Volume 72 — Massachusetts Reports

Indictment on St. 1852, c. 322, § 12, for being a common seller of spirituous and intoxicating liquors. At the trial in the municipal court, at January term 1855, there was evidence tend” ing to prove deliveries of such liquor from the defendant’s shop in South Boston to various persons at .different times ; but there was no evidence that any of it had been paid for.

<p>Embezzlement. The indictment alleged that the defendant, on the 13th of July 1855, at Boston, “ was entrusted by one Henry Scott with certain property, the same being the subject of larceny, to wit, two gold coins, called twenty dollar gold pieces, of the value of twenty dollars each; one gold coin, called a gold dollar, of the value of one dollar; one purse, of the value of twenty five cents; the property of said Scott; and to deliver the same to said Scott on demand; ” and afterwards, on the same day, at Boston, “ refused to deliver the said money and other property, described as aforesaid, to said Scott, so delivered to him the said Smart, as aforesaid, and feloniously did embezzle and fraudulently convert to his own use, the same then and there being demanded of said Smart by said Scott; whereby and by force of the statute in such case made and provided, the said Smart is deemed to have committed the crime of simple larceny. And so,” the indictment alleged, the defendant “ then and there, in manner and form aforesaid, the said money and other property, the property of the said Scott, from the said Scott feloniously did steal, take and carry away, 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, moved in arrest of judgment, because of the insufficiency of the indictment. Bishop, J. overruled the motion, and the defendant alleged exceptions.</p>

<p>An estate in fee, limited by will, after an estate tail, is a remainder and not an execu tory devise.</p> <p>A devise of real estate to one and his heirs, and, in case of his dying without issue then to another, creates an estate tail in the first devisee, with remainder over to the second.</p> <p>A testator directed the residue of his estate, real and personal, to be divided into nine equal shares, and gave eight of his children “ one of the said shares each, to have and to hold the same to their own use and behoof forever, and that of their several and respective heirs and assigns forever; it being my express will and intention, in case of the decease of either of my said children without issue, the share of such deceased child or children shall be equally divided to and among his or her surviving brothers and sisters; ” and gave the other ninth to a trustee for the use of his remaining child for life, “ and, in case of his decease without issue, to divide and distribute the said share equally among my other children, as provided in the last item, but, in case my said son die leaving issue, then to divide and distribute said share to and among said issue.” Held, that each of the eight children first named took an estate tail in the real estate, with cross remainders over to the other brothers and sisters.</p>

Bill in equity to enforce the specific performance of a written contract.

Bill in equity by the administrator of John Hancock, Jr. to redeem an estate on the corner of Court Square and Williams Court in Boston, and known as Massachusetts Block, from a mortgage made by Edmund N. Clark to the defendant on the 12th of December 1846, and conditioned to pay the sum of $31,800 in five years, with semiannual interest, and meanwhile to keep the premises insured, and pay the taxes thereon.

Action of tort, originally brought by the plaintiff and wife, and, upon her decease, prosecuted by him alone, after taking out letters of administration on her estate.

<p>The provision of the Rev. Sts. c. 37, § 42, which prohibits any foreign insurance company from insuring in this state, unless restricted from insuring in any one risk moro than one tenth of their capital, does not apply to mutual insurance companies.</p> <p>The failure of a foreign insurance company to file the statement required by Rev. Sts. c. 37, § 41, with the treasurer of the Commonwealth on the first Monday of January does not avoid a contract of insurance, made by them in this commonwealth within the following year, and after a compliance with that section.</p> <p>A statement filed by a mutual fire insurance company with the treasurer of the commonwealth, stating the amount of capital, and that it consists entirely of premium notes, and the amount of cash received, and referring to an annexed copy of their charter, which provides that every policy shall create a lien on the property insured to secure the payment of the deposit note, sufficiently states the whole amount of premium on the risks insured, what portion of it has been paid in cash, and what security has been taken for the remainder, as required by St. 1847, c. 273, § 3.</p>

Action of contract by a foreign mutual life insurance company on a promissory note payable to them or order.

<p>Actions of contract by a mutual fire insurance company, to recover the amount of an assessment upon the defendants, and of deposit notes signed by each of them contemporaneously with receiving a policy of insurance from the plaintiffs on real estate, and payable to the plaintiffs “ in such portions and at such times as the directors may, agreeably to their by-laws, require.” The cases were submitted to the decision of the court upon the following facts :</p> <p>The plaintiffs were incorporated by St. 1848, c. 284, “ with al, the powers and privileges, and subject to all the duties, liabilities and restrictions, set forth in the thirty-seventh and forty-fourth chapters of the revised statutes.” Those articles of their by-laws, which are material to these cases, are copied in the margin.*</p> <p>On the 17th of March 1853, the directors passed the following vote: “ Voted, that whereas members of the corporation have just claims upon the corporation, founded upon policies issued by it, exceeding the amount of its existing funds and deposit notes, therefore all the corporation deposit notes be collected ; and in addition thereto, that an assessment be laid, and the same is hereby laid on each member of the corporation, of a sum equal to an hundred and thirty per centum of the amount of his premium and deposit notes paid and made on his existing policy, and that the same be notified to the members, and collected in accordance with the 25th article of the by-laws.”</p> <p>The amount of funds of the company, consisting of premium and deposit notes, then amounted to about one fourth of the amount of their liabilities. Pursuant to this vote, the defendants were assessed for their proportion of all the outstanding claims against the corporation, including all liabilities for expenses of the company, and for losses, at various times from the 8th of August 1850 to the date of the assessment, some thousands of dollars of which accrued before Houghton’s insurance was effected; but all after Hunt received his policy. In making the assessment, no regard was had to the dates or duration of the respective policies; and no distinction made between policies on real estate and on personal property, or between deposit notes and deposits of money.</p>

<p>A railroad corporation voted to issue six hundred additional shares, and to allow each stockholder to take one new share for every two shares already held by him, provided he should by a certain day subscribe therefor, and pay a part of the price, and give notes for the remainder. Eeld, that there was no implied condition, that the whole number of six hundred new shares should be issued; and that the failure of the corporation to issue that number was no ground for maintaining an action by a stockholder, to recover back money so paid by him, nor for defeating an action on notes so given by him.</p>

<p>Action of contract upon this guaranty: “ Boston, April 25th 1850. For and in consideration of eighty dollars received of Joseph A. Veazie, I hereby guaranty the payment of a note signed by Edmund Boynton, and payable to George Lambert, and by him indorsed, also indorsed by B. F. Wellington and Charles M. Reed. The amount of said note is one thousand ninety eight dollars Note dated December 26th 1849, and payable in six months. Clement Willis.”</p> <p>The case was submitted to the judgment of the court upon the following facts, with an agreement that the court might draw such inferences therefrom as a jury might draw:</p> <p>On the 25th of April 1850, Charles M. Reed, a broker, called on the plaintiff and offered him for sale a paper purporting to be a promissory note for $1098.41, dated at Boston, December 26th 1849, payable in six months after date, to the order of George Lambert, signed “ Edmund Boynton,” and indorsed “ Geo. Lambert, B. F. Wellington, Chas. M. Reed; ” and left it with Veazie for examination and inquiry. The plaintiff' called on the defendant, showed him the note, and inquired for what sum he would indorse it. The defendant took from the plaintiff a memorandum or written description of the note, and earned the memorandum to B. F. Wellington, one of the indorsers, who was a clerk in the employ of Lambert, for the purpose of inquiring concerning said note; and Wellington informed him that there was such a note, and that it was genuine business paper; and also told him that there was a genuine note signed by Boynton and indorsed by Lambert; and the defendant supposed that to be the same note.</p> <p>The defendant thereupon informed the plaintiff that he would guaranty said note for the sum of eighty dollars; but that he would not indorse it, as he did not wish his name to appear upon paper bearing the name of Charles M. Reed, who was then insolvent. This guaranty was accordingly written, signed and delivered by the defendant to the plaintiff, who paid him therefor the sum of eighty dollars, and at the same time purchased the note from Reed for a valuable consideration.</p> <p>The signature of Edmund Boynton and the indorsement of George Lambert upon the note were forgeries; the indorsements of B. F. Wellington and Charles M. Reed were genuine; and the fact that said signature and indorsement were forged was known only to Wellington, neither Reed, Veazie nor Willis having any reason to suspect that fact.</p> <p>When the plaintiff purchased said note and procured said ' guaranty, there was not, and there never has been in existence any other note of the tenor of that described in the guaranty, indorsed or purporting to be indorsed by Wellington and Reed ; but there was in existence a genuine note of the same date and tenor, signed by Boynton, and purporting to be indorsed by Lambert only.</p> <p>At the maturity of the note in question due demand was made on Boynton, and due notice of nonpayment was given to the indorsers, Lambert, Wellington and Reed, and to the defendant. On the day of its maturity, the note was presented to the defendant, and payment demanded. The defendant declined payment, stating that, although he had no doubt that the note was the one which was alluded to in the guaranty to the plaintiff, and which was shown to him by the plaintiff, yet he had ascertained that neither the signature of Boynton nor the indorsement of Lambert was genuine, and that therefore he was not bound to pay the note; and no part of said note has been paid. Edmund Boynton, at the maturity of said note and for a long tim| after, was solvent.</p> <p>This case was argued at November term 1855.</p>

Action of tort by a former agent of the Female Medical Education Society against the directors of that society for an alleged libel published in 1852, at the end of their third annual report, as follows: “ Caution to the Public. “ The directors regret to be again obliged to caution the public against a Mrs. Helen Maria Gassett, alias Helen Maria Bice, who, under the former name, was recommended to the society, and was for a time employed as an agent, but was found unworthy…

<p>One who has advanced money to a merchant, to enable him to purchase merchandise, • taking as security therefor, pursuant to agreement with him at the time of the advances, bills of sale from the vendors, and also, from the debtor, assignments of the bills of lading, and, upon the arrival of the merchandise, bills of sale thereof, and has afterwards allowed the debtor to sell it in the usual course of his business as if he were the owner thereof, may take possession of the merchandise at any time in order to secure his debt and such taking of possession, though at a time when the debtor is known to himself and the creditor to be insolvent, and within six months of the commencement of proceedings in insolvency, is effectual, notwithstanding St. 1841, c. 124, § 3.</p>

<p>On a writ of entry, to which the tenant pleads the general issue, with a specification oi defence claiming title to part of the demanded premises, and disclaiming as to the residue, a verdict that “ the tenant did not extend his building over land of the demandant ” is a good finding in favor of the tenant as to the part claimed by him, since the St of 1836, c. 273, abolishing special pleading.</p> <p>Land occupied and improved by buildings or other structures designed for a particular purpose, which comprehends its beneficial use and enjoyment, will pass by words which describe that purpose.</p> <p>A conveyance in fee of a house and land and “ also a well of water, with the curbs, pumps and all utensils belonging to them, as the same now stands in my other land, and a right at all times to pass and repass to and from the said well of water through my said other land, and to set up shears or any other machine on my said land for the purpose of repairing said well of water and the pumps therein, whenever the grantee may think proper so to do; reserving to myself and my heirs and assigns the free and uninterrupted privilege of the hand pump in the aforesaid well, and of the said well and water at all times,” passes a fee in the land oceupied by the well.</p>

<p>The death of a debtor, pending an action in which he has given bond to dissolve an attachment, and the representation of his estate as insolvent, will not prevent the creditor, after summons to the administrator, and his failure to appear, from taking a judgment against the goods and estate of the debtor in the hands of the administrator, which will fix the liability of the sureties on the bond.</p>

<p>A mortgagee of real estate, to whom policies of insurance, obtained by the mortgagor, to an amount exceeding the mortgage debt, and by him assigned to a subsequent purchaser of the equity of redemption, are assigned by the latter as collateral security for the payment of the mortgage debt, with a stipulation in the assignment that “ any surplus of the proceeds of said policies is to be paid to ” a certain creditor of such owner of the equity, is not liable, on receiving such surplus from the insurers, to an action for the surplus by such creditor, nor to be changed therefor as his trustee in foreign attachment.</p>

<p>The lessee of the interest of one tenant in common does not, by occupying the whole estate, render himself liable for use and occupation to another tenant in common, to whom he has not attorned, and to whose occupation of his share of the estate he has never objected.</p>

<p>Under a written contract to perform, for a fixed quarterly salary, all the duties of general agent of a manufacturing corporation, one of which, specified in the contract, is tcrender monthly accounts of the funds in his hands, a failure so to render accounts will not defeat his right to recover his salary while he remains their agent.</p>

Action of contract, in the nature of covenant broken, upon a covenant contained in a deed of land in Illinois, made on the 27th of July, 1838, by the defendants, then and ever since re- ' siding within the Commonwealth, to Edward Hall, Jr. and William Hall, under whom, through several mesne conveyances, the plaintiff claimed.

Replevin of chattels claimed by the plaintiff under two mortgages from Elisha Woodbury, and attached by the defendant, a deputy sheriff, as Woodbury’s property. At the trial in the court of common pleas before Mellen, C. J., the plaintiff offered the mortgages in evidence, and proved their execution.

