Volume 73 — Massachusetts Reports

<p>The sureties on the bond of the treasurer of a manufacturing corporation, who, by the Rev. Sts. c. 38, § 4, is to be “ chosen annually” and “hold his office until another ia chosen and qualified in his stead,” are bound only for the year for which he was chosen, and for such further time as is reasonably sufficient for the election and qualification of his successor, and no longer, although the corporation fail to elect at their next annual meeting.</p> <p>The admissions of a treasurer of a manufacturing corporation, made after the termination of his service, as to his own defaults, are not admissible in evidence against a surety on his bond, in an action against the latter alone.</p>

<p>Trespass for breaking and entering the plaintiff’s close in Billerica, and carrying away twenty cords of wood. At the trial in the court of common pleas at September term 1852, before Merrick, J., there was evidence of the following facts:</p> <p>About 1825 a tract of land of about twelve acres was set off to Hannah Marshal, widow of Josiah Marshal, as her dower. A part of it was then woodland, and the rest of it pasture. The latter had not been cultivated or depastured since said Josiah’s death, but wood had been permitted to grow thereon, which was principally pine, some scattering trees of which had attained a diameter of from ten to fifteen inches, and the remainder was young wood. In the winter of 1849-50 the plaintiff, who was a tenant of the widow, cut thereon about forty cords of wood, which was all that was then worth cutting, under an agreement with the widow that he should receive either one dollar per cord, or one half of the wood ; and afterwards re moved his half of the wood to another part of the land, anti piled it up there; and Holden, who was the owner of the reversion of the land, entered with the other defendants, and carried away said wood.</p> <p>The defendants requested the court to instruct the jury that inasmuch as the widow had suffered the pasture land to become woodland, neither she nor any person claiming under her could use such woodland for any purpose for which she could not have used woodland which was such when set off to her; and also that the widow had no right to give to the plaintiff any part of the wood in payment for cutting the same, and that the wood cut by the plaintiff under such an agreement did not vest in him, but remained the property of the reversioner.</p> <p>The court declined so to instruct the jury; but did instruct them, 6 that if the widow did suffer the said pasture land to become woodland, it was waste, for which Holden might have obtained a forfeiture of the place wasted, if he had seasonably entered; that if the widow cut or caused to be cut the said wood for sale, or for any purpose except for use upon the dower estate, or to restore the said woodland to pasture land, it was waste, and the defendants were not liable for taking said wood; but that if, before an entry by Holden, the widow in good faith cut or caused to be cut the wood standing upon land which had thus become woodland, with the intention of restoring such land to pastare land, she was justified in so doing, and the defendants were liable for taking the wood, when cut; and also that the burden of proof was upon the defendants to show that the said wood was not cut for the purpose of restoring the land as aforesaid ; but that, if said pasture had not grown up to woodland, the widow would have a right to clear up such pasture, and the small wood so cleared off would not belong to Holden.”</p> <p>The jury returned a verdict for the plaintiff, and the defendants alleged exceptions, which were argued and decided at October term 1853.</p>

Action of contract by a counsellor at law to recover for professional services in the case of the mandamus against the Mayor and Aldermen of Charlestown, 2 Gray, 84. Trial before Metcalf,¡ J., who reported the case, after a verdict for the plaintiff, to .the full court, in whose opinion the substance of the evidence is stated.

<p>Action of tort for obstructing the access of light and air to a window in the plaintiff’s shop. Trial before Metcalfe J., who reported to the full court the following case:</p> <p>On the 25th of April 1853 the Concord Milldam Company, being the owners of the land on which the shop stood, and of another lot immediately adjoining, put up both lots for sale by auction. The plaintiff’s lot was bid off first; and immediately after the sale to the plaintiff the other lot was put up and bid off by the defendant; a deed of the plaintiff’s lot, “ with all the privileges and appurtenances thereunto belonging,” with covenants of special warranty against the grantors and all claiming under them, was made and delivered to him on the 30th of April 1853, and a similar deed to the defendant on the 22d of July 1853; but both the plaintiff and the defendant took possession of their respective lots immediately after the sale.</p> <p>At the time of the sale, there was a window in the shop upon the first lot, looking out upon the other lot, upon which there was no building. The defendant, soon after the conveyance to him, erected a building on his land, touching the plaintiff’s shop, and entirely obscuring the window, which was the tort sued for.</p> <p>If the plaintiff can maintain his action, he is to have judgment for nominal damages; if he cannot, judgment is to be entered for the defendant.</p>

<p>One who lays out a street through his land, and then grants all the lots bounding on th« street, except one, may maintain an action of tort, in the nature of trover, against either of the grantees, for taking earth from the street, not necessary to the construction or repair of the street, and taken indiscriminately from the whole line of the street.</p> <p>It seems, that a grant of land, described as bounded by certain courses u to a stake by land laid out by the grantor for a street, thence southerly by said street,” extends only to the side of the street, if the stake is there.</p> <p>It seems, that a grant of land “ to a street one rod and a half wide, thence northerly by said street,” passes the land to the centre of the street.</p>

Action of contract by a railroad corporation, incorporated by St. 1846, c. 157, by the name of the Lowell and Andover Railroad Company, which was changed to their present name by St. 1848, c. 14, to recover back money paid under protest, and with notice of an intention to reclaim it, for the transportation of merchandise in the plaintiffs’ cars over that part of the defendants’ road which extends from the Arch Bridge in Lowell to the south side of Merrimack Street, and over…

- Action of contract to recover, among other things, $250 for one quarter’s salary as city engineer of Lowell.

<p>A verdict of guilty in a criminal prosecution, though obtained by false testimony, ana afterwards set aside for newly discovered evidence and a verdict of not guilty returned, is conclusive evidence of probable cause in a subsequent action for malicious prosecution.</p>

<p>Under Si. 1852, c. 312, an answer in abatement cannot be filed after an affidavit of merits</p>

<p>A thief and a receiver of the stolen goods may he jointly indicted.</p> <p>An indictment against a thief and a receiver of the stolen goods jointly, which avers that the first “ feloniously did steal, take and carry ” the goods, and that the second feloniously received the goods, knowing them “ to have been feloniously stolen, taken and carried away, as aforesaid,” is insufficient, for want of adding “ away ” after “ carry,” to support a judgment against either defendant.</p>

<p>Indictment against Hector Ingraham and Joseph Clements for setting fire to a shop in Watertown.</p> <p>At the trial in the court of common pleas, before Perkins, J., the district attorney, in addition to other testimony, offered to prove by Hiram Whitney a confession- of Clements, part of which affected and concerned Ingraham alone. Before the testimony was admitted, the counsel for Ingraham requested the judge to instruct the witness not to state any of that part of the conversation, which affected and concerned Ingraham alone, and was not connected with any statements concerning Clements himself: and not to name Ingraham, though his name might have occurred in the conversation. But the judge refused so to instruct the witness, and ruled that the witness might relate the whole of the conversation, being otherwise admissible, in its proper connections, and according to the truth, as it occurred. Whitney then testified that Clements came into his shop three months after the fire, and said that Ingraham had been seen in Boston, and that Ingraham said he would rather have given five thousand dollars than to have met Whitney the night of the fire, “for fear he would blow him,” and Clements also said that he did not set the fire, but was with Ingraham when he set it. The judge on this point instructed the jury “ that they should carefully separate between the defendants, as to this evidence, and not suffer the conversations, statements or declarations of Clements, the person holding or making them, to affect the other defendant Ingraham.”</p> <p>In cross-examination of one of the witnesses for the Commonwealth, the defendants’ counsel asked him several questions as to the general character of Whitney for truth and veracity; and the witness answered that it was good, as good as that of any other man in Watertown. After the defendants had introduced all their evidence, the district attorney called three witnesses to sustain Whitney’s character for truth and veracity. The defendants objected to the admission of any evidence of this nature, but the judge admitted it.</p> <p>The defendants were found g'uilty, and alleged exceptions.</p>

<p>An indictment on St. 1855, c. 215, § 17, for being a common seller of intoxicating liquors from a day named to the day of finding the indictment, is supported by proof of three sales by him of such liquors on any one day after that which is named, and before the finding of the indictment.</p>

<p>The judge presiding at a criminal trial may exclude from the panel jurors who state, in answer to his questions, that they have formed and hold such an opinion of the unconstitutionality of the statute on which the prosecution is founded, that, if persisted in, they cannot convict the defendant, whatever the evidence may be.</p> <p>A refusal of the presiding judge to allow the defendant’s counsel in a criminal case to read to the jury the whole of the statute, upon one section of which the prosecution is founded, is no ground of exception, if he is allowed to read all those parts which he contends affect the construction of that section, and to comment to the jury upon the whole of the statute.</p>

<p>Action of tort for entering the plaintiff’s shop, and taking and carrying away therefrom two casks of intoxicating liquors. The answer denied the entry and the taking.</p> <p>At the trial in the court of common pleas, before Sanger, J., the plaintiff introduced evidence that the defendants signed and made oath to a complaint to a justice of the peace, under St. 1852, c. 312, § 14, praying him to issue his warrant for the seizure of the plaintiff’s liquors, and a warrant was issued thereon by said justice, and served by a deputy sheriff by entering the shop and seizing the liquors.</p> <p>The defendants contended, and the court ruled, that upon this evidence the plaintiff could not maintain his action. The plaintiff became nonsuit, and alleged exceptions to the ruling.</p>

<p>Action of tort for an assault and false imprisonment of the plaintiff. Trial before Bigelow, J., who made the following report thereof:</p> <p>“ The plaintiff put in evidence a warrant issued by Timothy Pearson, Esq. a justice of the peace for this county, directing the commitment of the plaintiff to jail for a contempt committed while said Pearson was acting as a magistrate in trying certain complaints against said plaintiff, for violating, in Lowell, the laws respecting the sale of intoxicating liquors. The plaintiff also put in two complaints made by said Ephraim Hapgood, before said Pearson, against the plaintiff, for an alleged violation, in Lowell, of the law respecting the sale of intoxicating liquors, both dated March 31st 1853, with the warrants issued thereon, and a record of judgments of guilty rendered thereon by said Pearson.</p> <p>“ The evidence tended to show that after said Emery had been tried and convicted on one of said complaints by said Pearson, and when said Pearson was about proceeding to try said Emery on the other complaint, the alleged contempt was committed by the plaintiff; that said Hapgood, the present defendant, was the complainant in both said cases, and was present at all the proceedings before said Pearson; that, after said warrant for commitment for contempt was issued and delivered to the officer, he hesitated about serving it, and was told by Hapgood to serve it—that if he did not, he, the officer, would be prosecuted—that if he would serve it, he, said defendant, would indemnify and save the officer harmless against all damage on account thereof, and that, in consequence of these statements and promises by the defendant, the officer was induced to commit the plaintiff to jail on said warrant for contempt, which otherwise he would not have done.</p> <p>“ Upon these facts, the plaintiff contended that said Pearson was acting without any authority as a magistrate in all the foregoing proceedings ; that said warrant for contempt was bad on its face ; and that the defendant was liable as a trespasser.</p> <p>“ The defendant contended, first, that it did not appear by said complaints and warrants against said Emery, for the unlawful sale of liquor, that said Pearson was acting without authority; secondly, that if he was, the warrant for contempt was good on its face, and did not show any want of authority on the part of said Pearson; and that therefore neither the officer, nor the defendant Hapgood, could be held liable as trespassers for serving said warrant.</p> <p>“ But the court overruled these objections, and instructed the jury that said Pearson had no legal authority to issue said warrants; that, in issuing them, he had exceeded his jurisdiction; and the defendant, if he instigated and induced'the officer to commit the plaintiff thereon when otherwise he would not have committed him, was liable in this action.</p> <p>“ The court also ruled that the defendant would be liable, though the warrant for contempt was sufficient on its face, if he so instigated and induced the officer to commit the plaintiff thereon, knowing that said Pearson had no authority or jurisdiction to hear and try said Emery on said complaints for illegal sale of liquor.</p> <p>“ The jury returned a verdict for the plaintiff. If the foregoing rulings were wrong, the verdict is to be set aside ; otherwise, judgment is to be entered on the verdict.”</p> <p>This case was argued at October term 1855.</p>

<p>Action of tort. The declaration alleged that Adams procured a writ, and commenced an action of tort against Cody, and caused him to be arrested and committed to jail, without Adams or any one in his behalf having first made oath that he believed that the cause of action set forth in the writ was just and true.</p> <p>At the trial in the court of common pleas, before Sanger, J., there was evidence that Adams, on the 11th of August 1854, procured a writ against Cody for slander, returnable before a justice of the peace, in which the damages claimed were one hundred dollars, and the officer was ordered to attach goods to the amount of two hundred dollars, and in default thereof to take his body; that Adams took the writ to a constable, and ordered him to serve it without delay, and to get adequate security in goods to the value of $200, or good bail, or commit him to jail; that the oath required by St. 1854, c. 63, was not made, before or after the service of the writ; that the constable pursuant to his instructions, arrested Cody, and, he not being able to give bail or security, committed him at once to jail, where he was kept until the next day, when he was bailed out; that the action of slander was tried before the justice, and judgment given for Cody, from which Adams took an appeal, but never entered it.</p> <p>Upon this evidence, Adams requested the court to rule that the plaintiff could not maintain his action. But the court ruled that there was evidence to go to the jury, the jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>A condition of insurance, to which a stock policy is made subject, that no suit in law or equity shall be sustained thereon, unless commenced within six months after the loss, is binding on the assured, and bars a suit commenced after that time; although neither the contract is made nor the suit brought in the State where the company is established, and the conditions of insurance allow the assured thirty days to furnish proofs of loss, and provide that the loss shall not be payable until ninety days after the filing of the proofs of loss, and of an estimate thereof by appraisers chosen by the parties; if there is no evidence of unreasonable delay or waiver of the condition by the insurers.</p>

<p>Action of contract on a policy of insurance against fire, issued to the plaintiffs “on their road furniture, consisting of locomotive engines, cars of all descriptions, and snow ploughs, on the line of their road, and in actual use, but not in machine or repair shops.”</p> <p>The application (which was expressly made a part of the policy) contained a similar description of the property; and several questions and answers, including these: “ Where is the property situated ? ” Answer. “ Boston to Fitchburg, and branches this side of Fitchburg.” It also stipulated that its statements were “a full, just and time exposition of all the facts and circumstances in regard to the condition, situation, value and risk of the property to be insured, so far as material to the risk.”</p> <p>The case was submitted to the decision of the court upon the following facts: The owners and occupants of a wharf in Charlestown, situated on the line of the Charlestown Branch Railroad, a road connecting with the Fitchburg Railroad, and owned and run by the plaintiffs under St. 1846, c. 21, had laid the whole length of the wharf an iron track in the manner of a railroad, for the purpose of conveniently receiving and. shipping ice. The owners of the wharf had the exclusive control and management thereof. It was usual to leave cars, which came down loaded with ice, on the wharf over night, to be unloaded by the occupants of the wharf, and be taken up again the next day. The cars, for injury to which this action was brought, were drawn from Fresh Pond over the Fitchburg and Charles-town Branch Railroads, and left for one night on the track at the extreme end of the wharf, four hundred and forty feet from the line of the Charlestown Branch Railroad, with no agent or servant of the plaintiffs in charge of them, and near a shed, used to store shavings and sawdust for packing ice by the occupants of the wharf. The next morning, the fire originated in this shed, and was thence communicated to these cars. The shed was an extrahazardous risk, which the defendants had refused to insure.</p>

<p>Action of tort against a deputy sheriff, for taking by attachment on mesne process against the plaintiff on the 1st of September 1854 an ice plough, six ice hooks, a pair of ice tongs, an ice saw, an iron shovel, a pickaxe, a dungfork and a hoe.</p> <p>At the trial in the court of common pleas, before Sanger, J., the plaintiff introduced evidence tending to show that at the time of the attachment his general business was the ice business, in which he used the four items of property first above named ; that he had a small garden in which he was accustomed to work in the summer, and ordinarily used the other articles in and about his garden and stable; that all these articles at the time of the attachment were at the stable, where he kept the horses, carts and tools which he used in the ice business; and he contended that the articles taken were by law exempt from attachment.</p> <p>The defendant justified under his writ of attachment, and gave in evidence, after due notice to the plaintiff to produce the originals, a paper purporting to be a copy, attested by the city clerk, of a mortgage from tlie plaintiff and Charles E. Pierce to one Pillsbury, dated November 5th 1853, and including by name the first four articles, and “ all the tools of every description used in our ice business,” and a similar copy of a notice, dated September 9th 1854, of intention to foreclose the mortgage, with the plaintiff’s assent to the foreclosure indorsed thereon. He also gave in evidence a demand in writing by the mortgagee upon the defendant as attaching officer, dated September 2d 1854, the execution of which was not denied. To the admissibility of all these papers, as they were severally offered in their order, and not accompanied by any other proof, the plaintiff objected; but the court overruled the objection and admitted them in evidence.</p> <p>The plaintiff did not deny that the first four articles were included in the mortgage. The court instructed the jury that, if the four articles last named were used by the plaintiff in his ice business, and were included in the mortgage, and the mortgage had been duly foreclosed with the assent of the plaintiff, and the property demanded of the defendant by the mortgagee before this action was brought, the plaintiff could not recover for those articles; but if they were not so included, and were tools and implements necessary for carrying on the plaintiff’s business, they would be exempt from attachment, and he could recover their value ; that if the plaintiff’s business, properly so called, was not the ice business, and if said articles were not necessary for carrying on such business, in that case, if they were implements of husbandry used by the plaintiff in tilling his land, they would not be exempt from attachment, and he could not recover.</p> <p>The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

<p>The stock of goods, scales and measures, horse, wagon and harness, of a shopkeeper in the country, are not exempted from attachment by St. 1855, c. 264.</p>

<p>Upon the trial of an issue of the sanity of a testator, a physician who had practised for many years in his neighborhood, and had at times been his medical adviser, and who saw and. conversed with him a short time before the making of his will, is competent to state his opinion of the testator’s sanit}', though he has not made mental disease a special study.</p> <p>The erroneous rejection of the opinion of a witness is ground for a new trial upon a bill if exceptions in which all the circumstances are reported.</p> <p>Insanity of the testator’s parents, and of an uncle, is competent evidence upon the trial of an issue of his sanity.</p> <p>On the trial of" an appeal from a decree of the probate court allowing a will, it cannot be given in evidence against the will that one of the attesting witnesses, who testified in the probate court to the testator’s sanity, and has since deceased, declared, after the probate, that he wished to live to unsay what he had said, and that the testator was insane.</p> <p>The attestation of a will is no evidence that the witness believed the testator to be sane.</p> <p>A witness, who has stated the appearance and conduct of a testator, tending to show his insanity at the time of making his will, and has testified that he refused to make for the testator a bond for the conveyance of land, but, after a private conversation with the obligee, aside from the testator, did make it, may testify, on reexamination, that the obligee then told him that the bond was intended to secure the land for the testator until he should come to himself.</p> <p>Under the St. of 1839, c. 107, § 2, an executor named in an instrument ottered for probate as a'will was a competent witness in support of it, on releasing his right to recover costs.</p> <p>In the absence of evidence to the contrary, the legal presumption is in favor of the sanity of a testator. Thomas, J. dissenting.</p>

<p>Tills boundary in a deed, “ by a new way or street now staked out and to be opened by the grantor thirty feet wide, extending from M. Street along on the northerly side of said lot hereby conveyed, westerly to land of J. S.” is a covenant that the way shall be opened as then staked out, as far as the land of J. S., although beyond the land granted; and if the deed is duly recorded, is binding to that extent on subsequent purchasers from the grantor.</p>

<p>In an action by a consignee of goods against a earner for damages to the goodsbt y delay in delivering them, the measure of damages is the diminution, occasioned by such delay in the market value of the goods at the place of delivery.</p> <p>In an action by a consignee of goods against a carrier for failing to deliver them, the fact that the plaintiff, after the goods should have been delivered, made inquiries for them of the carrier, is admissible in evidence of their having been lost.</p> <p>In an action against a carrier for failing to deliver goods, the admission of evidence that his servant requested the person from whom he received them to make out a bill of the goods “ said to have been lost ” is no ground for granting the carrier a new trial.</p> <p>Upon the question whether the weather, at a certain time and place, was cold enough to freeze ink, evidence that it was not then and there cold enough to freeze apples is inadmissible.</p> <p>An expert, who has testified to the state of the weather at a certain time and place, and to his opinion of the effect of such weather upon a certain substance, as deduced from many experiments, cannot be asked in his examination in chief as to the details of each experiment.</p> <p>A consignee cannot recover of a carrier for his loss of time in waiting for goods which the latter has unreasonably delayed to deliver.</p>

