurance, at different times, by one of which the insurance company caused “ Simeon Palmer, for whom it may concern, payable in case of loss to Simeon Palmer, mortgagee, to be insured $2,500 on his ” buildings, described; and by the other caused the “ estate of Simeon Palmer, for whom it may concern, payable in case of loss to his administrators, to be insured ” on the same buildings.</p>

Action op contract on this promissory note, signed and indorsed by the defendant: “ $350.00. Boston, March 10th 1853. Two months after date I promise to pay to the order of myself three hundred and fifty dollars, value received.” Writ dated June 23d 1853.

<p>Forbearance to sue a debt due and payable, upon receiving a personal promise of payment from the assignee in pais of the debtor, is evidence from which a jury may infer an agreement to forbear, which is a good consideration for the promise.</p>

Action of contract by the consignee for the loss of the goods mentioned in this receipt: “ Through freight, Boston to Zanesville. 28 State St. Boston, Feb. 21,1853.

<p>Action of contract upon the following written order, the consideration of which was iron furnished by the plaintiffs to Leonard Fuller, and which the defendants had promised to accept:</p> <p>“ Salem, Mass., 24th Sept. 1850. Messrs. Benedict & Warren, Gentlemen : Please give Mr. D. A. Neale, president of the Eastern Railroad Company, stock in the Salem Gas Company, at par, to the amount of seven thousand dollars, and place the same to my account. Yours respectfully, Leonard Fuller.”</p> <p>At the trial, the defendants objected that the action could not be maintained in the name of the plaintiffs, but only in the name of Neale; and that parol evidence was not admissible to prove that the order was in fact given for the iron belonging to, and for the benefit of the Eastern Railroad Company. Thomas, J. sustained the objection, and directed a nonsuit, subject to the opinion of the whole court.</p>

<p>A bill of exchange, drawn by an agent in his own name, does not bind his principal though made for his benefit, and containing a direction to the drawee to charge the amount thereof to his account.</p> <p>A bank, which has discounted bills drawn in his own name by the agent of a disclosed principal, cannot sue the latter, nor prove against his estate in insolvency, although the proceeds are applied by the agent to his use.</p>

<p>A debt due from a partnership established in another state cannot, under the insolvent laws of this commonwealth, share in the estate of one of the partners who resides here in competition with his separate creditors.</p> <p>A creditor, who brings an action in New York against two persons as partners doing business there, one of whom resides in this state and is not served with process, and recovers a judgment there against both, which, by the statutes of that state, is binding upon the person served and upon the joint property, cannot afterwards prove the debt against the estate of the absent defendant in proceedings under the insolvent laws of this common wealth, commenced before the action was brought in New York, whether the two defendants in that action were partners or not.</p>

<p>Action of contract upon the following instrument: “ Memorandum of agreement, made the 18th day of August 1852. I, Charles Parsons, agree to sell to the Pembroke. Iron Company a cargo of old railroad iron, to be shipped per barque Charles William, part being flat rails and part flange, at thirty dollars per ton, cash, delivered on the wharf in Boston ($30 per toe,, cash, on wharf), dangers of the seas excepted—About 300 or 350 tons. Charles Parsons.”</p> <p>At the trial in the court of common pleas, it appeared that at the time of the agreement the iron in question was at Savannah, Georgia; that the barque Charles William was a vessel of a registered tonnage of two hundred and ninety eight tons, engaged in the coasting trade between Savannah and Boston, and that the defendant received on board of her at Savannah, and conveyed to Boston, and there delivered to the plaintiffs, two hundred and twenty seven tons only; and refused to deliver any more, although the plaintiffs demanded the difference between that amount and three hundred or three hundred and fifty tons. There was conflicting evidence upon the question whether the Charles William, being in good order and condition to carry a full cargo, could safely carry more than two hundred and twenty seven tons from Savannah, where it was known to the plaintiffs to be, to Boston.</p> <p>Perkins, J. instructed the jury that the agreement did not bind the defendant to deliver three hundred tons absolutely ; but that if the defendant, in good faith, carried and delivered to the plaintiffs a full cargo, as much as the barque, being seaworthy, and in good order and condition, could carry from the port of shipment to the port of delivery, it was all that the agreement required, although the amount so delivered was only two hundred and twenty seven tons. The jury returned a verdict for the defendant, and the plaintiffs alleged exceptions.</p>

<p>A bill of lading for a specified number of tons of scrap iron, “marked and numbered as per margin,” and concluding “weight unknown to” the master, binds the ship-owner to deliver only so much as is actually shipped.</p>

<p>Action op contract by the consignees of railroad iron,.to recover back of the owners of the ship Annie, in which the iron was brought from Glasgow to New York, money claimed by the defendants and paid to them as primage under bills of lading, stipulating for the payment of freight at a certain rate, “with primage and average accustomed.”</p> <p>At the trial in the court of common pleas, the plaintiffs offered to prove that, by the custom of Glasgow, no primage was payable on this shipment of iron. But Perkins, J. ruled that “ inasmuch as the bills of lading provided for the payment of freight ‘ with primage,’ this evidence was not admissible to control the express terms of said bills of lading.” The plaintiffs submitted to a verdict for the defendant, and alleged exceptions.</p> <p>The question argued was, whether the bills of lading required the payment of primage, absolutely, and without regard to custom.</p>

<p>Action of contract against the general owners of the schooner Barnstable, for supplies furnished to Joshua G. Chase, her master, on the 15th of May 1852, to victual the schooner, and charged in the plaintiffs’ books to “ Schooner Barnstable and owners, Capt. J. G. Chase.”</p> <p>On the 15th of March 1852, the defendants and Chase had made an agreement in writing, by which he agreed to take the schooner, and employ her in freighting and fishing for the season ; and to take, out of the gross receipts, seven per cent, for his commissions, and the port charges, and divide the remainder equally between himself and the defendants; and the defendants agreed “ to pay all necessary repairs and bills on the vessel to keep her in good order for the business.”</p> <p>The parties submitted the case to the decision of the court upon these facts.</p>

<p>Action of contract to recover the price of spirituous liquois sold to the defendant by the plaintiff without other authority than a license granted by the mayor and aldermen of Boston, purporting to be in force from the 5th of May 1852 to the 1st of April 1853, and for which the plaintiff had paid one dollar to the city clerk, pursuant to Rev. Sts. c. 47, §§ 17-20. Some of the sales were made before, and some since the St. of 1852, c. 322, took effect.</p> <p>The parties submitted the case to the court upon these facts, with an agreement that if the sales made since the St. of 1852, c. 322, took effect were invalid, judgment should be rendered for the plaintiff for $19.24; if they were valid, for $111.17.</p>

<p>Action of contract upon a factor’s account, rendered in St. Louis, in the State of Missouri, where both parties resided, with interest charged at ten per cent.</p> <p>At the trial in this court, the plaintiffs offered evidence that it had been agreed between the parties that in all their mutual accounts interest should be reserved and paid at ten per cent., and claimed the right to recover interest at that rate.</p>

<p>An assessor, to whom a case is recommitted to reassess the damages according to a rule laid down by the court, may proceed to assess the damages without a rehearing, if the '•ase was previously fully heard before him.</p>