<p>To a writ of entry to foreclose a mortgage, a previous entry to foreclose is not admissible in defence, under the general issue, to show that the tenant was not in possession of the demanded premises; and, it seems, would not be a bar, under any pleadings.</p>

<p>Bill in equity, filed on the 11th of April 1854, to redeem land from a mortgage under which the defendant had duly entered for foreclosure on the 11th of April 1851. Demurrer, on the ground that the defendant had been in peaceable possession three years before the filing of the bill.</p>

<p>Under the Rev. Sts. c. 7, an unmarried womay., an inhabitant of this state, is not taxable here for the principal or income of shares in corporations, held in trust by trustees residing in another state, to pay the income to her.</p> <p>An inhabitant of this state, who has no personal property or taxable income, may maintain an action against the city of his residence to recover back a tax unlawfully assessed to him on property held in trust for him.</p>

<p>Action of tort against a deputy sheriff for taking goods of the plaintiff on writs against Patrick H. Hayden.</p> <p>At the trial in the court of common pleas at January term 1854, there was evidence of the following facts: About a month before the taking complained of, the plaintiff purchased of Hayden a stock of furniture in a shop on Washington Street in Boston, at the price of about $2,000, and gave his note therefor, and entered into and continued in possession thereof, making sales at retail, and making new purchases of furniture from other persons, from time to time, to the amount of about two hundred dollars. The defendant attached and sold all the goods in the shop as Hayden’s property; and now introduced evidence tending to show that the sale by Hayden to the plaintiff was fraudulent as against creditors. It did not appear that the defendant, at the time of the taking; inquired whether there were any other goods in the shop than those bought of Hayden, or then, or afterwards and before the sale, gave the plaintiff notice that he claimed the right to attach only the goods purchased of Hayden, or asked him to point out the goods so purchased; or that the plaintiff offered to point them out. The plaintiff claimed all the goods.</p> <p>Wells, C. J. instructed the jury “ that, inasmuch as the plaintiff had allowed the goods subsequently purchased by him to be intermingled with the like property purchased by him of Hayden, and had not discriminated to the defendant between the goods purchased by him of Hayden and those purchased of other parties, nor pointed out to him such goods subsequently purchased, nor made a separate demand for them, other than a general demand for the whole, if the jury found the original sale to the plaintiff from Hayden tainted with fraud, they must find a verdict for the defendant, and the plaintiff could not recover for the goods purchased by him of other parties than Hayden.”</p> <p>The jury found a verdict for the defendant, and the plaintiff alleged exceptions.</p>

<p>One claiming property of a deceased person," under a gift causa mortis, is not affected by decrees of the probate court, charging the administrator with the property, and ordering it to be distributed among the next of kin; and therefore cannot appeal from such decrees, although he appeared and produced witnesses in that court.</p>

<p>A plaintiff recovered judgment in the circuit court of the United States for a certain amount of damages and costs, a blank for which last was left in the record; and that court afterwards, on the plaintiff’s motion, completed the record by inserting the amount of costs, and allowed a writ of error to the supreme court of the United States, upon the defendant’s giving bond reciting that the plaintiff had recovered judgment against him, and conditioned to prosecute his writ of error, and if he should fail to obtain a reversal of the judgment, then to pay the amount of the judgment. Held, that on the dismissal of the writ of error by the supreme court of the United States, the defendant was liable, under his bond, for the amount of the original judgment, as subsequently amended by inserting the amount of costs.</p> <p>Taking out execution on a judgment is no waiver of the right to bring an action on a bond, given upon suing out a writ of error, to pay the amount of the judgment, if not reversed</p>

Bill in equity by the administrator with the will annexed of Elizabeth Cobb, to obtain the instructions of the court concerning the disposition of personal property held by him undei the following clause in said will: x “ All the residue and remainder of my estate, real and personal, wherever the same may be situated, I give, devise and bequeath to my grandson Nathaniel Ripley Cobb, to have and to hold the same to him, his heirs and assigns for ever; and I hereby appoint…

Assumpsit on the following instrument: “ Boston, January 8th 1848. Whereas Mr. Arnold W. Taylor has signed a note for five hundred dollars, payable to Davis W. Eussell, and has received five shares in trust of the St. Croix Falls Co. as security, now therefore I hereby agree to pay said note and receive said shares in case said Davis W. Eussell fail so to do in twelve months from date.

<p>By an agreement in writing, a firm of two machinists, in consideration of an individual’s undertaking to solicit and procure for them contracts for making locomotive engines and tenders, agreed to “ allow and pay to him a commission of two and a half per cent, on all their locomotive business, computing the same upon the total amount of sales of locomotives and tenders manufactured and sold by them during the term of five years from the date;” and it was stipulated that if a new partner should be admitted into the firm at any time after the expiration of three years, and should object to the continuance of the agreement, it should be null and void. Held, that after a dissolution of the partnership, and a verbal continuance of the agreement with one of the partners, and after the expiration of the three years, the formation of a new partnership between that partner and a third person, who objected to the continuance of the agreement, terminated the agreement; and that no commissions were payable on engines then commenced, but not finished or paid for, though made under contracts procured by such solicitations.</p>

<p>The indorsee of one of two notes secured by a mortgage which is not assigned to him cannot maintain a writ of entry in his own name to foreclose the mortgage.</p>

<p>it seems, that a right of action for slander of a wife during coverture may be enforced by her in her own name after a divorce a vinculo.</p> <p>A decree of divorce a vinculo, obtained in another state, between parties residing in this state, for a cause which would not be a cause of divorce in this state, and at the suit of a party who went into that state for the purpose of obtaining it, is void in this state, by the Rev. Sts. c. 76, § 39; even if the other party appeared and answered to that suit. Evidence that a wife went into another state, and immediately, while she and her husband still resided in this state, applied for and obtained a divorce a vinculo for causes which would not be causes of divorce in this state, warrants the inference that she went into that state in order to obtain a divorce.</p>

<p>A judgment for the plaintiff in an action for one year’s interest due on a note payable “in one year, with interest annually,” is no merger of the principal debt, although already due.</p>

Action of tort for the conversion of two hundred shares in the plaintiffs’ capital stock. Trial before Merrick, J., to whose rulings the defendant alleged exceptions. The case is stated in the opinion.

<p>Action of contract on a policy of insurance, made by a mutual fire insurance company to Thaddeus Stone and Calvin Perry upon their buildings in Somerville, “ in case of loss, pay able to S. S. Jackson,” who was a mortgagee of the property and who had since assigned to the plaintiff, with the consent of the defendants, all his interest in the policy. Answer, a subsequent insurance, obtained without the consent in writing of the defendants’ president.</p> <p>Among the provisions of the by-laws of the defendants, to “ the conditions and limitations expressed in ” which the policy was made subject, were the following:</p> <p>“Art. 7. The president shall attend daily at the company’s office ; shall receive all applications for insurance ; shall examine alone, or jointly with any director, all the buildings or other property, in the city of Boston, which may be proposed to be insured, and fix the sum to be taken thereon, and the rates of insurance; and adjust and pay all losses, unless in cases where the opinion of the board of directors is required.” “ He shall exhibit to the directors, at each monthly meeting, a full statement of the affairs of the company, and cause the same to be recorded. He may submit any matter to the board of directors and ask their opinion thereon," and take the same by vote.”</p> <p>“Art. 15. All policies which may issue from this company, to cover property previously insured, shall be void, unless such previous insurance be expressed in the policy at the time it issues; and when a subsequent insurance shall be made by any other company, or by any person, on property insured at this office, without the consent of the president, in writing, and according to the terms in such consent expressed, it shall annul the said policy ; and the assured shall be entitled to such return of premium and deposit as is provided in article 23d.”</p> <p>“Art. 26. These articles shall in no case be altered, unless the intended alteration shall have been proposed at a meeting of the company, previous to the one at which it is to be acted on, and mentioned in the public notice of such meeting; and unless it shall be voted for by two thirds of all the members present at that meeting : Provided, however, if any alteration shall be deemed necessary before the next annual meeting, it may be made by the vote of two thirds of the directors, upon the same condition of notice as is provided in this article concerning the company.”</p> <p>At the trial, before Bigelow, J., the plaintiff admitted that Stone and Perry, after the assignment by Jackson to the plaintiffs, obtained other insurance on the property; but introduced evidence tending to show that the defendants, by their president and secretary, consented to the procuring of a subsequent insurance by Stone and Perry, before the second policy was made; that the subsequent insurance was verbally notified to the defendants, and verbally assented to by their president and secretary, who required only that the second policy should be brought to the office as soon as possible, for the purpose of having such consent indorsed; that Stone and Perry promised that it should be done, but did not have time to procure it before the fire ; and that the plaintiff, after the fire, and at the time of demanding payment of the loss, made a demand upon the defendants to have such consent indorsed on that policy. The defendants introduced evidence tending to show that no such consent was given. No written consent was proved or claimed.</p> <p>The jury, .upon the question being submitted to them, found specially that the defendants’ president had verbally waived the provision of the fifteenth article of their by-laws, and verbally assented to the subsequent insurance. And the judge reserved, for the whole court, the question whether upon the foregoing facts and the special finding of the jury, the plaintiff was entitled to recover.</p>

<p>A plaintiff, who, in a declaration against an insurance company on a policy issued by them by a name other than their own, “ subject to the provisions, conditions and limitations of the by-laws of said company,” avers that the policy was so issued, (which is admitted by the defendants in their answer,) is bound by the valid provisions of the charter and by-laws of the defendants.</p> <p>A provision of a by-law of a mutual fire insurance company, to which their policies are expressed to be subject, that any suit on a policy shall be brought in the county where the company are established, is not binding on the assured.</p>

Action of contract by an inhabitant of this county against a mutual fire insurance company established at Worcester by St. 1847, c. 115, and authorized by St. 1850, c. 225, to “ make insurance otherwise than on the mutual principle,” upon a stock policy, dated November 24th 1852, whereby they insured the plaintiff for one year “ two thousand dollars, to wit, $1,500 on his Exchange Hotel building, $500 on stable and shed adjoining, situated No. 248 Purchase Street in New…

<p>Actions of contract on two policies of insurance made by a mutual marine insurance company established at Boston by St. 1839, c. 129. By the first policy, which was dated November 15th 1852, the defendants caused the plaintiffs, “for whom it concerns, payable to ” the plaintiffs, “ to be insured, lost or not lost, ten thousand dollars on the Barque Esperanza, building at Perry, to take effect as soon as waterborne, at and from Perry, with liberty to proceed to Calais and to stop at Eastport, and at and thence to a southern port in the United States not south of New York.” By the other policy, which was dated January 1st 1853, the defendants caused the plaintiffs, “ for whom it concerns, payable to ” the plaintiffs, “ to be insured, lost or not lost, four thousand dollars on the Barque Esperanza, at and from Perry (with liberty to proceed to Calais and Eastport) to a port in the United States not south of New York.”</p> <p>On the face of each policy was the following printed clause: “And it is further agreed, that the parties effecting insurance with this company shall not be liable for any loss sustained by said company, beyond the amount of their premiums; and the absolute and contingent funds of the company, pursuant to the by-laws thereof, shall alone be bound for the payment of any loss; and in case of loss, the same shall be adjusted and settled according to the 29th section of the said by-laws ; and said bylaws are hereby declared to be a part of this contract of insurance ; and these presents shall themselves be a sufficient bar against any suit commenced against the company to the true intent and meaning of said 29th section of the by-laws.”</p> <p>Said twenty-ninth section was in these words : “ In case any difference or dispute shall arise in relation to any loss sustained, or alleged to be sustained, by the assured under any policy issued by this company, the same shall be referred to and determined by referees mutually to be chosen by the assured and the directors of said company, and if such referees cannot be mutually agreed upon, each party shall choose two referees, and the four shall choose a further number, not exceeding three, provided the first chosen cannot agree ; and no holder of any policy shall be entitled to maintain any action thereon against said company until he shall have first offered to submit his claim to said reference.”</p> <p>The only other provision of the by-laws necessary to be stated is the following, from the twenty-fourth by-law: “ The president shall, at the expiration of each year, cause a balance to be struck of the affairs of the company, in which he shall charge each person who has been insured with a proportionate share of the losses and expenses of the said company, according to the amount of the premium paid or secured to be paid by him on or for risks which have then terminated; but in no case shall such share exceed the amount of such premium; each member shall be credited with the amount of said premium, and also with an equal share of the profits of said company, in proportion to said premium.”</p> <p>At the trial before Thqmas, J., it appeared that the plaintiffs had no interest in the barque, but were authorized to insure for the owners, and that these actions were brought for their benefit.</p> <p>There was also evidence of the following facts: The barque was built at Perry, and launched (waterborne) there on the 14th of November 1852, and three or four days afterwards towed three miles down the St. Croix River to Eastport, wb-/V some trifling things were done to the hull, and she was painted, rigged and fitted for sea. It is usual to take vessels from Perry to East-port, to rig them and fit them for sea. The barque sailed from Eastport on the 11th of January 1853, with a competent master, mate and crew, and a cargo of laths, for New York, and was stranded on the 14th of January on the New Jersey shore.</p> <p>On the 21st of January the plaintiffs offered and claimed a right to abandon for a total loss. The defendants refused to accept the abandonment; but took the barque to New York, repaired her, and on the 1st of April gave written notice to the owners of the barque that she was repaired, and that they thereby delivered her to them; to which the owners replied, reaffirming the abandonment and declining to have any thing to do with the vessel. The vessel was afterwards sold under a decree in admiralty to satisfy the liens of the workmen; and the smplus, after discharging the liens, paid into the registry of the court of admiralty.</p> <p>The defendants introduced evidence tending to show that the vessel was not seaworthy, by reason of insufficient and improper construction; and that at the time of the offer to return she had been suitably repaired. The plaintiffs introduced evidence tending to show that the vessel was properly constructed ; and was seaworthy at Eastport for a cargo of laths to New York; and that the repairs made by the defendants did not make good the damage done by the stranding.</p> <p>The defendants relied upon the following grounds of defence:</p> <p>1st. That the plaintiffs, having no interest in the barque, could not, by an insurance in then: own names, payable to themselves, become members of the defendant corporation; because the defendants were not by law competent to insure persons having no interest, as they would not have a right, under such an insurance, to deduct from the loss the amount which might be due from the owner of the property on other transactions.</p> <p>2d. That the policies never attached ; (1.) as to the first policy, because it was, by its terms, to attach upon a subsequent event, namely, upon the barque’s being waterborne, which in fact took place on the day before the execution of the policy; and (2.) as to both policies, because the voyage underwritten was a “ voyage at and from Perry,” and the barque never sailed from Perry as a finished vessel; (3.) because the vessel was never seaworthy at Perry. And they asked the judge to rule, that the plaintiffs were not entitled to recover unless the vessel was seaworthy at Perry, and sailed therefrom, as a finished vessel, to a port in the United States not south of New York.</p> <p>3d. That the plaintiffs had not made a demand, before suit, upon the defendants, to apply or deliver to the plaintiffs the funds which, by the contract, were applicable to the payment of the plaintiff’s supposed loss ; nor proved that there were any such funds in the possession or control of the defendants.</p> <p>4th. That the provisions in the policy and twenty-ninth bylaw, for adjusting the loss and submitting to arbitration any dispute in relation thereto, affected the right, and not the remedy, and were valid and binding on the assured; and that the plaintiffs, as a condition precedent to any right of action, must show an offer on their part to adjust their claims in the mode thus prescribed.</p> <p>But the judge declined to sustain any of the positions taken by the defendants; and instructed the jury “ that it was not necessary for the plaintiffs to show that, when the barque left Perry, she was seaworthy for the voyage to New York; that the policy in the first case was to attach and take effect when the vessel was waterborne; and that the parties must, of course, have understood that, after she was launched, further labor and materials would be necessary to fit her for her voyage to New York; that, under the first policy, if the barque was in a condition to be towed safely to Eastport, it was a compliance with the implied condition of seaworthiness, so far as the proceeding from Perry to Eastport was concerned; and if, upon her arrival at Eastport, she was equipped and made seaworthy for the voyage to New York, the duty of the plaintiffs in this regard would be discharged; that it was sufficient for the plaintiffs to show that, when the barque left Perry, she was in a fit condition to proceed to Eastport, and, when she left Eastport, in a fit condition to proceed on her voyage to New York; and the plaintiffs might recover on both policies.” The jury returned a verdict for the plaintiffs for the full amount of both policies, and the judge reported the cases to the full court.</p>

<p>Action of contract on a policy of insurance. Tiial before Merrick, J., who took a verdict for the plaintiff, and reported the case to the whole court. All the facts necessary to the understanding of the points of law decided are stated in their opinion, drawn up by</p>

<p>Action of contract on a policy of insurance, dated June 14th 1853, whereby the defendants caused “ the E. Carver Com* pany to be insured, lost or not lost, twenty five thousand dollars on cotton gins and bandings on board of any steamer or steamers, at and from New York to New Orleans. All sums placed at risk under this policy are to be indorsed thereon, and this policy is to be closed in twelve months, if not sooner filled. Gins and bandings valued at $250.00 each, including premium.” The indorsements on the policy are copied in the margin.* Trial before Thomas, J., who reported the case to the full court. The substance of the report, and so much of the evidence as is material to the understanding of the points of law decided, are stated in their opinion.</p>

Assumpsit on a policy of insurance dated October 19th 1847, on the brig Sussex, for one year from the 24th of September 1817 at noon. The grounds of defence relied on were, 1st. A breach of the warranty contained in this clause on the face of the policy: “ Said vessel not allowed to carry grain in bulk across the Atlantic; ” 2d. False representations of the plaintiff’s agent at the time of effecting the policy.