<p>Action of tort to recover damages for injuries sustained by the plaintiff from a locomotive engine of the defendants while he was delivering wood from a team by the side of their railroad track.</p> <p>At the trial in the court of common pleas, before Sanger, J., the plaintiff, in order to show want of care on the part of the defendants, in not ringing their bell, or giving some signal of the approach of the train to the place where the plaintiff was engaged in delivering wood at the time of the injury, introduced evidence tending to show that there was a farm crossing, or travelled place, at that point; and, as tending to prove that fact, offered evidence that there had been such a crossing there previously to the construction of the railroad. This evidence was excluded by the court.</p> <p>The plaintiff then offered to show that there was a crossing there at the time of the trial, as tending to show its existence at the time of the injury. But this evidence was also excluded.</p> <p>The plaintiff called the conductor of the train by which he was injured, and, in order to show that the engineer of the train was not a careful, skilful and proper person to ran the train, asked the conductor, (who, it appeared, had known the engineer for several months,) whether he knew of any specific instances of want of care in the engineer in his business of running trains, within three months of the injury, before or after. But the court excluded the question.</p> <p>The plaintiff, in order to show that he was in the use of ordinary care at the time of the accident, asked a witness, whether the only mode of approach by a team to the place of delivering the wood was by way of the track. This was objected to and excluded, on the ground that it was a question for the jury to decide, upon the whole evidence relating to the locality.</p> <p>Evidence of certain admissions by the president of the corporation was offered by the plaintiff and excluded by the court; but, at a subsequent stage of the trial, allowed to be put in.</p> <p>Evidence of certain statements concerning the accident, made by the engineer of the train to the plaintiff within ten days after it, was offered by the plaintiff, but excluded by the court.</p> <p>Evidence that the president of the corporation had stated to the plaintiff that he thought the defendants would give him something, or pay him something, was offered, as tending to show a recognition of then- liability by the defendants; but it was excluded.</p> <p>The plaintiff having contended that the defendants employed the engineer of the train at low wages because of his want of skill, the defendants were allowed, against the objection of the plaintiff, to ask the president of the corporation this question, 1 How did you employ him as engineer; as what kind of engineer ? ” and the answer was, “ I employed him as a competent engineer, with skill enough to make him a safe man to run an engine.”</p> <p>It appeared that some months after the accident a letter was addressed by the plaintiff to the defendants, which was read to the stockholders at their annual meeting by the president, and was by him produced, on notice, at the trial. But it was proved, without objection, that upon the reading of the letter at the meeting a vote was passed to lay it on the table ; and the court ruled the letter incompetent.</p> <p>The plaintiff offered to show, as part of his damages, that the injury rendered him unable to do the labor required by his business, and so broke up his business. But the court excluded the evidence.</p> <p>The plaintiff requested the court to instruct the jury that if they were satisfied that the plaintiff, while lawfully on the track of the railroad .and in the exercise of ordinary care, was struck and injured by the defendants’ cars or engine, the burden of proof would then shift upon the defendants to show that they were using ordinary care at the time. But the court refused so to rule, and instructed the jury that the burden of proof was upon the plaintiff to show affirmatively that while he was lawfully on the track and in the use of ordinary care he was injured by the defendants, and that they were not in the use of ordinary care.</p> <p>The jury returned a verdict for the defendants, and the plaintiff alleged exceptions to the foregoing rulings and instructions, and to many other rulings rejecting evidence offered by the plaintiff, which was either immaterial, or offered in rebutter of the defendants’ evidence upon points to which the plaintiff’s witnesses had previously testified.</p>

<p>An open and travelled street in a city, though not so laid out and established by the municipal authorities as to make the city responsible for damages occasioned by defects therein, is a “ travelled place,” within the meaning of St. 1849, c. 222, § 2; and a railroad corporation are bound to maintain a sign- board, and the other precautions requited by statute at railroad crossings, at the place where it crosses their road.</p>

<p>A city is not liable for an injury suffered by slipping and falling upon a sidewalk, by the combined effect of the unsafe condition of the sidewalk and the like condition of steps without the limits of the highway.</p>

Action of tort to recover damages for an injury sustained by the plaintiff from a defect in a highway of the town of Dun-stable. At the trial before Metcalf, J., the evidence tended to prove that the highway at the time of the injury was covered with a deep drift of snow, for about forty rods, and a path of five or six feet in width had been made through this drift.

<p>A grant by a town, out of its common land, of land for a meeting-house, passes the right to so much land outside of a railing around the meeting-house, as is reasonably necessary for the parishioners to tie their horses upon on the Lord’s day.</p> <p>Upon the taking, for a highway, of part of land held by a parish for the site of a meetinghouse and its appurtenances, the parish may recover against the county the diminution of the value of the land for the purpose to which it is devoted, if it does not appear that they have any other right to the land; but cannot recover damages for the anticipated annoyance of worshippers in the meeting-house, by the use of the highway on the Lord’s day by noisy and dissolute persons, riding for pleasure.</p>

<p>A town created out of part of a town already existing, after a highway within that part has been adjudged by the county commissioners to be of common convenience and necessity, and the time for locating it fixed and notice given to the old town, is not entitled to a further hearing on the question of the necessity of the way.</p> <p>It is no ground for issuing a certiorari to quash the location of a highway, that the original order of the county commissioners required the way to be completed in six months, and gave a year to the owners of the land to remove timber and trees, if the order was modified by the commissioners within two months after it was passed, by extending by six mouths the time for completing the road, and shortening by five months the time for removing timber and trees, although no new notice was given to the town of the meeting of the commissioners at which the modification was made.</p> <p>It is no ground for issuing a certiorari to quash the location of a highway, that it omits to state the name of one person whose land is taken therefor, or to describe his land as of a person unknown.</p>

<p>A purchaser, from the Proprietors of the Middlesex Canal, of their lands, and the mills purchased and held by them under the of 1798, c. 16, and now sold subject to an express reservation of all rights necessary or incident to the preservation and use of the canal, is not liable to a complaint under the mill act for the subsequent flowing of land by such mills, if the franchise of the canal corporation has not been surrendered, forfeited or extinguished, although the canal has been abandoned and become unfit for use.</p>

<p>A riparian proprietor, who purchases of a town the materials of a bridge forming part of a highway which has been discontinued, and suffers them to remain in the river, is liable to owners of land above for the damages occasioned by the setting back of the water; and cannot show, in defence of an action to recover such damages, that he had before such purchase removed greater obstructions in the river.</p>

<p>A sale and conveyance of land by a collector of taxes for nonpayment of taxes assessed thereon to William, but intended by the assessors to be assessed to Charles, under warrant in which the first name of the owner, as originally written, has been erased by the collector, and the name of Charles inserted, with the addition of the words, “ or owner unknown,” and after notices of sale in which Henry is mentioned as the owner, is not sufficient evidence of title, against one who has been in possession of the land ten years.</p>

<p>Action of tort for taking a horse, the property of the plaintiffs, who were partners. The defendant admitted the taking and justified under two warrants issued to him as collector of taxes of the town of Chelmsford, by Nathan B. Edwards and Jabez Stevens, a majority of the assessors of that town, for the collection of state, town and school district taxes assessed to the plaintiffs jointly on real and personal estate. Trial before Met-calf J., who took a verdict for the plaintiffs, subject to the opinion of the full court upon a report, part of which was thus :</p> <p>The defendant, to prove his election to be collector of taxes, produced the records of the town for 1853, containing the following votes : “ Voted, that the selectmen of the ensuing year be also the assessors. Then chose by ballot Nathan B. Edwards, Jabez Stevens, and Henry B. Proctor, selectmen. Voted, that the collection of the taxes be let out on the same conditions and subject to the same restrictions and liabilities as last year. Voted, to let out the collection of the taxes at auction immediately to the lowest bidder whom the town will accept. The collection of the taxes were bid off by Henry B. Proctor, at one and a half per cent, on the dollar. Chose Henry B. Proctor, collector of taxes for the ensuing year.” There was no record of any vote of the town, determining the mode in which the collector should be chosen.</p> <p>The defendant then offered as a witness the town clerk for that year, who testified that the collector was chosen by ballot This evidence was objected to.</p> <p>The defendant, to prove that he took the necessary oath as collector, produced the town records, on which was a “ list of officers chosen March 7th 1853, and of whom an oath is required by law,” containing the names of Edwards, Stevens and the defendant as selectmen, “ sworn March 7th 1853,” of the defendant as constable and as collector respectively, “ sworn June 27th 1853.” This list was not signed or in any way authenticated ; but the town clerk testified, against the plaintiffs’ objection, that these oaths were administered by him.</p> <p>The records also showed an election of the defendant as constable for the same year. And it was admitted that he entered on his duties as selectman and assessor immediately after being sworn as aforesaid.</p> <p>So much of the residue of the report as is material to the understanding of the points of law decided is stated in the opinion.</p>

<p>Action of contract to recover money deposited by the plaintiff with the defendants.</p> <p>At the trial in the court of common pleas, before Aiken, J., a witness on behalf of the plaintiff testified that she saw the plaintiff deliver $41.00 to Mary Adams, with a request to deposit it in the plaintiff’s name with the defendants, and to sign the plaintiff’s name to the defendants’ book; that she after-wards accompanied Mary Adams to the defendants’ bank, and saw her deposit the money in the plaintiff’s name, and sign that name upon the defendants’ book as the depositor, and at the same time receive from them a deposit book with the plaintiff’s name and occupation and the sum of $41.00 entered therein; that Mary Adams did not disclose to the defendants that she was acting as agent; but that she afterwards delivered the deposit book to the plaintiff, and never claimed it or the money as her own, or went by the name of Harriet Wallace; that at a subsequent time she saw' the plaintiff herself take the book to the bank and deposit $30.00, which was entered therein, but the plaintiff did not disclose to the defendants that she was not the person who made the first deposit. The witness also testified, that at the time Mary Adams made the deposit for the plaintiff the witness took a deposit book, which Mary Adams had for some time had in her own name, and made a deposit for her; and she testified, on cross-examination, that the reason for this was, as the witness supposed, that persons making their first deposit must sign the defendants’ book in person.</p> <p>The plaintiff herself testified to so much of the above facts as took place in her presence, and that she subsequently called at the bank with her book and demanded payment of the money from the defendants, who desired her to write her name, which she did, and they compared it with her name as written by Mary Adams on their signature book, and, discovering the difference between them, refused to pay over the money; that she explained the reason of the difference, and how the first deposit was made, and stated that the money belonged to her, but the defendants refused to pay it over unless she would furnish some reasonable evidence that she was entitled to it, or give them a bond of indemnity; that she afterwards made an affidavit, setting forth in substance the facts to which she now testified, and delivered it to the defendants, but never offered them any bond.</p> <p>The defendants’ treasurer testified that “ it always had been the invariable rule and custom of the corporation to require depositors, when making their first deposit with the corporation, if they could write, to sign their names upon the signature book of the corporation; and that, when depositors could not write, they were required to make their mark in the signature book, in the presence of an attesting witness.”</p> <p>The defendants then offered to prove by their treasurer 16 that it was their invariable practice, custom and usage, on money, being deposited with them, to require it to be deposited in the. name of the person actually making the deposit; and that when money is deposited by one person for the benefit of another, it must be so stated and entered on the books of the corporation, or they would not receive it.” But the court rejected the evidence.</p> <p>The treasurer also testified, that the defendants identified the owners of deposits by a comparison of their signatures with those written in the book of the corporation at the time of making the deposit; that it was their practice to rely on this evidence alone; and that this was one purpose in requiring the signature of the depositor.</p> <p>Prefixed to the books given to the plaintiff and to other depositors was a printed statement, parts of which were thus: “ Deposits will be entered in the books of the institution, and also in a book to be given to the depositor. This book will be evidence of their property, and as valid as a note of hand. When money is drawn out, this book must be brought to the office to have the payment entered.” “ Persons who put in money must sign the rules, and agree to conform to them.” The only article of the rules applicable to this case was this: “All deposits shall be entered in a book, to be given the depositor, which shall be his voucher and the evidence of his property in the institution.”</p> <p>The defendants requested the court to rule, “ that they could not be holden to pay the money claimed by the plaintiff, without the production on her part of suitable evidence to their reasonable satisfaction, previously to the commencement of the action, that she was the real depositor of the money and entitled to receive it, or unless she had first tendered a bond of indemnity to save them harmless against the lawful claim of any other person who might demand the money.”</p> <p>But the court declined so to rule; and instructed the jury, that, upon the evidence, the demand of payment made by the plaintiff was sufficient; and that if the sum of $41.00 deposited by Mary Adams with the defendants was the plaintiff’s money, and deposited by Mary Adams as her agent at her request, and .afterwards the plaintiff personally made the other deposit in her own name, she might recover, notwithstanding Mary Adams did not disclose her agency at the time of the deposit made by her, and the defendants supposed she was depositing the money for herself by the name of Harriet Wallace.</p> <p>The jury found a verdict for the plaintiff for both sums, and the defendants alleged exceptions.</p>

<p>Action of contract for work done and materials furnished in making a bookcase.</p> <p>At the trial in the court of common pleas, before Mellen, C. J., it appeared that the plaintiff agreed in writing with the defendants, (who were a duly authorized committee of the Young Men’s Society of St. Peter’s Church in Lowell,) for the sum of forty dollars, to build for that society, within a certain time, a bookcase of a kind and dimensions described in the agreement, and to finish it “ in a good, strong and workmanlike manner, to the satisfaction of the president of the society.”</p> <p>The plaintiff offered evidence tending to show that he had built the bookcase according to the description in the agreement, but that the president of the society, who was one of the defendants, refused to accept the work, and was dissatisfied therewith; and asked the court to rule, that if the jury were satisfied that the work was done according to the contract, and to the reasonable satisfaction of the president, the plaintiff would be entitled to recover. But the court ruled that unless the plaintiff showed that the work was satisfactory to or accepted by the president of the society he could not maintain the action. A verdict was rendered for the defendants, and the plaintiff alleged exceptions.</p> <p>When the case came on for argument in this court, B. F. Butler, for the defendants, suggested that since the exceptions were entered here, and copies prepared for the full court, the bill of exceptions had been altered by the presiding judge of the court of common pleas, without the knowledge or consent of the defendants.</p>

<p>Bill in equity, filed on the 11th of March 1851. The bill averred that on the 1st of April 1850 the defendant, being the owner of certain land in Charlestown, wrote and delivered to the plaintiff this agreement: “ Know all men by these presents that I, John Sanborn,” &e. “in consideration of the sum of twenty one hundred dollars to me in hand paid by Peter San-born,” &c. “the receipt whereof I do hereby acknowledge, do hereby agree to sell and convey unto the said Peter Sanborn ” said land (describing it). “ Charlestown, April 1,1840.”</p> <p>The bill also averred that before the delivery of this agreement, the plaintiff paid the amount of $2,100 in full discharge of the purchase money, and the defendant so received the same; that the plaintiff had ever since been in the possession and enjoyment of the land, and till 1846 supposed that this instrument was a complete conveyance, and that no further conveyance was necessary to perfect his title; that since ascertaining the paper to be merely an agreement to convey, the plaintiff, in January 1850, tendered to the defendant a deed for execution, but the defendant refused to execute it; and that the plaintiff had fulfilled his part of the agreement, and was ready to do anything which remained to be done, if anything. The bill prayed for specific performance and for general relief.</p> <p>The defendant, in his answer upon oath, admitted his ownership of the premises, and that the parties had some conversation in 1840 as to the plaintiff’s purchasing the same for $2,100; averred that the alleged agreement was only an outline of an agreement which the defendant was willing to make, and was written by the defendant and handed to the plaintiff in order that he might examine it, and was never signed by the defendant, nor delivered to the plaintiff as a final agreement, nor ever ratified, accepted or completed by the plaintiff in any form; and averred that, at the time of handing said outline of an agreement to the plaintiff, the defendant made it a condition, that, before he would complete the agreement, the plaintiff should pay certain large sums of money for repairs and improvements which had been made on the premises, and that the plaintiff had not paid or tendered the same or any part thereof; denied the agreement, as charged, and any payment in discharge of the purchase money, or so received by the defendant; admitted the plaintiff’s occupation of part of the premises by the sufferance of the defendant; denied that the plaintiff supposed the paper was a complete conveyance; admitted the offer of the deed by the plaintiff, and the defendant’s refusal to convey; and averred that the defendant had done all in the premises that he was bound to do, but the plaintiff had failed to perform what it was necessary for him to do before the agreement could be made.</p> <p>The paper set out in the bill was in the defendant’s handwriting, but was not signed by him; and a master in chancery, to whom the case was referred, reported that it was not delivered by the defendant to the plaintiff as and for a binding memorandum of his agreement to convey the land therein described, and was not intended by the defendant to be a perfect and complete agreement, nor received as such by the plaintiff. The master also reported, that soon after the date of the paper the amount named therein as the purchase money of the land was paid by the plaintiff, and received by the defendant, as and for such purchase money, but not by virtue of said writing ever -having been delivered or received as a perfect and complete agreement, nor pursuant to any written agreement whatever; and that said writing was not delivered or received as such an agreement in consequence of said payment, and said agreement was not considered by either party as valid and binding without a further subscription thereof by the defendant</p> <p>At April term 1856, the plaintiff moved that the court take jurisdiction of this case as a bill seeking relief against fraud; and for an amendment of his bill, if necessary, so as to pray for such relief under St. 1855, c. 194. Bigelow, J. reserved for the full court the question whether such amendment could now be properly made, or the bill be maintained, without such amendment, as a bill seeking relief against fraud, and all questions properly arising on the master’s report.</p>

<p>Bill in equity, alleging that the defendant, in consideration of a conveyance by the plaintiff to him of a lot of land, agreed to convey to the plaintiff another lot, with a release of his wife’s right of dower therein; that in conformity with this agreement the parties met, and executed, acknowledged and delivered deeds to each other; that after the delivery it was agreed that each should take back his deed, for the purpose of procuring a release of dower, and the plaintiff entrusted to the defendant, for that purpose, the deed which he had just received, and took the other deed, and procured a release of dower, and tendered the deed to the defendant, but the defendant refused to return to the plaintiff the deed of the defendant to him. The bill prayed for a specific performance, and for other relief.</p> <p>The defendant demurred, for want of jurisdiction in equity and because his wife was not made a party to the bill; and the case was set down for hearing on this demurrer at October term 1855.</p>

Bill in equity by a widow to redeem land from a mortgage made to Stephen S. Seavy by her husband during coverture, in which she had released her right of dower. It was alleged in the bill, and found by the report of a master to whom the case was referred, that after the making of this mortgage and before the death of the husband the following transaction took place : The husband conveyed the land to the defendant Bellows by a deed in which his wife did not join.