<p>Under the Rev. Sts. c. 60, § 26, fourteen days’ notice to quit for nonpayment of rent due on a lease at will entitles theo landlord to maintain an action on the Rev. Sts. c. 104, to recover possession of the premises, without proof of a demand of the rent when it fell due.</p> <p>The landlord’s right to commence, on the expiration of a notice to quit for nonpayment of rent, an action on the Rev. Sts. c. 104, to recover possession of premises leased at will, is not barred by payment of the rent on the day after the giving of the notice, though before the commencement of the action, if the landlord, -yhen receiving payment, expressly reserves his rights under the notice.</p>

<p>A written agreement,made without the lessor’s consent, between the assignor and assignee of a lease which contains a covenant against assigning or underletting without such consent, that a third person shall occupy a part of the premises during the term of ths lease, on the conditions that he pays rent therefor to the assignee, and “ that the said assignee can, by virtue of said lease, allow him to occupy said part without restraint and damage to said assignee, and not otherwise,” is in the nature of an underlease to such third person, and entitles him to hold the premises, (especially as against one to whom the lease is subsequently assigned without such consent,) until the lessor enters for breach of covenant, and determines the lease.</p> <p>The use, for the manufacture of caps, of premises leased “ to be occupied for the same purposes they now are,” and which were occupied at the time of the lease for the manufacture of carpet bags, is not such an alteration in the occupation as will avoid the lease.</p> <p>Eviction of a tenant by his landlord from part of the premises demised by a written lease for one entire rent is a bar to any claim by the landlord for rent under the lease.</p> <p>Whether a tenant, who has been evicted by his landlord from a part of the premises held by him under a written lease for one entire rent, is liable for the use and occupation of the residue, qitcere.</p>

<p>Action of tort for false imprisonment. The declaration alleged that Locke caused Jewett to be arrested on a writ in a civil action, and Jewett gave bail, and was discharged; and Locke, on the next day, well knowing the fact of the prior arrest, wrongfully caused him to be arrested again on a second writ for the same cause of action.</p> <p>The answer denied all the allegations of the declaration; and averred that, if Jewett was arrested on two writs, as alleged, he was rightfully arrested; that the first action was discontinued, and notice of the discontinuance given to Jewett, before the commencement of the second action; and that the discontinuance of the first action was made necessary by reason of the insufficiency of the bail which was procured to be taken by the false and fraudulent representations of Jewett.</p> <p>At the trial in the court of common pleas, before Perkins, J., the plaintiff, after reading the declaration and answer, and before opening his case to the jury, suggested to the court that the answer set up two inconsistent defences ; and moved that the defendant be required to elect upon which he would rely. But the court refused to grant the motion at that stage of the case.</p> <p>The plaintiff introduced evidence tending to show that the two writs upon which he was arrested were for the same cause of action; that the second was duly entered in the court ■ of common pleas; that he, not appearing therein, was defaulted, and the case continued for judgment, and so stood upon the docket at the time of the trial of the present case, when, upon motion of Locke, the court, against the objection of Jewett’s counsel in this case, ordered the continuance to be stricken off, and judgment entered upon the default.</p> <p>The defendant now offered the bill of particulars and the record of the judgment in that action, as evidence of the identity of the two causes of action. The plaintiff objected, but the court admitted them.</p> <p>The defendant introduced evidence tending to show that the sureties in the bail bond given in the first action were utterly insolvent at the time of giving bond, and that Jewett knew it; that Locke discontinued his first action, and notified Jewett thereof before the commencement of the second action. It appeared that this notice was given to Jewett through the constable who served both writs.</p> <p>The plaintiff contended that the notice was insufficient, and could not be relied on here, “ because it was illegal for the officer to do an act of this kind, under the statute and common law of the State.” But the court ruled that the officer might serve such notice.</p> <p>The court, among other instructions, directed the jury, “ that it did not follow from the mere fact that there had been a second arrest of the plaintiff in this suit, upon a writ which included items sued for in the former writ, that the defendant would be liable in this action; that if the defendant, acting in good faith and with no view to oppress or injure this plaintiff", found that the bail bond taken in the former suit was worthless, he might discontinue his former suit, give notice thereof to the defendant in that suit, commence a second action, and make a second arrest; and if all this was done in good faith, with an honest purpose to collect his demand, and with no view to harass, vex ,or injure the defendant in said first and second suits, then the jury would be justified in finding a verdict for the defendant.” The verdict was for the defendant, and the plaintiff alleged exceptions.</p>

<p>Action of tort for a wrongful arrest and false imprisonment of the plaintiff. The defendant, in his answer, admitted the arrest and imprisonment, but alleged in justification that he thus arrested and imprisoned the plaintiff by virtue of legal process; and on that allegation'the plaintiff, in his replication, took issue.</p> <p>At the trial in the court of common pleas, before Bishop, J., there was evidence tending to show that the defendant was a constable, and had in his hands, at the time of the arrest, an unsatisfied execution against the plaintiff, and made the arrest thereon. The execution was produced, with this return thereon, signed by the defendant: “ By virtue of the within execution I have made diligent search for the goods, chattels and lands oí the within named George Munroe, but could find none in any precinct, whereupon I might levy and satisfy this execution. I therefore, by direction of the plaintiff’s attorney, return this in no part satisfied.” By a memorandum on the execution, it appeared that, by request, the execution had been renewed, and a pluries issued to the creditor.</p> <p>The defendant offered evidence tending to prove that, at the time of the arrest, the plaintiff informed him that he had a writ of protection; that he went with the plaintiff to the clerk’s office to find it, but could find none; that, on further search, the plaintiff found among his papers one that he relied upon as a writ of protection, and claimed his discharge, and that the defendant, after examining it, discharged him. There was no other evidence of any writ of protection.</p> <p>The plaintiff objected, that the defendant, upon this evidence, had failed to make out his defence; and requested the judge to instruct the jury “that, as the answer admitted the arrest, and justified under legal process, the defendant could only maintain such justification by return of the process, setting forth the arrest, and the discharge of the prisoner under a claim of a writ of protection.” But the judge refused so to instruct, the jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

Action of tort against a deputy sheriff to recover the value of a drove of cattle attached and sold by him as the property of the plaintiff, on a writ sued out by Avery Wellington. At the trial in this court, before Thomas, J., it appeared that in that action Wellington became nonsuit, and that Small’s authorized attorney afterwards received of Sumner the sum of ¡¡>786.75, and signed and delivered to him this receipt: “ Boston, 23d March 1849.

<p>A payment by a trustee in foreign attachment to the plaintiff, made after the expiration of thirty days from final judgment, without any demand having been made upon him by force of an execution, and after the principal defendant has sued him for the amount, cannot be set up in defence to that suit.</p>

<p>Two Insolvent partners, who, upon the superseding of proceedings in insolvency against them by the consent of all parties interested, have released their assignees in insolvency from “ all debts, demands, actions and causes of action, and from all contracts, liabilities, doings and omissions in any way connected with or relating to ’’ the proceedings in insolvency, cannot afterwards maintain an action against the assignees for a part of the property assigned to, and not accounted for by them; even if the assignees, contemporaneously with the release, executed an assignment of all such property to one of the debtors.</p>

Action of tort. The declaration averred that the defendants, not having any reasonable or probable cause of action against the plaintiff, but wrongfully and unjustly contriving and intending to harass, oppress and injure the plaintiff, and to seize and detain the property of the plaintiff without warrant of law, but under the color of void legal process, falsely and maliciously caused and procured to be sued out of the justices’ court for the county of Suffolk a writ of…

<p>W. & Co. addressed P. in writing in these terms: “ Buy such wool as you think best adapted for them who will give us the most for it, paying for the same in drafts on us, sending all the wool to us, and half profits, half per cent, per pound to be allowed you for buying in the country, and we to be paid two and a half per cent, commission for guarantieing sales, and the sales to be made in season to meet payments. We could also wish that you have no operation of the same kind (joint account) with any body else. Transactions of the above named kind to be repeated through the season, as often as may be thought for mutual benefit. P. bought of-and to he consigned to W. & Co." Held, that P., in purchasing wool under this agreement, was either the agent of W. & Co., or a joint contractor with them; and, his nonjoinder not having been pleaded in abatement, that the seller might maintain an action against them for wool so sold.</p> <p>The payee of a bill of exchange, acceptance and payment of which have been refused, may surrender the bill, and maintain an- action on the debt for which the bill was given.</p> <p>The protest of a bill of exchange for nonacceptance and nonpayment may be proved by the admission of the drawee.</p>

Action of contract, commenced by James Brown, and prosecuted by his executors, on a bond for the liberty of the prison limits. Answer, a certificate of discharge of the debtor from imprisonment by taking the poor debtors’ oath.

<p>The erection of a wall upon his own land, by the owner of land in a city, in such a manner as to obstruct the access of light and air, as it has existed uninterruptedly for twenty years, to windows in the cellar and lower story in a building ten feet within the boundary line of his neighbor, gives no cause of action, if the windows are not substantially deprived of light.</p>

<p>Want of actual intent to vilify is no excuse for a libel.</p> <p>The fact that the person libelled has failed to prosecute for a previous publication of a libel is no bar to an action for a new publication thereof.</p> <p>Publication of a libel is not excused by the publisher’s ignorance that it contains libellous matter.</p> <p>& discourse, delivered pending the canvass for an election of a member of congress, upon the opinion and decision of a commissioner of the circuit court of the United States, remanding a fugitive from service, under the fugitive slave law, and upon the expediency and constitutionality of such a law, and containing passages accusing the commissioner of “legal Jesuitism,” of prejudice and want of feeling, of “a partisan and ignoble act,” and comparing him to Pilate and Judas, is not a privileged commr.m cation.</p>

<p>One good assignment of perjury will support a general verdict of guilty, although the other assignments in the indictment are defective.</p> <p>An indictment sufficiently charges perjury on the trial of a material question, by averring that upon a certain trial it became and was a material question whether certain chattels sold by the defendant to another person were so sold “ in part payment for” a certain debt “or in part payment for” a certain other debt; and that the defendant falsely swore that they were so sold in part payment of the debt first named; without adding any thing about the other debt.</p> <p>An indictment for perjury may embrace in a single count all the particulars in which the defendant is alleged to have sworn falsely.</p> <p>An indictment for perjury, by averring that upon a certain trial “ it became and was a material question, whether ” a certain fact was as stated, “ whether ” a certain other fact was as stated, “ whether ” a certain third fact was as stated, sufficiently states that each of the three questions is material, although neither the word “ and ” nor “ also ” is inserted between them.</p>

<p>Writ of entry. Trial in this court before Dewey, J,, who, after a verdict for the demandant, made a report of the case to the full court, the substance of which appears in their opinion.</p>

Action of contract by the treasurer of the Union Mutua. Fire Insurance Company, a corporation established by the laws of New Hampshire at Concord in that state, against an inhabitant of Sheffield in this county. The declaration set forth the following note: “ $50.

<p>Tools and implements, materials, stock and fixtures of a paper mill are not included in the exemption of St. 1855, c. 264, by which § 22 of the Rev. Sts. c. 97, is “so amended as to exempt from levy on execution the tools and implements, materials, stock and fixtures of the debtor, necessary for carrying on his trade or business,” to the amount of $600.</p>

Action op tort against the sheriff of this county, by one of his deputies, for the taking and conversion, by another of his deputies, of iron held under attachment by the plaintiff. Trial in the court of common pleas, before Byington, J., to whose rulings the defendant alleged exceptions. The facts are stated in the opinion.

<p>The right givrn to a widow by St. 1854, c. 428, to waive the provisions of her husband’s will within six months after probate thereof, and take the share to which she would have been entitled if he had died intestate, is a personal right, and does not pass to her representatives, though she die before probate of her husband’s will.</p>

<p>Writ of entry to foreclose a mortgage of land in New Marlborough, made by Mason Hollister to Benjamin Hollister, the condition of which was: “ Whereas the said Benjamin Hollister has this day conveyed to the said Mason the above described lands ; and the said Mason has agreed, in consideration thereof, to pay all the debts of the said Benjamin now due and owing from him to any person or persons whatsoever, not to exceed however in amount the sum of five hundred dollars, and to indemnify and save harmless the said Benjamin therefrom; and to maintain and support the said Benjamin and his wife Sarah Hollister, during their natural lives; also the said Mason has agreed not to convey the above described lands, without the consent in writing of the said Benjamin, to any person, during his natural life; and also that the three daughters of the said Benjamin, Philothete Hollister, Sarah Hollister and Lydia Hollister, shall have a home and a right in said house, so long as they shall remain single and unmarried; and it is agreed and understood that the said Mason shall have the use and improvement of the whole of said land during the life of the said Benjamin, if he well and truly perform the conditions of this deed. Now therefore, if the said Mason shall well and truly pay all the debts due from the said Benjamin to any person or persons whatsoever, not to exceed however in amount the sum of five hundred dollars, and shall indemnify and save harmless the said Benjamin therefrom; and shall well and truly maintain and support the said Benjamin and his wife Sarah Hollister with snfficient meat, drink, clothing, washing and lodging, and medicine • and medical attendance and nursing in case of sickness, and all other necessaries and conveniences of life suitable and proper to render their old age comfortable and happy; and in all respects shall provide for them, and the survivor of them, as a dutiful and affectionate son ought to do for kind- and affectionate parents ; and shall always provide for them, or either of them, a good and gentle horse for them to ride or drive at all times at their pleasure ; and shall also at all times provide for them room and fire by themselves, if they shall choose or request it; and shall not sell or convey any part of the above described land to any person or persons whatsoever during the life of the said Benjamin, without his consent first obtained in writing; and shall also provide a home for his said three daughters, Philothete, Sarah and Lydia, in said house on the premises, so long as they shall remain single and unmarried; and the said Mason reserves to himself the use and improvement of said lands so long as he keeps and performs the agreement above written; then this deed shall be void; otherwise, shall remain in full force and effect.” The facts of the case are stated in the opinion.</p>

<p>The widow of one of two tenants in common of land subject to a mortgage to secure the support of another person is entitled, the other tenant in common having purchased the husband’s share and paid off the whole mortgage in the husband’s lifetime, to. dower in her husband’s half of the land; and may obtain it, under Rev. Sts. c. 60, § 2, by action at law, deducting half the value of the mortgage at the time of its discharge.</p>

<p>ah action commenced before a justice of the peace on the day of the passage of a statute which vests the exclusive jurisdiction of all such actions, not already pending, in a police court, and is to take effect “ from and after its passage,” cannot be dismissed for want of jurisdiction, without proof that it was commenced at a later hour than the approval of the act by the governor.</p>

<p>Action of contract to recover the unpaid balance of a prom issory note for $200, payable to the plaintiffs, and signed bv M. S. Wilson as principal and the defendant as surety. The parties submitted the case to the decision of the court upon the following statement of facts:</p> <p>“ This was an accommodation note, discounted to the principal. He had, for two or three years previous to the making of the note, been accustomed to procure discounts at the bank, of similar notes, signed by various persons as his surety, to the number of three or four in each year. There was never any express agreement (unless it be inferred from the course of business) that these notes, including the one in suit, should not be paid at maturity; but there was an understanding with the principal debtor, that he might pay said notes in instalments, at intervals of sixty or ninety days, with interest in advance on the balance remaining after the payment of each instalment; and accordingly he was accustomed to pay and did pay said notes in this manner.</p> <p>“ Pursuant to this understanding, and without any new arrangement or special agreement in relation to the note in suit, the principal debtor, when the note became due, paid to the bank the sum of $50 and interest on the balance of $150 for sixty days in advance, and repeated such payments twice, at intervals of sixty days, as appears by the indorsements on said note.</p> <p>“ The defendant had no notice of any such arrangement or course of dealing between the bank and the principal debtor, and no knowledge, until after these transactions were completed, that the note in suit was not paid at maturity, or was in course of liquidation by instalments in the manner above set forth.”</p>

<p>Appeal from a judgment of the court of common pleas charging the trustees on their answer, which disclosed that the defendant had sold them a building in Lee, on condition, as expressed in the bill of sale, that they should “ pay for this building in writing paper at market price, delivered in New York in a reasonable time after they shall receive the order for the same,” and had authorized them to remove the building when they pleased; and that they had received no such order from the defendant for the delivery of said paper at New York.</p>

<p>A declaration for slander, which alleges, in the form prescribed by St. 1852, c, 312, that the defendant charged the plaintiff with a certain crime, “ by words spoken of the plaintiff substantially as follows,” is supported by proof that the defendant spoke words sub-‘ stantially, though not precisely like those set out in the declaration.</p> <p>On the trial of an action for slander, evidence that the defendant, on the day after the alleged slander, uttered similar words of the plaintiff, is admissible to prove malice.</p> <p>A declaration for slander by charging the plaintiff with adultery may be amended by leave of court, under St. 1852, c. 312, § 32, after the commencement of the arguments, by adding a count for charging the plaintiff with fornication by the use of the same words.</p>

<p>Action of contract upon a judgment. Trial in the court of common pleas before Briggs, J., to whose rulings the defendant Bodurtha alleged exceptions.</p>

Bill in equity, by the assignee of Russell & Woodworth, insolvent debtors, against Edward P. Woodworth and Walter McIntyre.

<p>Action of contract. Answer, a certificate of discharge in insolvency. At the trial in the court of common pleas, the plaintiff sought to avoid said certificate of discharge, on the ground that the defendant had procured the assent thereto of several of his other creditors by verbal promises to pay cheil debts in full. The defendant contended that a mere promise to pay the debt of a creditor at some future time was not a violation of St. 1848, c. 304, § 9. But Byington, J. ruled otherwise; the jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Real estate conveyed to all the members of a partnership, though purchased with tne funds of the partnership and used for partnership purposes, vests, at law, in the partners as tenants in common; and a failure to dissolve an attachment of such estate, made in an action on a note given by the two partners jndividually, after the dissolution of the partnership, will not render the partnership liable to proceedings in insolvency.</p>

Replevin of a yoke of oxen, two cows, two heifers, a cart, and an ox sled, the value of which was not stated in the writ.

<p>Action at law, praying for relief in equity, under St. 1853, c. 371. The declaration contained two counts, the first of which averred that the defendant owed the plaintiffs two thousand dollars for the use and occupation of certain lands in this county, hired by the defendant of the plaintiffs, and owned by the plaintiffs and the defendant in common. The second count averred that the plaintiffs were the owners of one undivided eighth part and the defendant of seven undivided eighth parts of the prem ises; that the defendant was and had been in occupation of the premises, taking the rents and profits, and had resisted the attempts of the plaintiffs to obtain partition; that it was convenient to the defendant, but inconvenient to the plaintiffs, to occupy the premises; that the defendant had cut and carried away all the timber growing on the premises, and had been therefor sued in the court of common pleas; and that the defendant was disposed to take advantage of his dwelling on the premises, and of his better ability to occupy the same, to the prejudice of the plaintiffs, and refused to account to the plaintiffs. The declaration prayed for an account, for an injunction from further cutting and waste, and for general equitable relief in equity.</p> <p>The defendant demurred to the declaration, on the ground that the plaintiff had a plain, adequate, and complete remedy at law.</p>

<p>The jurisdiction of the court of common pleas over an action of waste is not taken away by St. 1853, c. 371, §§ 2, 4.</p> <p>An action on Rev. Sts. c. 105, § 8, by one tenant in common against another to recovei treble damages for waste is not within the Rev. Sts. c. 120, § 21, limiting actions for penalties to one year.</p> <p>One of several children and heirs at law, who after his father’s death continues to occupy land which he occupied with him in his lifetime, and is appointed his administrator, and cuts and carnes away timber trees from the land, is not liable to an action by the other tenants in common for treble damages, under Rev. Sts. c. 105, § 8.</p>

<p>Motion by the respondent in a libel for divorce, that the libellant be required to furnish her with sums sufficient to pay the counsel fees and other costs and expenses already incurred by her in the suit, and for the further defence thereof.</p>

Complaint on St. 1855, c. 215, § 15, for an unlawful sale of intoxicating liquor. The sentence of the justice of the peace before whom the complaint was made was, as stated in his record, that the defendant pay a fine of ten dollars and costs, and be committed to the house of correction, “ there to be confined to hard labor for and during the term of twenty days, and stand committed until this sentence be performed or he be otherwise discharged according to law.

<p>On a trial for adultery, at which the defendant’s desertion of his wife and continuing tc live apart from her are relied on in support of the prosecution, a witness for the Commonwealth, who has testified that he had acted, in the prosecution, in support of the interest of the wife, who was his sister, cannot be asked, on cross-examination, about admissions made to him by the wife concerning the particulars of the separation.</p>

<p>A complaint, made by Patrick M. Fitzgerald to a justice of the peace for the county of Franklin on the 3d of September 1855, alleged that the defendant, on the 1st of said September, at Greenfield, with force and arms, “ thirty cabbages, the property of him the said Patrick M. and of the value of five dollars, situated and growing on land in the occupation of said Fitz gerald in Greenfield aforesaid, did unlawfully, wilfully and maliciously break down, pull up, injure and destroy.” The defendant, being found guilty by the justice, appealed to the court of common pleas, and, after a verdict of guilty in that court, moved in arrest of judgment, on the ground that no offence was set forth in the complaint. Bishop, J. overruled the motion, and the defendant alleged exceptions.</p>

<p>On a trial for an assault on an officer while serving a criminal process on the defendant, a witness for the defendant, who has testified that at the time of the arrest he was within two or three feet of the defendant, and has described the relative position and occupation of the persons present, cannot be asked whether he would have been likely to have heard what was said, if any thing, by the officer to that defendant.</p> <p>It is no ground of exception, that a witness, who had already testified in chief that he did not hear what was said by certain persons on a particular occasion, was not allowed to be asked, by the party calling him, whether one of those persons did not say such and such words on that occasion, and whether another of them did not speak to a third person.</p> <p>An officer, making an arrest by virtue of a warrant, is not bound to exhibit his warrant and read it to the prisoner before securing him, if he resists.</p> <p>On a trial for an assault on an officer while serving a criminal process on the defendant the evidence for the Commonwealth tended to show that the defendant violently resisted being arrested, and attempted to escape, and was encouraged by a surrounding crowd, and aided by other persons, some of whom struck the officer; and the evidence for the defendant tended to show that he submitted quietly to the arrest, and made no attempt to escape, but that, being treated with great violence and cruelty by the officer, a struggle arose between them, during the continuance of which there was much noise and confusion. The court refused to instruct the jury that if the officer neglected or refused to read his warrant, or state the grounds for the arrest, the defendant would be justified in making any effort or resistance necessary to free himself; and instructed them that if the officer arrested the defendant, not stating why he did it, and, when asked by the defendant, refused to say, the defendant might use all the resistance necessary to free himself; but that if the officer, when making the arrest, or upon a subsequent question of the defendant, told him that he had a warrant against him, the arrest would be legal, though the officer declined to read the warrant. Held, tl at the defend*nt had no ground of exception.</p> <p>On the trial of several persons for an assault upon an officer while serving a criminal process on one of them, an instruction to the jury that any act of that defendant, after he waa arrested, which amounted to a resistance or obstruction of the officer, would render him liable, and that any person present, aiding, abetting or approving that resistance, by words, acts or signs, would be equally liable, affords no ground of exception, if that defendant only is found guilty of an assault on an officer in the discharge of his duty, and the others of a simple assault.</p> <p>Persons interfering with an arrest by an officer under criminal process, not knowing that he is an officer and acting in the discharge of his duty, but interfering with the intention of quelling a fight, if they use more force than is necessary for that purpose, are liable to an indictment for an assault.</p>

<p>Under St. 1855, c. 216, § 35, a defendant in a prosecution on that statute cannot be adjudged guilty on a plea of nolo contendere, unless it appears by the record that the plea was received with the consent of the prosecutor.</p>

<p>On a complaint for selling intoxicating liquor, without any license, appointment or authority, a special verdict, “ that the sale was made, as set forth in the complaint,” or “ that the defendant made the sale, as set forth in the complaint,” is not sufficient to warrant a judgment against the defendant; because it does not show that the sale was unauthorized.</p>

<p>On a trial for unlawfully selling intoxicating liquors on a certain day, a servant ot the defendant, who has testified that no liquors were sold in the defendant’s shop on that day, cannot be asked on cross-examination whether he had seen liquors in the shop after that day.</p>

Replevin of eleven bales of rags. The penal sum in the bond taken by the officer who' served the writ was expressed only as “ the full and just sum of double the valúe of the property hereinafter named 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, chapter 113.” At the return term of the court of common pleas, the defendants moved to dismiss the action,…

<p>It is no ground for relieving an assignee of an insolvent debtor or his sureties from paying to the creditors a dividend ordered by the commissioner of insolvency, that the sum to be divided consists of purchase money received for land of the debtor, sold by the assignee with full covenants of warranty, which money, by reason of a failure of the title, the assignee has become liable to refund to the purchaser.</p>

<p>In a lease for years of a farm and stock, including a yoke of oxen and several cows, the lessee covenanted to take good and prudent care of the stock, “ and to faithfully return said stock in quantity and quality to the lessor, or the value of the same in money, as the lessee may elect; said property, if retained, to be appraised by disinterested persons at the close of the contract; ” and afterwards sold the oxen and two of the cows, and substituted others in their stead. Held, that he had no right, before the expiration of the lease, to sell the oxen and cows so substituted.</p> <p>If a lessee for years of a farm and stock sells part of the stock contrary to the terms of the lease, the purchaser, after the termination of the lease by agreement of the parties thereto, though within the term named therein, is liable to the lessor in trover for the stock so sold.</p>

Action of tort for breaking and entering the plaintiffs’ close, bounding on Swift River in Belchertown, and the dam across said river, and the bulkhead, gates and canals connected therewith, and digging up the soil, and occupying and using the premises and the water of the river, belonging to the plaintiffs, from the 1st of February 1854 to the date of this writ.