<p>Trustee process, served upon the Boott Cotton Mills, as trustees of the principal defendant, on the 4th of January and again on the 2d of February 1855.</p> <p>The trustees in their answer disclosed that at the time of the first service they owed the defendant a certain sum, and at the time of the second service a larger sum, for wages earned by him in their employment since the 30th of October 1854; that before the first service they had received from the defendant, this order, signed by him: “ Lowell, October 30th 1854. To the paymaster of the Boott Manufacturing Company. Sir: Pay to John McCarty or order the whole amount of my wages for the ensuing three months, as it becomes due to me, and this shall be your receipt for the same,” and before the second service a precisely similar order, dated January 30th 1855; and that McCarty claimed the amount remaining in their hands.</p> <p>The claimant was admitted as a party to the suit, and an issue made between him and the plaintiff, upon the trial of which in the court of common pleas, before Mellen, C. J., it appeared 11 that the defendant was employed by the trustees to work for them by the day, at $1.25 per day; that he commenced work , for them at noon on the 2d of October 1854, and continued to work from day to day, with the exception of lost time, till the May following; that he was not hired for any specified time, but was at liberty to leave at any moment, and the trustees were at liberty to discharge him at any moment.”</p> <p>There was evidence tending to show that the first order was drawn before noon of said 2d of October, and there was also evidence tending to show that it was drawn on the day of its date. It appeared that the order was left with the paymaster of the trustees at their counting room, and was taken by him; but that he did not promise, orally or in writing, to pay the funds to the claimant. And the judge, against the plaintiff’s objection, admitted evidence “ that he, as agent of the company, received the orders, and treated them as he treated all orders given by their operatives on the company.”</p> <p>The judge ruled “ that if the orders were given for a valuable consideration, and were made at any time after the defendant had entered into the contract as stated, they would operate as an assignment of the wages earned by the defendant in the employment of the trustees, during the time covered by the orders.”</p> <p>There was evidence tending to show “ that at the time the first order was drawn, the defendant desired the claimant to trust him for groceries; that the claimant declined to do so unless the defendant would secure him by an order, saying that if defendant would give him an order, the claimant would furnish him with groceries as he might need, and let him have money to purchase other necessaries for his family; that there were found balances in the claimant’s hands of the funds collected by him of the trustees on the said orders, which were from time to time paid over to the principal defendant.” It was also in evidence that the amount in the hands of the trustees was more than sufficient to pay the amount advanced by the claimant to the defendant during the months of November, December and January.</p> <p>The judge ruled “ that the contract, if made in good faith, between the defendant and fhe claimant, was an entire one; and that, unless it was made with the intent to defraud or delay the defendant’s creditors, the claimant was entitled, as against the plaintiff, to recover the whole funds in the hands of the trustees, whether the claimant had advanced sufficient goods to the defendant to exceed it during the time covered by the order, or not.”</p> <p>It appeared that the claimant had received from the trustees on the first order the defendant’s wages for the month of October 1854, and that the defendant was usually paid his wages after the last Saturday in each month. The plaintiff desired the judge to instruct the jury “ that there was evidence from which the jury could infer that the order was intended by the parties to cover the defendant’s wages during the months of October, November and December.” But the judge declined so to instruct the jury, and instructed them “ that the order, from its terms, being for the wages earned in November, December and January, was a good assignment of the wages of the defendant for those last named months.”</p> <p>The jury found for the claimant, and the plaintiff alleged exceptions.</p>

<p>Action of contract for necessaries, commenced in the police court of Lowell, and served on the Lowell Bleachery as trustees of the principal defendant on the 12th of April 1856. Judgment was rendered against the defendant; and the question of the liability of the trustees was submitted to the police court upon the following facts:</p> <p>The principal defendant applied for the benefit of the insolvent laws, and the first publication of notice was made, on the 9th of February 1856. From said 9th of February to said 12th of April, the defendant worked for the trustees, and earned the sum of $48.38. The trustees then held a promissory note made by the defendant to them on the 10th of January 1856, for $291, for money lent by them on that day, payable on demand, with interest, which has not been paid, nor proved against the defendant’s estate in insolvency; but the trustees claimed and still claim to hold it in set-off against the defendant. The police court discharged the trustees, and the plaintiff appealed.</p> <p>After the appeal, namely, on the 10th of July 1856, the trustees, with the knowledge and consent of the defendant, and by his direction, indorsed said $48.38 on said note in part payment thereof. On the 28th of July 1856, the defendant obtained his certificate of discharge in insolvency in the usual form. Upon this case, the court of common pleas charged the trustees, and they appealed.</p>

<p>A sale and delivery of a chattel, on condition that the title shall remain in the vendor until payment of the price, vests no title in the purchaser before such payment, which will pass, as against the vendor, by a sale on execution against the purchaser.</p> <p>The testimony of a bystander at a conditional sale of a chattel is admissible to prove the terms of the sale against one claiming under the purchaser, and who was not present at the sale.</p> <p>If tb) purchaser of goods sold on condition procures them to be sold on execution against him to one who has knowledge of the condition, the original vendor may maintain replevin against the second purchaser, without a previous demand.</p>

Action of tort for the conversion of goods. Writ dated May 11th 1855.

Action of contract on a promissory note. The parties submitted the case to the decision of the court upon the following facts: The plaintiff was the owner of five shares in the Fitchburg Railroad Corporation, and agreed with the defendant that the defendant should sell the shares, and purchase five shares in the Essex Company for the plaintiff, and sell them within six months after such purchase; and if they were sold for a profit over a certain amount, the profit should be…

<p>An actor may maintain an action for his services in an unlicensed theatrical exhibition, unless it appears that he knew that his employer had no license.</p>

Action op contract for work and labor. Answer, payment. At the trial in the court of common pleas, at June term 1856, a witness for the defendant testified that in December 1855 (before this action was brought) the defendant paid the plaintiff thirty seven dollars as the balance due him for labor, and the plaintiff took it, saying nothing, and had since retained it, without any oiler to return it.

<p>Vhe dismissal of an action duly commenced within the time allowed by the statute of limitations, because of an accidental omission of the clerk to enter it seasonably on the docket under St. 1851, c. 233, § 13, is a defeat of the action for matter of form, within the metning of the Eev. Sts. c. 120, § 11, and a new action may be commenced within a year.</p>

<p>Action of contract against the administrator of Simeon M. Marshall, upon a promissory note for $55.29, made by said Marshall to the plaintiff, dated September 11th 1850, and payable on demand. The case was submitted to the decision of the court upon the following facts :</p> <p>“ The said Simeon M. Marshall, died intestate in 1851; this defendant’s bond, as administrator of his estate, was dated and filed October 14th 1851; and due notice was given of the defendant’s appointment as administrator. The personal properly of said intestate being insufficient to pay his debts, license was granted to the defendant by the judge of probate to sell sufficient of the real estate of said intestate to pay the amount of debts then ascertained, and so much was accordingly sold. And the heirs of the intestate at the same time sold all the residue of the real estate of said intestate, amounting to a thousand dollars or more. After the expiration of two years from the date of the said bond, and before the passing of the St. of 1855, c. 283, the defendant, without notice or knowledge of the existence of said note, or that the plaintiff had any claim against the said estate, rendered his final account, as administrator of said estate; and after notice given to all persons interested, according to the orders of the judge of probate, said account was allowed by the judge of probate. And the defendant has not since received or had in his hands any assets of said estate.”</p>

<p>Action of contract against the defendant, as administrator of the estate of Lendall Underwood, on a promissory note made by him payable to Atis Osgood or order, and indorsed, when overdue, to the plaintiff.</p> <p>The defendant admitted this note to be due; but filed in set-off a note made by Osgood to Underwood or order, which Underwood, before the malting of the note declared on, had sold and delivered, for a valuable consideration, to the defendant, but had not indorsed it, nor had the defendant indorsed it, since Underwood’s death, as his administrator.</p> <p>The parties submitted to the decision of the court the question whether the set-off could be allowed.</p>

<p>Petition to the court of common pleas, presented at September term 1855, to order their clerk to complete the record of a judgment rendered by that court at December term 1835 upon the default of the respondent in an action brought against him by the petitioner on two promissory notes, the record of which judgment had remained incomplete, as the petition alleged, because, in consequence of the utter insolvency of the defendant, the plaintiff had failed to furnish the clerk with the papers necessary for entering the judgment and completing the record thereof, although the debt remained wholly due and unsatisfied.</p> <p>The respondent had notice of the petition, and appeared and objected to the granting of the prayer thereof, and a hearing was had at December term 1855, before Sanger, J.</p> <p>The petitioner presented two promissory notes, purporting to have been given by the respondent to the petitioner, and corresponding to the two promissory notes sued on; but offered no evidence to prove the execution of said notes by the respondent.</p> <p>The petitioner called, as a witness, the attorney who made the writ, who testified that he thought and had no doubt that the two notes produced by the petitioner were the notes which he then sued and declared on; but he did not know or recollect that he had ever seen the respondent.</p> <p>It did not appear that said notes or either of them had ever been filed with the clerk or placed on file in the writ. Said action was not continued after the term at which the respondent was defaulted.</p> <p>The court heard evidence upon the reasons.for the delay in furnishing the papers to complete the record, and thereupon ordered the record to be completed as prayed for. And to this order the respondent alleged exceptions.</p>

<p>Declarations as to ancient boundaries, made by a third person, since deceased, who had known the land for fifty years, but who was not in possession and had never owned it. though made upon the land, and while in the act of pointing out such boundaries, are not admissible in evidence.</p>

<p>Action of contract by the indorsee of a promissory note against the maker. The answer denied the signature of the note, and alleged that it was forged.</p> <p>At the trial in the court of common pleas, Sanger, J. ruled, against the defendant’s objection, that the plaintiff, after making out a prima facie case by proving the execution of the note, might rest, and then, after the defendant had put in his case, call other testimony to the same point, and the defendant should then be allowed to call further testimony in reply; and this was the order of the trial.</p> <p>After the plaintiff had introduced testimony tending to show that, at the time of the execution of the note, a mortgage was delivered to the plaintiff by the defendant, this mortgage, which purported to be signed by the defendant, and made to the payee of this note, was produced by the defendant on the request of plaintiff, and by the plaintiff read and shown to the jury without objection to the want of proof by the subscribing witness.</p> <p>The defendant proved several genuine signatures of the defendant, and offered evidence of experts and of a person who had seen the defendant write, to prove that the note was forged by the subscribing witness to the mortgage, who was also the magistrate before whom it was acknowledged; and claimed the right, without proving the execution of the mortgage, tó submit the body of the mortgage, and the signatures of the defendant and of the subscribing witness, to experts and to the jury, for such comparison of hands. But the court ruled that there was no sufficient proof to make the comparison competent.</p> <p>The defendant, in order to prove the mortgage for the purpose of such comparison, offered evidence tending to show that the subscribing witness was out of the State, and had left the State to avoid testifying at this trial, and that due diligence had been used to procure his attendance; and offered to prove his handwriting on the mortgage by a witness who had seen him write, and who was well acquainted with his signature, but who did not see him write this signature, But the court ruled the proof incompetent for the purpose.</p> <p>A verdict was rendered for the plaintiff, and the defendant alleged exceptions.</p>

<p>Action of contract for work and labor. The defendant filed an account in set-off. The case was referred to an auditor, who reported that the plaintiff was entitled to recover part of the amount claimed.</p> <p>At the trial in the court of common pleas, before Mellen, C. J., the plaintiff did not put in the auditor’s report, but called several witnesses to prove his claim, and himself testified in his own behalf, and was cross-examined.</p> <p>The defendant read to the jury the report of the auditor, and introduced his own book of accounts and his own testimony. Pending his cross-examination, the usual hour of adjournment on Saturday arrived, and the court adjourned till Monday morning, when the cross-examination was completed.</p> <p>The defendant then proposed to recall the plaintiff, for the purpose of proving some items of the set off, which had been denied by his counsel. But the plaintiff was not in court; and his counsel stated, as a reason for his absence, that the wife of the plaintiff was very sick in another town, and for that reason the plaintiff could not be present. No notice had been given by the defendant that his further attendance was desired.</p> <p>The defendant’s counsel then moved the court that, as the plaintiff had put himself on the stand as a witness, and was now absent without notice to the defendant, he should either come into court to be further examined, or his testimony already given should be stricken out and not considered by the jury. But the court denied the motion, and declined taking any action relative to the plaintiff’s absence.</p> <p>The plaintiff put into the case the defendant’s book of accounts, and relied upon sundry alterations, discrepancies, erasions and interlineations in the defendant’s account against the plaintiff, to impeach the auditor’s report upon the set-off, which had been found upon the book and suppletory oath of the defendant.</p> <p>The defendant’s counsel thereupon moved the court to order the counsel for the plaintiff to point out the evidence, from the book, on which he relied to invalidate it, either from inspection or otherwise. The counsel for the plaintiff then stated that he relied only upon the appearance of the account charged against the plaintiff, and should not refer to any other part of the book; and the court declined to grant the motion.</p> <p>The verdict was for the plaintiff, and the defendant alleged exceptions.</p>

Slander. “And the plaintiff says, that the female defendant accused him of having had a loathsome venereal disease, and, with that disease upon him, having contracted marriage, and given the disease to his wife, by words spoken of the plaintiff, who was then and there lately married to his wife, substantially as follows : ‘ Golderman has the venereal disease. It is an old affair, and being married has brought it on again. He is the guilty one.

<p>An agister of cattle has no lien upon them for their keeping.</p>

<p>Action of contract. “ And the plaintiff says, the defendant owes him one hundred and seventy three dollars and fifty cents for money received by his agent Laban S. Beecher, of one Leonard, to the plaintiff’s use.” Answer, that the defendant “ never, by himself or agent, received the money claimed by the plaintiff in this action, or any other sum for the plaintiff, or to which the plaintiff is in any way entitled.”</p> <p>At the trial in the court of common pleas, the plaintiff offered evidence tending to show that Laban S. Beecher, as agent of the defendant, received money of Lyman Willard to the plaintiff’s use. The defendant offered evidence tending to show that Beecher did not act as his agent in the transaction. But Sanger, J ruled that Beecher’s agency for the defendant was admitted by the answer, and could not be denied by the defendant at the trial. A verdict was returned for the plaintiff, and the defendant alleged exceptions.</p>

<p>A respondent to a complaint under the mill act, by paying money into court for damages already incurred, and offering to pay a certain sum annually for future damages, admits the complainant’s right of action, and cannot afterwards rely on a plea in bar, previously filed, denying such right.</p>

<p>The price of grass growing on the land of the vendor could not be declared for by either of the common counts; and cannot therefore be sued for under Si. 1852, c. 812, § 2, in a count on an account annexed.</p>

Action op contract on an account annexed for the price of wood sold standing on the land of the plaintiff’s testator. At the trial in the court of common pleas, there was evidence of the sale of the wood by auction, not to be cut off until the price was paid.

<p>Action of contract by the assignee in insolvency of Noah Sanborn, upon a promissory note for $700, made by the defendant, and payable to said Noah in three months from date, and attested by a subscribing witness. The defendant denied the execution and the consideration of the note, and pleaded the statute of limitations.</p> <p>The defendant also filed a declaration in set-off, containing a count on an account annexed, to the amount of §485, consisting of cash, rent and goods sold; and another count, which alleged that said Noah, on the 26th of January 1841, obtained for his own accommodation the defendant’s indorsement of. his note for §600, payable in four months from date, and on the 28th of May 1841 paid $200 thereof, and the time for payment of the residue was, by agreement of all the parties thereto, extended four months, and on the 2d of October 1841, the defendant being legally bound by his indorsement thereon, and Noah being unable and having neglected and refused to pay it, the defendant paid the note at the Bunker Hill Bank, whereby Noah became indebted to the defendant in the sum of $400, and was so .ndebted, with interest thereon, at the time of his insolvency, and no part thereof had been paid.</p> <p>Trial before Metcalf, J., who made a report thereof, which stated the substance of the pleadings, and the residue of which was thus:</p> <p>“ In order to prove said last item, the defendant produced the books of said bank, to show the amount paid on said note, and also the original check by which he paid it. He also produced evidence tending to show that said Noah obtained the defendant’s indorsement of said note, to raise money on it at said bank, and that, when it became due, Noah told the defendant he must pay it, because he could not, and agreed to repay as soon as he could.</p> <p>“ To this evidence, and the form of stating the claim in the defendant’s declaration in set-off, the plaintiff objected, because the note should have been declared on by the defendant as holder of the same. The court overruled both these objections, and admitted the evidence aforesaid.</p> <p>“ The plaintiff objected that many items of the defendant’s set-off were due and payable more than six years before the commencement of the present action, or the filing of the set-off. But the court ruled that, the insolvency proceedings having been commenced within six years of the time when said items became due and payable, the time since said proceedings were commenced was not to be reckoned in making out the time of limitation. The jury returned a verdict for the defendant.</p> <p>“ If either of these rulings of the court is erroneous in matter of law, then the verdict is to be set aside, and a new trial granted; otherwise, judgment is to be entered on the verdict for the defendant.”</p>

<p>Action of tort for the obstruction of an ancient watercourse running through the lands of the plaintiff and of the defendant, in Cambridge.</p> <p>At the trial in this court, the plaintiff claimed the right to the use of the watercourse for the draining of his land, and offered evidence of his right, and of an obstruction of the watercourse by the defendants, under a claim of right, on their own land.</p> <p>A highway separated the land of the plaintiff from that of the defendant, and the watercourse passed through a culvert which had been constructed under the highway at the time of laying it out. The defendants offered to prove that before the commencement of this action, but after the obstruction complained of, the city of Cambridge had built a common sewer and drain in the highway, by which the plaintiff’s land was drained as effectually as by the watercourse, although in a different direction.</p> <p>There was also evidence that, at the time of the alleged obstruction, the land of the plaintiff was let on an oral lease from year to year, for the purpose of pasturage.</p> <p>Bigelow, J. ruled that neither the evidence offered nor that introduced would prevent the maintenance by the plaintiff of an action to establish his right and title to the use of the watercourse, if the same was obstructed by the defendants under a claim of right; although it would prevent the recovery of any but nominal damages.</p> <p>The jury found a verdict for the plaintiff for nominal damages, and the judge reported the case to the full court.</p>

Action of contract to recover the amount of certain bonds of the Concord and Claremont Railroad Company, a corporation duly established by the laws of New Hampshire, bearing date and issued on the 1st of February 1850, and payable in five years from date, with interest.

<p>A levy of an execution for the possession of land, issued on a judgment on a writ of entry to foreclose a mortgage, affects no rights of a bonajide purchaser without notice before-the execution is recorded pursuant to SL 1848, c. 144, nor against one who after such record acquires the title of such purchaser.</p>

<p>Audita querela. In the writ, Chamberlain was summoned “to answer unto the grievous complaint of” Stone “in an action of tort, who complaineth and saith that” Chamberlain on the 3d of March 1854 sued out of the clerk’s office of this court a writ of execution in favor of Chamberlain against Stone for the sum of $917.68 costs of suit, for which, as stated in said execution, judgment was rendered on the 2d Tuesday of October 1851, to wit, the 30th day of December 1851, and was on the 7th of March 1852 delivered by Chamberlain to a deputy sheriff for service, and was served on the same day by arresting Stone at Sherburne, and carrying him to Cambridge, and committing nim to jail, and returned to the court.</p> <p>The declaration then averred that no judgment, as stated in .uaid execution, was ever rendered by the court; that Chamberlain did recover judgment against Stone on the 2d Tuesday of October 1851, to wit, on the 1st of March 1852, as appeared by the records of the court, now in full force and unreversed, for said sum of $917.68 costs of suit; and that no other judgment than that was ever rendered by said court in favor of Chamberlain against Stone. The declaration concluded by averring that, in consequence of said arrest and imprisonment, the plaintiff was put to great trouble and expense, compelled to pay large sums of money, and greatly distressed both in body and mind; and praying that said execution might be set aside and cancelled, and all proceedings under the same stayed and vacated</p> <p>The defendant pleaded not guilty, and a hearing was had before Bigelow, J., who reserved the case upon the following report:</p> <p>The defendant moved that the writ be quashed, because it was described in the declaration as “ an action of tort.” But the judge allowed the plaintiff to amend the declaration in this particular, and overruled the motion.</p> <p>The plaintiff gave in evidence the extended record of this court in the former action, by which it appeared that judgment was rendered in favor of Chamberlain at October term 1851 for the sum of $917.68 costs of suit; and proved by the docket of actions at that term that the judgment was rendered on the sixty-first day of the term, which was the 1st of March 1852, the sixtieth day being the 30th of December 1851; and also put in an alias execution for costs in said action, in favor of Chamberlain against Stone, in which said judgment was stated to have been rendered on the 2d Tuesday of October 1851, “ to wit, on the thirtieth day of December 1851,” and the sheriff was directed to collect said sum of $917.68, “ with interest thereon from said thirtieth day of December.”</p> <p>The wrong, for which the plaintiff sought to maintain this writ, was, that through the error of the clerk, in making up said execution, he was required to pay interest on said judgment from the 30th of December 1851, instead of from the 1st of March L852.</p> <p>It was admitted that the plaintiff was arrested on said execution and committed to jail on the 7th of March 1854, and was enlarged on the same day, by giving a bond for the prison limits ; that he was surrendered to the custody of the jailer on the fourth day of April following, and was on the same day enlarged upon the suing out of the present writ, upon giving bonds in compliance with the provisions of the statute, under an order of one of the justices of this court.</p> <p>Upon these facts, the defendant contended that the evidence did not support the issue; and that the writ of audita querela was not the proper remedy for the error and wrong of which the plaintiff in his suit complained.</p> <p>The defendant also moved that the original record in the former case be now amended, by order of the court, so as to state the true time of the rendition of said judgment, and that said execution be amended, to conform to the judgment.</p> <p>If the court are of opinion that the plaintiff should be allowed to amend his writ as above stated, and that this writ can be maintained on the foregoing facts, or, after an amendment of the record and execution, (if the court are of opinion that such amendment is competent to affect the proceedings in this case, and ought to be allowed,) such judgment is to be rendered in favor of the plaintiff as law and justice may require; otherwise, the plaintiff is to become nonsuit.</p>

<p>Action of tort for removing a dam erected by the plaintiff upon the defendant’s land. The defendant admitted the removal ; and the question of his right to remove it was submitted to the decision of the court upon the following facts:</p> <p>The land upon which the plaintiff’s mill stands, together with the mill, and the privilege appurtenant thereto, was conveyed by John Eaton on the 4th of March 1819 to Josiah Kendall and the plaintiff, who in 1820 erected a new mill in the place of the old one, upon the same site. In 1830, Josiah conveyed all his interest therein to the plaintiff. Before the conveyance from Eaton, and ever since that conveyance, the owners or occupants of the mill have maintained and kept in repair a dam upon the defendant’s land, three quarters of a mile above their mill, on the same stream, for the purpose of creating a reservoir for the supply of the mill, by flowing the lands of the defendant and of other persons above that dam. The land of the defendant, thus covered and flowed by the dam, was part of the farm which formerly belonged to Joshua Kendall, the plaintiff’s father, who died in 1818. In 1819 Joshua Kendall, another son of said Joshua, bought out the other heirs and became sole owner of the farm, and in 1846 died, leaving no issue, and his estate descended to the plaintiff and his other brothers and sisters, who on the 1st of May 1847, in consideration of the sum of $7,000, remised, released and quitclaimed to the defendant “ all the right, title and interest of us and each of us in and to” said lands, (described by metes and bounds,) “ hereby quitclaiming all our right, title and interest in and to all the real estate, situated in West Cambridge and Waltham, owned by Joshua Kendall at the time of his decease, reserving however, from the operation of this conveyance, all of that portion of said estate, included in the above description, which was set off to Hannah Kendall as her dower,” with covenants against “ all incumbrances made or suffered by us or either of us respectively,” and of warranty against the “ lawful claims and demands of all persons claiming by, through or under us, but against none other.”</p> <p>The decision was made at October term 1857.</p>

<p>Action of contract on a judgment for damages and costs, recovered by the plaintiff against the defendant in the court of common pleas.</p> <p>At the trial of this action in that court, there was evidence of these facts: The plaintiff brought scire facias against Josiah G. Chase and Page, sureties of Daniel Gale on a bail bond; and, pending that action compromised with Chase, who had appeared and answered, and became nonsuit as to him, and took judgment against Page, who was defaulted, for the whole amount of debt, costs and interest, which was the judgment now declared on. The plaintiff afterwards assigned to Chase the judgment against Page, Chase orally agreeing to pay the plaintiff one half of what might be recovered of Page or of Gale; and some time after assigned to Chase, for a sum of money, all his remaining interest in that judgment, and it was orally agreed that Chase might use the plaintiff’s name in collecting it. The present action was brought by the direction of Chase, for his exclusive benefit, and at his cost.</p> <p>Upon this evidence, Mellen, C. J. ruled that, although Chase and Page were liable jointly and severally as sureties on the bail bond, still these facts did not amount to a satisfaction of the judgment declared on, nor constitute a defence to this action; and directed the jury to return a verdict for the plaintiff for the whole amount of the judgment, which they did; and the defendant alleged exceptions.</p>

Petition for a review of a judgment rendered on the default of the petitioner in an action at law brought against him by the respondent.

<p>in an action by the assignee of an insolvent debtor against an officer to recover the value of property attached and sold by him on mesne process against the debtor, the defendant, after proving a demand upon him for the property by a mortgagee thereof, may give in evidence a writ subsequently sued out against him by the mortgagee containing a bill of particulars of the property, for the purpose of showing that the mortgagee was still insisting on his rights.</p>

<p>One who puts his name on the back of a bill of exchange under that of the payee cannot limit by parol evidence his liability as indorser.</p> <p>A second indorser cannot, in an action against him on the bill, dispute the legal capacity of the payee to indorse, on the ground that she was a married woman.</p> <p>"Che presentment for acceptance in Boston during banking hours on Wednesday tí a bill of exchange, payable at sight, indorsed to the holder in Lowell after banking hours on the previous Saturday, and forwarded by the holder to Boston on Tuesday, is sufficient to charge the indorser.</p>

<p>Action of tort for constructing sewers and drains in Lowell, leading and emptying into a canal constructed and owned by the plaintiffs. The parties submitted the case to the court upon the following statement of facts :</p> <p>“ The plaintiffs are a corporation, created by an act of this commonwealth, passed on the 27th of June 1792, which said act and the several acts in addition thereto, are to be made a part of this case.</p> <p>“ The plaintiffs, by virtue of said acts, built a canal called the Pawtucket Canal, from the head of Pawtucket Falls on the Merrimack River, then in Chelmsford, now in Lowell, to a point in the Concord River near its discharge into the Merrimack, and also various branch canals for the purpose of distributing water for manufacturing purposes, in driving water mills in various parts of the city. These canals have, down to the present time, been maintained for the purposes of navigation, and also for manufacturing purposes, by the plaintiffs.</p> <p>“ The defendants, within six years before the commencement of this action, located and subsequently built six sewers or drains, leading from points on the southerly side of said Pawtucket Canal, above the point where Thorndike Street crosses the same, into said canal; and said sewers and drains have since their erection discharged themselves into said canal, thereby injuring the same, and corrupting the water, filling up the canals, and rendering them less valuable for manufacturing and other purposes, as claimed by the plaintiffs, but not admitted by the defendants. These drains were laid down through the land of the plaintiffs, owned by purchase, and bordering on their canal; and the plaintiffs were notified, in the proper manner provided by law and the city ordinance, of the intention of the city to lay down such drains through said land. The plaintiffs objected to so constructing said drains as to discharge into their canal. No damages were ever allowed dr paid the plaintiffs for the construction of said drains, except in one case, where nominal damages were allowed, which the plaintiffs refused to accept.</p> <p><( The defendants claim that where said Pawtucket Canal receives said sewers and drains it was constructed through low swampy ground, and that, where the canal now is, a small natural brook formerly existed, which discharged itself into the Concord River; and that the land on the south of said canal, through which said sewers and drains now run, was so situated that the waters from it naturally drained into said low land and brook, and so into Concord River.</p> <p>“ At the time said Pawtucket Canal was built, the land on the southerly side thereof, through which the drains and sewers aforesaid were built by the city, was not occupied by any dwelling houses or buildings ; and it was not until many years after, that the same became occupied by dwelling-houses and buildings.</p> <p>“ If the court are of opinion that the plaintiffs can maintain this action under the circumstances aforesaid, taking the facts in reference to the low ground and brook as claimed by the defendants, then the action is to stand for trial for the purpose of ascertaining the damages. If the court are of opinion that the said facts claimed by the defendants alter or vary in any way the legal relation of the parties to each other, or the rights of the plaintiffs or the liabilities of the defendants, then the case is to be submitted to a jury to ascertain the facts in relation thereto. But if the court are of opinion that, even if the facts in relation to the low ground and brook aforesaid did not exist, the plaintiffs cannot maintain this action, then they are to become nonsuit.”</p> <p>This case was argued at Cambridge in October.</p>

<p>In an indenture of partition of lands in 1744 among the heirs of one deceased in 1742, a description of one parcel as “ fifty nine acres of land lying in S., being part of the home' stead of the said deceased,” is no evidence of his having had a dwelling in S. in 1695.</p> <p>Grants of land are admissible in evidence as circumstances tending to show that the grantee, at their respective dates, dwelt in that part of the town in which the land was.</p> <p>A description, in a town record, of land laid out in 1696, as “ adjoining to the fence of C.’s home pasture,” is admissible, against a town subsequently created out of part of that town, to prove that C. then dwelt in that part of the town in which the land was.</p>

<p>A person occupying land under an agreement with the owner to purchase it, but paying no rent, is not entitled to remove a wooden building with stone foundations, placed thereon, and used for a stable and shoemaker’s shop; especially if the building was elected in consideration of the owner’s postponement of the payment of one instalment of the purchase money.</p>

<p>The assignee of an insolvent debtor may maintain a writ of error to reverse an erroneous judgment against the debtor; and cannot therefore avoid it by plea and proof.</p>

<p>Under a power, in a mortgage of real estate, upon default of payment, to enter and take possession immediately, and sell the premises, a sale cannot be made without a previous entry and talcing possession, or, at least, a demand for possession and a refusal.</p>

<p>A vote of a town to set off a certain person by name, without adding ** and his estate,” from one school district to another,.is invalid, although by another vote passed at the same meeting the town set off another person “ and his property ” from the latter district to the former.</p>

<p>Uhder a valued policy on the outfits of a whaling ship, “ with liberty to touch at all ports or places for refreshments, and to sell her catchings, or ship them home at the risk of the assured,” in which it is agreed that “ one fourth of the catchings shall replace the outfits consumed, except that catchings shipped home from the Cape de Verd Islands or this side thereof shall be at the risk of the insured, without diminution of the value of outfits at the time,” if less than three fourths of the catchings are discharged from the ship the other side of the Cape de Verd Islands and shipped home, neither the whole amount of the catchings sent home, nor any proportion thereof in the nature of salvage, is to be deducted from the amount of a subsequent total loss of the vessel and outfits. And if the vessel is not lost, but arrives home in safety, the insurers are entitled to a pro rata premium on catchings so sent home.</p>

<p>Action of contract on a policy of insurance, issued by a stock company, upon the plaintiff’s stock in trade, fixtures, furniture and tools, contained in a certain wooden building, and described in the application, which was made a part of the policy and warranty on the part of the assured. That application contained, in answer to a request to “ state the character and kind of property to be insured,” the following statement: “ Dry goods, groceries, hardware, crockery, glass and wooden ware, Britannia and tin ware, stoves of various kinds, and various other wares and merchandise.”</p> <p>By the policy, “ it is agreed and declared to be the true intent and meaning of the parties hereto, that in case the above mentioned premises shall, at any time after the making and during the continuance of this insurance, be appropriated, applied or used to or for the purpose of carrying on or exercising therein any trade, business or vocation, denominated hazardous or extra-hazardous, or specified in the memorandum of special rates, in the terms and conditions annexed to this policy, or for the purpose of keeping or storing therein any of the articles, goods or merchandise, in the same terms and conditions denominated hazardous or extrahazardous, or included in the memorandum of special rates, unless herein otherwise specially provided for, or hereafter agreed by this company in writing, and added to or indorsed upon this policy, then and from thenceforth, so long as the same shall be so appropriated, applied, used or occupied, these presents shall cease, and be of no force or effect; and it is moreover declared, that this policy is made and accepted in reference to the conditions hereto annexed, which are to be used and resorted to in order to explain the rights and obligations of the parties hereto, in all cases not herein otherwise specially provided for.”</p> <p>Annexed to the policy were four “ classes of hazards,” denominated, respectively, “ not hazardous,” “ hazardous,” “ extra-hazardous,” and “ memorandum of special hazards, upon which special rates of premium will be charged,” the two first of which were these : “ Goods not hazardous are to be insured at the rate of the building in which they are contained, and are such as are usually kept in dry goods stores; including coffee, flour, linen, indigo, potash, rice, spices, sugars, teas, threshed grain, and other articles not combustible.” “ The following trades and occupations, goods, wares and merchandise are denominated hazardous and are to be charged ten cents per $100 in addition to the rate of the building in which they are contained, namely, basket sellers, cotton in bales, coppersmiths, china, earthen or glass ware, or plate glass in packages, boxes or casks, groceries with any hazardous articles, hardware, wooden ware, rags,” and many others.</p> <p>Among the “conditions of insurance,” also annexed to the policy, were the following: “ In relation to the insurance of goods and merchandise, the application must state whether or not they are of the description denominated hazardous, extra-hazardous, or included in the memorandum of special rates.” “ If, after insurance is effected upon any building or goods in this office, either by the original policy or by the renewal thereof, the risk shall be increased by any means whatsoever within the control of the assured, or if such buildings or premises shall, with the assent of the assured, be occupied in any way so as to render the risk more hazardous than at the time of insuring, such insurance shall be void and of no effect.”</p> <p>At the trial, the facts necessary to make out a prima facie case for the plaintiff were proved or admitted. One ground of defence relied on was that a part of the plaintiff’s stock consisted of rags, which was admitted to be the fact. But it was proved “ that it is usual for country stores, having a general stock of goods like the plaintiffs, to keep and dispose of rags in the same manner that the plaintiff did.” Dewey, J. reserved for the consideration of the full court the question whether, upon these facts, the defence could be maintained.</p>

<p>A policy of insurance, expressed to be “ from-the first of August 1854 to the first of August 1854,” may be shown, by reference to the indorsements made by the insurers on the back of the policy, to the application which is made a part of the policy, and to the amount of the premium and deposit note, to be an insurance for five years from the 1st of August 1854.</p> <p>A waiver of the right to any information upon the matters inquired of in one of the interrogatories to an applicant for an insurance may be inferred from th'e issuing of a policy upon an application in which this interrogatory is unanswered; although the applicant has answered in the negative another interrogatory, whether “ there are any other circumstances affecting the risk.”</p> <p>Evidence that a policy of insurance, intended as a substitute for a policy issued by another company (to whose business these insurers had succeeded) upon a previous application, was sent by these insurers, with a blank application and deposit note, to the agent of the assured, who retained the new policy, and signed the application and deposit note in blank, and returned them to the insurers, and did not see them again until they were produced by the insurers, with the blanks filled, at the trial of an action on the policy, will not warrant the inference that the assured wa« not responsible for the answers contained in the application, except to the extent to which the insurers, in filling the blanks, exceeded the implied authority conferred upon them by the assured by so returning the blank application.</p>

<p>In an action by a mutual fire insurance company to recover an assessment upon a deposit note, an averment, in the declaration, that the directors “ made, agreeably to their act of incorporation and by-laws, an assessment” on said note, is sufficiently answered, under St. 1852, c. 812, § 14, by a denial M that any such assessment has been made as is set forth in the plaintiffs’ declaration,” to authorize the defendant at the trial to deny the validity of the assessment.</p> <p>A mutual fire insurance company cannot maintain an action to recover an assessment laid upon one class only of holders of their policies, without proving that they have adopted the Si. of 1849, c. 107, which authorized them to divide their risks into classes.</p>

<p>By the Rev. Sts. c. 109, § 47, a judgment against any one as a trustee in foreign attachment acquits and discharges him from all demands by the principal defendant for money paid by the trustee upon an execution issued on the judgment, if the officer's return shows due service of the trustee process upon the principal defendant and the trustee, ,even if the principal defendant was not actually served with notice, and did not appear.</p>

<p>The construction of a dam across a navigable stream, in such a manner as to obstruct the floating up of spars, gives no right of action to a spar maker who, after the construction of the dam, purchases land above, which would be adapted for use as a spar yard but for this dam, and who, before such construction, occupied other land above for the same purpose.</p>

<p>It an action against a town to recover a reward offered by its selectmen, it is not sufficient to allege that the selectmen made the offer of reward, without alleging that they did it in behalf of the town.</p> <p>On an offer of reward “ to any person who will give information to the subscribers that will lead to the detection and conviction of the person who set fire to the dwelling-house of J. S.,” a decimation which alleges that the plaintiff arrested such a person, and gave information thereof to the defendants, whereupon such proceedings were had that the prisoner was convicted, is insufficient.</p>

<p>Action of contract on a promissory note for one hundred and fifty dollars, made by the defendants as partners, dated the 26th of May 1847, and payable on demand. Answer, the statute of limitations. The parties submitted the case to the court upon the following statement of facts :</p> <p>“ Subsequently to the date of said note, and less than six years before the date of the writ, sometime in the year 1849, the defendants petitioned for the benefit of the insolvent act of 1838; and in the list of debts, at that time made, subscribed and sworn to by the defendants, was the note on which this action is founded. The note was duly proved against the estate ; and a dividend of thirty two dollars and fifty two cents was paid by the defendants’ assignee on the same, which was indorsed thereon by the plaintiffs, without the knowledge or consent of the defendants. The defendants never received a discharge from their debts in insolvency, owing to an informality in the proceedings on their part.</p> <p>“ If the court shall be of opinion, on these facts, that the action is not barred by the statute of limitations, judgment is to be given for the plaintiffs; otherwise, for the defendants.”</p>

<p>Action of contract by a manufacturing corporation, doing business in Pawtucket in this commonwealth, to recover back so much of a tax paid by them, as was assessed upon their stock in trade, and their stock in a gas company in Pawtucket, R. I. The case was submitted to the decision of the court upon a statement of facts, the material part of which appears in the opinion.</p>

<p>Bill in equity filed on the 28th of July 1855 to redeem land from a mortgage made to the defendant by William C. Kent and David D. Kent. The plaintiff’s only interest in the premises was by virtue of a bond made to him by the mortgagors since said mortgage, and conditioned to convey the land to him upon his paying the obligors certain sums of money at certain times, and paying or satisfying this defendant for the amount due on this mortgage, and all taxes to be assessed upon the property. The defendant denied that the plaintiff had fulfilled his part of the conditions of the bond; and also contended that, if he had, he could not maintain this bill, because no conveyance of the premises, or of the equity of redemption therein, had ever been made to him. Bigelow, J. reported this preliminary question for the consideration of the full court; the parties agreeing that if the bill could be sustained this point, a trial should be had on the questions of fact involved in the case; if not, the bill should be dismissed.</p>

<p>A divorce from the bond of matrimony may be decreed, under the St. of 1838, c. 126, for wilful desertion for five years, although the guilty party has been in the house of correction during the greater part of the five years, under successive sentences, beginning a few months after the desertion, and with very short intervals between the terms of imprisonment.</p>

<p>Petition of the town of Lexington, by its selectmen, for a mandamus to the town treasurer to compel him to pay the amount of an order drawn by said selectmen upon him in favor of Charles A. Butters, for work done by him in altering a highway under an agreement made by him with the selectmen, under a vote of the town, and pursuant to an order of the county commissioners ; which draft the treasurer had refused to pay, upon the ground that it exceeded the expense of such alteration as submitted to the town, at a legal meeting, by the selectmen, in an estimate of the necessary annual appropriation for current expenses, and accepted by the town; although, as the petition alleged, there was a sufficient sum in the treasurer’s hands, belonging to the contingent funds of the town, to meet this order. The petition further alleged “ that said selectmen are the officers of said town, duly authorized to issue orders to pay over and account for the money belonging to said town, and that the same has uniformly heretofore been paid over in such sums, to such persons, and at such times, as the selectmen for the time being have ordered, by their orders in writing to said treasurer addressed.”</p>

<p>It is no ground of abatement of a trustee process, brought in the county where the defendant resides, and duly served upon him, that the trustee resides out of the Commonwealth.</p>

<p>Action of contract to recover a share of the profits of a farm in Seekonk, owned by the plaintiff and defendant as tenants in common. At the trial in the court of common pleas, it appeared that the parties were tenants in common of the land for eight months, during which time the defendant had possession of the whole estate, taking from it all the crops, and receiving all the profits ; and that, before this action was brought, the tenancy had been terminated by a sale and conveyance of the plaintiff’s share to the defendant, at a price which had been fixed at a smaller sum than the value of the share, on account of the value of the hay standing on the farm, which the defendant would have, and which he did actually cut before the conveyance. Upon this evidence, Bishop, J. ruled that the plaintiff could not maintain his action; the jury returned a verdict for the defendant, and the plaintiff alleged exceptions.</p>

<p>A person, not a party to a promissory note, who, after its delivery to the payee, places Jus name upon its back, pursuant to an agreement made with the payee before the making of the note, though without the maker's knowledge, is liable on the note as a joint promisor.</p> <p>Under the St. of 1852, c. 312, § 3, judgment and execution against one of two joint and several makers of a note, pending exceptions taken by the other, is no bar to a judgment against the first also upon the overruling of the exceptions.</p>