<p>Action of contract by a mutual fire insurance company established by the laws of New York at Granville in Washington county in that state, to recover assessments upon a deposit note dated December 16th 1848, made to them by the defendant upon applying to them for insurance upon his house in Gummington in this commonwealth, by which note the defendant promised to pay the plaintiffs a certain sum “ in such portions and at such time or times as the directors of said company may, agreeably to their act of incorporation and by-laws, re quire.”</p> <p>At the first term of the court of common pleas, the defendant filed an answer in which (besides other grounds of defence not material to the understanding of the case) “ he says that said insurance company, if it exists, is a foreign corporation, and that they have not complied with the acts of the State of Massachusetts in relation to such companies, and have no right to sue or bring said action within this commonwealth, and the defendant is not liable.”</p> <p>The case was referred to an auditor, the material part of whose report was as follows : The note in suit, and the defendant’s application for insurance, were in the handwriting of Albert S. Gillett, who was an agent of the plaintiffs, and who, on the 24th of June 1848, had filed in the office of the treasurer of this commonwealth a certificate that he had been regularly appointed an agent of the plaintiffs, and was duly authorized to take applications for insurance in their company. There was no evidence that Gillett ever took in this commonwealth any other application to the plaintiffs for insurance. The plaintiffs never filed in the office of said treasurer any such statement as is required by the Rev. Sts. c. 37, nor published in any newspaper any statement of their affairs. Henry A. Bridgman, another agent of the plaintiffs, called as a witness by them to prove a demand upon the defendant for these assessments, testified that he called upon the defendant at his house in Cummington for payment thereof, which the defendant refused, saying that the plaintiffs’ agent came there, and induced him to obtain the insurance by representing that it would be very cheap, and that he was disappointed in the assessments.</p> <p>The defendant contended, before the auditor, that the plaintiffs’ contract of insurance with the defendant was void, because the plaintiffs had not complied with the provisions of the Rev. Sts. c. 37, § 40 & seq. and St. 1847, c. 273. The plaintiffs objected that this ground of defence was not open to the defendant, because not set forth in the answer. And they objected to the testimony of Bridgman to what the defendant said, on the same ground; and also because it was of a declaration of the defendant in his own favor, and which had been introduced inadvertently, without their call, and contrary to their intention. The defendant contended that the statement was competent, because part of a conversation testified to by the plaintiffs’ witness.</p> <p>Upon this evidence the plaintiffs contended that the contract of insurance was made in the State of New York, and that there was no evidence sufficient in law that Gillett had an established agency in this state. The auditor reported that, if that part of Bridgman’s testimony was admissible, it was proved that Gillett took the note and application in this state, from the defendant residing in this state, and delivered or transmitted them to the plaintiffs at their office in Granville, N. Y., where the application was approved and indorsed by the plaintiffs’ officers, and the policy issued thereon; and reported the above facts to the court for their decision of the- questions of law arising thereon.</p> <p>After the return of the auditor’s report, the plaintiffs moved for leave to file the following amended answer: “ The defendant says that one Gillett was the agent of the plaintiffs to procure insurance in the State of Massachusetts, and that said Gillett, at the residence of the defendant in. Cummington in this county, procured insurance to be effected by the plaintiffs for the defendant at his residence aforesaid, and, having received proposals for insurance here of the defendant in this state, delivered or transmitted the same to the office of the company in New York. And the defendant further says that no statement, such as is required by the thirty-seventh chapter of the revised statutes, or the statute of 1847, chapter 273, or any statute whatever, was ever published in any newspaper printed in the State of Massachusetts.”</p> <p>.This motion was allowed by the court, upon terms, namely, that the defendant should pay to the plaintiffs a double term fee. These terms were not complied with, but no objection on that account was made in the court of common pleas.</p> <p>At the trial in that court, the only evidence offered by the plaintiffs was the auditor’s report. The defendant offered no evidence ; but contended that, upon the questions of law arising upon that report, he was entitled to judgment in his favor. But Briggs, J., for the purposes of the trial, ruled all those questions in favor of the plaintiffs, and instructed the jury that all the evidence admitted by the auditor was competent, and directed a verdict for the plaintiffs, which was returned, and the defendant alleged exceptions.</p>

<p>Action of tort for burning a quantity of wood, cut and lying upon the defendant’s land, and claimed by the plaintiff as his property. Writ dated October 29th 1855.</p> <p>At the trial in the court of common pleas, before Morris, J., the plaintiff introduced evidence tending to show that about the 1st of April 1854 “ the defendant verbally sold to one Donelson all the wood on said land, and Donelson was to have a specified time to get it off; ” and there was conflicting evidence upon the question whether that time was one or two years. There was no evidence of any express agreement or understanding between the parties, that Donelson should have the right to sell or assign his rights under this contract.</p> <p>It also appeared that Donelson entered upon the land, cut the wood and carried away part of it, and left some lying upon the ground, and in February 1855 sold to the plaintiff the wood so left, (being the same for the burning of which this action was brought,) with all his rights under the contract, not already exercised. The plaintiff communicated this fact to the defendant, who replied that he would as soon have the plaintiff take off the wood as Donelson, and gave the plaintiff leave to use his land for the purpose of burning into coal such part of the wood as was not fit for sale; but afterwards revoked this license.</p> <p>On these facts, the defendant requested the judge to instruct the jury that Donelson’s right to enter on the defendant’s land was a personal privilege, and not assignable; that the plaintiff, by his agreement with Donelson, acquired no right to enter upon the land; and that the defendant’s license to the plaintiff, being executory, and without consideration, was revocable, and on its being revoked the plaintiff’s right ceased. But the judge refused so to instruct the jury; and instructed them that the plaintiff, by virtue of his agreement with Donelson, succeeded to all Donel son’s right in the premises, so far as related to the wood lying upon the ground. The verdict being for the plaintiff, the defendant alleged exceptions.</p>

<p>Action of tort for the conversion of a cow. The defendant justified under two tax warrants from the assessors of the town of Buckland, one dated the 19th of June 1856, and addressed “to collector of the town of Buckland,” and the other dated the 23d of said June, and addressed “ to Dexter Drake, constable or collector of the town of Buckland.”</p> <p>At the trial in the court of common pleas, before Morris, J., it appeared by the records of the town meeting in March 1856, that one Payne and the defendant were chosen and sworn as constables, and Payne was chosen collector. It did not appear that Payne had ever been sworn as collector; and it was admitted that he was never summoned in writing to take the oath or accept the office of collector, in the manner pointed out by Rev. Sts. c. 15, §§ 39, 40, and St. 1853, c. 283, § 2. There was no record of his having refused to serve as collector; but the defendant introduced evidence tending to show that Payne had verbally declined to take said oath or accept said office, and notified the same to the chairman of the board of assessors on the 19th of June; and that the two warrants aforesaid, with the accompanying tax lists, were delivered to the defendant on the 26th of June. The defendant never took any oath of office, except as constable; and about the time of his election gave bond to perform the duties of that office; and on the 26th of June gave bond to perform the duties of constable or collector.</p> <p>This action was commenced immediately after the taking of the cow, and before she was advertised or sold. It appeared by the account of sales rendered by the defendant to the plaintiff, pursuant to Rev. Sts. c. 8, § 10, that the cow was distrained and sold for the payment of the taxes in both tax bills.</p> <p>The plaintiff requested the court to instruct the jury “ that the defendant should have taken an oath as collector; that the direction of the warrants was irregular; that one or both of the warrants were irregular, as being dated and made out before the defendant was qualified to act as collector; that, as the record showed the election of a collector, the refusal of Payne to accept the office should appear by the record, or could be ascertained only in the modes pointed out by the statutes; and that for all or a portion of these reasons the justification set up by the defendant was not sustained.”</p> <p>The judge refused so to instruct; but instructed the jury “ that Payne’s refusal to accept the office need not appear of record; and that the warrants were a justification to the defendant, who was not bound to go behind them, and inquire whether Payne had or had not in fact refused to accept the said office.” The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

Writ of entry to recover a tract of land in Whately and Deerfield. Plea, nul disseisin. At the trial in this court, both parties claimed title under Franklin Graves.

<p>Action of contract, praying for relief in equity, under St. 1853, c. 371, to enforce the specific performance of the defendant’s agreement in writing to convey to the plaintiff “ a certain tract of land lying in Greenfield, and bounded north by land of said Fitzgerald, containing twice as many rods as there is to that tract of land owned by said Fitzgerald, and lately owned by H. W. Clapp, lying in Deerfield.”</p> <p>The plaintiff claimed that, by this agreement, the defendant agreed to sell to him twice as much land in quantity, lying next south of the plaintiff’s homestead in Greenfield, and bounded on one side on the upper, and on the other on the lower road leading to Deerfield, as the plaintiff had purchased of Clapp. The defendant denied this; and averred that he had fulfilled his agreement by conveying to the plaintiff so much of said land lying next south of the plaintiff’s as extended four rods southerly upon each of said roads. The land purchased by the plaintiff of Clapp was situated further to the south, and bounded for two rods on each road. The relative position of the lots of land is shown in the plan in the margin ; the dotted line indicates the southern boundary of the land claimed by the plaintiff; the actual distance from that line to the land purchased of Clapp was about thirty rods; but the proportions are necessarily lost on the plan.*</p> <p>At the trial before Dewey, J., it appeared that in the agreement, as originally written, the words on each street” followed the words “ containing twice as many rods,” but had been since crossed out for the purpose of erasure ; and there was conflicting evidence upon the question whether such erasure was made before or after the delivery of the agreement. The defendant contended that the words “ twice as many rods ” created an ambiguity, which might be explained by oral evidence of the meaning of the parties. But the judge ruled that the construction of the agreement was for the court, and instructed the jury that, if the words “ on each street ” were in the agreement when it was delivered, they should find for the defendant; if not, for the plaintiff The jury returned a verdict for the plaintiff, and the judge reported the case to the full court.</p>

<p>Action of contract upon a policy of insurance, dated February 2d 1849, for seven years, for the sum of $700 upon the life of Freedom Keith, a minor son of Bela M. Keith, the plaintiff’s intestate, to whom this policy was made.</p> <p>At the trial in the court of common pleas at October term 1853, before Mellen, J., there was evidence of the following facts: Freedom was twenty years of age on the 6th of January 1849, and resided with his father in Manchester, Conn., and worked in a factory there; the father, with his other children, working in the same factory, and usually receiving the wages of all his children, which together with his own wages constituted the principal support of his family.</p> <p>On the 17th of February 1849 Freedom sailed for California, having on the 8th of January previous made an agreement in writing with Aaron Cook, in consideration of the sum of $300 paid by Cook into the treasury of a trading and mining company of which Freedom was a member, to devote his services to said company during its continuance, and to pay half of his share of the profits to Cook; and his father assented to this agreement, and relinquished any claim to his services, so far as Cook was concerned; and supplied Freedom with an outfit, out of his former earnings. On the 2d of February 1849 Cook procured from the defendants a policy of insurance for $500 on Freedom’s life. Freedom died on board of the ship on the 1st of December 1849, soon after arriving in California.</p> <p>On the 11th of September 1851 Cook left with the defendants certain affidavits of the death of Keith ; and on the 6th of February 1852 the plaintiff, in writing, notified the defendants of the death of Freedom, and referred them for proof thereof to those affidavits.</p> <p>The defendants contended that the plaintiff’s intestate had no insurable interest in the life of Freedom Keith; that, if he had such insurable interest, it was incumbent upon the plaintiff to prove the amount of it; and that the preliminary proofs of death were insufficient, because the plaintiff could not avail himself, without the consent of the defendants, of the proofs presented by Cook under his policy.</p> <p>But the judge ruled that upon the facts proved the intestate had an insurable interest to the amount of the policy, and that the proofs of death were sufficient; and directed the jury to return a verdict for the full amount of the policywhich they did; and the defendants alleged exceptions.</p>

Action of contract, commenced on the 5th of April 1854 by the assignees in insolvency of David Ames and John Ames, upon an agreement in writing made by the latter with the defendants on the 26th of January 1853. The following are the material parts of that agreement: “ The said D. & J. Ames hereby sell to the said Blake & Valentine all the right, title and interest which the said D. & J. Ames have in the machinery and fixtures now at their paper mill at Chicopee Falls.

<p>Action of contract by the assignee in insolvency of Daniel D. Warren to recover back the sum of $10,000 paid by Warren to the defendants, in four instalments, under a sealed contract executed on the 11th of October 1848, whereby the defendants agreed to convey to Warren the American House in Springfield, with the furniture and fixtures therein, on the 1st of January 1850, and to give him possession thereof on the 1st of January 1849; and Warren agreed to pay them therefor the sum of $30,000 in nine instalments: $5,000 on the 1st of January, $1,250 on the 1st of April and $1,250 on the 1st of July 1849, $2,500 on the 1st of January 1850, and the remainder in five equal annual instalments, and to give his notes for the several instalments, secured by mortgage of the premises, “ the notes to be made payable with interest' annually.”</p> <p>Warren went into possession under this contract, and made leases of the estate, and paid the first four instalments, and on the 1st of January 1850 demanded a conveyance of the premises, which the defendants refused to make, claiming one year’s interest on the instalments payable, after that date, as called for by the contract, and to be paid by Warren before he could demand a conveyance. Warren did not pay or offer to pay such interest, and denied that any interest was then due under the contract. In February and May 1851 Warren paid the defendants $1,100 on account of the purchase of the American House. Warren’s tenants continued in possession of the premises until the 1st of November 1851, when the defendants ousted them, and took and have since retained possession of the premises, claiming the right to do so for their own security.</p> <p>Warren, and the plaintiff as his assignee, contended that the defendants’ refusal to convey, and taking and retaining possession, and ouster of Warren’s tenants, were acts inconsistent with the rights secured to Warren by the contract, and authorized him to consider the contract as rescinded; and the plaintiff in affirmance of such rescission brought this action.</p> <p>The defendants contended that they were not bound to make the conveyance, until the interest was paid as above stated; and that they had the right to take possession as they did, without giving Warren the right to consider the contract as thereby rescinded ; and denied that Warren had rescinded the contract, oi that they had ever violated it.</p> <p>The parties submitted the case above stated to the decision of the court.</p>

Action of contract to recover for supplies furnished to the defendant’s wife as a pauper. At the trial in the court of common pleas, it appeared that the defendant was a man of large property and of good credit in Monson, and that his wife, by reason of his neglect to support her, stood in need of immediate relief, and, upon applying to the plaintiffs, was supported by them at a greater expense than she might have been supported at in the town poor house.

<p>In an action against a town on an account annexed “ for the care and board of J. S. from April 8th 1852 to April 8th 1853 at fifty cents per week according to contract with said town,” a tender of an amount equal to the stipulated rate for part of the time does not prevent the defendants from proving that the plaintiff did not board J. S. for the residue.</p> <p>A vote of a town, duly recorded, showing the terms on which the lowest bidder took charge of a town pauper for a year, cannot be explained by similar votes of the town in previous years, nor by evidence of terms stated by the moderator of the meeting when asking for bids.</p>

Action of contract against the administrator of the estate of Oliver Ferry upon the following agreement: Memorandum of an agreement made at Palmer this thirteenth day of April 1844 by and between the town of Palmer on one part and Oliver Ferry of Brimfield on the other part witnesseth as follows, viz: The said Oliver Ferry hereby binds himself, his heirs, executors and administrators firmly by these presents to pay to the said town of Palmer the sum of twenty five dollars…

<p>Action of contract, commenced on the 13th of September 1854, on the covenant of warranty contained in a deed from the defendant to Eli Osborne, dated April 10th 1839, of land in Blandford, since conveyed by said Eli to the plaintiff with like warranty. The breaches alleged in the declaration were, 1st. An ouster of the plaintiff in 1851 from one fifth part of the premises by Thomas Ballard and wife, under a decree for partition obtained by them in her right, claiming under an elder and better title ; 2d. A judgment recovered by said Ballard and wife at October term 1853 of the court of common pleas, in an action commenced on the 15th of November 1852, under the Rev. Sts. c. 105, § 7, for damages for cutting wood and timber on the land by the plaintiff during his occupation, previously to said, partition.</p> <p>Answer, a judgment recovered by the plaintiff against the defendant at March term 1854 of the court of common pleas, in an action on the same covenant, commenced on the 1st of January 1852.</p> <p>The parties submitted this case to the decision of the court upon a statement of facts, in which the facts above stated were admitted, and it was further agreed that the former action between these parties was to recover damages for the same eviction now relied upon; and that the judgment recovered by Ballard and wife was for no more than the actual value of the wood cut.</p>

Action of contract to recover damages for the defendant’s failure to keep in repair the buildings included in a lease from the defendant to the plaintiff of a hotel and farm in Southwick, by which the defendant covenanted to “ put the buildings and fences on, around and about the premises in a good condition, and so to maintain them for and during the term of” the lease, and the plaintiff covenanted “ that the lessor may enter to view and make improvements, and to expel the…

Action of contract for money paid to the defendant’s use in 1841 and 1842. Answer, the statute of limitations.