<p>Action of contract on a check payable to the plaintiff and signed “ Benjamin Lindsey, by George G. Coffin.” There were also counts for money lent, and for money had and received.</p> <p>At the trial in the court of common pleas, before Morris, J., the evidence tended to show “that Coffin obtained the money of the plaintiff for the use of the defendant, and that it was applied for the benefit of the defendant in his business; that Coffin was, at the time the check was drawn and dated, the financial agent and confidential clerk of the defendant, and had charge of his money affairs, while the defendant was engaged personally as editor of a newspaper; that Coffin had, on various occasions, under the direction and with the assent of the defendant, accepted drafts drawn on the defendant, drawn orders on tradesmen, and borrowed and hired money of various persons for the use of the defendant and in the defendant’s name, and given checks, signed as above, to the persons from whom the money was had; that he had, for the defendant, accepted drafts drawn on the defendant, which drafts had been left at the banks for collection, and been paid; and that orders upon tradesmen, signed as above, payable to operatives in the defendant’s employ, had been accepted and paid by the drawees, and allowed by the defendant in settlement of the accounts of such tradesmen.”</p> <p>It was admitted by the plaintiff that a rate of interest, greater than was allowed by law, was reserved in this check; that a sum equal to three times such excess should be deducted, according to the statute ; and that the check was in fact made and signed six weeks earlier than its date.</p> <p>It did not appear that specific authority had been given by the defendant to Coffin to borrow from the plaintiff, or that express authority had been given to procure money of him at more than the legal rate of interest. But there was evidence to show that on one occasion the defendant was informed by Coffin that the defendant’s funds were insufficient to meet his liabilities, and that the money could not be obtained anywhere at the legal rate.</p> <p>The defendant requested the court to instruct the jury, “ that evidence that Coffin kept books, paid bills, accepted drafts, drew checks to pay the defendant’s debts, and receipted bills in his name, would not authorize the jury to infer general authority to borrow money in the defendant’s name; that evidence that Coffin had a general authority to borrow money in the defendant’s name would not authorize the jury to infer his authority to borrow money on usurious terms; that, it being admitted that the check declared upon was given for money borrowed upon usurious terms, the plaintiff must prove not only an express authority to borrow money on usurious terms, but an authority to borrow of the plaintiff the sum sought to be recovered by this action ; that if Coffin borrowed this money without authority, the mere fact that the money so borrowed was appropriated to the payment of the defendant’s notes or other indebtedness, or business expenses, would not authorize the jury to find for the plaintiff in this action ; and that a general authority from the defendant, to draw checks upon banks where money was deposited to the defendant’s credit, would not authorize Coffin to postdate and otherwise draw such checks in manner and form like the check declared upon.”</p> <p>The court declined to instruct the jury as requested ; but instructed them “ that evidence that Coffin kept books, paid bills, accepted drafts, drew checks to pay the defendant’s debts and receipted bills in his name, would not, standing alone, authorize the jury to infer a general authority to borrow money in the defendant’s name, but might be considered by the jury, in connection with the other evidence in the case, tending to show such general authority; that a general authority to borrow money might be shown by direct evidence of such authority expressly given; or it might be inferred from the relation in which Coffin stood to the defendant, from the mode in which the business was transacted by Coffin, and the defendant’s knowledge of and acquiescence in the same, from the whole course of dealing, and from other circumstantial evidence ; and that it was for the jury to determine, from the whole evidence in the case, whether Coffin had such authority from the defendant ; that if Coffin had a general authority to borrow money in the defendant’s name for the exigencies of the defendant’s business, and, to meet those exigencies, borrowed it at rates exceeding the legal rate, the defendant would be bound by such acts of Coffin, to the same extent as though performed by himself personally.”</p> <p>The court further instructed the jury “ that if they were not satisfied that Coffin had authority to borrow the money which the plaintiff sought to recover in this action, yet if they were satisfied by the evidence that said money was expended by Coffin in the defendant’s business, or in payment of his debts, and that the defendant had the use and benefit of it, the plaintiff was entitled to recover the same upon the count for money had and received, subject to the legal deduction for any forfeiture incurred by the usury.”</p> <p>The jury found a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Action of tort for entering upon the plaintiff’s land in Fair-haven, and removing a fence.</p> <p>At the trial in the court of common pleas, before Morris, J., the plaintiff claimed title, through his father, Walter Davis, by-descent from Nathan Davis. The defendant claimed title under a deed to Wing Howland from Nathan Davis, dated February 1st 1827, (and expressed to be in consideration of §200,) of part of his farm, described as “ containing ten acres, be the same more or less,” and by metes and bounds, which, after running to a certain wall, ran “thence northerly on said wall, as it now stands, to said Wing Howland’s land.”</p> <p>The question in dispute was, whether a piece of land, called at the trial “ the jog,” which contained about five or six rods, and included a spring and well of water, passed by this. deed. It appeared that at the date of this deed a stone wall extended in a direct line from each end of the boundary towards the other end, but with an interval of several rods; and that a continuation of the boundary line straight across this gap would give the land in controversy to the defendant. But the plaintiff contended that the true boundary across this interval was in the line of a wooden fence, which, at the date of the deed, passed circuitously around said land, and which would leave it part of the farm of Nathan Davis.</p> <p>The court ruled and instructed the jury “ that, in the absence of all controlling evidence, the true boundary would be a direct line from the end of one wall to the opposite wall; but that if the jury should be satisfied that, at the date of the deed, there was in fact a fence passing from wall to wall around the ‘ jog,’ and should be also satisfied, from the acts of the parties to the deed, at the time of its execution and afterwards, that they understood and intended said fence as the true boundary between their lands, then the ‘jog’ would not pass by the deed.”</p> <p>The court permitted the plaintiff, against the objection of the defendant, to introduce the testimony of Walter Davis, son of Nathan, and father of the plaintiff; also that of Walter A. Davis, a brother of the plaintiff. Walter Davis testified that, “ soon after the making of the deed, Wing Howland and himself went upon this line, and Howland then said he wanted a wall made around the watering place, where the fence was, and brought a stake to be put where the wall should be, and the stake was then put there.” Walter A. Davis testified that in 183G, while Wing Howland owned the farm conveyed by the deed, and Walter Davis owned that now owned by the plaintiff, How-land told him “ he wanted to take down a few lengths of the fence, so that his cows could go across, and not be obliged to go around, and, when we wanted the water, he would put it back again ; ” and that this was said near the spring.</p> <p>To show the situation and circumstances of this “jog” of land, in its relations to the plaintiff’s farm, the plaintiff offered to prove by Nathaniel S. Spooner its value as a watering place to the plaintiff’s farm. This evidence was objected to by the defendant, but admitted by the court; and Spooner testified that he was acquainted with the Nathan Davis farm, and there was no other permanent water on the farm, except this spring; that the “jog” itself, independently of the spring, was not worth more than ten dollars an acre; but if he owned the farm, he would not part with the spring for $.1000, and that the fail value of it would be from $250 to $500.</p> <p>It appeared in evidence that, assuming the direct line to be the true boundary, there would be in the farm conveyed an area of only eight acres and fifty eight rods. The defendant requested the court to instruct the jury “that if in ascertaining the true boundary they rejected the direct line, it would be their duty to take as the boundary on that side of the farm any other continuous line of wall, if such could be found from the evidence, which would come nearest to giving to the grantee’s farm an area of ten acres, as mentioned in his deed.” But the court declined to give this instruction.</p> <p>The jury found a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>Complaint under the mill act. A trial before the sheriff resulted in a verdict for the complainant, which was returned by the sheriff to the court of common pleas with a certificate of the following rulings:</p> <p>The respondents offered in evidence a copy of a verdict rendered by a sheriff’s jury in 1833, and accepted by the court, upon a similar complaint by Seba Carpenter against Thomas Harkness and Thomas J. Stead, one clause in which was thus : “And the said jury say that such flowing is necessary to the height of the present dam, and no higher, the top of said dam— meaning the top of the present flashboards—being on a level with a, mark in a rock, which rock is on the westerly side of the pond, about eighteen rods from said dam, up stream, and at all the time during the whole year.”</p> <p>At the hearing of the present complaint, the parties made the following agreement in writing: “ It is agreed that no damages are to be assessed for any flowing by the defendants to the height prescribed by the jury in the case of Seba Carpenter v. Thomas Harkness Sf Thomas T. Stead, in the year 1833 ; but that in this case such damages only shall be assessed as the plaintiff has sustained by a flowing of his lands, not before authorized. And it is further agreed that, if the jury find that the flowing by the defendants has been higher than was authorized by the judgment before named, they shall direct and determine the time height thereof, establishing it at the height stated in the before named judgment, and that the defendants will hereafter keep the same to the said height; and the plaintiff, in consideration, agree to waive any other claim for damage under the complaints aforesaid, except past damages for three years next previous to the date of said complaints, for such injury as has resulted from flowage not before authorized. The defendants, by this agreement, do not intend to waive their objections made to the rulings of the sheriff, on the admissibility of testimony, or on the meaning of the verdicts and judgments before mentioned, respecting the height to which the defendants are entitled to flow the water by their dam.”</p> <p>The respondents, on a subsequent day, objected to the form of the warrant for a jury, because it did not set forth the pleadings upon which it was ordered. But the sheriff overruled the objection.</p> <p>Evidence of a prescriptive right to flow the land in question was offered by the respondents, and excluded by the sheriff.</p> <p>The respondents contended that, under the former verdict, they were entitled to keep the dam at the height of the mark in the rock described, and to flow as high as the dam, kept at that height, might cause the water to rise. But the sheriff instructed the jury that, by a proper construction of the verdict, the respondents had no right to raise the water so that it should flow higher than to the top of the dam as it then was, or to the mark in the rock.</p> <p>The complainant then offered to leave it to the jury, as a question of intent of the parties, what was meant by the verdict; and to offer evidence upon that point. But the sheriff ruled that it was a question of law, and not for the jury, and refused the evidence.</p> <p>The court of common pleas accepted the verdict, and the re« spondents appealed.</p>

<p>Action of tort against the selectmen of Fall River for 1853, for refusing to receive the plaintiff’s vote at the annual election for state officers in November of that year. Writ dated May 29th 1854.</p> <p>At the trial, the defendants admitted that the plaintiff had all the legal qualifications of a voter, except a domicil in Fall River, and that was the only question submittted to the jury by Bigelow, J., who reserved for the consideration of the full court the question whether a verdict for the plaintiff could be supported upon the following evidence :</p> <p>The plaintiff had been a resident and voter in Fall River for ten years prior to the 6th of May 1853, and on that day removed with his family from Fall River, across the line of the State, into the town of Tiverton in the State of Rhode Island, a short distance from his former residence, and there continued to reside until June 1854, when he returned with his family to Fall River, where he has since resided; and during the whole time his office and place of business continued in Fall River. At the time of his removal to Tiverton, the house in which he had been living had been sold by the owner to one who wished to occupy it himself; it was somewhat difficult to obtain good tenements in Fall River for families of the number, ages and station in life of the plaintiff’s ; and the plaintiff made unsuccessful efforts to find a house, before removing to Tiverton. On his removal to Tiverton, he gave notice to the selectmen of Fall River, and to the selectmen of Tiverton, that he was about to remove to Tiverton for a temporary purpose, and intended to retain his domicil in Fall River. At the meeting in Fall River in November 1853, he requested the defendants to restore his name to the list of voters ; furnished them with satisfactory evidence of his legal qualification as a voter in all respects except residence; and referred them to legal authorities upon the question of his right of suffrage, which the defendants thought did not support his claim.</p>

<p>The publication, by a member of the Massachusetts Medical Society, of a true account o« the proceedings of that society in the expulsion of another member for a cause within its jurisdiction, and of the result of certain suits subsequently brought by him against the society and its members on account of such expulsion, is privileged; although it speaks of the expelled member as “ the offender,” and remarks that “ the society has vindicated its action in this case, and its right to act in all parallel cases.”</p> <p>Under a declaration which alleges the publication of a certain “ libel concerning the plaintiff," but contains no innuendoes, colloquium or special averments of fact to connect the publication with the plaintiff, if no evidence is offered to connect him therewith, except the publication itself, the question, whether the publication refers to the plaintiff, is for the court, and not for the jury.</p>

<p>A rucognizance conditioned that the defendant shall appear before the court of common pleas then in session, and from day to day during said term, to answer u to an indictment against him for a violation of the act concerning the manufacture and sale of spirituous and intoxicating liquors,” and shall also appear at all subsequent terms of said court to which said indictment may be continued, and in the mean time shall keep the peace and be of good behavior, and shall do and receive that which by the said court shall be then and there enjoined upon him, and not depart without license, is sufficient, under the Eev. Sts. c. 135, § 30, and the St. of 1845, c. 166, § 2.</p>

<p>Scire facias upon a recognizance taken under St. 1852, c. 322, and conditioned that James A. Wood should appear and answer at March term 1854 of the court of common pleas to an indictment for being a common seller of spirituous and intoxicating liquors. At that term the defendant was defaulted upon his recognizance; and this scire facias was brought at February term 1855 of that court. The defendant moved to dismiss the suit, because it was not brought at the proper term. Sanger, J. overruled the motion, and the defendant alleged exceptions.</p>

<p>Indictment for perjury at the trial of William P. Hood, in Taunton, in 1854, before James P. Ellis, a justice of the peace for the county of Bristol, on a complaint for maliciously setting fire to a ship at Somerset in that county, upon which complaint a warrant had been issued by said justice, returnable before himself; there being then* a police court in Taunton, of which there was then a duly commissioned standing justice, and of which said Ellis was special justice.</p> <p>. At the trial'of this indictment in the court of common pleas, before Aiken, J., the defendant requested the judge to instruct the jury that Ellis, having received the complaint and issued the warrant against Hood, was bound by law to make it returnable before the police court of Taunton, and having made it returnable before himself as justice of the peace, and proceeded in that capacity, had no jurisdiction to hear and determine the matter of the complaint, and upon such hearing to administer the oath to the defendant, and examine him as a witness. But the judge instiucted the jury that Ellis had such jurisdiction.</p> <p>The alleged perjury consisted in the defendant’s testifying that, soon after the ship was on fire, he saw a person come out of the ship and run away, who, to the best of his opinion, was Hood. It was admitted that the fire was set by an incendiary; and the district attorney, for the purpose of proving that the defendant did not believe as he swore he did, introduced evidence that a reward was offered by the owner of the ship and by the citizens of Somerset for the detection of the incendiary, and that these offers of reward were known to the defendant • and contended that the hope of obtaining a reward was the motive which induced the defendant to swear as he did.</p> <p>For the purpose of controlling this, the defendant offered evidence to prove “ that the defendant, residing in New York city, came on to Taunton to testify against said Hood reluctantly, and on the urgent solicitation of the insurers of said vessel, and that no inducements were offered him by way of reward for coming and testifying in the case.” But the court rejected the evidence.</p> <p>The jury returned a verdict of guilty, and the defendant alleged exceptions.</p>

Indictments on St. 1849, c. 49, entitled “ an act to prevent prizefighting” Trials in the court of common pleas, before Morris, J. The first indictment was upon § 1, and averred that Welsh, at Seekonk, on the 30th of June 1855, “by and in pursuance of a previous appointment and arrangement made to meet and engage in a fight with another person, to wit, with one Freeman Clarson, did meet and engage in a fight with the said Freeman Clarson, against the peace of said…

<p>Indictment containing two counts; one for keeping a disorderly bouse, which was a nuisance at common law; the other on St. 1855, c. 405, § 1, and averring that the defendant, at Raynham, “ on the first day of October in the year of our Lord one thousand eight hundred and fifty five, and on divers other days and times between that day and the day of the finding of this indictment, did keep and maintain a certain building, to wit, a dwelling-house, used as a house of ill fame, resorted to for prostitution, lewdness, and for illegal gaming, and used for the illegal sale and keeping of intoxicating liquors; the said building so used, as aforesaid, being then and there a common nuisance; to the great injury and common nuisance of all the peaceable citizens of said commonwealth there residing, inhabiting and passing; against the peace and dignity of said commonwealth, and contrary to the form of the statute in such case made and provided.”</p> <p>Trial in the court of common pleas, before Morris, J., who signed the following bill of exceptions:</p> <p>“ After the empanelling of the jury, the defendant objecting, the district attorney, with the permission of the court, entered a nolle prosequi on the first count; but the defendant’s counsel did not claim or ask for a verdict upon said first count. The trial proceeded upon the second count.</p> <p>“ The court, notwithstanding the defendant’s objections, permitted witnesses for the Commonwealth to be asked, 6 What was the character of the conversation among the women at that house ? ’ although it did not appear that the defendant heard it; and, 1 Were, or not, the women whom you saw at the house prostitutes ? ’</p> <p>“ The defendant offered no evidence; but asked the court to instruct the jury, that if they did not find that the building kept and maintained by the defendant was used for all the purposes alleged in the indictment, they could not find the defendant guilty. The court declined to give the instruction asked for; but instructed the jury, that if the house was kept for either of the purposes alleged in the indictment, then they might find the defendant guilty.</p> <p>“ The defendant also requested the court to instruct the jury, that unless the building in question, as used and resorted to, was a common nuisance to the whole community in general, the defendant could not be found guilty. But the court instructed the jury, that if they found that the house in question was, while kept and maintained by the defendant, either used as a house of ill fane, resorted to for prostitution, lewdness, or for illegal gaming, or used for the illegal sale or keeping of intoxicating liquors, then the said house was, by the terms of the statute, a common nuisance.</p> <p>“ The jury rendered a verdict of guilty, and the defendant excepted to all the aforesaid instructions and rulings.”</p> <p>The defendant also moved in arrest of judgment, because the second count in the indictment was bad for duplicity; and because it did not allege that the house was used by the defendant, nor by whom it was used. This motion was overruled, and the defendant excepted to this ruling also.</p>

<p>The defendant appealed to the court of common pleas from the judgment of a justice of the peace against him on his plea of not guilty to this complaint:</p> <p>“ To James P. Ellis, Esq., one of the justices of the peace within and for the county of Bristol: Peter C. Thayer, of Taunton in the county of Bristol, complains, and on oath informs the said justice, that James Keefe, of Taunton in the county of Bristol, at Taunton aforesaid in the county aforesaid, on the second day of June in .the year eighteen hundred and fifty six, did, without being duly authorized and appointed thereto according to law, sell to one James Kelly intoxicating liquors, and mixed liquors part of which was intoxicating, against the peace of the Commonwealth, and contrary to the form of the statute in such case made and provided. Wherefore the said Thayer prays that the said James Keefe may be apprehended and held to answer to this complaint, and further dealt with, relative to the same, according to law. June 3, 1856. Peter C. Thayer.</p> <p>“ Bristol, ss. Received and sworn to on the third day of June A. D. 1856.</p> <p>“ Before me, James P. Ellis, Justice of the Peace.” When the case was called for trial in the court of common pleas, at September term 1856, before Aiken, J., the defendant offered to plead specially a former acquittal; and, being allowed by the court to give it in evidence under the general issue, offered the record of his acquittal at the same term, on an indict ment charging him with being a common seller on the 3d of June 1856, and from that day to the day of finding that indict ment. The evidence for the Commonwealth tended to show a sale to Kelly on the 2d of June 1856.</p> <p>The defendant then asked the court to instruct the jury, “ that evidence showing a sale on the third day of June, or any day previous, would be admissible to substantiate the charge in the complaint; and that, as evidence of a sale to Kelly on the third day of June would have been admissible to prove the charge of being a common seller as aforesaid, a verdict of not guilty upon this charge would be a bar to further proceedings on the complaint, and would entitle the defendant to an acquittal here.”</p> <p>The court declined so to instruct the jury; but instructed them “ that the verdict relied upon in defence would not be a bar to a sale made prior to the said third day of June; and that if they were satisfied, beyond a reasonable doubt, that the defendant had sold, as charged in the complaint, on a day prior to said third day of June, they would be authorized to find the defendant guilty; ” and directed them to find by their verdict on what day the sale was made. The jury returned a verdict of guilty, and that the sale was made on the 2d of June. The defendant alleged exceptions.</p> <p>The defendant also moved in arrest of judgment for the following reasons :</p> <p>“ 1. The complaint does not set forth an offence, with the certainty required by the statutes now in force in this commonwealth respecting the sale of spirituous and intoxicating liquors; in that it does not specify that the sale was made in violation of the provisions of the act of 1855, chapter 215, or of the act of 1852, chapter 322; said acts respectively requiring that, in order to constitute an offence, the sale should be ‘ in violation of the provisions of this act.’</p> <p>“ 2. It not being necessary to prove the time as laid in the complaint, it does not set forth with sufficient certainty what statute, if any, has been violated.</p> <p>“ 3. It does not set forth in words the time of making the complaint, nor does it sufficiently appear when and by whom it was sworn to.”</p> <p>This motion was overruled, and the defendant again excepted.</p>