<p>Writ op entry to foreclose a mortgage of land, made by the defendant to Albert Morgan, and by him assigned to the plaintiff and Harvey Lyman, “ trustees of the society of Shakers in Enfield, Connecticut,” “ and their successors and assigns.” Plea, nul disseisin.</p> <p>At the trial in this court, the defendant objected that by this assignment the title vested jointly in the plaintiff and Lyman, and therefore this action could not be maintained. To which the plaintiff replied, 1st. That this objection was not open to the defendant under his plea; 2d. That the assignment was to the plaintiff and Lyman in their official character of trustees of the society of Shakers in Enfield, and Lyman had ceased to be such. And to sustain this last position, he introduced evidence that Lyman, since said assignment, “ had left said society, and had removed to Springfield, and engaged in business on his own account, and executed a receipt in full of all demands against said society, receiving a large sum of money in consideration of his claims.” The defendant objected to the competency and sufficiency of this evidence. There was no evidence that the society was a corporation.</p> <p>Dewey, J. ruled that upon the pleadings and evidence in the case the action might be maintained by the plaintiff alone, and reserved the question for the full court.</p>

<p>Action of contract to recover half the money expended by the plaintiff in the purchase of a lot of land in Springfield, and in the building and keeping of a boarding house thereon.</p> <p>The case was referred to an auditor, who heard the parties in October 1855, and reported the following facts to the court for their decision: In 1845 the parties purchased together the land -in question, and have since owned it jointly. In 1846 and 1847 they erected the boarding house, the work being done under the direction of the plaintiff. It did not appear from the evidence that at the time of the purchase of the land and building the boarding house the parties contemplated any connection beyond what was involved in the joint purchase and building. In May 1847 the plaintiff took possession of the house, and carried on the business of keeping it as a boarding house, under an understanding between himself and the defendant that there should be a partnership between them, but without any written agreement. The business was closed in the fall of 1847, but there was no formal dissolution of the partnership, nor any balance of accounts adjusted, or settlement made. There are no claims outstanding against the partnership, nor any debts due to it, except one of three dollars for board in 1847, which the plaintiff, at the hearing, offered to assign to the defendant.</p> <p>The defendant contended that these facts showed a partnership between the parties, both as to the real estate and as to the business of keeping the boarding house ; and that, as no settlement had been made, this action at law could not be maintained.</p>

<p>Action of tort for the taking and conversion of a pair of horses, a wagon and harnesses. The defendant, who was one of the selectmen of West Springfield, justified on the ground that the property taken was, at the time of the taking, employed in the illegal transportation of intoxicating liquors; and that by St. 1855, c. 215, § 13, “ any mayor, alderman, selectman,” &c. “ in his city or town, may, without a warrant, arrest any person or persons whom they may find in the act of illegally selling, transporting or distributing intoxicating liquors, and seize the liquors, vessels and implements of sale in the possession of said person or persons, and detain them in some place of safe keeping until warrants can be procured on complaint made for the trial of said person or persons, and for the seizure of said liquor, vessels and implements, under the provisions of this act.”</p> <p>At the trial in the court of common pleas, before Sanger, J., the plaintiff introduced evidence tending to show that his son, Harvey Jones, was driving on the highway in West Springfield with the property in question, when the defendant ordered him to stop, and, on his refusal,, stopped the horses and turned them out of the travelled way, without any warrant or legal process other than the authority conferred upon him by said statute; and sent for a constable, who arrested Harvey Jones; and on the same day the property in question was put in the barn of the defendant, and remained there for three days, when the defendant returned it to the plaintiff!</p> <p>The defendant was permitted, against the plaintiff’s objection, to introduce evidence tending to show that, when he stopped the wagon, there were several barrels of intoxicating liquor in it, which Harvey Jones was illegally engaged in transporting from Thompsonville, Connecticut, to Holyoke in this commonwealth having gone to Thompsonville to get it. But there was no evidence that the plaintiff knew of the purpose with which his son went to Thompsonville, or was in any way privy to such trans portation, otherwise than in being the owner of the property, and permitting his son to use it when not employed on his farm. And the plaintiff was not present when the seizure was made.</p> <p>The remainder of the bill of exceptions was thus: “ The plaintiff claimed that § 13 of St. 1855, c. 215, was unconstitutional and void; and if not so, that it gave the defendant no right or authority to take or detain the property in suit; also that, if he had a right to detain said property for the purpose of removing the barrels of liquor from the wagon, he jvould not have a right to detain it any longer than was reasonably necessary to remove the liquor; and if he did detain it longer, such detention would amount to a conversion of the property, without the proof of any demand or refusal.</p> <p>“The court instructed the jury, among other things, that the said 13th section was constitutional and valid; that under it, if Harvey Jones was illegally transporting intoxicating liquors, (and the instructions of the court as to what would be such illegal transportation were not objected to,) the defendant had a right without a warrant to seize such liquors and to arrest the driver; that, as incident to this right of seizure, he had a right to detain the horses and wagon for such reasonable time as was necessary to remove the liquors from the wagon, and unless they were detained for a longer time than was reasonably necessary for that purpose, it would not be a conversion; but if detained for a longer time than was so reasonably necessary, the taking would be unlawful and would be a conversion, and the plaintiff could recover without proof of a demand and refusal; that if, upon the arrest of the said Harvey Jones, the team was left without a driver or person to take care of it, there was no legal duty resting upon the defendant to seek out the owner of the team and return the same to him, or to remove the team from the street; that the removal of the team from the roadway to the side of the road, for the mere purpose of preventing an obstruction of the highway, or the taking the team to a barn for the sole object of saving the animals from suffering until they should be called for by the owner, would not be of itself a conversion of the property; that, to make the acts of the defendant a conversion of the property, (as it was not claimed that by the taking the property was destroyed, or its nature or condition altered,) the taking must be unlawful, and done with the intent to convert the property to his own use, or to the use of some one other than the owner of the property.</p> <p>“ By way of illustration, the court supposed the case of a burglar hiring a horse and wagon, and going with it to a house he intends to rob, breaking and entering the house in the night time, and loading the stolen property upon the wagon, and being arrested by a police officer while in the act of driving from the house with the stolen property. The court observed that the case supposed and the one on trial were not similar; yet they were alike in one respect, in this, that in both (if in the case on trial they should find the driver illegally transporting intoxicating liquors) the driver may be arrested while doing an illegal act, and that in the case supposed the police officer would have a right to leave the horse and wagon in the street, only leaving it so that it should do no damage, or to put the horse in a stable to save it from suffering, and keep it until the owner called for it, without being liable in damages for the detention.</p> <p>“ The jury found for the defendant. To the foregoing rulings and instructions the plaintiff excepts.”</p>

These two cases were tried at the same term of the court of common pleas, before Sanger, J. The first was an action of contract upon a promissory note ; the second a writ of entry to foreclose a mortgage made to secure that note. In answer to the first action, the defendant relied on the pendency of the second. But the judge ruled that it was no defence ; and the defendant submitted to a verdict and judgment for the plaintiff, and alleged exceptions.

Action of tort for breaking and entering the plaintiff’s close, and tearing down and carrying away the fences and trees and a portion of his dwelling-house, standing within the line of State Street in Springfield, before the expiration of the time allowed by a jury for their removal by the plaintiff after the widening of State Street by the county commissioners for the county of Hampden.

<p>The admission, upon the trial of an action for breach of promise of marriage, of testimony for the plaintiff, that after the departure of the defendant on a certain journey “ the plaintiff acted as if she felt very sad,” is no ground for setting aside the verdict, though the evidence was objected to by the defendant when it was offered.</p>

<p>In an action for goods sold and delivered to the defendant, the defendant may prove that the goods were sold and delivered to a third person, and that the defendant’s promise to pay for them was merely collateral; without pleading the statute of frauds.</p>

<p>Action of tort by the widow and heirs of Stephen Jenks for cutting trees on their land. Answer, soil and freehold in the defendant.</p> <p>At the trial in the court of common pleas, before Briggs, J., the plaintiff gave in evidence a deed made in 1828 by Ephraim Fuller and Jonathan S. Fuller to William' Knight, whose title Stephen Jenks afterwards acquired, of a tract of land in Wilbraham, bounded “ easterly by said Fuller’s land, by a north and south line to be established two rods east of a black oak marked, toward the northerly part of said lot, and a point of two rocks forking, supposed to be south of the middle of said lot.”</p> <p>The only point ruled was thus stated in the defendant’s bill of exceptions: “ The defendant contended that if the parties Fuller and Knight, soon after the conveyance to Knight, established the monuments upon the line which he claimed as the true one, and that line had been acquiesced in by Jenks, and by Knight and Fuller, the call of the deed would be answered, although the line might have an angle in it. The judge instructed the jury that the east line, for its entire length, must be a straight line, to answer the call of the deed.”</p>

<p>In an action against a railroad corporation by a passenger for the loss of his trunk, the admissions of the conductor, baggage master or station master, as to the manner of the loss, made in answer to inquiries in behalf of the passenger the next morning after the joss, are admissible in evidence against the corporation.</p>

Action of tort for the conversion of a quantity of hoop poles. The defendant justified on the ground that he took them as a constable upon mesne process as the property of Gardner Shaw- At the trial in the court of common pleas, before Mellen, C. J., the only question submitted to the jury was whether the plaintiff had any title in the property.

<p>Declarations of one of two defendants in an action of trover, made while in possession of the property, that the plaintiff formerly owned it, are admissible against himself, but not against the other defendant, to prove title in the plaintiff.</p> <p>Where a witness denies that he stated a fact as another witness has testified that he did, and testifies that he stated a different fact, evidence that the fact existed which he testifies that he stated is inadmissible to corroborate him.</p> <p>An infant who receives property under a contract of sale to him, and then surrenders it to the seller, intending to give up all his interest in it, cannot afterwards avoid such surrender, and retake the property from the possession of the seller.</p>

<p>Promissory notes made to a bank in payment of notes discounted by the bank for the maker of these notes, in violation of the Eev. Sts. c. 36, § 58, (which declare that any such disconnt, not made payable on demand, “ shall be so far void that the bank shall not be entitled to recover the amount thereof from the borrower, or from any other person,” and that any bank violating this section shall be liable to a penalty,) cannot be enforced by the bank.</p> <p>A debtor, who has conveyed land in trust to secure the payment of all notes of certain third persons indorsed by him, and to reconvey to him any portion remaining, may, after paying all such notes except notes discounted by a bank in violation of the Eev. Sts. c. 36, § 58, in payment for which he has since given his own notes, maintain a bill in equity agaiust his trustee for a reconveyance, notwithstanding the interposition of a claim by the bank for payment of such new notes out of the trust fund.</p>

<p>A false demonstration, though a reference to a natural monument, may be rejected in con» struing a deed.</p> <p>Land conveyed was described in the deed, after an accurate statement of its northern ana western boundaries, as bounded “ southerly partly on land of B. and partly on the Great Brook, and from the brook to the turnpike road on land set off H. A. and bounded northerly on the turnpike road; being all that part of the farm of R. A, deceased, which was set off to A. A. as his share of the said farm; for a particular description reference may be had to the return of the distribution of the estate of R. A. in the probate office.” The land of B. extended along the westerly half of the southern boundary of the land conveyed, and was itself bounded on the south by the Great Brook, which extended from the southeast corner of B.’s land eastwardly to the turnpike, and the turnpike ran northwestwardly from the Great Brook to the northeast corner of the land conveyed. The report of the partition of the estate of R. A. was lost; but the jury found that the line established thereby between A. A. and H. A. was a continuation of the northern line of B.’s land eastwardly to the turnpike; the land set off to A. A. lying north of that line, and between the northerly and westerly boundaries of this deed and the turnpike; and that set off to H. A. lying south of that line, and upon both sides of the brook. The brook was many rods south of that line. Held, that the Great Brook must be rejected as a monument, as inconsistent with the residue of the description; and that the southern boundary of the land conveyed was the northern line of B.’s land and the division line as found by the jury.</p> <p>la an action for converting wood, the plaintiff may dispute the title of those under whom the defendant claims, to the land from which the wood was cut.</p>

<p>Indictment for a nuisance in the keeping of a slaughterhouse in Fitchburg. Trial in the court of common pleas at October term 1852, before Mellen, J., to whose rulings the defendant, being found guilty, alleged exceptions, upon which the case was argued at the last term, and the substance of which is slated in the opinion.</p>

<p>The indictment averred that the defendant, at Upton in this county, on the 9th of September 1855, “ in and upon one Bridget Collins, a female child under the age of ten years, to wit, of the age of eight years, feloniously did make an assault, and her, the said Bridget Collins, then and there feloniously did unlawfully and carnally know and abuse; 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 in the court of common pleas, moved in arrest of judgment, on the ground that no offence was set forth in the indictment. Morris, J. overruled the motion, and the defendant alleged exceptions.</p>

<p>The admission, on the joint trial of several defendants, of evidence which is competent against one of them only, and immaterial as to the others, is no ground, after his acquit tal, for setting aside a verdict of guilty against the others, on a bill of exceptions which does not show that the evidence was admitted to affect them.</p> <p>The refusal of a judge to instruct the jury that they ought not to convict upon the uncorroborated testimony of a witness whose reputation has been proved in the case on trial to be bad is no ground of exception.</p>

<p>Complaint on St. 1852, c. 322, § 7, averring that the defendant, on the 31st of August 1854 at Northbridge, “unlawfully did sell to one George A. McKinistrey intoxicating liquor, he the said Thomas A. Conant not having then and there any authority or appointment according to law to make such sale.”</p> <p>The defendant, after conviction in the court of common pleas, moved in arrest of judgment, because the complaint did not sufficiently describe the liquor alleged to have been sold; and because it did not show that the intoxicating liquor alleged to have been sold was not cider sold for other purposes than as a beverage, or the fruit of the vine for the commemoration of thef Lord’s Supper. Morris, J. overruled this motion, and the defendant alleged exceptions.</p>

<p>Complaint on St. 1855, c. 215, § 15, for an unlawful sale of intoxicating liquor on the 8th of September 1855. The complaint was signed by Jonathan Day, and addressed “to the police court within and for the county of Worcester and Commonwealth of Massachusetts,” and bore this certificate: “ Worcester, ss. The tenth day of September in the year of our Lord one thousand eight hundred and fifty five the aforesaid complainant made oath to,the truth of the foregoing complaint before said court. J. Waldo Denny, Clerk.” The record of the police court simply set forth the complaint, and a warrant, commanding the officers to whom it.was addressed to bring the defendant “before the police court of the city of Worcester,” and bearing teste of “ William N. Green, Esquire, Justice of said court; ” stated that “ by virtue of a warrant issued upon the within complaint the defendant is brought before the police court of the city of Worcester in the county of Worcester; ” and then stated his plea, trial, conviction and appeal.</p> <p>At the trial in the court of common pleas, before Morris, J., the defendant objected to having the record of the police court (which was written upon the complaint) go to the jury; but the judge overruled the objection, and ruled that it should go to the jury, but that it could not be considered as evidence in the case. The defendant, being found guilty, alleged exceptions to this ruling.</p> <p>He also moved in arrest of judgment, because it did not appear by the record that the complaint was received or the warrant issued by any justice of said police court; and because it did not appear whether the proceedings were had before the standing justice, or one of the special justices, and there being no allegation in the complaint, sufficient to give jurisdiction to any special justice, it did not sufficiently appear whether the police court had jurisdiction of the case. This motion was overruled, and the defendant excepted to this ruling also.</p>

<p>A complaint, made before a justice of the peace, alleged “ that Peter Cummings of New Braintree in the county of Worcester on the twenty-third day of July in the year of our Lord one thousand eight hundred and fifty five at New Brain-tree with force and arms did sell ” intoxicating liquor, in violation of St. 1855, c. 215, § 15.</p> <p>The defendant, being convicted before the justice, and again on appeal, in the court of common pleas, moved in arrest of judgment, “ that it did not appear from the complaint that anj offence was committed within this county, inasmuch as there is no allegation of place within the county, to the material allegation of sale.” Morris, J. overruled the motion, and the defendant alleged exceptions.</p>

<p>A complaint made to a justice of the peace for the county of Worcester, which charges an unlawful sale of intoxicating liquor at “ West Brookfield,”- without saying “ ai the town of West Brookfield,” or alleging it to be in the county of Worcester, is fatally defective.</p>

<p>A search warrant, issued under St. 1855, c. 215, § 25, which does not recite the names of the complainants, is void.</p>

Replevin of spirituous liquors and the vessels containing them. Writ dated July 9th 1855.