<p>Personal property in the possession of a married woman is to be presumed, in the absence of other evidence, to be the property of her husband, notwithstanding the Si. of 1856, c. 304, enabling married women to have property in their own right and to their own use, and to trade ou their own account; and must be described as the property of the husband in an indictment for stealing it.</p>

<p>Coverture, as a disability to sue, must be pleaded in abatement.</p> <p>The want of a railing at the side of a highway, necessary to the security of travellers, is a 44 deficiency ” in the way, within the meaning of the Rev. Sts. c. 25, § 26.</p> <p>The St. of 1846, c. 203, limiting the liability of towns for damages from defects in ways opened and dedicated to the public use, but not duly laid out and established, applies only to ways over land dedicated by its owner to the use of the public as a way; and does not, as to other ways, repeal the Rev. Sts. c. 25, § 26, making the actual repair of a way by a town conclusive evidence of its location.</p> <p>Evidence that the duly elected surveyors of highways of a town made repairs upon a way, within six years before the tithe of an accident from a defect therein is competent and sufficient evidence of repairs by the town, to establish its liability for the damages resulting from the accident; although it also appears by the plaintiff’s evidence that the records of the laying out of the way as a public highway were insufficient.</p> <p>Where the limits of a highway are not indicated by any visible objects, and there is nothing to show a person driving thereon in the evening that the course he is pursuing is not within the way intended for public travel, the town is liable for an accident to a traveller, resulting from a defect within the general course and direction of travel where travellers are accustomed to pass along the highway, although without the limits of the located way, if so near the located way as to render the travelling there dangerous, in the condition in which it is at the time of the accident, and there is nothing to give to travellers notice of the defect until too late to avoid it.</p>

<p>The declarations of a surveyor of highways, in relation to work done on the highways oí the town under a contract made by him within the scope of his authority, uttered some months after the completion of the work, though before the expiration of his official year, are not admissible in evidence against the town.</p>

<p>In an action by the owner of an ancient mill against the owner of a more modern mill . above on the same stream, for disturbing the flow of the water, the jury were instructed that the defendant was liable for an unreasonable use or unreasonable detention of the water to the prejudice of the plaintiff, and was bound, in exercising his right as owner of a mill above, to permit the water to run to the plaintiff’s mill as he was accustomed to have it in its natural flow, u subject, of course, to those slight and substantially immaterial obstructions and retardations which necessarily result from exercising the right of a mill privilege above.” Held, that the defendant had no ground of exception.</p> <p>A miller, employed by the owner of a mill, to take charge of and tend the mill, receiving in compensation half the profits of the mill, but without any agreement for any definite time, has no such title or possession as to require him to be joined in an action by the owner for an injury to the mill.</p>

<p>Action of contract to recover for the support of the family of Sylvester Spindle, paupers, who were descendants of Manuel Spindle and wife, and had not acquired any settlement for them selves, nor derived any from their intermediate ancestors, but had the settlement in Brewster, which the wife of Manuel had at the time of their marriage, unless they derived one from Manuel, who owned real estate in Dennis, and resided thereon long enough to give him a legal settlement there, if he was a citizen of the United States.</p> <p>At the trial in the court - of common pleas, before Perkins, J., the only questions for the jury were, whether Manuel Spindle was a person of foreign birth; and, if he was, whether he had been naturalized in Barnstable county at some time between 1804 and 1814.</p> <p>Upon the first point, the plaintiffs offered evidence that about 1800 Manuel was brought to Dennis by a master mariner, who resided there, upon his return from a whaling voyage, and was then twelve or fifteen years old, a stranger, unknown to any of the inhabitants, of foreign appearance, talking a foreign language, and almost unable to speak a word of English; thal even at the time of his death, about thirty six years later, be spoke English in a very broken manner; and that he was of quite a dark complexion, and had a strange foreign air, appearance, manners and gestures. The defendants did not object to the admissibility of any of this evidence, but contended that it was not sufficient evidence that Manuel was of foreign birth. But the judge ruled otherwise, and submitted that question to the jury.</p> <p>The defendants admitted that there was not now in existence any record or certificate of the naturalization of Manuel, or any written or oral evidence tending directly to show that such a record or certificate had ever existed, nor any indirect evi- , dence thereof, except the following facts, which they offered to prove: From 1804 to 1814 Manuel Spindle followed the seas as a mariner, and built and owned one or more parts of schooners of Barnstable, and acted as master of several different vessels engaged in the coasting trade from ports on Cape Cod, and at one time acted as mate of a schooner from one of these ports The records of shipping, deposited in the Custom House at Barnstable before 1817, were lost or destroyed, and in 1814 all such records and copies thereof which had been forwarded to Washington were there burned.</p> <p>Upon inquiry by the court, the defendants said, “ they proposed to use the evidence thus offered to satisfy the jury of the existence, at some time, of bills of sale or other muniments of title to such vessels, in which said Manuel Spindle would be described as a citizen of the United States; and also to satisfy them of the existence, at some time, of shipping articles and other documents evidencing the right of said Spindle to command de jure the vessels of which he acted as master de facto ; and thence they proposed that the jury should draw the farther inference of the existence of a record of naturalization of said Spindle, which was burnt, as the defendants claimed, with the records of Barnstable County in 1827.”</p> <p>It appeared that there were several surviving children and other descendants, male and female, of Manuel. But no evidence of either of them, nor of any other person, was offered to show any inquiry or search for bills of sale, shipping papers or other writings relative to the ownership or command of the vessels above referred to, or for any papers of naturalization among his papers, or among those of any other owner or joint owner of such vessels. And the court ruled that there was not sufficient evidence of the existence and loss or destruction of such bills of sale or other papers, to let in secondary evidence of their contents; and that the evidence offered, if admitted, would not justify the jury in finding such a record of naturalization.</p> <p>The jury returned a verdict for the plaintiffs, and the defendants alleged exceptions.</p>

<p>A conviction before a justice of the peace, upon a complaint for illegally transporting intoxicating liquors, from which an appeal has been taken, is not sufficient evidence of probable cause to believe that the defendant was so transporting the liquors, to justify the previous arrest of the defendant and seizure of the liquors by an officer, without a warrant, under Si. 1855, c. 215, § 13.</p> <p>In an action against an officer for arresting a person without a warrant, on the ground that he was illegally transporting intoxicating liquors, declarations of the plaintiff, made the day before the arrest, tending to show that he was at the time of the arrest actually so transporting said liquors, are admissible in evidence for the defendant, although not known to him when he made the arrest.</p> <p>In an action against an officer for arresting and detaining a person, without a warrant, un til a warrant could be procured against him, under Si. 1865, c. 215, § 13, the warrant obtained the day after, and the complaint on which it was issued, are admissible in evidence for the officer.</p> <p>A delivery and receipt of intoxicating liquors, as payment for a service performed, is a sale within the meaning of the statutes prohibiting the unlawful sale of such liquors.</p> <p>The St. of 1855, c. 215, § 13, is constitutional.</p>

<p>Action of tort for breaking and entering the plaintiffs’ close in Quincy, known as the Mount Wollaston Farm, with men and horses, on the 1st of August 1854, and trampling down the grass, and digging up, breaking and injuring the soil. The parties submitted the case to the court upon the following statement of facts:</p> <p>“ The plaintiffs were the lessees of the premises, and in possession thereof. The defendant was major general in command of the first division of the volunteer militia of Massachusetts; and, as such officer, was ordered by His Excellency the Governor of the Commonwealth to order the said division into camp at the time named in the writ. The defendant had not, in fact, authority or license from the plaintiffs to hold said encampment on the premises. But he believed he was acting under such license and authority; and his mistake was not corrected until it was too late to promulgate legal orders for an encampment elsewhere during that year. The place selected was in every respect proper and suitable for said encampment, and one where as little damage would occur as at any that could be selected. The encampment was held there at the time named in the writ. The defendant acted without malice or any actual wrong intent, and no further damage was done to the premises than necessarily resulted from the reasonable use thereof for the said purpose.</p> <p>“ If the defendant had a right by law to select, take and enter upon the premises for the purpose aforesaid, the plaintiffs are to become nonsuit; if not, a judgment is to be rendered for the plaintiffs for one dollar damages and costs.”</p>

<p>One who, at the request of the mortgagor, obtains an absolute assignment of a mortgage, after the mortgagee has been in possession for the purpose of foreclosure more than two years, and pays the mortgagee the amount due on the mortgage, does not, by orally agreeing with the mortgagor to hold the mortgage as security only for such advance, and, subject to that, to hold the estate for the use and benefit of the mortgagor, and to permit the mortgagor to sell the land in lots, paying the proceeds to him, until he is reimbursed, and to permit the mortgagor to redeem the land at any time by paying the amount so advanced with interest, postpone the foreclosure, or hold the estate in trust for the mortgagor.</p>

<p>Action of contract on a policy of insurance, made to the plaintiff by a mutual fire insurance company, subject to the provisions of the by-laws of the company, (which were annexed to the policy,) for $3,000 on three houses and a bam in Maine, described in the plaintiff’s application, “ which application is lodged with the secretary of this company, and shall form part of the contract to be taken in connection with this policy.” Among the by-laws annexed to the policy were the following: u Art. 16. Unless the applicant for insurance shall make a true representation of the property on which he requests insurance, and of his title and interest therein, and also all incumbrances, and the amount and nature thereof, the policy shall be void. And in case the application is made through an agent, the applicant shall be held liable for the representation of such agent.” “Art. 19. Any mortgagee may insure Ms interest in any property insurable in this office, in his own name, provided he shall obtain from the mortgagor a certificate that the property is not insured in any other office.”</p> <p>The application contained, among others, the following questions and answers : “ Who owns the buildings ? ” Answer, “ Owned by insured.” “ Whether incumbered, by what, and to what amount ? ” Answer. “ No.” The application concluded thus : “And I hereby covenant and agree to and with said company, that the foregoing is a correct description of the buildings and property requested to be insured, so far as regards the risk on the same; and in case of insurance, I hold myself bound by the act of incorporation and the by-laws annexed to my policy.”</p> <p>At the trial in this court, the plaintiff offered evidence of the loss, and that his interest in the property, at the date of the policy, and at the time of the loss, was under and by virtue of a mortgage made to him to secure the payment of a note of $9,000 made by the mortgagor to him.</p> <p>The plaintiff offered to prove that, before he signed the application, he stated truly all the circumstances, touching as well the title, as the situation and character of the property, to the defendant’s secretary, and, at his suggestion explained the whole matter to one of their directors; that at the next meeting of the directors, after considering all the facts, including the fact that the plaintiff’s interest was that of a mortgagee, it was voted to take the risk; and the answers were subsequently written in the application by the secretary, in the presence of said director, and, as that director supposed, in the language in which he responded to the several questions; after which that director took the application to the plaintiff, who signed it.</p> <p>But Thomas, J. ruled that this evidence was inadmissible; and that the answer of the plaintiff, that he was the owner of the property, was a material misrepresentation and concealment; and directed a verdict for the defendants, subject to the opinion of the full court.</p>

<p>Action of contract to recover a reward offered by the defendants for the apprehension and conviction of incendiaries.</p> <p>At the trial in the court of common pleas, before Byington, J., the plaintiff gave in evidence an advertisement and placard, in these words: “ Five hundred dollars Reward. A reward of §500 will be paid for the apprehension and conviction of any person or persons who shall set fire to any dwelling-house, barn or building within the city of Roxbury, with intent to destroy the same. Provided, that the foregoing reward shall not extend beyond the term of six calendar months from this date.</p> <p>Roxbury, August 15th 1854. L. B. Comins, Mayor.”</p> <p>The plaintiff introduced evidence that Comins was at the time mayor of Roxbury; that the advertisement was carried by the city messenger to a newspaper printed in Roxbury, and.published in that paper for about three months ; that two hundred and fifty placards, containing the same offer, were printed about the same time, the expenses of which were paid by the city treasurer; and also gave in evidence a certified copy of a resolve, passed by both branches of the city council on the 2d of October 1854, by which, after reciting the above offer of reward, it' was “resolved, that the reward offered by the mayor on the 15th of August last, for the detection of incendiaries, is hereby ratified by the city council.”</p> <p>The plaintiff also introduced evidence of the following facts ; On the 30th of September 1854 a building in Roxbury was set on fire by an incendiary, and consumed. The plaintiff was at the fire, and sought out three of the police officers of the city, who were also at the fire, and requested them to arrest Eugene Clarke, for having set the fire; and pointed out Clarke to one of said officers, requested him to arrest him, and stated to him some facts and circumstances tending tó show that Clarke set the fire; and said officer was induced to and did arrest Clarke upon the information given him by the plaintiff, and committed him, it being then Saturday; and before Monday following Clarke confessed to said officer that he set the fire. On Monday another police officer, whose business it was to institute complaints against persons arrested for offences, instituted a complaint against Clarke for setting the fire, to which Clarke pleaded guilty before the magistrate, and was held for trial. At the trial in the court of common pleas, Clarke pleaded not guilty, and was convicted upon the testimony of the police officers. The three officers whom the plaintiff nad requested to arrest Clarke, and the officer who made the complaint, were together, and determined what witnesses should be summoned, and did not summon the plaintiff, having ascertained that he knew nothing of his own personal knowledge, but had derived the information which he gave from another person, who was summoned, but was not able to attend. The plaintiff did nothing after the arrest in the matter, and was not requested to do anything.</p> <p>The defendants requested the court to rule and instruct the jury, “ that the offer of reward, not having been made in the name of the city, nor on its behalf, could not be ratified by the city, and so the order passed by the city on the subject had no retroactive effect; that the acts of the plaintiff, if any, entitling to the reward, having been performed prior to the order passed by the city, gave him no claim upon the city for the reward; that the offer of reward was void for ambiguity, it being uncertain what acts would entitle any one to it; that if said offer was not void, to entitle plaintiff to the reward, he must have done some act, or communicated some information, which would not only lead to the arrest, but also have a material influence in producing the conviction of the incendiary.”</p> <p>But the court ruled “ that there was evidence from which the jury might infer an offer of reward, binding on the city, on performance of the services for which it was offered; and that it was not void for uncertainty.” In regard to the services to be performed to entitle the plaintiff to the reward, the court instructed the jury “ that the offer of a reward could not be taken literally, for, as the conviction must be in due course of law, requiring the intervention of the court and jury, a person might be entitled to the reward by becoming the prosecutor, and, as such, causing the arrest, and conducting the case to a conviction ; or he might be entitled to it by giving information which should lead to and produce the arrest and conviction of the offender; that is, by giving such information to the city government of Roxbury, or to some officer authorized to act for them in making the arrest and prosecuting the offender to conviction upon the information so given ; that, in this case, the officers of the city having instituted and carried on the prosecution to conviction after the arrest, if the jury were satisfied that the facts disclosed by the plaintiff were such as induced the officer who arrested the offender to arrest him, and were material, and had a tendency to produce ultimate conviction, and without them Clarke would not have been convicted, unless upon his own subsequent confession of guilt, the plaintiff would be entitled to the reward; and the fact that Clarke, subsequently to the disclosure of such information, made by the plaintiff, and upon which he was arrested, confessed his guilt, would not deprive the plaintiff of the right to recover, though Clarke’s confession of guilt was produced in evidence upon his trial, and might have been the ground upon which he was convicted.” The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.</p>

<p>Writ of error to reverse a judgment of the police court of Roxbury in an action of contract for work and labor.</p> <p>The errors assigned were that the writ in that action was sued out against “ Charles Langmaid of West Roxbury in said county, gentleman,” and was served, (as appeared by the officer’s return thereon,) by attaching “a chip as the property of the within named defendant,” and giving “ him a summons in his hand for his appearance at court ” ; that at the return day Charles Lang-maid did not appear, and was defaulted ; and a week afterwards, without any continuance having been entered, and on motion of Puffer, and without notice to or knowledge of Chase Lang-maid, the default was taken off, and the case brought forward, and Puffer permitted to amend his writ by altering the first name oí the defendant from “ Charles ” to “ Chase ”; and Chase, not appearing or being present, or having any notice or knowledge thereof, was defaulted, and judgment rendered against him.</p> <p>Pending the writ of error, and before the trial, the sheriff who served the original wilt, upon his motion, supported by affidavit that the writ was in truth and in fact served upon Chase I angra aid of West Roxbury, by delivering him a summons in hand, was permitted by the police court to amend his return, by striking out the word “ defendant,” and inserting instead thereof “ Chase Langmaid.”</p> <p>At the trial in this court, the sheriff testified that he went to the house of the plaintiff in error in the evening, after dark, and called for Mr. Langmaid, and gave the plaintiff in error the summons, (which the witness presumed was to Charles Lang-maid,) and two or three days afterwards met the plaintiff in error, who gave him back the summons, saying his name was not Charles Langmaid, and the summons was not intended for him; and the witness further testified, the plaintiff objecting, “ I told him, ‘ You are the party meant, and had better attend to it; if you don’t, they will get judgment against you.’ ”</p> <p>The witnesses of the plaintiff in error testified that they had heard of a person by the name of Charles Langmaid in Dedham, but had never seen or known such a person.</p> <p>Thomas, J. was of opinion that the judgment of the police court should be affirmed, but reported the case to the full court.</p>

<p>Action of contract on four promissory notes made by the defendant, payable to Thomas Darling, the plaintiff’s intestate, or order, but not indorsed. The writ was dated the 3d of December 1855, more than six years after the notes fell due, and bore an indorsement that the action was brought for the benefit of Zilpha Bowen.</p> <p>The answer admitted the making of the notes; but alleged that the action was brought by Zilpha Bowen without the knowledge and against the consent of the plaintiff, and denied the right of Zilpha Bowen to prosecute it. It also set up the statute of limitations.</p> <p>At the trial in the court of common pleas, before Perkins, J., it appeared that Thomas Darling died on the 13th of February 1851, and the plaintiff was appointed his administrator on the 1st of December 1855. When the action was called up foi trial, the nominal plaintiff appeared, and stated, in writing, that it was prosecuted without his knowledge or consent, and protested against its prosecution in his name, unless for his benefit as administrator, and claimed the notes as assets in his hands ; and he and the defendant asked the court to direct an issue to be framed between him and Zilpha Bowen, to try the question of the ownership of the notes, before the trial of this action. But the court refused so to do, and ruled, that if Zilpha Bowen was the owner of the notes, she had a right to prosecute this action, without the consent of the plaintiff.</p> <p>Zilpha Bowen claimed the notes as a donatio mortis causa, made to her by Thomas Darling on the day before his death ; and there was evidence tending to prove such gift. Zilpha was admitted as a witness to prove her title to the notes, against the objection of the defendant. The court ruled that the notes might be the subject of a donatio mortis causa, without indorsement. „</p> <p>There was no evidence to take the notes out of the statute of limitations, except the death of Thomas Darling, and the delay in the appointment of an administrator. The court ruled that this action was not barred by the statute.</p> <p>The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.</p>

<p>After a cause in equity has been continued nisi from a law term for advisement, and a judgment dismissing the bill has been entered, by order of the court, as of the last term in the county where the suit was pending, it is too late to petition for a rehearing, on the ground of a misapprehension of the facts of the case by the court.</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 in an action against him.</p> <p>The insertion of a debt in the schedule of creditors, filed by the debtor under proceedings in insolvency, is not such an acknowledgment as will take the debt out of the statute of limitations.</p> <p>The payment of a dividend by an assignee under the insolvent laws will not take the residue of the debt out of the statute of limitations as against the debtor.</p>

Petition, filed at February term 1855, for a writ of certioran to quash the proceedings of the county commissioners of Norfolk, assessing damages to Charles H. Dana and others for land taken by the Charles River Branch Railroad Company for the location of their railroad.

<p>A judge of probate has no jurisdiction over a will containing a devise of more than one hundred dollars in value to a person of whose will he has :een appointed executor.</p>

<p>A trustee holding stock in a manufacturing corporation cannot maintain a bill in equity to obtain the instructions of the court as to what will be his powers and duties in case the corporation shall carry out a contemplated sale of all their property to a new corporation, taking payment in shares of the new corporation, to be distributed among the old stockholders; and to restrain the corporation from making such sale.</p> <p>The directors of a manufacturing corporation, as the best means of continuing the business, and pursuant to the votes of a majority of the stockholders, though against the protest of a minority, may sell the whole property of the corporation to a new corporation, taking payment in shares of the new corporation, to be distributed among those of the old stockholders who are willing to take them.</p>

The parties submitted to the decision of the court the question whether any action could-be maintained by the plaintiff against the defendants upon the following facts: In 1850, Charles T. James, of Providence, R. I., being the owner of one hundred shares of the defendants’ capital stock, deposited with the Bank of America, of Providence, for the purpose of transferring the shares to the bank, as collateral security for money which he owed the bank, his certificates of…

<p>Action of tort for slander, commenced in the court ol common pleas. In the writ was inserted a declaration, which stated the charge in general terms, but did not set out the words spoken.</p> <p>On the return day of the writ, the plaintiff entered the action, and filed, with the writ, a declaration, which, after stating the charge, also set forth the words spoken, with proper innuendoes The plaintiff obtained no order or leave of the court, allowing this declaration to be filed or made, as an amendment, additional count, or new declaration; and made no motion for such leave or order.</p> <p>The defendant, in his answer, demurred to the declaration inserted in the writ, on the ground that it did not state a legal cause of action, substantially in accordance with the rules con tained in the St. of 1852, c. 312, inasmuch as it did not set out the words in which the alleged charge was spoken. He also denied having used the words stated and set out in the declara tion filed with the writ, and denied that he ever accused the plaintiff, as alleged; and further answered, “that a declaration having been inserted in the writ, the plaintiff had no right, license or authority to file a declaration other than that, at the entry of the writ; and therefore he says that he ought not to be held to answer to that declaration, so filed.”</p> <p>Trial before Perkins, J., who signed a bill of exceptions, which stated the proceedings above set forth, and the residue of which was as follows:</p> <p>“ There was no hearing upon the demurrer, nor motion made for one; but at the trial, while the plaintiff’s counsel was opening the case, the defendant objected to the plaintiff’s reading the declaration, filed at the time of entering the writ, to the jury. But the plaintiff, claiming this as the declaration on which, and on which alone, the case was to be tried—the statement inserted in the writ not being a declaration according to said practice act of 1852, and not relied upon, but being abandoned by the plaintiff—the court ruled that the declaration relied upon by the plaintiff, having been filed within the time fixed by the said practice act, and within the requirements of that act, no motion for leave of the court to file it was necessary, nor was any order of the court required ; and the court allowed the plaintiff to go to trial on the declaration last filed in the case, and upon that alone. She went to trial, and claimed judgment; the verdict being for the plaintiff. No other formal disposition of the defendant’s demurrer was made or moved for. The defendant, feeling aggrieved by the said rulings and directions of the court, excepts to them.”</p>

<p>Putting up and establishing bounds of existing school districts by a town is not a districting anew, within the meaning of Sts. 1849, c. 206, and 1851, c. 303.</p> <p>A warrant for a town meeting contained this article: “ To see if the town will vote to continue their several school districts as now divided, or act or do anything relative to the same.” At that meeting, a petition was presented to the town by inhabitants of district No. 2, praying for a division of that district into two districts, in the mode described in the petition, to be numbered 2 and 9; and the town voted “that the petition of school district No. 2 be granted, and to divide the district,” and “that the selectmen be instructed to establish the line, and place bounds in the division of district No. 2, and designate the numbers of the districts.” The warrant for a subsequent meeting contained these articles: “ To hear the report of the selectmen respecting dividing school district No. 2, and designating the numbers, and act thereon: ” “ To see if the town will vote to annex school district No. 9 to school district No. 2 in said town, or do or act anything relating thereto, and confirming the limits of said district, if united, the same as they were prior to” the former meeting. Under this warrant, the town, after hearing the report of the selectmen read, (which described by monuments a line traversing the old district No. 2 from east to west, and reported “ that the north district shall be No. 2, and the south district No. 9,”) voted to accept the report; and the record of that meeting recited it at length, ffeld, that the two new districts were legally established; although upon the records of the town, between the records of these two meetings, was recorded a report of the selectmen, describing the new districts with less precision.</p>

<p>An indictment for being a common seller of intoxicating liquors at a town named in this commonwealth need not allege that the liquors sold were in the Commonwealth at the time of the sale.</p>

<p>Action of tort for seducing the plaintiff’s wife, and alienating her affections from him.</p> <p>At the trial in the court of common pleas, before Byington, J., the defendant introduced the depositions of the wife’s father and mother, tending to prove that the plaintiff had cruelly treated his wife, and neglected to provide for her, in consequence of which she had returned to her father’s house before the time of the alleged seduction.</p> <p>These depositions contained some interrogatories and answers concerning difficulties interposed by the plaintiff to his wife’s being visited by her father and mother, and concerning judicial proceedings commenced against the plaintiff’ by his wife. These interrogatories had been objected to by the plaintiff, in writing, before the commission issued; and the defendant contended that the plaintiff could not object, at the trial, to the answers to such interrogatories, for any other causes than those assigned in his former objections. But the judge ruled, that if the answers were incompetent on other grounds, the plaintiff might now object to them for such incompetency; and rejected those parts of the deposition.</p> <p>The judge also, upon the motion of the plaintiff, and against the defendant’s objection, rejected other parts of the depositions, containing testimony to complaints made by the plaintiff’s wife of his ill treatment of her prior to the alleged seduction.</p> <p>The jury returned a verdict for the plaintiff, and the defend ant alleged exceptions.</p>

Action of tort to recover damages for injuries from a defect in a highway in Dorchester.

Action of contract. The declaration alleged that the defendant made a contract with the plaintiff for the purchase of his stable stock, for $2,500, and the further sum of $150 if the defendant should take a partner, and carry on the stable business and do pretty well at it. It then averred the sale, and that the defendant took a partner, and did pretty well at the business, and so owed the sum of $150.

<p>No appeal can be taken from a judgment for the plaintiff on a demurrer to a declaration in set-off, until the issues raised by the defendant’s answer have been tried.</p> <p>A bank cannot set off notes left with them for discount, which they have refused to discount, in an action subsequently brought by the assignees in insolvency of the depositor, on a debt due from the bank to him before his insolvency.</p>

<p>Petition by Thomas Parker and Edward Lamb, copartners under the firm of Parker & Lamb, to enforce a mechanic’s lien for labor upon a dwelling-house described in the petition as “ situated on a piece or parcel of land in Dorchester, in said county of Norfolk, on a street or lane leading from Eustis Street, so called, nearly opposite Cottage Street, so called, and near the house occupied by Joseph M. Bell, Esquire, and the lot on which the same stands is the same that was conveyed by one Hook to said Joseph M. Bell and Edward E. Pratt as tenants in common, and is owned by said Bell and Pratt, oi> one of them ; ” and in the statement filed by the petitioners in the office of the town clerk, as “ situated in Dorchester, in the county of Norfolk, on land now or formerly of Joseph M. Bell, Esquire, and now said to belong to Edward E. Pratt, Esquire; said house is new, and near the dwelling-house of said Joseph M. Bell, Esquire; the name of the street is not known to us.”</p> <p>The petitioners averred “ that they actually performed labor as plasterers and stucco workers in erecting” said dwelling-house, “ with the consent of the owners thereof; ” and that “ the contract under which said labor was performed was an oral contract, made by and between the petitioners on one part, and Messrs. Whittemore & Currier, carpenters and builders, on the other part, under which contract the petitioners were and are entitled to receive, for the work performed and materials furnished, the prices and amounts set forth in the account annexed” to the petition, no part of which had been paid.</p> <p>The parties agreed upon a statement of facts, expressly re serving all objections to the form of the petition. The case was argued in writing, and decided in June 1857.</p>

<p>The right of the public to take shell fish from flats between high and low water mark and within one hundred rods of the upland does not carry with it any right to take the soil, or dead shell fish imbedded therein, except as necessarily adhering to the living shell fish taken.</p>

<p>Ail the inhabitants of the Commonwealth have the right to take shell fish from flats lying between high and low water mark and within one hundred rods of the upland, unless the owner of the flats has had a grant of such fishery from the legislature, or such occupation as to raise a presumption of such a grant, or actual possession of the flats by building on or inclosing them so as to exclude the access of boats and vessels.</p>

<p>Accepting from the same grantor a deed of general warranty of upland bounding on the sea shore, and a deed of special warranty of the flats in front thereof, does not estop the grantee to claim title to the flats.</p> <p>In an action by the proprietor of upland bounding on the sea, for trespassing upon flats above low water mark and within one hundred rods in front of the upland, an instruction, that, in the absence of evidence of any claim or conflicting right of auy conterminous proprietor, the intervention of a bend in the channel will not defeat the plaintiff’s claim to flats within the one hundred rods and on the same side of the channel as the upland, is immaterial and no ground of exception, if the channel does not intervene between the upland and the place of the trespass.</p> <p>An action for entering upon the plaintiff’s close is sustained by proof of a trespass upon any part of the close described.</p> <p>In an action for trespassing upon flats, the expression by the judge to the jury of an opinion, that evidence of digging thereon more than thirty years before and occasionally since was somewhat slight to establish a usage to dig there, is no ground of exception.</p> <p>The rights of the proprietors of upland in adjoining flats under the ordinance of 1647 were not affected by the subsequent establishment of town lines.</p>

<p>An action of tort against the Essex Company for building their dam within the limits mentioned in their charter (/Sí. 1845, c. 163,) and thereby flowing the plaintiif’s land, is an action in which the right of the corporation to construct their dam is so drawn in question, that if the action is commenced within one year after the location of the dam, any person damaged in his property by the flowing of his lands by the dam may, by virtue of the Rev. Sts. c. 39, § 59, and St. 1846, c. 163, § 8, apply for damages at any time within one year after the determination of such action upon the merits; although he had previously, before the dam was finished, brought a suit in equity to restrain the building of the dam, on the ground that it would be a nuisance, which suit was dismissed by the court</p>

<p>Action of tort for obstructing a right of way claimed by the plaintiff over land of the defendant, as appurtenant to land now owned by the plaintiff, which constituted lots 1 and 2 in the division of the Bartlett Farm in Marblehead. Trial in the court of common pleas, before Morris, J., who rejected certain evidence offered by the plaintiff, and after a verdict for the defendant signed a bill of exceptions, the substance of which appears in the opinion.</p>

Action of tort to recover damages for injuries sustained by the plaintiff’s minor son, while travelling over the defendants bridge in the night time, by reason of their failure to keep the bridge properly lighted. At the trial in the court of common pleas, before Perkins, J., the plaintiff gave in evidence the defendants’ act of incorporation, and the acts in addition thereto.

<p>Action of contract on four promissory notes signed hv John Winkley, the defendant’s intestate. Answer, a certificate of discharge in bankruptcy. "Replication, a new promise to pay the notes.</p> <p>At the trial in this court, David Parker, the payee of the note, and a trustee of the plaintiffs, testified that said Winkley, on several occasions since his discharge, (some of which the witness specified,) promised unconditionally to pay these notes; and another witness called by the plaintiffs testified that on a different occasion said Winkley told him he always meant to pay this debt, had frequently given the plaintiffs that assurance, and had recently told Parker so. A witness called by the defendant testified that Parker told him that Winkley promised “ to pay the notes, if he got anything out of the old Locke & Winkley partnership concern.”</p> <p>The plaintiffs’ counsel contended that this testimony, if true, was evidence of a promise to pay the debt. There was other evidence in the case, besides that above stated. The defendant contended that her testator had never made any new promise, but only expressed an intention to pay the debt upon the occurrence of a certain contingency named by him.</p> <p>Merrick, J. instructed the jury, “ that the liability of a party1 who had been discharged in bankruptcy from the payment of all his debts, may be revived, in relation to any particular debt, by a new and subsequent promise to the creditor to pay it, but will not be revived, without such promise, by the expression of a mere intention to pay it at some future time; that there is a manifest distinction between an intention and an agreement to pay the debt, and of course a like distinction between the expression of such an intention and the making of a new promise to pay it; and therefore if a debtor, without making any new promise, should express to his creditor in the strongest terms his intention ultimately to pay the debt, this would not be sufficient to revive his liability; but that the promise, which would be sufficient to revive the liability of the debtor, need not be in express terms, and it would be competent for a jury to infer such promise from what was proved to have been said, if upon. deliberation they should be of opinion that such inference was fairly and properly to be deduced from the evidence; that in this case it was for the jury to determine what was the effect of the evidence, and the proper conclusion to be deduced from it, and whether it was sufficient to prove a new promise by the defendant; that if the defendant only expressed an intention to pay the debt sued for at some future time, or upon the occurrence of a particular contingency named by him, and did not promise to pay the debt, his discharge in bankruptcy was a bar to the maintenance of this action; but that if he did promise to pay the debt, their verdict ought to be for the plaintiffs for the amount of the notes and interest thereon.”</p> <p>The jury found a verdict for the defendant, and the plaintiffs alleged exceptions, in which the case was stated as above.</p>

<p>A conveyance of land by all the members of a partnership to a new firm, consistir g of themselves and one other, transfers an undivided share of the land to the new partner, and puts an end to an existing lease at will of the estate; and the tenant at will, if he has actual notice of the conveyance, is liable to the landlord and tenant process, without previous notice to quit.</p>

<p>Action of tort for an assault and false imprisonment. Trial before Merrick, J., who reported to the full court the question whether the plaintiff could maintain his action upon this evidence:</p> <p>The assessors of Georgetown illegally assessed a tax against the plaintiff for 1853, and made their warrant in due form of law to the town treasurer and collector, for its collection; and subsequently abated part of the tax, and the plaintiff paid the residue to the treasurer. The treasurer afterwards demanded payment of a further amount, and, on the plaintiff’s refusal issued a warrant to a constable, who arrested the plaintiff and committed him to jail for fifteen days, at the end of which he was discharged by habeas corpus. The defendants afterwards paid the constable’s fees and charges for serving and executing said warrant, and also the jailer’s charges for the board and maintenance of the plaintiff while so detained in custody.</p>

<p>A notice to the chairman of the county commissioners is not sufficient, under the St. of 1855, c. 95, to charge the county with the penalty imposed by that statute for the neglect of the county commissioners to erect bounds at the terminations and angles of a county road for one month u after being notified so to do ” by the owner of the land.</p>

<p>Appeal from a decree of the judge of probate, allowing an instrument as the last will of Obed Woodbury of Beverly.</p> <p>Merrick, J. submitted to a jury two issues: 1st. Whether Obed Woodbury, at the time of executing the instrument, was of sound mind; 2d. Whether said execution was obtained from him by undue influence exercised by Josiah Obear, the person named as executor therein.</p> <p>After the appellee had produced the will, and called the three subscribing witnesses, who testified to its due execution, the appellant called several witnesses, whose testimony tended to prove that the testator was always a person of feeble intellect, a believer in witchcraft and in ghosts, and that he thought he had communications with departed spirits; and that, at the time of executing said instrument, he labored under an insane delusion that the appellant, who was his nephew and one of his two heirs at law, and at one time had resided with him, neglected him and attempted to poison him.</p> <p>The appellee introduced evidence of the testator’s statements of the facts upon which this belief as to his nephew was founded; and his counsel, in arguing the case to the jury, contended that these statements, in the absence of all controlling evidence, were to be taken to be true; but was stopped by the court, and told that the testator’s statements had been admitted only for the purpose of showing the condition of mind of the testator, and were no evidence of the truth of the facts stated.</p> <p>Dr. William Williams, who was permitted by the court to testify as an expert, and stated that he had heard all the evidence in the case, was asked by the appellee, by whom he had been called as a witness, this question : “ Suppose all the facts stated by the several witnesses to be true, was Mr. Woodbury laboring under an insane delusion, or was he of an unsound mind ? ” The presiding judge did not allow this question to be put, “ for the reason,” (as he stated in his report,) “ that as a great number of facts and circumstances had been testified of by many witnesses, and as much evidence, parts of which were conflicting, had been introduced upon the trial, from which different persons might draw different inferences, and arrive at different conclusions as to what facts had been actually proved, the answer of the witness, if given in reply to the proposed interrogatory, might tend to mislead; since it might, unknown to the jury, be founded upon some proposition or statement of facts, differing in material particulars from that which appeared to them to be satisfactorily established. But he permitted the appellee’s counsel to inquire of and obtain from the witness his opinion upon and in relation to any proposition or hypothesis which he, the appellee’s counsel, supposed was sustained by the whole or any part pf the evidence in the case; and the witness was thereupon examined in conformity to that rule, and testified in relation to various propositions suggested by the counsel; and he was also further examined, and testified generally and without objection in relation to the symptoms of monomania and insane delusion.”</p> <p>After the conclusion of the instructions to the jury, a juror stated that an instrument purporting to be a former will had been offered in evidence ; and he desired to know, if the instrument now produced as the last will should be disallowed, what would become of the property of the testator. The judge answered that that was wholly immaterial to the issues to be determined by the jury, and should not be allowed to influence the juror’s mind. The juror then said there was a view in his mind in which it was material, and asked leave of the court to state that view. But the judge declined to hear the juror state it, and said he would violate his duty if he allowed considerations concerning the future ownership or disposition of the testator’s property to have any influence upon his mind in determining the issues submitted to the jury; that the law would take care of the disposition of the property, if the instrument now produced as a will should not be established.</p> <p>The jury returned a verdict in favor of the appellant upon both issues submitted to them. The appellee moved that the verdict might be set aside “ as wholly inconsistent with itself, ir. finding both that the will was the product of an insane delusion, and was likewise the product of the undue influence of the executor.” The judge overruled the motion, and reported the case to the full court.</p>

<p>Action of tort for enticing away a servant, with a count for harboring and concealing her with knowledge that she was the plaintiff’s servant. Trial before Merrick, J., who made the following report thereof:</p> <p>“ It appeared that the plaintiff and Elizabeth Lycka, at Gothenburg in Sweden, on the 5th of August 1840, signed and sealed this agreement: ‘ This indenture witnesseth, that Elizabeth Lycka, of Gothenburg, aged 21 years, by her own consent and for and in consideration of the sum of ten dollars paid by T. Parsons, Jr., of United States of America, hath bound and put herself servant to the said T. Parsons, Jr., to serve him, his executors and assigns, from the day of the date hereof for and during the full term of five years thence next ensuing, during all which term the said servant her said master, his executors or assigns, faithfully shall serve, and that honestly and obediently in all things, as a good and dutiful servant ought to do. And the said T. Parsons, Jr., his executors and assigns, during the said term, shall find and provide for the said Elizabeth Lycka sufficient meat, drink, apparel, lodging and washing, and at the expiration thereof shall give to her the customary freedom dues. In witness whereof we have hereunto set our hands and seals at Gothenburg, in Sweden this 5th day of August 1840.’</p> <p>“ The plaintiff was then and still is a citizen of the United States, and was at the time of the making of the contract the master of a vessel then lying at the port of Gothenburg, and about to return to the United States. The said Elizabeth was a native of Sweden. In pursuance of their contract she came with the plaintiff in his vessel from Gothenburg to New York, and then to his home in Manchester in this county. She resided with the plaintiff, doing the common housework of a domestic servant, for about two years. She was examined as a witness for the plaintiff, and testified that she lived with him, and rendered her services to the plaintiff under and in pursuance of the said contract, and that there never was any contract or agreement between herself and him, except that contained in the said indenture. And there was no evidence produced upon the trial, tending to show that any other than that contract had at any time been made by the parties with each other.</p> <p>“ The plaintiff offered evidence tending to show that he had performed his part of the said contract. He also produced evidence tending to show that the said Elizabeth was contented with being in his service, under said contract, and intended to fulfil it on her part, and to remain in his service, in pursuance of the provisions thereof, for the full term of five years therein mentioned; but that the defendants, by various representations, which the plaintiff contended were unfounded and unjust to him, induced and prevailed upon the said Elizabeth to withdraw from and leave his service before the expiration of the said term of five years; and that in consequence of those representations, she did withdraw from and leave his service, and never returned to his house, or fulfilled her contract by performing any service for him after that time, which was about two years and five months after the time when the parties left Gothenburg on their passage to the United States.</p> <p>“ The presiding judge, being inclined to the opinion that upon the foregoing evidence this action could not be maintained, a verdict, under his ruling to that effect, was returned for the defendants. If this ruling was correct, judgment is to be entered upon the verdict; otherwise it is to be set aside, and a new trial granted.”</p>

<p>A parent cannot maintain an action for enticing away a daughter between the ages of twelve and eighteen from the parent’s service, and procuring her marriage, without the plaintiff’s consent, to a man of bad character, by fraudulent representations to the city-clerk and to the magistrate.</p> <p>At the trial of an action for unlawfully enticing away the plaintiff’s daughter and fraudulently procuring her to be married, without the plaintiff’s consent, and so depriving the plaintiff of her services and society, a defendant, who has denied in his answer each averment in the declaration, may object to the maintenance of the action, without having filed a demurrer under St. 1852, c. 312, § 17.</p>

Action on the St. of 1846, c. 199, to recover three times the sum of $100 alleged to have been paid by the plaintiffs to the defendant as unlawful interest.