<p>Action of contract on a check alleged to have been drawn by the • defendants, as" partners under the name of Tinkham, Adams & Co. on the 22d of August 1854. At the trial in the court of common pleas at December term 1855, it appeared that the check was given in payment for intoxicating liquors sold under such circumstances that the defendants contended the sales were illegal, and that the plaintiff therefore could not maintain his action. The plaintiff contended that this ground of defence was not open to the defendants, because it was not specified in the answer. . But Mellen, C. J. ruled otherwise. The jury returned a verdict for the defendants; and the plaintiff alleged exceptions.</p>

<p>Under the St. of 1852, c. 312, a declaration in slander must set forth substantially the words spoken.</p> <p>If the court fix the time for filing an answer, the defendant may insert a demurrer in aa answer filed within the prescribed time.</p>

<p>On an agreement of subscription to a certain medical institution “ for the purpose of building a medical college for said institution," the last instalment to be paid “ when the building shall be completed, the building to be such an one as is referred to in the plan and specification to be made by E. B.” no action lies for the last instalment, if the medical institution, after the payment of the other instalments, and after occupying the building for three years as a medical college, but before its completion, convey it to an institution for the education of females, who complete it according to said plan and specification, but occupy it for their own purposes.</p>

<p>An oral agreement to hire a shop for a year at a certain rent, and to pay the landlord the amount expended by him in fitting it up, is within the statute of frauds; and no action will lie upon it for the amount so expended.</p>

<p>A sale "by a town to the lowest bidder of the right of collecting taxes, without any provision as to his qualifications for the office of collector of taxes, or any other election, is void; and the town cannot maintain an action against him for the amount bid, although he acts as collector for the year.</p>

<p>Action of tort for running down the plaintiff while driving on the highway, and breaking his sleigh. Trial in the court of common pleas, before Mellen, C. J., who signed a bill of exceptions, the substance of which is stated in the opinion.</p>

<p>Action of contract for goods sold and delivered. Writ dated April 20th 1855.</p> <p>At the trial in the court of common pleas, before Mellen, C. J., the plaintiffs introduced their books of account and other evidence tending to show a delivery of the goods, being a quantity of ready made clothing, to the defendants on the 12th of December 1854, and there rested their case. At the close of the plaintiffs’ evidence, they were requested by the defendants to put in at that time all the evidence on which they relied; but offered no further evidence then.</p> <p>The defendants then called a witness, who testified that at the time of the delivery of the goods he accompanied the defendants to the plaintiffs’ shop, and informed their clerk and agent that the defendants desired to purchase goods, and that James H. Wall, the father of one of the defendants, would guaranty payment to a certain amount; that the witness asked the clerk “ to put the goods at their lowest time price; ” and then went out of the shop, leaving the parties engaged in selecting goods.</p> <p>The defendants further gave in evidence an admission of the plaintiffs that the goods were sold on a credit of six months, and also introduced evidence tending to show a custom among clothing dealers that, where goods are sold and nothing said between the parties as to time, a credit of six months is understood.</p> <p>The plaintiffs’ counsel then, by leave of court, made a further opening, in which he stated that he should prove that, after the interview in the shop, above mentioned, and before the delivery of the goods, the defendants promised the plaintiffs to pay them on receipt of the goods, for all above the amount of the guaranty, and that the goods delivered amounted to between one and two hundred dollars above that amount; and should also prove several conversations in which the defendants admitted that they agreed to pay for the goods sued for immediately on delivery.</p> <p>The residue of the bill of exceptions was thus: “ The defendants’ counsel objected that such evidence would not be rebutting evidence, but would merely be meeting the defence by evidence which should have been made a part of the original case; and also that it would tend to prove a different contract from that originally relied on. The presiding judge then stated the rule of law to be, that the plaintiffs could not introduce in rebuttal new affirmative proof of the original case, and that the burden of proof was on the plaintiffs to show that the price of the goods was due and payable at the time of bringing the action; and that, after the defendants’ evidence was closed, the plaintiffs were not entitled to introduce this new affirmative proof of their original case. The plaintiffs’ counsel made no further or other offer of testimony, but went to the jury on the evidence as it stood, who returned a verdict for the defendants. To the foregoing ruling the plaintiffs except.”</p>

<p>A bill of exceptions to the admission of testimony on cross-examination cannot be sustained, unless it sets forth enough of the previous testimony to show that the testimony objected to was inadmissible.</p>

<p>Where land conveyed is described by the boundaries, and as “ containing four acres, more or less,” and the purchaser pays the seller therefor at a certain rate per acre for four acres, the seller, on proving by parol that the boundaries in the deed would apply to a tract of land containing five acres, or to a tract containing four acres, and that the purchaser made said payment upon the statement of a surveyor employed by the parties before the conveyance, to ascertain the amount of the land, under an agreement that the price should be at that rate per acre, in which statement the land surveyed was inadvertently said to be four acres, when in fact it was five, may recover for the additional acre at thi rate agreed upon.</p>

<p>A judgment of a justice of the peace of another state is not a judgment of a court of record, within the meaning of the Bev. Sts. c. 120, § 1; and an action thereon is barred by that statute in six years, although by the laws of that state an execution might now be issued on that judgment.</p>

<p>The time of a debtor’s absence from the State, without losing his domicil here, is not to be excluded, under the Rev. Sts. c. 120, § 9, in computing the period of limitation of an action against him.</p> <p>A plaintiff, who requests the judge to rule that certain facts appearing in the case constitute an absence of the defendant from the State, within the Rev. Sts. c. 120, § 9, cannot, upon exceptions to a refusal so to rule, object that the question was not submitted to the jury.</p> <p>The time during which proceedings in insolvency are pending against the debtor is not to be excluded in computing the period of limitation of an action against him.</p>

<p>Writ of entry by the assignee of James H. Bancroft, an insolvent debtor, to recover a lot of land in Worcester. Trial before Thomas, J., who reserved the case for the decision of the full court- upon the following report:</p> <p>Both parties claimed title to the premises under Taft & Glea son. The demandant gave in evidence the following deeds thereof, all duly recorded: one from Taft & Gleason to Bancroft, dated October 7th 1854; one from Bancroft to Edward Lamb, dated March 24th 1855, which was admitted to be without consideration and fraudulent as against Bancroft’s creditors; and an assignment to the demandant by a commissioner of insolvency, dated May 10th 1855, and recorded, conveying all Bancroft’s estate which was liable to be so conveyed on the 27th of April previous, which was the day of the first publication of notice that a warrant had issued against his estate.</p> <p>The tenant claimed title under a levy upon the premises as the property of Taft & Gleason, on the 6th of July 1855, of an execution issued upon a judgment recovered in the court of common pleas in an action commenced by him or the 3d of April 1855, on a debt due him from Taft & Gleason, in which action a general attachment was made on said 3d of April of “ all the interest of said Taft & Gleason in any real estate in the county of Worcester,” and duly recorded.</p> <p>It appeared by the officer’s return upon the execution that the amount of the debt and costs, with the costs of the levy, was $1565.41; that the appraised value of the estate levied upon was $2500; and that the amount appraised and set off to the tenant was “ one hundred and fifty six thousand five hundred and forty one undivided thousandth parts thereof.”</p> <p>The demandant contended that the levy was upon its face void, because the portion set off to the tenant was -ro’so- The tenant contended that this defect, (which was admitted to be merely a clerical error,) was capable of amendment, and that the certificate of the appraisers and the return of the officer might both be amended so as to read The demandant</p> <p>agreed that if, in the opinion of the full court, the court of common pleas could legally, and in the exercise of their discretion ought to allow the amendment, then it should be allowed by this court on such terms, and with such effect on the demandant’s rights, as if made by order of the court of common pleas at the same date. For the purposes of the trial, the presiding judge permitted the amendment to be made.</p> <p>The tenant then offered to prove that the deed from Taft & Gleason to Bancroft was made without consideration and to protect the property of Taft & Gleason from attachment; and contended that it was therefore void as against their creditors ; and the presiding judge so ruled, against the objection of the demandant, and submitted this question of fraud to the jury, who found in favor of the tenant.</p>

<p>Under the Eev. Sts. c. 90, § 105, the death of a debtor dissolves an attachment of his propert}7, although proceedings in insolvency have been commenced against him, and the attachment ordered to survive for the benefit of his assignee under St. 1841, c. 124, $ 5.</p> <p>Under St. 1838, c. 163, § 3, a commissioner of insolvency, upon the application of subsequent mortgagees of real estate, may order the sale of the interest mortgaged to them and subject to prior mortgages, but not of the whole estate.</p> <p>Where application is made to a commissioner of insolvency under St. 1838, c. 163, § 3, for the sale of real estate, to be applied to the payment of a mortgage thereon, which is alleged by the assignee to be fraudulent, the commissioner must determine the validity of the mortgage, before ordering a sale.</p>

Replevin of a horse. At the trial in the court of common pleas, it was in evidence that the plaintiff, as deputy sheriff, had attached the horse as the property of William W. Lamb on a writ in favor of one Knights, and delivered him to James M. Bancroft, taking a written receipt by which Bancroft promised to keep him safely, and deliver him to Baker on demand ; that Bancroft delivered the horse to Lamb “ to use for his keeping, and to redeliver whenever Bancroft should call…

Petition to the court of common pleas, under Rev. Sts. c. 90, §§ 83-94, by a subsequent attaching creditor, to dissolve a prior attachment made in an action commenced and pending in that court. The subsequent attachment was made in an action commenced and pending before a justice of the peace ; and Mellen, C. J. for that reason dismissed the petition. The petitioner alleged exceptions.

<p>An agreement, by which creditors agree to release their debtor, on payment of a certain portion of their several debts, but expressly stipulate that the agreement shall not be binding unless all the creditors become parties thereto, is ineffectual, if the claim of one creditor is paid in full, and he does not sign the agreement, although such payment is made within the time allowed for signing.</p>

<p>Petition under St. 1851, c. 343, to enforce a lien for labor performed by the petitioner, in August and September 1851, under a contract with Kilburn Chapman, on a wooden building in Fitchburg, which Chapman was erecting under contract with the respondent, the owner of the land.</p> <p>At the trial in the court of common pleas, at December term 1855, before Briggs, J., the petitioner produced the certificate filed by him in the registry of deeds, containing an account of his demand, in which he charged the respondent with nineteen and a quarter days’ work at $1.25 a day, amounting to $24.06, and credited him with $1. The respondent offered evidence tending to show that $5 had been paid on the account; and contended that, if $5 had been paid, the certificate filed was fatally defective, and the petitioner could not recover. But the judge instructed the jury that, if they believed that $5 had been paid, the petitioner would be entitled to recover the balance after deducting the $5.</p> <p>The petitioner, in evidence of the number of days during which he worked on the building, was allowed by the judge, against the objection of the respondent, to introduce his book, containing the charges thereof, supported by Ms suppletory oath.</p> <p>The jury found a verdict for the petitioner in the sum of $19.06 ; and the respondent alleged exceptions.</p>

<p>Petitions to enforce liens for labor upon a building on land in Worcester, then owned by Taft & Gleason, two of the respondents, and now owned by the other respondent. Trials in the court of common pleas before Mellen, C. J.</p> <p>Henry Sanderson’s petition alleged his labor to have been performed under a verbal contract betweeñ himself and Taft and Gleason “ to erect' and construct a building by the day, and employ such help as he deemed proper, and at such prices as he deemed reasonable.” The evidence tended to show that he worked upon the building for more than four months, and that his services were reasonably worth the prices charged.</p> <p>Walter Sanderson’s petition alleged that he performed his labor under a verbal contract with Henry Sanderson to work for him at certain specified prices by the day, “ said Henry being a contractor with Taft & Gleason to erect a building,” as set forth in his petition. The evidence was that the petitioner worked on the building more than four months, at a fixed price by the day, and that his services were reasonably worth the prices charged.</p> <p>The respondents objected that neither of the contracts proved was within St. 1851, c. 343, not being an entire contract for a fixed time and a fixed price. But the judge overruled the objection. The jury returned verdicts for the petitioners, and the respondents alleged exceptions.</p>

<p>On the petition of an administrator for license to sell a specific portion of the estate of the deceased for the payment of debts and charges, and after publication of notice to show cause why license should not be granted to sell “ the whole of the real estate of said deceased,” a license to sell(i the whole of the real estate of said deceased ” is irregular and void; and will not support an action by the administrator, on the Rev. Sts. c. 71, § 12 to recover the specific portion, as having been fraudulently conveyed by the deceased.</p>

Action of tort for the conversion of a steam engine and boiler, which were manufactured and set up by John Putnam and others, under a contract with Josiah Richardson, upon his land in Leominster, in a building erected for the purpose of receiving them, and were used to run the machinery in the adjoining shop of said Richardson.