<p>An easement cannot be acquired by adverse possession, while the owner of the servient tenement, as agent of the owner of the dominant tenement, lets the latter to third persons for short and not continuous terms.</p>

Action of tort for the conversion of a quantity of type and other personal property used in a printing office.

<p>A trustee in foreign attachment cannot be charged upon an answer stating that he has received a check, with authority to receive the amount and pay it to the principal defendant on certain conditions, which have been complied with, and that he has offered to pay the defendant so much of the amount as is not attached by this process; if he does not state, and is not asked, whether he has received the money on the check.</p>

Indictment on St. 1855, c. 215, § 17, commencing thus : •£ Commonwealth of Massachusetts, Essex, to wit: At the court of common pleas, begun and holden at Salem, within and for the county of Essex, on the fourth Monday of January in the year one thousand eight hundred and fifty six.

<p>Under an indictment for-being a common seller of spirituous and intoxicating liquors on a day specified “ and on divers days since,” the proof must be confined to acts done on the day specified.</p>

Indictment on St. 1855, c. 215, § 17. Trial in the court of common pleas, before Sanger, J., who signed this bill of exceptions : “At the trial, the government offered evidence of three sales of liquor by the defendant, or his agent, and there was other evidence tending to prove him a common seller.

Complaint for an assault upon an officer. The defendant, after trial and conviction in the court of common pleas, moved in arrest of judgment, because the warrant issued on the complaint was served upon him by the officer upon whom the assault was alleged to have been made ; and, that motion being overruled, alleged exceptions.

<p>In an action for several breaches of covenant in a lease of real estate, all of which are denied in the answer, a general verdict and judgment for nominal damages are not of themselves conclusive evidence of one of the breaches, in a subsequent action by the lessee against the lessor, for entering and expelling him from the premises for such breach. But with the addition of proof that the issue upon that covenant was submitted to the jury in the former action, such judgment is conclusive.</p>

<p>Action of contract for money paid and money lent by Joseph H. Finch, the plaintiff’s intestate. The defendant admitted his liability for the whole amount sued for, unless the court should be of opinion that he was discharged from a portion thereof upon the following facts, which were agreed by the parties:</p> <p>Finch was a merchant residing and doing business at Talcahuana, in the Republic of Chili, and there died on the 13th of April 1852, and the plaintiff was appointed administrator of his goods and effects in this commonwealth on the 13th of November 1853. On the 17th of April 1852, Francis C. Coffin commenced a suit in the court of common pleas for the county of Nantucket, purporting to be against Finch, in which he summoned Folger as Finch’s trustee ; the only service of that writ was upon Folger. That action was duly entered, and after proceedings in due form, judgment was rendered for Coffin, and execution issued and satisfied by payment of the amount thereof by Folger to Coffin on the 9th of October 1852.</p> <p>The decision was made at March term 1857.</p>

<p>Action of contract by Myers and Pike, copartners, on a promissory note for $1360.63. Answer, payment, and want of consideration. The case was submitted to the decision of the court upon the following facts :</p> <p>On the 1st of April 1846 the defendant gave his note to the plaintiffs for $2624.93, payable in one year, and secured by a mortgage of real estate in New Bedford. That note was not paid at maturity, and the plaintiffs entered to foreclose the mortgage, and completed the foreclosure on the 14th of June 1851. The real estate was worth at the time of the entry $3000. On the 21st of August 1846 the defendant made to the plaintiffs another promissory note for the sum of $2430.61.</p> <p>On the 10th of September 1851 an agreement was drawn up, by which, after reciting the defendant’s indebtment to the plaintiffs in the sum of $6597.93, the foreclosure of said mortgage, and the defendant’s desire of paying said debt and purchasing the estate, the plaintiffs’ agreement to reconvey that estate for $4000 to the defendant, and the defendant’s agreement to give the plaintiffs six promissory notes, payable in one, two, three, four, five and six years, respectively, the first note for $992, the second for $1360.63, and the others for different sums, making the whole amount $8193.46, it was agreed that, upon payment of all these notes, the plaintiffs should convey the estate to the defendant, and that the defendant should meanwhile retain possession thereof and receive all rents and profits, and pay taxes, and erect a building thereon worth at least $1000, and keep it insured for a certain sum. This agreement purported to be made by both plaintiffs as partners, but was signed and sealed by Myers alone.</p> <p>The first note mentioned in this agreement was paid, and the second is the one in suit. The two original notes remained in possession of the plaintiffs until after the action was brought, and have since been brought into court and surrendered. The plaintiffs still hold the real estate in fee; but the defendant has always, with their assent, received all the rents and profits, and has erected a building thereon worth $2500.</p>

<p>A will duly executed in England, where the testator resided and died, contained the following bequest: “ My property at Boston, North America, under the care of J. S., amounting by the last account to eleven thousand five hundred pounds, I desire may tie left under his control until it amounts to twenty thousand pounds, then the interest to be paid to A., and the principal to B. [son of A.], he having no children, then to nis brothers in succession, on the demise of the father A., failing in male issue in the family of the said A., then the twenty thousand pounds to be divided among any female children the said A. may leave.” J. S. was named in the will as executor and trustee, and had previously purchased, in trust for the testator, land situated in Brighton, near Boston, and included its value in the account mentioned in said bequest. Held, that the testator’s interest in this land was included in the bequest; that the property was to be held by the trustee until it amounted to twenty thousand pounds sterling, computed at $4.44 to the pound; and the income, after that, paid to A. for life, and the principal held in trust until A.’s decease; and that the further limitations could not be determined until that time.</p>

<p>Before the expiration of a charter party for a certain time, at a certain rate, payable every six months in New York, and the “ balance of the charter to be paid on the discharge of the cargo at the final port of delivery,” by which the charterer bound the cargo to the performance thereof, it was agreed between the charterer and the owners that the charter party should terminate upon the arrival of the vessel at San Francisco and the payment to the owners there of the amount of a draft by the charterer upon his agent there. Held, that upon the arrival of the vessel at San Francisco' the owners had a lien upon the .cargo for the amount of the draft, as against a transfer of the cargo, made by such agent to a third person to secure a preexisting debt of the charterer, before such arrival, but after the draft had been presented to him, and he had refused to pay it on the ground “ that the funds upon which it was drawn had never been received.”</p>

Action of contract by the master against the charterers of the Barque Fanny Buck, to recover for his services and expenses at Cape Cod for one hundred and four days from and after the 29th of December 1853, the day of the loss of the vesse on that coast.

<p>A charter party “ for a voyage or voyages to any ports or places ” for a certain time, and if that time expires while the vessel is on a voyage, then until her return to an Atlantic port in the United States, by which the charterers agree to pay freight at a certain rate per ton for each month the vessel is employed by them, and at the same rate for any part of a month, half to be paid at the end of every six months, and the balance to the master at each port of discharge, is a charter for a specified time; and if the vessel is lost in the course of a voyage, freight is due to the time of the loss.</p>

<p>6y the written conditions of a sale by auction, the vendor agreed “ to sell and convey,” and the purchasers “to purchase and pay for” certain lots of land; “the purchase money to be paid, one half in ten days from the date of the sale, when said purchasers will receive a bond from said vendor, conditioned to convey to each purchaser the lots by him purchased when the other half of said purchase money shall be paid, and the other half of said purchase money to be paid in six months from the date of the sale, when a deed of warranty will be given; purchasers wishing to pay in cash all the purchase money may do so, and receive immediately the warranty deed as above described; ten days will be allowed to purchasers to look at the title, and for the proprietor to make his arrangements to deed the same.” Held, that the vendor could not maintain an action against a purchaser, upon this agreement, without proving that he had, at the expiration of ten days after the sale, a good title to the lot bid off by this purchaser; although at that time he tendered to the purchaser a bond for a warranty deed of that lot in six months from the sale, upon the purchaser’s fulfilling the conditions, and the latter made no objection then to the title, nor to the form of the bond.</p>

<p>Action of contract, praying relief in equity, under St. 1853, c. 371, to compel the specific performance of a written contract to convey land in Watertown to John Reed, since deceased intestate. The plaintiffs were Reed’s widow, children and administrator.</p> <p>The declaration alleged that the defendant and Reed, pursuant to an agreement in writing between them, pm-chased said lands on joint account, and had the conveyance made to the defendant alone, and Reed paid the defendant one half of the purchase money, and of all other costs and charges, and so fulfilled his part of said agreement, and the defendant held the lands free from all incumbrances, and Reed was entitled to a conveyance from him of one undivided half thereof. The widow claimed dower in the land, and the administrator represented that it was needed for the payment of debts.</p> <p>The answer, which was under oath, admitted the allegations of the declaration; but alleged that, after the payments made by Reed, loans of various sums were made by the firm of N. D. Whitney & Company, of which the defendant was a member, to the firm of Reed & Tuttle, of which Reed was a member; that these sums were borrowed by Reed, and had not been repaid ; that the defendant and Reed were near neighbors and intimately acquainted; “ that the defendant’s impression, derived from said Reed in interviews with him, though general, is nevertheless very strong, that it was said Reed’s understanding that the defendant could hold said lands or their proceeds as security for any loans made to said Reed; ” that Reed, both before and after these loans, said to the defendant, in reference to them, that “ he need have no anxiety, for that he was safe, happen what might; ” and that “ the defendant does not remember whether said Reed, in stating that he would be safe, spoke particularly of said lands; but at the time of such conversations the defendant had no other security.”</p> <p>The defendant contended that by this understanding a new trust was created in his favor, and a lien upon the land to secure the sums so borrowed; and also that he should be allowed to set off the claim of his firm upon the firm of Reed & Tuttle as a defence to this action. The case was set down for hearing on the declaration and answer.</p>

This was an action by a passenger against the defendants as common carriers, to recover for injuries sustained through negligence in the management of their cars. The writ contained counts in contract and in tort, pursuant to St. 1852, c. 312, § 2, cl. 5.

Two writs of scire facias against bail. The cases were tried together before the chief justice, and by him reported to the full court, and are sufficiently stated in their opinion.

<p>It is no ground for arresting judgment in an action on a promissory note, that it hears date of the Lord’s day.</p>

Libel for divorce from the bond of matrimony, on the ground of desertion. The libellant alleged in his libel, that the residence of his wife had been for some time, and then was, unknown to him; and the only notice given was by publication in a newspaper. On an ex parte hearing, a decree for the divorce prayed for was entered upon the docket, and a certificate thereof given to the libellant, by order of the court.

Trustee process. John F. Forepaugh appeared and was admitted as a party to the suit under Rev. Sts. c. 109, § 18, and claimed the funds in the hands of the alleged trustee, under an assignment made in Pennsylvania, of all the property of the principal defendant, who was a citizen of that, state, in trust to divide all the proceeds thereof ratably among the creditors of the assignor, and to return to him any surplus remaining.

Action of contract on a bond for the liberty of the prison limits, dated November 9th 1854, executed by David Briggs as principal, and Leonard Small as surety, with the usual condition that Briggs (who had been committed to jail on an execution in which plaintiff was the judgment creditor) should surrender himself to the jailer at the expiration of ninety days from its date, to be held in close confinement, if not sooner discharged by payment of the execution or by order of…

<p>Action of contract upon a lease made by the plaintiff" to the defendant, on the 1st of October 1850, of a building in Atkinson Street in Boston, “ to hold for the term of three years from the date hereof, yielding and paying therefor the rent of seven hundred dollars a year; and, at the election of said Cook, for the further term of two years next after said term of three years, yielding and paying for said term of two years a rent of seven hundred and fifty dollars a year. And the said lessee doth promise to pay the said rent in equal quarterly payments on the first days of January, April, July and October in each year, and to quit and deliver up the premises to the lessor or his attorney, peaceably and quietly, at the end of the term, in as good order and condition, reasonable use and wearing thereof, fire and other unavoidable casualties excepted, as the same now are or may be put into by the said lessor, and to pay the rent as above stated, and all taxes and duties levied or to be levied thereon during the term, and also the rent and taxes, as above stated, for such further time as the lessee may hold the same.”</p> <p>The plaintiff, in his declaration, alleged that “ the defendant elected to continue in the occupancy of the premises mentioned in said instrument for the term of two years next after the term of three years mentioned in said instrument, upon the terms and provisions therein mentioned; and the defendant has accordingly used and occupied said premises all the time hitherto from the date of said instrument; ” and claimed rent for the quarter ending the 1st of October 1854, at the rate of seven hundred and fifty dollars a year. Writ dated October 30th 1854. Trial in the court of common pleas, before Mellen, C. J., who, after a verdict for the plaintiff, signed a bill of exceptions, the substance of which is stated in the opinion.</p>

<p>Flour was purchased by A. in Wisconsin, on conditions, agreed upon between A., C. and the seller, that it should be shipped in the name and on account of 0. to B. in Boston, to be delivered to A. on payment of drafts drawn by the seller upon B., and discounted by C., and was shipped in the name of C. to B., and a bill of lading made in C.’s name, who discounted such drafts, and sent the bill of lading and one of the drafts to B. who refused to accept or pay it. Held, that no property vested in A. as purchaser, or B. as consignee, until payment of the drafts; that there was a sufficient delivery of the property to C., within the statute of frauds; that such shipment of the flour was no waiver of the conditions of the sale; that C. was entitled to the flour as against a pledge thereof made by B. to another person, to secure advances by him thereon; and, after demand and refusal, might maintain trover for the flour against such pledgee.</p> <p>In trover by one who has only a special property in the goods as security for his advances, against one having no title, the measure of damages is the full value of the goods. •</p>

<p>An action to recover threefold the amount of unlawful interest paid, called in the writ “ an action of tort and an action of contract, both being for one and the same cause of action,” and containing a single count in tort, may be amended, by leave of court, by adding a count in contract, with an averment that both counts are for one and vhe same cause of action; and, after such amendment, may be maintained, under Si. 1S52, c. 312, § 2.</p> <p>One who, in consideration of a loan of money, gives his note for a larger amount, bearing interest and secured by a mortgage on real estate, and afterwards conveys the estate to one who agrees, as part of the consideration of the conveyance, to pay the amount of the note, may, upon the grantee’s paying the note accordingly, maintain an action on St. 1846, c. 199, against the payee of the note, to recover three times the excess of the amount of the note above the loan.</p>

Action of contract on a promissory note for $13,927.84, and interest, dated April 7th 1846, and made by the defendant to Amos Binney, the plaintiff’s testator.

<p>The assignment, for a valuable consideration, of a chose in action, implies a covenant that the assignor has done and will do nothing to prevent the assignee from collecting it.</p> <p>An assignee, for a valuable consideration, of a claim upon the government, is not, upon the subsequent collection by a third person of the full amount of the claim to his own use under an authority given by the assignor previously to this assignment, and the consequent refusal of the government to pay the claim to this assignee, entitled, in the absence of fraud in the assignor, to recover of the assignor the whole of the amount so collected; but is entitled to recover the amount of the consideration which he paid for the assignment, with interest from the time of presenting his claim to the government; and such interest is to be computed according to the legal rate here, although the transaction took place in a foreign country, in an action by the assignee against the assignor of a claim upon the United States, assigned to the plaintiff in payment for goods sold in California, just before its annexation to the United States, and which the plaintiff has been prevented by the defendant’s acts from collecting, evidence of the first cost of the goods in the United States, the expenses of transporting them to California, the duties thebe, and the usual and proper addition for profits, and also evidence of sales of like articles for cash within three or four months before and after the sale, and that the plaintiff within two months after-wards repurchased some of these goods for cash at advanced rates, is admissible in connection with other evidence of the market value of the goods at that time and place.</p>

<p>Petition for a writ of habeas corpus, representing that Hart, on an execution issued against him from the superior court of this county for $512.71, and by virtue of an affidavit indorsed thereon, was arrested and taken before Dexter Bucknam, a justice of the peace and of the quorum for the county of Middle-sex, at Stoneham, and not desiring the justice to do anything or hear any examination at that time, the justice ordered him to be committed to jail, and by virtue of such order he was so committed, and was now imprisoned in the jail at Cambridge, of which the respondent was keeper.</p> <p>Annexed to the petition were copies of the execution ; of the affidavit indorsed thereon, taken before a commissioner of insolvency, (who certified that he was satisfied that there was reasonable cause to believe the truth of the charge made in the affidavit,) that twenty dollars, exclusive of costs, remained uncollected thereon, and that the person making the affidavit in behalf of the creditor believed and had reason to believe that Hart had property, not exempt from being taken on execution, which he did not intend to apply to the payment of the creditor’s claim; of the return of the officer on the execution that “ by virtue of this execution, and the authorization to arrest ” Hart, he had arrested him, and had him before said justice for examination ; of the order of said justice, which recited that Hart had refused to appoint a time for his examination, or to apply to be admitted to take the poor debtors’ oath, or to recognize for his appearance, or to deliver himself up for future examination; and of the officer’s return upon this order, in these words : “ By virtue of the within order I have committed the within named Joseph M. Hart to the jail in Cambridge.”</p> <p>The court issued the writ, returnable forthwith; and the respondent returned thereon that he, as jailer, held Hart in his custody on the execution and the papers annexed thereto.</p> <p>H. D. Hutchinson, for the petitioner, contended that he was entitled to be discharged, 1st, because it did not appear that the officer who arrested him could not conveniently find any justice of any court of record, or any police justice, judge of probate, commissioner of insolvency, or master in chancery, without which the officer was not authorized by St. 1855, c. 444, § 4, to carry him before a justice of the peace and of the quorum; 2dly, because it did not appear that the justice, before committing him to jail, examined him, as on an application to be admitted to take the poor debtors’ oath; and 3dly, because the officer committed him by virtue of the order of the justice, and not by virtue of the execution.</p>

<p>Upon a trial for murder, after the introduction of evidence of the defendant’s insanity, the Commonwealth may introduce in rebutter evidence Of his sanity.</p> <p>The burden of proof, resting upon the Commonwealth in a capita] case, is sustained, so far as the defendant’s mental capacity is concerned, by the presumption of sanity, until rebutted and overcome by a preponderance of the whole evidence.</p>

<p>The defendant was indicted for the murder of Ellen Fox, his wife, and was tried on the 6th of January 1857, before Justices Metcalf, Bigelow and Merrick.</p> <p>The indictment charged him with murdering his wife by assaulting and beating her, throwing her down upon the floor, and with his hands and feet striking, kicking and bruising her. The evidence tended to show that the wife, at the time of the assault, was suffering severely with lung fever, of which she must probably have died in a short time, if the assault had not been committed; but that the assault committed by the defendant hastened her death.</p> <p>Margaret Hogan, who was unable to read or write, being called as a witness for the Commonwealth, omitted to state some facts to which she had testified at the coroner’s inquest on the day after the alleged homicide. The attorney general, for the purpose of refreshing her recollection, offered to read her statement, as then reduced to writing by the coroner, and signed with the mark of the witness. S. D. Parker 4* G. Sennotl, for the defendant, objected that the statement should not be read in the presence of the jury; because it could only be used as a memorandum to refresh the recollection of the witness. And so the Court ruled; and ordered that the witness should withdraw with one of the counsel on each side, and that the paper should be read to her by them, without comment, and she should then return and proceed with her testimony.</p> <p>In. closing the case for the defendant, his counsel objected that there was a variance between the indictment and the proof, because the evidence showed that the death was not occasioned by the assault alone, but that it was the disease of the wife, which made the assault mortal; and that the fact that she was diseased at the time of the assault should therefore have been averred in the indictment.</p> <p>The defendant’s counsel also contended that the assault, having been made without a deadly weapon, with the defendant’s hands and feet only, was not calculated to do great bodily harm, and that therefore malice could not be implied, and, in the absence of proof of express malice, the defendant could, at most, be convicted only of manslaughter.</p> <p>On these points the jury were instructed as follows, in the charge delivered by</p>