<p>En an action by a railroad corporation to recover freight of goods over a continuous line of transportation, of which their road forms a part, and the freight for which transportation is to be divided among the proprietors of the different parts of the line in certain stipulated proportions, the defendant may set off damage to the goods by the fault of the cárrier on any part of the line.</p> <p>Proprietors of a railroad are liable as common carriers for goods received by them, to be transported over their road for hire, though not yet laden on their cars.</p>

<p>The proprietors of a railroad are liable for want of ordinary care in their servants in unloading freight from their cars, though the consignee, knowing it to be the rule of the carriers that he must unload freight, and that if he did not unload it within a certain time the carriers would, has neglected to unload it.</p>

<p>A city, whose officers, in repairing a bridge over a river, though acting in the honest exercise of their discretion, narrow the space for the passage of the water,‘so as in times of freshet to set it back upon a mill, are liable for the injury thus occasioned, in an action of tort, even if the owner of the mill was a member of the committee of the city council on whose report the alteration was made.</p>

<p>A description, in a deed, of land granted as bounded “ westerly on Park Street one hun dred and fifty feet,” does not amount to a covenant of the existence of a street of tht same width as a street of that name, if such a street, thou'gh graded, and laid down upon a plan published by a former owner, has since been closed and ploughed up; but only to a covenant of the existence of a way of reasonable width. And after the admission of evidence, in favor of the grantee, that the grantor exhibited that plan at the time of the sale, the grantor’s declarations, made at the same time, that he intended to open the street of a less width, and would not be bound by the plan, are admissible in his favor.</p>

<p>A collector’s deed of land sold for nonpayment of taxes, which fixes its boundaries on the north and west, and describes it as bounded on the east on land by which it is in fact bounded only in part, and as bounded on the south on land which in fact is separated from it by land of another person, is void for uncertainty.</p>

<p>Action of tort for breaking and entering the plaintiff’s close, on the 20th and 21st of July 1854, and cutting and carrying away grass there growing. Answer, soil and freehold in Amariah Taft, one of the defendants. Trial in the court of common pleas, before Briggs, J., who signed a bill of exceptions, the mate rial part of which is stated in the opinion.</p>

<p>A mortgagee in possession of real estate, for the purpose of foreclosure, is accountable for the rent thereof during the time for which he suffers a notoriously insolvent tenant to remain in possession, deducting the time reasonably necessary to expel him by legal means, and to obtain a responsible tenant.</p> <p>On a bill in equity, brought without any previous tender, to redeem land from a mortgage, the mortgagee, if he has not prevented the performance of the condition by the mortgagor, is entitled to his costs.</p> <p>On a bill in equity to redeem land from a mortgage, if the mortgagee and an assignee of the mortgage are made parties and file separate answers they are each entitled to tax for an answer, but for only one bill of costs subsequently accruing.</p>

<p>A husband, who, being sued with his wife for her debt contracted before marriage, and secured by mortgage of her land, allows himself, after her death, to be defaulted, and pays the debt on execution, under the mistaken supposition that he can claim the amount out of her estate at law, and without taking an assignment of the mortgage, is not entitled, in equity, to hold the amount as a charge upon the land.</p>

<p>A demurrer to the whole of a bill in equity must be overruled if the plaintiff is entitled to relief as to any part of the bill.</p> <p>An injunction of a sale of land under a power in a mortgage thereof may be granted on a bill which does not contain a sufficient description of the land to enable it writ of possession to issue.</p> <p>A bill in equity by a married woman to redeem land held by her to her sole and separate* use under the St. of 1845, c, 208, from a mortgage made by herself and her husband, does not, by averring that the husband, at the date of the mortgage, “ was contingently entitled to an estate as tenant by the curtesy therein,” and that he had since applied for the benefit of the insolvent law, and an assignee of his estate been appointed, show such an interest in the husband or his assignee, as to make them necessary parties to the bill.</p>

<p>An assignment, by the holder of a mortgage made to secure two notes, of all his “ right, title and interest in the deed of mortgage, so far as the same is intended to secure the payment of the second note named therein, together with said second note," with a covenant of warranty against all persons claiming under the assignor, and saving only the mortgagor’s right of redemption, transfers the mortgage as security, first for the payment of the note assigned with it, and then in trust to secure the payment of the other note retained by the assignor; and, if duly recorded, charges the estate with that trust in the hands of subsequent purchasers of the mortgage.</p>

<p>Action of contract on a negotiable promissory note made by the defendant on the 15th of September 1853, payable to David Wilkinson on demand, and by him indorsed to the plaintiff. The writ was served by attachment of the defendant’s real estate on the 11th of January 1855 ; but, he residing out of the Commonwealth, notice was ordered to him.</p> <p>The defendant, in defence of this action, relied on the following proceedings in the State of Vermont: On the 1st of March 1855, being summoned as trustee in an action brought in that state by Polly Underwood against David Wilkinson, he stated in his answer that he executed to David Wilkinson this note, which was still due and unpaid; that at the time of the service of the trustee process he had no notice of any assignment or transfer of the note by said Wilkinson; that early in 1855 he heard that a suit had been commenced against him in Massachusetts, upon which his real estate was attached, by Warren Wilkinson, a son of David Wilkinson, but did not know upon what claim the suit was founded, or that Warren Wilkinson claimed to hold the note, until June 1855, when he saw a notice of the suit, which described the note, in a paper printed in Worcester, Massachusetts. Upon that answer, judgment was rendered and execution issued by the court in Vermont against Hall, as trustee, and paid and satisfied by him.</p> <p>At the trial in the court of common pleas, the plaintiff offered evidence that Hall did have notice of the transfer of the note by the payee to this plaintiff, before the service upon Hall of the trustee process. But Briggs, J. refused to admit the evidence. And the plaintiff, after verdict, brought the case to this court on exceptions to this ruling.</p>

<p>Action op contract upon a promissory note, made by the defendant, payable to Estabrook & Richmond or order,” and indorsed by Richmond in his own name, for the purpose of transferring his interest therein to his copartner, Estabrook, the plaintiff. The parties submitted to the decision of the court the question, whether this indorsement was sufficient to enable the plaintiff to maintain an action thereon in his own name.</p>

<p>Action of contract on the covenants in a deed from the defendant to the plaintiff, dated May 13th 1853, and expressed to be in consideration of the sum of $600, of a tract of land in Worcester, described by metes and bounds, and as being the same conveyed to the defendant by deed from Chester Hubbard, dated May 19th 1852.</p> <p>The covenants in the deed declared on were in these words: “And I do, for myself, my heirs, executors and administrators, covenant with the said E. R. Estabrook, his heirs and assigns, that I am lawfully seised in fee of the aforegranted premises; that they axe free of all incumbrances, except a mortgage to Spencer Field for three hundred and sixty eight dollars and eighty five cents ; that I have good right to sell and convey the same to E. R. Estabrook; and that I will and my heirs shall warrant and defend the same premises to the said E. R. Estabrook, his heirs and assigns, forever, against the lawful claims and demands of all persons.”</p> <p>The declaration contained two counts, the first of which averred, as a breach of the covenant against incumbrances, that the premises described were subject to a condition in the deed from Hubbard to the defendant, namely, that a dwelling-house should be erected thereon within one year from the date of that deed; and the second set forth, as a breach of the covenant of warranty, that the plaintiff had been compelled to pay off Field’s mortgage. Writ dated August 15th 1855.</p> <p>At the trial in the court of common pleas, at March term 1856, before Mellen, C. J., the defendant admitted the making of the deed declared on. The following facts were also admitted : The deed from Hubbard to the defendant contained, between the description of the premises and the habendum, this clause: “ This conveyance is made on condition that a dwelling-house shall be erected on said granted premises within one year from the date hereof.” The house therein mentioned was erected within said year, but not until after the date of the deed declared on. At the time of the making of the deed declared on, there was a mortgage on the premises, made by the defendant to Chester Hubbard, and by him assigned to Spencer Field, to secure the payment of a note, dated May 19th 1852, for $368.85, payable “ fifty dollar’s April 1st 1854, one hundred dollars April 1st 1855, and the balance April 1st 1856, with interest on the first of April in each year.”</p> <p>The plaintiff, to show a right to recover on the covenant of warranty, called John Field as a witness, who testified “ that he was the agent of Spencer Field, and, having in his hand the note and mortgage, called on Smith for payment of the interest on said note at the time, or just before, the first instalment fell due; that, very soon after that, Estabrook called on him, at his office, about a mile from the premises, and told him the interest would be paid; that he then told Estabrook that his instructions were, if the interest and payments were not made when they oecame due, a suit for possession would be commenced; that Estabrook said the money would be paid, and soon after, on or about the 1st of April 1854, called at his office, and paid him one year’s interest on said note, and fifty dollars of the principal; that Estabrook paid him on the 1st of April 1855 one hundred dollars on said note ; and that the balance thereof ($231.98) was paid him by Estabrook on the 4th of April 1856, the day before the trial.”</p> <p>The defendant then offered evidence 'tending to prove “that, at the time he made the deed declared on, it was agreed between him and the plaintiff, that the plaintiff arid his mother should furnish him with money to enable him to erect said dwelling-house on the premises; and take a deed of the premises as they then were, or hold the same as security for such money as might be so advanced; and, when the house was erected, the plaintiff might sell the premises, if the defendant did not repay him, and reimburse himself and his mother the money so advanced ; that the deed was accordingly made, and the house erected, towards which the defendant furnished labor and materials to a considerable amount, and that, after the erection of the house, namely, on the 13th of April 1854, the plaintiff sold the estate to one Barrows, and that the existence and amount of said mortgage were known to the plaintiff when he took the deed, and he was by agreement to take the premises subject to said mortgage ; that no other consideration was paid by the plaintiff to the defendant for said deed; and that, when the plaintiff’ sold the estate, he received therefrom more than enough to reimburse himself and his mother for the moneys advanced and to satisfy said mortgage debt.” But this evidence was objected to by the plaintiff, and rejected.</p> <p>The defendant then put into the case the deed from the plaintiff to Barrows, dated April 13th 1854, expressed to be in consideration of the sum of $2,500, and containing a covenant against all incumbrances, except said mortgage, “ of which said Barrows agrees to pay two hundred and sixty eight dollars and eighty five cents, and cause to be discharged, and he and his heirs and assigns are to hold said premises in trust for the pay ment of said mortgage; ” and a general covenant of warranty.</p> <p>The defendant requested the judge to instruct the jury that, upon this evidence, there was no breach of either of the covenants declared upon ; and that, if the plaintiff was entitled tc recover any thing under the covenant of warranty, he could recover only for so much as he paid before his conveyance to Barrows.</p> <p>But the judge ruled, and instructed the jury, that the facts admitted showed a breach of the covenant against incumbrances, for which the plaintiff was entitled to recover nominal damages ; and that the testimony of John Field, if true, showed a breach of the covenant of warranty, for which the plaintiff was entitled to recover the full amount of the mortgage, having paid it before the trial. The defendant thereupon submitted to a verdict for the plaintiff, and alleged exceptions.</p>

<p>Stock in trade of a partnership, employed in manufacturing or in any of the mechanic arts in a town in which the firm have not their principal place of business, but in which they hire or occupy a manufactory, shop, store or wharf, may be taxed in that town, as one “ other than where the owners reside,” under the Rev. Sts. c. 7, § 10, cl. 1, and § 13, and St. 1839, c. 139, § 1, although one of the partners resides in that town.</p> <p>To constitute an occupation, within the meaning of the Rev. Sts. c. 7, § 10, cl. 1, and 1839, c. 139, § 1, of a manufactory, shop, store or wharf, there must he an actual possession, use and efficient control of it—such an occupation as one who owns or hires would ordinarily have.</p> <p>Merchants, sending goods to a manufactory not owned by them, in a town in which they do not reside, to be passed through one of the processes of manufacturing by one who contracts to do that process, and who, in order to secure a continuance of their custom, permits them to sort and count the goods there before finishing, and to pack them there afterwards, do not thereby “ occupy ” the manufactory, .within the meaning of the Rev. Sts. c. 7, § 10, cl. 1, and St. 1889, c. 139. § 1, so as to be liable to taxation for such goods in the town where the manufactory is situated.</p> <p>Whether partners, taxed by one entire assessment, in a town in which they have no place of business, for stock in trade employed there in a manufactory occupied by them, and for other personal property, can, if the tax on the other personal property is illegal, recover back by action the whole tax, or at least that part of it, guc&re.</p>

<p>A written agreement, signed and delivered to a corporation subject to Rev. Sts. cc. 38, 44 by which the subscribers severally promise “ to pay into the funds of the said company in such instalments as the president and directors may under the provisions of law require,” a certain sum for each share subscribed for, is a promise to the corporation; and will support an action by the corporation for the amount of an assessment voted by the stockholders, pursuant to the Rev. Sts. c. 38, § 13, and also voted by the directors, against one who has had notice of the votes, and had a demand made upon him for payment of the assessment.</p> <p>The fixing of the amount of the capital stock of a corporation, pursuant to the Rev. Sts c. 38, § 9, is not a condition precedent to the maintenance of an action by the corporation on a contract made with them.</p> <p>It is no defence to an action by a corporation chartered for the purpose of building a hotel, that a large and valuable portion of the building erected by them is constructed and occupied for shops.</p> <p>On a written promise to a corporation to pay a certain sum for each share set against the subscriber’s name, in such instalments as the president and directors may legally require, the corporation may maintain an action for an assessment legally laid and notified, and not paid, without first selling the shares for nonpayment thereof.</p>

<p>A by-law of a mutual fire insurance company, which consists of several distinct and independent parts, may be valid as to one of those parts, though void as to the others.</p> <p>A stipulation, contained in a by-law of a mutual fire insurance company, (to which their policies are in terms made subject,) that in case of loss, if the assured shall not acquiesce in the determination by the directors of the amount thereof, any action for the loss claimed must be brought within four months after such determination, at a proper court in the county in which the office of the company is established, is valid so far as concerns the limitation of time, though void so far as it affects the jurisdiction of courts.</p> <p>A by-law of a mutual fire insurance company (to which their policies are in terms made subject) which provides that, upon notice of a loss, the directors shall proceed to determine and pay the amount thereof, but if the assured shall not acquiesce in their determination, any action for the loss claimed ” must be brought within four months after such determination, does not prevent the assured from commencing an action after that time for the amount determined by the directors. And the assured, in an action brought after that time upon the policy, to which the company answer, admitting the loss, and averring a determination of the amount thereof by the dhectors, and relying upon such limitation of time in the by-law, may amend by declaring for the amount so determined, and take judgment therefor, without further trial.</p>